The opinion of the court was delivered by: Judge Smith-ribner
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Montgomery County that sustained Wilson Edwin Kolva's statutory appeal from a one-year disqualification of his commercial driving privileges. DOT imposed the disqualification of Kolva's privileges under Section 1611(a)(1) of the Vehicle Code, 75 Pa. C.S. §1611(a)(1).*fn1
DOT's statement of the questions involved includes: whether Kolva's acceptance into the Accelerated Rehabilitative Disposition (ARD) program for the offense of driving an automobile under the influence of alcohol (DUI) pursuant to Section 3802(a)(1) of the Vehicle Code, 75 Pa. C.S. §3802(a)(1), constituted a "conviction" under Section 1611(a)(1), and whether any evidence exists to support the trial court's finding that DOT agreed to Kolva's removal from ARD for his DUI violation. DOT raises its challenge to the trial court's decision despite the fact that Kolva withdrew from ARD before participating in the program.
Kolva was arrested for DUI on November 3, 2006, and on August 7, 2007 he was accepted into the ARD program for that offense. Shortly thereafter, he learned that his participation would result in disqualification of his commercial driving privileges and through counsel contacted the Montgomery County Office of the District Attorney to request withdrawal. The District Attorney agreed, and the trial court approved the revocation of ARD by order of September 18, 2007, which reads in part: "[U]pon by agreement of Counsel Assistant District Attorney Karen Ricca and Frank Genovese, Esq., consideration of the Commonwealth's Petition to Revoke Accelerated Rehabilitative Disposition, it is hereby ORDERED that the Commonwealth's Petition is granted and the Accelerated Rehabilitative Disposition of the defendant is revoked and will be listed for a pretrial conference."
By notice dated October 23, 2007, DOT informed Kolva of the one-year disqualification of his commercial driving privileges effective November 27, 2007 "as a result of [his] pre-adjudication, conviction, administrative adjudication, or refusal in Pennsylvania." Certified Record (C.R.), Exhibit C-1, No. 1; Reproduced Record (R.R.) at 18a. Kolva appealed the disqualification, and a de novo hearing was scheduled. On January 4, 2008, pursuant to a plea agreement, Kolva pled guilty to recklessly endangering another person. The DUI charge was dismissed, and on February 4, 2008 the Clerk of Courts submitted a report to DOT stating that Kolva had been acquitted of the DUI charge.
At the April 28, 2008 trial court hearing on Kolva's appeal, he argued that because the trial court had revoked his acceptance of ARD he had not been convicted for purposes of Section 1611(a)(1) of the Vehicle Code, and as a result DOT lacked any basis for disqualifying his commercial driving privileges. DOT countered that Kolva's acceptance of ARD triggered the one-year disqualification regardless of what occurred subsequently. In an opinion in support of its decision, the trial court referred to the definition in Section 1603, 75 Pa. C.S. §1603, of the term "Conviction" as follows:
For the purposes of this chapter, . [t]he term shall include the acceptance of Accelerated Rehabilitative Disposition or other preadjudication disposition for an offense or an unvacated finding of guilt or determination of violation of law or failure to comply with the law by an authorized administrative tribunal. The term does not include a conviction which has been overturned or for which an individual has been pardoned.
To begin its legal analysis and interpretation, the trial court reviewed the definition of ARD stated in Lihota v. Department of Transportation, Bureau of Driver Licensing, 811 A.2d 1117, 1118 n2 (Pa. Cmwlth. 2002), as "a special pre-trial intervention program for non-violent offenders who have a limited or no prior record [that] takes a 'rehabilitative' stance instead of a punitive one." This Court noted that participation in ARD is voluntary and that an individual must request acceptance into the program. Pa. R. Crim. P. 313(A). After examining the cases cited by DOT, most notably Lihota, and evaluating its arguments, the trial court held that Kolva's voluntary withdrawal from ARD, within one month by consent of DOT and the District Attorney's Office, had "the same effect as an overturned conviction, a pardon or a vacated finding of guilt." Trial court's opinion at 10. Because there was no conviction, Kolva's commercial driving privileges therefore were not subject to a suspension under Section 1611(a)(1).*fn2
DOT argues before the Court that Kolva's acceptance of ARD clearly met the definition of a "conviction" under Section 1603 of the Vehicle Code, which rendered Kolva subject to a disqualification of his commercial driving privileges under Section 1611(a)(1) without regard to his change of mind at some later time. DOT submits that in reviewing the question presented the Court must interpret the statute in such a way as to ascertain and effectuate legislative intent, see Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1921(a), and that it should consider the legislature's choice of words when enacting Section 1603. In short, the legislature chose the word "acceptance" of ARD as one of the triggering events for disqualification under Section 1611(a)(1), and it provided one exception in the definition of a "conviction" for events occurring after an initial determination that a licensee has been convicted, i.e., the term does not include an overturned conviction or one for which a person has been pardoned. DOT postulates that the legislature could have stated that a conviction does not include the non-completion of or withdrawal from ARD, but because the legislature did not do so it evidently did not intend for such events to remove a conviction for the purpose of suspension or disqualification pursuant to Sections 1603 and 1611(a)(1), citing Burris v. State Employes' Retirement Board, 745 A.2d 704 (Pa. Cmwlth. 2000), among others.
DOT cites Wagner v. Department of Transportation, Bureau of Driver Licensing, 931 A.2d 104 (Pa. Cmwlth. 2007), for the proposition that because it is a remedial statute, the Court must construe the provisions of Section 1611(a)(1) of the Vehicle Code liberally so as to effectuate legislative intent. Moreover, Chapter 16 of the Vehicle Code (also known as the Uniform Commercial Driver's License Act) was enacted to reduce or to prevent commercial motor vehicle accidents and fatalities by allowing a disqualification of commercial vehicle drivers who have committed serious traffic violations or other specific offenses. DOT maintains that allowing Kolva to avoid a disqualification by withdrawing from ARD would be contrary to the purposes of Chapter 16 and as support cites Thorek v. Department of Transportation, Bureau of Driver Licensing, 938 A.2d 505 (Pa. Cmwlth. 2007), appeal denied, 597 Pa. 724, 951 A.2d 1168 (2008), which states that Chapter 16 advances the public interest in reducing commercial vehicle accidents.
DOT also argues that the Lihota holding directly controls the outcome here. That case involved a licensee who was charged with DUI on three separate occasions within six months and was convicted on two of the charges and accepted ARD for the third. The licensee thereafter was involuntarily removed from ARD for violating its terms; he went to trial on his third DUI charge and was found not guilty for lack of prosecution. The Court upheld a five-year license suspension against the licensee as a habitual offender under Section 1542(c) of the Vehicle Code, 75 Pa. C.S. §1542(c), providing that accepting ARD for certain enumerated offenses "shall be considered an offense for the purposes of this section." The Court rejected the licensee's contentions regarding the effect of his DUI acquittal, and it reasoned that his acceptance of ARD must be counted as a conviction for the purpose of classifying him as a habitual offender.
DOT's submits that no evidence exists to support the finding that it consented to Kolva's removal from ARD. DOT further submits that his avoidance of a disqualification by withdrawal from ARD is prohibited by the "anti-masking" provision in regulations promulgated under Chapter 313 of the federal Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C., §§31301 - 31317. See 49 C.F.R. §384.226 ("The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a [commercial] driver's conviction for any violation . of a State or local traffic control law (except a parking ...