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COMMONWEALTH PENNSYLVANIA v. GEORGE D. DENHAM (03/29/74)

decided: March 29, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT,
v.
GEORGE D. DENHAM, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County, in case of Commonwealth of Pennsylvania v. George Denham, No. 73-533-04-6.

COUNSEL

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 appellant.

J. Scott Maxwell, with him Hamburg, Rubin & Mullin, P.C., for appellee.

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

Author: Kramer

[ 12 Pa. Commw. Page 594]

This is an appeal filed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety (Commonwealth) from an adjudication of the Court of Common Pleas of Bucks County dated August 23, 1973, in which the court held that the revocation of the motor vehicle operator's license of George D. Denham (Denham) was "not authorized by law."

The record shows that on or about June 20, 1972, Denham pleaded guilty to the criminal charge of receiving stolen goods. In his petition for appeal to the court below, Denham admitted that this criminal charge evolved out of his possession of a stolen 1970 Oldsmobile automobile. Thereafter the Bureau of Traffic Safety (Bureau) notified Denham of the revocation of his motor vehicle privileges for a period of one year, effective January 19, 1973, under the authority of Section 616(a)(2) of The Vehicle Code (Code), Act of April 29, 1959, P.L. 58, Section 616, as amended, 75 P.S. § 616(a)(2). The record indicates that the Commonwealth, at the de novo hearing before the lower court, presented only the first five paragraphs of Denham's petition for appeal and six documents taken from the records of the Bureau, including the report of the Clerk of Court showing Denham's conviction. It is noteworthy that although the above-mentioned report of the Clerk of Court indicates that Denham was convicted of the crime of receiving stolen goods, it in no

[ 12 Pa. Commw. Page 595]

    way indicates how a motor vehicle was used in that crime. The Commonwealth rested its case without presenting any witnesses. Denham testified that he had purchased the automobile at a tavern while intoxicated, and that the automobile had been delivered by the seller to his driveway. Denham also testified that he hadn't even been supplied with the keys for the automobile. The court below quite correctly found that there was no evidence in the record which would indicate that Denham, or anyone with authority from Denham, ever drove or operated the automobile in question. The court concluded that Denham had not "used" the vehicle in question within the intended meaning of the word in the statute and therefore in effect sustained Denham's appeal.

Our scope of review in a case such as this, where the court below has held a de novo hearing, is "to determine whether or not the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made." Commonwealth v. Critchfield, 9 Pa. Commonwealth Ct. 349, 352, 305 A.2d 748, 749 (1973).

Section 616(a)(2) of the Code, 75 P.S. § 616(a)(2), reads as follows:

"(a) Upon receiving a certified record, from the clerk of the court, of proceedings in which a person pleaded guilty, entered a plea of nolo contendere, or was found guilty by judge or jury, of any of the crimes enumerated in this section, the secretary shall forthwith revoke, for a period of one (1) year from the date of revocation, the operating privileges of any such person:

"(2) Any crime punishable as a felony under the motor vehicle or tractor laws of this Commonwealth, or any other felony in the commission of which a motor ...


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