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COMMONWEALTH PENNSYLVANIA v. JOHN KOBALY (03/19/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 19, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY
v.
JOHN KOBALY, APPELLANT

Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania v. John Kobaly, No. 3558 of 1974.

COUNSEL

Anthony V. DeCello, with him Redlich, Cassol, Redlich & Morocco, and DeCello, Bua & Manifesto, for appellant.

John L. Heaton, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Crumlish

[ 24 Pa. Commw. Page 141]

John Kobaly (Appellant) seeks review of an order of the Court of Common Pleas of Westmoreland County which sustained the Bureau of Traffic Safety's (Bureau) suspension of his certificate of appointment to inspect motor vehicles.

Appellant contends that the Bureau did not sustain its burden to prove the charges which resulted in the suspension. We disagree.

Appellant was charged with violating Section 819(f) and (h) of the Motor Vehicle Code.*fn1 During the hearing, the Bureau presented five witnesses but the Appellant neither testified nor presented any witnesses, and the trial judge found the evidence*fn2 supported Appellant's

[ 24 Pa. Commw. Page 142]

    violation of Section 819(f) but that he was not in violation of Section 819(h). In these cases, the burden of proof is a fair preponderance of the evidence. Yockers v. Department of Transportation, 4 Pa. Commonwealth Ct. 95,

[ 24 Pa. Commw. Page 143285]

A.2d 893 (1972). Our careful review of the record compels us to conclude the Bureau met its burden and consequently the trial judge did not err in upholding the suspension. However, in finding that Appellant only violated Section 819(f), the trial judge adjusted the period of suspension from one year to six months. There is no authority for the trial judge to effectuate such a reduction.*fn3 See Marcone v. Kassab, 8 Pa. Commonwealth Ct. 628, 304 A.2d 175 (1973); Commonwealth v. Massey, 3 Pa. Commonwealth Ct. 304, 281 A.2d 371 (1971).

Accordingly, we

Order

And Now, this 19th day of March, 1976, the order of the Court of Common Pleas of Westmoreland County dated May 14, 1975, is affirmed insofar as it dismisses the appeal of John Kobaly from the suspension of his certificate of appointment to inspect motor vehicles, and the order is reversed insofar as it reduces the period for suspension from one year to six months, and the one-year suspension ordered by the Bureau is reinstated.

Disposition

Affirmed in part and reversed in part. Order of Bureau reinstated.


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