decided: July 28, 1988.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
ROBERT W. LOUGHIN, APPELLEE
Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Robert W. Loughin, No. 86-13327.
Donald H. Poorman, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
Jean B. Green, for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 118 Pa. Commw. Page 237]
This is an appeal from an order of the Court of Common Pleas of Montgomery County (trial court) sustaining Robert W. Loughin's (Appellee) appeal from an order of the Department of Transportation, Bureau of Driver Licensing (DOT) revoking his motor vehicle operator's privileges for five years. We reverse and reinstate the five-year suspension.
On December 8, 1984, Appellee was charged with driving while his operating privileges were suspended.*fn1
[ 118 Pa. Commw. Page 238]
On May 14, 1986 Appellee was convicted of the charge. By a letter dated June 16, 1986, DOT advised Appellee that he was eligible on July 7, 1986, to apply for restoration of his privileges from the suspension under which he was when the December 8, 1984 charge was brought. During this suspension period, Appellee was employed as an in-shop restaurant equipment repairman. His driving privileges were restored on July 12, 1986. Upon restoration of his driving privileges, Appellee was promoted to field serviceman. DOT, on August 5, 1986, revoked his operating privileges for a period of five years pursuant to section 1542 of the Vehicle Code, 75 Pa. C.S. § 1542,*fn2 because the May 14, 1986 conviction was his third within five years. Appellee appealed DOT's action to the trial court and a hearing was held October 27, 1986.
The trial court reversed*fn3 DOT's revocation and gave the following reasons: (1) the three-month delay between
[ 118 Pa. Commw. Page 239]
conviction and revocation of privileges; and (2) prejudice caused by Appellee's reliance on the intervening restoration letter and the subsequent restoration. On appeal to this court,*fn4 DOT argues that the trial court erred in finding substantial evidence of prejudice to Appellee.
An action by DOT upon an operator's privileges may be vacated when administrative delay between a conviction and revocation causes the operator to change his circumstances to his detriment because of his reasonable belief that his privileges will not be impaired. Department of Transportation, Bureau of Driver Licensing v. Lyons, 70 Pa. Commonwealth Ct. 604, 453 A.2d 730 (1982). Assuming that the delay is chargeable to DOT and is unreasonable, the burden is still on the Appellee to bring forth evidence of actual prejudice to himself from reliance on DOT's failure to act. Horner v. Department of Transportation, 59 Pa. Commonwealth Ct. 519, 430 A.2d 387 (1981).
DOT contends that any prejudice suffered by Appellee is insufficient to reverse the suspension it imposed. In response to Appellee's claim of prejudice arising from a possible search for other employment had he known his driving privileges were about to be again revoked, DOT points out that there was no testimony concerning the availability of other jobs. DOT contends that the period of prejudice, if any, from June 16, 1986 to August 5, 1986 is de minimis. Therefore, DOT claims, the trial court erred in finding prejudice under these conditions.
[ 118 Pa. Commw. Page 240]
The trial court found that Appellee was prejudiced by remaining for two months in a job that offered no advancement upon his expectation that he would be returned to his former job of field serviceman upon the restoration of his driving privileges. This finding is not supported by the record.*fn5 At no time does Appellee present any evidence that alternative employment was available or that such employment would have been more financially advantageous than his current position. See Department of Transportation, Bureau of Traffic Safety v. Kirk, 48 Pa. Commonwealth Ct. 429, 410 A.2d 95 (1980). Further, the time Appellee spent on the inshop
[ 118 Pa. Commw. Page 241]
job caused by Appellee's reliance on DOT's letter is less than two months. Without showing that Appellee lost some opportunity during this period, the prejudice suffered is speculative in nature and cannot support a finding of actual prejudice.
Having found that the trial court was in error in finding prejudice, we need not and will not address the question of delay between conviction and revocation.
Accordingly, we reverse and reinstate DOT's suspension.
And Now, July 28, 1988, the order of the Court of Common Pleas of Montgomery County in the above captioned matter is reversed and suspension by the Department of Transportation, Bureau of Traffic Safety, is reinstated.