Appeal from the Order of the Court of Common Pleas of Elk County in case of Commonwealth of Pennsylvania v. Larry Miles Brown, No. 387 April Term, 1974.
John L. Heaton, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
John R. Fernan, for appellee.
Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case. See Pa. R.a.p. 3102(d).
[ 31 Pa. Commw. Page 621]
Larry Miles Brown (Appellee) was arrested on March 4, 1974, and again on March 8, 1974, for driving while his license was under suspension. A second violation of driving while under suspension is punishable as a misdemeanor by Section 624 of the Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 624 (Act). A first offense is treated as a summary violation. On July 17, 1974, the Department of Transportation, Bureau of Traffic Safety (Appellant) suspended his license for a further period of one year pursuant to Section 618(a)(2) of the Act, 75 P.S. § 618(a)(2), which permits the Bureau of Traffic Safety to suspend the license of any person who "has been convicted of a misdemeanor . . . in the commission of which a motor vehicle or tractor was used."
Appellee then appealed this suspension to the court of common pleas.*fn1 The only legal argument he raised
[ 31 Pa. Commw. Page 622]
was that he had not received proper written notice of the prior underlying suspension, the multiple violations of which provided the basis for the instant suspension. This contention was rebutted by Appellant who showed that Appellee necessarily received notice since he complied with the terms of the prior suspension by returning his license to Appellant as required.
Nevertheless, the court below, on its own initiative, examined the files in the office of the District Attorney relating to the March 8 misdemeanor conviction and, finding therein no record of the March 4 conviction, concluded on that basis that the misdemeanor conviction was improper and that the conviction of March 8 should have been a first or summary offense, rather than a second misdemeanor offense. It therefore changed Appellee's pleas in the March 8 conviction from guilty of a second offense to "guilty of a first offense -- a summary." However, the records of the first offense, being a summary violation and not a misdemeanor, were kept by the local magistrate and the Bureau of Traffic Safety, not by the District Attorney. Furthermore, the court made that finding despite the fact that Appellee never questioned the propriety of his misdemeanor conviction and there was no evidence on the record to support its finding. If the March 8 conviction had been attacked by Appellee, Appellant would have produced proof of the March 4 conviction, but the unusual procedure of the court below denied it any such opportunity.
Moreover, Appellee could not have raised this issue before the court of common pleas, as a criminal conviction
[ 31 Pa. Commw. Page 623]
may not be attacked later in a suspension appeal, which is civil in nature. "To allow him to collaterally attack the validity of the conviction in a later civil proceeding was clearly in error." Commonwealth v. James, 6 Pa. Commonwealth Ct. 493, 497, 296 A.2d 530, 532 (1972); Commonwealth v. Lamb, 12 Pa. Commonwealth Ct. 508, ...