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KOWELL MOTOR VEHICLE REGISTRATION CASE. COMMONWEALTH v. KOWELL (03/23/67)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 23, 1967.

KOWELL MOTOR VEHICLE REGISTRATION CASE. COMMONWEALTH, APPELLANT,
v.
KOWELL

Appeal from order of Court of Common Pleas of Westmoreland County, Jan. T., 1966, No. 447, in case of Commonwealth of Pennsylvania v. Paul Kowell, alias Paul Kowell, Jr.

COUNSEL

Elmer T. Bolla, Deputy Attorney General, and Edward Friedman, Attorney General, for Commonwealth, appellant.

Bernard S. Shire, and Ezerski and Shire, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J. Jacobs, J., dissents.

Author: Spaulding

[ 209 Pa. Super. Page 387]

An uninsured motor vehicle owned by appellee Paul Kowell was involved in an accident on July 9, 1965. Appellee was an occupant in the car which was being driven by another. The accident, which caused damage to a second vehicle and bodily injury, was reported the following day to the Secretary of Revenue in accordance with The Pennsylvania Vehicle Code.*fn1 Approximately three months later, the Secretary requested appellee to deposit $1,825 by November 4, 1965 as security for any judgment entered against him as a result of the accident. This action was taken pursuant to § 1404(a) of the Motor Vehicle Safety Responsibility Section of the Code.*fn2 Appellee failed to comply and the Secretary suspended the registration of his automobile

[ 209 Pa. Super. Page 388]

    effective January 18, 1966 as provided in § 1404(b).*fn3 The court below reversed the suspension because the Secretary did not act within sixty days after receipt of the accident report.

Section 1404(b) provides in pertinent part: "The secretary shall, within sixty (60) days after the receipt of such report of a motor vehicle accident, suspend the license of each operator and all registrations of each owner of a motor vehicle in any manner involved in such accident . . . unless such operator or owner or both shall deposit security in the sum so determined by the secretary."*fn4

The sole question presented on appeal is whether "shall" in § 1404(b) is directory or mandatory regarding the sixty day suspension period.

Laws should be interpreted to be consistent with the policies they were enacted to promote. Prichard v. Willistown Township School District, 394 Pa. 489, 147 A.2d 380 (1959); Allegheny County v. Pennsylvania Public Utility Commission, 192 Pa. Superior Ct. 100, 159 A.2d 227 (1960). The Motor Vehicle Safety Responsibility Provisions of The Pennsylvania Vehicle Code were designed to protect highway users from unrecompensed damages by requiring uninsured operators and owners to post a bond sufficient to satisfy any resulting judgment, or face suspension of their operator's license or registration. The sixty day provision was included with the aim of insuring expeditious treatment and fundamental fairness to the parties. It was not intended that the administrative machinery would be rendered inoperative and the legislative policy frustrated because strict compliance as to time was lacking.

[ 209 Pa. Super. Page 389]

The only decision brought to our attention which has interpreted § 1404(b) is Commonwealth v. Isaac Holmes, Jr., 279 August Term, 1965 (York County), wherein the court concluded that notice of suspension given four months after the accident was valid. In so concluding, President Judge Atkins stated: "It would certainly be an unusual requirement that would result in the forfeiture of the Secretary's right to suspend if by reason of a volume of work or any other good cause it was not possible to process the case within 60 days."

On several occasions involving other statutes, our Courts have indicated "shall" could be interpreted as mandatory or merely directory and that legislative intent should be controlling. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965); Damon & Foster v. Berger, 191 Pa. Superior Ct. 165, 155 A.2d 388 (1959).*fn5 When relating to the time of doing something, "shall" has usually been considered directory. Damon & Foster v. Berger, supra; Pleasant Hills Borough v. Carroll, supra. The Supreme Court has stated: "The provisions of a statute requiring public officers to act within a specified time are generally regarded as directory, unless time is of the essence of the thing to be done, or the statute indicates that the provision is to be regarded as mandatory. [citing cases]." Commonwealth ex rel. Fortney v. Wozney, 326 Pa. 494, 497, 192 Atl. 648, 649 (1937). In Allegheny County v. Pennsylvania Public Utility Commission, supra, at 110, we said: "When time and manner are not the essence of the thing required to be done, the statute will be regarded as directory and proceedings under it will be held valid,

[ 209 Pa. Super. Page 390]

    even though the command of the statute as to form and time has not been strictly obeyed [citing cases]."

In light of the policy and purpose of § 1404(b), we hold that "shall" is directory only and compliance within a reasonable time, even though exceeding sixty days, is sufficient to maintain the Secretary's right to suspend.

In so holding, we stress our statement in Pleasant Hills : "To hold that a provision is directory rather than mandatory, does not mean that it is optional -- to be ignored at will. Both mandatory and directory provisions of the legislature are meant to be followed. It is only in the effect of non-compliance that a distinction arises. A provision is mandatory when failure to follow it renders the proceedings to which it relates illegal and void; it is directory when the failure to follow it does not invalidate the proceedings." (Emphasis in original.) Pleasant Hills Borough v. Carroll, supra, at 106, 107.

The decision is reversed and the suspension by the Secretary is reinstated.

Disposition

Decision reversed.


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