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COMMONWEALTH PENNSYLVANIA v. CHARLES MALONE (01/21/87)

decided: January 21, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
CHARLES MALONE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Charles E. Malone, No. 84-04485.

COUNSEL

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Neal Goldstein, Freedman and Lorry, P.C., for appellee.

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

Author: Doyle

[ 103 Pa. Commw. Page 295]

This is an appeal by the Department of Transportation, Bureau of Traffic Safety (Department) from an order

[ 103 Pa. Commw. Page 296]

    of the Court of Common Pleas of Montgomery County which sustained the appeal of Charles Malone (Licensee) from the Department's imposition of a five-year suspension of his operating privilege pursuant to Section 1542 of the Vehicle Code (Code), 75 Pa. C.S. § 1542, (habitual offender provision).

At the hearing before the trial court, the Department introduced into evidence without objection certified copies of numerous prior driving-related convictions of Licensee, including those which were specifically cited in the Department's letter as the basis for its action under Section 1542. The use of such evidence is permitted under Section 6104 of the Judicial Code, 42 Pa. C.S. § 6104. The three five-year convictions which triggered the suspension were for a violation of Section 3731 of the Code, 75 Pa. C.S. § 3731 (driving under the influence), with a conviction date of January 29, 1982; another violation of Section 3731 with a conviction date of February 3, 1982; and a violation of Section 1543 of the Code, 75 Pa. C.S. § 1543 (driving while operating privilege is suspended or revoked), with a conviction date of November 9, 1983. Licensee did not dispute that he had been convicted of the above offenses; nor did he in any way challenge the accuracy of the Department's exhibits. Instead, he argued (1) that the revocation of his license would constitute a hardship and (2) that he was unaware of the first two convictions which apparently resulted when Licensee's parents paid the fines on his behalf.

The trial court sustained the appeal, but on neither of the two bases advanced by Licensee. Instead, it sua sponte raised the issue of whether the documents pertaining to the February 3, 1982 conviction referred to Licensee. Specifically, the trial court on its own noted that the report of the clerk of courts relating to the February conviction contained a different address

[ 103 Pa. Commw. Page 297]

    for Licensee than did the other records and that, on that document alone, Licensee's operator's number had been written in by hand rather than typed. The Court therefore reasoned that the Department had failed to establish that Licensee had been convicted of that offense.

On appeal here the Department argues that the trial court committed reversible error when it raised the issue of Licensee's identity sua sponte after the record was closed. We must agree. Licensee, who was represented by counsel, had every opportunity to challenge the accuracy of the Department's evidence if it was incorrect. No challenge was in fact made. The issue, therefore, was not properly raised before the trial court and was waived. ...


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