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October 26, 1971

John REESE, Plaintiff,
Jacob G. KASSAB, Secretary of the Department of Transportation of Pennsylvania and Julius A. Trombetta, Director of the Bureau of Traffic Safety of Pennsylvania, Defendants

The opinion of the court was delivered by: WEIS

WEIS, District Judge.

The Pennsylvania "Point System" is under attack in this case, the plaintiff contending that the procedure providing for suspension of a driver's license without an administrative hearing violates the due process requirements delineated by the United States Supreme Court in the recent case of Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).

The statute enacted by the Pennsylvania legislature *fn1" provides a system of assessing "points" by the Secretary of the Department of Transportation upon receipt of notification of convictions of certain specified violations of the Motor Vehicle Code. Notice is given to the driver of the imposition of the points on each occasion and when a total of 11 points is accumulated, the Secretary is directed to suspend the operator's license for a period of 60 days. There are other provisions of the Act providing for point credits for attending driver improvement school, and also for each year of a conviction-free driving record.

 No administrative hearing is provided either upon each assessment of points or before suspension, but after the penalty has been imposed an appeal may be taken to the Court of Common Pleas, in the county wherein the licensee resides. *fn2"

 The Stipulation of Facts shows that the plaintiff John Reese is a truck driver whose livelihood depends upon his ability to operate a motor vehicle. His record with the Department of Transportation reveals the following:


1. An arrest on September 26, 1967 for speeding; fine and costs were paid without a hearing and 6 points were assigned by the Secretary on October 21, 1967.


2. Reese attended driver improvement school in January of 1968 and received a credit of 1 point.


3. On June 24, 1968 the plaintiff paid a fine and costs for violating Section 1028(a) of the Motor Vehicle Code dealing with traffic signals. Five more points were assigned.


4. No convictions having been entered from June 24, 1968 to June 2, 1969, the plaintiff received a credit of 2 points.


5. On July 30, 1969 Reese was charged with speeding, paid the fine and costs without a hearing. On receipt of notification of this proceeding, the Secretary assigned 3 points.

 Since the plaintiff at this point had a total of 11 points, his license was suspended by the Secretary for a period of 60 days. Thereafter, the plaintiff took an appeal to the Court of Common Pleas of Washington County, Pennsylvania, contending that he was not guilty of the violations for which points had been assessed and that there was a fatal variance between the information and conviction for violation of Section 1028(a) of the Motor Vehicle Code which was alleged to have occurred on June 24, 1968 (item 3 above).

 The Court of Common Pleas granted the Commonwealth's motion to quash the appeal and on a motion for rehearing, the previous ruling was affirmed, the court relying upon the case of Commonwealth v. Virnelson, 212 Pa. Super. 359, 243 A. 2d 464 (1968) which held that there could be no review of the facts behind the convictions giving rise to the assessment of points and that the only matter which might be shown was improper calculation of the points. Under Pennsylvania law payment of fine and costs is equivalent to a plea of guilty and in the context of this case would be an admission of a conviction. Commonwealth v. Virnelson, supra.

 Reese perfected an appeal to the Superior Court of Pennsylvania which affirmed the action of the Common Pleas Court. The Supreme Court of Pennsylvania refused to grant allocatur.

 Alleging that the Point System Act was unconstitutional, the plaintiff then filed this suit for an injunction to prohibit the Secretary from suspending his license. Since the requisite jurisdictional grounds exist, this three-judge statutory court was convened.

 There can be no quarrel with the Commonwealth's position that in order to regulate the use of its highways, the state does have power to enact the Point System Plan into law and that it may use infractions of the Vehicle Code as a basis for license suspension. We may say further that the legislation is an intelligent and commendable effort to diminish the carnage on our highways by focusing attention on the most common cause of accidents, the careless and code-violating driver. However, it is not enough that the substantive provisions of a statute pass constitutional muster because it is also necessary that the methods of administration meet appropriate standards of due process.

 Bell v. Burson, supra, makes it clear that even if denominated a privilege, as the Pennsylvania Court did in Commonwealth v. Funk, 323 Pa. 390, 186 A. 65 (1936), nevertheless an operator's license is not to be taken away by state action which fails to comply with procedures required by the Fourteenth Amendment.

 The Commonwealth in its brief concedes, and our independent examination confirms, that the "Point System" Act makes no provision for departmental administrative hearing at any time before suspension. Section 618(h) of the Vehicle Code provides that after notice of suspension, any person may request a departmental hearing but it is not the practice to notify the licensee of the availability of this opportunity. *fn3" See In Re Hamsher Motor Vehicle Operator License Case, 196 Pa. Super. 336, 175 A.2d 303 (1961). Similarly, judicial review under Section 620 of the Code is provided only after suspension.

 We find that this falls short of what the Constitution requires. As was said in the Bell case:


"* * * it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective." 402 U.S., at 542, 91 S. Ct., at 1591.

 Here the state furnished neither notice nor opportunity for Reese to be heard either at an administrative hearing or de novo before a court before the termination.

 The Commonwealth contends that because the action of suspension by the Secretary is not discretionary under the Act, an administrative hearing is not required.

 We point out, however, that even if the convictions cannot be contested, there still remain the possibilities, among others, that the convictions were those of another person with the same name; that the fines and costs were paid on an information at variance with that for which the minor judiciary entered a conviction as plaintiff contends occurred in this case; that the points were improperly calculated; that credits were wrongfully withheld; or that there were errors on the report of conviction form. In none of these instances is there a provision for a hearing before suspension even though notice of the assessment of points is given. *fn4" Notice without opportunity to rectify error obviously is not sufficient.

 As an indication that an administrative hearing before suspension would not be a novel or undue burden on the Commonwealth -- even if that were material -- we point out that 75 P.S. ยง 618(b) requires that a hearing be held before suspension in certain enumerated situations, some of which involve mandatory revocation in the event of conviction in the criminal courts.

 Furthermore, the state's Motor Vehicle Safety Responsibility Act *fn5" utilizes license suspension as a sanction and, while the Commonwealth contends that such action by the Secretary is discretionary, in practice it has been utilized as a matter of course when there has been a failure to comply with the statute. In Ortiz v. DePuy, 444 F.2d 429 (1971) the Court of Appeals of this Circuit was advised that Pennsylvania was revising its administrative procedures by requiring a prior adversary hearing to comply with the holding in Bell v. Burson, supra.

 There is nothing in Sections 618 or 619 which would prevent the Department of Transportation from promulgating appropriate regulations to provide for a prior administrative hearing in Point System cases, just as is being done in Financial Responsibility matters.

 In short, we hold that before an operator's license can be suspended by the Secretary under the terms of the Pennsylvania Point System, there must be notice and opportunity for hearing before the action becomes effective.

 We share the concern for necessary highway safety programs discussed in the concurring opinion and emphasize that the ruling in this case will not impair the effective operation of the Point System in any material fashion.

 Plaintiff also contends that the statute involves an unlawful delegation of power by the legislature to the Secretary and that the failure of the Commonwealth to produce certain records in the Court of Common Pleas constituted lack of due process. In view of our disposition of the case, we do not feel it necessary to pass upon these points particularly since they are of doubtful validity.

 An appropriate injunction will be issued.

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