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NEAL B. DAVIS v. COMMONWEALTH PENNSYLVANIA (12/29/88)

decided: December 29, 1988.

NEAL B. DAVIS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Neal B. Davis, No. 88-3717.

COUNSEL

Stephen J. Devine, for appellant.

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

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

Author: Doyle

[ 122 Pa. Commw. Page 393]

This is an appeal by Neal B. Davis (Licensee) from an order of the Court of Common Pleas of Delaware County which dismissed Licensee's appeal from the reinstatement of the suspension of his operating privileges.

The trial court found that on February 19, 1984 Licensee was convicted of violating Section 3112(a)(3)(1) of the Vehicle Code, 75 Pa. C.S. ยง 3112(a)(3)(1), (stop light violation) and that said conviction resulted in the accumulation of eleven points on his driving record. On August 8, 1984 the Department of Transportation (Department) notified Licensee of a mandatory 365 day suspension of his operating privileges. Licensee appealed the suspension in September 1984; but, he withdrew that appeal on December 28, 1984. On February 23, 1988 the Department notified Licensee that his suspension would be reinstated effective March 29, 1988. Further, an additional forty-five days suspension was imposed, consecutively, by official notice dated February 23, 1988 for violations which occurred between the filing of Licensee's appeal and his reinstatement.

At the proceedings below, the Department filed a motion to quash the appeal on the basis that once Licensee withdrew his appeal and his suspension was reinstated he could not again appeal it. Licensee maintained that the inordinate delay by the Department in imposing the reinstatement of his suspension should justify his appeal. The trial court correctly denied the motion, but held that Licensee had not shown that he had been prejudiced by the Department's delay or that he had changed his circumstances in reliance upon the Department's inaction. Accordingly, it dismissed Licensee's appeal. The present appeal to this Court ensued.

[ 122 Pa. Commw. Page 394]

On appeal here Licensee contends that the trial court erred when it determined that he had not established that the Department's three year delay in reinstating the suspension was prejudicial to him. At the hearing no evidence was presented. Instead, the trial court heard argument on whether the Department's delay could be a basis for vacating the suspension. The following colloquy occurred:

Attorney for Licensee: [Licensee] has found himself in circumstances whereby if his appeal is not sustained, if it is dismissed, he will lose his livelihood. He is employed at Scott Olds-Saab and I do have a corroborative from Ray Scott, and acknowledged document indicating . . .

The Court: Well, that's not relevant. Really, under the law, whether he loses his job or not is not relevant. ...


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