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COMMONWEALTH PENNSYLVANIA v. GIULIANO VERNA (02/09/76)

decided: February 9, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
GIULIANO VERNA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Giuliano Verna, No. 74-18093.

COUNSEL

John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Joseph N. Bongiovanni, III, for appellee.

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

Author: Mencer

[ 23 Pa. Commw. Page 261]

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Montgomery County reversing the order of the Director of the Bureau of Traffic Safety which had suspended, for a period of six months, the motor vehicle inspection Certificate of Appointment of Giuliano Verna (appellee).

Our scope of review of the orders of lower courts in cases involving the suspension of inspection certificates is limited to a determination of whether there are errors of law in the adjudication or whether the findings of the lower court can be supported by competent evidence. Generally, the order of the court below will not be disturbed on appeal absent a showing of manifest abuse of discretion. See Commonwealth v. Kobaly, 22 Pa. Commonwealth Ct. 46, 347 A.2d 759 (1975).

The lower court, of course, properly heard the suspension appeal de novo. However, it is important to note that, though the case is heard de novo, the lower court is limited in its decision solely to a de novo determination of whether the person charged with the violation has indeed committed the violation for which the sanction was imposed. The court may not, as a parallel to exercising its

[ 23 Pa. Commw. Page 262]

    discretion as factfinder, do more than (1) affirm the Director's penalty because the law as applied to the facts heard de novo leads to a conclusion of a violation of the law or (2) reverse the Director's penalty because the law as applied to the facts heard de novo does not lead to a conclusion of a violation of law. The court may not, because of the possible unfairness or inequity of the result, reverse the Director or modify the penalties imposed. See Commonwealth v. Thompson, 13 Pa. Commonwealth Ct. 162, 318 A.2d 408 (1974); Commonwealth v. Jula, 12 Pa. Commonwealth Ct. 140, 316 A.2d 681 (1974); Commonwealth v. McCartney, 2 Pa. Commonwealth Ct. 540, 279 A.2d 77 (1971).*fn1

The Commonwealth has properly raised, and both parties have competently briefed, a number of issues for our review. It is therefore indeed unfortunate that we find that once again we are compelled to pass over the ripe substantive issues of an appeal because of the failure of the court below to present us with proper findings of fact from which we can exercise our functions as an appellate court.

The findings, or statements, of the lower court are conclusionary and otherwise inaedquate for the purposes of our review. As we stated in McCartney, supra, and equally applicable here:

"Finally, the opinion of the lower court is not in accordance with the directions of the Supreme Court in Commonwealth v. Etzel, 370 Pa. 253, 258, 86 A.2d 64, 66 (1952): 'It was incumbent upon the court below to make specific findings of fact from the evidence adduced at the hearing and, then, to enter a final order consonant with such findings. See order of ...


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