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COMMONWEALTH v. FISHER (07/28/72)

decided: July 28, 1972.

COMMONWEALTH
v.
FISHER



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. George S. Fisher, No. SA 805 of 1971.

COUNSEL

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

J. Craig Kuhn, with him Kuhn, Engle & Blair, for appellee.

Judges Kramer, Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 6 Pa. Commw. Page 160]

This is an appeal from an Order of the Court of Common Pleas of Allegheny County dated January 7, 1972, sustaining the appeal of George S. Fisher (Fisher) from a one-month suspension of his motor vehicle operator's license ordered by the Secretary of Transportation of the Commonwealth of Pennsylvania (Secretary). This is not what is commonly referred to as a "point system" case.

Although the record clearly indicates that the President Judge of the lower court set this matter for hearing on short notice, the Commonwealth proceeded with the hearing with no offer of proof of the Secretary's authority for the subject suspension. The record is devoid of any records (certified or otherwise) indicating the grounds upon which the suspension was based.

[ 6 Pa. Commw. Page 161]

The Commonwealth proceeded to offer the testimony of one witness, a Pennsylvania State policeman. He testified that at approximately 11:30 p.m., on March 12, 1971, while traveling in the company of another police officer in a northwardly direction on Interstate 79, near the intersection of Interstate 70 West, he observed Fisher's motor vehicle mired in the mud of the medial strip of Interstate 79. At the time, Fisher was attempting to extricate himself from his predicament. The police officers did not observe Fisher prior to the incident. They offered no testimony whatsoever as to how Fisher happened onto the medial strip. The police officer did offer the opinion that Fisher may have been attempting a U-turn. However, Fisher's explanation completely and satisfactorily countered the police officer's opinion.

The police officers arrested Fisher for a violation of Section 1019(a) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. 1019(a), which states: "No person shall drive a vehicle through or over a safety zone as defined in this act. Whenever any highway has been divided into two (2) or more roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway unless directed or permitted to use another roadway by official traffic-control devices or police officers. No vehicle shall be driven over, across or within any such dividing space, barrier or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection as established. Whenever necessary for the protection and safety of traffic, official signs may be erected at an opening in such physical barrier or dividing section or space or at a cross-over or intersection, prohibiting or regulating a turn or turns as may be necessary, pursuant to the authority of this

[ 6 Pa. Commw. Page 162]

    act or of any of the provisions of this act." Although there is nothing in this record to indicate what transpired after the arrest, it is understood that Fisher paid a fine under Section 1019(a) of The Vehicle Code, which fact apparently was reported to the Secretary. In any event, the Secretary, on October 21, 1971, revoked Fisher's motor vehicle operator's license for a period of one month. Fisher appealed to the court below from the suspension by the Secretary.

Fisher was entitled to an appeal from the suspension of his license to the Court of Common Pleas of Allegheny County (75 P.S. 620). Said appeal properly was heard de novo, and the lower court was imposed with the duty to determine the validity of the suspension. See Sakala Motor Vehicle Operator License Case, 219 Pa. Superior Ct. 174, 177, 280 A.2d 596, 598 (1971). Judge Jacobs, in the Sakala opinion, cites with approval the proposition enunciated by our Supreme Court in the case of Bureau of Highway Safety v. Wright, 355 Pa. 307, 311, 49 A.2d 783, 785 (1946): "There must be a justifiable factual basis for the court's action in the premises." Such a standard acts to facilitate a proper judicial review of suspensions. The scope of review of this Court is to determine whether or not the lower court abused its discretion or committed an error of law. Yockers v. ...


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