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COMMONWEALTH PENNSYLVANIA v. ETHEL BATLEY VAIRO (07/19/73)

decided: July 19, 1973.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT,
v.
ETHEL BATLEY VAIRO, APPELLEE



Appeal from the Order of the Court of Common Pleas of Clarion County in case of Commonwealth of Pennsylvania v. Ethel Batley Vairo, No. 59 August Term, 1972.

COUNSEL

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.

Ethel Batley Vairo, appellee, for herself.

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

Author: Mencer

[ 9 Pa. Commw. Page 456]

On December 23, 1971, Ethel Batley Vairo (appellee), while traveling east on Interstate Route 80, was apprehended by an officer of the Pennsylvania State Police and charged with driving at a speed fifteen miles per hour over the posted sixty-five-mile per hour limit, in violation of Section 1002(b)(8) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1002(b)(8). Information was filed before a local magistrate and appellee subsequently paid fine and costs in the amount of fifteen dollars. On July 5, 1972, appellee appeared at a hearing conducted by a Bureau of Traffic Safety representative where evidence of a prior speeding violation, for which only a warning letter was issued, as well as of an alleged Section 1016 violation,*fn1 was admitted. Pursuant to findings of the departmental examiner and under authority of Section 618(b)(2) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 618(b)(2), appellee's license was suspended for thirty days, effective October 24, 1972. Appellee petitioned for appeal to the Court of Common Pleas of Clarion County September 26, 1972, and a hearing de novo and a supersedeas to the suspension order were granted. On November 2, 1972, the court below sustained the appeal, and the Commonwealth filed this appeal from the lower court's order on December 1, 1972, in an attempt to reinstate the Secretary's suspension.

[ 9 Pa. Commw. Page 457]

It is well established that upon appeal from a hearing de novo this Court will reverse the lower tribunal only where its findings are not supported by competent evidence or it made erroneous conclusions of law or its decision exhibits manifest abuse of discretion. Commonwealth v. Boylan, 6 Pa. Commonwealth Ct. 629, 297 A.2d 831 (1972); Commonwealth v. Pison, 2 Pa. Commonwealth Ct. 522, 279 A.2d 84 (1971).

In restoring appellee's operating privileges, the lower court was concerned about the fact that appellee's license was suspended for thirty days following a Section 1002(b)(8) violation of fifteen miles per hour over the posted speed limit, whereas Section 619.1 of The Vehicle Code, Act of April 29, 1959, P.L. 58, 75 P.S. § 619.1 (the point system section), would mandate a maximum penalty of only six points with no loss of driving privilege for a similar offense. The court concluded the Secretary had abused his discretion in directing license suspension for a violation governed by Section 618(b)(2) where such penalty was in excess of that established by the Legislature for an "identical" offense under Section 619.1.

However, Sections 618(b)(2) and 619.1 are not applicable to identical violations and are applied in the alternative, depending on the locality and circumstances of a speeding violation. Commonwealth v. Woods, 6 Pa. Commonwealth Ct. 359, 295 A.2d 612 (1972); Treadwell v. Commonwealth, 3 Pa. Commonwealth Ct. 221, 281 A.2d 373 (1971). In the instant case, appellee was exceeding by fifteen miles per hour a limit established under Section 1002(b)(8), a limit that "[t]he Secretary of [Transportation] may, after due investigation, establish . . . on State highways where traffic conditions or other conditions of the highway make it safe to operate motor vehicles at the speed other than as provided by this act." That one type of speeding

[ 9 Pa. Commw. Page 458]

    violation, covered by Section 1002(b)(8), is subject to Section 618(b)(2) discretionary penalties, while all others are subject to mandatory penalties of Section 619.1, is in no way a denial of Fourteenth Amendment rights and is entirely within the legislative prerogative. Commonwealth v. Woods, supra; Commonwealth v. Treadwell, supra.

The lower court incorrectly asserts that the Secretary has abused discretion granted under Section 618(b) ...


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