Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Anthony Pompeo, No. SA 1256 of 1980.
Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Richard A. Russell, May & Long, for appellee.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 73 Pa. Commw. Page 415]
The Department of Transportation, Bureau of Traffic Safety (Bureau) appeals here from an order of the Court of Common Pleas of Allegheny County sustaining a license suspension appeal filed by Anthony Pompeo. We reverse.
On March 28, 1980, Mr. Pompeo was convicted before a district magistrate for a speeding violation which occurred on February 13, 1980. Since this conviction added four points to Mr. Pompeo's record, bringing his total to eleven, the Bureau, pursuant to the mandate of Section 1539 of the Vehicle Code (Code), 75 Pa. C.S. § 1539, issued a suspension letter to Mr. Pompeo, suspending his license for a period of 55 days. Mr. Pompeo subsequently filed appeals to the court of common pleas from both his conviction and his license suspension, and on November 3, 1980, his appeal from the district magistrate's conviction was dismissed. Thereafter, at a hearing on his suspension appeal, conducted before the Honorable Nicholas A. Papadakos on December 17, 1980, Mr. Pompeo alleged that for the purpose of determining whether he had the eleven points requiring the issuance
[ 73 Pa. Commw. Page 416]
of a suspension letter, the Bureau should have assessed the four points for his February 13, 1980 offense when his appeal from the district magistrate's conviction was dismissed, instead of assessing them at the date of the district magistrate's conviction. Mr. Pompeo apparently advanced this argument under the mistaken belief that it would somehow alter his point total.*fn1 Judge Papadakos recognized, however, and so stated during the hearing, that Mr. Pompeo's license would still have to be suspended even if his appeal were sustained since he would still have an eleven point total. After reviewing the relevant law, Judge Papadakos then concluded that the Bureau should not have assessed the points in question until Mr. Pompeo's appeal from his conviction was dismissed on November 3, 1980, and accordingly sustained Mr. Pompeo's appeal. Thereafter, even though Judge Papadakos had stated during the hearing that the Bureau could impose the suspension if the appeal was sustained, the Bureau did not impose the suspension, but instead appealed to this Court.
Before this Court, the only issue raised by the Bureau is whether or not the court of common pleas erred as a matter of law by concluding that the Bureau may not assess points until an appeal from a conviction is dismissed.
Our decision in the present case is controlled by our decision in Department of Transportation, Bureau of Traffic Safety v. Sheets, 49 Pa. Commonwealth Ct. 175,
[ 73 Pa. Commw. Page 417410]
A.2d 1295 (1980), where we rejected the same argument accepted by the court of common pleas in the present case, stating therein that "there is no provision of law requiring that the Department be given, or take, notice of an appeal, much less that it should expunge points on ...