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Nolan v. Commonwealth3/14/2003
Submitted: January 17, 2003
Louis James Nolan (Licensee) appeals from the June 17, 2002 order of the Court of Common Pleas of Montgomery County (trial court) that denied his statutory appeal of a one-year suspension of his operating privilege by the Department of Transportation, Bureau of Driver Licensing (Department) imposed pursuant to the Driver's License Compact (Compact) (suspension of Pennsylvania operating privilege following a conviction for driving under the influence of alcohol or "substantially similar" offense in a state that is party to the Compact). We affirm.
On September 14, 2000, Licensee was convicted of driving while intoxicated (DWI) under N.J. STAT. ANN. §39:4-50(a). Pursuant to Article III of the Compact, New Jersey reported Licensee's conviction to the Department. Accordingly, by official notice dated October 19, 2000, the Department informed Licensee that his operating privilege was being suspended for a period of one year.
Licensee appealed to the trial court, which heard his case along with seventeen other suspension appeals presented by the same counsel. The Department introduced into evidence a certified packet of documents containing an electronically transmitted report of Licensee's DWI conviction in New Jersey. Licensee did not present any evidence on his own behalf. The trial court dismissed Licensee's appeal.
Represented by new counsel, Licensee raises four issues for our consideration: (1) whether the General Assembly had the power to unilaterally amend Section 1581 of the Code inasmuch as it is an interstate compact, (2) whether the New Jersey licensing authority transmitted to the Department all information required by Article III of the Compact, (3) whether the New Jersey DWI statute is substantially similar to the offense listed in Article IV (a)(3) of the Compact and (4), whether Licensee should have received Accelerated Rehabilitative Disposition (ARD) rather than a suspension of his license. On appeal, we are limited to determining whether the trial court's findings of fact are supported by substantial evidence, or whether the trial court abused its discretion or committed an error of law. Perry v. Department of Transportation, Bureau of Driver Licensing, 778 A.2d 764 (Pa. Cmwlth. 2001).
I.
The trial court, in a very thorough opinion, correctly noted that Licensee has waived issues (1) and (2) because he failed to raise them in his statutory appeal. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa. R.A.P. 302(a); Ray v. Pennsylvania State Police, 654 A.2d 140 (Pa. Cmwlth. 1995), aff'd, 544 Pa. 260, 676 A.2d 194 (1996).
Nevertheless, we note that the General Assembly amended Sections 1584 (furnishing information to other states) and 1586 (duties of the Department) of the Code in 1998. The 1998 amendments to Section 1584 provide that the omission from any report received by the Department from a party state of any information required by Article III does not excuse or prevent the Department from complying with its duties under Articles III and IV. Similarly, the 1998 amendment to Section 1586 provided that the fact that the offense reported to the Department by a party state may require a different degree of impairment than required under Section 3731 of the Code shall not be a basis for determining that the party state's offense is not substantially similar to Section 3731.
We have previously determined that Sections 1584 and Section 1586 were not impermissible unilateral amendments to the Compact. With regard to Section 1584, in Horvath v. Department of Transportation, Bureau of Driver Licensing, 773 A.2d 19
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