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COMMONWEALTH PENNSYLVANIA v. MICHAEL MIERNICKI (01/22/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 22, 1981.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
MICHAEL MIERNICKI, APPELLEE

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Commonwealth of Pennsylvania v. Michael Miernicki, No. 78-7450-10-6.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Ward T. Williams, Chief Counsel of Transportation, Robert W. Cunliffe, Deputy Attorney General, Harvey Bartle, III, Acting Attorney General, and Edward G. Biester, Jr., Attorney General, for appellant.

No appearance for appellee.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 56 Pa. Commw. Page 255]

The Department of Transportation, Bureau of Traffic Safety (department) appeals from the order of the Court of Common Pleas of Bucks County which sustained the appeal of Michael Miernicki from the department's 180-day suspension of his operating privileges under Section 1539 of the Vehicle Code, 75 Pa. C.S. § 1539.

As in Department of Transportation, Bureau of Traffic Safety v. Dinkins, 56 Pa. Commonwealth Ct. 182, 424 A.2d 591 (1981), argued before this panel the

[ 56 Pa. Commw. Page 256]

    same day as this case, the trial court here did not have the benefit of our decision in Department of Transportation, Bureau of Traffic Safety v. Gearhart, 50 Pa. Commonwealth Ct. 474, 413 A.2d 1161 (1980) when it decided this case.

The Gearhart decision has now established that the department acted correctly in raising Miernicki's point total to five upon restoration of his license from a suspension, including a non-point suspension. Hence, when later certifications of conviction brought Miernicki's total to eleven or more points, the resulting additional suspension was proper.

However, we agree with the court below that the department improperly assessed four points against Miernicki based on the speeding offense on September 4, 1977. The citation for that offense indicates that Miernicki was traveling at fifteen miles per hour over the allowed speed. Section 1535 of the Code, 75 Pa. C.S. § 1535, provides that three points shall be assessed for speeding violations of 10-15 miles per hour over the maximum speed allowed. The trial court correctly adjusted Miernicki's total to reflect the proper assessment.

However, even thus adjusted, Miernicki's total accumulation is eleven points, and, two earlier suspensions having been imposed, Section 1539 requires suspension for fifteen days for each point, or a total of 165 days in this case.

The lower court's order will be reversed, and the department's suspension, as modified to 165 days, will be reinstated.

Order

And Now, January 22, 1981, the June 11, 1979 order of the Court of Common Pleas of Bucks County, at No. 78-7450-10-6, sustaining the appeal of Michael

[ 56 Pa. Commw. Page 257]

Miernicki, is reversed, and the suspension imposed by the Department of Transportation, Bureau of Traffic Safety, as modified from 180 to 165 days, is reinstated.

Disposition

Reversed. Suspension order reinstated as modified.

19810122

© 1998 VersusLaw Inc.



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