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COMMONWEALTH PENNSYLVANIA v. CHARLES E. PALMER (12/28/88)

decided: December 28, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
CHARLES E. PALMER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania v. Charles Palmer, No. 5023 January Term, 1985.

COUNSEL

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

No appearance for the appellee.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 122 Pa. Commw. Page 380]

This is an appeal by the Department of Transportation, Bureau of Driver Licensing (Department) from an order of the Court of Common Pleas of Philadelphia County (trial court) which sustained the appeal of Charles E. Palmer (Appellee) from the Department's suspension of Appellee's operating privileges for a period of one year. We reverse.

Appellee received a notice of suspension from the Department, dated January 24, 1985, which stated that because of Appellee's conviction of August 1, 1984, under Section 3731 of the Vehicle Code (Code)*fn1 (Driving Under Influence of Alcohol or Controlled Substance) his license would be suspended for one year effective February 28, 1985.*fn2 In his appeal to the trial court, Appellee argued that he was entitled to credit for time served toward the suspension for the time period during which the Borough of Aldan Police Department confiscated his driver's license; more precisely, from May 14, 1984, the date of his arrest on unrelated charges*fn3 until the license was forwarded to the Department. The trial court withheld disposition of the case until the Appellee could ascertain when the Aldan Police Department forwarded the license. When informed that the Aldan Police Department had failed to forward

[ 122 Pa. Commw. Page 381]

Appellee's driver's license to the Department,*fn4 the trial court determined that the Appellee had already served the one year suspension and sustained Appellee's appeal. This appeal followed. Our scope of review is limited to determining whether the trial court's findings are supported by competent evidence and whether it committed an error of law or manifestly abused its discretion. Department of Transportation, Bureau of Traffic Safety v. Grasso, 97 Pa. Commonwealth Ct. 262, 508 A.2d 643 (1986).

The Department argues that the trial court abused its discretion by granting Appellee credit against the suspension period. Specifically, the Department argues that the sole issue before the trial court was the determination of the validity of the suspension, and that at hearing the Department was not prepared or required to address a request for a credit against the period of suspension. We agree.

Section 1540(b) of the Code*fn5 provides that a suspension shall be effective from the date of surrender of the license to the Department if it is surrendered pursuant

[ 122 Pa. Commw. Page 382]

    to the Department's notice to surrender the license. In Department of Transportation v. Stiver, 100 Pa. Commonwealth Ct. 573, 515 A.2d 99 (1986) we interpreted Section 1541 of the Code*fn6 to mean that a suspension begins to run from the date of surrender if submitted earlier than the effective date given in the notice. Stiver, at 575-576, 515 A.2d at 99. In Stiver, we also ...


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