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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CHRISTOPHER R. ZAWACKI,
:
Appellant
::
v.
: No. 1006 C.D. 1999
: SUBMITTED: December 3, 1999
COMMONWEALTH OF
:
PENNSYLVANIA, DEPARTMENT :
OF TRANSPORTATION,
:
BUREAU OF DRIVER LICENSING :
BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE SAMUEL L. RODGERS, Senior Judge
OPINION BY
SENIOR JUDGE RODGERS
FILED: February 1, 2000
Christopher R. Zawacki (Licensee) appeals from the order of the
Court of Common Pleas of McKean County (trial court) that dismissed Licensee's
appeal of the one-year suspension of his operating privilege by the Department of
Transportation, Bureau of Driver Licensing (Department).
By official notice mailed July 8, 1998, the Department suspended
Licensee's operating privilege for one year based upon his conviction in New York
for an offense which the Department deemed to be equivalent to a conviction under
Section 3731(a) of the Vehicle Code (Code), 75 Pa. C.S. §3731(a) (driving under
the influence of alcohol).1 Licensee appealed to the trial court, arguing that his

1 Article IV of the Driver License Compact, Section 1581 of the Code, 75 Pa. C.S. §1581,
requires the Department to give the same effect to conduct reported by a party state as it would if
the conduct had occurred in Pennsylvania.

conviction under New York law for "Driving While Ability Impaired" was for an
offense that is not substantially similar to Section 3731(a) of the Code. A hearing
was scheduled for March 15, 1999, at 9:00 a.m. On that date, neither Licensee nor
his counsel appeared. Upon motion by the Department, the trial court dismissed
Licensee's appeal.2
In the present appeal, relying in part on Scott v. Department of
Transportation, Bureau of Driver Licensing, 730 A.2d 539 (Pa. Cmwlth. 1999),
Licensee argues that the trial court committed an error of law when it dismissed his
statutory appeal without first requiring the Department to present evidence in
support of the suspension. We agree.
It is well-settled that in an appeal to the court of common pleas from a
suspension of a driver's license, the initial burden of proof is on the Department to
produce a record of the convictions which support the suspension. Id. In the
present case, the Department bore the additional burden of proving that Licensee's
May 27, 1998, conviction in New York was for an offense substantially similar to
a Pennsylvania conviction under Section 3731(a) of the Code. Id. Licensee points
out that this Court has previously held that New York's "Driving While Ability

2 On March 23, 1999, Licensee filed a Motion to Reinstate Petition for Review and for
New Trial (Motion). In that Motion, which both parties agree should have been titled Motion for
Reconsideration, Licensee alleged that a copy of the order scheduling the hearing had been sent
to his counsel, who had failed to enter the hearing date on his calendar or to notify Licensee of
the hearing. Licensee also alleged that he had a meritorious defense to the suspension. By order
dated March 29, 1999, the trial court scheduled argument on Licensee's Motion for June 14,
1999. On April 14, 1999, Licensee filed an appeal with this Court, challenging the trial court's
dismissal of his case. By order dated June 14, 1999, the trial court dismissed Licensee's Motion
as moot, based upon Licensee's appeal to this Court and the trial court's failure to act on the
Motion within the time required. Licensee has not appealed from the trial court's June 14th
order.
2

Impaired" statute is not substantially similar to Section 3731(a) of the Code.
Petrovick v. Department of Transportation, Bureau of Driver Licensing, 713 A.2d
176 (Pa. Cmwlth. 1998), affirmed, Pa. , A.2d (December 13, 1999 Pa.
LEXIS 3663).
The Department counters that, as Licensee failed to appear at the
hearing, he failed to raise and preserve any issue for this Court. Pa. R.A.P. 302(a).
Relying on Koller v. Department of Transportation, Bureau of Driver Licensing,
682 A.2d 82 (Pa. Cmwlth. 1996) and Blair v. Zoning Heariing Board of Pike, 676
A.2d 760 (Pa. Cmwlth. 1996), the Department asserts the trial court was within its
discretion to dismiss the appeal without a hearing because Licensee had an
obligation to prosecute his appeal and failed to appear at the hearing. These cases
are factually distinguishable, however, as both involve a lack of docket activity for
more than two years. The Department's reliance on Francis v. Department of
Transportation, Bureau of Driver Licensing, 303 A.2d 581 (Pa. Cmwlth. 1973), is
similarly misplaced; the Francis court held that the trial court did not abuse its
discretion by allowing the Department to present its case in the absence of the
licensee, who provided no explanation for his failure to appear.
Indeed, in Francis, the court proceeded to trial in the licensee's
absence, but the Department produced evidence that the licensee had refused to
submit to a chemical test of his blood. In this case, the Department moved at the
outset to dismiss Licensee's appeal by reason of his failure to appear. The trial
court granted the dismissal without requiring the Department to produce any
evidence of Licensee's New York conviction. This is contrary to the practice
approved in Francis. Moreover, while an appellate court can disregard a question
on the ground that it was not called to the attention of the court below, it may give
3

it consideration where it involves the proper practice to be followed. 16 Standard
Pa. Practice 2d §91.4 (1999).
Although a license suspension case is a civil proceeding, the
Pennsylvania Rules of Civil Procedure do not govern statutory appeals, Shaw v.
Department of Transportation, Bureau of Driver Licensing, 553 A.2d 108 (Pa.
Cmwlth. 1989), and counsel for the parties have cited no controlling case authority
in this matter. But Pa. R.C.P. No. 218(b)(1) provides, if without satisfactory
excuse a defendant is not ready, where a case is called for trial, the plaintiff may
proceed to trial. We believe that a similar practice rule requiring the Department to
present a prima facie case should apply in this case, and we so hold.
We are not persuaded by the Department's argument that judicial
efficiency compels dismissal of the case under these circumstances. Because the
Department bears the burden of proof in a statutory appeal, it is possible that a
Licensee may prevail without presenting any evidence whatsoever.
Accordingly, we reverse the trial court's order dismissing this case
and remand the matter to the trial court for a de novo hearing.

SAMUEL L. RODGERS, Senior Judge
4

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CHRISTOPHER R. ZAWACKI,
:
Appellant
::
v.
: No. 1006 C.D. 1999
:
COMMONWEALTH OF
:
PENNSYLVANIA, DEPARTMENT :
OF TRANSPORTATION,
:
BUREAU OF DRIVER LICENSING :
ORDER
NOW, February 1, 2000 , the order of the Court of Common Pleas
of McKean County, dated March 15, 1999, in the above-captioned matter, is
reversed and the matter is remanded to the trial court for a de novo hearing.
Jurisdiction relinquished.

SAMUEL L. RODGERS, Senior Judge