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COMMONWEALTH PENNSYLVANIA v. ROBERT FRANK MILSPAW (03/09/71)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 9, 1971.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT FRANK MILSPAW

Direct appeal to the Commonwealth Court of Pennsylvania from the order of the Court of Common Pleas, Civil Division, of the County of Washington, at No. 348 July Term, 1970, in case of the Commonwealth of Pennsylvania v. Robert Frank Milspaw.

COUNSEL

Anthony J. Maiorana, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellant.

Clarence A. Crumrine, with him Stephen D. Marriner, and McCreight, Marriner & McCreight, for appellee.

Judges Kramer, Wilkinson, Jr., and Rogers, sitting as a panel of three.

Author: Per Curiam

[ 1 Pa. Commw. Page 377]

This case involves an appeal from an Order of the Court of Common Pleas of Washington County, dated November 2, 1970. This order sustained the appeal of Robert Frank Milspaw (appellee) from the findings of the Secretary of Revenue (now called Secretary of Transportation) suspending appellee's operator's license for a period of three months.

[ 1 Pa. Commw. Page 378]

The Vehicle Code (Act of August 6, 1963, P.L. 509, as amended, 75 P.S. 620), provides that the Courts of Common Pleas, in appeals arising from the suspension of operator's licenses, are directed to hear such cases de novo. The Common Pleas judge has the duty to make findings of fact sufficient to support the Order of Court. Commonwealth of Pennsylvania v. Jerry M. Page 378} Royer, 213 Pa. Super. 17, 245 A.2d 716 (1968), Handwerk Appeal, 348 Pa. 263, 35 A.2d 289 (1944), Commonwealth v. Wagner, 364 Pa. 566, 73 A.2d 676 (1950).

In the instant case the Judge failed to make findings of fact, and it is therefore not possible for an appellate court to review the resultant order. When the proper procedure is not followed, the matter should be remanded so that the court below may discharge its responsibility. Commonwealth v. Strobel, 375 Pa. 292, 100 A.2d 43 (1953), Commonwealth v. Strobel, 378 Pa. 84, 105 A.2d 152 (1954).

Furthermore, the rather incredible time sequence and surrounding circumstances as alleged by the appellant necessitates definitive and clear findings of fact. The failure on the part of the Judge below to so comport requires us to remand.

Therefore, in keeping with this opinion we issue the following

Order

And Now, March 9, 1971, this case is remanded to the Court of Common Pleas of Washington County for disposition in accordance with the above opinion.

Disposition

Remanded.

19710309

© 1998 VersusLaw Inc.



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