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

660 A.2d 700, 1995 Pa. Commw. LEXIS 302

• Court: Commonwealth Court of Pennsylvania
• Decided: June 15, 1995
• Status: Published

Opinions

McGINLEY, Judge.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Beaver County (trial court) which sustained the statutory appeal of Charles R. McCracken (McCracken) from a one year suspension of his operating privileges.

McCracken was convicted of a violation of section 6308 of the Crimes Code, 18 Pa.C.S. § 6308¹ on December 6, 1990. As a result, DOT imposed a 90 day suspension pursuant to 18 Pa.C.S. § 6310.4.²

On December 18, 1993, McCracken was charged with another violation of 18 Pa.C.S. § 6308, among other violations.³ McCracken accepted Accelerated Rehabilitative Disposition (ARD) for the December 18, 1993, violation of 18 Pa.C.S. § 6308. His acceptance of ARD was certified to DOT indicating that he accepted a preadjudieation disposition and DOT subsequently imposed a one-year operating privilege suspension pursuant to 18 Pa. C.S. § 6310.4.

McCracken filed a statutory appeal from DOT’s imposition of the suspension. Before the trial court, McCracken argued that his acceptance into ARD was not an acceptance of a preadjudication disposition and accordingly he should not have been suspended. The trial court, in an order dated April 29, 1994, vacated McCracken’s suspension and remanded the ease to DOT with instructions to remove the December 18, 1993, offense from his driving record. DOT properly appeals to this court pursuant to Pa.R.A.P. 311(f)(1).

On appeal we are asked to determine whether the trial court’s ARD program constitutes a “preadjudication disposition” for purposes of 18 Pa.C.S. § 6310.4.⁴ We note that our scope of review is limited to determining if the trial court committed an error of law or abused its discretion and whether all necessary findings of fact are supported by substantial evidence. Department of Transportation, Bureau of Driver Licensing v. Hardy, 160 Pa.Commonwealth Ct. 427, 635 A.2d 230 (1993).

DOT argues that since there is no definition of “preadjudication program”, then the statute is ambiguous and the rules of statutory construction should be followed. McCracken asserts that the language of Section 6310.4 unambiguously states that the ARD program he entered is not a “preadju-dication program”. McCracken argues that the Legislature intentionally chose to limit “preadjudieation programs” to those programs imposed by district justices. McCracken points to 18 Pa.C.S. § 6308(c)(1) which states:

When a person is charged with violating subsection (a), the district justice may admit the offender to the adjudication alternative as authorized in 42 Pa.C.S. § 152(3 (relating to adjudicative alternative program) or any other preadjudication disposition if the offender has not previously received a preadjudication disposition for violating subsection (a).

McCracken argues that because he was admitted into the ARD program by a common pleas court judge and not a district justice, then the program is not one envisioned by the Legislature to warrant a license suspension.

In Commonwealth v. Allem, 367 Pa.Superior Ct. 173, 532 A.2d 845 (1987), the Pennsylvania Superior Court stated:

Initially, we note that judges of the court of common pleas are clearly empowered to sit as issuing authorities. Pursuant to 42 Pa.C.SA. § 912, ‘[ejvery judge of the court of common pleas shall have all the power of a judge or a district justice of the minor judiciary.’ An ‘issuing authority’ is defined as ‘any public official having the power and authority of an alderman, justice of the peace, magistrate, or district justice.’ Pa. R.Crim.P. 3(j). Thus, judges of the court of common pleas have concurrent jurisdiction as issuing authorities with the district justices of each magisterial district within their judicial districts.

Allem, 367 Pa.Superior Ct. at 183, 532 A.2d at 850. Accordingly, we find the result urged by McCracken to be unpersuasive.

Here, we find that the term “preadju-dication program” has a clear meaning as set forth in Section 6310.4 It is any remedial program that a party enters prior to the disposition of his case. If a licensee leaves without finishing the program the underlying charge proceeds to adjudication. Alternatively, when the licensee successfully completes the program then the court will dismiss the charge. 18 Pa.C.S. § 6310.4 explicitly states that if someone enters such a program for a violation of 18 Pa.C.S. § 6308, then the court shall order their operating privileges suspended, regardless of participation in a “preadjudication program”.

Accordingly, we reverse the trial court and reinstate McCracken’s suspension.

ORDER

AND NOW, to wit, this 15th day of June, 1995, the order of the court of common pleas of Beaver County at No. 10462 of 1994, and dated April 29, 1994, is reversed. The one year suspension of Charles R. McCracken’s operating privileges is reinstated.

1 . Section 6308 states that "[a] person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages as defined in section 6310.6 (relating to definitions).”

2 . 18 Pa.C.S. § 6310.4 states in pertinent part:

(a) General rule. — Whenever a person is convicted or is adjudicated delinquent or is admitted to any preadjudication program for a violation of section ... 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) ... the court, ... shall order the operating privilege of the person suspended. A copy of the order shall be transmitted to the Department of Transportation.

3 .The record indicates that McCracken was charged with a number of violations as evidenced by the testimony elicited at a hearing on the matter which took place on April 24, 1994. Charles Bowers, Jr., Esquire, McCracken’s counsel, to Judy Enslen, Clerk of Courts of the County of Beaver:

Q: And at my request have you brought with you this morning the records of the Clerk of Courts’ Office in the matter of the Commonwealth of Pennsylvania versus Charles McCracken at No. 62 of 1994, Criminal Section?

A: Yes, I have.

Q: I refer you to these original records and ask you to confirm that the charges filed against Mr. McCracken were Burglary, Criminal Trespass, Criminal Mischief, Public Intoxication, and Purchase, Consumption, Possession or Transportation of Intoxicating Beverage?

A: That’s correct.

Notes of Testimony, April 27, 1994, at 5-6; Reproduced Record (R.R.) at 17a-18a.

4 . The trial court did not issue a formal opinion in this case. However, it is inescapable that DOT has set forth the correct issue on appeal, namely whether an ARD program, to which a licensee is admitted by a common pleas court, constitutes a "preadjudication disposition” under 18 Pa.C.S. § 6310.4 and, therefore, requires a one year license suspension.

Further, the Dissent notes that McCracken’s petition to appeal suspension of operator’s license only asserted error because of the failure to advise him that acceptance of the ARD program would result in the imposition of a license suspension. While McCracken abandoned this argument at the hearing we note that DOT never objected or argued waiver at any time.