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ROBERT J. BELLA v. COMMONWEALTH PENNSYLVANIA (12/24/85)

decided: December 24, 1985.

ROBERT J. BELLA, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of Robert J. Bella v. Commonwealth, Department of Transportation, Bureau of Traffic Safety, No. 1327 of 1982.

COUNSEL

Robert H. Slone, with him, Patrick H. Mahady, Mahady & Mahady, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 93 Pa. Commw. Page 622]

Robert J. Bella (Appellant) appeals from an order of the Court of Common Pleas of Westmoreland County which affirmed the action of the Pennsylvania Department of Transportation (Department) suspending Appellant's operating privileges for fifty-five days due to his accumulation of eleven points, pursuant to Section 1539 of the Vehicle Code, 75 Pa. C.S. § 1539.

On February 12, 1982, Appellant received notice from the Department that his driver's license was being suspended. Appellant does not contest his accumulation of eleven points. His argument is based on the fact that he was not credited with a two point reduction for passing a special examination after his accumulation had reached six points.

Section 1538(a) of the Vehicle Code, 75 Pa. C.S. § 1538(a), provides in pertinent part:

When any person's record for the first time shows as many as six points, the department shall require the person to attend an approved driver improvement school or undergo a special examination and shall so notify the person in writing. Upon satisfactory attendance and completion of the course or upon passing the special examination, two points shall be removed from the person's record.

[ 93 Pa. Commw. Page 623]

Appellant received notification of his eligibility for the special examination after he had accumulated seven points. He did not pass the examination until March 13, 1982 however, and by that date he had already accumulated eleven points. At that point in time therefore he had accumulated the necessary points that triggered the suspension.

This Court clearly held in Department of Transportation, Bureau of Traffic Safety v. Sherwood, 51 Pa. Commonwealth Ct. 117, 414 A.2d 151 (1980), that "[t]he successful completion of a special operator's examination could only have credited the allowable two points if taken chronologically before the final violation." Id. at 120, 414 A.2d at 153.

The Sherwood interpretation of Section 1538(a) has since been held to apply even where a driver passes the special examination on the same day he receives a fifty-five day suspension notice. Department of Transportation, Bureau of Traffic ...


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