Scarpa v. Commonwealth6/14/2005
Joseph Scarpa (Scarpa) appeals from the order of the Court of Common Pleas of Bucks County (trial court), which denied his appeal from the Suspension of his Driver's License and Operator's Privilege imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department).
The facts of this case are as follows. Scarpa was notified by letter dated May 27, 2004 by the Department, that his driving privileges were being suspended as a result of a March 31, 2004 conviction for violating Section 13(a)(16) of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §780-113(a)(16), on October 6, 2003. The Department is required pursuant to 1532(c)(1)(i) of the Vehicle Code, 75 Pa.C.S. §1532(c)(1)(i), to suspend for six months the operating privileges of any person who is convicted in this Commonwealth, or another state or in Federal court, of any drug offense where the person has no prior drug offense. A certified record of conviction entered into evidence indicates the conviction date was correct, but that the Department made an error by one day in regard to the date of the violation. The violation actually occurred on October 5, 2003. At the de novo hearing held on November 9, 2004 before the trial court, Scarpa argued that the incorrect offense date was a fatal defect and thus his appeal should be sustained. The trial court dismissed the appeal, and Scarpa has appealed to this Court.
Scarpa contends that since the Department did not establish a conviction for an offense which occurred on October 6, 2003, the date contained in the Department's suspension notice, the appeal should be sustained. We disagree.
In Department of Transportation v. Sutton, 541 Pa. 35, 660 A.2d 46 (1995), our Supreme Court set forth the law in matters such as the one before us. In Sutton, the issue presented was whether the notice of suspension, which also incorrectly listed the offense date by one day, was sufficient to apprise Licensee of the conduct underlying the suspension so as to allow him to prepare a defense. The Court held that Licensee was afforded sufficient notice and that the defect was immaterial. 541 Pa. at 42, 660 A.2dat 49 The same is true in the present matter.
The suspension notice provided the correct conviction date of March 31, 2004 and inadvertently put October 6, 2003 instead of October 5, 2003 as the date of the violation. This defect was immaterial, and Scarpa was afforded sufficient notice.
Scarpa attempts to persuade this Court that Department of Transportation v. Balloch, 598 A.2d 110 (Pa. Cmwlth 1991), is more akin to the present matter and that we should rule along the guidelines presented there. In Balloch, a licensee was arrested on three separate occasions for driving under the influence of alcohol on March 31, 1989, April 15, 1989, and May 19, 1990. The licensee received a notice from the Department that because of his refusal to submit to chemical testing on May 18, 1989, his license was being suspended for a period of one year. However, the suspension letter in Balloch was off by one year and one day. The Department meant to refer to the May 19, 1990 violation. This Court held that "because of the profusion of possible dates, a wrong date could well be misleading in the proper preparation of a defense." 598 A.2dat 112. While this Court notes the similarities between the frequency of Balloch's violations and Scarpa's violations, it is clear from the record that Scarpa received only one suspension letter regarding the Controlled Substance, Drug, Device and Cosmetic Act violation. As stated in Balloch and reiterated in Sutton, "due process is afforded in administrative proceedings when the acc
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