Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. SA-727, 1970 in case of Commonwealth of Pennsylvania v. John Paul Pison.
Anthony J. Maiorana, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellant.
No appearance for appellee.
Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Allegheny County reversing the order of the Secretary of Revenue
(now the Secretary of Transportation) suspending the motor vehicle license of John Paul Pison for two months.
In appeals of this nature our duty is to examine the testimony to determine whether the findings of the court below are supported by competent evidence and to correct any erroneous conclusions of law, and the action of the lower court will not be disturbed on appeal except for manifest abuse of discretion. Commonwealth v. James F. McCartney, 2 Pa. Commonwealth Ct. 540, 279 A.2d 77 (1971), and cases cited therein.
The appellee was apprehended as a result of a radar speed check on September 26, 1969, for driving his automobile at 82 m.p.h. in a 65 m.p.h. zone on Interstate 80 near its intersection with Route 8, and was charged with a violation of Section 1002(b)(8) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1002(b)(8). Appellee paid a fine for his violation and was subsequently ordered to appear for a hearing before a representative of the Secretary. A departmental hearing was held, at which appellee appeared, and, based on information on file and evidence adduced at the hearing, a suspension of two months, beginning August 11, 1970, was imposed as authorized by Section 618(b)(2) of The Vehicle Code, as amended, 75 P.S. § 618(b)(2). The appellee then appealed to the Court of Common Pleas of Allegheny County which reversed the Secretary's order. This appeal by the Commonwealth followed. This is not a Point System case.
The following circumstances and reasons were set forth by the lower court in justification for its decision: "After having heard the testimony, the reason for sustaining the appeal of the defendant was the testimony as to extenuating circumstances. There is no question that the defendant did exceed the posted speed limit in accordance with the testimony of the state police officer. The defendant was operating his auto on a downgrade
on a newly constructed limited access highway when traffic was light. Defendant is married with two children and is employed by United States Steel as an electronic technician. The only way that defendant can get to and from his place of employment in Allegheny County, which is a round trip distance of 35 miles each day, is by automobile. Defendant testified that on May 26, 1970, he and his father was [sic] in the auto and were experiencing difficulty with the vehicle. The automobile was overheating when operated at a low speed and began 'bucking or missing'. In an effort to clear the engine trouble, defendant speeded his auto on an upgrade intending to immediately slow to a normal speed. If the tactic did not work defendant testified he probably would have to pull off the road. Defendant did stop accelerating at the crest of the hill and then saw the radar operator on the downgrade. The defendant testified that he accelerated his auto that one particular instant and the trooper was there at that particular moment. * * * Considering the testimony of the defendant as truthful, the court sustained the appeal on the ...