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HARRY F. BRENNAN v. COMMONWEALTH PENNSYLVANIA (03/25/88)

decided: March 25, 1988.

HARRY F. BRENNAN, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Commonwealth of Pennsylvania, Department of Transportation v. Harry F. Brennan, Jr., No. 84-2838.

COUNSEL

Daniel P. Carter, Shaffer, Palma, Dougherty & Carter, for appellant.

Donald H. Poorman, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellee.

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

Author: Barbieri

[ 114 Pa. Commw. Page 617]

This is a simple license suspension appeal which has been winding its way through the court system for the past six and one half years. We will affirm the order of the trial court suspending the license of Harry F. Brennan (Appellant) for one year for accumulation of points pursuant to Section 1539 of the Vehicle Code, 75 Pa. C. S. § 1539, and remand for the entry of attorney fees for frivolous appeal under Pa. R.A.P. 2744.

This matter began on September 30, 1981, when Appellant was cited on two separate occasions for running stop signs. But it was not until November 14, 1983, that he pled guilty to the two stop sign violations.*fn1

On November 28, 1983, Appellant's driving privileges were reinstated from a previous suspension, but under Section 1545 of the Vehicle Code, 75 Pa. C. S. § 1545, he was automatically assessed five points when his license was returned.*fn2 In February of 1984, the Department

[ 114 Pa. Commw. Page 618]

    of Transportation (DOT) received notice of the two citations Appellant had pled guilty to in November of 1983, and assigned Appellant six more points. Since Appellant now had eleven points, his license was suspended for one year under Section 1539.*fn3

Appellant promptly took an appeal and the matter came to hearing on April 23, 1984. Appellant's sole contention was that since he had not received any citations during the period September 1982 to September 1983, he was entitled to the removal of three points pursuant to Section 1537(a) of the Vehicle Code, 75 Pa. C. S. § 1537(a). Appellant cited Department of Transportation, Bureau of Traffic Safety v. Buono, 64 Pa. Commonwealth Ct. 118, 439 A.2d 882 (1982) in support of his position. However, the Buono case specifically holds that the subsequent conviction date controls for the purpose of assigning and removing points and that the statute "does not permit a motorist to avoid a pointaccumulation suspension as a result of delay between violation dates and conviction dates." 64 Pa. Commonwealth Ct. at 119, 439 A.2d at 882. When counsel for DOT pointed this out and added that Appellant could hardly have points removed for the year ending September 1983 when they had not even been assigned against him until February of 1984, Appellant requested permission to submit briefs to which the trial judge agreed.

DOT submitted a one page letter brief correctly citing Section 1539 of the Vehicle Code, 75 Pa. C. S. § 1539, for the proposition that points are assigned after the date of conviction. Shuman v. Commonwealth, 54 Pa. Commonwealth Ct. 30, 419 A.2d 810 ...


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