91 Pa. Commw. 615 | Pa. Commw. Ct. | 1985
Lead Opinion
Opinion by
Paul Patrick Lynch (appellant) appeals from an order of the Court of Common Pleas of Lawrence County dismissing his .appeal from the revocation of his operating privilege pursuant to Section 1575 of the Vehicle Code (Code), 75 Pa. C. S. §15:75.
Section 1543 of the Code makes it a summary offense for a driver to drive a vehicle while his operating privilege is suspended. The penalty for a conviction of this offense is provided for at Section 1543(c) and reads in part:
(c) Extending existing suspension or revocation. — The department, upon receiving a certified record of the conviction of any person under this .section upon a charge of driving a vehicle while the operating privilege was suspended, shall revoke such privilege for an additional period of six months....
On February 3,1983, appellant was cited for allowing a driver whose license had been .suspended to operate his motor vehicle pursuant to Section 1575 of the Code which provides:
§1575. Permitting violation of title.
(a) General rule.- — No person shall authorize or permit a motor vehicle owned by blm or under his control to be driven in violation of any of the provisions of this title.
(b) Penalty. — Any person violating the provisions of subsection (a) is guilty of the- same offense as the driver of .such vehicle and subject to the same penalties including any suspension or revocation of the operating .privilege or the assessment of points. (Emphasis added.)
Appellant pleaded guilty to violating .Section 1575 of the Code on February 16, 1983. The driver’s oper
A hearing was held in the ¡Court of Common Pleas of Lawrence County without additional testimony taken, and on October 4, 1983, the appeal was dismissed and the revocation sustained. This appeal followed.
Appellant is contending that he was wrongfully charged under 'Section 1575 of .the Code when he should have been charged with the more specific Section 1574 violation. Section 1574 provides:
§1574. Permitting unauthorized person to drive
(a) General rule. — No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon .any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to foe driven.
(b) Penalty. — Any person violating the provisions of subsection (.a) is guilty of a summary offense and shall foe jointly and .severally liable with the driver for any damages caused by the negligence of such driver in operating the vehicle.
Appellant is also contending that the notice of revocation was defective because it informed him of a six
Appellant cites Commonwealth v. Burkett, 300 Pa. Superior Ct. 72, 445 A.2d 1304 (1982) in .support of his contention that he should have been charged with the more specific statute, Section 1674. In Burkett, the defendant was appealing his criminal conviction for a Section 1575 violation. The Pennsylvania Superior Court sustained the appeal and reasoned, under a criminal law theory, that defendant .should have been charged with the more ¡specific statute, Section 1574.
The matter sub judice is an administrative appeal. Appellant pleaded guilty to a Section 1575 violation, and the appeal in question is one involving the revocation, which is civil in nature; therefore, appellant may not attack the underlying criminal conviction. Department of Transportation, Bureau of Traffic Safety v. Seiscio, 56 Pa. Commonwealth Ct. 45, 424 A.2d 566 (1981).
Appellant’s contention that the notice was defective in referring to a .Section 1543 conviction and not a .Section 1575 conviction is without merit. He had notice of a Section 1575 violation when he received the citation, and, subsequently, he .received the notice of revocation referring to a Section 1543 violation. Therefore, DOT’s notice of revocation meets minimum due process requirements .since it adequately informed him of the nature of .the proceeding' in question prior to revocation.
Appellant’s final contention is also without merit. Section 1543 provides for an additional six month
Accordingly, we affirm.
Order
And Now, September 12, 1985, the order of the Court of 'Common .Pleas of Lawrence County, dated October 4,1983, in the above-captioned matter, is hereby affirmed.
Dissenting Opinion
Dissenting Opinion by
Regretfully, I must dissent. Nothing in the record shows, let alone proves, that the operating privileges of the driver of the vehicle were revoked for six months pursuant to Section 1543 of the Vehicle Code (Code), as amended, 75 Pa. O. S. §1543 (driving while under suspension). Because Appellant’s conviction under Section 1575 of the Code, 75 Pa. C. S. §1575, carries with it as a penalty the same penalty as is imposed upon the driver of the vehicle, the Commonwealth must prove, as an element of its case, the driver’s violation and conviction, as well as the driver’s suspension or revocation penalty. How else could the same penalty be imposed upon Appellant?
There are three distinct subsections of .Section 1543 and the Commonwealth has failed to establish of which subsection or subsections, if any, the driver of Appellant’s vehicle .stood convicted and which were applicable to that driver’s license .revocation. Under the provisions of .Section 1543(c), a driver convicted
The only record evidence that the -Commonwealth has produced to support its case is: a) Appellant’s official notice of revocation, b) Appellant’s citation for violating-Section 1575, -and, c) Appellant’is driving record.
In the absence of .such proof, I am compelled to dissent and must conclude -that Appellant’s objection is well taken.
-Section 1543(a) ¡requires -that any person, .convicted of driving while his license is suspended, revoked or recalled, shall be fined $200.00, unless he is guilty under Section 1543(b). Section 1543(b) requires. that any person who -drives when his or her operating privilege has been suspended or revoked as a condition of acceptance of ARD for a violation of §3731 (DUI), or because of a violation of §1547(b)(1) (refusal to take test) or a violation of §3731 (DOT), shall be fined $1,000.00 and be imprisoned for not less than ninety days.
Both the citation for violating Section 1575 and Appellant’s driving record mention the driver’s suspension, but neither is tantamount to proving the driver’s conviction.