Smalls v. Commonwealth10/11/2005
Leonard Smalls (Licensee) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) that affirmed the Department of Transportation, Bureau of Motor Vehicle's (DOT) imposition of a one-year suspension of his operating privilege.
Licensee is a truck driver employed by Active Transportation. While in the State of New Jersey, Licensee was arrested, charged, and convicted of Driving While Intoxicated (DWI), with a conviction date of March 13, 2003. Pursuant to the Driver's License Compact, 75 Pa. C.S. §§ 1581-1586, New Jersey reported Licensee's DWI conviction to DOT. On December 30, 2003, (over nine months after Licensee's New Jersey DWI conviction), DOT mailed notice to Licensee of a one-year suspension of his operating privilege effective February 3, 2004. On January 2, 2004, Licensee filed a statutory appeal and the trial court held a de novo hearing on July 30, 2004, which was continued by agreement until December 17, 2004. (See Licensee Br. at 4; DOT Br. at 3.)
At the reconvened hearing, Licensee testified that during the six-month suspension of his New Jersey driving privilege, which was restored on November 17, 2003, (Application for Post Trial Relief, and Ex. C), he did not drive in New Jersey. However, he stated that he had not received the notice of suspension from DOT and, so, continued to drive in Pennsylvania. (Test. at 12, 14.) In fact, Licensee confirmed that his employment status did not change during the more than nine-month period before he received the notice of suspension from DOT. (Test. at 13.) In response to a judicial inquiry as to what he would have undertaken had DOT notified him in June 2003 of the one-year suspension, Licensee stated: "I would have had time to get in contact with my company and apply for an in-house job [as a clerk or secretary]." (Test. at 8, 15.) Licensee testified that Active Transportation had posted available in-house positions during the nine-month period and that, if he had received notice from DOT prior to December 30, 2003, he could have applied for an in-house position. (Test. at 8-9.) He further testified that employees at Active Transportation could transfer from a truck driver to an in-house position, that those transfers are based on seniority, and that, prior to December 30, 2003, employees with less seniority than he had transferred from a driver to an in-house position. (Test. at 9-11.) However, when asked whether he recalled discussing the possibility of a transfer to a non-driving position with his employer before December 30, 2003, Licensee said: " o." (Test. at 10.) Moreover, when asked whether he could currently transfer to an "in-house" position, Licensee stated: " hat I don't know, things change with the company."
(Test. at 15.) After the possibility of transfer to an in-house position was raised at the hearing, Counsel for DOT indicated that DOT would delay the suspension for up to five months, so Licensee could "work it out" with his employer . (Test. at 16.) The trial court then held the appeal under advisement and allowed the parties time to attempt to "work something out." (Test. at 16-17.)
In order to sustain the appeal of his license suspension, Licensee had the burden of establishing: "(1) an unreasonable delay chargeable to led to believe that operating privileges would not be impaired; and (2) [that] prejudice would result by having operating privileges suspended after such delay." Terraciano v. Dep't of Transp., Bureau of Driver Licensing, 562 Pa. 60, 66, 753 A.2d 233, 236 (2000). Prejudice is established when a licensee shows that he, believing his privileges were no longer impaired, changed his circumstances to his detriment-i.e., detrimental re
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