Appeal from the Order of the Court of Common Pleas of York County in case of Commonwealth of Pennsylvania v. Robert Wiley, No. 376 October 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.
Michael J. Brillhart, with him Robert H. Griffith, and Markowitz, Kagen & Griffith, for appellee.
Judges Wilkinson, Jr., Mencer, and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 19 Pa. Commw. Page 590]
This is an appeal from an order of the Court of Common Pleas of York County sustaining Robert Wiley's appeal from the action of the Secretary of Transportation (Secretary) in suspending Wiley's driver's license.
On August 3, 1972, Wiley was convicted of violating Section 1002(b)(9) of The Vehicle Code, Act of April 29, 1959, as amended, P.L. 58, 75 P.S. § 1002(b)(9) for speeding at 74 miles per hour in a sixty-mile per hour zone. The six points which he accumulated for this violation under Section 619.1(b), 75 P.S. § 619.1(b), when added to his already existing point total, brought his current point total in excess of eleven. The Secretary thereupon suspended Wiley's license for sixty days pursuant to subsections 619.1(i) and (k). Following this suspension Wiley's license was restored on February 10, 1973 at which time his records showed five points assessed against him.
Wiley had also been convicted on August 2, 1972 of violating Section 1002(b)(4), 75 P.S. § 1002(b)(4) for speeding at 60 miles per hour in a 35 mile per hour zone. On August 27, 1973, therefore, the Secretary notified Wiley that his license would again be suspended this time for a total of 120 days computed as a result of:
1) the mandatory 30 days under § 619.1(b) for exceeding the speed limit by 21 to 29 miles per hour, plus
[ 19 Pa. Commw. Page 5912]
) an additional 90 days under § 619.1(i) and (k) for accumulating eleven points a second time.
Wiley appealed this 120 day suspension to the Court of Common Pleas of York County which after a hearing reversed the Secretary. The Commonwealth presently appeals to this Court.
At the hearing before the lower court the Commonwealth's attorney conceded that under our decision in Commonwealth v. Shaffer, 9 Pa. Commonwealth Ct. 516, 309 A.2d 62 (1973) the 90-day portion of the suspension was improper. We there held that the record of one whose license has been suspended must show five points upon restoration so that after restoration no points can be assessed for convictions prior to the date of restoration. This result was dictated by the requirement under § 619.1(b) that the Secretary assign points "as of the date of conviction of the offense" as well as the provision in § 619.1(m) that "[u]pon the restoration of driving ...