decided: June 22, 1971.
SAKALA MOTOR VEHICLE OPERATOR LICENSE CASE
Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, No. C-3060 of 1968, in case of Commonwealth of Pennsylvania v. Michael Kenneth Sakala.
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.
[ 219 Pa. Super. Page 175]
Appellee, while possessing a junior operator's license,*fn1 was arrested for speeding on July 22, 1968; on July 31, 1969, he paid the fine and costs for this violation.
[ 219 Pa. Super. Page 176]
A report of the conviction was forwarded to the Bureau of Transportation, Department of Traffic Safety, which scheduled a hearing. Instead of appearing at the departmental hearing, appellee submitted an affidavit containing information he wanted the secretary to consider when reviewing his case. Thereafter, the secretary suspended appellee's license for a period of two months, effective December 13, 1968, pursuant to § 604.1(a) of The Vehicle Code of April 29, 1959, P. L. 58, as amended, 75 P.S. § 604.1(a). Appellee then appealed this suspension, pursuant to § 620 of The Vehicle Code.
The court below, in setting aside this suspension, held that the action of the secretary in suspending appellee's license was arbitrary, unreasonable, and discriminatory because: (1) extenuating circumstances were not considered by the secretary, and (2) the suspension was accomplished without an administrative hearing.
[ 219 Pa. Super. Page 177]
Section 604.1(a) provides in pertinent part: ". . . [I]n the event that a licensed junior operator is involved in an accident for which he is partially or fully responsible . . . or is convicted of any violation of 'The Vehicle Code' . . . the secretary may, after a hearing, suspend the operating privileges of such junior operator until he has reached the age of eighteen (18) years, or for any other period of time." Pursuant to this section, the secretary may suspend for any reasonable period so long as the offense occurred while the licensee possessed a junior license. Criswell Motor Vehicle Operator License Case, 219 Pa. Superior Ct. 170, 280 A.2d 553 (1971). Since § 604.1(a) says the secretary "may" suspend, suspension pursuant to this section is discretionary and the lower court hearing an appeal under § 620 hears the case de novo and determines anew whether the operator's license should be suspended. Commonwealth Page 177} v. Funk, 323 Pa. 390, 399, 186 A. 65, 69 (1936).*fn2 Despite the fact that a de novo hearing is held, the lower court must follow certain guidelines. In Commonwealth v. Buchser, 185 Pa. Superior Ct. 54, 57, 138 A.2d 191, 192-93 (1958), the court stated:
"In Bureau of Highway Safety v. Wright . . . our Supreme Court said: 'The jurisdiction conferred by Sec. 616 [now § 620] of the Vehicle Code upon courts of common pleas [and the County Court] does not authorize them to act either arbitrarily or capriciously with respect to the reinstatement of a suspended license. There must be a justifiable factual basis for the court's action in the premises.'
"In the order of the court below we find no justifiable factual basis for sustaining the appeal of appellee. The hearing was de novo, and the court made no finding that the offense with which appellee was charged and convicted had not been committed. As said in Com. v. Emerick . . . '. . . on a hearing de novo, on appeal, the court of common pleas [and the County Court], while entitled to act independently in the exercise of its discretion, must, nevertheless, act in accordance with the evidence and circumstances presented.'" (Emphasis added.)
In this case only two witnesses testified: A state police trooper testified as to the facts*fn3 surrounding the
[ 219 Pa. Super. Page 178]
arrest and verified that appellee paid the fine and costs arising from that arrest. The appellee then testified, stating that he turned 18 some 17 days after the effective date of suspension and admitted that he submitted an affidavit in lieu of attending a departmental hearing.
The secretary justified the suspension when he showed by sufficient evidence that the offense was committed. Oesterling Appeal, 347 Pa. 241, 31 A.2d 905 (1943). Furthermore, excessive speed alone is enough to justify a suspension. Commonwealth v. Moogerman, 385 Pa. 256, 122 A.2d 804 (1956); Lucchetti Motor Vehicle Operator License Case, 213 Pa. Superior Ct. 397, 249 A.2d 783 (1968). Since the reason for the suspension was shown, we find no justifiable basis, on the facts presented in the above paragraph, for setting aside this suspension. The court below found an extenuating circumstance in that appellee's license would not have been suspended if he had been an adult; however, this Court has often supported the distinction between suspending a junior license in a situation where an adult would have had only points assigned to his record. See Criswell, supra; Angelicchio Motor Vehicle Operator License Case, 213 Pa. Superior Ct. 409, 249 A.2d 788 (1968). The court below also found that the secretary was guilty of an arbitrary and discriminatory suspension when he suspended appellee's license without administrative hearing. This finding is error not only because an administrative hearing may be waived, Commonwealth v. Kohan, 385 Pa. 264, 122 A.2d 808 (1956), but also because the appellee testified that he submitted an affidavit in lieu of a hearing. He could have asked for a postponement of the hearing but preferred to submit the affidavit. In these circumstances, the action of the secretary was not arbitrary, unreasonable, and discriminatory and the suspension must stand.
[ 219 Pa. Super. Page 179]
The order of the court below is reversed and the order of suspension of the Secretary of Revenue is reinstated.
Order of court below reversed and order of secretary reinstated.