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COMMONWEALTH v. FISHER. (06/11/57)

June 11, 1957

COMMONWEALTH, APPELLANT,
v.
FISHER.



Appeal, No. 265, Oct. T., 1956, from order of Court of Common Pleas of Schuylkill County, Jan. T., 1956, No. 280, in case of Commonwealth of Pennsylvania v. Kenneth Fisher. Order reversed.

COUNSEL

Marvin Garfinkel, Deputy Attorney General, with him Thomas D. McBride, Attorney General, for appellant.

No argument was made nor brief submitted for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Ervin, JJ. (watkins, J., absent).

Author: Rhodes

[ 184 Pa. Super. Page 77]

OPINION BY RHODES, P.J.

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Schuylkill County sustaining an appeal by appellee, Kenneth Fisher, from an order of the Secretary of Revenue whereby the motor vehicle operator's license of appellee was suspended for three months for reckless driving. The action of the Secretary of Revenue was reversed because, as the court held, appellee did not operate his automobile at the time and place charged in a reckless manner.

The facts are admitted.

Appellee was involved in an accident about 1:30 on the morning of June 5, 1955, while driving his automobile on Route 122 in North Manheim Township, Schuylkill County. It left the highway and, after knocking down several guard posts and guard rails, went over a bank traveling approximately one hundred feet to the ground below. From the time the automobile left the highway until it came to a stop it traveled four hundred forty-five feet. Before the accident appellee had consumed ten or twelve glasses of beer at a club. Appellee fell asleep while driving the automobile and

[ 184 Pa. Super. Page 78]

    did not awake until the automobile came to rest at the foot of the embankment.

The recited facts fail to afford a justifiable factual basis for the order of the court below. See Bureau of Highway Safety v. Wright, 355 Pa. 307, 311, 49 A.2d 783. The order will be reversed.

The present appeal comes before this Court under the 1956 amendment (Act of May 29, 1956, P.L. (1955) 1850, ยง 1) to section 616 of "The Vehicle Code" of May 1, 1929, P.L. 905, ...


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