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COMMONWEALTH v. EISENMENGER (06/26/50)

June 26, 1950

COMMONWEALTH, APPELLANT,
v.
EISENMENGER



Appeal, No. 26, Jan. T., 1951, from order of Court of Common Pleas of Lycoming County, Dec. T., 1949, No. 313, in case of Commonwealth of Pennsylvania v. Charles F. Eisenmenger. Order reversed and record remanded.

COUNSEL

Frederick Y. Dietrick, Randolph C. Ryder, Deputy attorney General and T. McKeen Chidsey, Attorney General, for appellant, submitted a brief.

H. Alvan Baird, for appellee, submitted a brief.

Before Drew, C.j., Stern, Stearne and Jones, JJ.

Author: Jones

[ 365 Pa. Page 128]

OPINION BY MR. JUSTICE JONES

The appellee, Eisenmenger, was involved in an automobile accident (not a fatal one) and as a consequence he was requested by the Secretary of Revenue to submit to an examination such as is given to persons seeking an operator's license for the first time. Section 608(f) of The Vehicle Code, Act of May 1, 1929, P.L. 905, as amended (75 PS § 168), directs that "The secretary may, in his discretion, require the special examination, by such agencies as the secretary may direct,... of any operator, to determine incompetency, physical or mental disability or disease, or any other condition which might prevent such applicant from exercising reasonable and ordinary control over a motor vehicle."

The special examination was given Eisenmenger, as directed by the Secretary of Revenue, by a member of the Pennsylvania State Police. The officer examined him according to the "Standard Procedure for Operator's Examination" adopted by the Secretary of Revenue and was apparently well qualified to do so, having been specially assigned to such work for twelve years and having given, on an average, two thousand driving examinations a year. Eisenmenger was given an unsatisfactory

[ 365 Pa. Page 129]

    rating by the examining officer and, subsequently, received notice from the Secretary that his license had been suspended indefinitely, the reason given being "incompetent driver". Section 615(b) of The Vehicle Code, as amended (75 PS § 192 Pkt. Part), provides that "The secretary may suspend the operator's license... of any person, after a hearing before the secretary or his representative, whenever the secretary finds upon sufficient evidence: ... 5. That such person is incompetent or unable to exercise reasonable and ordinary control over a vehicle."

Eisenmenger appealed the suspension to the court of common pleas of his county: see Section 616 of The Vehicle Code, as amended (75 PS § 193 Pkt. Part). As to the scope of review by courts of common pleas upon such appeals, see Commonwealth v. Funk, 323 Pa. 390, 399, 186 A. 65; Commonwealth v. Cronin, 336 Pa. 469, 473, 9 A.2d 408; Handwerk Automobile License Case, 348 Pa. 263, 35 A.2d 289; Commonwealth v. Herzog, 359 Pa. 641, 643, 60 A.2d 37; and Commonwealth v. Wagner, 364 Pa. 566, 569, 73 A.2d 676. It is well settled that under Section 616 of the Code, a court of common pleas is empowered to determine anew whether an operator's license should be suspended: Commonwealth v. Wagner, supra.

At the hearing in the court below on the appeal, the State policeman who examined Eisenmenger testified that he failed eight of the thirteen operating phases of the driving examination prescribed by "Standard Procedure", the witness relating the specific deficiencies. In his own behalf, Eisenmenger testified that he had been a licensed operator for twenty-five years and had driven approximately six thousand miles a year in travelling about in his business as an insurance agent; and that, in that period, he had had but ...


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