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COMMONWEALTH v. JAMES (11/10/72)

decided: November 10, 1972.

COMMONWEALTH
v.
JAMES



Appeal from the Order of the Court of Common Pleas of Centre County, in case of Commonwealth of Pennsylvania v. Robert D. James, No. 120 October 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.

Donald L. Faulkner, with him Lugg & Snowiss, for appellee.

Judges Kramer, Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 6 Pa. Commw. Page 494]

The Commonwealth has appealed from an order of the Court of Common Pleas of Centre County sustaining the appeal of Robert D. James (James) from the Secretary of Transportation's suspension of his operator's license.

The Secretary notified James that three points had been assigned to his record because of a violation of Section 1004 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1004, and, since this brought his total point accumulation to eleven points, that his operator's license was suspended for 60 days as mandated by Section 619.1, sub-sections (i) and (k), 75 P.S. § 619.1(i) and (k).

[ 6 Pa. Commw. Page 495]

James's appeal was sustained by the lower court because "the defendant never paid the fine and costs nor authorized it to be done . . . there never was a conviction" for the Section 1004 violation. The court then "venture[d] into virgin territory. Since there was no conviction, the defendant deserves a hearing on the merits. Rather than refer the matter back to the magistrate, we believe, in the interests of justice, that this court should proceed with a hearing de novo. The commonwealth consented to and agreed with the court's suggestion. From an extensive evidentiary hearing, we find that the facts do not warrant a conviction and we find the defendant not guilty. . . ." The court then reversed the Secretary's order and set aside James's suspension.

The recorded facts subsequent to the Section 1004 violation, which occurred on January 6, 1971, are somewhat incomplete because no testimony was received from the District Justice involved. James contends that after he received an information from the Justice, he called that official (in late January) and requested a hearing on the charge, that the Justice advised him that he would consult with the arresting officer and notify James when a hearing was scheduled, that, after several weeks passed, he (James) again called the Justice and was informed that he would receive notification from the Justice when a date was set.

James denies ever seeing a letter, dated January 27, 1971, from the Justice to him which reads: "This letter is in regards to your traffic violation of failure to drive on [the] right side of the highway. The fine and costs of $15.00 were due on the 18th day of January, 1971. If payment is not received by the 2nd day of February, 1971, a warrant of arrest will be issued."

Then, over four months after the Section 1004 violation, sometime in mid-May, ...


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