Hatzai v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

686 A.2d 48, 1996 Pa. Commw. LEXIS 494

• Court: Commonwealth Court of Pennsylvania
• Decided: December 2, 1996
• Status: Published

Opinions

RODGERS, Senior Judge.

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Montgomery County that sustained the appeal of Brian Scott Hatzai (Hatzai) and ordered that the suspension of Hatzai’s operating privilege be rescinded. We reverse and direct the reinstatement of the six-month suspension.

On January 25, 1995, Hatzai was convicted of violating Section 13(a)(12) of The Controlled Substance, Drug, Device and Cosmetic Act.¹ The conviction was duly certified to the Department by the Bucks County court. Hatzai was sent an official notice by the Department, dated and mailed June 19,1995, advising that, as a result of his conviction, his operating privilege was being suspended for six months as mandated by Section 1532(c) of the Vehicle Code, 75 Pa.C.S. § 1532(c).² The suspension notice contained the following language:

Dear Motorist:

As a result of your conviction on 01/25/1995 of violating Section 13A12 of the Vehicle Code, ACQ/OBT/POSS — CTRL SUB on 08/31/1994, your driving privilege is being SUSPENDED for a period of 6 MONTH(S) as mandated by Section 1532C of the Vehicle Code. (Emphasis added.)

(19a.)

Hatzai filed a statutory appeal, which contained inter alia the following two aver-ments:

4. Petitioner did not violate Section 13A12 of the Vehicle Code as alleged in the letter of revocation.

5. Any attempt to suspend Petitioner’s operating privileges places the Petitioner in double jeopardy as he has already been sentenced for a violation of the Controlled Substance, Drug Device and Cosmetic Act [sic].

(2a-3a.)

At a de novo hearing held before the trial court, the Department entered documents into evidence certified under seal, including a certified copy of Hatzai’s January 25, 1995 conviction. Hatzai presented no evidence, but his attorney raised an issue concerning defective notice. Specifically, Hatzai’s attorney contended that the notice received by Hatzai contained a reference to a conviction for violating “Section 13A12 of the Vehicle Code” and that no such statute exists. However, Hatzai’s attorney did acknowledge that Hatzai had been convicted for violating Section 13(a)(12) of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act).

The Department conceded that the suspension notice incorrectly cited the Vehicle Code when it should have referenced the Controlled Substance Act, but that Hatzai was not prejudiced by the error. The Department moved to amend the suspension notice and Hatzai objected.

After taking the case under advisement, the trial court issued an order, sustaining Hatzai’s appeal and rescinding the six-month suspension. The Department now appeals to this Court.³

On appeal,⁴ the Department contends that its notice of suspension was sufficiently informative to apprise Hatzai of the basis for the suspension and, thus, allowed him to adequately prepare a defense. In addition to citing numerous appellate opinions, common pleas court decisions and some memorandum opinions issued by this Court, the Department also cites Department of Transportation v. Sutton, 541 Pa. 35, 660 A.2d 46 (1995), a case concerning a chemical test refusal, wherein the date of refusal on the suspension notice was incorrect. After reviewing these various opinions, we conclude that the Pennsylvania Supreme Court’s decision in Sutton is controlling.

In Sutton, the notice of suspension concerned the licensee’s refusal to submit to chemical testing. The error on the notice indicated that the refusal occurred on February 4, 1993, rather than on February 3, 1993. Although the trial court and this Court sustained the licensee’s appeal, the supreme court reversed holding that the notice was sufficient and that the defect was immaterial.

The Sutton court cited Department of Transportation, Bureau of Drtver Licensing v. Balloch, 142 Pa.Cmwlth. 637, 598 A.2d 110 (1991), noting that “in administrative proceedings due process [should] be afforded so that the accused may prepare an adequate defense.” Id. 660 A.2d at 48. Moreover, the Sutton court distinguished Balloch, observing that in Balloch the licensee had three chemical test refusals in a thirteen month period so that an incorrect date on the notice of suspension did not adequately inform the licensee which one of the three chemical test refusals was the basis for the suspension.

Conversely, in SuMon the court concluded that the licensee was not misled or prevented from preparing a proper defense because the licensee was well aware and prepared to defend against the test refusal on which the suspension was based. Moreover, the Sutton court considered the licensee’s averments in his statutory appeal petition, taking into account the licensee’s recognition of the date upon which the actual refusal occurred.

Although in the case before this court, the error on the suspension notice was not a date but the title of the statute under which Hat-zai was convicted, we believe, as did the court in Sutton, that the error was immaterial. Hatzai’s statutory appeal petition acknowledges his conviction under the Controlled Substance Act. He does not claim confusion because of other convictions. He cannot acknowledge the conviction in his statutory appeal petition or at the trial de novo and then expect this Court to believe that he was unaware of the conviction that was the basis for the suspension.

Accordingly, we reverse the order of the trial court and direct the reinstatement of the six-month suspension.

ORDER

NOW, December 2, 1996, the order of the Court of Common Pleas of Montgomery County, filed October 6, 1995, at No. 95-13806, is reversed and the six-month suspension is reinstated.

1 . Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(12), which states:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

(12) The acquisition or obtaining of possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.

2 . 75 Pa.C.S. § 1532(c) states, in pertinent part:

(c) Suspension. — The department shall suspend the operating privilege of any person upon receiving a certified record of the person’s conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance under the laws of the United States, this Commonwealth or any other state. (1) The period of suspension shall be as follows:

(i) For a first offense, a period of six months from the date of the suspension.

3 . On June 26, 1996, Hatzai was ordered by this Court to file a brief by July 10, 1996, or be precluded from filing a brief or participating in oral argument. Due to Hatzai’s failure to comply with the June 26, 1996 order, on July 29, 1996, this Court issued an order precluding Hat-zai from filing a brief and determining that the matter was to be submitted on the basis of the Department’s brief only.

4 . In reviewing a driver’s license suspension case, our scope of review is limited to determining whether the trial court committed an error of law or an abuse of discretion and whether its findings of fact are supported by competent evidence. Commonwealth v. Danforth, 530 Pa. 327, 608 A.2d 1044(1992).