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COMMONWEALTH PENNSYLVANIA v. JONATHAN PHILLIP PINENO (02/26/88)

decided: February 26, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
JONATHAN PHILLIP PINENO, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in case of Commonwealth of Pennsylvania v. Jonathan Phillip Pineno, No. 4518-C of 1985.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellant.

No appearance for appellee.

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

Author: Barbieri

[ 114 Pa. Commw. Page 103]

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the Luzerne County Court of Common Pleas reducing the suspension of Appellee's operating privilege from one year to one hundred and ninety-five days.

By notice dated September 17, 1985, DOT notified Appellee that his operating privilege was being suspended for one year effective October 22, 1985, due to an accumulation of points assessed for violations of the

[ 114 Pa. Commw. Page 104]

Vehicle Code (Code).*fn1 Section 1539(b) of the Code 75 Pa. C. S. § 1539(b), provides that a driver's first suspension for accumulation of points shall be five days per point. The second suspension shall be for ten days per point and the third suspension for fifteen days per point. Any subsequent suspension shall be for one year. Prior to the September 17, 1985, suspension, Appellee's operating privilege had been suspended three times. Appellee's license was suspended as of December 26, 1980, for fifty-five days, for violations of Sections 3112 (traffic-control signals) and 3362 (exceeding maximum speed) of the Code.*fn2 Appellee's license was again suspended as of August 26, 1981, for fifteen days for an accumulation of points for violation of Section 3362 and on November 23, 1983, for thirty days for an accumulation of points for violations of Sections 3112 and 3362 of the Code.

After the third suspension, Appellee's operating privilege was restored. At that time, pursuant to Section 1545 of the Code, 75 Pa. C. S. § 1545, Appellee had a total of five points. As he was not convicted of any offenses for one year, three points were removed as of February 24, 1984. Appellee was convicted of violating Section 3323 (stop signs and yield signs) of the Code on May 18, 1984, and received an additional three points bringing the total to five. Appellee was convicted of violating Section 3362 of the Code on July 19, 1984, and received five more points. Appellee was again convicted of violating Section 3362 on July 7, 1985, and received three points. This brought the total points accumulated to thirteen and resulted in the notice of suspension dated September 17, 1985.

[ 114 Pa. Commw. Page 105]

Appellee filed an appeal from the one year suspension of his operating privilege imposed by DOT with the lower court on October 21, 1985, thirty-four days after the date of mailing of the official notice of suspension.

DOT challenged the court's jurisdiction at the hearing below by claiming the appeal was untimely but the lower court failed to rule on this issue. Instead the lower court held that pursuant to Section 1535 of the Code,*fn3 the suspension of August 26, 1981, was null and void as two points accumulated prior to the suspension were assessed more than six months after the date of the conviction. Therefore, the lower court held that the suspension of September 17, ...


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