Appeal from order of Court of Common Pleas of Westmoreland County, April T., 1966, No. 162, in case of Commonwealth of Pennsylvania v. Albert Vivio.
Elmer T. Bolla, Deputy Attorney General, with him Edward Friedman, Attorney General, for Commonwealth, appellant.
Albert Vivio, appellee, in propria persona, submitted a brief.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J.
[ 209 Pa. Super. Page 91]
On December 3, 1965, Albert Vivio was apprehended for operating a station wagon at an excessive speed on Interstate Highway 70. An information was filed before the nearest available magistrate, and Vivio paid a fine of $15.00 and costs. The Secretary of Revenue suspended Vivio's operating privilege for a period of four months. The Court of Common Pleas of Westmoreland County reversed the action of the Secretary of Revenue, and directed that Vivio's operating privilege be restored. This appeal by the Commonwealth followed.
A license to operate a motor vehicle is a limited right to use the public highway, and it is for the Commonwealth, acting through the legislature, to direct the conditions under which this right shall be exercised: Commonwealth v. Halteman, 192 Pa. Superior Ct. 379, 162 A.2d 257. Section 618 of The Vehicle Code
[ 209 Pa. Super. Page 92]
as then in effect*fn1 reads in pertinent part as follows (italics supplied): "(a) The secretary may suspend the operating privilege of any person, with or without a hearing before the secretary or his representative, upon receiving a record of proceedings [specified] . . . (b) The secretary may suspend the operator's license or learner's permit of any person, after a hearing before the secretary or his representative, whenever the secretary finds upon sufficient evidence . . . (2) That such person has committed any violation of the laws of this Commonwealth relating to vehicles or tractors . . . (h) Whenever the secretary suspends the operator's license or learner's permit of any person, the secretary shall immediately notify such person and afford him an opportunity of a hearing before said secretary or his representative, provided such hearing has not already been held".
It is undisputed that Vivio did not have a hearing before the secretary or his representative. At the hearing de novo in the court below Vivio testified as follows: "Q. Mr. Vivio, were you ever sent a form from the Department of Revenue requesting whether or not you wanted a departmental hearing. A. No, I wasn't. Q. If you had received a form, would you have requested a hearing? A. Yes, I would". This testimony was uncontradicted.*fn2 The hearing judge determined "that the petitioner had never received any notice informing him of a departmental hearing", and reached the conclusion "that a departmental hearing or the equivalent of a waiver thereof is essential to the validity of an order of suspension". It is our view
[ 209 Pa. Super. Page 93]
that the hearing judge was justified in refusing to affirm the action of the Secretary of Revenue on the present record. However, we are of the opinion that the action of the secretary was not subject to a flat reversal, but that the case should have been returned for compliance with the statutory requirement.
It is argued in the Commonwealth's able brief that the failure of the Secretary of Revenue to afford a departmental hearing was not a sufficient reason for the court below to reverse the order of suspension. Principal reliance is placed upon Hamsher Motor Vehicle Operator License Case, 196 Pa. Superior Ct. 336, 175 A.2d 303, and Scavo Motor Vehicle Operator License Case, 206 Pa. Superior Ct. 544, 214 A.2d 309. Each of those cases involved a suspension by virtue of Section 618(a), under the provisions of which the secretary may suspend without a hearing. These decisions ...