The opinion of the court was delivered by: Judge Brobson
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
Petitioner Department of Transportation, Bureau of Driver Licensing (Department), appeals from an order of the Court of Common Pleas of Lackawanna County (trial court), reversing the Department's suspension of Michael E. Piasecki's (Licensee) driver's license. The trial court based its decision on an impermissible collateral attack on the underlying conviction. This, along with the Department's fulfillment of its statutory obligations for a license suspension, would ordinarily result in reversal. But, this case presents a rare instance where the narrow facts lead us to conclude that the decision of the trial court should be vacated, the case remanded, and the matter held in abeyance to give Licensee the opportunity to file an appeal of his underlying conviction nunc pro tunc with the trial court.
On May 5, 2009, Licensee was cited for driving with a suspended license. (Reproduced Record (R.R.) at 12a.) A hearing before a magistrate was scheduled for June 30, 2009, at which time Licensee was convicted of driving with a suspended license.*fn1 (Id. at 12a.) Upon receiving notice of Licensee's June 30, 2009 conviction, the Department suspended Licensee's driver's license for one year under Section 1543 of the Vehicle Code.*fn2 (Id. at 12a.) Licensee appealed the Department's suspension of his license to the trial court, arguing that his license had been restored prior to May 5, 2009, thus making the citation for driving with a suspended license on that date, in his opinion, inaccurate.*fn3 (Id. at 13a.)
During a hearing before the trial court, Licensee testified to the circumstances surrounding his attempts to renew his driver's license and his ultimate license suspension. Licensee testified that in December 2007, his bank did not honor a check that he had written to the Department, apparently for his driver's license renewal, despite sufficient funds in his account. (Id. at 20a.) At the time, he was unaware that the check had not been honored. (Id. at 16a.) As a result of the check not being honored,*fn4 the Department suspended Licensee's license.*fn5 Licensee later, through an insurance agent friend, learned of the suspension and contacted the Department. Licensee then paid various fees as instructed by the Department in order to restore his license, ultimately receiving a refund for overpayment. (Id. at 13a-19a.) Licensee testified that he was told over the phone that his license would be reinstated five days after his payment. (Id. at 14a.) Based upon a telephone conversation that he had with a Department representative, Licensee believed that his license had been restored. (Id. at 14a.) Thus, following the payment of fees and receipt of a refund, Licensee was under the belief that his license was no longer suspended.
Licensee further testified that on May 5, 2009, he was cited for driving with a suspended license. Licensee testified that he sent in his citation, pleading not guilty. (Id. at 15a.) Licensee testified further that he never received notice of a hearing before the magistrate, and, thus, he did not attend the hearing to challenge the citation. (Id. at 15a-16a.) Licensee thought that his failure to receive notice of the hearing was the result of the arresting officer writing down Licensee's old address from his license, as opposed to his new address as reflected on his change of address card, which he also had provided to the officer. (Id.)
Following issuance of the citation, Licensee received an undated letter from the Department, indicating his license had been restored effective May 15, 2009, ten (10) days after his citation for driving with a suspended license. (Id. at 19a-20a.) The Department, thereafter, sent Licensee a notification that his license was again being suspended based on the May 5, 2009 citation and resulting June 30, 2009 conviction, the latter of which Licensee had been unaware.*fn6 (Id. at 17a.)
The trial court found Claimant's testimony to be credible, concluded that the suspension was improper, and sustained Licensee's appeal. Thereafter, the Department appealed to this Court,*fn7 arguing that the trial court erred in sustaining Licensee's appeal because Licensee did not offer clear and convincing evidence to rebut the Department's proof that he was convicted of violating Section 1543 of the Vehicle Code at a time when his driver's license was canceled pursuant to Section 1572 of the Vehicle Code, 75 Pa. C.S. § 1572.
The Department's burden of proof when it suspends a licensee's operating privilege for one year under Section 1543(c)(1) of the Vehicle Code is to establish that: (1) the Department received a record of conviction for violation of Section 1543(a); and (2) the Department's records show that the licensee was "under suspension, recall or cancellation on the date of violation, and had not been restored." Orndorff v. Dep't of Transp., Bureau of Driver Licensing, 654 A.2d 1, 2-3 (Pa. Cmwlth. 1994). In an appeal of a license suspension, the only issues reviewed are, first, whether the motorist was in fact convicted, and, second, whether the Department acted in accordance with applicable law. Ray v. Dep't of Transp., 821 A.2d 1275, 1278 (Pa. Cmwlth. 2003). The underlying conviction is not reviewable by the trial court or this Court. Id. "A licensee may not collaterally attack an underlying criminal conviction in a civil license suspension proceeding." Commonwealth v. Duffey, 536 Pa. 436, 443, 639 A.2d 1174, 1177 (1994), cert. denied, 513 U.S. 884 (1994).
In order to satisfy its prima facie burden of proof, the Department introduced into evidence a document referred to as a "Conviction Detail," showing that Licensee was convicted by a magisterial district judge on June 30, 2009, of violating Section 1543(a) of the Vehicle Code on May 5, 2009 (R.R. at 38a-39a), and Licensee's Certified Driving History (R.R. 43a-47a). Licensee's driving record shows that on May 5, 2009, when Licensee was cited for violating Section 1543(a) of the Vehicle Code, his driver's license had been canceled, effective January 18, 2008, in accordance with Section 1572 of the Vehicle Code. (R.R. at 45a). Licensee's operating privilege was not restored until May 15, 2009, ten days after he was cited. (Id.) Once the Department met its prima facie burden of proof, the burden then shifted to Licensee to show by "clear and convincing evidence" that the Department's records were incorrect. Roselle v. Dep't of Transp., Bureau of Driver Licensing, 865 A.2d 308, 313 (Pa. Cmwlth. 2005).
In the case at hand, Licensee did not offer "clear and convincing evidence" to prove that he had not been convicted. Rather, Licensee testified that he was unaware that his driver's license was suspended when he was cited for violating Section 1543(a) of the Vehicle Code on May 5, 2009, because he did not receive notice of a hearing before a magisterial district judge.
In the case at bar, the trial court erred in reversing the license suspension based on this collateral attack on the underlying conviction. The trial court focused solely on the factual premise behind the June 30, 2009, conviction, with particular emphasis on the Licensee's lack of notice of the hearing. (R.R. at 54a-56a.) Nowhere does the trial court address whether the Licensee was, in fact, convicted, or whether the Department acted in accordance with applicable law. Furthermore, the testimony reveals that Licensee never made any claims disputing the underlying conviction or the Department's actions in suspending his license under applicable law. Thus, the trial court's decision was rendered in error. Our review of the matter, however, does not end here.
This case presents a unique and compelling circumstance, and, under these narrow facts, proper resolution of this situation demands more than a simple reversal of the trial court's decision. The Department, in its brief to this Court, suggests that Licensee "might have [had] a viable defense before the magisterial judge who convicted him." (Brief of Respondent at 12.) The Department further suggests that Licensee's lack of notice of ...