Ganoe v. Commonwealth

247 A.3d 91

Brian GANOE, Appellant

v.Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING

No. 648 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued December 9, 2020

Decided March 2, 2021

Jeremy D. Williams, York, for Appellant.

Terrance M. Edwards, Senior Counsel, Harrisburg, for Appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,¹ HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Brian Ganoe (Licensee) appeals an order of the Court of Common Pleas of York County (trial court) suspending his operating privilege because of his conviction for a drug offense. Upon receiving the certified record of Licensee's conviction, the Department of Transportation, Bureau of Driver Licensing (PennDOT) notified Licensee that his operating privilege would be suspended pursuant to Section 1532(c) of the Vehicle Code, 75 Pa. C.S. § 1532(c), and Licensee appealed. By the time of his hearing before the trial court, Section 1532(c) no longer authorized a license suspension for a drug conviction. On appeal, Licensee argues that the trial court lacked the statutory authority to enter an order suspending Licensee's operating privilege. We agree and reverse.

Factual Background

On February 26, 2018, Licensee was convicted of violating Section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act),² 35 P.S. § 780-113(a)(30) (relating to the unlawful manufacture, delivery or possession of a controlled substance). On March 24, 2018, PennDOT mailed a notice to Licensee informing him that his operating privilege would be suspended effective April 28, 2018, as a consequence of this conviction. PennDOT based this suspension notice on Section 1532(c) of the Vehicle Code, which stated as follows:

(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, or any person 21 years of age or younger upon receiving a certified record of the person's conviction or adjudication of delinquency under 18 Pa. C.S. § 2706 (relating to terroristic threats) committed on any school property, including any public school grounds, during any school-sponsored activity or on any conveyance providing transportation to a school entity or school-sponsored activity.

Former 75 Pa. C.S. § 1532(c) (emphasis added).³ Six months later, the General Assembly deleted the above-italicized language from Section 1532(c). See Act of October 24, 2018, P.L. 659, No. 95 (Act No. 2018-95). The new law became effective in accordance with Section 5 of Act No. 2018-95, which states: "This act shall take effect in 180 days." Id. Stated otherwise, the above-described amendment to Section 1532(c) took effect on April 22, 2019.

Licensee petitioned to appeal his suspension, and a hearing on his appeal was held on April 24, 2019. At the hearing, Licensee argued that the General Assembly "clearly and manifestly" made the amended version of Section 1532(c) applicable to his appeal. Notes of Testimony, 4/24/2019, at 3 (N.T. ––––); Reproduced Record at 16 (R.R. ––––). Licensee argued that Act No. 2018-95 effected a procedural change in the law that applied to all license suspensions not yet in effect on April 22, 2019. Alternatively, Licensee asked the trial court to sustain his appeal in the interest of justice. He explained that he had turned his life around through drug treatment, education and full-time employment and that a license suspension would imperil his employment.

Consistent with its prehearing memorandum of law, PennDOT argued that it was the version of Section 1532(c) in effect when Licensee was convicted that governed Licensee's privilege to operate a motor vehicle after April 22, 2019. PennDOT argued that Act No. 2018-95 effected a substantive change in law because "it takes away a right," and, therefore, could not be applied "retroactively." N.T. 7; R.R. 20. The trial court agreed.

The trial court "dismissed" Licensee's appeal and "reinstated" PennDOT's license suspension. Trial Court Order, 4/24/2019; R.R. 4.⁴ Licensee then appealed to this Court. The trial court's one-page PA. R.A.P. 1925(a) opinion incorporated by reference its oral ruling at the April 24, 2019, hearing, which simply adopted PennDOT's position without analysis.

This Court listed the matter for en banc argument and directed the parties to address the following questions:

1. Whether Section 1532(c) of the Vehicle Code, 75 Pa. C.S. § 1532(c), is a penal provision subject to a strict construction under Section 1928(b)(1) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1928(b)(1).

2. Whether the language in the Act of October 24, 2018, P.L. 659, No. 2018-95 (Act No. 2018-95) supports the Pennsylvania Department of Transportation's [proffered] conclusion that the elimination of the statutory license suspension for a drug conviction (under any state or federal law) applies only to licensees whose conviction occurs on or after the April 22, 2019, effective date of Act No. 2018-95.

3. Whether the language in Act No. 2018-95 supports [Licensee's] proffered conclusion that the elimination of the statutory license suspension for a drug conviction (under any state or federal law) applies to licensees whose suspension is ordered by a trial court on or after April 22, 2019, regardless of the date of the licensee's drug conviction.

Cmwlth. Ct. Order, 11/2/2020.

Appeal

On appeal,⁵ Licensee contends that the trial court erred because at the time of his hearing, Section 1532(c) of the Vehicle Code did not penalize a drug conviction with the suspension of a driver's license. Licensee argues that the current version of Section 1532(c) applied to his license suspension proceeding because it had not yet been adjudicated as of April 22, 2019, i.e. , the effective date of Act No. 2018-95. In support, Licensee cites Governor Wolf's October 24, 2018, press release, which stated: "[t]his commonsense legislation promotes smart sentencing reform so that an individual may be able to keep their [sic] driver's license after it was taken away for non-driving infractions[.]"⁶ Licensee posits that if Act No. 2018-95 did not apply "to ongoing litigation at the time of its passage," then the Governor's statement would not make sense. Licensee Brief at 6.

PennDOT argues that the trial court correctly applied former Section 1532(c) to Licensee's appeal. PennDOT argues that "the General Assembly very plainly did not state that the amended Section 1532(c) was to be applied retroactively" and "the Legislature clearly knows how to provide for retroactive application of a new or amended statute." PennDOT Brief at 12 (emphasis in original).

Analysis

PennDOT argues that because Licensee was convicted on February 26, 2018, the former version of Section 1532(c) of the Vehicle Code governed his appeal. Licensee argues that the date of his conviction is irrelevant. Rather, the pertinent issue is what law was in effect when the trial court was called upon to render a judgment on whether Licensee's operating privilege "should be suspended." 75 Pa. C.S. § 1550(c)(2). Dispositive to this appeal is the proper construction of Section 5 of Act No. 2018-95.

I.

We begin with a review of the Vehicle Code's adjudicatory process for any license suspension. The government cannot revoke a benefit or privilege it has granted unless it affords the affected person notice and an opportunity to be heard. Goldberg v. Kelly , 397 U.S. 254, 267-68, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). With respect to driver's licenses, the General Assembly has placed the pre-termination hearing before a court of common pleas. Until that hearing is concluded, the suspension cannot take place.

PennDOT begins the process with a notice of suspension, which gives the licensee 30 days from the mailing date of the notice to file a petition for appeal with a court of common pleas. 42 Pa. C.S. §§ 5571(b), 5572. Section 1550(b) of the Vehicle Code provides that the "filing and service of a petition for appeal from a suspension ... shall operate as a supersedeas until final determination of the matter by the court vested with the jurisdiction of such appeals." 75 Pa. C.S. § 1550(b)(1)(i) (emphasis added). While PennDOT's suspension is stayed, the court takes up the matter for a decision. Section 1550(c) states:

(c) Proceedings of court -- The court shall set the matter for hearing upon 60 days’ written notice to the department and determine whether :

(1) the petitioner's driver's license should be denied or canceled;

(2) the petitioner's operating privilege should be suspended, revoked or recalled ; or

(3) the petitioner's endorsement of commercial driver's license designation should be removed.

75 Pa. C.S. § 1550(c)(1)-(3) (emphasis added). In short, it is the court that will "determine whether ... the petitioner's operating privilege should be suspended[.]" 75 Pa. C.S. § 1550(c)(2).

As we observed in Riddle v. Department of Transportation , 136 Pa.Cmwlth. 508, 583 A.2d 865, 868 (1990), the "primary purpose of an automatic supersedeas ... is to afford licensees a hearing and the opportunity for judicial review on the propriety of [PennDOT's] action before their driving privileges are suspended."⁷ The trial court's decision concludes "the de novo review process and constitutes a final determination of the matter ...." Id. (emphasis added). As our Supreme Court has explained, "PennDOT cannot impose any sanction until final determination of the matter." Terraciano v. Department of Transportation, Bureau of Driver Licensing , 562 Pa. 60, 753 A.2d 233, 235...