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Perrotta v. Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

August 14, 2019

Mark Anthony Perrotta
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant

          Argued: March 14, 2019

          BEFORE: RENÉE COHN JUBELIRER, PATRICIA A. McCULLOUGH, BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          RENÉE COHN JUBELIRER, JUDGE

         The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from the Order of the Court of Common Pleas of Delaware County (common pleas), dated July 19, 2018, which granted Mark Anthony Perrotta's (Licensee) application for supersedeas and appeal from the Department's denial of his applications for an ignition interlock and noncommercial learner's permit (Denial). The Department permanently denied Licensee's driving privileges pursuant to Section 1503(a)(8) of the Vehicle Code, 75 Pa. C.S. § 1503(a)(8), for repeated violations of Chapter 15 of the Vehicle Code by obtaining more than one false driver's license.

         In addition to granting supersedeas, common pleas found that the Department did not meet its burden to support the Denial and violated Licensee's due process rights at the pre-Denial Department hearing. The Department contends common pleas erred as a matter of law in reaching these conclusions. Upon review, we agree that the Department did not meet its burden to support the Denial. However, common pleas could not order the Department to grant a license to Licensee. Accordingly, we vacate that portion of the Order and instead order the Department to process Licensee's submitted applications and documentation for license restoration in accordance with the Department's governing regulations and procedures in light of the following opinion.

         I. Factual Background

         a. Perrotta I

         Licensee and the Department have a contentious history. As recounted by this Court in Perrotta v. Department of Transportation, Bureau of Driver Licensing, 110 A.3d 255, 256 (Pa. Cmwlth. 2015) (Perrotta I), since 1991, Licensee has been issued three different licenses under three different names, two of which were not his own (false licenses).

Licensee first applied for and received a license in 1991 under the name of Mark N. Perrotta. In 1999, [the Department] issued Licensee a second license, under his own name, Mark Anthony Perrotta [(true license)]. In 2001, [the Department] cancelled the 1991 license for fraud and merged the 1991 and 1999 license records, thus assigning some fourteen violations to Licensee's driving record. [The Department] suspended the 1999 License in August 2001. Licensee then secured a third license in 2002, under his deceased brother's name, Louis Frank Perrotta. [The Department] revoked the 1999 license in August 2003, and the license remains revoked to this day. [The Department] cancelled the 2002 license for fraud in May 2012, and merged the 1999 and 2002 license records. Licensee was prosecuted for [forgery[1] in association with the 2002 license and pled guilty. Thus, Licensee's only remaining license, the 1999 license issued in his own name[, the true license, ] is currently revoked.[2]

Id. at 256-57. In 2013, the Department mailed Licensee a notice of denial informing him that he was being denied the ability to obtain a license pursuant to the Department's authority under Section 1503(a)(8). Id. at 257. Section 1503(a)(8) provides:

(a) Persons ineligible for licensing.-The [D]epartment shall not issue a driver's license to, or renew the driver's license of, any person:
(8) Who has repeatedly violated any of the provisions of this chapter.[3] The [D]epartment shall provide an opportunity for a hearing upon invoking this paragraph.

75 Pa. C.S. § 1503(a)(8).

         Licensee appealed that notice, and common pleas granted the appeal. The Department, in turn, appealed to this Court, which affirmed, holding the Department did not have the authority under Section 1503(a)(8) to issue a notice of denial until Licensee had actually applied for a license. Perrotta I, 110 A.3d at 260. Because Licensee had not done so, we held the Department's actions were premature. Id.

         Following Perrotta I, the Department mailed Licensee two Restoration Requirements Letters (Restoration Letters) in 2016, notifying Licensee of what he "must do to restore [his] driving privilege," which included paying a restoration fee, installing an ignition interlock system, and applying for an ignition interlock learner's permit. (May 29, 2018 Hearing, Exs. D1, D2.) Licensee complied with these requirements and submitted to the Department applications for an ignition interlock and a non-commercial learner's permit in December 2016. (Common pleas' Finding of Fact (FOF) ¶ 16.) The Department again denied Licensee's applications pursuant to Section 1503(a)(8), and Licensee appealed. Common pleas remanded the matter for a departmental hearing, as required under Section 1503(a)(8), [4] following which, the Department mailed Licensee the Denial on January 26, 2018, stating:

This is an Official Notice of Denial of your ability to obtain an Initial Issuance, Renewal[, ] or Duplicate of your Driver License. This [a]uthority is provided by Section 1503(a)(8) of the Pennsylvania Vehicle Code. This action is as a result of your repeated violations of Chapter 15 of the Pennsylvania Vehicle Code by obtaining more than one false driver license or identification card from the Department.

         (Reproduced Record (R.R.) at 11a (emphasis added).) Licensee appealed to common pleas and filed an application for supersedeas.

         b. Hearings before common pleas

         Common pleas held two hearings, the first on February 6, 2018, to consider Licensee's application for supersedeas, at which Licensee testified, and the second on May 29, 2018, for a de novo review of the merits of Licensee's appeal, at which the Department's witnesses testified. Common pleas did not make a decision on the application for supersedeas after the first hearing, waiting until after the hearing on the merits to issue the Order encompassing both.

         At the supersedeas hearing, Licensee testified as follows. After receiving his most recent Restoration Letter, Licensee complied with the requirements set forth therein but did not receive a license when the suspension period expired. Licensee attended the Department hearing, at which the Hearing Officer and a note taker were present on the Department's behalf. The Department did not present witnesses or evidence; rather, the Hearing Officer asked a few informal questions to which Licensee responded and asked a couple questions of his own. Licensee requires a license in order to operate his plumbing business, as his employment requires him to drive to customers' homes. Licensee completed drug and alcohol rehabilitation classes after being released from prison and has not consumed any alcohol or drugs since then. (FOF ¶ 50.) Licensee did obtain the two false licenses and had other Chapter 15 violations on his driving record unrelated to the false licenses.[5] Licensee has not had any violations of the Vehicle Code since February 2006. (Id. ¶ 39.)

         At the de novo hearing on the merits before common pleas, the Department presented the testimony of the Hearing Officer, the Director of the Department's Risk Management Office, the Section Manager of the Bureau of Driver Licensing, and an Administrative Officer, who also served as the note taker at Licensee's Department hearing. These witnesses testified about the Department hearing. Generally, Department hearings under Section 1503(a)(8) are an opportunity for a licensee to explain why the licensee has obtained multiple licenses. A hearing officer and note taker are present on the Department's behalf at Department hearings, but notes of testimony are not usually prepared, [6] and no written findings of fact are made. At Licensee's hearing, there was no sworn testimony, and the Department did not present any documents into evidence. Following a Department hearing, a hearing officer presents a summary of findings to a Department panel (Panel), which is comprised of an attorney from the Chief Counsel's Office, administrative officers, management officers, and a license control manager. The Panel makes the final determination, although the hearing officer does not have a vote in that process. The Panel considers the licensee's Chapter 15 violations, driver safety, and whether the false licenses create national security or public safety concerns. (Id. ¶¶ 87-88.)

         The Department's witnesses who served on the Panel testified as follows to the particular considerations of Licensee's case. Licensee had various Vehicle Code violations, some of which were outside of Chapter 15. Licensee's Chapter 15 violations included one violation for failure to make a payment on a ticket under Section 1533 of the Vehicle Code; three violations for driving with a license suspended for driving under the influence (DUI) under Section 1543 of the Vehicle Code; and three violations for chemical test refusal under Section 1547 of the Vehicle Code, 75 Pa. C.S. §§ 1533, 1543, 1547.[7] (FOF ¶ 147.) The Panel considered all of Licensee's Chapter 15 violations, including those unrelated to the two false licenses. Licensee procured the false licenses due to "financial hardship," (id. ¶ 120), but had not used the false licenses to obtain credit cards. Licensee served four years in prison and successfully completed eight years of probation after his conviction in 2006. Licensee completed the requirements set forth in the Restoration Letters, but a license was not issued because the Department "was ordered . . . not to do anything regarding the processing of the Application until the [Section] 1503(a)(8) review began." (Id. ¶ 169.)

         c. Order and Appeal

         Based on the testimony, common pleas issued findings of fact and its Order granting both the application for supersedeas and Licensee's appeal. Common pleas ordered the Department to remove from Licensee's driving status the designation of "suspended, revoked and expired," display Licensee's driving status as "restored," accept Licensee's applications for an ignition ...


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