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COMMONWEALTH PENNSYLVANIA v. THOMAS CAPPO (06/08/87)

decided: June 8, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
THOMAS CAPPO, APPELLEE



Appeal from the order of the Court of Common Pleas of Philadelphia County, in case of Commonwealth of Pennsylvania v. Thomas Cappo, No. 3662 October Term, 1984.

COUNSEL

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, Henry G. Barr, General Counsel, Spencer A. Manthorpe, Chief Counsel, for appellant.

Stanley P. Stern, for appellee.

Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 106 Pa. Commw. Page 482]

The Commonwealth of Pennsylvania, Department of Transportation (DOT), appeals an order of the Court of Common Pleas of Philadelphia County (trial court) which reduced the DOT inspection license suspension of Thomas Cappo (appellee) from a period of one hundred and thirty-six years and three months to a period of one year.

DOT, by official notice dated October 15, 1984, suspended the appellee's Certificate of Appointment and his motor vehicle inspection license for one hundred and thirty-six years and three months, pursuant to Sections 4724 and 4726 of the Vehicle Code, 75 Pa. C.S. §§ 4724 and 4726, upon a finding of forty-seven counts of improper record keeping. The appellee filed a timely appeal to the trial court, which, after a hearing de novo, denied the appeal, but concluded that the appellee's offenses did not involve fraud or deceit and that, therefore, these offenses rose only to the level of careless record keeping. The trial court, therefore, reduced the penalty to concurrent one year suspensions.*fn1 DOT contends

[ 106 Pa. Commw. Page 483]

    that the trial court erred in modifying the appellee's suspension without making new and different findings of fact and in concluding that the appellee's record keeping was merely "careless," rather than "improper."

In Department of Transportation, Bureau of Traffic Safety v. Kobaly, 477 Pa. 525, 384 A.2d 1213 (1978), our Supreme Court established the conditions under which a trial court, after a hearing de novo, may modify a DOT inspection license suspension. Kobaly held that there could be a modification of a DOT penalty only if the trial court made different findings of fact and conclusions of law, relying on Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973), and Barone's, Inc. v. Pennsylvania Liquor Control Board, 10 Pa. Commonwealth Ct. 563, 312 A.2d 74 (1973) (materially different findings of fact must be made by the trial court in order for it to alter an LCB penalty).

It is clear, therefore, that, where a trial court makes new findings of fact and new conclusions of law, it may modify a DOT penalty. Kenworth Trucks Philadelphia, Inc. v. Department of Transportation, Bureau of Traffic Safety, 56 Pa. Commonwealth Ct. 352, 425 A.2d 49 (1981). Accordingly, in cases such as Kobaly and Kenworth, where the offenses are found by the court to be of a different nature and carrying different penalties than those found by DOT, the court may properly modify the penalty. Commonwealth v. Lossie, 96 Pa. Commonwealth Ct. 553, 507 A.2d 1312 (1986) (where common pleas court found evidence to support only two of the four violations charged by DOT, court's conclusion of a violation required the imposition of the mandatory

[ 106 Pa. Commw. Page 484]

    suspension for those violations). Where, however, the trial court makes new findings of fact but reaches the same legal conclusions as DOT, it may not alter the DOT penalty, and this is due to the mandatory nature of the penalties provided for in DOT's regulations. Id. If, on the other hand, the court reaches a conclusion of law different from that reached by DOT, it clearly has the authority to modify or correct the penalty imposed by ...


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