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COMMONWEALTH v. JENKS (11/08/72)

decided: November 8, 1972.

COMMONWEALTH
v.
JENKS



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Commonwealth v. Joan Jenks, No. 71-5933.

COUNSEL

Joseph P. Phelps, Jr., with him Koch, Phelps and Salus, for appellant.

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 appellee.

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

Author: Blatt

[ 6 Pa. Commw. Page 547]

This is an appeal from an order of the Court of Common Pleas of Montgomery County upholding the suspension of the appellant's motor vehicle operating privileges.

An information had been filed with a District Justice charging the appellant, Joan Jenks (Jenks), with violating § 626 of The Vehicle Code, Act of April 29, 1959, P.L. 58, 75 P.S. § 626,*fn1 and she was required to pay a fine and costs amounting to thirty dollars. Based

[ 6 Pa. Commw. Page 548]

    on this information, and following a departmental hearing, her operating privileges were suspended for two months by the Secretary of Transportation. Pursuant to the provisions of § 620 of The Vehicle Code, 75 P.S. § 620, Jenks then appealed to the court below, which heard the matter de novo as mandated by Commonwealth v. Emerick, 373 Pa. 388, 96 A.2d 370 (1953). It held that the burden is on the appellant in a § 626 case to show that he had no knowledge or reason to know that the person to whom he had given a motor vehicle had no legal right to operate it, and that Jenks, having failed to carry this burden, was subject to the suspension of her license.

The facts apparently were that Jenks was in possession of an automobile, title to which was in the name of her estranged husband. The undisputed testimony of the husband was to the effect that she had complete control over the automobile and that title would be transferred to her when their divorce was final. On March 25, 1970, Jenks loaned the car to one Charles Konkenski (Konkenski) whom she had then known for about three or four weeks. Konkenski was subsequently stopped by a police officer, and it was then determined that he had no operator's license. Jenks testified that she had seen Konkenski driving his own car and had once glimpsed what she had believed to be a Maine operator's license in his wallet. There was no other testimony introduced by either side pertaining to Jenks' knowledge of Konkenski's right to operate a motor vehicle. The court stated that it did not believe Jenks' testimony and, therefore, it sustained the license suspension as ordered by the Secretary.

The essential issue in this case is whether or not Jenks must have had knowledge that Konkenski had no legal right to operate an automobile if her license is now to be suspended for a § 626 violation. If such

[ 6 Pa. Commw. Page 549]

    knowledge is necessary, the resulting issue is whether the burden is on the Commonwealth to prove that she had such knowledge ...


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