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JUSTIN H. HEWITT v. COMMONWEALTH PENNSYLVANIA (05/27/88)

decided: May 27, 1988.

JUSTIN H. HEWITT, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County, in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Justin H. Hewitt, No. 86-SU-04947-08.

COUNSEL

Harold N. Fitzkee, Jr., for appellant.

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, John L. Heaton, Chief Counsel, for appellee.

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

Author: Palladino

[ 116 Pa. Commw. Page 414]

Justin Hewitt (Appellant) appeals an order of the Court of Common Pleas of York County (trial court) dismissing his appeal from the revocation of his operating privilege by the Department of Transportation, Bureau of Traffic Safety (DOT). We affirm and remand for calculation of counsel fees pursuant to Pa. R.A.P. 2744.

DOT revoked Appellant's operating privilege for a period of five (5) years after he was convicted three times for violating Section 3731 of the Motor Vehicle Code (driving under the influence of alcohol or controlled substance). 75 Pa. C. S. ยง 3731. The three violations occurred on April 5, 1981, March 6, 1985, and

[ 116 Pa. Commw. Page 415]

August 29, 1985. Appellant was convicted of these violations on October 26, 1981 (for the April 5, 1981 violation) and on November 3, 1986 (for the March 6, 1985 and August 29, 1985 violations). DOT revoked Appellant's operating privilege based upon its determination that Appellant was an "habitual offender" under Section 1542(a) of the Motor Vehicle Code.*fn1

Appellant appealed to the trial court, alleging that DOT erred in revoking his license because the period of time between the date of his first conviction and the date of his last conviction was in excess of five (5) years.*fn2 After a hearing de novo, the trial court dismissed Appellant's appeal and reinstated the five (5) year revocation. The trial court found this court's determination in Sanders v. Department of Transportation, Bureau of Traffic Safety, 89 Pa. Commonwealth Ct. 609, 493 A.2d 794 (1985) controlling.

On appeal to this court, Appellant raises the same issue as before the trial court. Appellant contends that Section 1542(a) does not clearly indicate that its provisions are to be applied based upon the dates of violations rather than the dates of convictions. DOT argues that Sanders is controlling and also requests counsel fees under Pa. R.A.P. 2744.

Our scope of review of a trial court's decision in a motor vehicle license suspension ...


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