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DAVID J. MISHLER v. COMMONWEALTH PENNSYLVANIA (12/29/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 29, 1986.

DAVID J. MISHLER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of Commonwealth of Pennsylvania v. David J. Mishler, No. 840743, dated June 20, 1984.

COUNSEL

William W. Boyd, for appellant.

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

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 102 Pa. Commw. Page 619]

David J. Mishler (Petitioner) appeals from the order of the Court of Common Pleas of Lancaster County (trial court) which dismissed Petitioner's appeal from the revocation of his vehicle operating privileges for a period of nine years by the Department of Transportation (DOT). This revocation was imposed in accordance with Sections 1532(a)(1), 1542(b)(5) and 1542(e) of The Vehicle Code (Code).*fn1 We affirm.

[ 102 Pa. Commw. Page 620]

Petitioner pled guilty on November 21, 1983, to two counts of Theft by Unlawful Taking*fn2 and two counts of Receiving Stolen Property.*fn3 All of these offenses to which the Defendant pled guilty were felonies, and Petitioner was sentenced pursuant to a negotiated plea agreement. The Clerk of Courts of Lancaster County forwarded to DOT a certification of conviction, pursuant to Section 6323 of the Code,*fn4 upon which the words "Motorcycle Involved" were typed. As a result, DOT notified Petitioner that his vehicle operating privileges were being revoked for consecutive periods of one, one, five and two years pursuant to Sections 1532(a)(1), 1542(b)(5) and 1542(e) of the Code. Petitioner appealed the revocation to the trial court. The trial court held a de novo hearing and, after presentation of evidence, upheld the revocations at issue in this appeal.

[ 102 Pa. Commw. Page 621]

On appeal to this Court, Petitioner argues that the Clerk of Courts erred in forwarding the certification of conviction forms to DOT because there is no record reflecting that, during the criminal proceeding, the court made a specific determination that Petitioner had been convicted of a felony in the commission of which a motor vehicle was essentially involved, as required by Sections 1532 and 1542 of the Code. As a result of this error, Petitioner contends that his license should be restored to him.

In contrast, DOT asserts that the revocation was proper because it received, from the Clerk of Courts, a Lancaster County form with a heading which stated:

Report of the Clerk of Court showing the conviction or acquittal of any violation of the Vehicle Code and/or of any other act in the commission of the crime in which a motor vehicle was used.

DOT argues that the mandate of Sections 1532 and 1542 of the Code is met because the law presumes that a public official's actions are taken pursuant to the proper authority, and thus, it can be presumed that the trial court made the "essentially involved" determination as evidenced by the Clerk of Courts forwarding the aforementioned form.

Our scope of review of a license revocation includes determining whether the trial court has committed an error of law. In Re: Appeal of Finkelstein, 73 Pa. Commonwealth Ct. 417, 458 A.2d 326 (1983).

In Rosenblatt v. Pennsylvania Turnpike Commission, 398 Pa. 111, 157 A.2d 182 (1959), the Supreme Court

[ 102 Pa. Commw. Page 622]

    rejected Appellant's argument that a plan of the Turnpike Commission was never formally adopted by the Commission since the approval was signed only by its secretary and treasurer. The argument that this signature only evidenced the secretary and treasurer's approval was held to be without merit, because in the absence of proof to the contrary, the law presumes that a public official's actions were pursuant to proper authority and that the steps necessary to give validity to his official acts were duly taken.

The burden, then falls on Appellant to prove that when the clerk of courts forwarded to DOT the aforementioned form, the court had not determined that a vehicle was essentially involved. To this end, Appellant asserts that the record forwarded to DOT does not reflect that the criminal court judge made the essentially involved determination. Rather, he asserts that the form sent to DOT merely reflects the clerk of courts' determination.*fn5 Here, however, we are met with the fact that the trial judge in the suspension appeal was the same judge who presided over the criminal proceedings. As such, at the de novo hearing the trial judge took judicial notice of facts within his actual knowledge. Specifically, during the hearing at which Appellant pled guilty, the trial judge recounted testimony from police officers that Appellant was involved in a substantial motorcycle theft operation. The trial court rejected the argument that his clerk of courts erroneously determined a vehicle was essentially involved. The trial judge held "without any doubt[,] that a motor vehicle, namely motorcycles, were essentially involved in these offenses to which Petitioner,

[ 102 Pa. Commw. Page 623]

David J. Mishler, pled guilty."*fn6 This finding by the trial court obviates reliance on the mere presumption that the clerk of courts acted pursuant to the proper authority.

Given the unique factual situation present in this case, namely, that the same judge presided at both the criminal trial and the appeal from DOT's suspension, we conclude that the statutory requirement was met. Accordingly, we affirm.

Order

And Now, December 29, 1986, the order of the Court of Common Pleas of Lancaster County, No. 840743, dated June 20, 1984, is hereby affirmed.

Disposition

Affirmed.


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