Appeal from order of Court of Quarter Sessions of Union County, Oct. T., 1963, No. 60, in case of Commonwealth of Pennsylvania v. Edward P. Smith.
I. B. Sinclair, for appellant.
Elmer T. Bolla, Deputy Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellee.
Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Montgomery, J.
[ 209 Pa. Super. Page 489]
On October 26, 1963, appellant Edward P. Smith entered a plea of guilty to the charge of burglary in the Court of Quarter Sessions of Union County. He was sentenced to pay a fine and placed on probation. On November 7, 1963, the clerk of said court certified the conviction to the Department of Revenue, which notified appellant on November 30, 1963, that his operating privileges were revoked for a period of one year. The reasons given for the revocation were:
1. "Certification from the Clerk of Court of Union County, Section 616(a)(2) of Act 32 Vehicle Code." (Act of April 29, 1959, P. L. 58, 75 P.S. 616); and
2. "Burglary in connection with motor vehicle."
On November 26, 1963, appellant filed an appeal to the Common Pleas Court of Delaware County from the revocation of his privileges and his appeal was sustained by that court. Thereupon the Commonwealth appealed to the Superior Court on April 30, 1964, and we held that no appeal lies from the action of revocation taken by the Secretary under Section 616 of The Vehicle Code. We reversed the Delaware County Court and reinstated the order of revocation. Smith Motor Vehicle Operator License Case, 204 Pa. Superior Ct. 379, 204 A.2d 477 (1964). Appellant's petition for allocatur was refused by the Supreme Court.
[ 209 Pa. Super. Page 490]
In our earlier consideration of this matter we did suggest that since neither the certificate issued by the Clerk of Courts of Union County nor the indictment charging burglary showed the use of a motor vehicle by appellant in the commission of the crime, and The Vehicle Code did not provide for a hearing at which the use or nonuse of a motor vehicle could be determined before the revocation action was taken, that it was unfair to appellant and that he "should be entitled to a determination of the fact either in the criminal court having jurisdiction over the burglary or before the Secretary of Revenue or some other place designated by the legislature."
Following this decision appellant filed an action in mandamus in Dauphin County against the Secretary of Pennsylvania without success. Smith v. Smith, Sec'y of Revenue, 85 Dauph. 4 (C.P. 1966). Next he petitioned the Court of Quarter Sessions of Union County at the same number, term and year of the criminal case in which he was sentenced, to rescind, recall, revoke and declare null and void and of no effect the certificate aforesaid issued by its clerk. Following a hearing on that ...