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ALAN DALE RUTTER v. COMMONWEALTH PENNSYLVANIA (05/30/84)

COMMONWEALTH COURT OF PENNSYLVANIA


May 30, 1984; Opinion Withdrawn June 4, 1984.

ALAN DALE RUTTER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE

NO. 192 C.D. 1983

Before Honorable Theodore O. Rogers, Judge Honorable David W. Craig, Judge Honorable Francis A. Barry, Judge

Author: Craig

JUDGE CRAIG

Motorist Alan Dale Rutter has appealed from an affirmance, by the Court of Common Pleas of Berks County, of a 120-day suspension of his operating privilege by the Department of Transportation under The Vehicle Code, 75 Pa. C.S. § 1539, which mandates a suspension after an accumulation of eleven points or more, and provides that the duration of the suspension shall be ten days for each point where a second suspension is involved.

According to the record, the department, in March of 1982, on the basis of a record showing eight points then accumulated, suspended Mr. Rutter's driving license for fifteen days under 75 Pa. C.S. § 1538, relating to six-point accumulations. Mr. Rutter did not appeal that suspension, nor had he filed any appeal from the assessment of the points underlying it.

Shortly thereafter, Mr. Rutter incurred, in April of 1982, a conviction for speeding during the preceding month of March, for which the department properly assigned four additional points. Added to the existing base of eight points, those four points brought the total to twelve, so that the department then proceeded under section 1539 to issue the second suspension, setting its length on the basis of ten days' suspension for each of the twelve points in the total.

The motorist's first challenge is directed to the validity of certain of the points underlying the eight-point basis of the first suspension, including three points assessed in 1981 for a 1978 violation and an assessment of points for a 1980 violation which had been misdated with a 1979 date. As noted above, he never filed any timely appeal with respect to either of those assessments of points.

Hence, the first challenge must fail in view of Department of Transportation v. Berrier, 65 Pa. Commonwealth Ct. 302, 442 A.2d 403 (1982) and Department of Transportation v. Morrison, 21 Pa. Commonwealth Ct. 400, 346 A.2d 920 (1975). Morrison held that:

Appellee in failing to challenge by appeal the assessment which caused his original suspension cannot be heard to question its validity on appeal from a subsequent suspension. That record resulting in the earlier suspension stands firm and cannot be disturbed at a later date.

21 Pa. Commonwealth Ct. at 403, 346 A.2d at 922.

Thus, the failures to appeal the first suspension, or the assessments of the eight points undergirding it, means that those points and that suspension are now beyond question.

Rutter's remaining contention is that, in determining the number of days' suspension for each point, application of section 1539 should give heed only to other suspensions under that same section, so that the first suspension, being under section 1538, should not be counted. That claim unjustifiably ignores subsection (c) of section 1539, which plainly states that every suspension under any provision of the subchapter -- which includes section 1538 -- "shall be counted in determining whether a suspension is a second, third or subsequent suspension."

The sound decision of Judge Schaeffer, of the common pleas court, is affirmed.

DAVID W. CRAIG, Judge

Order

NOW, May 30, 1984, the order of the Court of Common Pleas of Berks County, dated January 6, 1983, is affirmed.

DAVID W. CRAIG, Judge

JUDGE BARRY

In this case the certification filed with the court of common pleas by the Pennsylvania Department of Transportation (DOT) (R 20 A) clearly shows that the first offense involved in this case was on October 1, 1978, and that the point letter was not sent out until May 12, 1981. This is clearly a violation of Section 1535(c) of the Vehicle Code, 75 Pa. C.S. § 1535(c) which provides: "The department shall assign points to the record of any person within six months from the date of a conviction. Any points assigned after such six-month period shall be null and void. " (Emphasis added.)

It is apparent to me that DOT therefore improperly assessed the three points which arose out of the violation of October 1, 1978. The fact that the appellant never filed an appeal from this assessment or the March 25, 1982 first suspension in part predicated on the invalid assessment does not validate what was null and void under the statute. The appellant at the time, when he could have appealed, had no way of knowing whether in fact it would be necessary for him to take such an appeal to protect his rights in regard to a later possible suspension which in fact did not occur until July 6, 1982. It is my opinion that this is not a collateral attack on the 1979 violation, the 1981 assessment of points, or the March 25, 1982 suspension. DOT should not have the option of filing a late assessment of points and forcing a driver to take an appeal because of some future right that might be affected. I accept appellant's argument that if the Pennsylvania Legislature had wanted all suspensions to be cumulative, it could have very easily done so. Instead, it adopted a different scheme and provided for the removal of points after a period of no offense, as well as the assessment of points. It seems clear that the legislature could not have intended that DOT have the latitude suggested by the appellee.

I accordingly dissent.

FRANCIS A. BARRY, Judge

19840530

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