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COMMONWEALTH PENNSYLVANIA v. FRANK W. MOZINA (11/07/88)

decided: November 7, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
FRANK W. MOZINA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Crawford County, in the case of Commonwealth of Pennsylvania v. Frank W. Mozina, No. A.D. 1986-213.

COUNSEL

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

No appearance for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins. Judge MacPhail did not participate in the decision in this case.

Author: Colins

[ 120 Pa. Commw. Page 647]

The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Crawford County which sustained the appeal of Frank W. Mozina (appellee)*fn1 from the suspension of his license and remanded this matter to DOT with the admonition that DOT shall not suspend appellee's driving privileges until he is granted a hearing. We reverse.

[ 120 Pa. Commw. Page 648]

The record reflects that the appellee has a less than stellar driving record. On December 4, 1984, the appellee had accumulated seven points against his driver's license. Therefore, since the appellee for the first time had accumulated six or more points, he was required to pass a special examination under Section 1538(a) of the Vehicle Code (Code), 75 Pa. C.S. § 1538(a). Appellee successfully completed the examination on April 6, 1985, and two points were removed from his record, thus, reducing his total to five points.

The appellee had three more points assessed against his license, thus, bringing the total to eight as a result of a July 10, 1985, violation of Section 3112 of the Code.*fn2 This was the second time that the appellee had accumulated six or more points against his license. Appellee was then given notice on November 15, 1985, that under Section 1538(b) of the Code, he was required to attend a departmental hearing. Before he received the November 15, 1985 letter, appellee was cited on October 30, 1985, for a speeding violation under Section 3362 of the Code. This raised the number of points assessed against appellee's license to twelve.

Appellee then received an additional notice dated February 18, 1986, that his license was to be suspended for sixty (60) days under Section 1539 of the Code for an accumulation of more than eleven points. Prior to receiving the 60-day suspension notice that is the subject of this appeal, appellee attended his departmental hearing because of his second accumulation of six or more points (the July 10, 1985 violation).

Appellee attended this departmental hearing required by 75 Pa. C.S. § 1538(b) on January 28, 1986. That section states in pertinent part:

[ 120 Pa. Commw. Page 649]

(1) When any person's record has been reduced below six points and for the second time shows as many as six points, the department shall require the person to attend a departmental hearing. The hearing ...


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