Commonwealth v. Ford-Bey

597 A.2d 267, 142 Pa. Commw. 345, 1991 Pa. Commw. LEXIS 505
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 9, 1991
DocketNo. 1457 C.D. 1990
StatusPublished
Cited by2 cases

This text of 597 A.2d 267 (Commonwealth v. Ford-Bey) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ford-Bey, 597 A.2d 267, 142 Pa. Commw. 345, 1991 Pa. Commw. LEXIS 505 (Pa. Ct. App. 1991).

Opinion

CRAIG, President Judge.

The Pennsylvania Department of Transportation (DOT) appeals from an order of the Court of Common Pleas of Montgomery County that reversed a DOT decision revoking the driving privileges of Brenda Ford-Bey for two years for an alleged second violation of § 1543 of the Vehicle Code,1 driving while operating privileges are suspended or revoked. We reverse and remand the case.

Because § 1543 imposes a harsher penalty on a driver who operates his vehicle while his license is revoked rather than suspended, the salient issue in this case is whether Ford-Bey’s license was suspended or revoked at the time of that second § 1543 violation.

Consequently, we must decide whether the trial court erred in determining that DOT did not satisfy its burden of proving that Ford-Bey’s license was revoked at the time of her second § 1543 violation, whether the trial court erred in determining that Ford-Bey’s license was suspended at the time of her second § 1543 violation and whether the trial court erred in not subjecting Ford-Bey’s license to a further suspension or revocation.

Because Ford-Bey was convicted of every offense listed below, we identify the offenses by the date of commission of her violation, not by the conviction date.

The facts in this case, as found by the trial court, are as follows. DOT first suspended Ford-Bey’s license, effective December 10, 1985, for violating 75 Pa.C.S. § 1533, failing to respond to a citation. On December 15, 1985, five days after the effective date of that suspension, Ford-Bey operated her vehicle and therefore violated 75 Pa.C.S. § 1543, [348]*348driving while operating privileges are suspended or revoked, so that DOT revoked Ford-Bey’s license, effective March 12, 1987, for six months pursuant to 75 Pa.C.S. § 1543(c)(1). Section 1543(c)(l)’s original penalty called for a six-month revocation. The General Assembly amended § 1543 in 1986 and changed the penalty to a one-year suspension, but because the violation occurred when the original penalty was in effect, DOT imposed a six-month revocation (see Saron v. Commonwealth, 55 Pa.Commonwealth Ct. 477, 423 A.2d 1099 (1980)).

On December 17, 1986, Ford-Bey violated 75 Pa.C.S. § 3322, failure to yield to oncoming traffic when making a left turn, and DOT imposed a fifteen-day add-on suspension to the March 12, 1987 six-month revocation. On March 15, 1988, Ford-Bey violated 75 Pa.C.S. § 1543 again for a second time. DOT’S records indicate DOT reinstated Ford-Bey’s license April 2, 1988. Upon receiving notice of Ford-Bey’s conviction for the second § 1543 violation, DOT revoked Ford-Bey’s license for two years pursuant to § 1543(c)(2), effective May 13, 1988.

DOT’s revocation of Ford-Bey’s license, effective May 13, 1988, for two years as noted previously, was pursuant to 75 Pa.C.S. § 1543(c), which states, in relevant part:

(c) Suspension or revocation of operating privilege.— Upon receiving a certified record of the conviction of any person under this section, the department shall suspend or revoke that person’s operating privilege as follows:
(1) If the department’s records show that the person was under suspension, recall or cancellation on the date of violation, the department shall suspend the person’s operating privilege for an additional one-year period.
(2) If the department’s record show that the person was under revocation on the date of violation, the department shall revoke the person’s operating privilege for an additional two-year period.

Ford-Bey appealed the two-year revocation to the court of common pleas. Ford-Bey argued that, at the time of her second § 1543 violation, her license was under suspension, [349]*349not revocation. The trial court, exercising its de novo review, held a hearing and overturned DOT’s decision.

The trial court found that DOT did not meet its burden of proving that Ford-Bey’s license, at the time of her March 15, 1988 violation, was revoked. The trial court stated that Ford-Bey’s license at the time of her March 15, 1988 violation was suspended because DOT had suspended Ford-Bey’s license for an indefinite period on December 10, 1985. In its opinion, the trial court stated, “the previous suspension period was for an indefinite period and there is nothing in the record to demonstrate [that this] suspension was ever completed. Thereafter it would remain to be in effect on March 15, 1988.” If Ford-Bey’s license was suspended at the time of her second § 1543 violation, the Vehicle Code mandates a one-year suspension under § 1543(c)(1). However, the trial court imposed no penalty at all upon Ford-Bey. The trial court stated in its opinion:

The possibility of modifying DOT’s Order was raised privately by the Court prior to the taking of testimony and even conceded by Appellee on the record....
Nevertheless, DOT refused to accept such a modification from the Court____
... Had the department indicated such a willingness, this Court would happily have complied and drafted an Order imposing the one-year suspension.

DOT now appeals to this court,2 seeking to overturn the trial court’s decision not to impose a suspension or revocation of Ford-Bey’s license.

1. Status of Ford-Bey’s License at the Time of Her Second § 15J¡.3 Violation

After Ford-Bey’s first § 1543 violation, DOT sent to Ford-Bey an official notice which explained DOT’s proce[350]*350dures for restoring her license. That notice stated that DOT revoked Ford-Bey’s license for six months effective March 12, 1987. At the bottom of the notice, the letter stated “credit will not begin until license is received by bureau.” The trial court, relying upon the effective date on the notice, stated that the first § 1543 revocation ran from March 12,1987 to September 12,1987. Thus, the trial court concluded that Ford-Bey’s license was not revoked when she committed the second § 1543 violation on March 15, 1988.

However, DOT argues that the trial court used the wrong standard for determining when Ford-Bey’s revocation commenced. DOT cites Commonwealth v. MacSherry, 371 Pa.Superior Ct. 164, 537 A.2d 871 (1988), for the proposition that the commencement of a revocation period begins when the driver surrenders her license.

In MacSherry, the issue was whether a motorist could drive after DOT suspended his license but before he mailed his license to DOT. The court, relying upon 75 Pa.C.S. §§ 1540, 1541, held that the motorist’s suspension becomes effective either from the effective date on the suspension notice or on the date the license is returned to DOT, whichever occurs first. The commencement of the revocation or suspension period (the period credited toward the driver suspension or revocation) occurs when the driver sends her license to DOT. Sections 1540(b) and 1541(a) state, in relevant part:

§ 1540. Surrender of license
(b) Suspension, revocation or disqualification of operating privilege.

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Bluebook (online)
597 A.2d 267, 142 Pa. Commw. 345, 1991 Pa. Commw. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ford-bey-pacommwct-1991.