IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michele Kapalko, :

Appellant :

:

v. : No. 1912 C.D. 2015

: Submitted: July 15, 2015

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: September 20, 2016 

Appellant Michele Kapalko (Kapalko) appeals from an order of the 

Court of Common Pleas of Fayette County (trial court). The trial court denied 

Kapalko’s statutory appeal from the five-year suspension of her license by the 

Pennsylvania Department of Transportation (DOT). We affirm the trial court’s 

order.

The facts underlying the instant appeal are not in dispute. On 

March 26, 2010, Kapalko accepted Accelerated Rehabilitative Disposition (ARD)

for a violation of Section 3802(c) of the Vehicle Code, 75 Pa. C.S. § 3802(c) 

(driving under the influence of alcohol or a controlled substance (DUI) - highest 

rate of alcohol). Kapalko was later convicted of violating Section 3802(b) of 

the Vehicle Code, 75 Pa. C.S. § 3802(b) (DUI - highest rate of alcohol), on 
2

April 27, 2011. On May 2, 2013, Kapalko was convicted on three separate 

charges: (1) driving with a suspended license - DUI related,1(2) careless driving,2

and (3) DUI - highest rate of alcohol.3 As a result of those convictions, DOT 

notified Kapalko that her license would be suspended for the following terms: (1) 

one year for driving with a suspended license, (2) fifteen days for careless driving, 

and (3) eighteen months for DUI - highest rate of alcohol. Kapalko surrendered 

her license and began serving her suspension on September 12, 2013. Kapalko did 

not appeal the initial suspension of her license. On May 29, 2015, DOT notified 

Kapalko that, as a result of her May 2, 2013 conviction for driving with a 

suspended license, it was revoking her license for a period of five years beginning 

on September 12, 2013, pursuant to Section 1542 of the Vehicle Code, 75 Pa. 

C.S. § 1542, often referred to as the habitual offender statute.4 

On June 18, 2015, Kapalko filed with the trial court a timely notice of 

statutory appeal from the five-year license revocation. Kapalko argued that the 

original one-year suspension was final, and thus a new suspension for the same 

conviction was barred by principles of res judicata or that the delay in the 

imposition of the five-year suspension was unreasonable. The trial court

conducted a hearing on the appeal on August 19, 2015. At the hearing, DOT noted 

that its internal records-keeping system had failed to count Kapalko’s new 

 

1

75 Pa. C.S. § 1543(b)(1.1).

2

75 Pa. C.S. § 3714(a).

3

75 Pa. C.S. § 3802(c).

4 On that same day, DOT sent additional notices to Kapalko relating to her fifteen day 

and eighteen month suspensions. These additional notices coordinated the commencement dates 

for those suspensions with her five-year revocation. 
3

conviction toward her status as a habitual offender as defined by Section 1542 of 

the Vehicle Code, 75 Pa. C.S. § 1542. By opinion and order dated 

August 31, 2015, the trial court denied Kapalko’s license revocation appeal.

Kapalko appealed to this Court. 

On appeal, Kapalko raises one issue: whether DOT’s second sanction 

of five years for the same violation is barred by principles of res judicata or 

collateral estoppel.5 

Section 1542 of the Vehicle Code, 75 Pa. C.S. § 1542, requires DOT

to revoke the operating privilege of habitual Vehicle Code offenders. That section 

provides, in pertinent part:

(a) General rule. — The department 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 department, 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:

 

5 Our scope of review in licensing appeals is limited to determining whether the trial 

court’s findings were supported by competent evidence or whether the trial court committed an 

error of law or abused its discretion. Department of Transp., Bureau of Traffic Safety v. 

O’Connell, 555 A.2d 873, 875 (Pa. 1989). When only questions of law are presented, our review 

is plenary. Deliman v. Dep’t of Transp., Bureau of Driver Licensing, 718 A.2d 388, 389 n.1

(Pa. Cmwlth. 1998).
4

(1) Any violation of Subchapter B of Chapter 37 (relating 

to serious traffic offenses).

(1.1) Any violation of Chapter 38 (relating to driving 

after imbibing alcohol or utilizing drugs) except for 

sections 3808(a)(1) and (b) (relating to illegally operating 

a motor vehicle not equipped with ignition interlock) and 

3809 (relating to restriction on alcoholic beverages).

(1.2) Any violation of section 1543(b)(1.1) (relating to 

driving while operating privilege is suspended or 

revoked).

. . . 

(d) Period of revocation. — The operating privilege of 

any person found to be a habitual offender under the 

provisions of this section shall be revoked by the 

department for a period of five years. 

75 Pa. C.S. § 1542 (Emphasis added).

We have previously held that the period of revocation for habitual 

Vehicle Code offenders is mandatory and is not within the discretion of DOT. 

Dep’t of Transp., Bureau of Driver Licensing v. Richardson, 648 A.2d 1308, 1310

(Pa. Cmwlth. 1994). In this case, it is uncontested that Kapalko was convicted of 

three separate offenses enumerated in Section 1542(b) of the Vehicle Code.

Further, the parties agree that, pursuant to Section 1542, DOT should have revoked 

Kapalko’s operating privileges for five years. DOT asserts that it was an oversight 

in its records-keeping system which erroneously caused DOT not to count 

Kapalko’s new conviction under Section 1543(b)(1.1) of the Vehicle Code toward 

her status as a habitual offender. Kapalko, on appeal, argues that, because DOT 

initially erred in imposing a one-year sanction under Section 1543(b)(1.1) as 

opposed to a five-year sanction, it is precluded from now imposing the longer, 

correct penalty. We disagree.
5

Kapalko is correct that the doctrine of res judicata applies to 

administrative actions. D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 712, 731 

(Pa. Cmwlth. 2010). “[R]es judicata bars re-litigation of a claim when the cause of 

action in one proceeding is identical to that involved in a prior final judgment.” Id. 

(internal citations omitted). Here, however, there are no substantive disputes to be 

re-litigated, and a five-year suspension is mandated by the applicable section of the 

Vehicle Code. We have long held that “an administrative agency, on its own 

motion, having provided the proper notice and explanation, may correct 

typographical, clerical and mechanical errors obviated and supported by the 

record. . . . It may not, however . . . reverse itself on the substantive issues 

previously decided.” Kentucky Fried Chicken of Altoona, Inc. v. Unemployment 

Comp. Bd. of Review, 309 A.2d 165, 167 (Pa. Cmwlth. 1973). 

Likewise, we have previously held that collateral estoppel principles 

apply to administrative proceedings. Christopher v. Council of Plymouth Twp., 

635 A.2d 749, 752 (Pa. Cmwlth. 1993). Collateral estoppel is a broader concept 

than res judicata and operates when an issue of fact or law, essential to the 

judgment, is litigated and determined by a valid and final judgment, and the 

determination is conclusive in a subsequent action between the parties, 

whether on the same or a different claim. Irizarry v. Office of Gen. 

Counsel, 934 A.2d 143, 151 (Pa. Cmwlth. 2007) (citing RESTATEMENT (SECOND)

OF JUDGMENTS § 27 (1982)). “Application of the principle of collateral estoppel is 

not precluded merely because administrative proceedings are involved”; rather, 

where an administrative agency acts in a “judicial capacity and resolves disputed 

issues of fact properly before it which the parties have had an adequate opportunity 
6

to litigate, the court will not hesitate to apply collateral estoppel principles.” 

Christopher, 635 A.2d at 752 n.2.

Kapalko cites two of our prior cases applying principles of res 

judicata and collateral estoppel to administrative actions: Miller v. Department of 

Transportation, 554 A.2d 1019 (Pa. Cmwlth. 1989), and Germantown Cab Co. v. 

Philadelphia Parking Authority, 27 A.3d 280 (Pa. Cmwlth. 2011). Both cases, 

however, are readily distinguishable. In Miller, we held that an appellant’s failure 

to contest the accuracy of his conviction upon receiving notice that his operating 

privileges were suspended because of that conviction estopped the driver from 

presenting that challenge in a later proceeding after his license was suspended for 

five years as a repeat offender. Miller, 554 A.2d at 1021. In the instant case, there 

are no facts in dispute and Kapalko does not challenge the accuracy of the 

conviction underlying her license suspension. In Germantown Cab, the 

Philadelphia Parking Authority (PPA) issued a citation which was later overturned 

because it was based on an invalid regulation. The PPA argued that its 

enforcement action could be upheld on alternate grounds, i.e., other violations of 

the city’s parking regulations for which the petitioner was not originally cited. We 

held that an administrative agency could not re-issue new citations based on the 

same violation if it did not litigate those issues at the original hearing. 

Germantown, 27 A.3d at 284. Here, DOT did not attempt to substitute an 

alternative violation in an appeal to the trial court after the originally alleged 

violation was found inapplicable. Instead, it simply issued a new notice of 

suspension which Kapalko could have, and actually did, appeal.

In this case, there are no substantive issues in dispute, and it is 

unequivocal that the proper disposition of Kapalko’s suspension should have been 
7

a five-year revocation of her license. DOT did not act in a judicial capacity, nor 

did it resolve factual disputes or decide substantive legal issues such that collateral 

estoppel or res judicata would bar it from correcting its error. DOT, therefore, is

not prohibited from correcting what amounts to an administrative error or an error 

in records-keeping. See Lynch v. Pa. Bd. of Prob. and Parole, (Pa. Cmwlth., 

No. 1867 C.D. 2012, filed September 25, 2013), slip op. at 2 (holding that Board of 

Probation and Parole may summarily correct miscalculation of parolee’s release 

date).6, 7

Accordingly, we affirm the order of the trial court.

 

 P. KEVIN BROBSON, Judge

 

6 As an unreported panel decision of this Court, we cite Lynch for its persuasive value 

pursuant to Section 414(a) of the Court’s Internal Operating Procedures. 

7 Kapalko does not argue on appeal that the notice of revocation was invalid on the basis 

of undue delay. In order for a licensee to avoid an otherwise valid driving privilege suspension 

or revocation due to delay, the licensee must demonstrate: (1) that an unreasonable delay 

chargeable to the Bureau of Driver Licensing led the licensee to reasonably believe that his or 

her driving privileges would not be impaired, and (2) that prejudice to the licensee would result 

from having his or her driving privileges suspended after such a delay. Department of Transp., 

Bureau of Driver Licensing v. Gombocz, 909 A.2d 798, 800-801 (Pa. 2006). Kapalko conceded 

at the August 19, 2015 hearing before the trial court that she was not prejudiced by the delay. 

Thus, the trial court properly concluded that she does not satisfy the second prong of this test and 

that the revocation was not invalid due to delay. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michele Kapalko, :

Appellant :

:

v. : No. 1912 C.D. 2015

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

O R D E R

AND NOW, this 20th day of September, 2016, the order of the Court 

of Common Pleas of Fayette County is AFFIRMED. 

 

 P. KEVIN BROBSON, Judge