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COMMONWEALTH v. STROBEL (05/25/54)

May 25, 1954

COMMONWEALTH
v.
STROBEL, APPELLANT



Appeal, No. 78, March T., 1954, from order of Court of Common Pleas of Butler County, March T., 1953, No. 56, in case of Commonwealth of Pennsylvania v. Kenneth Strobel. Order reversed. Appeal by licensee from order of Secretary of Revenue suspending motor vehicle operating privileges. Before PURVIS, P.J. Order entered dismissing appeal after case remanded by Supreme Court for findings of fact. Licensee appealed.

COUNSEL

Lee C. McCandless, for appellant.

Robert B. Greer, Jr., with him Randolph C. Ryder, Deputy Attorney General and Frank F. Truscott, Attorney General, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Stearne

[ 378 Pa. Page 85]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This is the second time this case has been before us. It is an appeal from the suspension of a motor vehicle operator's license by the Secretary of Revenue. The case was remanded for further proceedings in our opinion reported in 375 Pa. 292, 100 A.2d 43.

In Commonwealth v. Emerick, 373 Pa. 388, 96 A.2d 370, we construed The Vehicle Code. On appeals the hearings are de novo. Where there is disputed or conflicting testimony and there exist extenuating facts and circumstances, the hearing judge is required to make independent findings of fact and exercise his discretion whether or not a suspension should be decreed.

That appellant exceeded the legal speed limit and was fined is undisputed. Whether or not, under all the existing circumstances, appellant should suffer the further penalty of the suspension of his operator's license is now before the Court. There is conflicting testimony concerning the rate of speed at which appellant was driving. The testimony, however, does not sufficiently indicate all the facts and surrounding circumstances. There is no description of the road and adjacent area at the place of violation, the then existing traffic conditions and the manner in which appellant, a testing automobile mechanic, was operating the vehicle.

The learned judge who heard this case filed no findings of fact as directed and is no longer upon the bench. In the interest of justice the case is remanded for a rehearing de novo, with directions to the hearing judge to make findings of fact and exercise his discretion in determining whether or not a suspension should be decreed.

Order reversed and case remanded for further proceedings in accordance with this opinion.

Disposition

Order reversed and case remanded for further proceedings in accordance ...


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