Appeal from the Order of the Court of Common Pleas of Mifflin County, in case of Commonwealth v. Lewis E. Wagner, No. 18 January Term, 1973.
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.
Richard M. Mohler, for appellee.
Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.
By letter dated September 19, 1972, the appellee, Lewis E. Wagner, received notice from the Director of the Bureau of Traffic Safety that he had been assessed a "6 point penalty" as a result of a speeding conviction on April 17, 1972, and that he was required to attend an eight-hour course at a Driver Improvement School. Disclaiming all knowledge of this "conviction,"*fn1 appellant refused to attend the school and filed an appeal with the Court of Common Pleas of Mifflin County where he resides.
At a hearing before President Judge R. Lee Ziegler, appellee produced evidence that at the time of the alleged
violation (which occurred in Porter Township, Huntingdon County), he was student-teaching classes at Castanea High School near Lock Haven, some 54 miles away. The Court, based on substantial evidence, found, and the Commonwealth no longer contests, that appellee was not in fact the driver who was arrested for speeding on April 10, 1972, and had not pled quilty to that charge on April 17, 1972. The court also determined that "[appellee] had no knowledge of said summary proceedings until he received notice of [the] assignment of points." In sustaining the appeal, the lower court held that appellee had established by a preponderance of the evidence that he was not convicted of said summary offense and that the Commonwealth had not met its resulting burden of proof to reconcile the inconsistencies in its case. The Commonwealth then took this appeal.
The Commonwealth now contends that the lower court was without jurisdiction over the subject matter.*fn2 The Commonwealth relies heavily on Wilson Motor Vehicle Operator License Case, 218 Pa. Superior Ct. 309, 280 A.2d 820 (1971), for the proposition that no right of appeal (to the Common Pleas Court) exists from a mere assignment of points and notice to attend driver improvement school. Wilson, supra, holds that the right of appeal from an order of the Secretary must be provided for in the Vehicle Code, and that Section 620 of the Vehicle Code of April 29, 1959, P.L. 58, as amended, 75 P.S. § 620, provides for appeal only in cases of a suspension or denial of a license. Thus, the court concluded, there is "no right of appeal from an imposition of points." 218 Pa. Superior Ct. at 311, 280 A.2d at 821.
Appellee argues that his appeal was authorized by Article 5, Section 9, of the Pennsylvania Constitution as
implemented by Section 47 of the Administrative Agency Law, Act of December 2, 1968, P.L. 1135 amending the Act of June 4, 1945, P.L. 1388, 71 P.S. § 1710.47 (Supp. 1974-1975), and as construed in Department of Transportation v. Hosek, 3 Pa. Commonwealth Ct. 580, 284 A.2d 524 (1971). The essence of this argument is that the action of the Secretary here, imposing points and ordering school attendance, is discretionary or adjudicatory as opposed to mandatory or ministerial and such action will form the basis of an appeal ...