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RICHAEL LYNN DARR v. COMMONWEALTH PENNSYLVANIA (08/18/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 18, 1980.

RICHAEL LYNN DARR, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Commonwealth of Pennsylvania v. Richael Lynn Darr, No. 4981 Civil Term, 1978.

COUNSEL

John B. Mancke, Mancke & Lightman, for appellant.

Harold H. Cramer, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for appellee.

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

Author: Mencer

[ 53 Pa. Commw. Page 491]

Richael Lynn Darr (appellant) appeals from an order of the Court of Common Pleas of Cumberland County which sustained the suspension of appellant's driving privileges for 165 days. We affirm.

The chronology of events leading to the suspension of appellant's license is as follows:

Appellant was convicted of traffic violations in July and August of 1976, resulting in an accumulation of more than six points on his record. Consequently, he was required to pass a special examination and his license was suspended for 15 days.

In April of 1977, appellant was convicted of another offense and was assigned three more points. Again, his record showed more than six points, necessitating a hearing pursuant to Section 1538(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. § 1538(b)(1).*fn1 No sanction other than the points was imposed.

[ 53 Pa. Commw. Page 492]

In April of 1978, appellant was cited once more and, for the third time, his point total exceeded six points. As a result, another hearing was held pursuant to Section 1538 of the Code, and on October 29, 1978, appellant's license was suspended for 30 days, effective November 30, 1978.

In the meantime, in August 1978, appellant received another citation and was assessed four more points. These four points were added to the seven points on his record at the time. Because this resulted in an accumulation of 11 points, the Department of Transportation (Department) suspended appellant's license pursuant to Section 1539 of the Code, 75 Pa. C.S. § 1539.*fn2 The appellant appealed to the lower court, which affirmed the suspension. This appeal followed.

The appellant first argues that, because he was already under a 30-day suspension, any further suspension should have been computed on the basis of Section

[ 53 Pa. Commw. Page 4931544]

(a) of the Code, 75 Pa. C.S. § 1544(a), rather than on the basis of Section 1539 of the Code. We find this argument to be meritless.

Section 1544(a) and (b) of the Code provides:

(a) Additional point accumulation. -- When any person's record shows an accumulation of additional points during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation at the rate of five days for each additional point and the person shall be so notified in writing.

(b) Additional suspension. -- When any person's record shows an additional suspension of the operating privilege assessed during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation for the appropriate period and the person shall be so notified in writing.

Reading these two subsections together, it is clear that Section 1544(a) is intended to encompass a situation in which additional points are accumulated but no new suspension is imposed,*fn3 while Section 1544(b) is intended to encompass a situation in which an additional suspension is imposed.*fn4 Here, assuming his record properly reflects an accumulation of 11 points, appellant was subject to a further suspension under Section

[ 53 Pa. Commw. Page 4941539]

of the Code, which provides: "When any person's record shows an accumulation of 11 points or more, the department shall suspend the operating privilege of the person. . . ." Thus, appellant falls within the mandate of Section 1544(b) rather than that of Section 1544(a).

Appellant also contends that the Department's computation of 11 points is incorrect. He argues that the 11-point suspension should not have been assessed until the end of his 30-day suspension, at which time his accumulation of points would have been reduced under Section 1545 of the Code, 75 Pa. C.S. § 1545,*fn5 to five points. Therefore, he contends, his new point total should only be nine. This, too, is meritless.

We have held that, under Section 1535(a) of the Code, 75 Pa. C.S. § 1535(a) (schedule of convictions and points), points are assessed as of the date of the violation. Department of Transportation, Bureau of Traffic Safety v. Sherwood, 51 Pa. Commonwealth Ct. 117, 414 A.2d 151 (1980). Thus, the four points assessed to appellant for his August 1978 violation must be added to the number of points he had accumulated as of the date of that violation. Since appellant had seven points in August 1978, the Department correctly suspended him for 15 days for each of the 11 points, or a total of 165 days.

Order affirmed.

[ 53 Pa. Commw. Page 495]

Order

Now, this 18th day of August, 1980, the order of the Court of Common Pleas of Cumberland County, dated May 3, 1979, sustaining the suspension of Richael Lynn Darr's license for 165 days, is affirmed.

Disposition

Affirmed.


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