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DANIEL T. CIVITELLO v. COMMONWEALTH PENNSYLVANIA (01/24/74)

decided: January 24, 1974.

DANIEL T. CIVITELLO, JR., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in case of Commonwealth of Pennsylvania v. Daniel T. Civitello, Jr., No. 171-1972.

COUNSEL

John R. Merrick, for appellant.

John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Mencer

[ 11 Pa. Commw. Page 552]

The appellant, Daniel T. Civitello, Jr., was arrested for operating a motor vehicle at a speed of 68 miles per hour in a 50-mile per hour speed zone, in violation of Section 1002(b)(8) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. ยง 1002(b)(8), declaring unlawful the operation of a vehicle at a speed in excess of limits established by the Secretary of Transportation as indicated by the erection of official signs.

[ 11 Pa. Commw. Page 553]

In response to a traffic citation, the appellant pleaded guilty and paid the statutorily imposed fine and costs. Following receipt of the magistrate's report of conviction, the Secretary of Transportation suspended appellant's motor vehicle operator's license for a period of two months. This suspension was appealed to the Court of Common Pleas of Chester County which granted a supersedeas of the suspension. After a hearing de novo, a judge of that court denied the appeal and reinstated the suspension. This appeal followed and we affirm.

Our duty is to examine the testimony to determine whether the findings of the court below are supported by competent evidence and to correct any erroneous conclusions of law, and the action of the lower court will not be disturbed on appeal except for manifest abuse of discretion. Commonwealth v. McCartney, 2 Pa. Commonwealth Ct. 540, 279 A.2d 77 (1971).

An appeal to a court of common pleas to review a suspension of an automobile operator's license in a nonpoint-system case requires a hearing de novo at which the court hears the witnesses of both the Commonwealth and the licensee, and, on the basis of the testimony presented at the hearing on the appeal, the court is required to determine anew whether the operator's license should be suspended. De novo review entails, as the term suggests, full consideration of the case another time. The Court of Common Pleas, as the reviewing body, is in effect substituted for the Secretary of Transportation, the prior decision maker, and redecides the case. Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359, 243 A.2d 464 (1968). The burden of proof rests throughout upon the Commonwealth to establish, by the fair weight and preponderance of the evidence, that some violation of The Vehicle Code occurred which was the basis of the suspension imposed upon the licensee.

[ 11 Pa. Commw. Page 554]

The test, in a hearing de novo before the court of common pleas, is not whether the Secretary of Transportation abused his discretion but whether, from the evidence before the court, the license of the appellant should be suspended. Commonwealth v. Halteman, 192 Pa. Superior Ct. 379, 162 A.2d 251 (1960).

In this case, only one witness testified at the hearing de novo. The arresting police officer testified as to the facts surrounding the arrest. The facts were simply that appellant was traveling 68 miles per hour in a 50-mile per hour zone. The officer followed appellant's vehicle for three miles and clocked it for fivetenths of a mile. The highway was officially posted with required speed limit signs, and the police vehicle's ...


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