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JAMES K. HOWARTH v. COMMONWEALTH PENNSYLVANIA (03/03/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 3, 1989.

JAMES K. HOWARTH, 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 James K. Howarth v. Commonwealth of Pennsylvania, Department of Transportation, No. 81-16777.

COUNSEL

Frank J. Marcone, 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

[ 124 Pa. Commw. Page 40]

Before this Court is an appeal by James K. Howarth (Licensee) from an order of the Court of Common Pleas of Delaware County which denied Licensee's appeal from the suspension of his operating privileges by the Department of Transportation (DOT).

On October 14, 1981, DOT notified Licensee that his license was being suspended for a period of one year pursuant to Section 1536 of the Vehicle Code, 75 Pa. C.S. § 1536, as a result of the accumulation of eleven points against his driving record. Licensee appealed this action to the court of common pleas on November 12, 1981. A hearing was scheduled for April, 1982, but it was continued due to the request of DOT's counsel. The appeal before the trial court did not commence until six years later, and the court's decision was issued on March 28, 1988.

In this appeal, Licensee contends that the trial court committed error in affirming the suspension of his operating privileges because a six-year delay in issuing the suspension will cause an undue hardship for him. We agree.

It is well-settled that DOT is responsible for administrative delays which occur between its receipt of notice of a conviction and its action in forwarding an official notice of suspension. Davis v. Department of Transportation, 122 Pa. Commonwealth Ct. 392, 552 A.2d 338 (1988). In addition, if a licensee can show prejudice or undue hardship as a result of that delay, the suspension will not stand. Id. In this case, however, DOT promptly notified

[ 124 Pa. Commw. Page 41]

Licensee of his suspension, and the delay came after both parties agreed to continue the April 1982 hearing date before the court of common pleas.

Our examination of the record discloses that at the originally scheduled hearing, it was DOT that requested the continuance as its counsel did not have the file for Licensee's case.*fn1 Thereafter, DOT never made any attempt to reschedule the hearing and let the matter lay dormant for a period of six years. During that time, Licensee got married, had three children and, more importantly, obtained a job as a truck driver. Moreover, Licensee has not incurred any traffic violations for the duration of this supersedeas, which was triggered by his original appeal to the trial court. This supersedeas was automatic and continuing. See Section 1550(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1550(b).*fn2

We believe that under the narrow facts of this case, the onus was upon DOT to reschedule the hearing. Further, since Licensee has unquestionably shown the requisite prejudice because of DOT's unreasonable delay in rescheduling the hearing,*fn3 the suspension must be vacated.

Finally, Licensee argues that he never received notice that three points had been "assigned" to his record

[ 124 Pa. Commw. Page 42]

    on June 2, 1980 and May 8, 1981. Due to the disposition of the first issue, however, we need not reach the merits of this argument.

Accordingly, for the reasons stated herein, we shall reverse the order of the trial court.

Order

Now, March 3, 1989, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is hereby reversed and DOT is directed to reinstate Licensee's operating privileges.

Disposition

Reversed. Licensee's operating privileges to be reinstated.


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