Appeal from the Order of the Court of Common Pleas of Delaware County in case of Adolph O. Schaefer, Jr. v. Commonwealth of Pennsylvania, No. 2735 of 1972.
Stuart A. Liner, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
Joseph W. Atkinson, with him Silver, Lovitz & Atkinson, for appellee.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
On July 4, 1971, Adolph O. Schaefer, Jr. (Schaefer), was apprehended by an officer of the Lower Merion Township Police Department and given a citation for operating his motor vehicle at a rate of 58 m.p.h. in a 35 m.p.h. zone, a violation of § 1002(b)(4) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1002(b)(4).
Schaefer alleges that he heard nothing after receiving the citation until approximately four months later when he received notice of a hearing before the Bureau of Traffic Safety. At that hearing he was informed that he had paid the fine and costs for the violation on July 27, 1971. Schaefer denied that he or anyone on his behalf paid the fine and thereafter contacted the District Justice who was supposed to have received his payment of the fine. He was told that if the reverse side of the citation indicated that the fine had been paid then the matter was settled.
Meanwhile, having received a report of this conviction from the District Justice, the Secretary of Transportation, under § 619.1(a) of the Code, 75 P.S. § 619.1(a), assigned 6 points to Schaefer's record and imposed a mandatory suspension of his operator's license for 30 days. Schaefer appealed to the Court of Common Pleas of Delaware County which, after a hearing, sustained the appeal. This appeal by the Commonwealth followed.
The Commonwealth bases its appeal on our recent decision in Commonwealth v. Siedlecki, 7 Pa. Commonwealth Ct. 130, 300 A.2d 287 (1973), where we said:
"Secondly, the Commonwealth is not required to prove who actually paid the fine and costs. The lower court therefore was in error in this point system case in shifting that burden to the Commonwealth to go forward with proof beyond the records of convictions received by the Department of Transportation and the record of these convictions kept by the Secretary. Once the Commonwealth had submitted such proof, it had made out a prima facie case, and it was then incumbent upon Siedlecki to prove that (1) he was not convicted, or that (2) the records or computations of the Secretary were incorrect, the issue being whether the operator was convicted and not whether he should have been convicted. Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359, 243 A.2d 464 (1968).*fn1
"Since miscomputation of points is not averred here, what we recently said in Commonwealth v. James, 6 Pa. Commonwealth Ct. 493, 498, 296 A.2d 530, 532 (1972), is applicable: '[W]e interpret Virnelson ["If the defendant wishes he may then proceed to ...