Appeal from the Order of the Court of Common Pleas of Chester County in case of Emilie Thornton Forte v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Misc. No. 12-1975.
John L. Heaton, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Joseph I. Diamond, for appellee.
Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Kramer.
[ 29 Pa. Commw. Page 416]
This is an appeal by the Department of Transportation of the Commonwealth of Pennsylvania (Department) from an order of the Court of Common Pleas of Chester County, dated December 30, 1975, which reversed a motor vehicle license revocation order issued by the Secretary of the Department of Transportation and reinstated the operating privileges of Emilie Thornton Forte (Forte).
On November 2, 1973, Forte was arrested and charged with operating a motor vehicle while under the influence of an intoxicating liquor in violation of Section 1037 of The Vehicle Code*fn1 (Code). Because
[ 29 Pa. Commw. Page 417]
she refused to submit to a breathalyzer test at the time of her arrest, her operating privileges were suspended by the Department on January 4, 1974 for six months pursuant to Section 624.1(a) of the Code, 75 P.S. § 624.1(a).
On February 8, 1974, Forte pleaded guilty to the charge of violating Section 1037. The Clerk of Courts of Delaware County certified the record in the case to the Department on June 28, 1974. The Department acted upon the certification on December 3, 1974, when it issued the order revoking Forte's operating privileges, effective January 7, 1975, pursuant to Section 616(a)(1) of the Code, 75 P.S. § 616(a)(1). Forte appealed the revocation order to the Court of Common Pleas of Chester County on January 29, 1975.
After a hearing, the court below sustained Forte's appeal on the ground that the Department's nearly five-month delay in acting upon the certification of her conviction did not comply with the directive in Section 616(a) that, upon receiving such certification, the "secretary shall forthwith revoke operating privileges."
Two issues are raised on the appeal: (1) whether Forte's appeal to the lower court was timely under Section 620 of the Code, 75 P.S. § 620; and (2) whether the lower court was correct in holding the revocation order invalid under Section 616(a) due to the delay of five months between certification of conviction and issuance of the order. We will not reach the second issue, for we conclude that Forte's appeal to the lower ...