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Thornburn v. Commonwealth12/5/2003
Submitted: October 31, 2003
Russell B. Thorburn (Thorburn) appeals from an order of the Court of Common Pleas of Montgomery County that denied his appeal of the suspension of his operating privileges by the Department of Motor Vehicles, Bureau of Driver Licensing (Department). We reverse the trial court.
Thorburn was convicted of the offense of driving while intoxicated in the State of New Jersey in violation of N.J.S.A. §39:4-50(a) for an offense that occurred on September 6, 1998. In an official notice dated December 14, 1999 the Department notified Thorburn that his driving privilege was being suspended for one year, effective January 18, 2000, for violations of Sections 1532(b) and 1581 of the Vehicle Code, 75 Pa. C.S. §§1532(b) and 1581. Thorburn filed a timely appeal to the Court of Common Pleas of Montgomery County on January 18, 2000.
At the hearing before the trial court the Department offered into evidence a packet of documents in support of its claim that Thorburn had been convicted of the offense of DWI in New Jersey. Two of the documents in that packet were copies of the front and back of the complaint-summons issued to Thorburn that had been transmitted to the Department by facsimile. The complaint bore Thorburn's name, address and driver license number and had been signed by the charging officer and the judge who found him guilty. The complaint also indicated that it had been issued by the "Municipal Court" in the "Township of Dover" in "Toms River, NJ 08753." and indicated further that Thorburn had been convicted of DWI.
Thorburn objected to the admission of the copies of the citation on the ground that nothing on those copies indicated that they had been received from the New Jersey Division of Motor Vehicles, the issuing authority of the state of New Jersey. The Department insisted that the legend printed on the copies by the transmitting faX machine, "FROM: DMV SURCHARGE," was sufficient to indicate that they had received from New Jersey's Department of Motor Vehicles.
The question we are asked to consider is whether the facsimile copies of the citation issued to Thorburn in New Jersey and relied on by the Department are sufficient to suspend his privileges pursuant to 75 Pa. C.S. §1532(b).
In Tripson v. Department of Transportation, Bureau of Driver Licensing, 773 A.2d 195, 197 (Pa. Cmwlth. 2001), petition for allowance of appeal denied, 568 Pa. 690, 796 A.2d 320 (2002), we said, "The Department may not certify that the documents are reports of convictions from other jurisdictions' licensing authorities if the documents themselves contain no such certification from the reporting jurisdiction." In Bergen v. Department of Transportation, Bureau of Driver Licensing, 785 A.2d 157 (Pa. Cmwlth. 2001), relying on Tripson, we held that the documents received from a reporting state did not have to be certified by the reporting state as such certification would negate electronic transmissions, but that it did have to appear on the face of the documents that they were received from the licensing authority of the reporting state. The question then becomes whether the legend "FROM: DMV SURCHARGE" printed in the upper left had corner of the faxed documents makes it appear from the face of the documents that they were received from the licensing authority of the State of New Jersey.
In Boots v. Department of Transportation, Bureau of Driver Licensing, 736 A.2d 64 (Pa. Cmwlth.), petition for allowance of appeal denied, 564 Pa. 722, 766 A.2d 1242 (1999), we sustained a motorist's appeal of the suspension of his driving privileges on the ground that nothing in the report of his conviction in the state of Illinois indicate
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