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COMMONWEALTH PENNSYLVANIA v. MARTIN SAMEK (01/14/83)

decided: January 14, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
MARTIN SAMEK, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Martin Samek, No. SA 802 of 1980.

COUNSEL

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

No appearance for appellee.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Blatt.

Author: Craig

[ 71 Pa. Commw. Page 210]

This appeal by the Pennsylvania Department of Transportation from an order of the Court of Common Pleas of Allegheny County, sustaining a motorist's appeal under 75 Pa. C.S. § 1550 from an operator's license suspension, relies upon the failure of the motorist's counsel to serve the Commonwealth with a notice of the appeal, which had been timely filed in the trial court, although the existence of the appeal did come to the attention of an attorney for the department on the first scheduled hearing date.

This case, along with Pennsylvania Department of Transportation v. Falzett, 71 Pa. Commonwealth Ct. 209, A.2d (1983) involving tardy service of an appeal notice in a license suspension appeal, indicates the disturbing growth of an unprofessional practice by attorneys for motorists, consisting of filing appeals whereby an automatic supersedeas of the suspension is obtained under 75 Pa. C.S. § 1550(b), but failing to perfect the appeal with notice to the Commonwealth. One result, if the state's defense is not frustrated altogether, inevitably is to delay adjudication of the appeal in the common pleas court -- thus, of course, extending the period during which the motorist has the benefit of the automatic supersedeas.

Here the motorist has enjoyed the benefit of a stay of the suspension for over two-and-one-half years up to the present juncture because the motorist's attorney first filed the notice of appeal with the trial court on July 25, 1980. The transcribed record contains that attorney's admission that, although he allegedly planned to mail a copy of the appeal notice to the department, he never did. When the court called the matter for the first scheduled hearing, on September 4, 1980, a departmental attorney was present, apparently in connection with other cases, and he joined in a

[ 71 Pa. Commw. Page 211]

    postponement of the hearing date until October 9, an interval in compliance with the thirty-day hearing notice requirement of 75 Pa. C.S. § 1550(c).

On and after that intial September 4 hearing date, the motorist's attorney still failed to provide any notice of the appeal to the Commonwealth.

However, the department's attorney, thus made aware at least of the docket number, did nothing further except to ascertain that his headquarters had no record of the case. When the October 9 hearing date arrived, the department's attorney was unprepared; understandably displeased with that neglect, the trial judge sustained the appeal and fined the Commonwealth's attorney.

With neglectful practice thus appearing on both sides, we do not believe that the failure of the department's attorney to look into the matter should permit the motorist to benefit from his ...


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