Commonwealth v. Grubb

BLATT, Senior Judge. Edward W. Grubb (Licensee) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) which affirmed the five year suspension of his operating privileges imposed by the Pennsylvania Department of Transportation (Department). . On September 13, 1988, the licensee was charged with a violation of Section 1543 (driving while operating privilege is suspended) and on March 28, 1991, he paid the fines and costs related to this citation.1 By official notice dated September 19, 1991, the Department determined that the licensee was a habitual offender and imposed a mandatory five year suspen [180] sion pursuant to Section 1542(d).2 The licensee appealed the suspension to the trial court. The trial court affirmed and the licensee’s appeal to this Court followed.3 The sole issue raised by the licensee on appeal is whether the trial court erred in sustaining a suspension predicated on a conviction which occurred more than two years after the date of the offense. The licensee relies on Section 5553 of the Judicial Code which provides that “[n]o proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.” 42 Pa.C.S. § 5553(e). The licensee argues that the conviction was void and cannot serve as the underlying conviction supporting the civil suspension. The Department, relying on Department of Transportation, Bureau of Driver Licensing v. Danks, 114 Pa.Commonwealth Ct. 37, 538 A.2d 120 (1988), argues that the appellant cannot collaterally attack the conviction through a civil license suspension appeal. We agree with the Department that Danks controls the disposition of this appeal. In Danks, the appellant, who was convicted two years and two days after the commission of the offense, successfully argued before the trial court that the suspension of his license was barred by operation of Section 5553(e). On appeal, this Court, relying on Lewis v. Commonwealth, 73 Pa.Commonwealth Ct. 607, 458 A.2d 1053 (1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984), reversed. We explained that Section 5553(e) is applicable only to criminal proceedings and reiterated that, because a reviewing court in such a proceeding may not consider any claimed procedural defects or errors in the criminal proceeding forming the basis for the suspension, a challenge to the timeliness of an underlying conviction constitutes an imper [181] missible collateral attack on the underlying criminal conviction. Therefore, we conclude that the trial court here made no error of law and affirm its order. The Department asserts that the licensee’s appeal was frivolous and vexatious and seeks the award of counsel fees and other costs pursuant to Rule 2744 of the Pennsylvania Rules of Appellate Procedure.4 A frivolous appeal is “one ... ‘readily recognizable as devoid of merit in that there is little prospect of success.’ ” Polinsky v. Dep’t of Transp., 131 Pa.Commonwealth Ct. 83, 569 A.2d 425 (1990) (citations omitted). A vexatious appeal is one instituted without reasonable cause. Black’s Law Dictionary 1403 (5th ed. 1979). Notwithstanding our conclusion that the licensee’s challenge constituted an impermissible collateral attack, his premise that the underlying conviction was a void ab initio and cannot support a suspension is distinguishable from the argument presented in Danks and Lewis. We conclude, therefore, that the appeal was neither frivolous nor vexatious and that the Department is not entitled to an award of counsel fees and other costs. Accordingly, we affirm the suspension of the licensee’s operating privileges for five years, but deny the request that counsel fees and costs be imposed. ORDER AND NOW, this the 8th day of December, 1992, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed and the request for the award of counsel fees is denied. Footnotes [1] Payment of a fine by the person charged with the violation is the equivalent of a pléa of guilty and constitutes a conviction. 75 Pa.C.S. § 6501(a), (b). [2] A "habitual offender" is a person whose driving record shows three convictions arising from certain enumerated offenses within any five year period. 75 Pa.C.S. § 1542(a), (b). [3] This court's scope of review on appeal is limited to determining whether the findings of fact are supported by competent evidence or whether the trial court committed an error of law or an abuse of discretion in reaching its decision. Dep’t of Transp., Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). [4] Section 2744 allows this Court to award a reasonable counsel fees and delay damages if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious" and to remand to the trial court to determine the amount of damages so authorized. Pa.R.A.P. 2744.