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KORNS MOTOR VEHICLE OPERATOR LICENSE CASE (12/10/69)

decided: December 10, 1969.

KORNS MOTOR VEHICLE OPERATOR LICENSE CASE


Appeal from order of Court of Common Pleas of Somerset County, No. 4 Miscellaneous Docket, 1969, in case of Commonwealth of Pennsylvania v. Miller J. Korns.

COUNSEL

Anthony J. Maiorana, Assistant Attorney General, with him R. Joel Weiss and Elmer T. Bolla, Deputy Attorneys General, and William C. Sennett, Attorney General, for Commonwealth, appellant.

Joseph N. Cascio, with him Fike, Cascio & Boose, for appellee.

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

Author: Jacobs

[ 216 Pa. Super. Page 8]

This appeal, brought by the Commonwealth, involves the suspension of appellee's operator's license for 60 days under section 619.1(k) of The Vehicle Code, 75 P.S. § 619.1(k). Appellee, a physician, was convicted of driving 76 miles per hour in a 65 mile per hour zone. For this conviction the Secretary of Revenue, hereinafter referred to as secretary, assigned six points to appellee's record as mandated by section 619.1(b) of The Vehicle Code for exceeding the speed limit by eleven miles per hour. This brought into play section 619.1(f) of The Vehicle Code which provides as follows:

"(f) When any person's record for the first time shows as many as six (6) points, the secretary shall require such person to undergo a special examination as provided for in section 608(g) of this act, or require such person to attend an approved driver improvement school, or require such person to attend a clinic, or any combination of the foregoing and shall so notify the person in writing. When a driver has successfully attended and passed the course at a driver improvement

[ 216 Pa. Super. Page 9]

    school, his record shall be credited with one (1) point for such attendance. If any person fails to attend and satisfactorily complete the requirements of such examination, school or clinic, an additional five (5) points shall be assigned to his record, and his operator's license or learner's permit shall be suspended as provided in subsection (k) of this section." (Emphasis supplied.)

The secretary directed the appellee to attend a driver improvement school. Instead of attending, appellee appealed from the imposition of six points and the requirement that he attend driver improvement school. The court below quashed the appeal, but requested the secretary to afford appellee another opportunity to attend driver improvement school. Accordingly, the secretary directed appellee to attend the driver improvement school at Somerset Junior High School for "an eight hour course consisting of four two-2-hour classes" commencing on Monday, December 2, 1968, at 7:00 p.m. After receiving the notice from the instructor that appellee had not attended the school, the secretary assigned an additional five points to appellee's record. The secretary then suspended appellee's license for 60 days as required by section 619.1(f), above quoted, and section 619.1(k) which fixed the length of the suspension.

The appellee appealed from this suspension to the court below. At the hearing the Commonwealth presented no testimony, but entered in evidence the record of conviction for speeding, the notice to attend the driver improvement school beginning December 2, 1968, the school results as certified by the instructor, and appellee's point card. Appellee testified that he attended the first meeting but left at intermission because he was on emergency duty at the hospital and there was no available telephone at the school. He

[ 216 Pa. Super. Page 10]

    stated that the balance of the course was then reduced to two sessions of three hours each. He testified that he arrived at the second session about one hour late and at intermission was told by the instructor that he couldn't pass the course and might as well go home. He claims that he did not appear for the third session because he was told he couldn't pass. The lower court made no findings of fact, but sustained the appeal saying in its order that it had exercised its independent discretion after considering the record and all the attending ...


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