IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert R. Ribnicky : : : No. 541 C. D. 201 9

v. : : Submitted: October 11 , 201 9 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 D epartment 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

V ermillion, Ohio Municipal Court (Municipal Court) issued an order stating that Licensee’s Ohio driving privileges were suspended. (R.R. at 5a, 9a.) Thereafter, o n2

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” box es next to the questions of whether he (1) had “pending criminal c harges 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(NDR) maintains and provides the personal identification of in dividuals by state, whose driving p rivilege[s] [are] withdrawn” and that DOT uses the “NDR to check all of [its] new driver license applications.”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 perso nal 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 re cord 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 dupl icate driver’s license. (R.R. at 26a.) DOT ’s representative also stated that “in Ohio when a driver is stopped3

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 h ave 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 43 a .)

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 t rial 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 c onstrained
to follow that case. (Trial court op. at 1.) Therefore, the trial court requested that the
Commonwealth Co urt reverse its previous order. Id. The trial court also held that DOT4

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 f ollow
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 privileg es were suspended in Ohio. DOT argues that it complied with f

ederal 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 pr operly denied License e ’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 req uest 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:

T he chief driver licensing official of a participating State shall su bmit an inquiry to [] the NDR . . . for each driver license applicant before issuing a license to tha t 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 t rial 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).5

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, 12 52 (Pa. Cmwlth. 2009). Thus, “[f] ederal law requires DOT to check the NDR prior t o 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 per son . . . [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 exc eption 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 th at 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

. R elying on the Pennsylvania and f

ederal statutes and regulations cite d above, w e 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]6

NDR report stating that he [was] eligible for licensing in New York and New Jersey.”
Id. ; see also Fowler , 2 A.3d at 1286 (hol ding that because a n NDR inquiry showed that licensee’s Florida driving privileges were suspended, DOT properly denied the
licens ee’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 li censee’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 driv ing 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 a n 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 driv ing privileges were suspended.

B ecause Licen s ee’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, i ssued the licensee a temporary internet driver’s license, and instructed the licensee that he would receive a “cam era 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, h e misplaced it and then sought7

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 alrea dy 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 c onclusion 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 onl y 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. §1 327.5(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 mand ated a n NDR inquiry under the federal regulations. See 23 C.F.R. §1327.5(b) (explicitly requiring a n 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 affec t his already granted Pennsylvania driving privileges and did not trigger a n NDR inquiry

. Thus, unlike here, where Licensee ’ s application required DOT to conduct a n 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.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 21 st day of January , 20 20 , the order of the Court of Common Pleas of Westmoreland County, dated April 18, 2019, is hereby reversed.

________________________________ PATRICIA A. McCULLOUGH, Judge