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COMMONWEALTH PENNSYLVANIA v. WILLIAM A. KIRK (01/10/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 10, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
WILLIAM A. KIRK, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Commonwealth of Pennsylvania, Plaintiff v. William A. Kirk, Defendant, No. SA 360 of 1978.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Bradley L. Mallory, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellant.

David Mauro, with him Paul Reuben Jackson, McMonigle & Vesely & Associates, for appellee.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Crumlish

[ 48 Pa. Commw. Page 430]

The Commonwealth's Department of Transportation appeals an order of the Common Pleas Court of Allegheny County setting aside the revocation of the motor vehicle operating privileges of William A. Kirk.*fn1

On March 28, 1977, upon conviction in Butler County Common Pleas Court of reckless driving, operating under the influence of intoxicating liquor, and involuntary manslaughter, Kirk was sentenced to six months' imprisonment in the county jail, a fine of $1,500.00 plus costs, and two years' special probation. On April 10, 1977, Butler County certified the conviction to the Department of Transportation. On March 28, 1978, the Secretary of Transportation issued a one-year revocation of operating privileges effective May 2, 1978.*fn2

On June 6, 1978, Allegheny County Common Pleas Court reversed the license revocation on the grounds that a 14-month administrative delay, coupled with the certainty of employment loss, resulted in a sufficient showing of prejudice to sustain the appeal. Finding error with the lower court decision,*fn3 we reverse.

[ 48 Pa. Commw. Page 431]

The law is well settled that absent prejudice, the mere passage of time is insufficient to set aside an operator's license revocation predicated upon administrative delay.*fn4 Department of Transportation, Bureau of Traffic Safety v. Passerella, 42 Pa. Commonwealth Ct. 352, 401 A.2d 1 (1979); Department of Transportation, Bureau of Traffic Safety v. Lea, 34 Pa. Commonwealth Ct. 310, 384 A.2d 269 (1978). Was the delay unreasonable considering the time and alleged resulting prejudice to the Appellee?

At the outset, the trial court erred in finding a "fourteen-month" administrative delay. Actually, the delay commenced with the Department's receipt of the April 10, 1977 certification of Appellee's conviction and extended to March 28, 1978, which according to our calculations is less than 12 months. See 75 P.S. ยง 1532(a).

While the passage of time itself may not be determinative, the administrative delay can suffice if coupled with a sufficient showing of prejudice. Department of Transportation, Bureau of Traffic Safety v. Passerella, supra, at 355, 401 A.2d at 2. Appellee continues to argue prejudice on the grounds that his job promotion requires automobile travel, that the possibility of obtaining better employment was eliminated, and that his family would suffer the loss of his

[ 48 Pa. Commw. Page 432]

    transportation services. However, the record does not support these contentions. The fact that Kirk began the new position with his present employer one and one-half months after notification by the Department, and contends the loss of only potentially improved employment seriously taxes our credulity. These contentions are both speculative in nature and unrelated to the administrative delay. Though bureaucratic problems causing unwarranted delays require quality supervisory attention, a minimal delay by itself is insufficient to reverse an otherwise proper revocation.

Accordingly, we

Order

And Now, this 10th day of January, 1980, the order of the Court of Common Pleas of Allegheny County, dated June 6, 1978, is reversed, and the Secretary of Transportation's revocation of the operating privileges of William A. Kirk for a period of one year is hereby reinstated.

This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Disposition

Reversed. Revocation order reinstated.


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