Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania v. Felix Padilla, No. 1146 May Term, 1982.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
No appearance for appellee.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.
[ 92 Pa. Commw. Page 611]
The Department of Transportation (Department) appeals from the order of the Court of Common Pleas of Philadelphia which dismissed a six-month suspension of the operating privileges of Felix Padilla (Appellee).
On March 20, 1981 Appellee was convicted under Section 1543(a) of the Vehicle Code (Code)*fn1 for driving
[ 92 Pa. Commw. Page 612]
with a suspended license. Pursuant to that Section, Appellee received a six-month suspension on September 29, 1981. On March 29, 1982, Appellee was notified that an additional fifteen days would be added to his suspension under Section 1544(a) of the Code*fn2 because of the accumulation of three points on his record during his suspension. On April 8, 1982, Appellee was again notified that, because of the accumulation of an additional three points, another fifteen-day period would be added to his suspension under Section 1544(a). It was from this final fifteen-day suspension that Appellee took his appeal to the court of common pleas. Appellee, however, incorrectly stated on his Petition for Appeal to the Trial Court that the suspension was the result of "the accumulation of 11 points on his driving record."*fn3
Before a hearing was held on this appeal, the court of common pleas, criminal section, considered Appellee's separate nunc pro tunc appeal from his March 20, 1981 conviction in Traffic Court of driving with a suspended license, and found Appellee not guilty on September 16, 1982.
On September 21, 1982, a hearing on the appeal from the fifteen-day suspension was held, at which time Appellee submitted into evidence a copy of his nunc pro tunc acquittal on his Section 1543(a) charges. Instead of addressing the validity of the
[ 92 Pa. Commw. Page 613]
fifteen-day suspension, however, the evidence at the hearing was limited solely to whether Appellee had sufficient points assigned against his record to warrant a suspension under Section 1539 of the Vehicle Code.*fn4 Section 1539 provides for a suspension upon the accumulation of eleven points or more, with five days assigned to each point for the first suspension. This was done with the apparent agreement of all parties, even though Appellee had never been charged under Section 1539. The only issue of law argued before the trial court was whether Appellee was properly notified of his point accumulation according to the ruling in Faulstick v. Commonwealth, 66 Pa. Commonwealth Ct. 529, 445 A.2d ...