              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert R. Ribnicky                       :
                                         :
                                         :   No. 541 C.D. 2019
            v.                           :
                                         :   Submitted: October 11, 2019
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing,              :
                         Appellant       :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: January 21, 2020


            The Department of Transportation, Bureau of Driver Licensing (DOT)
appeals from the April 18, 2019 order of the Court of Common Pleas of Westmoreland
County (trial court) directing DOT to issue a duplicate driver’s license to Robert
Ribnicky (Licensee).
            The material facts are not in dispute. On September 3, 2018, Licensee
was arrested in Erie County, Ohio, by the local Sheriff’s Department for driving under
the influence (DUI). (Reproduced Record (R.R.) at 4a, 22a.) At the time of his arrest,
the Sheriff’s Department seized Licensee’s Pennsylvania driver’s license and informed
him that his driver’s license was suspended.      Id.   On September 27, 2018, the
Vermillion, Ohio Municipal Court (Municipal Court) issued an order stating that
Licensee’s Ohio driving privileges were suspended. (R.R. at 5a, 9a.) Thereafter, on
November 27, 2018, the Municipal Court found Licensee guilty of DUI and suspended
his Ohio driving privileges for one year from the date of his arrest. (R.R. at 42a.)
             On October 2, 2018, Licensee applied to DOT for a duplicate
Pennsylvania driver’s license. (R.R. at 5a, 11a.) In the application, Licensee checked
the “NO” boxes next to the questions of whether he (1) had “pending criminal charges
or driving violations in this state or any other state which may carry a possible penalty
or suspension or revocation of your driver’s license or driving privilege,” or (2) had his
“driver’s license or driving privilege suspended or revoked in this state or any other
state.” (R.R. at 11a.) By letter dated October 9, 2018, DOT rejected Licensee’s
application. (R.R. at 14a.) In the letter, DOT stated that “[t]he National Driver Register
(NDR) maintains and provides the personal identification of individuals by state,
whose driving privilege[s] [are] withdrawn” and that DOT uses the “NDR to check all
of [its] new driver license applications.” Id. DOT informed Licensee that it refused
his application because the NDR indicated that his name and personal information were
similar to a person whose driving privileges had been withdrawn in Ohio. Id. DOT
advised that, prior to applying for a Pennsylvania driver’s license, Licensee needed to
contact the Ohio Bureau of Motor Vehicles to have his driving record cleared with the
NDR. Id.
             Licensee filed a statutory appeal with the trial court. On April 18, 2019,
the trial court conducted a de novo hearing. Licensee argued that, because his
Pennsylvania driving privileges were not suspended as a result of his Ohio DUI
conviction, he was entitled to receive a duplicate Pennsylvania driver’s license. (R.R.
at 24a, 28a, 30a-31a.) In response, DOT’s representative asserted that it is required to
conduct a search of the NDR whenever someone applies for a duplicate driver’s license.
(R.R. at 26a.) DOT’s representative also stated that “in Ohio when a driver is stopped



                                            2
for DUI, the law provides that the officer is to take that license and then it’s suspended
until it’s resolved. So if they are determined to have been convicted of DUI, they get
credit for that time,” but if “at the preliminary hearing, [] things go differently, then
they get their license back.” (R.R. at 27a.) DOT’s representative testified that
Licensee’s Ohio driving privileges were initially administratively suspended by the
seizure of his license at the time of his arrest, that the disposition of the underlying DUI
case had resulted in the suspension of Licensee’s Ohio driving privileges for one year,
and that his driving privileges were still suspended. (R.R. at 27a-28a.)
             The trial court stated that its interpretation of the law was that because
Licensee’s driver’s license was not suspended in Pennsylvania, he was entitled to have
a duplicate driver’s license issued to him. (R.R. at 32a.) Accordingly, the trial court
entered an order sustaining Licensee’s appeal and directing DOT to issue Licensee a
duplicate Pennsylvania driver’s license. (R.R. at 43a.)
             DOT timely appealed the trial court’s order. Following the appeal, the
trial court issued an order directing DOT to file a statement of errors complained of on
appeal (statement).     In its statement, DOT argued that pursuant to Haubert v.
Department of Transportation, Bureau of Driver Licensing, 124 A.3d 360 (Pa.
Cmwlth. 2015), because Licensee’s driving privileges had been suspended by the state
of Ohio, DOT was prohibited from issuing a duplicate driver’s license to Licensee.
(R.R. at 51a.)
             Thereafter, on June 25, 2019, the trial court entered an opinion and order.
The trial court concluded that after considering Haubert, for which the “citation was
not provided to the [c]ourt until the filing of the [s]tatement,” the court was constrained
to follow that case. (Trial court op. at 1.) Therefore, the trial court requested that the
Commonwealth Court reverse its previous order. Id. The trial court also held that DOT



                                             3
was “required by federal law [] to follow the [NDR] Pointer System, 49 U.S.C.
§30304(e), [] 75 Pa.C.S. §1503(a)(1)” and that the trial court was required to follow
the dictates of Haubert. (Trial court op. at 1.)
               On appeal,1 DOT argues that the trial court erred as a matter of law in
holding that DOT was required to issue Licensee a duplicate driver’s license, despite
the fact that Licensee’s driving privileges were suspended in Ohio. DOT argues that it
complied with federal law by checking the NDR when Licensee applied for a duplicate
driver’s license. DOT contends that because the NDR showed that Licensee’s driving
privileges were suspended in Ohio, DOT properly denied Licensee’s application.
                Section 30304(e) of Title 49 of the United States Code, titled “Driver
record inquiry,” provides that “[b]efore issuing a motor vehicle operator’s license to an
individual or renewing such license, a State shall request from the Secretary [of
Transportation] information from the [NDR] . . . on the individual’s driving record.”
49 U.S.C. §30304(e). Further, section 1327.5(b) of Title 23 of the Code of Federal
Regulations, titled “State of inquiry function for driver licensing and driver
improvement purposes,” provides, in relevant part, as follows:

               The chief driver licensing official of a participating State
               shall submit an inquiry to [] the NDR . . . for each driver
               license applicant before issuing a license to that applicant.
               The issuance of a license includes but is not limited to any
               original, renewal, temporary, or duplicate license that results
               in a grant or extension of driving privileges in a participating
               State.




       1
          “This Court’s scope of review of a trial court decision in a driver’s license appeal is limited
to a determination of whether findings of fact are supported by substantial evidence, an error of law
was committed, or the court abused its discretion.” Fowler v. Department of Transportation, Bureau
of Driver Licensing, 2 A.3d 1282, 1284 (Pa. Cmwlth. 2010).

                                                   4
23 C.F.R. §1327.5(b) (emphasis added).          All 50 states, including Pennsylvania,
participate in the NDR system. Fowler, 2 A.3d at 1286; Taddei v. Department of
Transportation, Bureau of Driver Licensing, 982 A.2d 1249, 1252 (Pa. Cmwlth. 2009).
Thus, “[f]ederal law requires DOT to check the NDR prior to the issuance or renewal
of a Pennsylvania driver’s license.” Haubert, 124 A.3d at 362.
             Additionally, section 1503(a)(1) of the Pennsylvania Vehicle Code
provides that DOT “shall not issue a driver’s license to, or renew the driver’s license
of, any person . . . [w]hose operating privilege is suspended or revoked in this or any
other state.” 75 Pa.C.S. §1503(a)(1) (emphasis added). In Haubert, we held that
“[t]he language of [s]ection 1503(a)(1) is clear and unambiguous. The Vehicle Code
admits no exception for a driver seeking a Pennsylvania license while under a license
suspension or revocation in another state.” Haubert, 124 A.3d at 362.
             In Haubert, the licensee applied to DOT for a driver’s license. After a
report from the NDR demonstrated that the licensee’s driving privileges had been
withdrawn in both New York and New Jersey, DOT denied the licensee’s application.
On appeal of the license suspension, the licensee testified that his New York driving
privileges had been restored, but admitted that he had been unable to clear up his New
Jersey record. We observed that the evidence, at a minimum, demonstrated that the
licensee’s New Jersey driving privileges remained suspended.             Relying on the
Pennsylvania and federal statutes and regulations cited above, we concluded that
“[u]pon application for issuance of a driver’s license, DOT is statutorily obligated to
determine whether a driver’s license has been withdrawn through a query of the NDR
and further obligated to deny a license application where a driver’s operating privileges
have been revoked or suspended by another jurisdiction.” Id. Thus, we held that “DOT
[was] strictly prohibited from issuing a license to [the licensee] until it receive[d] [an]



                                            5
NDR report stating that he [was] eligible for licensing in New York and New Jersey.”
Id.; see also Fowler, 2 A.3d at 1286 (holding that because an NDR inquiry showed that
licensee’s Florida driving privileges were suspended, DOT properly denied the
licensee’s application for a renewal of his Pennsylvania driver’s license under section
1503(a)(1) of the Vehicle Code); Rothstein v. Department of Transportation, Bureau
of Driver Licensing, 922 A.2d 17, 22 & n.10 (Pa. Cmwlth. 2006) (holding that because
the licensee’s New Jersey driving privileges were suspended, he was not entitled to
have his Pennsylvania driver’s license renewed under section 1503(a)(1) of the Vehicle
Code).
               Here, when Licensee applied for a duplicate Pennsylvania driver’s license,
his driving privileges were suspended by the state of Ohio as a result of his DUI arrest.
Pursuant to federal law, Licensee’s application for a duplicate driver’s license required
DOT to submit an NDR inquiry. See 49 U.S.C. §30304(e); 23 C.F.R. §1327.5(b). The
NDR report for Licensee showed that his Ohio driving privileges were suspended.
Because Licensee’s Ohio driving privileges were suspended, DOT was prohibited by
Pennsylvania law from issuing Licensee a duplicate driver’s license. See 75 Pa.C.S.
§1503(a)(1); Haubert, 124 A.3d at 362. Therefore, DOT properly denied Licensee’s
driver’s license application and the trial court erred as a matter of law in sustaining
Licensee’s appeal and directing DOT to issue Licensee a duplicate driver’s license.2

       2
          This court’s recent opinion in Linkosky v. Department of Transportation, Bureau of Driver
Licensing ,       A.3d (Pa. Cmwlth., No. 98 C.D. 2019, filed December 5, 2019), is distinguishable
from the instant case. There, the licensee applied for the renewal of his Pennsylvania driver’s license.
Id. at    , slip op. at 2. DOT granted the licensee’s request, issued the licensee a temporary internet
driver’s license, and instructed the licensee that he would receive a “camera card” in the mail within
10 days and that, upon receipt of the camera card, he should take the card to a DOT photo license
center to have a new picture taken and receive a permanent photo license. Id. Shortly after DOT
granted the licensee’s renewal application, however, the licensee’s driving privileges were suspended
in Ohio. Although the licensee received his camera card in the mail, he misplaced it and then sought



                                                   6
               Accordingly, the order of the trial court is reversed.




                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




a replacement camera card. DOT refused to issue the licensee a new camera card because the NDR
inquiry showed that the licensee’s Ohio driving privileges were suspended, and the licensee appealed.
Id. Because DOT had already granted the licensee’s renewal application prior to the licensee having
his Ohio driving privileges suspended, we held that DOT erred in not issuing the licensee a
replacement camera card. Id., at       , slip op. at 5-6. Our holding was based on our conclusion that
the licensee’s request for a duplicate camera card was not a second application for a driver’s license
renewal; that when DOT granted the licensee’s renewal application, the licensee was a properly
licensed Pennsylvania driver who needed only to follow the appropriate process to receive a
permanent photo license; and that the licensee’s request for a duplicate camera card did not trigger
the NDR inquiry required by section 1327.5(b) of Title 23 of the Code of Federal Regulations, 23
C.F.R. §1327.5(b). Linkosky,        A.3d at      , slip op. at 5-6.
        Unlike Linkosky, here Licensee’s Ohio operating privileges were already suspended when he
applied for a duplicate Pennsylvania driver’s license and Licensee’s duplicate license application
mandated an NDR inquiry under the federal regulations. See 23 C.F.R. §1327.5(b) (explicitly
requiring an NDR report where a duplicate license is sought, but not mentioning requests for
replacement camera cards). In other words, contrary to here, in Linkosky the licensee had his renewal
application granted before he lost his Ohio operating privileges and, therefore, had already been
granted a Pennsylvania license at the time of his request for a new camera card. His request for a new
camera card did not affect his already granted Pennsylvania driving privileges and did not trigger an
NDR inquiry. Thus, unlike here, where Licensee’s application required DOT to conduct an NDR
report, in Linkosky the licensee’s camera card request was more of a pro forma request that was
unaffected by the relevant federal regulations. Consequently, the instant case is distinguishable from
Linkosky.


                                                  7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert R. Ribnicky                     :
                                       :    No. 541 C.D. 2019
            v.                         :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
                         Appellant     :


                                     ORDER


            AND NOW, this 21st day of January, 2020, the order of the Court of
Common Pleas of Westmoreland County, dated April 18, 2019, is hereby reversed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
