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COMMONWEALTH PENNSYLVANIA v. SHERRY LYNN VOLMER (03/15/79)

decided: March 15, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
SHERRY LYNN VOLMER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Sherry Lynn Volmer v. Pennsylvania Department of Transportation, No. 76-16720.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Regis J. McCoy, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Gerald Gornish, Acting Attorney General, for appellant.

Frank J. Marcone, for appellee.

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

Author: Crumlish

[ 41 Pa. Commw. Page 287]

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety (PennDOT) here appeals a decision of the Court of Common Pleas which reversed the Secretary's revocation of Sherry Lynn Volmer's (Appellee) motor vehicle operation privileges and reinstated same.

In June, 1976, upon certification by the Clerk of Courts of Delaware County to PennDOT that Appellee had pleaded guilty to four separate offenses charging possession with intent to deliver controlled substances in violation of The Controlled Substance, Drug, Device and Cosmetic Act,*fn1 her driver's license was revoked on December 3, 1976, for a period of one year pursuant to Section 616(a)(4) of The Vehicle

[ 41 Pa. Commw. Page 288]

Code.*fn2 A notice of revocation was duly mailed to her.*fn3

Section 616(a)(4) mandates the revocation of operating privileges of any person who is found to have been:

(4) Operating or controlling the operation of a motor vehicle while in unlawful possession of any controlled substance as defined in 'The Controlled Substance, Drug, Device and Cosmetic Act' or utilizing a motor vehicle in the unlawful transportation or the unlawful sale of any controlled substance as defined in 'The Controlled Substance, Drug, Device and Cosmetic Act.'

The trial court, after a de novo hearing, concluded that the conduct which led to Appellee's arrest and subsequent plea of guilty to four offenses did not fall within the purview of Section 616(a)(4). On appeal, PennDOT contends that Appellee had "utilized" a motor vehicle during the commission of her four drug offenses within the intendment of the Code and that revocation is thereby mandated. We are constrained to agree.

At the hearing, Appellee testified without contradiction that she never drove the car while in possession of drugs but that she received the drugs at the bar where she worked, kept the drugs at the bar and negotiated the sales therein. The actual transfers of money and ...


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