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 ...