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COMMONWEALTH v. MCCARTNEY (06/29/71)

decided: June 29, 1971.

COMMONWEALTH
v.
MCCARTNEY



Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. SA-735 of 1970 in case of Commonwealth of Pennsylvania v. James F. McCartney.

COUNSEL

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

Rocco Viola, Jr., with him Edward A. Tobias, Tobias & Viola, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 2 Pa. Commw. Page 542]

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 James F. McCartney for one year.

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. Garman, 361 Pa. 643, 66 A.2d 271 (1949); Commonwealth v. Emerick, 373 Pa. 388, 96 A.2d 370 (1953); Commonwealth v. Halteman, 192 Pa. Superior Ct. 379, 162 A.2d 251 (1960).

Appellee filed a Motion to Quash on the ground that the appeal was not perfected until a date beyond the 30-day appeal period as set down in the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. (Act No. 223), 17 P.S. § 211.502(a). An examination of the record reveals that the appeal was taken within the thirty-day period, and the Motion to Quash is therefore denied.

On February 9, 1968, appellee was involved in an automobile accident. Since he did not have liability insurance at the time, as required by law, he was required to post security with the Secretary. He did not do so and as a result his operator's license was suspended on October 4, 1968. This suspension lasted until March 6, 1969, when the Secretary restored appellee's operator's license to him. On November 17, 1968, appellee was apprehended for violating Section 624(6) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 624(6), for operating a motor vehicle while his license was under suspension, and subsequently

[ 2 Pa. Commw. Page 543]

    was found guilty in the Court of Common Pleas of Allegheny County of the misdemeanor of operating a motor vehicle while under suspension. A report of this conviction was certified by the Clerk of Court of Allegheny County and sent to the Secretary, who then implemented a suspension under Section 618(a)(2) of The Vehicle Code, as amended, 75 P.S. § 618(a)(2), and imposed a one year suspension effective August 12, 1970. 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 lower court's opinion gives the following statement of the circumstances of the period during which appellee was originally suspended and then arrested for driving while under suspension: "During this period repair of the brakes of the family car was absolutely necessary. The only day available in the busy schedule of the defendant for such repairs was Sunday. On November 17, 1968, Mrs. McCartney drove from their home in Ambridge to her place of employment in Wexford. Mr. and Mrs. McCartney were unable to find anyone to drive the defendant a distance of seven miles from her place of employment to his father's home where the tools and facilities for the repair of the brakes were available. The father of the defendant was unable to drive because of his health. The defendant set out to drive the seven miles from the place of his wife's employment to his father's home. The defendant drove only three miles of the total journey to a place where there was a routine spot check of vehicles being conducted by the Pennsylvania State Police. Although no violation of the Vehicle Code was involved in the defendant's being stopped, he was unable to produce a license; it having been suspended under the financial responsibilities of the provisions of the Vehicle Code. . . . Considering all of the circumstances

[ 2 Pa. Commw. Page 544]

    of the offense, including extenuating facts and lack of aggravating circumstances, the Court is of the opinion that there was an abuse of discretion in ordering an ...


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