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COMMONWEALTH PENNSYLVANIA v. DONALD SHERWOOD (05/01/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 1, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
DONALD SHERWOOD, APPELLEE

Appeal from the Order of the Court of Common Pleas of Delaware County in case of Appeal of Donald Sherwood for Suspension of Driver's License, No. 17988-77.

COUNSEL

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

Donald R. Sherwood, appellee, for himself.

President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish.

Author: Crumlish

[ 51 Pa. Commw. Page 118]

The Commonwealth of Pennsylvania's Department of Transportation appeals a Delaware County Common Pleas Court order sustaining an appeal from the suspension of motor vehicle operating privileges. We reverse.

This is a point system case dependent upon the following chronology: Donald R. Sherwood was cited on June 29, 1976 for a traffic signal violation, convicted on July 7, 1976, and assessed three (3) points against his driving record. He was cited for a speeding violation on March 7, 1977, convicted and then certified on April 20, 1977 and assessed three (3) points against his driving record. Sherwood was again cited on May 3, 1977 for a speeding violation, convicted on May 14, 1977 and assessed an additional two (2) points to his total. After this accumulation of eight (8) points, he

[ 51 Pa. Commw. Page 119]

    was notified on August 26, 1977, of the statutory requirement to either attend an approved driver improvement school or undergo a special examination.*fn1

Sherwood was cited again on August 29, 1977 for speeding, plead guilty on September 9, 1977 and was assessed another four (4) points against his record, bringing his total number of points to twelve (12). On October 25, 1977, he passed the required special operator's examination, conducted by the Pennsylvania State Police, and recorded at the Bureau of Traffic Safety on November 9, 1977. Two days later, on November 11, 1977, the Department acted upon Sherwood's twelve (12) point accumulation and mailed a notice of license suspension.*fn2

On appeal, the Delaware County Common Pleas Court entered a March 20, 1978 opinion and order reinstating operating privileges based upon Sherwood's successful completion of the special examination before the actual suspension. The lower court held suspension improper on the ground that the October 25, 1977 special examination acted to reduce the point accumulation by two (2) for a total of ten (10) points, one less than necessary for the Section 1539 license suspension. The Department appeals.

[ 51 Pa. Commw. Page 120]

The narrow issue for our review is whether the successful completion of a special driver's examination after the accumulation of points necessary for suspension, but before the actual suspension has any effect upon that suspension. We think not.

According to the "old" Vehicle Code of 1959, Section 619.1 provided for the computation and assessment of points according to the conviction date of the particular offenses.*fn3 However, the "new" Vehicle Code of 1976 at 75 Pa. C.S. ยง 1535(a) resolved the inherent problems of the former statute by clearly assessing points "as of the date of violation" for the particular offense. Our recent decision in Department of Transportation, Bureau of Traffic Safety v. Sheets, Pa. Commonwealth Ct. , 410 A.2d 1295 (1980), per Judge Rogers, is controlling in its interpretation and application of Section 1535(a). Although the decision turns on whether an appeal from the conviction of summary offenses under the Vehicle Code purges that conviction from the record pending an appeal's disposition, we held that points are indeed assessed as of the date of violation.

For all practical purposes, Sherwood's motor vehicle operating privileges were suspended on August 29, 1977 when his point total exceeded the statutory amount. The successful completion of a special operator's examination could only have credited the allowable two points if taken chronologically before the final violation.

Turning briefly to the question of "due diligence" by the Department, we recognize that operating privileges must be suspended within six months of the conviction resulting in suspension.*fn4

[ 51 Pa. Commw. Page 121]

Since only two months passed between the time of conviction and suspension, we are further convinced that the lower court erred in reinstating this driver's motor vehicle operating privileges.

Accordingly, we

Order

And Now, this 1st day of May, 1980, the order of the Court of Common Pleas of Delaware County, dated September 26, 1978, is hereby reversed; and the order of the Commonwealth of Pennsylvania, Department of Transportation, dated November 11, 1977, suspending motor vehicle operating privileges, is reinstated.

Disposition

Reversed. Suspension order reinstated.


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