[J-69-2023] [MO: Wecht, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

THOMAS E. BOLD, JR.,

 Appellant

 v. 

COMMONWEALTH OF PENNSYLVANIA, 

DEPARTMENT OF TRANSPORTATION, 

BUREAU OF DRIVER LICENSING,

Appellee

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

No. 36 MAP 2023

Appeal from the Order of the 

Commonwealth Court dated 

November 21, 2022 at No. 784 CD 

2020 Reversing the Order of the 

Cumberland County Court of 

Common Pleas, Civil Division, dated 

July 10, 2020 at No. 2020-02043 

Civil Term.

ARGUED: November 29, 2023

DISSENTING OPINION

JUSTICE MUNDY DECIDED: August 20, 2024

In this case, we are asked to consider whether evidence of a vehicle’s movement 

is required to prompt the application of Sections 3802 and 1547 of the Vehicle Code. See 

75 Pa.C.S. § 3802 (relating to driving under influence of alcohol or a controlled 

substance); 75 Pa.C.S. § 1547 (concerning chemical testing to determine the amount of 

alcohol or controlled substance in an individual’s blood). To resolve this query, the Court 

is tasked with discerning the meaning of three triggering phrases contained in both 

statutes: “drive(s),” “operate(s),” and “actual physical control of the movement of a 

vehicle.” See 75 Pa.C.S. § 3802(a)(1)-(2); 75 Pa.C.S. § 1547(a). 

As aptly observed by Justice Dougherty in his concurring opinion, “[t]he triggers 

contained in the current versions of Sections 1547 and 3802 of the Vehicle Code are the 

product of a series of amendments.” Concurring Opinion, at 2. See id. at 2-3 (identifying 

amendments that “changed or added new trigger words”). Despite the evolution of these 
[J-69-2023] [MO: Wecht, J.] - 2 

statutes over time, the majority finds these three distinct terms, “drive,” “operate,” and 

“actual physical control of the movement of a vehicle,” all have the same meaning. See 

Majority Opinion at 24, n.73 (“In our view, this is a rare case where any effort to find 

discrete meanings for patently overlapping terms will be quixotic at best.”). See also id. 

at 13 (“‘Operate’ plainly encompasses ‘driving,’ and arguably subsumes ‘actual physical 

control of the movement of a vehicle’ as well. Once a car moves under a person’s control, 

it clearly has been operated.”). Because I disagree with such a narrow reading of the 

operative language and believe that the well-settled principles of statutory construction 

demand the Court give meaning to each specific term used by the General Assembly, I 

dissent. 

 “As a general rule, the best indication of legislative intent is the plain language of 

a statute.” Commonwealth v. Bradley, 834 A.2d 1127, 1132 (Pa. 2003). In interpreting 

the plain language, “[w]ords and phrases shall be construed according to rules of 

grammar and according to their common and approved usage[.]” 1 Pa.C.S. § 1903(a). 

Established precepts also inform us that we “should construe statutes to give effect to all 

of their provisions, and should not ignore language nor render any portion of the statute 

superfluous.” Frazier v. W.C.A.B. (Bayada Nurses, Inc.), 52 A.3d 241, 245 (Pa. 2012). 

See also 1 Pa.C.S. § 1922; Matter of Emps. of Student Servs., Inc., 432 A.2d 189, 195 

(Pa. 1981) (“Whenever possible each word in a statutory provision is to be given meaning

and not to be treated as surplusage. . . . The clear language of the Act is not to be ignored 

on the pretext of seeking its spirit.”). 

The current version of Section 1547 provides, in relevant part, that 

[a]ny person who drives, operates or is in actual physical control of the 

movement of a vehicle in this Commonwealth shall be deemed to have 

given consent to one or more chemical tests of breath or blood for the 

purpose of determining the alcoholic content of blood or the presence of a 

controlled substance if a police officer has reasonable grounds to believe 

the person to have been driving, operating or in actual physical control of 
[J-69-2023] [MO: Wecht, J.] - 3 

the movement of a vehicle in violation of section . . . 3802 (relating to driving 

under influence of alcohol or controlled substance). 

75 Pa.C.S. § 1547(a). Section 3802 contains similar language, delineating that “[a]n 

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[:]” (1) the person “is 

rendered incapable of safely driving, operating or being in actual physical control of the 

movement of the vehicle[;]” or (2) “the alcohol concentration in the individual’s blood or 

breath is at least 0.08% but less than 0.10% within two hours after the individual has 

driven, operated or been in actual physical control of the movement of the vehicle.” 75 

Pa.C.S. § 3802(a)(1)-(2).

Use of the disjunctive “or” amongst the triggering words is important, as it indicates

that these sections of the Vehicle Code encompass a wide variety of conduct. See, e.g., 

In re Paulmier, 937 A.2d 364, 373 (Pa. 2007) (“The word ‘or’ is defined as a conjunction 

used to connect words, phrases, or clauses representing alternatives. In other words, ‘or’ 

is disjunctive. It means one or the other of two or more alternatives” (citation and some 

quotation marks omitted)). Indeed, the additional language introduced into the statutes 

over time makes “clear that the legislature intended to expressly broaden the scope of” 

these sections of the Vehicle Code. Commonwealth v. Crum, 523 A.2d 799, 801 (Pa. 

Super. 1987). See also Com., Dep’t of Transp., Bureau of Traffic Safety v. Farner, 494 

A.2d 513, 515–16 (Pa. Cmwlth. 1985) (“[T]he governing version here is that of the 1982 

amendment which has expressly added to the operating and driving terms the phrase 

‘actual physical control of the movement of a motor vehicle.’ In accordance with the 

statutory construction principles that effect should be given to all of the words of a law, 

and that earlier judicial interpretations of terms should be heeded when the legislature 

includes those terms in a subsequent statute, this court must conclude that the concept 

of ‘actual physical control’ in the present chemical test section conveys the . . . movements 
[J-69-2023] [MO: Wecht, J.] - 4 

of either the machinery of the motor vehicle or of the management of the movement of 

the vehicle itself, without a requirement that the entire vehicle be in motion.” (internal 

citations omitted)). By finding the three trigger phrases encompass the same conduct, 

the Majority ignores the disjunctive “or” and presumes portions of the statutes to be

superfluous. I simply cannot agree. 

By definition, each term refers to discrete conduct.1 For example, although not 

implicated in this case, in this context, “drive” can best be defined as “to operate the

mechanism and controls and direct the course of (a vehicle).” See www.merriamwebster.com/dictionary/drive, last accessed July 24, 2024. The most obvious illustration

of “drive” is an individual driving a car down a road. “Actual Physical Control” has been

defined as “[d]irect bodily power over something, esp. a vehicle.” ACTUAL PHYSICAL 

CONTROL, Black's Law Dictionary (12th ed. 2024). This definition permits the inference 

that an individual may be in actual physical control of their car even when the engine is 

off, such as when a vehicle is coasting down a hill. See Commonwealth v. Kloch, 327 

A.2d 375, 383 (Pa. Super. 1974) (“A driver has ‘actual physical control’ of his car when 

he has real (not hypothetical), bodily restraining or directing influence over, or domination 

and regulation of, its movements of machinery” (citation omitted)). 

With respect to the final term, as acknowledged by the majority, this Court recently 

had the opportunity to define the word “operation” when reviewing a statute under the 

Tort Claims Act. See Balentine v. Chester Water Auth., 191 A.3d 799 (Pa. 2018). In that 

case, which I authored, the Court considered “whether the Commonwealth Court erred in 

affirming the grant of summary judgment and holding that the involuntary movement of a 

vehicle does not constitute operation of a motor vehicle for purposes of the vehicle liability 

1 “To discern the legislative meaning of words and phrases, our Court has on numerous 

occasions engaged in an examination of dictionary definitions.” Commonwealth v. 

Gamby, 283 A.3d 298, 307 (Pa. 2022). 
[J-69-2023] [MO: Wecht, J.] - 5 

exception to governmental immunity.” Id. at 803. See also 42 Pa.C.S. § 8542(b)(1)

(providing that certain “acts by a local agency or any of its employees may result in the 

imposition of liability on a local agency[,]” including “[t]he operation of any motor vehicle 

in the possession or control of the local agency[.]”). Ultimately, this Court held that

“movement of a vehicle, whether voluntary or involuntary, is not required by the statutory 

language” of Section 8542(b)(1). Id. at 802. 

Here, the majority observes that in reaching this conclusion in Balentine, we 

explained that “[w]here a government vehicle obstructs a roadway, in whole or in part, we 

can assume, absent evidence to the contrary, that a government agent operated the 

vehicle to arrive at that position.” Id. at 809. It is this aside that the majority relies upon 

to assert that Balentine supports its analysis in the case sub judice. 

Preceding this statement in Balentine, however, is a discussion of the word 

“operation” and the application of well-established statutory construction principles. In 

particular, we observed that: 

[b]y defining operation as motion, this Court and the Commonwealth Court 

have created precedent that is contrary to Section 1922(1) of the Rules of 

Construction, which provides that in ascertaining the intention of the 

General Assembly, we may presume that it “does not intend a result that is 

absurd, impossible of execution or unreasonable.” 1 Pa.C.S. § 1922(1). 

Section 8542 states, “a local agency or any of its employees” may be liable 

for “the operation of any motor vehicle in the possession or control of the 

local agency.” 42 Pa.C.S. § 8542(b)(1). Significantly, Section 8542 does 

not require the vehicle to be in motion to impose liability, and we “should not 

add, by interpretation, a requirement not included by the General 

Assembly.” 

Id. Thus, our decision was guided by the plain language of the statute, as opposed to our 

passing remark that the vehicle in question must have been operated by a government 

agent for it to have been parked on a roadway.
[J-69-2023] [MO: Wecht, J.] - 6 

Like the statute at issue in Balentine, there is no language in the aforementioned 

sections of the Vehicle Code that explicitly require a showing of movement of the vehicle

to establish operation. See, e.g., 75 Pa.C.S. § 1547(a) (“Any person who drives, operates 

or is in actual physical control of the movement of a vehicle . . .” (emphasis added)). In 

fact, based on the plain language, the word “operates” necessarily encompasses actions 

not subsumed in the trigger words “drive” or “in actual physical control of the movement 

of a vehicle[,]” as its inclusion would be superfluous otherwise. See Commonwealth. v. 

Mack Bros. Motor Car Co., 59 A.2d 923, 925 (Pa. 1948) (“The legislature cannot, 

however, be deemed to intend that language used in a statute shall be superfluous and 

without import.”). Accordingly, in this context, operate may include management over 

one’s vehicle that does not necessarily include the vehicle’s movement. See MerriamWebster’s Dictionary, www.merriam-webster.com/dictionary/operate, last accessed July 

24, 2024 (defining “operate” as, inter alia, “to perform a function”). Thus, an individual 

may operate a vehicle if they are able to engage in the functions of the car, such as sitting 

in an idling car. See Vinansky v. Com., Dep’t of Transp., Bureau of Driver Licensing, 665 

A.2d 860, 862 (Pa. Cmwlth. 1995) (explaining that under the operative language of 

Section 1547 a police officer “is not required to demonstrate probable cause to believe 

the motorist was actually driving under the influence of alcohol, only that the vehicle was 

under his or her control” (emphasis in original)). 

Turning to the instant matter, an intoxicated Bold was discovered by police 

unconscious behind the wheel of a car parked in a parking lot near a bar. The vehicle’s 

engine was running, and the headlights were on. These facts establish that Bold had 

power over his vehicle as it shows he was in command of the machinery and management 

of his vehicle’s movement, thus prompting the application of aforementioned statutes. 
[J-69-2023] [MO: Wecht, J.] - 7 

This determination is consistent with prior precedent and not in conflict with Banner 

v. PennDOT, 737 A.2d 1203 (Pa. 1999), a case heavily relied upon by the majority. 

Indeed, I find Banner is factually distinguishable, as it involved an individual found 

sleeping in a reclined position in the passenger seat, as opposed to the driver seat, of a 

vehicle. Also, “[a]lthough the keys were in the ignition, the engine was not running and 

the lights were not on.” Banner, 737 A.2d at 1204. Thus, unlike the present matter, there 

was insufficient evidence to establish Banner’s control over the vehicle. See id. at 1207-

08 (acknowledging prior decisions where control over a vehicle was found despite law 

enforcement’s failure to observe the car in motion).

My interpretation of the at-issue statutes also comports with the General 

Assembly’s lofty goal of keeping roads in this Commonwealth safe. See Commonwealth 

v. Guthrie, 616 A.2d 1019, 1021 (Pa. Super. 1992) (observing, in the context of an 

unrelated DUI statute, “the legislature’s broad response to the serious problem of 

intoxicated drivers. The economic losses, social disruptions and personal tragedies 

resulting from drunk driving are well documented and the subject of increasing public 

awareness”). It seems incongruent with the spirit of DUI laws that police must wait for an 

intoxicated individual to enter the roadway to effectuate an arrest when it is otherwise 

clear that the person is operating or in actual physical control of their vehicle. 

For these reasons, I would hold that the triggering word “operate(s)” does not 

require evidence of movement but can be satisfied by exhibiting power over one’s

automobile. As I believe the evidence was sufficient in this case to establish Bold’s 

operation of the vehicle, I dissent.