17 Pa. Commw. 26 | Pa. Commw. Ct. | 1975
Opinion By
By letter dated September 19,1972, the appellee, Lewis E. Wagner, received notice from the Director of the Bureau of Traffic Safety that he had been assessed a “6 point penalty” as a result of a speeding conviction on April 17, 1972, and that he was required to attend an eight-hour course at a Driver Improvement School. Disclaiming all knowledge of this “conviction,”
At a hearing before President Judge R. Lee Ziegler, appellee produced evidence that at the time of the alleged
The Commonwealth now contends that the lower court was without jurisdiction over the subject matter.
Appellee argues that his appeal was authorized by Article 5, Section 9, of the Pennsylvania Constitution as
We cannot completely agree with either position. There is no merit to appellee’s position that the Secretary’s action is discretionary or adjudicatory. Subsection 619.1(f), the section under which the Secretary’s action was taken in this case, reads as follows:
“(f) When any person’s record for the first time shows as many as six (6) points, the secretary shall require such person to undergo a special examination as provided for in section 608 (g) of this act, or require such person to attend an approved driver improvement school, or require such person to attend a clinic, or any combination of the foregoing and shall so notify the person in writing. . . .” (Emphasis supplied.) 75 P. S. §619.1 (f)
It is clear this section is mandatory. The fact that there is a limited discretion between two mandated options does not make the Secretary’s action an adjudication. His actions under this section are purely ministerial in nature.
Department of Transportation v. Hosek, supra, cited by appellee for the proposition that a right of appeal exists here is easily distinguishable in that Hosek dealt with a revocation of a license, clearly an administrative adjudication not present in the instant case.
When appellee was notified of the order of the Secretary, assessing six points and directing attendance at an eight-hour course at a Driver Improvement School, he could have ignored the notice, or he could have expressly refused to attend. In either event, his operating privileges would have been suspended. From that suspension, he could have appealed and put in issue the question of the improper assessment of points. He did not avail himself of this remedy. Indeed, this remedy might still be available to him if the Secretary does not expunge the assessment of points in this instance, based on the facts developed at the improper de novo hearing below.
Accordingly, we enter the following
Order
Now, January 14, 1975, the order of the court below is reversed and the appeal of Lewis E. Wagner from the imposition of a six-point penalty and a directive to attend Driver Improvement School is hereby quashed.
. Although not a part of this record, appellee attaches to his brief a copy of a letter he wrote the Department asserting his lack of knowledge and innocence of the conviction.
. We should note that no motion to quash appears on the record below. However, questions of subject matter jurisdiction may be raised for the first time on appeal. See Trout v. Lukey, 402 Pa. 123, 166 A.2d 654 (1961).