           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michele Kapalko,                       :
                        Appellant      :
                                       :
            v.                         :   No. 1912 C.D. 2015
                                       :   Submitted: July 15, 2015
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                           FILED: September 20, 2016

            Appellant Michele Kapalko (Kapalko) appeals from an order of the
Court of Common Pleas of Fayette County (trial court). The trial court denied
Kapalko’s statutory appeal from the five-year suspension of her license by the
Pennsylvania Department of Transportation (DOT). We affirm the trial court’s
order.
            The facts underlying the instant appeal are not in dispute.       On
March 26, 2010, Kapalko accepted Accelerated Rehabilitative Disposition (ARD)
for a violation of Section 3802(c) of the Vehicle Code, 75 Pa. C.S. § 3802(c)
(driving under the influence of alcohol or a controlled substance (DUI) - highest
rate of alcohol). Kapalko was later convicted of violating Section 3802(b) of
the Vehicle Code, 75 Pa. C.S. § 3802(b) (DUI - highest rate of alcohol), on
April 27, 2011.         On May 2, 2013, Kapalko was convicted on three separate
charges: (1) driving with a suspended license - DUI related,1 (2) careless driving,2
and (3) DUI - highest rate of alcohol.3 As a result of those convictions, DOT
notified Kapalko that her license would be suspended for the following terms: (1)
one year for driving with a suspended license, (2) fifteen days for careless driving,
and (3) eighteen months for DUI - highest rate of alcohol. Kapalko surrendered
her license and began serving her suspension on September 12, 2013. Kapalko did
not appeal the initial suspension of her license. On May 29, 2015, DOT notified
Kapalko that, as a result of her May 2, 2013 conviction for driving with a
suspended license, it was revoking her license for a period of five years beginning
on September 12, 2013, pursuant to Section 1542 of the Vehicle Code, 75 Pa.
C.S. § 1542, often referred to as the habitual offender statute.4
                 On June 18, 2015, Kapalko filed with the trial court a timely notice of
statutory appeal from the five-year license revocation. Kapalko argued that the
original one-year suspension was final, and thus a new suspension for the same
conviction was barred by principles of res judicata or that the delay in the
imposition of the five-year suspension was unreasonable.                   The trial court
conducted a hearing on the appeal on August 19, 2015. At the hearing, DOT noted
that its internal records-keeping system had failed to count Kapalko’s new


       1
           75 Pa. C.S. § 1543(b)(1.1).
       2
           75 Pa. C.S. § 3714(a).
       3
           75 Pa. C.S. § 3802(c).
       4
          On that same day, DOT sent additional notices to Kapalko relating to her fifteen day
and eighteen month suspensions. These additional notices coordinated the commencement dates
for those suspensions with her five-year revocation.



                                              2
conviction toward her status as a habitual offender as defined by Section 1542 of
the Vehicle Code, 75 Pa. C.S. § 1542.                    By opinion and order dated
August 31, 2015, the trial court denied Kapalko’s license revocation appeal.
Kapalko appealed to this Court.
              On appeal, Kapalko raises one issue: whether DOT’s second sanction
of five years for the same violation is barred by principles of res judicata or
collateral estoppel.5
              Section 1542 of the Vehicle Code, 75 Pa. C.S. § 1542, requires DOT
to revoke the operating privilege of habitual Vehicle Code offenders. That section
provides, in pertinent part:

              (a) General rule. — The department shall revoke the
              operating privilege of any person found to be a habitual
              offender pursuant to the provisions of this section. A
              “habitual offender” shall be any person whose driving
              record, as maintained in the department, shows that such
              person has accumulated the requisite number of
              convictions for the separate and distinct offenses
              described and enumerated in subsection (b) committed
              after the effective date of this title and within any period
              of five years thereafter.
              (b) Offenses enumerated. — Three convictions arising
              from separate acts of any one or more of the following
              offenses committed by any person shall result in such
              person being designated as a habitual offender:


       5
          Our scope of review in licensing appeals is limited to determining whether the trial
court’s findings were supported by competent evidence or whether the trial court committed an
error of law or abused its discretion. Department of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873, 875 (Pa. 1989). When only questions of law are presented, our review
is plenary. Deliman v. Dep’t of Transp., Bureau of Driver Licensing, 718 A.2d 388, 389 n.1
(Pa. Cmwlth. 1998).



                                              3
            (1) Any violation of Subchapter B of Chapter 37 (relating
            to serious traffic offenses).
            (1.1) Any violation of Chapter 38 (relating to driving
            after imbibing alcohol or utilizing drugs) except for
            sections 3808(a)(1) and (b) (relating to illegally operating
            a motor vehicle not equipped with ignition interlock) and
            3809 (relating to restriction on alcoholic beverages).
            (1.2) Any violation of section 1543(b)(1.1) (relating to
            driving while operating privilege is suspended or
            revoked).
            ...
            (d) Period of revocation. — The operating privilege of
            any person found to be a habitual offender under the
            provisions of this section shall be revoked by the
            department for a period of five years.
75 Pa. C.S. § 1542 (Emphasis added).
            We have previously held that the period of revocation for habitual
Vehicle Code offenders is mandatory and is not within the discretion of DOT.
Dep’t of Transp., Bureau of Driver Licensing v. Richardson, 648 A.2d 1308, 1310
(Pa. Cmwlth. 1994). In this case, it is uncontested that Kapalko was convicted of
three separate offenses enumerated in Section 1542(b) of the Vehicle Code.
Further, the parties agree that, pursuant to Section 1542, DOT should have revoked
Kapalko’s operating privileges for five years. DOT asserts that it was an oversight
in its records-keeping system which erroneously caused DOT not to count
Kapalko’s new conviction under Section 1543(b)(1.1) of the Vehicle Code toward
her status as a habitual offender. Kapalko, on appeal, argues that, because DOT
initially erred in imposing a one-year sanction under Section 1543(b)(1.1) as
opposed to a five-year sanction, it is precluded from now imposing the longer,
correct penalty. We disagree.



                                         4
             Kapalko is correct that the doctrine of res judicata applies to
administrative actions.   D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 712, 731
(Pa. Cmwlth. 2010). “[R]es judicata bars re-litigation of a claim when the cause of
action in one proceeding is identical to that involved in a prior final judgment.” Id.
(internal citations omitted). Here, however, there are no substantive disputes to be
re-litigated, and a five-year suspension is mandated by the applicable section of the
Vehicle Code. We have long held that “an administrative agency, on its own
motion, having provided the proper notice and explanation, may correct
typographical, clerical and mechanical errors obviated and supported by the
record. . . . It may not, however . . . reverse itself on the substantive issues
previously decided.” Kentucky Fried Chicken of Altoona, Inc. v. Unemployment
Comp. Bd. of Review, 309 A.2d 165, 167 (Pa. Cmwlth. 1973).
             Likewise, we have previously held that collateral estoppel principles
apply to administrative proceedings. Christopher v. Council of Plymouth Twp.,
635 A.2d 749, 752 (Pa. Cmwlth. 1993). Collateral estoppel is a broader concept
than res judicata and operates when an issue of fact or law, essential to the
judgment, is litigated and determined by a valid and final judgment, and the
determination is conclusive in a subsequent action between the parties,
whether on the same or a different claim.              Irizarry v. Office of Gen.
Counsel, 934 A.2d 143, 151 (Pa. Cmwlth. 2007) (citing RESTATEMENT (SECOND)
OF JUDGMENTS    § 27 (1982)). “Application of the principle of collateral estoppel is
not precluded merely because administrative proceedings are involved”; rather,
where an administrative agency acts in a “judicial capacity and resolves disputed
issues of fact properly before it which the parties have had an adequate opportunity




                                          5
to litigate, the court will not hesitate to apply collateral estoppel principles.”
Christopher, 635 A.2d at 752 n.2.
             Kapalko cites two of our prior cases applying principles of res
judicata and collateral estoppel to administrative actions: Miller v. Department of
Transportation, 554 A.2d 1019 (Pa. Cmwlth. 1989), and Germantown Cab Co. v.
Philadelphia Parking Authority, 27 A.3d 280 (Pa. Cmwlth. 2011). Both cases,
however, are readily distinguishable. In Miller, we held that an appellant’s failure
to contest the accuracy of his conviction upon receiving notice that his operating
privileges were suspended because of that conviction estopped the driver from
presenting that challenge in a later proceeding after his license was suspended for
five years as a repeat offender. Miller, 554 A.2d at 1021. In the instant case, there
are no facts in dispute and Kapalko does not challenge the accuracy of the
conviction underlying her license suspension.          In Germantown Cab, the
Philadelphia Parking Authority (PPA) issued a citation which was later overturned
because it was based on an invalid regulation.          The PPA argued that its
enforcement action could be upheld on alternate grounds, i.e., other violations of
the city’s parking regulations for which the petitioner was not originally cited. We
held that an administrative agency could not re-issue new citations based on the
same violation if it did not litigate those issues at the original hearing.
Germantown, 27 A.3d at 284.         Here, DOT did not attempt to substitute an
alternative violation in an appeal to the trial court after the originally alleged
violation was found inapplicable.     Instead, it simply issued a new notice of
suspension which Kapalko could have, and actually did, appeal.
             In this case, there are no substantive issues in dispute, and it is
unequivocal that the proper disposition of Kapalko’s suspension should have been


                                         6
a five-year revocation of her license. DOT did not act in a judicial capacity, nor
did it resolve factual disputes or decide substantive legal issues such that collateral
estoppel or res judicata would bar it from correcting its error. DOT, therefore, is
not prohibited from correcting what amounts to an administrative error or an error
in records-keeping. See Lynch v. Pa. Bd. of Prob. and Parole, (Pa. Cmwlth.,
No. 1867 C.D. 2012, filed September 25, 2013), slip op. at 2 (holding that Board of
Probation and Parole may summarily correct miscalculation of parolee’s release
date).6, 7
                Accordingly, we affirm the order of the trial court.




                                      P. KEVIN BROBSON, Judge




       6
         As an unreported panel decision of this Court, we cite Lynch for its persuasive value
pursuant to Section 414(a) of the Court’s Internal Operating Procedures.
       7
          Kapalko does not argue on appeal that the notice of revocation was invalid on the basis
of undue delay. In order for a licensee to avoid an otherwise valid driving privilege suspension
or revocation due to delay, the licensee must demonstrate: (1) that an unreasonable delay
chargeable to the Bureau of Driver Licensing led the licensee to reasonably believe that his or
her driving privileges would not be impaired, and (2) that prejudice to the licensee would result
from having his or her driving privileges suspended after such a delay. Department of Transp.,
Bureau of Driver Licensing v. Gombocz, 909 A.2d 798, 800-801 (Pa. 2006). Kapalko conceded
at the August 19, 2015 hearing before the trial court that she was not prejudiced by the delay.
Thus, the trial court properly concluded that she does not satisfy the second prong of this test and
that the revocation was not invalid due to delay.



                                                 7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michele Kapalko,                     :
                      Appellant      :
                                     :
           v.                        :   No. 1912 C.D. 2015
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :



                                  ORDER


           AND NOW, this 20th day of September, 2016, the order of the Court
of Common Pleas of Fayette County is AFFIRMED.




                            P. KEVIN BROBSON, Judge
