213 Pa. Super. 53 | Pa. Super. Ct. | 1968
Opinion by
The Secretary of Revenue notified the appellee on four separate occasions of the suspension of his operator’s license.
Two arguments are advanced by the Commonwealth : that the appeal to the lower court was premature and that under the facts of the case the lower court abused its discretion in reversing the secretary.
“Any person, whose operator’s license or learner’s permit has been suspended . . . shall have the right to file a petition, within thirty (SO) days thereafter, for a hearing in the matter in the court of common pleas of the county in which the operator or permittee resides. . . .” (Emphasis added.)
The proper time to appeal a suspension, the Commonwealth contends, is within thirty days after the suspension becomes effective, and not before. It argues that the thirty day appeal period begins to run, not from the date of the secretary’s action ordering suspension, but from the date that suspension takes effect. The basis of this argument is that the license, in the statutory language, “has been suspended” only when that suspension takes effect.
We believe the most reasonable interpretation of the statutory language and the most sensible practice is to hold that the thirty day appeal period runs from the time notice of the secretary’s action is received by the licensee.
The language of section 620 supports this conclusion: An appeal is taken from the action of the secretary in suspending an operator’s license. The secretary’s action takes place when he makes the order of suspension, regardless of when it is to take effect. The remainder of section 620 directs the courts “to determine whether the petitioner is subject to suspension of operator’s license. . . .” In other words, the court must determine whether the secretary acted properly in passing on the merits of the operator’s case. Whether
We may also consider the consequences of the interpretation asked for by the Commonweálth in determining the intention of the legislature. Article IV, section 51, of the Statutory Construction Act, 46 P.S. §551. If an appeal could not be taken until the suspension became effective, there would be substantial delay between the time of the secretary’s determination and the court’s determination in cases of multiple suspensions. For example, in the present case had the appellee desired to appeal from both suspensions imposed by the orders of April 21, 1967, he would have been required to appeal from the order becoming effective on July 11, 1967 within thirty days after that date and from the order becoming effective on July 11, 1968 within thirty days after that date. This could result in the death or unavoidable absence of witnesses and could tend to diminish their recollections of past events. Such results are undesirable. Further, an operator cannot get a supersedeas of the secretary’s order until he is able to present his appeal and if such appeal could not be presented until the suspension became effective he would be placed in the awkward position of not being able to get a supersedeas before he must surrender his operator’s license.
There is another reason why an appeal should be taken within thirty days after the secretary’s order
Except in unusual cases, the provisions of appeal statutes are mandatory and binding. Ifft v. Hunter, 202 Pa. Superior Ct. 487, 198 A. 2d 436 (1964). Thus in a license suspension case any appeal must be filed within thirty days after notification of suspension has been received. However, the Commonwealth has argued in this case and in a number of cases before the trial courts
We do agree with the Commonwealth that the court below abused its discretion in reversing the action of the secretary. The court took into consideration an extenuating circumstance in connection with appellant’s second suspension (one year beginning July 11, 1966). This second suspension was imposed for driving on November 30, 1965, the first day of his first suspension (15 days beginning November 30, 1965). The extenuating circumstance relied on by the lower court was the fact that appellee failed to note that his license had been suspended at 12:01 a.m. on November 30, 1965 and was not aware that he was driving during suspension on that date. Such a circumstance was not involved in the suspension before us, however. The two subsequent violations, which gave rise to the third and fourth suspensions, were committed during the period of the second suspension, when appellee admittedly knew his license was suspended. He, nonetheless, drove a business vehicle for reasons of financial necessity. If appellee had some ground on which to attack his second suspension, he should have taken an appeal from that suspension. He failed to appeal and served the full term of that suspension, and its legality cannot now be questioned. A fortiori, the merits of that suspension cannot now be raised in an appeal from a later suspension. Under these circumstances it was improper for the lower court to consider what might have been a mitigating circumstance of the second suspension, in setting aside the fourth.
The order of the lower court is reversed and the order of the Secretary of Revenue is reinstated.
All suspensions were imposed under section 618 of The Vehicle Code, 75 P.S. §618. The first was imposed for a period of fifteen days from November 30, 1965 for an improper pass. During the fifteen day suspension appellee was apprehended for operating a motor vehicle and received a one year suspension beginning July 11, 1966. In the fall of 1966 the appellee was arrested twice for operating during suspension. For the first offense his operator’s license was suspended for one year from July 11, 1967 and for the second offense he received the suspension involved in this appeal. Notices of the last two suspensions were given on the same date, to wit, April 21, 1967.
See section 618(h) of The Vehicle Code, 75 P.S. §618(h), providing that the secretary shall give immediate notice of a suspension to the person involved.
Failure to surrender a license in compliance with a suspension order is itself a separate violation of The Vehicle Code. See §624(4) of The Vehicle Code, 75 P.S. §624(4).
It is not clear from the record whether the appellee had a hearing before the secretary. However, a suspension imposed under section 618(a)(2) for a misdemeanor such as driving during suspension may be imposed with or without a hearing. Since no mention of a hearing is made in the notice it is apparent that the order is final so far as the secretary is concerned.
Hymes License, 32 Pa. D. & C. 2d 161 (1963) and Disanto License, 42 Pa. D. & C. 2d 388 (1967).
See Hymes License and DiSanto License, cited in note 5 supra, and Confair License, 44 Pa. D. & C. 2d 323 (1967).