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HomeMy WebLinkAbout92-3624 CivilDEPARTMENT OF TRANSPORTATION BUREAU OF TRAFFIC SAFETY HARRISBURG, PA 17123 v. ALEX DELAY IN THE COURT OF COMMON CUMBERLAND COUN-PLRAs OF, TY, PENN8yI,VANIA CIVIL ACTION LAW NO. 3624 CIVIL 1992 tsr;FORE OLER J. ORDER OF COURT AND NOW, this 19th day of February, 1993, upon consideration of appellant's appeal from suspension of his operating privilege and folio ' of suspension fora wing a hearing, the order Period of one year by notice dated September 15, 199 2, is AFFIRMED. Matthew X. Haeckler, Esq. Assistant Counsel Department of Transportation Room 103, Transportation and Safety Building Harrisburg, PA 17120 Attorney for Appellee James M. Bach, Esq. 352 South Sporting Hill Road Mechanicsburg, PA 17055 Attorney for Appellant :rc BY THE COURT, DEPARTMENT OF TRANSPORTATION BUREAU OF TRAFFIC SAFETY HARRISBURG, PA 17123 v. ALEX DELAY Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 3624 CIVIL 1992 IN RE: APPEAL FROM SUSPENSION OF OPERATING PRIVILEGE BEFORE OLER, J. OPINION AND ORDER OF COURT The present case is an appeal from suspension of appellant's operating privilege for one year under Section 1543(c)(1) of the Vehicle Code.' Pursuant to Section 1550(c) of the Code,' a hearing de novo on the matter was held on February 17, 1993. Based upon the evidence to which the parties stipulated at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered: FINDINGS OF FACT I. Appellant is Alex Delay, an adult individual residing at 632 Enola Road, West ' Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1543(c)(1) (1992 Supp.). This provision reads as follows: Upon receiving a certified record of the conviction of any person under [Section 1543, relating to driving while one's operating privilege is suspended or revoked], the [Department of Transportation] shall suspend or revoke that person's operating privilege as follows: (1) If the department's records show that the person was under suspension, recall or cancellation on the date of the violation, the department shall suspend the person's operating privilege for an additional one-year period. ' Act of June 17, 1976, P.L. 162, §l, as amended, 75 Pa. C.S. §1550(c) (1992 Supp.). a See Liebler v. Commonwealth, Department of Transportation Bureau of Traffic Safety, 83 Pa. Commw. 270, 476 A.2d 1389 (1984). No. 3624 Civil 1992 Fairview Borough, Cumberland County, Pennsylvania. 2. On August 11, 1992, following a summary trial before this Court, appellant was found guilty of operating a motor vehicle on a highway while his driving privileges were suspended, in violation of Section 1543 of the Vehicle Code. 3. No appeal from the judgment of sentence was taken by appellant. 4. The aforesaid conviction resulted from appellant's operation of a motor vehicle on January 23, 1992, while under suspension. 5. The underlying suspension in effect on January 23, 1992, was as a result of appellant's failure to respond to three speeding citations received on May 20,1989, July 9, 1989, and August 12, 1989;4 notices of suspension were mailed to the appellant by the Department of Transportation on June 28, 1990, July 5, 1990, and June 15, 1990. 6. Appellant responded to the said citations after the January 23,1992, incident, on January 24, 1992. 7. On January 24, 1992, the District Justice in whose office the citations were filed dismissed them because they were "too old," and notified the Department of Transportation that the suspension imposed upon appellant for failure to respond could be withdrawn. 8. By notice dated September 15, 1992, the Department of Transportation imposed an additional one-year suspension of appellant's operating privilege as a result 4 See Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1533 (suspension of operating privilege for failure to respond to citation). P� No. 3624 Civil 1992 of the conviction of driving under suspension on January 23, 1992, as mandated by Section 1543(c)(1) of the Vehicle Code. 9. From the Department's suspension order of September 15,1992, appellant has appealed. DISCUSSION In this appeal from an additional suspension of appellant's operating privilege as a result of a conviction for driving while under suspension, appellant maintains that the additional suspension is improper because the underlying suspension had expired at the time he was driving.' In support of this position, he relies upon the cases of Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Diamond, _ Pa. Commw. _, 616 A.2d 1105 (1992), and Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Cable, 135 Pa. Commw. 475, 580 A.2d 1194 (1990). As a general rule, "the propriety of a criminal conviction may not be collaterally attacked in a civil license suspension hearing."' However, where an additional suspension is imposed on the basis of a conviction for driving under suspension, and where the record of the underlying suspension is shown to have been erroneous by virtue of a prior acquittal on the charge to which it pertained, relief from the ' See Trial Brief of Alex Delay. s Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Diamond, _ Pa. Commw. _, _, 616 A.2d 1105, 1108 (1992). 3 No. 3624 Civil 1992 additional suspension has been granted to the driver. Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Diamond, _ Pa. Commw. _, 616 A.2d 1105 (1992). Unfortunately for appellant, the present case is not within the purview of the special rule recognized in Diamond, because the underlying suspension has not been shown to have been erroneously on record at the time the new offense of driving occurred. In this regard, a suspension resulting from failure to respond to a citation is, by statute, "for an indefinite period until [the] person shall respond and pay any fines and penalties imposed." Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1533. Pursuant to this statute, Defendant was properly under suspension during the operation of the vehicle on January 23, 1992. The case of Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Cable, 135 Pa. Commw. 475, 580 A.2d 1194 (1990), can not, in the Court's view, be construed to support a different result.' For these reasons, the following Order will be entered: ' In Cable, the Commonwealth Court held that a driver's suspension for failure to respond to a citation terminated upon his payment of fines and costs, noting that "periods of suspension or revocation have onset and expiration dates and must end on a date certain." Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Cable, 135 Pa. Commw. 475, 479, 580 A.2d 1194,1196 (1990). Appellant argues that the quoted language of the case lends support to the proposition that a suspension for failure to respond to a citation should be held to expire on the date the statute of limitations for the offense would have run. See Trial Brief of Alex Delay, at 3-4. 4 No. 3624 Civil 1992 ORDER OF COURT AND NOW, this 19th day of February, 1993, upon consideration of Appellant's appeal from suspension of his operating privilege and following a hearing, the order of suspension for a period of one year by notice dated September 15, 1992, is AFFIRMED. Matthew X. Haeckler, Esq. Assistant Counsel Department of Transportation Room 103, Transportation and Safety Building Harrisburg, PA 17120 Attorney for Appellee James M. Bach, Esq. 352 South Sporting Hill Road Mechanicsburg, PA 17055 Attorney for Appellant : rc BY THE COURT, J. Wesley Oler, Jr. J. 5