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ROBERT SAVIET v. COMMONWEALTH PENNSYLVANIA (05/24/89)

decided: May 24, 1989.

ROBERT SAVIET, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from Common Pleas Court, Delaware County; Honorable Grant Wesner, SENIOR JUDGE.

COUNSEL

William A. George, Media, for appellant.

Richelle D. Sanders, Philadelphia, Harold H. Cramer, Asst. Chief Counsel, John L. Heaton, Chief Counsel, Christopher J. Clements, Asst. Counsel, Harrisburg, for appellee.

Palladino and Smith, JJ., and Kalish, Senior Judge.

Author: Smith

[ 126 Pa. Commw. Page 153]

Robert Saviet (Appellant) appeals from a decision of the Court of Common Pleas of Delaware County denying his appeal and sustaining the Department of Transportation's (DOT) thirty-day suspension pursuant to Section 1538(c) of the Vehicle Code (Code), 75 Pa.C.S. § 1538(c).*fn1

DOT sent Appellant an official notice of suspension dated April 14, 1987 advising him that his operating privileges would be suspended for thirty days effective May 19, 1987 for his third accumulation of six points. Appellant challenged the propriety of DOT's actions at a de novo hearing before the trial court which concluded that DOT's suspension was proper. Hence, Appellant's appeal to this Court.*fn2

[ 126 Pa. Commw. Page 154]

Appellant contends that his suspension is improper for two reasons. First, DOT failed to send Appellant the statutorily required point letter under Section 1536 of the Code, 75 Pa.C.S. § 1536, within the requisite six-month period for Code violations committed on August 14, 1980 and February 27, 1981 thus rendering DOT's point assessments for these violations null and void.*fn3 Therefore, DOT erred in applying the provisions of Section 1538(c) instead of Section 1538(a) or 1538(b) necessitating the reversal of his suspension. Secondly, DOT violated the Code by compelling the hearing examiner to recommend a thirty-day suspension.

Appellant submits that the record supports his position that DOT never sent him point letters for the August 14, 1980 and February 27, 1981 violations. He correctly argues that DOT's Certification Statement of Appellant's driving record did not contain the date on which notices were mailed nor did DOT submit copies of the point letters at trial. Without more, this Court would be constrained to sustain Appellant's appeal. However, Appellant fails to acknowledge evidence of record that he received notice of a departmental hearing scheduled for July 8, 1981 as a direct result of the aforementioned violations and in fact attended the hearing.

This Court has recently stated that a point assessment notice under Section 1536 could be established if the licensee took a required driver's examination upon DOT's instruction. Commonwealth of Pennsylvania v. Petrucelli, 117 Pa. Commonwealth Ct. 163, 543 A.2d 213 (1988). Similarly, Appellant here attended the required departmental hearing in July 1981 and testified at the de novo hearing

[ 126 Pa. Commw. Page 155]

    upon questioning by the trial court that he reviewed DOT's records at the departmental hearing which contained the specific violations in question and admitted that they were accurate. Moreover, Appellant's failure to raise the issue of lack of notice before the hearing officer at the July, 1981 hearing renders it waived for purposes of appeal. Accordingly, this Court finds that ...


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