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COMMONWEALTH v. OLINGER (01/11/73)

decided: January 11, 1973.

COMMONWEALTH
v.
OLINGER



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Joseph E. Olinger, No. S.A. 14 of 1970.

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.

Allen N. Brunwasser, for appellee.

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

Author: Kramer

[ 7 Pa. Commw. Page 161]

This is an appeal by the Department of Transportation (DOT) from an order of the Court of Common Pleas of Allegheny County sustaining the appeal of Joseph E. Olinger (Olinger) from a suspension of Olinger's motor vehicle operator's license by the Secretary of DOT.

The pertinent facts are that on December 16, 1968. Olinger was apprehended for a violation of Section 624(6) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. ยง 624(6), charging that

[ 7 Pa. Commw. Page 162]

Olinger operated a motor vehicle while his operator's license was under a prior suspension. On September 5, 1969, in criminal court Olinger was found guilty of the before-mentioned charge and sentenced to pay a fine and costs. After receiving the court's certification of said conviction, the Secretary of DOT suspended Olinger's operating license on October 6, 1969, for a one year period, effective January 6, 1970. After receiving the notice of suspension, Olinger appealed the suspension to the Court of Common Pleas of Allegheny County in which a supersedeas was granted on January 9, 1970. Olinger's operating privileges were thereby restored on January 15, 1970. After at least two continuances the matter was heard by the lower court on October 22, 1970, at which time the matter was again continued for a hearing de novo on October 26, 1970. At this later date a full hearing was held. On January 7, 1971, the court below sustained the appeal as hereinbefore stated. On February 3, 1971, DOT filed an appeal in this Court. On February 11, 1971, Certiorari was filed in the lower court. The record discloses that the official notes of testimony for the short transcript disclosing the continuance held October 22, 1970, were filed March 3, 1971. Nothing further transpired in this case until January 18, 1972, at which time the lower court record was filed with the Prothonotary of this Court.*fn1 On February 24, 1972, Olinger filed a Motion To Quash the appeal contending that DOT had not followed the rules of this Court, in failing to file the printed record within the prescribed time.*fn2 On March

[ 7 Pa. Commw. Page 1637]

, 1972, Olinger filed a petition requesting that the case be transferred to the next argument list to be held in Pittsburgh. In response to these last two mentioned pleadings, President Judge Bowman of this Court issued the following order:

"And now this 10th day of March, 1972, upon motion of Allen N. Brunwasser, attorney for appellee-petitioner at No. 87 C.D. 1971, it is hereby ordered as follows:

"1. The case shall be heard on the next 1972 argument list in Pittsburgh, Pennsylvania & stricken ...


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