           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Blystone                                  :
                                                :
                      v.                        :    No. 745 C.D. 2016
                                                :    Submitted: September 30, 2016
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing,                     :
                         Appellant              :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                              FILED: January 19, 2017


       The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing (Department) appeals from the Order of the Court of Common
Pleas of Allegheny County (common pleas) that dismissed the appeal of James
Blystone (Licensee)1 from the suspension of his operating privileges under Section
1532(c)(1)(iii) of the Vehicle Code2 but reduced Licensee’s suspension from two

       1
           By Order dated September 23, 2016, this Court precluded Licensee from participating
in this appeal due to his failure to file a brief.
         2
           75 Pa. C.S. § 1532(c)(1)(iii). Section 1532(c)(1)(iii) provides, in relevant part, that:

       The department shall suspend the operating privilege of any person upon
       receiving a certified record of the person’s conviction of any offense involving the
                                                                                  (Continued…)
years to one year. On appeal, the Department argues that common pleas erred in
reducing Licensee’s suspension based on the remoteness of two of his prior
convictions because Section 1532(c)(1) of the Vehicle Code does not limit the
look-back period for prior convictions under The Controlled Substance, Drug,
Device and Cosmetic Act3 (Drug Act). For the following reasons, we reverse.
       The facts are undisputed. On January 6, 2016, Licensee was convicted of
violating Section 13(a)(16) of the Drug Act, 35 P.S. § 780-113(a)(16) (related to
knowingly or intentionally possessing a controlled or counterfeit substance by one
not authorized under the Drug Act), on September 7, 2014. Licensee previously
was convicted of violating Section 13(a)(16) of the Drug Act on: January 22, 1999
for a violation on August 15, 1998; July 3, 2001 for a violation on May 25, 2000;
and October 9, 2013 for a violation on December 5, 2012.4 This being Licensee’s
fourth conviction for violating the Drug Act, the Department notified him by letter
mailed January 22, 2016 that it was suspending his operating privilege for two



       possession, sale, delivery, offering for sale, holding for sale or giving away of any
       controlled substance under the laws of the United States, this Commonwealth or
       any other state, . . .

               (1) The period of suspension shall be as follows:
               ....
               (iii) For a third and any subsequent offense thereafter, a period of two
               years from the date of the suspension.

Id.
       3
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101—780-144.
       4
          These prior convictions resulted in the suspension of Licensee’s operating privilege
under Section 1532(c)(1) of the Vehicle Code for periods of: six months for the first offense; six
months for the second offense (which should have been a one-year suspension); and two years
for the third offense. Licensee appealed the two-year suspension, his appeal was dismissed by
common pleas, and the two-year suspension was reinstated.

                                                2
years, effective April 1, 2018, pursuant to Section 1532(c) of the Vehicle Code.
Licensee appealed the suspension to common pleas.
      At the de novo hearing before common pleas, the Department submitted
certified documents reflecting Licensee’s multiple convictions under the Drug Act
and multiple suspensions of his operating privilege under the Vehicle Code, which
were admitted into evidence. Licensee testified that he had not been in trouble
since 2014, his license had been suspended since 2014, and he had not been
driving while his license was suspended. (R.R. at 14a.) Licensee stated that he
was doing what he was supposed to be doing and was ready to get his license back.
Common pleas held that two of Licensee’s prior convictions were from 15 years
ago, Licensee’s cases were “very old,” and it was “going to make it a one-year
suspension,” “[w]hether the statute makes a differentiation or not.” (R.R. at 17a.)
Therefore, common pleas dismissed Licensee’s appeal but reduced the suspension
from two years to one year.
      The Department appealed and, at common pleas’ direction, filed a Concise
Statement of Errors Complained of on Appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure (Statement).5 In the Statement, the

      5
          Pa. R.A.P. 1925(b). Rule 1925 provides, in pertinent part, as follows:

      (a) Opinion in support of order.
      (1) General rule.-- Except as otherwise prescribed by this rule, upon receipt of the
      notice of appeal, the judge who entered the order giving rise to the notice of
      appeal, if the reasons for the order do not already appear of record, shall forthwith
      file of record at least a brief opinion of the reasons for the order, or for the rulings
      or other errors complained of, or shall specify in writing the place in the record
      where such reasons may be found.
                                                ***
      (b) Direction to file statement of errors complained of on appeal; instructions
      to the appellant and the trial court.--If the judge entering the order giving rise
                                                                                    (Continued…)
                                                 3
Department argued that common pleas erred by reducing Licensee’s suspension to
one year because, unlike Section 3806(b) of the Vehicle Code,6 Section 1532(c)
does not include a time restriction on what constitutes a prior conviction for
violating the Drug Act. (R.R. at 65a.) Common pleas issued an opinion in support
of its Order, pursuant to Rule 1925(a), that acknowledged that Section 1532(c)
“does not contain a time restriction for the look-back period.”                      (Op. at 2.)
However, common pleas noted that the look-back period for convictions for
driving under the influence of alcohol or a controlled substance (DUI) is limited to
10 years, and held that two of Licensee’s Drug Act convictions occurred more than
14 years ago and “the public safety purpose of the statute is not implicated when
convictions that occurred over a decade ago are factored into the penalty to
increase the license suspension.” (Id.)
       On appeal,7 the Department makes the following arguments.                        Common
pleas erred by reducing Licensee’s suspension from two years to one year based on


       to the notice of appeal (“judge”) desires clarification of the errors complained of
       on appeal, the judge may enter an order directing the appellant to file of record in
       the trial court and serve on the judge a concise statement of the errors complained
       of on appeal (“Statement”).

Pa. R.A.P. 1925(a), (b).
        6
          75 Pa. C.S. § 3806(b). This section defined “prior offenses” for the purposes of
imposing penalties under the Vehicle Code for driving under the influence of alcohol or a
controlled substance, including a suspension of operating privileges under Section 3804(e), 75
Pa. C.S. § 3804(e), as “includ[ing] any conviction . . . within the [10] years before the sentencing
on the present violation.” 75 Pa. C.S. § 3806(b). Section 3806(b) was amended by the Act of
May 25, 2016, P.L. 236, effective immediately, and continues to contain the 10-year look-back
period, stating that “the prior offense must have occurred[] within 10 years prior to the date of
the offense for which the defendant is being sentenced . . . .” 75 Pa. C.S. § 3806(b)(i).
        7
          Our review of common pleas’ “decision in a license suspension case is limited to
determining whether [common pleas’] findings of facts are supported by competent evidence and
whether [common pleas] committed an error of law or an abuse of discretion in reaching its
                                                                                  (Continued…)
                                                 4
a conclusion that two of Licensee’s Drug Act convictions were too old. Had the
General Assembly intended to exclude older Drug Act convictions from the
enhancement provisions of Section 1532(c)(1)(i)-(iii), it could have done so and it
is not for common pleas, or this Court, to add language to the statute. Mohamed v.
Dep’t of Transp., Bureau of Motor Vehicles, 40 A.3d 1186, 1194-95 (Pa. 2012).
Therefore, because the General Assembly did not include a 10-year look-back
period in the plain language of Section 1532(c)(1), common pleas erred in adding
one.
       Section 1532(c)(1)(iii) provides that “[t]he department shall suspend the
operating privilege of any person upon receiving a certified record of the person’s
conviction of any offense involving the possession, sale, delivery, offering for sale,
holding for sale or giving away of any controlled substance under,” inter alia, the
Drug Act, and that “[t]he period of suspension shall be . . . [f]or a third and any
subsequent offense thereafter, a period of two years from the date of the
suspension.” 75 Pa. C.S. § 1532(c)(1)(iii) (emphasis added). The Department
bears the burden of proving the existence of the drug convictions, and it may meet
this burden “by submitting into evidence its certified record of conviction.” Carter
v. Dep’t of Transp., Bureau of Driver Licensing, 838 A.2d 869, 872 (Pa. Cmwlth.
2003). “[O]nce [the Department] has introduced, via a certified record, evidence
of a conviction, [it] has met its burden of production and established a rebuttable
presumption that a conviction exists. Absent clear and convincing evidence[8] that


decision.” Orloff v. Dep’t of Transp., Bureau of Driver Licensing, 912 A.2d 918, 922 n.7 (Pa.
Cmwlth. 2006) (citation omitted).
        8
          “‘Clear and convincing evidence’ has been defined as ‘evidence that is so clear and
direct as to permit the trier of fact to reach a clear conviction, without hesitancy, as to the truth of
the facts at issue.’” Mateskovich v. Dep’t of Transp., Bureau of Driver Licensing, 755 A.2d 100,
                                                                                      (Continued…)
                                                   5
the record is erroneous, this presumption becomes conclusive on the issue of the
conviction.” Dep’t of Transp., Bureau of Driver Licensing v. Diamond, 616 A.2d
1105, 1107-08 (Pa. Cmwlth. 1992). “To rebut a prima facie case established by a
certified conviction record, the licensee must either challenge the regularity of the
record, or introduce direct evidence showing that the record is incorrect and that
the conviction was never entered.” Dick v. Dep’t of Transp., Bureau of Driver
Licensing, 3 A.3d 703, 707 (Pa. Cmwlth. 2010).
      Here, the Department presented certified documents showing that Licensee
had been convicted four times for violating the Drug Act, thereby creating the
rebuttable presumption that those convictions exist. Diamond, 616 A.2d at 1107-
08. Licensee did not present evidence challenging the regularity of those records,
showing that the records were incorrect, or establishing that he was not convicted
as described in the records. Accordingly, there was no clear and convincing
evidence that those records were erroneous and, therefore, they became conclusive
as to Licensee’s convictions. Dick, 3 A.3d at 707; Diamond, 616 A.2d at 1107-08.
Therefore, by its express terms, Section 1532(c)(1)(iii) required that the
Department suspend Licensee’s operating privilege for a period of two years.
      Notwithstanding the language of Section 1532(c)(1)(iii), common pleas
reduced Licensee’s suspension to one year. However, “where the language of a
statute is plain and unambiguous, . . . courts may not set aside that language in
order to pursue their own interpretation of what the legislature actually intended.”
Dick, 3 A.3d at 708. It is well-settled that courts “have no authority to add or
insert language into a statute” and should not, through interpretation, add a


102 n.6 (Pa. Cmwlth. 2000) (quoting Sharon Steel Corp. v. Workmen’s Comp. Appeal Bd.
(Myers), 670 A.2d 1194, 1199 (Pa. Cmwlth. 1996)).

                                         6
requirement that the General Assembly did not include. Summit School, Inc. v.
Department of Education, 108 A.3d 192, 199 (Pa. Cmwlth. 2015). “[W]here the
legislature includes specific language in one section of a statute and excludes it
from another, it should not be implied where excluded.” Pennsylvania State Police,
Bureau of Liquor Control Enforcement v. Prekop, 627 A.2d 223, 226 (Pa. Cmwlth.
1993). In reducing Licensee’s suspension based on the timing of two of his
convictions, common pleas added a limitation to Section 1532(c)(1) that is not
included in its plain language. If the General Assembly had intended to limit the
look-back period for Drug Act convictions, it could have done so as it had for DUI
convictions. However, the General Assembly did not create such a limitation and
therefore, one should not have been implied or added by common pleas. Summit
School, Inc., 108 A.3d at 199; Prekop, 627 A.2d at 226. Moreover, common pleas’
reliance on the “public safety purpose” of the Vehicle Code to incorporate a 10-
year limit on the look-back period was not warranted because enhanced suspension
provisions have been found to serve many purposes. See, e.g., Plowman v. Dep’t
of Transp., Bureau of Driver Licensing, 635 A.2d 124, 126-27 (Pa. 1993) (holding
that the purposes of suspending a licensee’s operating privilege for violating the
Drug Act is to “protect[] against [] the proliferation of drug use” and to deter drug
use);9 Dick, 3 A.3d at 708 (reviewing the enhanced suspension provisions for
multiple prior offenses for DUI under Section 3806(b) and stating that

       9
         Plowman examined former Section 13(m) of the Drug Act, formerly 35 P.S. § 780-
113(m), which like Section 1532(c)(1) required the suspension of a licensee’s operating privilege
based on a conviction for violating the Drug Act and included almost identical enhanced
suspensions, including up to a two-year suspension for a third and subsequent conviction.
Former Section 13(m) was repealed by Section 7 of the Act of June 28, 1993, P.L. 137, Section
1532(c) was added to the Vehicle Code by Section 3 of the same act, and both were effective in
60 days.

                                               7
“enhancements are justified on the grounds that a defendant, who has once had the
benefit of the penal system, yet chooses to ignore that benefit and reoffend, merits
harsher punishment than a first offender”); Lesko v. Dep’t of Transp., Bureau of
Driver Licensing, 657 A.2d 1007, 1010 (Pa. Cmwlth. 1995) (“The courts of this
Commonwealth have consistently adhered to the principle that our legislature
enacted [legislation to require the suspension of an individual’s operating privilege
for a Drug Act conviction] to send a strong message that neither possession, nor
use of illegal drugs, will be tolerated.”)
      Accordingly, common pleas erred in reducing the period of Licensee’s
suspension from two years to one year in contravention of the plain language of
Section 1532(c)(1)(iii). We therefore will reverse common pleas’ Order reducing
the suspension of Licensee’s operating privilege from two years to one year, and
reinstate Licensee’s two-year suspension.




                                             ________________________________
                                             RENÉE COHN JUBELIRER, Judge




                                             8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Blystone                            :
                                          :
                   v.                     :     No. 745 C.D. 2016
                                          :
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing,               :
                         Appellant        :



                                     ORDER


      NOW, January 19, 2017, the Order of the Court of Common Pleas of
Allegheny County, entered in the above-captioned matter, is hereby REVERSED
to the extent that it reduced the suspension of James Blystone’s (Licensee)
operating privilege from two years to one year, and the two-year suspension of
Licensee’s operating privilege is reinstated.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge
