Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Commonwealth of Pennsylvania, Department of Transportation v. Anthony A. Hosek, Jr., No. SA-1007.
David A. Johnston, Jr., Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellant.
John M. Means, with him Smith, Hodel & Means, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
The Court of Common Pleas of Allegheny County sustained the appeal of Anthony A. Hosek, Jr. from the revocation of his operator's license by the Secretary of Transportation. The Commonwealth has appealed.
Mr. Hosek was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor. Section 618 of The Vehicle Code, Act of April 29, 1959, P.L. 58, 75 P.S. § 618, provides that the Secretary may suspend the operating privileges of a person who he finds has committed any offense for the conviction of which mandatory revocation of license is provided by the Code. Pursuant to Section 618, the Secretary by notice dated December 12, 1968, suspended Mr. Hosek's driving privileges for six months. At or about the expiration of this time the Secretary advised Mr. Hosek that he might, as of June 24, 1969, apply for restoration of his license by providing proof of financial responsibility. Mr. Hosek then obtained insurance at the cost of $311 per annum, quit his employment as a mover's helper and took a job as a truck driver. His license was restored on October 8, 1969. However, on May 19, 1969, Mr. Hosek had been convicted of the offense with which he had been previously charged. Section 616(a) of The Vehicle Code, 75 P.S. § 616(a), provides that upon the receipt of a certified record of proceedings in which an operator was found guilty of operating a motor vehicle while under the influence of intoxicating liquor, the Secretary "shall forthwith revoke" the license for a period of one year. The certification in Mr. Hosek's case was received by the Secretary's office not later than July 3, 1969. On November 6, 1970, the Secretary revoked Mr. Hosek's license for one year with a credit of six months for the period served on the same violation.
The Commonwealth presents us with two issues:
First, it contends that there is no right to appeal from the Secretary's action in revoking a license, as distinguished from the action of suspension. Section 620 of The Vehicle Code, 75 P.S. § 620, so provides, and case authority so held. Brennan's Case, 344 Pa. 209,
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A.2d 155 (1942); Ullman Motor Vehicle Operator License Case, 204 Pa. Superior Ct. 145, 203 A.2d 386 (1964). However, both the statute and the cited cases predate Article V, Section 9 of the Commonwealth's Constitution, adopted April 23, 1968, and providing: "There shall be a right of appeal in all cases to a court of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law." In pursuance of this mandate, the Legislature by enactment made December 2, 1968, effective January 1, 1969, amended the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. § 1710.1, by the addition of a Section 47, 71 P.S. § 1710.47, pertinently as follows: ". . . where the applicable acts of assembly are silent on the question of judicial review, any person aggrieved by such an adjudication [of an agency] . . . may nevertheless appeal the same . . . to the Court of Common Pleas of Dauphin County." By the same amendatory legislation new Section 47 was made applicable to agencies which by Section 51 were otherwise excluded from the provisions of the Administrative Agency Law, thus embracing the Department of Transportation. At this point, therefore, it would appear (1) that there was thus provided an appeal from an adjudication of revocation, previously denied, and (2) that such appeal would be to the ...