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COMMONWEALTH PENNSYLVANIA v. KEITH EDWARD GRAY (06/09/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 9, 1981.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
KEITH EDWARD GRAY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Keith Edward Gray, No. SA 609 of 1979.

COUNSEL

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

William M. Acker, for appellee.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 59 Pa. Commw. Page 591]

The Department of Transportation, Bureau of Traffic Safety (Bureau) has appealed from the order of the Court of Common Pleas of Allegheny County which reversed the Bureau's revocation of Keith Gray's (Appellee) driving privileges pursuant to Sections 1542 and 1543 of The Vehicle Code (Code), 75 Pa. C.S. §§ 1542 and 1543.

The record in this case is, to say the least, confused. Bureau records admitted at the de novo hearing conducted by the Court of Common Pleas of Allegheny County show that Appellee was cited on September 22, 1977 and again on January 6, 1978 for driving too fast for conditions.*fn1 Appellee's operating privilege was suspended effective July 24, 1978 for failure to respond to the citation issued in September, 1977, pursuant to Section 1533 of the Code, 75 Pa. C.S. § 1533. During this suspension Appellee was cited on five separate occasions for driving a vehicle while his operating privilege was suspended, pursuant to Section 1543 of the Code, 75 Pa. C.S. § 1543. These citations were issued between November, 1978 and January, 1979. Bureau records also show that Appellee paid fines prescribed for the five violations of Section 1543.*fn2 Payment by a person charged with a violation of the code of the five imposed for the violation constitutes a plea of guilty. Section 6501(b) of the Code, 75 Pa. C.S. § 6501(b). Upon receipt of the records of conviction for three of the Section 1543 violations, the Bureau revoked appellee's operating privilege for three periods of six

[ 59 Pa. Commw. Page 592]

    months as required by Section 1543(b) which provides in part:

The department, upon receiving a certified record of the conviction of any person under this section upon a charge of driving a vehicle while the operating privilege was suspended, shall revoke such privilege for an additional period of six months.

Upon receipt of the record of the fourth conviction, the Bureau revoked Appellee's privilege for an additional five years pursuant to the habitual offender provision of the Code. Section 1542(a) of the Code, 75 Pa. C.S. § 1542(a).*fn3

Finally, upon receipt of the record of the fifth conviction, the Bureau revoked Appellee's privilege for an additional two years pursuant to Section 1542(e) of the Code, 75 Pa. C.S. § 1542(e).*fn4 Thus Appellee's operating privileges were revoked for a total of eight and one-half years, effective June 14, 1979.

Appellee appealed the revocations to the court of common pleas*fn5 which ordered the reduction of Appellee's

[ 59 Pa. Commw. Page 593]

    eight and one-half year revocation to a one year revocation.*fn6

The issue raised in the present appeal is whether the action of the trial court in reducing the revocation period was in error, although we note preliminarily that Appellee in his brief also requests that the trial court's order be reversed because Appellee was improperly determined to be guilty of the crime of operating a vehicle while his license was suspended. Appellee argues that even the one year revocation is therefore invalid. We need not address this argument since Appellee has failed to file a timely appeal from the trial court's order and, therefore, may not seek its reversal.*fn7 Moreover, even if the issue were properly before us we could not consider the merits since it clearly constitutes a collateral attack on a criminal conviction. As we stated in Bureau of Traffic Safety v. Grobes, 45 Pa. Commonwealth Ct. 151, 153, 405 A.2d 588, 589 (1979), "our inquiry should be limited to determining whether Grobes has, in fact, been convicted of a traffic violation and whether the Bureau has faithfully observed the provisions of The Vehicle Code. . . . We may not consider the question of whether Grobes should have been convicted." (Emphasis in original.)

[ 59 Pa. Commw. Page 594]

Turning to the issue now properly before us, we conclude that the trial court erred when it reduced Appellee's period of revocation.

The trial court's opinion concludes, without reasons in support thereof, that Section 1543(b) of the Code*fn8 "provides a comprehensive plan" for the treatment of repeated violations of Section 1543 and that the habitual offender provision is inapplicable where "the defendant is subjected to revocation of his operating privileges for a third conviction of violating § 1543 when the two prior convictions were for the same offense." As is demonstrated below, the trial court's interpretation of the habitual offender provision as it relates to Section 1543 is clearly in error.

We find nothing in Section 1543(b) which would indicate in any way that it is the exclusive statutory authority for action by the Bureau against an operator's license for repeated violations of Section 1543(a).*fn9 Rather, when Section 1543(b) is read in conjunction with Sections 1542(a) and 1542(e) it is apparent that until and unless the operator comes

[ 59 Pa. Commw. Page 595]

    within the provisions of Sections 1542(a) or 1542(e), the Bureau will invoke the provisions of Section 1543(a). When, however, the operator's conduct does bring him within the ambit of Sections 1542(a) or 1542(e), the provisions of Section 1543(b) are no longer applicable.

Here, the Bureau exercised its authority under Section 1543(b) with respect to Appellee's first three convictions, it being the Bureau's position that until a fourth violation of Section 1543(a) occurred, Section 1542(a) was not applicable.*fn10 As soon as the Bureau was notified of Appellee's fourth offense, it then acted pursuant to Section 1542(a) and when the fifth offense occurred, the Bureau properly invoked Section 1542(e).

Thus, while it is obvious that the trial judge felt that the imposition of such a severe penalty upon a young driver's operating privileges was inappropriate, we are compelled to conclude that the Bureau's actions were not only authorized but mandated by the law.

Order reversed.

Order

And Now, this 9th day of June, 1981, the order of the Court of Common Pleas of Allegheny County, dated September 21, 1979, is reversed and the order of the Department of Transportation, Bureau of Traffic Safety, revoking the operating privileges of Keith Edward Gray for a period of eight and one-half years effective June 14, 1979, is reinstated.

Disposition

Reversed. Original revocation order reinstated.


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