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COMMONWEALTH v. SHERO (05/26/72)

decided: May 26, 1972.

COMMONWEALTH
v.
SHERO



Appeal from the Order of the Court of Common Pleas of Cambria County in case of Commonwealth of Pennsylvania v. Francis Shero, No. 238 December Term, 1971.

COUNSEL

Stuart A. Liner, 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.

Harry A. Englehart, Jr., with him Englehart, Creany, Englehart & Leahey, for appellee.

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

Author: Mencer

[ 5 Pa. Commw. Page 474]

The Commonwealth has appealed from an order of the Court of Common Pleas of Cambria County which reversed the action of the Secretary of Transportation in suspending the operator's license of one Francis Shero (appellee) for ninety (90) days.

In Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359, 368, 243 A.2d 464 (1968), it was held that "[a]t the hearing before the lower court the Commonwealth should produce the records of convictions received by the Department of Revenue [now Department of Transportation]*fn1 from the magistrates and courts of record in the proper form, and the secretary's record compiled therefrom which justified the suspension."

Here the Commonwealth produced a single exhibit at the hearing before the lower court. This exhibit was

[ 5 Pa. Commw. Page 475]

    a copy of a traffic citation indicating a disposition by a "found guilty" adjudication. The signature of the person signing the adjudication was illegible and the Commonwealth's attorney so admitted for the record. This exhibit was not certified as true and correct by the Secretary of Transportation (Secretary).

Much more fatal to the Commonwealth's case is that no record was offered of the other underlying convictions*fn2 to support the point record of the appellee. The production of such records is an essential prerequisite under the holding of Virnelson Motor Vehicle Operator License Case, supra. If the suspension of an operator's license is to rest upon the record of points assessed by the Secretary, that record must be complete, self-sustaining and certified to be true and correct. The following colloquy is found in the record:

"By Mr. Nassau [Commonwealth's attorney]: I would also like to state for the record our file is lacking any conviction report from a magistrate of a hearing, and is also lacking any ...


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