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COMMONWEALTH v. MOOGERMAN. (05/25/56)

May 25, 1956

COMMONWEALTH, APPELLANT,
v.
MOOGERMAN.



Appeal, No. 104, March T., 1956, from order of County Court of Allegheny County, 1955, No. C.2712, in case of Commonwealth of Pennsylvania v. Lois Moogerman. Order reversed.

COUNSEL

Marvin Garfinkel, Deputy Attorney General, with him Herbert B. Cohen, Attorney General, for appellant.

No argument was made nor brief submitted for appellee.

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

Author: Musmanno

[ 385 Pa. Page 257]

OPINION BY MR. JUSTICE MUSMANNO

Miss Lois Moogerman, 20 years of age, and student at the University of Pittsburgh, drives a Cadillac car. On May 15, 1955, while returning with a girl friend from a visit to Penn State College and proceeding over a back road, she was arrested for driving at a speed not warranted by the conditions of the highway. She was charged with violating The Vehicle Code, Section 1002(a), 75 PS 501(a), and paid a fine of $10. On September 3, 1955, less than four months later, she was apprehended by a State trooper while driving over Route 22 at a speed of 85 miles per hour near Blairsville, Indiana County, where the speed limit was 50 miles per hour.

Upon the showing of teese facts, the Secretary of Revenue suspended Miss Moogerman's motor vehicle operating privileges for a period of 90 days. She appealed to the County Court of Allegheny County which, by sustaining the suspension and yet allowing the defendant a limited license, both approved and disapproved the Secretary's action. This self-contradictory order cannot be sustained. In its disposition of this case the County Court misapprehended its authority and function under The Vehicle Code. Section 615(b) of the Code, as amended, authorizes the Secretary of Revenue to suspend the operating privilege of any person whenever he finds upon sufficient evidence that such person has violated the motor vehicle laws. Section 616, as amended, provides that any person whose operator's license has been so suspended may petition

[ 385 Pa. Page 258]

    for a hearing in the Court of Common Pleas of the county where he resides (County Court in Allegheny County), and it shall then be the duty of such court to take testimony, examine into the facts of the case, and "determine whether the petitioner is subject to suspension of operator's license ... under the provisions of this act."

Although the Court then hears the case de novo it must in its decision still stay within the limits of its jurisdiction as bounded by the Code and by the decisions of the appellate courts of the Commonwealth. In the case of Commonwealth v. Garman, 361 Pa. 643, the operator's license of B. S. Garman was suspended by the Secretary of Revenue on the grounds of incompetence. The motorist appealed to the Court of Common Pleas of Snyder County which sustained the suspension "in so far as it prohibits B. S. Garman from operating a motor vehicle generally," but it still allowed him to "operate a motor vehicle in his business as a carpenter and planing mill operator." This Court reversed the action of the Snyder County Common Pleas Court and remanded the record for the entry of an order, "which sustains or reverses the action of the Secretary of Revenue," saying: "As far as The Vehicle Code is concerned, it provides, as already stated, that the court hearing the matter is to determine 'whether the petitioner is subject to suspension of operator's license'; that question must be answered by the court either affirmatively, in which case it should sustain the suspension ordered by the Secretary, or negatively, in which case it should reverse the suspension and direct a reinstatement of the license. The order made by the court below failed to adopt either of these alternatives and was therefore beyond the limits of the discretion entrusted to it by the stature." (Emphasis supplied.) In the case at bar the County Court of Allegheny

[ 385 Pa. Page 259]

    did just the opposite. It acted both affirmatively and negatively. ...


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