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COMMONWEALTH PENNSYLVANIA v. AUSTIN C. CANDOR (06/11/87)

decided: June 11, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
AUSTIN C. CANDOR, III, APPELLEE



Appeal from the Order of the Court of Common Pleas of Clinton County in case of Commonwealth of Pennsylvania v. Austin C. Candor, III, No. 475-84.

COUNSEL

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

Larry E. Coploff, with him, J. Michael Williamson, Williamson, Coploff & Hanna, for appellee.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 106 Pa. Commw. Page 538]

The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Clinton County which sustained an appeal of the appellee, Austin C. Candor, III, and vacated DOT's 110 day suspension of appellee's operating privileges.

After three separate speeding violations, appellee's driving record had a total of nine points. Following a departmental hearing, his operating privileges were suspended for fifteen days. After his privileges were restored, appellee was again convicted of speeding and four points were assigned to his record, bringing the point total to eleven. DOT informed appellee that his license would be suspended for 110 days, pursuant to 75 Pa. C.S. § 1539, which provides, "When any person's record shows an accumulation of 11 points or more, the department shall suspend the operating privileges of the person. . . ." Appellee filed an appeal with the Court of Common Pleas of Clinton County, arguing that his record should have reflected only nine points. The trial court agreed and sustained the appeal, vacating the suspension. This appeal followed.

The issue presented is a straightforward one and deals with two apparently conflicting provisions of the Vehicle Code concerning the number of points removed from one's record following the restoration of operating privileges after a suspension. 75 Pa. C.S. § 1538 permits DOT to suspend one's operating privileges for fifteen days when that driver's record shows an accumulation of six or more points for a second time. It was pursuant to this provision that appellee's privileges were first suspended for a fifteen day period. That section further provides, "Upon completion of the sanction or sanctions

[ 106 Pa. Commw. Page 539]

    imposed by the department, two points shall be removed from the person's record." 75 Pa. C.S. § 1538(b)(3). Appellee's record, having nine points at the time of the fifteen day suspension, was reduced to seven by DOT according to Section 1538(b)(3). That subchapter of the Vehicle Code, however, also contains the following, "Upon the restoration of any person's operating privilege which has been suspended . . . pursuant to this subchapter, such person's record shall show five points. . . ." 75 P.S. § 1545. Appellee, of course, argues that this provision controls over the previously mentioned language relied upon by DOT; according to appellee's argument, upon restoration of his license after the fifteen day suspension, his record should have indicated a point total of five. As adding the subsequent four points would raise the record only to nine and since Section 1539 requires a total of eleven before suspension is mandated, appellee argued that DOT erroneously ordered suspension of appellee's operating privileges.

Believing that Section 1545 applied rather than Section 1538(b), the trial court accepted appellee's argument in sustaining his appeal. While DOT argued there, as here, that when two sections are irreconcilably in conflict, the specific is to control over the general, 1 Pa. C.S. § 1933, the trial court opined that this well accepted canon of construction did not apply because the two sections were not in conflict. As the trial court stated:

The cause for adjusting the operator's point total in these sections are different. Section 1538(b) requires the completion of the sanctions imposed and Section 1545 requires that the license be suspended and then restored. Restoration of the operator's license is ...


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