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COMMONWEALTH v. CHERNEY (11/26/73)

decided: November 26, 1973.

COMMONWEALTH, APPELLANT,
v.
CHERNEY



Appeal from order of Court of Common Pleas of Clarion County, Feb. T., 1972, No. 14, in case of Commonwealth of Pennsylvania v. Charles R. R. Cherney.

COUNSEL

J. L. Heaton, Stuart A. Liner, Reynold J. Kosek, and Anthony J. Maiorana, Assistant Attorneys General, and Israel Packel, Attorney General, for Commonwealth, appellant.

Henry Ray Pope, III, District Attorney, for Clarion County, appellant.

No brief submitted for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 454 Pa. Page 286]

This is an appeal by the Commonwealth of Pennsylvania from an order of the Court of Common Pleas,

[ 454 Pa. Page 287]

Criminal Division, of Clarion County, quashing a summary conviction proceeding.*fn1 The facts are as follows:

Charles Cherney was charged with violating Section 1002(b)(8) of The Vehicle Code [Act of April 29, 1959, P. L. 58, ยง 1002, as amended, 75 P.S. 1002(b)(8) (hereinafter referred to as Code)] for operating a motor vehicle at a speed of 89 miles per hour in a zone where the lawful speed was 65 miles per hour. After a hearing before a magistrate, he was adjudged guilty of the speeding violation and ordered to pay a fine of $10 and costs. Cherney appealed to the Court of Common Pleas of Clarion County. He then filed a motion to quash the proceeding and the court granted the motion ruling Section 1002(b)(8) of the Code was unconstitutional as an unlawful delegation of legislative power. The court also ruled Section 618(b)(2) of the Code*fn2 was unconstitutional for the same reason. The Commonwealth filed this appeal.*fn3

Turning our attention first to the trial courts ruling that Section 618(b)(2) of the Code is unconstitutional, we rule the validity of this statutory provision was not properly before the court. Section 618(b)(2) deals with the power of the Secretary of Transportation to suspend an operator's license if it is found that the operator has violated certain provisions of the Code. In the instant case, Cherney's operators license had not been revoked and it had not been suspended. This was not a justiciable issue because Cherney had not then been affected by the operation of this section of the

[ 454 Pa. Page 288]

Code. The fact that at some future time this section may operate to suspend his license is presently of no significance. See generally Pittsburgh Outdoor Advertising Co. v. ...


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