6 Pa. Commw. 159 | Pa. Commw. Ct. | 1972
Opinion by
This is an appeal from an Order of the Court of Common Pleas of Allegheny County dated January 7, 1972, sustaining the appeal of George S. Fisher (Fisher) from a one-month suspension of his motor vehicle operator’s license ordered by the Secretary of Transportation of the Commonwealth of Pennsylvania (Secretary). This is not what is commonly referred to as a “point system” case.
Although the record clearly indicates that the President Judge of the lower court set this matter for hearing on short notice, the Commonwealth proceeded with the hearing with no offer of proof of the Secretary’s authority for the subject suspension. The record is devoid of any records (certified or otherwise) indicating the grounds upon which the suspension was based.
The police officers arrested Fisher for a violation of Section 1019(a) of The Vehicle Code, Act of April 29, 1959, P. L. 58, as amended, 75 P.S. 1019(a), which states: “No person shall drive a vehicle through or over a safety zone as defined in this act. Whenever any highway has been divided into two (2) or more roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway unless directed or permitted to use another roadway by official traffic-control devices or police officers. No vehicle shall be driven over, across or within any such dividing space, barrier or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection as established. Whenever necessary for the protection and safety of traffic, official signs may be erected at an opening in such physical barrier or dividing section or space or at a cross-over or intersection, prohibiting or regulating a turn or turns as may be necessary, pursuant to the authority of this
Fisher was entitled to an appeal from the suspension of his license to the Court of Common Pleas of Allegheny County (75 P.S. 620). Said appeal properly was heard de novo, and the lower court was imposed with the duty to determine the validity of the suspension. See Sakala Motor Vehicle Operator License Case, 219 Pa. Superior Ct. 174, 177, 280 A. 2d 596, 598 (1971). Judge Jacobs, in the Sakala opinion, cites with approval the proposition enunciated by our Supreme Court in the case of Bureau of Highway Safety v. Wright, 355 Pa. 307, 311, 49 A. 2d 783, 785 (1946) : “There must be a justifiable factual basis for the court’s action in the premises.” Such a standard acts to facilitate a proper judicial review of suspensions. The scope of review of this Court is to determine whether or not the lower court abused its discretion or committed an error of law. Yockers v. Dept. of Transportation, 4 Pa. Commonwealth Ct. 95, 285 A. 2d 893 (1972) ; Commonwealth v. McCartney, 2 Pa. Commonwealth Ct. 540, 279 A. 2d 77 (1971) ; Commonwealth v. Pison, 2 Pa. Commonwealth Ct. 522, 279 A. 2d 84 (1971).
After the brief testimony of the State policeman was concluded, counsel for Fisher moved to sustain the appeal on the basis that the Commonwealth had not proven its case. The court ruled that the testimony of the police, officer was sufficient to require an explanation on the part of Fisher. Fisher testified that on the rainy night in question he was traveling north on Interstate 79, at a speed estimated as between 65 to 70 miles per
Judge Clarke, of the lower court held, that Fisher’s “. . . entrance upon the medial strip was inadvertent, due to exigencies of the traffic situation at the time, and that rather than driving over, across or within the dividing space or medial strip of Interstate 79, he was merely trying to extricate himself therefrom, to continue on his way northward as a result of entering thereon to avoid a collision with the vehicle preceding him.”
The lower court’s disposition of the case was proper when it found that suitable explanation had been offered by appellant for his conduct and therefore sustained Fisher’s appeal. The path urged upon this Court by the Secretary is one on which guilt and suspension would arise from a mere technical violation of Section 1019(a). The very purpose of the medial strip of which Section 1019(a) speaks is to promote and insure vehicular safety on the highways of this Commonwealth.
Based upon the brief record made by the Commonwealth in this case, we hold that the lower court did not abuse its discretion or commit an error of law, and therefore the Order of the court below is affirmed.
See Mahan License, 50 D. & C. 2d 329 (1970).