Hewitt v. Com.

• Decision Date: 27 May 1988
• Citation: 541 A.2d 1183,116 Pa.Cmwlth. 413
• Parties: Justin H. HEWITT, Appellant, v. COMMONWEALTH Of Pennsylvania, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1183

541 A.2d 1183

116 Pa.Cmwlth. 413

Justin H. HEWITT, Appellant, v. COMMONWEALTH Of Pennsylvania, Appellee.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 22, 1988.

Decided May 27, 1988.

Harold N. Fitzkee, Jr., York, for appellant.

Harold H. Cramer, Asst. Counsel, Christopher J. Clements, Asst. Counsel, John L. Heaton, Chief Counsel, Harrisburg, for appellee.

Before CRAIG and PALLADINO, JJ., and BARBIERI, Senior Judge.

PALLADINO, Judge.

Justin Hewitt (Appellant) appeals an order of the Court of Common Pleas of York County (trial court) dismissing his appeal from the revocation of his operating privilege by the Department of Transportation, Bureau of Traffic Safety (DOT). We affirm and remand for calculation of counsel fees pursuant to Pa.R.A.P. 2744.

DOT revoked Appellant's operating privilege for a period of five (5) years after he was convicted three times for violating Section 3731 of the Motor Vehicle Code (driving under the influence of alcohol or controlled substance). 75 Pa.C.S. § 3731. The three violations occurred on April 5, 1981, March 6, 1985, and August 29, 1985. Appellant was convicted of these violations on October 26, 1981 (for the April 5, 1981 violation) and on November 3, 1986 (for the March 6, 1985 and August 29, 1985 violations). DOT revoked Appellant's operating privilege based upon its determination that Appellant was an "habitual offender" under Section 1542(a) of the Motor Vehicle Code. ¹

Appellant appealed to the trial court, alleging that DOT erred in revoking his license because the period of time between the date of his first conviction and the date of his last conviction was in excess of five (5) years. ² After a hearing de novo, the trial court dismissed Appellant's appeal and reinstated the five (5) year revocation. The trial court found this court's determination in Sanders v. Department of Transportation, Bureau of Traffic Safety, 89 Pa.Commonwealth Ct. 609, 493 A.2d 794 (1985) controlling.

On appeal to this court, Appellant raises the same issue as before the trial court. Appellant contends that Section 1542(a) does not clearly indicate that its provisions are to be applied based upon the dates of violations rather than the dates of convictions. DOT argues that Sanders is controlling and also requests counsel fees under Pa.R.A.P. 2744.

Our scope of review of a trial court's decision in a motor vehicle license suspension is limited to determining whether the findings of fact are supported by substantial evidence, whether errors of law have been committed, and whether the trial court's decision demonstrates a manifest abuse of discretion. Waldspurger v. Commonwealth of Pennsylvania, 103 Pa.Commonwealth Ct. 148, 520 A.2d 83 (1987).

In Sanders, DOT revoked a motorist's license under the habitual offender provision (Section 1542(a) of the Motor Vehicle Code). The motorist appealed the revocation and contended that the habitual offender provision was inapplicable because the date of conviction for his third offense was more than five (5) years after the date on which he committed his first offense. This court held that habitual offender status is attained when the commission of three specified offenses occurs within the statutory five year period even if the date of conviction for one of the offenses falls outside that period. Sanders, 89 Pa.Commonwealth Ct. at 610-11, 493 A.2d at 795. In construing Section 1542(a), we stated that "the clear reading of the section shows that the commission of the offenses, and not the convictions which result, must occur within the five year period." Id. at 611, 493 A.2d at 795 (emphasis added).

Appellant contends that Sanders is not controlling. Appellant argues that the motorist in Sanders was attempting to avoid habitual offender status by measuring the period between the date of the commission of the first offense and the date of conviction of the third offense. Appellant asserts that, in this case, the court should measure the period between the date of conviction of the first offense and the date of conviction of the third offense. Based upon this measurement, Appellant contends that he is not an "habitual offender" because more than five years elapsed between the date of his first conviction and the date of his last conviction.

Appellant's attempt to distinguish Sanders is without merit and ignores the clear language of that decision. In Sanders, we stated: "[T]he temporal measurement is directly and unambiguously associated with when the offenses are 'committed.' " Id. at 611, 493 A.2d at 795. As DOT correctly notes in its brief, to hold otherwise would allow a motorist to manipulate the date of conviction for a third offense in order to avoid habitual offender status.

DOT has requested an award of counsel fees pursuant to Pa.R.A.P. 2744. DOT argues that Appellant's appeal was frivolous because Appellant cited no authority in support of his contention that Sanders was not controlling. Further, DOT asserts that Appellant failed to file a complete record.

Pa.R.A.P. 2744 provides that an appellate court may award reasonable counsel fees and damages for delay at the rate of six (6%) percent if the court determines that the "appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory,...