Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of Christian J. Eichhorn v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, No. Trust Book 46, Page 222.
Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel and Jay C. Waldman, General Counsel, for appellant.
Bradford J. Harris, Zimmerman, Pfannebecker & Nuffort, for appellee.
Judges Blatt, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Doyle.
[ 73 Pa. Commw. Page 426]
This is an appeal by the Department of Transportation, Bureau of Traffic Safety (DOT), from an order of the Court of Common Pleas of Lancaster County which sustained a demurrer to DOT's evidence in the appeal of Mr. Eichhorn from a five year revocation of his operating privileges as a habitual offender pursuant to the provisions of Section 1542(a) of the Vehicle Code (Code), 75 Pa. C.S. § 1542(a).*fn1
The relevant facts were stipulated. Mr. Eichhorn's driving record disclosed the following offenses:
April 28, 1977 -- violation of Section 1038 of The Vehicle Code (1959 Code)*fn2 (driving without lights to avoid identification or arrest).
[ 73 Pa. Commw. Page 427]
March 4, 1978 -- violation of Section 3731 of the Code, 75 Pa. C.S. § 3731 (driving under the influence of alcoholic beverages or a controlled substance).
March 9, 1980 -- violation of Section 3731 of the Code.
Mr. Eichhorn demurred to DOT's evidence because not all of his offenses were committed after the effective date of the Code and Section 1038 of the 1959 Code is not an offense identified in Section 1542 as one to be considered in a determination of whether he was a habitual offender. Since the trial court found that the April 28, 1977 offense should not have been counted because it preceded the effective date of Section 1542, it did not reach the second issue.
It will be observed that Section 1542(a) sets forth two requirements for a determination that a person is a habitual offender: first, the offenses must be those described and enumerated in sub-section (b) of Section 1542*fn3 and second, the offenses must ...