                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sarah Martini,                                 :
                             Appellant         :
                                               :
              v.                               :
                                               :
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :   No. 969 C.D. 2016
Bureau of Driver Licensing                     :   Submitted: November 18, 2016



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: February 14, 2017

              Sarah Martini (Licensee) appeals from the Dauphin County Common
Pleas Court’s (trial court) May 18, 2016 order dismissing her appeal and reinstating
the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing’s (Department) operating privilege suspension. The sole issue before this
Court is whether the trial court erred by holding that Licensee’s 2010 violations for
driving under the influence of alcohol or a controlled substance (DUI) under Section
3802(a)(1) of the Vehicle Code,1 and leaving the scene of an accident involving
damage under Section 3743 of the Vehicle Code2 (Leaving the Scene), were “separate



       1
          75 Pa.C.S. § 3802(a)(1). Section 3802(a)(1) of the Vehicle Code prohibits driving under
the influence of alcohol “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.” Id.
        2
          75 Pa.C.S. § 3743. Section 3743 of the Vehicle Code provides:
acts” which, along with Licensee’s subsequent 2014 violation of Section 3802(c) of
the Vehicle Code for DUI – highest rate of alcohol,3 mandated a five-year suspension
of her driver’s license pursuant to Section 1542 of the Vehicle Code.4 After review,
we affirm.


              (a) General rule.--The driver of any vehicle involved in an accident
              resulting only in damage to a vehicle or other property which is
              driven or attended by any person shall immediately stop the vehicle at
              the scene of the accident or as close thereto as possible but shall
              forthwith return to and in every event shall remain at the scene of the
              accident until he has fulfilled the requirements of [S]ection 3744 [of
              the Vehicle Code] (relating to duty to give information and render
              aid). Every stop shall be made without obstructing traffic more than
              is necessary.

              (b) Penalty.--Any person violating this section commits a
              misdemeanor of the third degree, punishable by a fine of $2,500 or
              imprisonment for not more than one year, or both.
75 Pa.C.S. § 3743.
       3
         75 Pa.C.S. § 3802(c). Section 3802(c) of the Vehicle Code prohibits driving under the
influence of alcohol “after imbibing a sufficient amount of alcohol such that the alcohol
concentration in the individual’s blood or breath is 0.16% or higher within two hours after the
individual has driven, operated or been in actual physical control of the movement of the vehicle.”
Id.
       4
         75 Pa.C.S. § 1542. Section 1542 of the Vehicle Code states, in relevant part:

              (a) General rule.-- The [D]epartment 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 [D]epartment, 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:

                   (1) Any violation of Subchapter B of Chapter 37 (relating to
                   serious traffic offenses).
                                                2
              On December 3, 2010,5 Licensee was involved in an incident for which
she was convicted of DUI, and Leaving the Scene on November 23, 2011. Licensee
was again arrested for DUI on March 30, 2014, and was convicted thereof on October
8, 2014.
              By October 30, 2014 letter, the Department notified Licensee that she
had been designated a habitual offender because she had been convicted of three
specified Vehicle Code violations within a five-year period and, as a result, her
operating privileges were suspended for five years. On November 18, 2014, Licensee
appealed from the suspension to the trial court. The trial court held a hearing on July
30, 2015. On May 18, 2016, the trial court dismissed Licensee’s appeal because
Licensee’s December 3, 2010 violations were separate and distinct offenses resultant
in Licensee accumulating the requisite three convictions within five years under
Section 1542 of the Vehicle Code. Licensee appealed to this Court.6

                   (1.1) Any violation of Chapter 38 (relating to driving after
                   imbibing alcohol or utilizing drugs) except for [S]ections
                   3808(a)(1) and (b) [of the Vehicle Code] (relating to illegally
                   operating a motor vehicle not equipped with ignition
                   interlock) and 3809 [of the Vehicle Code] (relating to
                   restriction on alcoholic beverages).

                   ....

                   (4) Any violation of [S]ection 3743 [of the Vehicle Code]
                   (relating to accidents involving damage to attended vehicle
                   or property).
75 Pa.C.S. § 1542.
       5
         Although the conviction report for leaving the scene of an accident references a violation
date of December 2, 2010, Licensee asserts, and the Department does not contest, that both
convictions arose from the same incident which occurred on December 3, 2010.
       6
               Our scope of review in reviewing an appeal of a license suspension by
               the Department after a de novo hearing by the trial court is limited to
               whether constitutional rights were violated or whether the trial court
               abused its discretion or committed an error of law. As no material
               facts are in dispute in the instant appeal . . . , only questions of law are
               before this Court and our scope of review is plenary.
                                                 3
              Licensee argues that her

            DUI and [Leaving the Scene] are inseparably a part of the
            same act. She was committing the DUI before, during and
            after the commission of [Leaving the Scene], meaning that
            each of those charges cannot be used to characterize
            [Licensee] as a repeat offender.
Licensee’s Br. at 4. We disagree.
              In support of her position, Licensee relies on Frontini v. Department of
Transportation, 593 A.2d 410 (Pa. 1991). In that case, after the licensee’s vehicle
struck another vehicle, killing its three occupants, the licensee pled guilty to DUI,
reckless driving and three counts of homicide by motor vehicle. Thereafter, the
Department suspended the licensee’s license for one year on the DUI conviction, and
revoked his license for an additional year based on the first homicide by vehicle
conviction. The Department then imposed an additional five-year revocation based
upon the second homicide by vehicle conviction, and an additional two-year
revocation for the third homicide by vehicle conviction. On appeal, the common
pleas court sustained the Department’s penalty imposition, and this Court affirmed,
relying on Department of Transportation, Bureau of Traffic Safety v. Frye, 489 A.2d
984 (Pa. Cmwlth. 1985), aff’d, 523 A.2d 332 (Pa. 1987).7 Our Supreme Court,


Phillips v. Dep’t of Transp., Bureau of Driver Licensing, 80 A.3d 561, 566 (Pa. Cmwlth. 2013)
(citation omitted).
        7
           In Frye, this Court upheld a lower court’s affirmance of a five-year suspension, and
reversed the lower court’s nullification of an additional two-year revocation where a licensee
committed four serious Vehicle Code violations in a single night. The Court rejected the licensee’s
contention that the five-year revocation applies only where the applicable offenses occur “on three
separate, unconnected points in time.” Id. at 985. The Court further explained:
              This Court has consistently held that the five-year habitual offender
              revocation takes effect whenever there are three convictions on
              Section 1542(b) [of the Vehicle Code] offenses, regardless of whether
              these offenses are committed within a narrow time frame or on
              separate occasions. This line of cases is firmly grounded on the
              legislature’s clear intent to classify as a habitual offender a driver who
              commits three enumerated violations ‘either singularly or in
                                                  4
however, reversed. Noting that Section 1542 of the Vehicle Code is a recidivist
statute, the Court explained:

               Recidivist statutes serve the legitimate public policy of
               segregating from society those persons with propensities to
               commit crime, who by their repeated criminal acts
               demonstrate their unwillingness or inability to be
               rehabilitated.
               In the present case we have an individual, who by a single
               act caused multiple consequences. The propriety of the
               multiple criminal sanctions he must suffer as a result of that
               act is without question. However, for the purpose of a
               recidivist penalty it would be unjust, and in derivation of
               the intent of the statute, to separate out the consequences of
               this one act in order to categorize this individual as a person
               with a propensity to commit repeated offenses. Wherefore,
               we find the three convictions for homicide by vehicle,
               having resulted from a single act, are not to be considered
               as separate offenses for the purpose of classifying this
               appellant as an habitual offender pursuant to [Section 1542
               of the Vehicle Code,] 75 Pa.C.S. § 1542.


               combination’ (emphasis added). Neither the common usage of the
               word ‘habitual’ nor the statements of individual legislators can
               supplant this unambiguous expression of the General Assembly’s
               will.
Frye, 489 A.2d at 985 (citation and footnote omitted).

               On December 12, 1994, the Legislature amended subsection (b) of
               [Section 1542 of the Vehicle Code,] 75 Pa.C.S. § 1542, effective
               September 12, 1995, by deleting the ‘either singularly or in
               combination’ language.       The operative phrase ‘separate acts’
               remained part of Section 1542(b) [of the Vehicle Code]. Although
               the language of Section 1542(b) [of the Vehicle Code] relied upon in
               Frye was deleted, we may rely on Frye because it has been cited with
               approval in subsequent cases dealing with the interpretation of the
               ‘separate acts’ language of Section 1542(b) [of the Vehicle Code].
               See Frontini, . . . 593 A.2d at 412 n.5[;] Hill v. Dep[’t] of Transp[.],
               Bureau of Driver Licensing, . . . 650 A.2d 1131 ([Pa. Cmwlth.] 1994).
McGowan v. Dep’t of Transp., Bureau of Driver Licensing, 699 A.2d 1344, 1347 n.7 (Pa. Cmwlth.
1997).
                                                  5
Frontini, 593 A.2d at 412 (footnote omitted).
             Licensee argues that the Frontini Court’s rationale
             mandates that her December 3, 2010 conduct be treated as a
             single episode, rather than as separate acts because doing so
             would ignore the intention of the legislature to sanction
             repeat offenders. The ‘separate acts’ language of [Section]
             1542(b) [of the Vehicle Code] refers to a separation of time
             and space, rather than a distinction in elements, because it
             must be read together with [Section] 1542(a) [of the
             Vehicle Code] and its ‘separate and distinct’ language. The
             fact that this is a recidivist section makes that the only way
             it can be interpreted.

Licensee’s Br. at 5.
             However, the Frontini Court stressed that Frye was inapposite, stating
“[w]e find the facts in the instant case to be completely distinguishable from those in
Frye, where the [licensee] committed a series of separate and distinct acts within a
narrow time frame.” Frontini, 593 A.2d at 412 n.5 (emphasis added). Frontini is
also distinguishable from the instant matter. In Frontini, one act resulted in three
homicide by vehicle convictions. By contrast, Licensee here committed two different
violations on December 3, 2010 that involved separate and distinct acts. The first
involved DUI, and the second involved leaving the scene of an accident.
             In Ross v. Department of Transportation, Bureau of Driver Licensing,
557 A.2d 62 (Pa. Cmwlth. 1989), a licensee drove an all-terrain vehicle (ATV) on
public streets in the evening without lights. He was observed by a police officer who
stopped him and arrested him for driving without lights and for fleeing or attempting
to elude a police officer. The licensee pled guilty to the charges. The Department
notified the licensee that his operating privileges would be revoked for five years
since he already had committed an offense within the prior five years. The licensee
appealed to the trial court which concluded that the two violations involving the ATV
were separate acts. On appeal, this Court first explained:


                                           6
              [T]he requirement that the convictions arise from ‘separate
              acts[]’ [b]asically . . . means that although all three
              [Vehicle] Code violations may be committed in
              combination in the course of one general factual episode,
              the driver must also have done three completely
              different improper things which led to those [Vehicle]
              Code violations in order to be considered a habitual
              offender.

Id. at 63 (emphasis added). This Court reviewed the subject offenses and concluded
that

              [the] offense [of fleeing or attempting to elude a police
              officer] must involve an act other than driving without
              lights. Therefore, in order to be convicted of this offense,
              the driver must do something more than drive his vehicle
              without turning on the lights. This is especially evident
              from the added component of a pursuing police vehicle.
              This definition suggests that, despite the [licensee’s]
              testimony, he had to be doing something to attempt to get
              away from the officer after being signaled by him, and was
              not merely attempting to drive through the neighborhood
              undetected. Therefore, by pleading guilty to this offense,
              the [licensee] admitted to committing two separate acts, and
              the requirements of Section 1542 [of the Vehicle Code]
              have been met.

Id. at 64.8
              In contrast, in Hill v. Department of Transportation, Bureau of Driver
Licensing, 650 A.2d 1131 (Pa. Cmwlth. 1994), a licensee was involved in a single
incident in which the licensee struck another vehicle while driving under the
influence of alcohol. The vehicle that the licensee struck, then struck a third vehicle,
injuring its occupant. Licensee was convicted of: (1) leaving the scene of an accident
involving death or injury; (2) leaving the scene of an accident involving damage to a
vehicle; and (3) DUI. The Department suspended the licensee’s license for six

       8
         Although Ross was decided before Frontini, this Court in McGowan v. Department of
Transportation, Bureau of Driver Licensing, 699 A.2d 1344 (Pa. Cmwlth. 1997), relied on Ross in
reaching its decision.
                                              7
months for the first conviction, one year for the second conviction, and five years for
the third conviction, and designated the licensee as a habitual offender under Section
1542 of the Vehicle Code. On appeal, the licensee argued that he committed two
acts, rather than three. This Court agreed, finding that the licensee committed one act
when he drove while intoxicated, and one act when he left the scene of the accident.
This Court explained:

            We disagree with [the Department’s] assertion that two
            separate acts occurred when 1) [the licensee] hit one
            vehicle, and 2) when, a split-second later, [the licensee]
            pushed that vehicle into another vehicle. First, the
            convictions here were for leaving the scene of an accident
            in which one is involved. Second, we simply think [the
            Department’s] assertion is facially too fine of a distinction,
            particularly in view of the statute and Frontini. We also
            conclude that the cases [the Department] cites are
            distinguishable.      As we have stated, Brewster [v.
            Department of Transportation, 415 A.2d 922 (Pa. Cmwlth.
            1980)] involved the argument that all offenses arising from
            a single incident, rather than act, constitute only one offense
            for purposes of [S]ection 1542 [of the Vehicle Code].
            Moreover, the [licensee] there committed what, in contrast
            to this case, are arguably three separate acts—driving
            under the influence of alcohol, fleeing police and leaving
            the scene of an accident involving property damage.
            Similarly, the [licensee] in Melcher v. Commonwealth, . . .
            428 A.2d 773 ([Pa. Cmwlth.] 1981) committed the acts of
            racing on highways, fleeing police and driving without
            lights to avoid identification. The Supreme Court in
            Frontini distinguished [Frye], stating that the [licensee] in
            Frye committed a series of separate and distinct acts within
            a narrow time frame. In [Ross], the [licensee] had a prior
            conviction before being convicted for what was determined,
            after close examination of the elements involved in each
            offense, to be distinct acts of driving without lights to avoid
            identification and fleeing a police officer. In Weaver v.
            Department of Transportation, Bureau of Traffic Safety, . . .
            416 A.2d 628 ([Pa. Cmwlth.] 1980), the [licensee]
            committed within ten minutes the acts of [DUI], fleeing
            police and leaving the scene of an accident involving

                                          8
             property damage. All of these cases involve distinctions in
             action rather than factual result, and certainly involve
             greater distinctions than causing injury to a person in one
             car but only causing damage to another. All of these cases,
             except Ross, predate Frontini.
             We conclude that the two convictions in this case based on
             the act of leaving the scene of an accident are directly
             analogous to the situation in Frontini, wherein the
             [licensee], with one act, committed three counts of
             homicide by motor vehicle and received three convictions
             and three sentences thereon.

Hill, 650 A.2d at 1134 (emphasis added; footnote omitted).
             Here, consistent with Hill’s discussion of Brewster, Licensee committed
“separate acts—[DUI], . . . and leaving the scene of an accident involving property
damage.”    Hill, 650 A.2d. at 1134.     Licensee drove while intoxicated and was
involved in an accident. Then, in a separate action, she left the scene of the accident.
She was charged and convicted accordingly. Because these are “separate and distinct
offenses” arising from separate and independent acts, the Department and the trial
court appropriately treated them as such. 75 Pa.C.S. § 1542.
             We reject Licensee’s argument that the recidivist nature of the statute
should override the statute’s plain language. The same contention was explicitly
rebuffed in West v. Department of Transportation, Bureau of Driver Licensing, 685
A.2d 649 (Pa. Cmwlth. 1996), wherein this Court explained:

             Section 1542 [of the Vehicle Code] contains no ambiguity.
             Its language is clear and allows the Department no
             discretion in imposing a license revocation when an
             operator meets the very plainly described criteria for a
             habitual offender. This clarity of language and purpose has
             been noted by our Supreme Court:
                   Under Section 1542 of the Vehicle Code . . .
                   [the Department] is required to revoke the
                   operating privilege of any person whose
                   driving record meets criteria defining a
                   habitual offender. Revocation is mandatory,
                                           9
                      not discretionary. . . . Given three convictions
                      within the prescribed time period, revocation
                      [is] required.
              Commonwealth v. Bursick, . . . 584 A.2d 291, 293-94 ([Pa.]
              1990) (emphasis in original). Moreover, even where
              legislation demonstrates a ‘recidivist philosophy,’ that
              philosophy cannot ‘be exalted over the plain language of
              the statute.’ Brosius [v. Dep’t of Transp., Bureau of Driver
              Licensing], 664 A.2d [199,] 201 [(Pa. Cmwlth. 1995)].
              ‘Where there is no ambiguity, there is no room for
              interpretation.’ Commonwealth v. Williams, . . . 652 A.2d
              283, 285 ([Pa.] 1994).

West, 685 A.2d at 651 (bold emphasis added); see also Deliman v. Dep’t of Transp.,
Bureau of Driver Licensing, 718 A.2d 388 (Pa. Cmwlth. 1998).9
              For all of the above reasons, the trial court’s order is affirmed.


                                            ___________________________
                                            ANNE E. COVEY, Judge




       9
         Although the incidents in West and Deliman are factually distinguishable, the rationale is
applicable since the statutory language is clear.
                                                10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sarah Martini,                        :
                       Appellant      :
                                      :
            v.                        :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :   No. 969 C.D. 2016
Bureau of Driver Licensing            :



                                   ORDER


            AND NOW, this 14th day of February, 2017, the Dauphin County
Common Pleas Court’s May 18, 2016 order is affirmed.


                                   ___________________________
                                   ANNE E. COVEY, Judge
