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COMMONWEALTH PENNSYLVANIA v. KENNETH R. WHARREY (10/07/76)

decided: October 7, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH R. WHARREY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Kenneth R. Wharrey, No. SA 118 of 1975.

COUNSEL

Thomas D. MacMullan, 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 Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 26 Pa. Commw. Page 509]

This is an appeal from an order of the Court of Common Pleas of Allegheny County dated June 6, 1975, dismissing the appeal of Kenneth R. Wharrey from a one year revocation of his motor vehicle operating privileges. The Department of Transportation revoked the appellant's privileges pursuant to

[ 26 Pa. Commw. Page 510]

§ 616(a)(4) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 616(a)(4), basing its revocation on a certification from the clerk of courts of Allegheny County that the appellant had pled guilty to two counts of delivery of a controlled substance on October 28, 1974, in violation of section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30).

The scope of review of this Court in a case where the court below has held a de novo hearing is necessarily a limited one. We must determine only whether or not the findings of fact are supported by competent evidence and the conclusions of law are correctly made. Commonwealth v. Denham, 12 Pa. Commonwealth Ct. 593, 317 A.2d 328 (1974); Commonwealth v. Critchfield, 9 Pa. Commonwealth Ct. 349, 305 A.2d 748 (1973).

The facts in this case are not in dispute. The criminal charges against the appellant arose out of his sale of marijuana to two undercover state policemen on two separate occasions. The sales took place in the appellant's automobile. The underlying issue in this appeal is whether the appellant pleaded guilty to an offense which is within the confines of § 616(a)(4) of The Vehicle Code. The lower court found that he had. We agree and affirm the order dismissing the appeal.

Section 616(a)(4) of The Vehicle Code provides:

"(a) Upon receiving a certified record from the clerk of the court, of proceedings in which a person pleaded guilty, entered a plea of nolo contendere, or was found guilty by a judge or jury, of any of the crimes enumerated in this section, the secretary shall forthwith revoke, for a period of one (1) year ...


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