            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin J. Lewis,                               :
                                              :
                               Appellant      :
                                              :
                 v.                           : No. 180 C.D. 2019
                                              : Submitted: September 27, 2019
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                      FILED: April 20, 2020


                Kevin J. Lewis (Licensee) appeals the order of the Chester County
Court of Common Pleas (trial court) denying his appeal of, and reinstating, the
one-year license suspension imposed by the Department of Transportation, Bureau
of Driver Licensing (DOT), pursuant to Section 3804(e)(2)(i) of the Vehicle Code.1
We affirm.

      1
          Section 3804(e)(1)(i) and (2)(i) of the Vehicle Code states:

                (e) Suspension of operating privileges upon conviction.—

                 (1) [DOT] shall suspend the operating privilege of an individual
                under paragraph (2) upon receiving a certified record of the
                individual’s conviction of[:]
(Footnote continued on next page…)
                 On March 23, 2017, Licensee was convicted of violating Section
3802(a)(1) of the Vehicle Code (Driving Under the Influence of Alcohol or a
Controlled Substance (DUI)),2 as an ungraded misdemeanor in the Lancaster
County Court of Common Pleas (Lancaster County Court). On May 1, 2017, the
Lancaster County Court’s Clerk of Courts electronically transmitted a Form DL-21
to DOT notifying DOT of the conviction. See Reproduced Record (R.R.) at 10a-
11a.3 By May 9, 2017 letter, DOT notified Licensee of the suspension pursuant to

(continued…)

                         (i) an offense under section 3802 [(relating to driving
                        under the influence of alcohol or a controlled substance).]

                                                ***

                  (2) Suspension under paragraph (1) shall be in accordance with
                 the following:

                         (i) [] 12 months for an ungraded misdemeanor or
                        misdemeanor of the second degree under this chapter.

75 Pa. C.S. §3804(e)(1)(i), (2)(i).

       2
           Section 3802(a)(1) states:

                 (a) General impairment.—

                  (1) An individual may not drive, operate or be in actual physical
                 control of the movement of a vehicle after imbibing a sufficient
                 amount of alcohol such that the individual is rendered incapable of
                 safely driving, operating or being in actual physical control of the
                 movement of the vehicle.

75 Pa. C.S. §3802(a)(1).

       3
         See Section 6323(1) of the Vehicle Code, 75 Pa. C.S. §6323(1) (“The clerk of any court
of this Commonwealth, within ten days after final judgment of conviction . . . of charges under
(Footnote continued on next page…)
                                                  2
Section 3804(e)(2)(i) of the Vehicle Code. See id. at 6a-9a. Licensee appealed to
the trial court.
               At the initial trial court hearing on June 7, 2018, Licensee’s counsel
obtained a continuance of the license suspension hearing to obtain an ignition
interlock limited license from DOT.4 R.R. at 55a. At the continued hearing on
January 17, 2019, Licensee’s counsel again sought a continuance to obtain an
ignition interlock limited license for his client. Id. at 63a. However, the trial court
denied the request and the hearing proceeded in Licensee’s absence. Id. at 65a,
66a.    Without objection, DOT offered into evidence a packet of documents,
marked as Exhibit 1; Licensee’s counsel stated that Licensee was not offering any
evidence in support of his license suspension appeal. Id. at 68a. As stated by
DOT’s counsel at the hearing, Exhibit 1 is DOT’s “certified record[] which
contain[s] the official notice of suspension, [Licensee’s] driving record, and
[Licensee’s] conviction record.” Id.5 Following the trial court’s admission of the


(continued…)

any of the provisions of this title . . . shall send to [DOT] a record of the judgment of
conviction[.]”); Section 81.4(a) of DOT’s regulations, 67 Pa. Code §81.4 (“The clerk of a court
of record of this Commonwealth, within 10 days after final judgment of conviction or acquittal
or other disposition of charges under 75 Pa. C.S. (relating to [V]ehicle [C]ode), shall send to
[DOT] a record of the judgment of conviction, acquittal or other disposition on Form DL-21.”).

       4
         Section 1556(f)(2)(ii) of the Vehicle Code states, in relevant part, “An individual whose
license has been suspended under section 3804(e) . . . shall be eligible to apply for and, if
otherwise qualified, be issued an ignition interlock limited license . . . if the individual . . . has
served six months of the suspension imposed under section 3804(e)(2)(ii)[.]” 75 Pa. C.S.
§1556(f)(2)(ii).

       5
         Specifically, as part of Exhibit 1, DOT introduced a Form DL-21 indicating, inter alia,
that it was electronically transmitted to DOT on May 1, 2017; that Licensee was convicted of
violating Section 3802(a)(1) of the Vehicle Code on March 23, 2017; that he was not sentenced
(Footnote continued on next page…)
                                                  3
documents, DOT rested its case. Id. DOT’s counsel explained, “Based on what
we have just offered into evidence, [Licensee] was convicted of Section
3802(a)(1), which carries the one-year suspension because there was an injury
involved.” Id. at 69a.
              Licensee’s counsel “agree[d] that it’s a records case,” but did not
“agree that it is so clear.” R.R. at 69a. Counsel again raised an equal protection
argument, asserting “that it seems that everyone who is convicted of a DUI in the
State of Pennsylvania is in some way and at some time eligible for the ignition
interlock device except for people in [Licensee’s] position.”                  Id.    Counsel
explained:

                    Under the law, someone who is convicted of a
              general impairment DUI first offense would normally not
              be suspended.       The exception is under Section
              3804(e)(2)(iv), I believe, an individual who was
              convicted of 3802(a)(1), but also was involved in an
              accident with injuries, such as what the documents here
              would reflect.

                     These individuals do not seem to be included in
              the ignition interlock law – or [DOT’s] ignition interlock
              fact sheet to be eligible at any time for an ignition
              interlock, and I think it was an oversight of the
              legislature. The reason I think that is because someone
              who is convicted of a first offense DUI highest tier,
              someone with a .5 DUI is eligible for an ignition
              interlock immediately upon the suspension. You don’t
              have to wait six months or nine months like in other
              cases. They’re eligible immediately.

(continued…)

to prison; and that he was not sentenced under Section 3804(a)(1) of the Vehicle Code, 75
Pa. C.S. §3804(a)(1), which applies to first time offenders and does not require imprisonment as
in the other subsections. R.R. at 10a.


                                               4
Id. at 70a. Counsel concluded, “The fact that he doesn’t seem to be eligible raises
an equal protection argument under the Constitution, and it’s not right that he
doesn’t have that ability” because “he’s being treated disproportionately than
everyone else who gets a DUI in the Commonwealth.” Id. at 71a.
              Licensee’s counsel also asserted that the Form DL-21 that DOT
submitted “indicates under sentencing information that [Licensee] was not
sentenced to jail, which would be inconsistent with the checkmark just below that
where it says, was [Licensee] sentenced under Section 3804(a)(1). It says, no.”
R.R. at 80a. Counsel claimed that “it seems to be a little inconsistent,” “argu[ing]
that the report of the clerk is also deficient in that regard.” Id.
              Ultimately, the trial court rejected Licensee’s claims, denied his
appeal, and reinstated DOT’s one-year license suspension. Licensee then filed the
instant appeal.6
              On appeal, Licensee first claims that the trial court erred in denying
his appeal and reinstating the license suspension because the Form DL-21 was
“inconclusive” and “inconsistent.”          Specifically, although the Form DL-21
correctly states that he was convicted of violating Section 3802(a)(1) of the
Vehicle Code, it purportedly incorrectly states that he was not sentenced to prison
because Section 3804(b)(1)(i) requires a mandatory term of imprisonment of not
less than 48 consecutive hours where, as here, an accident results in injury or




       6
         This Court’s scope of review in a license suspension case is limited to determining
whether necessary findings of fact are supported by competent record evidence and whether the
trial court committed an error of law or abused its discretion. Thorpe v. Department of
Transportation, Bureau of Driver Licensing, 214 A.3d 335, 337 n.1 (Pa. Cmwlth. 2019).



                                             5
property damage.7 Further, Section 3804(e)(2)(iii) provides that “[t]here shall be
no suspension for an ungraded misdemeanor under section 3802(a) where the
person is subject to the penalties provided in subsection (a) and the person has no
prior offense.” 75 Pa. C.S. §3804(e)(2)(iii).
               However, as outlined above, the provisions of Section 3804(e)(2)(iii)
are inapplicable herein,8 and Licensee’s driving privilege was properly suspended
under Section 3804(e)(2)(i), based on the accident resulting in bodily injury. The
only issues in this case are whether the Lancaster County Court convicted Licensee
and whether DOT acted in accordance with the applicable law, and DOT bears the
initial burden to establish a prima facie case that the official record of conviction
supports Licensee’s suspension. Thorpe v. Department of Transportation, Bureau
of Driver Licensing, 214 A.3d 335, 337 (Pa. Cmwlth. 2019). The fact that the
Lancaster County Court’s Clerk of Courts purportedly erred by checking a box on
the Form DL-21 indicating that Licensee was not sentenced to prison in no way
impugns the other necessary information contained therein establishing DOT’s
prima facie case and supporting its imposition of the instant one-year license
suspension, i.e., that he was convicted of violating Section 3802(a)(1) and that he
was not sentenced under Section 3804(a)(1).                      See, e.g., Department of

       7
          Section 3804(b)(1)(i) states, in pertinent part, “an individual who violates section
3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death
of any person or damage to a vehicle or other property . . . shall be sentenced . . . [f]or a first
offense, to . . . undergo imprisonment of not less than 48 consecutive hours[.]” 75 Pa. C.S.
§3804(b)(1)(i).

       8
         Section 3804(e)(2)(iii) states, in relevant part, “There shall be no suspension for an
ungraded misdemeanor under section 3802(a) where the person is subject to the penalties
provided in subsection (a) and the person has no prior offense.” 75 Pa. C.S. §3804(e)(2)(iii)
(emphasis added). As outlined above, Licensee was subject to the penalties in Section
3804(b)(1)(i), and not subsection (a), due to the accident involving injuries.


                                                6
Transportation, Bureau of Driver Licensing v. Diamond, 616 A.2d 1105, 1107 (Pa.
Cmwlth. 1992), appeal dismissed, 652 A.2d 826 (Pa. 1995) (“[O]nce DOT has
introduced, via a certified record, evidence of conviction, DOT has met its burden
of production and established a rebuttable presumption that a conviction exists.”).
              The only deficiency in the Form DL-21 compelling the reversal of the
instant suspension would have been the omission of such necessary information
establishing a prima facie case to support the suspension. See Section 81.4(c) of
DOT’s regulations, 67 Pa. Code §81.4(c) (“[DOT] will not process the report of
the clerk of court showing conviction or acquittal unless all the required
information indicated in subsection (b) is provided to [DOT]. An incomplete Form
DL-21 will be returned to the clerk of court for completion.”) (emphasis added);
Thorpe, 214 A.3d at 339 (“[P]ursuant to its regulations, DOT should not have
processed the instant license suspension based upon the defective Form DL-21C
that was submitted by the [trial c]ourt; rather, DOT should have returned the
incomplete Form DL-21C to the [trial c]ourt for completion to include the ‘Date of
Disposition’ of Licensee’s ‘Preadjudicative Disposition’ of the instant charge.”)
(footnote omitted). In sum, the Form DL-21 relied upon by DOT and the trial
court in this case contains the required information to support the instant license
suspension and Licensee’s allegation of error in this regard is patently without
merit.9

       9
         As noted by DOT, the authority to correct the information in the Form DL-21 is vested
in the Lancaster County Courts. Indeed, as this Court has noted:

              The Clerk and [DOT] are each state government actors, but they
              belong to distinct and co-equal branches of government,
              independent of each other.     Mental Health Association in
              Pennsylvania v. Corbett, 54 A.3d 100, 104 (Pa. Cmwlth. 2012)
(Footnote continued on next page…)
                                              7
              Finally, Licensee claims that the provisions of Section 1556 of the
Vehicle Code authorizing DOT to issue ignition interlock limited licenses to
specified individuals violates the Equal Protection Clause of the United States
Constitution.10 The trial court summarized Licensee’s claim in this regard as
follows:

                     Licensee argues that other drivers who are
              convicted of lesser and also more serious offenses have
              the opportunity to obtain a restricted driver’s license
              requiring an ignition interlock device but drivers, such as
              licensee, who are convicted of a violation of [S]ection
              3802(a) of the Vehicle Code – general impairment – and
              who have their operating privilege[] suspended because
              they were involved in an accident while driving while
              impaired do not have that opportunity. Licensee posits
              that this result was an “oversight” by the legislature.
Trial Court 4/16/19 Opinion at 2.




(continued…)

              (quoting Sweeney v. Tucker, [375 A.2d 698, 705 (Pa. 1977)] (“A
              basic precept of our form of government is that the executive, the
              legislature and the judiciary are independent, co-equal branches of
              government.”)). As such, “[t]he separation of powers doctrine
              provides that no branch of government should exercise the
              functions exclusively committed to another branch.” Id. (quoting
              Harrisburg School District v. Hickok, 762 A.2d 398, 411-12 (Pa.
              Cmwlth.[), aff’d, 761 A.2d 1132 (Pa. 2000)]. [DOT] belongs to
              the executive branch, and the Clerk belongs to the judicial branch.
              Neither may control the other nor act as the agent for the other.

Smires v. O’Shell, 126 A.3d 383, 391 (Pa. Cmwlth. 2015).

       10
         The Fourteenth Amendment states, in relevant part, “nor shall any State . . . deny to
any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, §1.


                                               8
             However, as argued by DOT, Licensee’s constitutional claim is not
ripe for our review because he has not applied for, and been denied, an ignition
interlock limited license. As noted above, Section 1556(e) of the Vehicle Code
provides, in pertinent part, “An individual whose operating privilege has been
suspended . . . for a conviction of an offense under [S]ection 3802 . . . shall be
eligible to apply for and, if otherwise qualified, be issued an ignition interlock
limited license upon receipt of notice of the suspension[.]” 75 Pa. C.S. §1556(e).
Additionally, Section 1556(f)(2)(ii) of the Vehicle Code states, in relevant part,
“An individual whose license has been suspended under section 3804(e) . . . shall
be eligible to apply for and, if otherwise qualified, be issued an ignition interlock
limited license . . . if the individual . . . has served six months of the suspension
imposed under section 3804(e)(2)(ii)[.]”        75 Pa. C.S. §1556(f)(2)(ii).   Further,
Section 1556(l)(1) provides, “Any individual who is denied an ignition interlock
limited license . . . may file with [DOT] a petition for a hearing[, which] shall be
conducted in accordance with [the Administrative Agency Law, 2 Pa. C.S. §§501-
508, 701-704] (relating to administrative law and procedure),” and DOT’s
determination in this regard is subject to further review by this Court under Section
1556(l)(4), which states that “[a]n appeal from a decision of an administrative
hearing officer may be taken in the manner provided in [Section 763(a) of the
Judicial Code,] 42 Pa. C.S. §763(a) (relating to direct appeals from government
agencies).” 75 Pa. C.S. §1556(l)(1), (4).
             In Boyle v. Department of Transportation, 617 A.2d 70 (Pa. Cmwlth.
1992), the plaintiff filed a civil action against DOT for personal injuries that he
sustained in a motor vehicle accident. While that action was pending, the plaintiff
also filed a declaratory judgment action in this Court’s original jurisdiction


                                            9
challenging the constitutionality of the limitation on damages provided in Section
8528 of the Judicial Code, 42 Pa. C.S. §8528, as a violation of equal protection.
We sustained DOT’s preliminary objections, determining that the matter was not
ripe for our disposition, stating, “Only if [the plaintiff] receives a final judgment
against DOT in an amount greater than the statutory cap will he be aggrieved and
have standing to challenge the statutes which affect him so.” Id. at 72. See also
Brown v. Pennsylvania Liquor Control Board, 673 A.2d 21, 23 (Pa. Cmwlth.
1996), in which this Court noted:

             While both this court and the trial court have the power
             to determine the statutory limits of liability of
             commonwealth parties, we do not have the ability to
             grant any relief that is merely advisory, one that does not
             involve any case or controversy. Any action, including a
             declaratory judgment action, may not be employed to
             determine rights in anticipation of events which may
             never occur or for consideration of moot cases or as a
             medium for the rendition of an advisory opinion which
             may prove to be purely academic. Gulnac v. South
             Butler School District, [587 A.2d 699, 701-02 (Pa.
             1991)].
             Because Licensee never applied for an ignition interlock limited
license with DOT, and DOT did not deny the application, and DOT’s
determination in this regard was not affirmed on administrative appeal, and then
affirmed by this Court on further appeal, Licensee’s constitutional claim is not ripe
for review. Brown; Boyle. As a result, the trial court did not err in denying
Licensee’s administrative appeal. See Schenck v. Township of Center, 893 A.2d
849, 853 (Pa. Cmwlth. 2006), appeal dismissed, 975 A.2d 591 (Pa. 2009) (holding




                                         10
that this “Court may affirm the trial court for any reason so long as the basis of
[the] decision is clear.”).11

       11
           Moreover, assuming that DOT would have denied Licensee’s application for an
ignition interlock limited license under the Vehicle Code, and that Licensee’s administrative
appeal thereof would have been denied, and that this Court would have affirmed DOT’s
determination on further appeal under the foregoing provisions, the purported classification
excluding licensees convicted of DUI involving an accident causing bodily injury or property
damage does not violate equal protection. As the Pennsylvania Supreme Court has explained:

                       The essence of the constitutional principle of equal
               protection under the law is that like persons in like circumstances
               will be treated similarly. However, it does not require that all
               persons under all circumstances enjoy identical protection under
               the law. The right to equal protection under the law does not
               absolutely prohibit the Commonwealth from classifying
               individuals for the purpose of receiving different treatment, and
               does not require equal treatment of people having different needs.
               The prohibition against treating people differently under the law
               does not preclude the Commonwealth from resorting to legislative
               classifications, provided that those classifications are reasonable
               rather than arbitrary and bear a reasonable relationship to the
               object of the legislation. In other words, a classification must rest
               upon some ground of difference which justifies the classification
               and has a fair and substantial relationship to the object of the
               legislation.

Curtis v. Kline, 666 A.2d 265, 267-68 (Pa. 1995) (citations omitted).

        As that Court also stated, it “has concluded that the suspension of operating privileges
associated with a DUI conviction is a collateral civil consequence of the conviction, and has
repeatedly stated that operating a vehicle is a privilege, not a right.” Probst v. Department of
Transportation, Bureau of Driver Licensing, 849 A.2d 1135, 1144 (Pa. 2004). “Therefore, the
rational basis test is the equal protection standard against which [the ignition interlock
requirements of the Vehicle Code are] to be measured.” Id. The Court explained:

                       In applying the rational basis test, we have adopted a two-
               step analysis. First, we determine whether the challenged statute
               seeks to promote any legitimate interest or public value. If so, we
               then determine whether the classification adopted in the legislation
(Footnote continued on next page…)
                                                11
(continued…)

                is reasonably related to accomplishing that articulated state interest
                or interests. In undertaking this analysis, we are free to
                hypothesize reasons the legislature might have had for the
                classification, and will not declare a genuine classification void
                even if we might question the soundness or wisdom of the
                distinction. Furthermore, we keep in mind that because a
                presumption of constitutionality attaches to any lawfully enacted
                legislation, the burden is upon the party attacking a statute to rebut
                the presumption of constitutionality by a clear, palpable, and plain
                demonstration that the rational basis test is not met.

Id. (citations omitted).

       In Commonwealth v. McCoy, 895 A.2d 18, 35-36 (Pa. Super. 2006), aff’d on other
grounds, 975 A.2d 586 (Pa. 2009), the Pennsylvania Superior Court considered a criminal
defendant’s equal protection challenge to the enhanced penalties in the Vehicle Code for those
convicted of a DUI in which an accident involving bodily injury or physical damage has
occurred. In rejecting this challenge, the court stated:

                        [The defendant] further contends the statute may treat
                offenders with the same [blood alcohol content (BAC)] levels
                differently based upon whether or not they were in an accident
                involving bodily injury or property damage, regardless of whether
                the accident was the individual’s fault. See 75 Pa. C.S.[] §3804(b)
                (providing that an individual who violates [Section] 3802(a),
                General impairment, who would normally be subject to penalties
                found in [Section] 3804(a) General impairment, is placed in the
                “High rate of alcohol” classification under [Section] 3804(b) for
                penalty purposes, “where there was an accident resulting in bodily
                injury, serious bodily injury or death of any person or damage to a
                vehicle or other property. . . .”). Two drivers with the same BAC
                level may then be treated differently, one based upon the negligent
                acts of another. Similarly, [the defendant] contends that [Section]
                3807(d)(3)(iii) increases the length of [an Accelerated
                Rehabilitative Disposition (ARD)] related suspension of driving
                privileges based upon whether there was an accident resulting in
                bodily injury or property damage, regardless of whether the
                accident was the DUI offender’s fault. Surely the essential
                purpose of the DUI legislation is to prevent bodily injury and
(Footnote continued on next page…)
                                                 12
              Accordingly, the trial court’s order is affirmed.




                                            MICHAEL H. WOJCIK, Judge




(continued…)

              property damage caused by drivers under the influence of drugs
              and alcohol. We speculate that the legislature may not have
              imposed a requirement that the DUI offender be determined to be
              at fault for the accident before enhancing penalties based upon an
              accident, because it may have concluded the individual, while not
              technically determined to be at fault, likely shares some of the
              blame due to his intoxicated state. Further, the legislature may not
              have deemed it necessary to engage in that line of inquiry. Put
              simply, if a person drives under the influence of drugs or alcohol
              and is in an accident involving bodily injury or property damage,
              the protection therefrom being the essential purpose of the DUI
              law, then that person has risked the harshest of penalties. Since we
              find these purposes to be genuine, we cannot declare this
              “classification” to be void.

Id.

        Likewise, as applied in the instant matter, it is clear that the General Assembly and DOT
could properly exclude from consideration for an ignition interlock limited license those
individuals involved in an accident in which bodily injury or physical damage occurred. As
indicated, the protection from “an accident involving bodily injury or property damage” is “the
essential purpose of the DUI law,” and is a proper basis upon which to distinguish a convicted
DUI driver or to increase the sanctions imposed. Id. As a result, Licensee’s purported exclusion
from qualifying for an ignition interlock limited license under the Vehicle Code based upon his
DUI conviction in which bodily injury occurred is not void as violating the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution.


                                               13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin J. Lewis,                     :
                                    :
                       Appellant    :
                                    :
             v.                     : No. 180 C.D. 2019
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing          :




                                   ORDER


            AND NOW, this 20th day of April, 2020, the order of the Chester
County Court of Common Pleas dated January 17, 2019, is AFFIRMED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
