Com., Dept. of Transp., Bureau of Traffic Safety v. Warenczuk
| Decision Date | 27 December 1993 |
| Citation | 633 A.2d 1167,534 Pa. 623 |
| Parties | COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, Appellee, v. Zdzislaw WARENCZUK, Appellant. |
| Court | Pennsylvania Supreme Court |
Appeal No. 37 Middle District Appeal Docket 1992, from the Order of the Commonwealth Court at No. 592 C.D. 1991, dated January 10, 1992, denying reconsideration of the Order of November 21, 1991, which reversed the Order of the Court of Common Pleas of Monroe County, Civil Division, at No. 2913 Civil 1990, entered March 1, 1991,
--- Pa.Cmwlth.Ct. ----, 636 A.2d 1225 (1991). .
Wieslaw T. Niemoczynski, Stroudsburg, for Z. Warenczuk.
John L. Heaton, Harrisburg, Harold H. Cramer, Philadelphia, Timothy P. Wile, Harrisburg, for PennDot.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.
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
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.
I dissent and would affirm the order of the Commonwealth Court.
Although I agree with the majority that to suspend an important right or privilege such as that at issue in this case, the Commonwealth must take action reasonably calculated to insure that the party whose license is to be suspended actually receives notice of the suspension. The current statutory scheme which allows for notice of suspension of driving privileges to be sent by first-class mail to the motorist's last known address is sufficient to protect an individual's due process rights.
The burden of establishing notice is upon the Commonwealth; the burden of keeping the Department of Transportation informed of a motorist's current address statutorily rests squarely upon the motorist. This charge is imposed on drivers pursuant to 75 Pa.C.S. § 1515 and appears in the driver's manual which all applicants for drivers' licenses in Pennsylvania review and are tested as a prerequisite to being issued a driver's license.
Thus, where the Department of Transportation has sent a notice of suspension to a party's last reported address and the party does not receive the notice because the party has failed to notify the Department of a change of address pursuant to 75 Pa.C.S. § 1515, that party is precluded from relying on the excuse of insufficient notice.
If any additional burden is to be imposed upon the Department, such as using certified mail or conducting an independent search, such obligation should be imposed by the legislature which, in the long run, will have to fund the increased expenditures involved in such a scheme.
The question presented in this case is whether service of a driver's license suspension notice is valid when it is made by regular first class mail to the last known address of the driver when the driver asserts that he did not receive the notice.
The facts of the case are as follows: Warenczuk was stopped by a state policeman on May 24, 1990 for driving erratically, whereupon the officer noted a strong odor of alcohol on his person. Because Warenczuk appeared to speak Polish only, the officer took him to the state police barracks without administering field sobriety tests. Although the officer had Warenczuk sign a waiver of Miranda rights form, he noted on the form that Warenczuk "does not understand." The officer also explained the Implied Consent Law to Warenczuk, but was unable to get him to perform the breathalyzer test successfully. Thereafter, the officer submitted a report of refusal to submit to the test to the Department of Transportation (DOT).
DOT prepared an "Official Notice" which indicates on its face that the notice was mailed on June 8, 1990 to Warenczuk. This notice stated that Warenczuk's driving privileges were suspended for one year pursuant to 75 Pa.C.S. § 1547 1 because of his refusal to take the breath test. Warenczuk claims never to have received this notice as it was mailed to a previous address, and he admits that he did not update his address with DOT as he was statutorily required to do.
On October 8, 1990, the Pocono Township Police stopped Warenczuk in an unrelated matter and confiscated his driver's license because it had been suspended by DOT. On October 15, 1990, Warenczuk was sentenced on the drunk driving charge to accelerated rehabilitative disposition and a ninety day license suspension.
Also on October 15, 1990, Warenczuk filed an appeal from the June 8, 1990 notice of suspension with the Court of Common Pleas of Monroe County. At the January 30, 1991 hearing on his appeal, the court found that Warenczuk did not make a knowing and conscious refusal to take the breath test because of his difficulty with English.
The Commonwealth claimed, however, that Warenczuk's appeal was barred because it was not filed within thirty days of entry of the order of suspension by DOT, citing 42 Pa.C.S. § 5571(b) and 5572. 2 The trial court held, however, that there was no evidence of record that the notice was mailed in the usual course of business or received by Warenczuk. The trial court acknowledged that there is no statutory requirement that DOT send its notices by certified mail or by other mail which evidences...
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