           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William M. Lore,                        :
                         Appellant      :
                                        :
            v.                          :   No. 392 C.D. 2015
                                        :   Submitted: July 24, 2015
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing              :



BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: August 27, 2015

            Appellant William Lore (Lore) appeals from an order of the Court of
Common Pleas of Lehigh County (trial court). The trial court denied Lore’s
statutory appeal from the two-year suspension of his license by the Pennsylvania
Department of Transportation (DOT). We affirm the trial court’s order.
            On January 21, 2014, Lore was convicted of two separate charges of
violating Section 13(a)(30) of the Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. § 780-113(a)(30) (Drug Act).        The two charges and
convictions related to Lore’s sale of marijuana on January 6, 2011, and
January 20, 2011.1 On March 27, 2014, DOT mailed two separate notices of
suspension to Lore. The first notice advised Lore that DOT was suspending his
license for a one-year period, effective May 1, 2014, based on the conviction for
the January 6, 2011 drug sale. The second notice advised Lore that DOT was
suspending his license for an additional one-year period, effective May 1, 2015,
based on the conviction for the January 20, 2011 drug sale. This notice also
advised Lore that the suspension “is in addition to any other suspension already on
your record,” i.e., the one-year suspension effective May 1, 2014 imposed for the
January 6, 2011 drug sale conviction. DOT based its determination of the length
of suspension on Section 1532(c) of the Vehicle Code, 75 Pa. C.S. § 1532(c),
which provides for enhanced suspensions where a licensee has had previous
convictions for certain crimes under the Drug Act. Lore had a previous drug-
related adjudication as a juvenile, for which he had also received a six-month
license suspension in 2003. (R.R. at 11a.)
               Lore appealed both suspension notices, and the trial court conducted a
hearing. During the hearing, DOT introduced a packet of certified exhibits, which
included certified copies of Lore’s juvenile conviction and suspension and the
more recent 2014 convictions and suspensions. (R.R. at 1a-18a.) Lore testified
regarding the circumstances surrounding his 2014 convictions. Lore testified that
with both charges he “walked into the same house and met the same individual and
delivered marijuana to him.” (R.R. at 25a.) The individual to whom Lore sold the

       1
         As indicated in the colloquy during the trial court’s hearing, the certification of the dates
of the violations were mistakenly identified as one day earlier than the dates on the criminal
informations related to the violations. The parties appear to agree that the violations occurred on
January 6, 2011 and January 20, 2011, rather than January 5, 2011 and January 19, 2011.
(Reproduced Record (R.R.) at 23a-24a.)



                                                  2
marijuana was an undercover officer with the Lehigh County Drug Task Force.
(R.R. at 26a.)
               In argument before the trial court, Lore’s counsel did not dispute the
fact of Lore’s convictions, but argued that DOT should not have regarded the two
convictions as separate convictions for the purpose of suspension of Lore’s license.
Additionally, Lore’s counsel argued that Section 1532(c)(2) of the Vehicle Code,
the statutory provision under which DOT imposed the suspension, is ambiguous,
such that DOT should not have imposed a two-year consecutive suspension. The
trial court rejected Lore’s legal arguments, and he appealed to this Court.
               In this appeal,2 Lore raises the same two issues:                  (1) whether
Section 1532(c)(2) of the Vehicle Code creates an ambiguity regarding the impact
on suspension terms resulting from a juvenile adjudication, such that DOT should
not have applied the suspension enhancements described in that provision; and
(2) whether the two 2014 convictions constitute the same criminal episode, such
that DOT was not authorized to impose separate suspensions for the two
convictions.
               Section 1532(c) of the Vehicle Code provides:
               (c) Suspension.—The department shall suspend the
               operating privileges of any person upon receiving a
               certified record of the person’s conviction of any offense
               involving the 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

       2
          Our standard of review on appeal from a final determination of the trial court in an
operating privilege suspension appeal is limited to determining whether the necessary findings of
fact are supported by competent evidence, whether the trial court committed an error of law, or
whether the trial court manifestly abused its discretion. Hatalski v. Dep’t of Transp., Bureau of
Driver Licensing, 666 A.2d 386 (Pa. Cmwlth. 1995).



                                               3
             other state, or any person 21 years of age or younger
             upon receiving a certified record of the person’s
             conviction or adjudication of delinquency under 18 Pa.
             C.S. § 2706 (relating to terroristic threats) committed on
             any school property, including any public school
             grounds, during any school sponsored activity or on any
             conveyance providing transportation to a school entity or
             school-sponsored activity.
                   (1) The period of suspension shall be as
                   follows:
                       (i) For a first offense, a period of six
                       months from the date of the
                       suspension.
                       (ii) For a second offense, a period of
                       one year from the date of the
                       suspension.
                       (iii) For a third offense and any
                       subsequent offense thereafter, a
                       period of two years from the date of
                       suspension.
                   (2) For the purposes of this subsection, the
                   term “conviction” shall include any
                   conviction or adjudication of delinquency
                   for any of the offenses listed in paragraph
                   (1), whether in this Commonwealth or any
                   other Federal or state court.

(Emphasis added.)
             Lore argues that the italicized reference to paragraph “(1)” renders
Section 1532(c)(2) ambiguous. Lore contends that the only paragraph that is
designated as “(1)” does not include a list of offenses. Lore asserts, therefore, that
the Court should interpret the provision in the manner most favorable to him. In so
doing, Lore urges the Court to conclude that the enhanced suspension aspects of
Section 1532(c) of the Vehicle Code should not apply to him.



                                          4
             DOT argues that the provision is not ambiguous, and that, even if the
Court agrees that Section 1532(c)(2) is ambiguous, the proper and only reasonable
interpretation is that the reference to paragraph (1) means the specific offenses
identified in the first paragraph of Section 1532(c) of the Vehicle Code.
             In Klinger v. Department of Transportation, Bureau of Driver
Licensing, 856 A.2d 280 (Pa. Cmwlth. 2004), this Court noted that Subsection (c)
of Section 1532 of the Vehicle Code “establishes the list of offenses that require a
license suspension . . . arising from convictions” under the Drug Act. Klinger, 856
A.2d at 283.     In Klinger, the Court considered a licensee’s challenge to a
suspension based upon the General Assembly’s use of the word “conviction” in
Section 1532(c)(2) of the Vehicle Code, arguing that his guilty plea did not
constitute a conviction for the purpose of license suspension. In that discussion,
we noted
             that (c)(2) references the offenses listed in subparagraph
             (1), but that subparagraph (1) does not list any offenses.
             Despite this error, it seems clear that (c)(2) means to
             reference the offenses listed in the introductory portion of
             (c). As the language of (c)(2), in large measure mirrors
             portions of this introductory Section, we read the two
             Sections together.

Id.   Similarly, in Keim v. Department of Transportation, Bureau of Driver
Licensing, 887 A.2d 834 (Pa. Cmwlth. 2005), where a licensee challenged a
suspension based on the claim that the specific crime of which he was convicted
(relating to the manufacture of a controlled substance as opposed to the sale or
delivery of a controlled substance) was not listed in the preamble paragraph of
Section 1532(c) of the Vehicle Code, we noted that in Klinger we had concluded
that the General Assembly’s “intent was to refer to the offenses listed in the
introductory portion of subsection (c).” Keim, 887 A.2d at 838.

                                          5
            As suggested by the discussion in those decisions, this Court has
acknowledged the reference in Subsection (c)(2) to subparagraph (1) to be a
mistaken reference to the preamble paragraph of Section 1532(c) of the Vehicle
Code. Although the Court may not have specifically addressed the question of
whether the provision creates an ambiguity that requires the Court to engage in
statutory construction, it is clear that the Court has considered the mistaken
reference and concluded that the reference is an error in legislative drafting, and
that the meaning of Subsection (c)(2) is nevertheless clear. Thus, even if the
provision contains an ambiguity, we have concluded that the General Assembly’s
intent was obvious and that the reference to paragraph (1) is meant to refer to the
preamble, un-numbered initial paragraph of Section 1532(c) of the Vehicle Code.
Consequently, we conclude that the trial court did not err in rejecting this
argument.
            Lore also contends that the trial court erred in concluding that the two
convictions constituted separate criminal episodes for the purpose of application of
the suspension enhancement of Section 1532(c) of the Vehicle Code. Relying
upon Freundt v. Department of Transportation, Bureau of Driver Licensing,
883 A.2d 503 (Pa. 2005), Lore argues that the two convictions arose out of a single
criminal episode and, thus, could not support DOT’s two-year suspension of Lore’s
license.
            In Freundt, the licensee had been charged and convicted of
misappropriating drugs from her employer over a period of several months. The
Court reasoned that the conduct constituted a single episode based upon the fact
that the employer could not conclusively demonstrate the particular dates of the




                                         6
misappropriations and the criminal charges did not specify different dates for the
discrete drugs the licensee had taken.
               On the other hand, this Court has held that DOT has an initial burden
to submit evidence showing that convictions arose from conduct on different dates,
and a licensee may seek to demonstrate that the charges were part of a single
criminal episode. Gregg v. Dep’t of Transp., Bureau of Driver Licensing, 851
A.2d 253, 256 (Pa. Cmwlth. 2004). We have also held that “where separate acts
occur on different dates, they are separate offenses for the purpose of Section
1532(c).” Giambrone v. Dep’t of Transp., Bureau of Driver Licensing, 929 A.2d
1265, 1269 (Pa. Cmwlth. 2007), (holding that DOT properly imposed suspensions
on licensee who fraudulently obtained prescription medications on separately
identifiable dates using different aliases), appeal denied, 945 A.2d 173 (Pa. 2008).
Thus, we cannot conclude that the trial court erred in concluding that the two
convictions constituted separate criminal episodes where the convictions were
based on separate sales of a controlled substance on different dates.3




       3
          We note that our Supreme Court has recently addressed the application of the merger
doctrine to license suspensions under other subsections of Section 1532 of the Vehicle Code, but
has not overruled the basic notion that the single criminal episode doctrine applies to suspensions
imposed under Section 1532(c) of the Vehicle Code. Bell v. Dep’t of Transp., Bureau of Driver
Licensing, 96 A.3d 1005, 1019-1020 n.18 (Pa. 2014) (explaining that Supreme Court did “not
re-examine the single criminal episode analysis as it has been employed in the context of
Section 1532(c), because DOT has not questioned herein the propriety of its application to
operating privilege suspensions that arise from convictions under [the Drug Act].”).
Accordingly, our decisions analyzing the issue of whether the convictions upon which DOT has
imposed enhanced suspensions constitute multiple criminal episodes or a single criminal episode,
as in Gregg and Giambrone, remain applicable.



                                                7
Accordingly, we affirm the order of the trial court.




                   P. KEVIN BROBSON, Judge




                             8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William M. Lore,                     :
                      Appellant      :
                                     :
           v.                        :   No. 392 C.D. 2015
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :


                                  ORDER


           AND NOW, this 27th day of August, 2015, the order of the Court of
Common Pleas of Lehigh County is AFFIRMED.




                            P. KEVIN BROBSON, Judge
