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COMMONWEALTH PENNSYLVANIA v. NANCY ABBOTT BALLARD (02/05/75)

decided: February 5, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT,
v.
NANCY ABBOTT BALLARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Nancy Abbott Ballard, No. 8986 of 1973.

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.

R. James Reynolds, Jr., with him Fred Speaker, and Pepper, Hamilton & Sheetz, for appellee.

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

Author: Mencer

[ 17 Pa. Commw. Page 311]

The Secretary of Transportation notified Nancy Abbott Ballard that five points had been assigned to her record because of a violation of Section 1002(a) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1002(a), and, since this brought her total point accumulation to eleven points for the first time, that her operator's license was suspended for sixty days as mandated by Section 619.1, subsections (i) and (k), 75 P.S. § 619.1(i) and (k).

[ 17 Pa. Commw. Page 312]

The Commonwealth has appealed from an order of the Court of Common Pleas of Delaware County sustaining the appeal of Ballard from the Secretary's suspension. At the hearing the Court admitted into evidence Commonwealth Exhibit 1, but refused to admit Commonwealth Exhibits 2 and 3. All three exhibits, which were reports by issuing authorities of their disposition of summary offenses under the Code charged to Ballard, were essential to the Commonwealth's showing of an accumulation of eleven points or more in order to make out a prima facie case for suspension.

Exhibit C-1 is a report of conviction of a Philadelphia traffic violation. Counsel for Ballard objected to its admission because the Commonwealth first offered a photocopy of the original report certified to the Secretary by the Philadelphia Traffic Court judge. The record indicates that it was the Commonwealth's intention to offer the photocopy with the appropriate certification of the Secretary in accordance with Section 1224 of the Code, 75 P.S. § 1224. This would have been proper. Bureau of Traffic Safety v. Finotti, 9 Pa. Commonwealth Ct. 538, 308 A.2d 198 (1973). Because the lower court was skeptical of this procedure, however, the Commonwealth produced the original report which had been sent to the Secretary and offered it into evidence (similarly, the originals of the other two reports were offered subsequently).

In a Memorandum Opinion filed because of this appeal, the lower court justified its sustaining of the appeal by discussing Exhibit C-1 only, although it discussed the exhibit as if it had refused its admission at the hearing. It reasoned that "[w]hile the Secretary of the Commonwealth's [ sic Transportation's] records may be offered through qualified witnesses or by proper certification of the documents . . . there is no such provision as to proof of the conviction before the magistrate. The magistrate's record, Exhibit C-1, was a photocopy which

[ 17 Pa. Commw. Page 313]

    did not indicate a conviction and was not signed by the magistrate. The failure to prove the magistrate's record through legally competent evidence necessitated sustaining the appeal."

Although the lower court did in fact admit Exhibit C-1, and Ballard has not appealed that admission, we nonetheless will discuss all three ...


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