Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Commonwealth of Pennsylvania v. William Reilly, No. S.A. 967 of 1986.
Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
Edward P. Zemprelli, for appellee.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 118 Pa. Commw. Page 609]
The Department of Transportation, Bureau of Driver Licensing (Department) has appealed from an order of the Court of Common Pleas of Allegheny County sustaining William Reilly's (Appellee's) driver's license suspension appeal.
Appellee, a 17-year old minor, received a notice of suspension of his driving privileges for one year for failure to submit to a breathalyzer test. Appellee appealed the suspension to the court of common pleas. At the hearing scheduled on October 28, 1986, Appellee's counsel informed the civil division trial judge that another judge of the juvenile division of the Allegheny County common pleas court had entered an order on July 14, 1986 which disposed of the matter, in that that judge had determined that Appellee had not refused to take the test. Believing himself to be bound by that order because of our Supreme Court's decision in Yudacufski v. Department of Transportation, 499 Pa. 605, 454 A.2d 923 (1982), the trial judge declined to take testimony and sustained the appeal.
On appeal to this Court, the Department argues that the juvenile division judge did not have jurisdiction over the license suspension aspect of Appellee's case and that any order he entered with respect thereto would be a nullity. Therefore, the trial court judge should have held a hearing de novo on Appellee's statutory appeal and rendered a decision on the merits. We agree that a de novo hearing is required and remand.
[ 118 Pa. Commw. Page 610]
In Yudacufski, our Supreme Court held*fn1 that "absent the most compelling circumstances, a judge should follow the decision of a colleague on the same court when based on the same set of facts." 499 Pa. at 612, 454 A.2d at 926. We believe that a determination that a de novo hearing was not held constitutes a compelling circumstance which the court was bound to consider.
Jurisdiction over license suspension appeals is vested in the courts of common pleas by statute. See Section 933(a)(ii) of the Judicial Code, 42 Pa. C.S. § 933(a)(ii); Section 1550 of the Vehicle Code, 75 Pa. C.S. § 1550. We have held that the provisions of Section 1550 mandate a de novo review of the merits of a case before a common pleas court judge. Liebler v. Department of Transportation, Bureau of Traffic Safety, 83 Pa. Commonwealth Ct. 270, 476 A.2d 1389 (1984). Here, the juvenile division judge was apparently*fn2 proceeding under the terms of the Juvenile Act,*fn3 which, as the Department points out, is concerned with criminal acts by juveniles.*fn4 As we have held numerous times, license suspension appeals are civil in nature and separate from any underlying criminal proceedings. Hando v. Commonwealth, 84 Pa. Commonwealth Ct. 63, 478 A.2d 932 (1984); Wisniewski v. Commonwealth, 73 Pa. Commonwealth Ct. 318, 457 A.2d 1334 (1983).
[ 118 Pa. Commw. Page 611]
Appellee argues that summary offenses or Vehicle Code violations may properly be determined in the juvenile division, relying upon Commonwealth v. Alan D., 291 Pa. Superior Ct. 298, 435 A.2d 1231 (1981) and Commonwealth v. Kirk J., 293 Pa. Superior Ct. 487, 439 A.2d 680 (1981). These cases are readily distinguishable. Alan D. involved a 12-year old child who was found guilty of criminal mischief. The Superior Court found that the juvenile division had jurisdiction because the child was involved in a criminal proceeding. In Kirk J., a 15-year old boy was found guilty of driving without a license, attempting to flee and driving an unregistered vehicle. His appeal to the civil division of common pleas court was transferred to the juvenile division because of Section 6303 of the Vehicle Code, 75 Pa. C.S. § 6303, which provides that anyone over 16 years of age shall have the same rights as an adult and may be prosecuted as an adult for summary offenses. Here, Appellee was 17 years old at the time of the incident. ...