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COMMONWEALTH PENNSYLVANIA v. MICHAEL VAIL (01/26/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 26, 1982.

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

Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: The Appeal of Michael Vail from Suspension of Motor Vehicle Operating Privilege, No. 79-13704.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, Transportation, and Jay C. Waldman, General Counsel, for appellant.

No appearance for appellee.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case.

Author: Macphail

[ 64 Pa. Commw. Page 243]

The Commonwealth of Pennsylvania's Department of Transportation (Department) appeals a Delaware County Court of Common Pleas order imposing a thirty day suspension of Michael Vail's (Appellee) motor vehicle operating privileges. The Department had

[ 64 Pa. Commw. Page 244]

    originally imposed a 110 day suspension under Section 1539 of the Vehicle Code, 75 Pa. C.S. ยง 1539. We reverse.

The following is the chronology of events leading to the suspension at issue in this case:

Appellee was convicted of traffic violations which occurred in April and May of 1978, resulting in the accumulation of six points on his record. Consequently, he was required to pass a special examination.*fn1 Upon passing this exam, two points were deducted from his record.

Appellee was assessed three more points for a traffic violation which occurred on November 28, 1978. After a hearing, Appellee was notified on July 3, 1979 that his license would be suspended for fifteen days starting August 7, 1979.*fn2

In the meantime, Appellee received a citation on March 20, 1979, for speeding. On May 11, 1979, Appellee was found guilty of this violation. As a result of this conviction, Appellee was notified on July 26, 1979 that four points were assigned to his record. Because his point record now totaled eleven points, the Department suspended Appellee's license for 110 days pursuant to Section 1539 of the Vehicle Code.*fn3

[ 64 Pa. Commw. Page 245]

On appeal, the Delaware County Court of Common Pleas determined that Appellee's point total prior to the assessment of the final four points should have been reduced by two points since Appellee had served his fifteen day suspension while the Common Pleas Court appeal was pending. Thus, the Court determined that his point total was nine and, therefore, that he should have received only a further thirty day suspension.*fn4

In deciding this case, the lower court did not have the benefit of our opinion in Darr v. Commonwealth, 53 Pa. Commonwealth Ct. 490, 418 A.2d 794 (1980). In Darr, we held under facts similar to this case that points are assessed for purposes of Section 1539 upon the date of violation and that, therefore, the serving of a suspension after the date of a violation which brings the point total to 11 would not serve to reduce that point total so as to avoid the mandatory Section 1539 suspension.*fn5

Order

And Now, this 26th day of January, 1982, the order of the Court of Common Pleas of Delaware County, dated December 26, 1979, is hereby reversed and the

[ 64 Pa. Commw. Page 246]

    order of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, dated July 26, 1979, suspending motor vehicle operating privileges, is reinstated.

Judge Palladino did not participate in the decision in this case.

Disposition

Reversed. Suspension order reinstated.


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