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DUNKLIN MOTOR VEHICLE OPERATOR LICENSE CASE (06/22/71)

decided: June 22, 1971.

DUNKLIN MOTOR VEHICLE OPERATOR LICENSE CASE


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, No. SA-273 of 1970, in case of Commonwealth of Pennsylvania v. William Dunklin.

COUNSEL

Anthony J. Maiorana, Assistant Attorney General, with him Elmer T. Bolla, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellant.

No oral argument was made nor brief submitted for appellee.

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

Author: Jacobs

[ 219 Pa. Super. Page 190]

In this case, the Commonwealth appeals from the order of the court below reversing the action of the Secretary of Revenue in suspending appellee's license for a period of 90 days, pursuant to § 619.1(k) of The Vehicle Code of April 29, 1959, P. L. 58, as amended, 75 P.S. § 619.1(k).

At the time of the hearing in the court below, the Commonwealth read the appellee's point record into evidence. This point record was based on the following violations, all of which occurred while he was driving a truck: On August 17, 1967, appellee was convicted of a moving violation on the turnpike other than speeding. Three points were assigned to his record, pursuant to § 619.1(b) of The Vehicle Code. On July 3, 1968, he was convicted of speeding (64 m.p.h. in a 55 m.p.h. zone) and three more points were assigned to his record. Since his record now totaled six points, the secretary required him to attend driver-improvement school as mandated by § 619.1(f). When he failed to attend the school, the secretary assigned five points to his record under § 619.1(f). Since his record now totaled

[ 219 Pa. Super. Page 19111]

points for the first time, his license was suspended for 60 days [§ 619.1(i) and (k)]; appellee served the suspension, his license was returned, and his point record showed five points, pursuant to § 619.1(m). Subsequently, he was convicted on November 22, 1968, for illegally driving through a traffic light and five more points were assigned to his record [§ 619.1(b)], making his points total ten. Finally, on December 17, 1969, he was convicted of speeding (55 m.p.h. in a 45 m.p.h. zone) and received three points. Since his points now totaled 11 or more points for a second time, the secretary suspended his license for 90 days [§ 619.1(i) and (k)], effective March 6, 1970; appellee appealed this suspension to the lower court.

In his petition to the lower court asking for relief, appellee's only allegation in support of the request for restoration of his driving privilege was that suspension of his license would result in an economic hardship for himself and his family because he was married, supported a wife and three children, and was a professional truckdriver. The lower court, basing its decision on the testimony taken at the hearing, found that the Commonwealth did not substantiate its claim that appellee did not attend driver-improvement school and, therefore, five points were improperly assessed. Thus, the court held that appellee had accumulated only eight points, not thirteen, and accordingly appellee's license was improperly suspended. We reverse.

In Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359, 243 A.2d 464 (1968), we held that, in reviewing a suspension mandated by the point system, the lower court's power of review is limited: ". . . in determining 'whether the petitioner is subject to suspension,' the lower court will merely determine whether there has been a compliance with section 619.1. At the hearing before the lower court the Commonwealth

[ 219 Pa. Super. Page 192]

    should produce the records of convictions received by the Department of Revenue from the magistrates and courts of record in the proper form, and the secretary's record compiled therefrom which justified the suspension. If these documents show that the suspension was given in accordance with the mandate of section 619.1, the Commonwealth has produced a prima facie case for suspension. If the defendant wishes he may then proceed to show that he was not convicted or that the records or the computation of the ...


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