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COMMONWEALTH PENNSYLVANIA v. ADAM Y. KESSLER (10/17/88)

decided: October 17, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
ADAM Y. KESSLER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Adam Y. Kessler v. Department of Transportation, No. 3519 May Term, 1987.

COUNSEL

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

No appearance for appellee.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. This decision was reached prior to the resignation of Judge MacPhail.

Author: Barry

[ 120 Pa. Commw. Page 430]

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Philadelphia County which sustained an appeal of Adam Y. Kessler (licensee) from a six month revocation of his operating privileges imposed pursuant to Section 1543 of the Vehicle Code, 75 Pa. C.S. ยง 1543.

By official notice dated April 14, 1987, DOT notified the licensee that his operating privileges were to be revoked for six months. The licensee filed an appeal from DOT's action and the matter was scheduled for a de novo hearing on August 4, 1987. The matter was continued, upon DOT's request, from that date, and a hearing was rescheduled on October 1, 1987.

At the rescheduled hearing, counsel for DOT asserted that DOT had never been served with a copy of the licensee's "petition to appeal" and thus had no idea of what was being appealed and was unable to generate the records to satisfy its burden of proof. An individual who identified himself as the licensee's father then proffered a copy of the "petition to appeal" to DOT's counsel.

[ 120 Pa. Commw. Page 431]

DOT's counsel then requested that this individual provide some proof that the "petition to appeal" had been served upon DOT prior to the hearing. This individual provided no such evidence. Instead he made statements to the trial court which indicate that he believed that someone other than the licensee had the duty of serving a copy of the notice of appeal from the suspension upon DOT.*fn1 The trial court thereafter sustained the appeal of the licensee. This appeal followed.

In its opinion, the trial court, in sustaining the licensee's appeal stated:

DOT claimed its failure was a consequence of a lack of notice of the hearing date. We dismissed that assertion as utter nonsense. Indeed official court transcripts show that the Commonwealth received actual notice of the October 1st listing on August 4, 1987. It had requested and had been granted a postponement of nearly sixty (60) days -- for example, until October 1st -- in which to participate. Meanwhile, Mr. Kessler, who appeared pro se had missed two days from his job. He told us, 'I can't continue to take off from work to come down here.'

Our judicial system can ill afford to ignore a complaint of that type and expect to enjoy public confidence in its integrity and independence. Our courts are not an extension of the Executive Branch but, ...


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