219 Pa. Super. 189 | Pa. Super. Ct. | 1971
Opinion by
In this case, the Commonwealth appeals from the order of the court below reversing the action of the Secretary of Revenue in suspending appellee’s license for a period of 90 days, pursuant to §619.1 (k) of The Vehicle Code of April 29, 1959, P. L. 58, as amended, 75 P.S. §619.1 (k).
At the time of the hearing in the court below, the Commonwealth read the appellee’s point record into evidence. This point record was based on the following violations, all of which occurred while he was driving a truck: On August 17, 1967, appellee was convicted of a moving violation on the turnpike other than speeding. Three points were assigned to his record, pursuant to §619.1 (b) of The Vehicle Code. On July 3, 1968, he was convicted of speeding (64 m.p.h. in a 55 m.p.h. zone) and three more points were assigned to his record. Since his record now totaled six points, the secretary required him to attend driver-improvement school as mandated by §619.1 (f). When he failed to attend the school, the secretary assigned five points to his record under §619.1 (f). Since his record now to
In his petition to the lower court asking for relief, appellee’s only allegation in support of the request for restoration of his driving privilege was that suspension of his license would result in an economic hardship for himself and his family because he was married, supported a wife and three children, and was a professional truckdriver. The lower court, basing its decision on the testimony taken at the hearing, found that the Commonwealth did not substantiate its claim that appellee did not attend driver-improvement school and, therefore, five points were improperly assessed. Thus, the court held that appellee had accumulated only eight points, not thirteen, and accordingly appellee’s license was improperly suspended. We reverse.
In Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359, 243 A.2d 464 (1968), we held that, in reviewing a suspension mandated by the point system, the lower court’s power of review is limited : “. . . in determining ‘whether the petitioner is subject to suspension,’ the lower court will merely determine whether there has been a compliance with section 619.1. At the hearing before the lower court the Com
The lower court correctly interpreted Virnelson when it held that the licensee’s point card is not sufficient evidence that the school was not attended. Virnelson merely held that records of convictions are proof of the conviction, and a correct computation of points showing a total of 11 or more is proof that the license was properly suspended. However, the mere entry on a point card that five points were assessed for failure to attend school does not prove that a licensee did in fact fail to attend. This is shown by Korns Motor Vehicle Operator License Case, 216 Pa. Superior Ct. 7, 260 A.2d 488 (1969). Korns involved a suspension, given in part for points assessed for failure to attend driver-improvement school. This Court held that: “. . . [A] number of facts had to be ascertained before the court could decide whether appellee was subject to suspension. Those facts included the requirements of the school and whether appellee attended and satisfactorily completed those requirements. . . . The record shows a sharp conflict as to appellee’s attendance; the Commonwealth’s record showing that he didn’t attend at all and his testimony claiming that he attended two sessions and was told not to attend the third.” Id. at 10,
The lower court found from the testimony that the credible evidence was that appellee was only late for school and that there was no evidence to support the Commonwealth’s contention that he failed to attend school. Tt, therefore, concluded that there was no evidence to support the five-point assessment.
Where the findings of the lower court are sustained by the evidence, they will not be disturbed on appeal. Evans v. Moffat, 192 Pa. Superior Ct. 204, 160 A.2d 465 (1960). However, an appellate court is not bound, by the trial court’s finding of fact which is flagrantly contrary to the evidence. Glen Alden Coal Co. v. Commissioners, 345 Pa. 159, 27 A.2d 239 (1942). In the instant case, the only testimony regarding attendance at driver-improvement school was the testimony of appellee. The court asked him whether he went to school or actually failed it. The appellee responded: “No, I was late getting there on the date I was supposed to be there and was working and when I got in it was too late, when I showed up. When I showed up it was all over with and they wouldn’t give me a new date or anything and just added the points to me.” (Emphasis added.)
Since the five points were correctly assigned for failure to attend school, the only other ground upon which the court could have relied to reverse the secretary was economic hardship. The hearing court may not reverse the secretary solely on the ground of economic hardship. Klitsch Motor Vehicle Operator License Case, 213 Pa. Superior Ct. 53, 245 A.2d 688 (1968).
The order of the court below is reversed and the order of suspension imposed by the Secretary of Revenue is reinstated.
It should also be noted that, in his petition to the lower court, appellee never contended that he was improperly assessed for failure to attend school. Furthermore, when his point record was put into evidence, his attorney agreed completely with the point computation and assessment including the points assessed for failure to attend school Finally, he did not appeal his first suspension which was based, in part, on his failure to attend school.
