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UPSEY v. SECRETARY REVENUE. (11/16/60)

November 16, 1960

UPSEY, APPELLANT,
v.
SECRETARY OF REVENUE.



Appeal, No. 182, Oct. T., 1960, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1960, No. 939, in the matter of Elbert Upsey v. Secretary of Revenue, Commonwealth of Pennsylvania. Order affirmed.

COUNSEL

Malcolm W. Berkowitz, for appellant.

Elmer T. Bolla, Deputy Attorney General, with him Anne X. Alpern, Attorney General, for Commonwealth, appellee.

Before Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (rhodes, P.j., and Gunther, J., absent).

Author: Woodside

[ 193 Pa. Super. Page 468]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the court below suspending the appellant's license to operate a motor vehicle.

Elbert Upsey was arrested February 9, 1960, for operating his motor vehicle in Philadelphia while under the influence of intoxicating liquor in violation of The Vehicle Code of April 29, 1959, P.L. 58, § 1037, 75 P.S. § 1037.

After due notice to Upsey, the Secretary of Revenue, through a representative, held a hearing February 16, 1960, to determine whether Upsey's license should be suspended. The testimony given at this hearing by the officer who arrested Upsey and a physician who examined him established that he was under the influence of intoxicating liquor while operating his automobile on February 9th in Philadelphia. Upsey offered no testimony, and objected to the holding of the hearing while the criminal charge was pending against him, but the secretary suspended his operator's license for 6 months.

Upsey appealed to the court of common pleas where it was stipulated that the witnesses appearing at the administrative hearing, if called, would give the same testimony before the court. Certain additional facts were also stipulated. When the hearing was held before the court of common pleas on April 29, the criminal charge against the operator had not yet been heard

[ 193 Pa. Super. Page 469]

    in the court of quarter sessions. The appellant again objected to proceeding with the hearing prior to the disposition of the criminal charge against him, but the court below sustained the secretary in imposing a suspension of six months. Upsey then appealed to this Court.

The Vehicle Code, supra, provides in section 616, 75 P.S. § 616, "(a) Upon receiving a certified record, from the clerk of the court, of proceedings in which a person pleaded guilty, entered a plea of nolo contendere, or was found guilty by a judge or jury, of [operating a motor vehicle or tractor while under the influence of intoxicating liquor], the secretary shall forthwith revoke, for a ...


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