In Commonwealth v. Lee, 2026 PA Super 85, the en banc Superior Court held—over a careful dissent—that the sentencing language in 75 Pa.C.S. § 1543(b)(1)(i), which says a person convicted of driving while under DUI suspension “shall be sentenced . . . to undergo imprisonment for a period of not less than 60 days nor more than 90 days,” requires an indeterminate sentence with a mandatory minimum of 60 days and a statutory maximum of 90 days.
That holding overrules a 2022 panel decision, Commonwealth v. White, that read the same words to set only a maximum sentencing range—leaving trial courts free to impose anything from zero days up to 90. It also, by necessary implication, departs from the 1959 Pennsylvania Supreme Court decision in Commonwealth v. Glover, which read materially identical language in the old Drug Act of 1957 the same way White did.
The result is a meaningful tightening of Driving Under Suspension (DUS) sentencing, an unusual situation in which an intermediate appellate court reads modern Supreme Court precedent to functionally displace older Supreme Court precedent, and a sentencing structure that openly conflicts with 42 Pa.C.S. § 9756(b)(1)’s general rule that the minimum sentence cannot exceed half the maximum. It’s a lot for one decision to do, and the dissent has real force.
A Quick Tour of the Three Statutes
To follow what’s happening here, three statutes need to be in view.
The first is Section 1543(b)(1)(i), the DUS statute itself, which (in the version that applied to Mr. Lee) said a person convicted of driving while under a DUI-related license suspension “shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days.”
The second is Section 9756(b)(1), the general indeterminate-sentence rule, which provides that whenever a court imposes a sentence of imprisonment, “the court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.” That’s the half-the-max rule. It’s been on the books since 1974 and applies to every criminal sentence in Pennsylvania unless a more specific statute displaces it.
The third is the Statutory Construction Act, in particular 1 Pa.C.S. § 1933, which tells courts that when a general provision conflicts with a special provision, “the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.”
Hold those three in mind. The case is mostly about how they fit together.
How the Trial Court Read the Statute
Mr. Lee was convicted of multiple summary offenses, including DUS under Section 1543(b)(1)(i). The trial court fined him but imposed no jail time. Under White, that was permissible — White had read the “not less than 60 days nor more than 90 days” language as setting a maximum sentencing range, meaning the court had discretion to impose any maximum within that range and any minimum that didn’t exceed half the max. Zero days was within the range of permissible maximums, even if barely.
The Commonwealth appealed, arguing that the statute mandated a sentence of 60 to 90 days and that the trial court had no authority to impose anything less. After a three-judge panel agreed and overruled White, Lee got reargument before the en banc court. He voluntarily dropped his cross-appeal on an evidentiary issue, leaving only the sentencing question.
The Majority’s Move: Eid Over Glover
The majority opinion, written by Judge Olson, walks through four possible readings of the “not less than 60 days nor more than 90 days” language. It rejects three and adopts the fourth: the statute requires a minimum sentence of 60 days, allows a maximum of up to 90 days, and forbids a flat sentence. So the legal sentencing options are narrow indeed—something like 60 to 90, or 60 to 75, but not a flat 60 and not zero to 90.
The crux of the majority’s reasoning is Commonwealth v. Eid, 249 A.3d 1030 (Pa. 2021). Eid construed a closely related DUS statute—Section 1543(b)(1.1)(i), which covers driving under DUI suspension while having alcohol or drugs in your system. That statute said a violator “shall be sentenced . . . to undergo imprisonment for a period of not less than 90 days.” The Pennsylvania Supreme Court held that the phrase “not less than 90 days” “by its plain terms, establishes a mandatory minimum term below which a sentencing court may not fall when imposing a penalty.” Because the statute set a minimum but no maximum, the Court declared it unconstitutionally vague.
The Lee majority reads Eid as supplying the controlling interpretation of the words “not less than” anywhere they appear in this statutory neighborhood. If “not less than 90 days” creates a mandatory minimum, then “not less than 60 days nor more than 90 days” must also create a mandatory minimum (60 days) plus, this time, a statutory maximum (90 days)—saving the statute from the constitutional problem Eid identified.
That gets the majority to its result. But it requires confronting a sixty-five-year-old Supreme Court decision that read materially identical language the opposite way.
The Glover Problem
Commonwealth v. Glover, 156 A.2d 114 (Pa. 1959), construed the 1957 Drug Act, which provided that a first-offense drug-distribution conviction “shall be sentenced . . . to undergo imprisonment by separate or solitary confinement at labor of not less than five (5) years and not exceeding ten (10) years.” The Pennsylvania Supreme Court held that this language did not mandate a 5-to-10 sentence. It established a maximum sentencing range of 5 to 10 years and left the precise minimum to the trial court’s discretion, subject only to the half-the-max rule.
The Glover Court was emphatic about the reasoning. If the legislature meant to mandate a minimum of 5 and a maximum of 10, what work did the words “not exceeding ten (10) years” do? Why use “not less than” instead of “minimum”? The Court read the unmodified word “sentence” as referring to the legal sentence—the maximum—and the minimum as merely “an administrative notice by the court to the parole board” about when parole could be considered.
Section 1543(b)(1)(i) and the 1957 Drug Act use materially identical sentencing formulations. Both say “not less than X” combined with a phrase capping the upper limit. If Glover still controls, White was right and the Commonwealth’s appeal fails.
The majority’s response is to argue that Eid has “reinterpreted” the language in a way that’s incompatible with Glover. But the majority never actually says Glover is overruled. It can’t—only the Supreme Court can do that. So the opinion arrives at a peculiar posture: a Supreme Court precedent that’s never been overturned reaches one result, a different Supreme Court precedent reaches a result the majority thinks is incompatible, and the intermediate appellate court picks the newer one.
This is where Judge Stabile’s dissent has its sharpest line. He argues that Glover construed text “materially similar to and operatively identical to” Section 1543(b)(1)(i) and that Eid construed something different — a statute with only a minimum, no maximum range. The dissent’s logic is hard to dismiss: when the Supreme Court in Eid said “not less than 90 days” creates a mandatory minimum, it was construing a statute that only had “not less than” language. It said nothing about how the same words function when paired with “nor more than.” Glover did construe the paired formulation. And as the dissent puts it: “Nothing in Eid suggests that the Court intended to overrule or ‘reinterpret’ its decision in Glover.”
The majority’s reading of Eid is plausible. But Eid is silent on the Glover question. When intermediate courts have to choose between a plausible extension of newer Supreme Court precedent and a direct holding of older Supreme Court precedent, the older direct holding usually wins until the Supreme Court itself says otherwise. The majority’s approach asks us to read Eid‘s holding more broadly than Eid itself does.
The Half-the-Max Problem
There’s a second wrinkle the majority has to handle, and it’s almost as tricky. The majority’s reading produces a sentence with a 60-day minimum and a 90-day maximum. But Section 9756(b)(1) — the general half-the-max rule—says the minimum can’t exceed one-half the maximum. Sixty is not less than half of 90; it’s two-thirds.
The majority resolves this with Section 1933 of the Statutory Construction Act. Section 1543(b)(1)(i), it says, is the “special” provision; Section 9756(b)(1) is the “general” provision; the special wins unless the general was enacted later with manifest intent to override. The relevant version of Section 1543(b)(1)(i) was enacted in 2004; Section 9756(b)(1) dates to 1974. Special, later-enacted, prevails.
The dissent’s response is that this also conflicts with Commonwealth v. Postie, 110 A.3d 1034 (Pa. Super. 2015), where the Superior Court held that a flat sentence under a different DUS subsection violated Section 9756 and was illegal. Postie applied the half-the-max rule to DUS sentencing without treating Section 1543 as a special exception. The majority opinion doesn’t engage with Postie at all, which the dissent points out is itself a sub silentio overruling.
The majority is technically correct that Section 1933 permits special provisions to override general ones. But it’s an unusual move to read a sentencing statute as silently displacing the bedrock structural principle of indeterminate sentencing — especially when the statute itself nowhere uses the word “minimum” or “mandatory minimum” or any other signal that the legislature was trying to depart from Section 9756(b)(1). The dissent’s reading — that the legislature was just describing a maximum range, with the half-the-max rule operating in the background as it does for every other indeterminate sentence — seems the more natural fit with how Pennsylvania sentencing law has worked for half a century.
What This Means Going Forward — and a Footnote Worth Reading
Two things make the practical impact of Lee less than it might otherwise be.
First, the legislature has already moved on. Effective December 22, 2025, Section 1543(b)(1)(i) was amended to provide for a flat sentence of 60 days, and Section 9756 was amended to add subsection (c.2), which expressly authorizes determinate sentences for summary motor vehicle offenses with maximums of 90 days or less. The interpretive problem the Lee court confronts won’t recur for new offenses. But the new statutes don’t apply retroactively, so for any DUS offense committed before December 22, 2025, Lee is the controlling rule. That’s a substantial pipeline of cases.
Second, footnote 8 of the majority opinion contains a significant holding about ameliorative amendments. The court reaffirms the rule of Commonwealth v. Swavely, 322 A.2d 710 (Pa. Super. 1974), that when the legislature reduces a criminal penalty after the offense but before sentencing, the defendant gets the benefit of the reduced penalty unless the statute contains a saving clause to the contrary. This means defendants whose pre-December 2025 DUS offenses have not yet resulted in a final sentence may be able to argue for the new flat 60-day sentence rather than the Lee-mandated 60-to-90 indeterminate range.