Commonwealth v. Warenczuk

633 A.2d 1167, 534 Pa. 623, 1993 Pa. LEXIS 285

• Court: Supreme Court of Pennsylvania
• Decided: November 18, 1993
• Docket: Appeal No. 37 Middle District Appeal Docket 1992
• Status: Published

Opinions

ORDER

PER CURIAM.

AND NOW, this 18th day of NOVEMBER, 1993, the court being equally divided, the order of the Commonwealth Court is hereby affirmed.

MONTEMURO, J., files an Opinion in Support of Affirmance, joined by NIX, C.J., and PAPADAKOS, J. PAPADAKOS, J., files an Opinion in Support of Affirmance. FLAHERTY, J., files an Opinion in Support of Reversal, joined by ZAPPALA and CAPPY, JJ.

Prior Report: 530 Pa. 634, 606 A.2d 903.

OPINION IN SUPPORT OF AFFIRMANCE

MONTEMURO, Justice.

This case, as the Opinion in Support of Reversal points out, questions the adequacy of regular first class mail as the method used to direct a notice of driver’s license suspension where receipt of the notice is denied by the suspendee.

It should first be noted that the receipt or otherwise of license suspension notices is a theme which, with variations, repeats itself regularly. See Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975); Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991); Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). As the Opinion in Support of Reversal correctly points out, reasonable efforts must be made by PENNDOT to notify the driver of the action taken in removing his or her licensure. However, while it is admitted that what is reasonable may vary from case to case, the conclusion is drawn that by using first class mail delivery to serve notice, the department failed to act “reasonably” in this instance.

That conclusion by the Opinion in Support of Reversal is extended no further than this case because appellant’s most recent address was available. The operative assumption here is that had certified mail been employed to serve notice, the unclaimed return receipt would have alerted the department, and a search for further information could have been conducted. However, the availability of appellant’s address information was serendipitous, due only to appellant’s arrest, since he himself, in violation of a specific statutory directive, failed to inform the department of his whereabouts. Further, the department violated no precept of ours by using first class mail, since there is no authoritative definition of the requirements for acting reasonably to serve notice of license suspension, “no statute, no regulation and no rule of court which requires it or any other governmental unit to serve its orders by certified mail.” (Opinion in Support of Reversal at 7.) Therefore, even though in this case the lack of return receipt might have made the department aware that the notice was not received so that other action could be taken, the department, unlike appellant, was under no specific obligation to do otherwise than it did. Moreover, the Opinion in Support of Reversal fails to explain how the department was to know beforehand that its efforts would be unreasonable. Nor is it explained whether the same steps taken by the department would have been unreasonable had appellant’s new address been unavailable.

In Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993), the appellant also failed to supply the department with a changed address. The argument raised there, that the appellant was responsible for her difficulties with receipt of notice due to her own dereliction, is repeated here, and countered by the Opinion in Support of Reversal with a citation to Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). However, no amount of insistence on the importance of a driver’s license, whether its possession is termed a right or a privilege, can cure the inability of any form of notice to reach a suspendee whose whereabouts are unknown. Rights and privileges, however essential, must be given some measure of protection by those who hold them, or they are lost. Fulfillment of a statutory duty to apprise the department of a change of address is not so onerous a protective measure for the right or privilege of driving that it cannot be required, especially of “prudent, law-abiding citizens,” McDonough at 291, 621 A.2d at 574 (Flaherty, J., Opinion in Support of Reversal).

The Opinion in Support of Reversal would have this case returned to the Commonwealth Court for the imprimatur of unreasonableness to be stamped upon the department’s actions. Such a course would only reward appellant for his failure to comply with the law. The department is given no mandate for change, and the pattern may repeat itself at any time since exactly nothing will have been altered.

Given the repetitive nature of the problem involved here, maintenance of the status quo is objectionable, hence this Opinion in Support of Affirmance.

NIX, C.J., and PAPADAKOS, J., join this Opinion in Support of Affirmance.