Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, No. 83-17908.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Robert A. Koch, for himself, appellee.
Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.
[ 94 Pa. Commw. Page 330]
This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Montgomery County which sustained the appeal of Robert A. Koch (Licensee) from the six month suspension of his operating privileges by DOT pursuant to Section 1532(b)(1) of the Vehicle Code, 75 Pa. C.S. § 1532(b)(1).
On August 30, 1981 Licensee was cited for a violation of Section 3733 of the Vehicle Code, 75 Pa. C.S. § 3733 (eluding a police officer). Licensee was found guilty on a date not of record but apparently soon after the incident and accordingly he was fined $200.00. Licensee, however, "forgot" about this fine until May of 1983 when he was notified that if he did not pay the fine he would be arrested. On September 30, 1983 Licensee paid the fine in full. Subsequently, on November 3, 1983, DOT notified Licensee that as the result of his conviction on September 30, 1983 his operating privileges would be suspended for six months.
Licensee appealed to the court of common pleas alleging that there was undue delay in suspending his operating privileges. The trial court, finding that there was over a two year delay between "initial conviction" and suspension, agreed. Section 1532(b)(1) of the Vehicle Code provides in pertinent part:
[DOT] shall suspend the operating privilege of any driver for six months upon receiving a certified record of the driver's conviction of any offense under the following provisions:
[ 94 Pa. Commw. Page 331]
Section 3733 (emphasis added).
Licensee did not pay his fine in full until September 30, 1983, and after that date the certification of conviction was sent to DOT. While Licensee argues that DOT did not prove it did not receive the notice until after Licensee paid his fine in full, we know of no law, nor has Licensee cited any, which would require DOT to prove such a negative. The citation itself, which is of record, discloses a conviction date of September 30, 1983. While the district justice may have been in error in utilizing the date of final payment as the conviction date, this matter is not subject to collateral attack in this Court. Thus, the fact remains that if the date certified to DOT as the conviction date is September 30, 1983, certification of that conviction to DOT could not possibly occur prior to that date.
DOT is chargeable only with delay occurring after it receives the notice of conviction. Chappell v. Commonwealth, 59 Pa. Commonwealth Ct. 504, 506, 430 A.2d 377, 379 (1981). Furthermore, DOT cannot possibly act to suspend a license pursuant to Section 1532(b) until after it receives notice of the conviction. See Department of Transportation, Bureau of Traffic Safety v. Parr, 56 Pa. Commonwealth Ct. 203, 424 A.2d 604 (1981). Here DOT issued its notice of suspension only a few weeks after receiving the certification. It is therefore abundantly clear that any delay which exists is attributable either to Licensee himself for failure ...