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COMMONWEALTH PENNSYLVANIA v. E.H. FUNDENBERG (07/21/89)

decided: July 21, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT,
v.
E.H. FUNDENBERG, APPELLEE



Appeal from Common Pleas Court, Philadelphia County; Honorable Samuel M. Lehrer, Judge.

COUNSEL

Donald H. Poorman, Asst. Counsel, Philadelphia, and Harold H. Cramer, Asst. Chief Counsel, John L. Heaton, Chief Counsel, Harrisburg, for appellant.

E.H. Fundenberg, a/k/a Earl H. Fundenberg, Philadelphia, pro se.

Crumlish, Jr., President Judge, and Colins, J., and Narick, Senior Judge.

Author: Colins

[ 127 Pa. Commw. Page 181]

The Commonwealth of Pennsylvania, Department of Transportation (Department) appeals an order of the Court of Common Pleas of Philadelphia County which sustained E.H. Fundenberg's (appellee) appeal of his 120-day license suspension, pursuant to Section 1539(a) and (b) of the Vehicle Code (Code), 75 Pa.C.S. § 1539(a) and (b). We reverse.

On September 18, 1984, the appellee was convicted pursuant to Section 3112 of the Code, 75 Pa.C.S. § 3112, for violating traffic control signals. The appellee's driving record was assessed with three (3) points for this conviction. On February 19, 1985, the appellee was convicted, pursuant to Section 3362 of the Code, 75 Pa.C.S. § 3362, for speeding and assessed four (4) more points. On April 17, 1985, the Department notified the appellee that, because of his accumulation of seven (7) points, he would be required, pursuant

[ 127 Pa. Commw. Page 182]

    to Section 1538(a) of the Code, 75 Pa.C.S. § 1538(a), to pass a driver's examination. He passed the exam on May 8, 1985, thereby removing two (2) points from his record. 75 Pa.C.S. § 1538(a).

On June 25, 1985, the appellee was again convicted for speeding and he received four (4) more points, bringing his total points to nine (9). On October 10, 1985, appellee was notified that as a result of his June 25, 1985, conviction, a departmental hearing was required because his point total again exceeded six (6). 75 Pa.C.S. § 1538(b). On May 30, 1986, he was charged with violating Section 1533 of the Code, 75 Pa.C.S. § 1533, because he failed to respond to the citation issued pursuant to Section 3112 of the Code. On February 17, 1987, he pled guilty to the violation of Section 3112 of the Code. Three (3) points were assessed as a result of this conviction.

The appellee's license was suspended effective February 14, 1987, and was restored on August 4, 1987, at which time three (3) points were subtracted, thus, dropping the total points assessed against the appellee's license to nine (9). On June 23, 1987, the appellee was convicted, pursuant to Section 3323(b) of the Code, 75 Pa.C.S. § 3323(b), for failing to adhere to stop signs and yield signs. This resulted in the assessment of three (3) additional points, thus, bringing his point total to twelve (12). The suspension at issue followed.

On appeal to the trial court, the appellee contended that he did not receive notice of the point accumulation within six (6) months of the September 18, 1984, conviction and, thus, those three (3) points should not be included on his record, leaving him with a total of only nine (9) points for which no suspension is mandated. According to the notes of testimony, appellee argued that since no copy of the September 18, 1984, point letter is on file, there is no evidence as to where one was sent if, in ...


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