          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathryn Leigh Diveglia                    :
                                          :
                v.                        :   No. 979 C.D. 2018
                                          :   Argued: October 3, 2019
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing,               :
                         Appellant        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge
        HONORABLE ROBERT SIMPSON, Senior Judge


OPINION BY JUDGE BROBSON                  FILED: October 31, 2019


                The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Bureau), appeals from an order of the Court of Common
Pleas of Allegheny County (trial court), dated June 28, 2018. The trial court’s order
sustained the appeal of Kathryn Leigh Diveglia (Licensee), thereby effectively
reversing Licensee’s license suspension. For the reasons discussed below, we
reverse the trial court’s order.
                On February 27, 2016, Licensee violated Section 3802(a)(1) of the
Vehicle Code, 75 Pa. C.S. § 3802(a)(1), by committing the offense of driving under
the influence of alcohol (DUI), which was an “ungraded misdemeanor”1 (First DUI).
(Reproduced Record (R.R.) at 23a, 46a.) On November 15, 2016, Licensee was
accepted into the Accelerated Rehabilitative Disposition program (ARD) in


      1
          See 75 Pa. C.S. § 3803(a)(1).
connection with the First DUI. (Id. at 46a.) On November 18, 2016, three days after
Licensee began ARD, she committed another DUI (Second DUI). The Second DUI
is an offense under Section 3802(c) of the Vehicle Code, 75 Pa. C.S. § 3802(c)—
i.e., “[h]ighest rate of alcohol”—which is graded as a misdemeanor of the first
degree.2 As a result of committing the Second DUI, Licensee failed to complete
ARD.3 (Id. at 28a, 46a.) The trial court convicted Licensee on the Second DUI
charge on August 9, 2017, and convicted Licensee on the First DUI charge—as a
result of failing to complete ARD—on March 2, 2018. (Id. at 23a, 28a.)
                As a civil collateral consequence of Licensee’s offenses, the Vehicle
Code mandates that the Bureau suspend Licensee’s driver’s license for a certain
period of time, depending on the severity of the offense and any prior offenses.4
With respect to the Second DUI, on August 11, 2017, the Bureau received a certified
record of Licensee’s conviction. (R.R. at 28a.) As a result, the Bureau suspended
Licensee’s operating privilege for a period of eighteen months pursuant to
Section 3804(e)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(ii), which
imposes an eighteen-month suspension. (Id. at 24a.) Thereafter, on March 7, 2018,
the Bureau received a certified record of Licensee’s conviction for the First DUI.
(Id. at 23a.) Licensee’s conviction on the First DUI charge resulted in the Bureau




       2
           See 75 Pa. C.S. § 3803(b)(4).
       3
          Section 3807 of the Vehicle Code, 75 Pa. C.S. § 3807, sets forth the rules governing ARD.
Pursuant to Section 3807(e) of the Vehicle Code, when a licensee fails to adhere to the conditions
of participation in ARD, the court must “direct the attorney for the Commonwealth to proceed on
the charges as prescribed in the Rules of Criminal Procedure.”
       4
        Middaugh v. Dep’t of Transp., Bureau of Driver Licensing, 196 A.3d 1073, 1079 (Pa.
Cmwlth. 2018) (en banc), appeal granted, 208 A.3d 460 (Pa. 2019).


                                                2
suspending Licensee’s operating privilege for twelve months pursuant to
Section 3804(e)(2)(i) of the Vehicle Code. (Id. at 20a.)
                On May 21, 2017, Licensee appealed to the trial court the Bureau’s
decision to suspend her license for a period of twelve months.5 (Id. at 3a.) On
June 28, 2018, the trial court held a hearing in order to determine whether the
Bureau’s year-long suspension of Licensee’s operating privilege was improper. (Id.
at 7a-17a.) At the hearing, counsel for Licensee argued that at the time of Licensee’s
conviction on the First DUI charge she had no prior offense and was subject to the
exception to license suspension as provided by Section 3804(e)(2)(iii) of the Vehicle
Code, 75 Pa. C.S. § 3804(e)(2)(iii); therefore, the Bureau should not have suspended
Licensee’s operating privilege. (Id. at 13a-14a.) In response, the Bureau contended
that the conviction for the First DUI occurred second in time to the conviction for
the Second DUI, and, therefore, the conviction on the Second DUI charge operated
as a prior offense. (Id. at 14a-16a.) At the hearing, the trial court judge agreed with
counsel for Licensee and sustained Licensee’s appeal. (Id. at 17a.) In so doing, the
trial court judge, in referring to the conviction on the First DUI charge, reasoned:
“It was her first offense. You can’t change the calendar. This appeal is sustained[,]
and you can tell them to appeal me.” (Id. at 17a.) Thereafter, on June 28, 2018, the
trial court issued an order sustaining Licensee’s appeal. (Id. at 33a.) The Bureau
then appealed to this Court.
                On appeal,6 the Bureau argues that the trial court committed an error of
law in concluding that Licensee was entitled to the exemption from license

       5
           Licensee filed a statutory appeal under Section 1550 of the Vehicle Code, 75 Pa. C.S.
§ 1550.
       6
         This Court reviews a trial court’s order from a driver’s license suspension to determine
whether the trial court’s findings are supported by competent evidence and whether the trial court


                                                3
suspension set forth in Section 3804(e)(2)(iii) of the Vehicle Code. Specifically, the
Bureau contends that Licensee was convicted of the Second DUI before she was
convicted of the First DUI, such that the Second DUI operates as a prior offense,
and, therefore, Licensee may not take advantage of the exemption from license
suspension. Licensee counters, contending the trial court correctly concluded that
her commission of the First DUI prior in time to the Second DUI means that Licensee
had no prior offense and the Bureau should have applied the exemption from license
suspension in this instance.
              Section 3802 of the Vehicle Code delineates the various offenses
pertaining to driving under the influence of alcohol or a controlled substance, and
Section 3804 of the Vehicle Code, 75 Pa. C.S. § 3804, pertaining to penalties, sets
forth both the criminal and civil consequences for convictions for those offenses.
Section 3804(e) of the Vehicle Code, 75 Pa. C.S. § 3804, governs “suspension of
operating privilege upon conviction” and provides:
                     (1) The department shall suspend the operating
              privilege of an individual under paragraph (2) upon
              receiving a certified record of the individual’s conviction
              of or an adjudication of delinquency for:
                            (i) an offense under [S]ection 3802 [of the
                     Vehicle Code]; or
                            (ii) an offense which is substantially similar
                     to an offense enumerated in [S]ection 3802 [of the
                     Vehicle Code] reported to the department under
                     Article III of the compact in section 1581 (relating
                     to Driver’s License Compact).
                     (2) Suspension under paragraph (1) shall be in
              accordance with the following:



committed an error of law or an abuse of discretion. Cesare v. Dep’t of Transp., Bureau of Driver
Licensing, 16 A.3d 545, 548 n.6 (Pa. Cmwlth.), appeal denied, 23 A.3d 1057 (Pa. 2011).

                                               4
                          (i)    Except     as    provided     for    in
                    subparagraph (iii), 12 months for an ungraded
                    misdemeanor or misdemeanor of the second degree
                    under this chapter.
                          (ii) 18 months for a misdemeanor of the first
                    degree or felony of the third degree under this
                    chapter.
                          (iii) There shall be no suspension for an
                    ungraded misdemeanor under [S]ection 3802(a) [of
                    the Vehicle Code] where the person is subject to the
                    penalties provided in subsection (a) and the person
                    has no prior offense.

(Emphasis added.) The exception set forth in Section 3804(e)(2)(iii) of the Vehicle
Code applies if three conditions are met:
             First, the licensee must be convicted of violating 75 Pa.
             C.S. § 3802(a)(1) as an ungraded misdemeanor. Second,
             the licensee must be subject to the penalties contained in
             75 Pa. C.S. § 3804(a). Third, the licensee must not have a
             “prior offense” as defined in Section 3806 of the Vehicle
             Code, 75 Pa. C.S. § 3806.

Becker v. Dep’t of Transp., Bureau of Driver Licensing, 186 A.3d 1036, 1037-38
(Pa. Cmwlth. 2018). Here, there is no dispute that Licensee meets the first two
requirements. We will, therefore, address the remaining question of whether, at the
time Licensee was convicted on the First DUI charge, Licensee had a prior offense
within the meaning of Section 3806 of the Vehicle Code.
             Section 3806 of the Vehicle Code, 75 Pa. C.S. § 3806, provides, in
relevant part:
                    (a) General rule.--Except as set forth in
                 subsection (b), the term “prior offense” as used in this
                 chapter shall mean any conviction for which judgment
                 of sentence has been imposed, adjudication of
                 delinquency, juvenile consent decree, acceptance of
                 [ARD] or other form of preliminary disposition before


                                            5
              the sentencing on the present violation for any of the
              following:
                         (1) an offense under [S]ection 3802 [of the
                     Vehicle Code] (relating to driving under
                     influence of alcohol or controlled substance);
                     ....
                  (b) Timing.--
                         (1) For purposes of [S]ection[] . . . 3804 [of
                     the Vehicle Code] (relating to penalties) . . . , the
                     prior offense must have occurred:
                                (i) within 10 years prior to the date of
                         the offense for which the defendant is being
                         sentenced; or
                                (ii) on or after the date of the offense
                         for which the defendant is being sentenced.
(Emphasis added.)
               The term “prior offense,” therefore, refers to a conviction for which a
sentence has been imposed as well as preliminary dispositions received for
violations of the Vehicle Code7 before sentencing on the violation at issue—i.e., a
conviction, adjudication of delinquency, juvenile consent decree, acceptance of
ARD, or other forms of preliminary disposition before sentencing on an offense. In
addition to determining whether a licensee has a prior offense, we must also
determine whether such prior offense occurred within the time periods provided by
Section 3806(b) of the Vehicle Code. Where, as here, penalties are imposed under
Section 3804 of the Vehicle Code, Section 3806(b) of the same provides that the
prior offense must have occurred either (1) during the ten-year time period before
the date the licensee received a preliminary disposition on the offense said licensee
is being sentenced for; or (2) on or after the date on which the licensee received a
preliminary disposition on the offense for which the licensee is being sentenced.

      7
          75 Pa. C.S. §§ 101-9901.

                                           6
              In the instant matter, Licensee committed the First DUI in
February 2016 and received a preliminary disposition on the First DUI charge upon
her acceptance of ARD on November 15, 2016. When Licensee committed the
Second DUI on November 18, 2016, she failed to successfully complete ARD and
was later convicted on the Second DUI charge on August 9, 2017. The Second DUI
is graded as a misdemeanor of the first degree and carries with it an eighteen-month
suspension pursuant to Section 3804(e)(2)(ii) of the Vehicle Code. Accordingly,
after receiving record of this conviction, the Bureau suspended Licensee’s operating
privilege for eighteen months.8
              Licensee was subsequently convicted on the First DUI charge on
March 2, 2018. Importantly, the First DUI is an ungraded misdemeanor and could
have resulted in either (1) a twelve-month license suspension, or (2) no license
suspension provided that Licensee had no prior offense and had been subjected to
the penalties provided in Section 3804(a) of the Vehicle Code.                              See
Sections 3804(e)(2)(iii) and 3806 of the Vehicle Code. The Bureau imposed a
twelve-month suspension of Licensee’s operating privilege, presumably having
determined that Licensee had a prior offense. At the time Licensee was convicted

       8
          In her brief, Licensee suggests that the Bureau imposed an eighteen-month suspension
for her Second DUI conviction because the Bureau allegedly counted her acceptance of ARD for
the First DUI as a “prior offense.” (See Licensee’s Amended Br. at 7.) It is clear, however, that
Section 3804(e)(2)(ii) of the Vehicle Code required the Bureau to suspend Licensee’s operating
privilege for eighteen months due to the grading of the conviction on the Second DUI charge as a
misdemeanor of the first degree, regardless of whether Licensee had a prior offense. Whether
Licensee had a prior offense was relevant in this instance only to the criminal sentence to be
imposed under Section 3804(c) of the Vehicle Code and not to the civil consequence—i.e., license
suspension—under Section 3804(e) of the Vehicle Code. Thus, whether Licensee had a prior
offense at the time of the imposition of the suspension for the Second DUI conviction would have
been irrelevant to the Bureau. In other words, the Bureau was required to impose an
eighteen-month suspension on Licensee as a result of her conviction for the Second DUI,
regardless of whether Licensee had a prior offense.

                                               7
on the First DUI charge, Licensee’s August 9, 2017 conviction on the Second DUI
charge met the definition of prior offense under Section 3806 of the Vehicle Code.
Further, this conviction occurred “within [ten] years prior to the date of the
[preliminary disposition] for which the defendant is being sentenced”—i.e., within
the ten-year period before the March 2, 2018 conviction. See Section 3806(b)(i) of
the Vehicle Code. We, therefore, agree with the Bureau that Licensee’s conviction
on the Second DUI charge was a prior offense, and Licensee could not, therefore,
reap the benefits of the exception listed in Section 3804(e)(2)(iii) of the Vehicle
Code. Consequently, the trial court committed an error of law by concluding that
the conviction on the Second DUI charge could not be a prior offense to the
conviction on the First DUI charge based upon the date of commission as opposed
to the date of preliminary disposition—i.e., acceptance into ARD or conviction.
Thus, the trial court erred in sustaining Licensee’s appeal, thereby effectively
reversing Licensee’s license suspension.
               Furthermore, we reject Licensee’s argument that the Bureau is required
by the actions of the sentencing court to disregard the Second DUI for purposes of
determining whether Licensee had a prior offense as to the First DUI. Licensee
contends that the sentencing court, when imposing its criminal sentence for the
Second DUI, considered Licensee’s acceptance of ARD for the First DUI as a prior
offense, as evidenced by the imposition of a harsher criminal sentence for the Second
DUI under Section 3804(c)(2) of the Vehicle Code as opposed to a more lenient
sentence under Section 3804(c)(1) of the Vehicle Code.9 Licensee claimed that,




      9
          Section 3804(c) of the Vehicle Code provides:


                                               8
because the sentencing court viewed the First DUI as a prior offense as it related to
the Second DUI, the Bureau could not proceed as if the reverse was true—i.e., that
the Second DUI acted as a prior offense for purposes of imposing a license
suspension for the subsequent conviction for the First DUI.                      In making this
argument, Licensee essentially asks this Court to disregard the clear and
unambiguous statutory definition of “prior offense” set forth in Section 3806 of the
Vehicle Code. We decline to do so.


      (c) Incapacity; highest blood alcohol; controlled substances.--An individual
          who violates . . . [S]ection 3802(c) [of the Vehicle Code] . . . shall be sentenced
          as follows:
             (1) For a first offense, to:
                     (i) undergo imprisonment of not less than 72 consecutive hours;
                     (ii) pay a fine of not less than $1,000 nor more than $5,000;
                     (iii) attend an alcohol highway safety school approved by the
                          department; and
                     (iv) comply with all drug and alcohol treatment requirements
                         imposed under [S]ections 3814 and 3815 [of the Vehicle Code].
             (2) For a second offense, to:
                     (i) undergo imprisonment of not less than 90 days;
                     (ii) pay a fine of not less than $1,500;
                     (iii) attend an alcohol highway safety school approved by the
                          department; and
                     (iv) comply with all drug and alcohol treatment requirements
                         imposed under [S]ections 3814 and 3815 [of the Vehicle Code].
             (3) For a third or subsequent offense, to:
                     (i) undergo imprisonment of not less than one year;
                     (ii) pay a fine of not less than $2,500; and
                     (iii) comply with all drug and alcohol treatment requirements
                          imposed under [S]ections 3814 and 3815 [of the Vehicle Code].


                                                9
              The sole issue before this Court in this matter is whether, at the time of
Licensee’s conviction on the First DUI offense, Licensee had a prior offense within
the meaning of Section 3806 of the Vehicle Code. Whether the sentencing court
treated the Second DUI as a first, second, or third offense for purposes of criminal
sentencing matters not. If, prior to sentencing on the most recent violation of
Section 3802 of the Vehicle Code, a licensee has received a preliminary disposition
for violations of Section 3802 of the Vehicle Code, the licensee has a prior offense.
As discussed earlier in this opinion, prior to sentencing on the First DUI, Licensee
had a conviction on the Second DUI, and, therefore, had a prior offense for purposes
of license suspension under Section 3804(e)(2)(iii) of the Vehicle Code.
              In reaching this conclusion, we note that, for purposes of imposing
criminal sentences for violations of various subsections of Section 3802 of the
Vehicle Code, Section 3804 of the Vehicle Code takes into consideration whether
the offense for which the person is being charged is a “first,” “second,” “third,”
“fourth,” or “subsequent offense” and imposes increasingly harsher sentences on
licensees who have had more offenses. See 75 Pa. C.S. § 3804(a)-(c.1). Those
sentencing subsections do not reference the concept of “prior offenses.”10 Rather,
the only reference in Section 3804 of the Vehicle Code to the term “prior offense”
is found in subsection (e)(2)(iii), which provides a narrowly tailored exception from


       10
          The existence of a prior offense is relevant for purposes of the grading of a violation
under Section 3803 of the Vehicle Code, 75 Pa. C.S. § 3803. That being said, here, whether
Licensee had no prior offense or one prior offense would not have affected the grading of
Licensee’s violation of Section 3802(a)(1) of the Vehicle Code, as both of those circumstances
would have resulted in the violation being an ungraded misdemeanor. See 75 Pa. C.S.
§ 3803(a)(1). Similarly, whether Licensee had no prior offense or one prior offense would not
have affected the grading of Licensee’s violation of Section 3802(c) of the Vehicle Code, as any
violation of that section yields a grading of a misdemeanor of the first degree. See 75 Pa. C.S.
§ 3803(b)(4).

                                               10
suspension where a licensee has “an ungraded misdemeanor under Section 3802(a)
[of the Vehicle Code]”—which is the lowest of the prohibited impairment levels—
and “the person is subject to the penalties provided in subsection (a) and . . . has no
prior offense.” 75 Pa. C.S. § 3804(e)(2)(iii). Thus, in the license suspension realm,
whether a licensee has a prior offense is relevant for one purpose only—to determine
whether a licensee with an offense for the lowest level of prohibited impairment—
i.e., impairment as defined in Section 3802(a) of the Vehicle Code—is excused from
the twelve-month suspension that otherwise would be imposed under Section
3804(e)(2)(i) of the Vehicle Code. If the licensee has had any prior offense as
defined in Section 3806(b) of the Vehicle Code, then the licensee is not entitled to
the exception.11, 12

       11
           We further note that the imposition of a twelve-month suspension for a violation of
Section 3804(a) of the Vehicle Code is not a matter of an imposition of an enhanced penalty as a
result of a prior offense. To the contrary, imposition of a twelve-month suspension is the standard
suspension for a violation of Section 3802(a) of the Vehicle Code. Again, the exception of no
suspension for a violation of Section 3802(a) is available only to those licensees who have had no
prior offense. See 75 Pa. C.S. §§ 3804(e)(2), 3806.
       12
          This Court considered similar arguments regarding the timing of offenses for purposes
of application of Section 3804(e)(2)(iii) of the Vehicle Code in Pavlinich v. Department of
Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1973 C.D. 2016, filed
June 29, 2017), an unreported opinion that neither party refers to in their briefs. In Pavlinich, a
licensee was charged in 2014 with a violation of Section 3802(c) of the Vehicle Code (2014 DUI)
and accepted ARD for that offense, which is a misdemeanor of the first degree. In 2015, the
licensee was again charged with another violation of Section 3802(c) (2015 DUI). He pled guilty
and was sentenced to prison as a second offense. The licensee did not appeal that sentence.
Thereafter, the Bureau imposed an eighteen-month license suspension for the 2015 DUI pursuant
to Section 3804(e)(2)(ii) of the Vehicle Code. As a result of that conviction, the licensee’s ARD
was revoked, and he was later convicted of a violation of Section 3802(a) of the Vehicle Code,
which carries with it pursuant to Section 3804(e)(2) of the Vehicle Code a twelve-month
suspension or, if no prior offense, no suspension. The Bureau treated the 2015 DUI as a prior
offense for purposes of imposing a license suspension for the 2014 DUI. The licensee appealed,
and the common pleas court sustained the appeal. We affirmed. In reaching that decision, it
appears that the parties and this Court were operating under a belief that the suspension for


                                               11
               Based on the above discussion, we reverse the trial court’s order.




                                                P. KEVIN BROBSON, Judge




the 2015 DUI was an enhanced penalty due to the existence of a prior offense, such that the
licensee was subject to enhanced penalties for prior offenses on both of his license suspensions.
Thus, the Court’s analysis in Pavlinich relied upon circumstances that do not exist in the case now
before the Court, and, thus, the decisions are distinguishable. Furthermore, pursuant to
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an
unreported panel decision by this Court after January 15, 2008, may be cited “for its persuasive
value, but not as binding precedent.” Accordingly, while we may look to our decision in Pavlinich
for guidance, it is not controlling in this matter.

                                               12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathryn Leigh Diveglia                 :
                                       :
            v.                         :   No. 979 C.D. 2018
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
                         Appellant     :



                                     ORDER


            AND NOW, this 31st day of October, 2019, the order of the Court of
Common Pleas of Allegheny County, dated June 28, 2018, is REVERSED, and
Kathryn Leigh Diveglia’s license suspension is REINSTATED.




                                       P. KEVIN BROBSON, Judge
