580 A.2d 901 | Pa. Commw. Ct. | 1990
David E. Mark (Mark) appeals from an order of the Court of Common Pleas of Allegheny County that affirmed the
Mark does not disagree that he accumulated eight points under the Vehicle Code early in 1989 or that the provisions of 75 Pa. C.S. § 1538(c) are applicable to his case. He contends, however, that Section 1538(c) is constitutionally infirm because it is an unlawful delegation of power prohibited by Article 3, Section 31 of the Pennsylvania Constitution.
The Department of Transportation argues that, under the terms of Pennsylvania Rule of Civil Procedure 235(a), which requires notice to the Attorney General if an “Act of Assembly is alleged to be unconstitutional and the Commonwealth is not a party,” Mark is obligated to notify the Attorney General of his constitutional challenge. Because he has not done so, the claim is that the case must be dismissed. We reject this argument. The appellee cites Garcia v. Commonwealth, 131 Pa.Commonwealth Ct. 327, 570 A.2d 137 (1990); Bainbridge v. Department of Transportation, 125 Pa. Commonwealth Ct. 406, 557 A.2d 456 (1989); and Hall v. Acme Markets, Inc., 110 Pa. Commonwealth Ct. 199, 532 A.2d 894 (1987), in support of its contention. We note that all these cases involve a defense by the Commonwealth of sovereign immunity in which cases the correct Commonwealth agency must be a party. We note that the Commonwealth is a named party in the present case and that no further notice to the Attorney General is needed.
Because the licensee has conceded that he was, in fact, convicted, the sole remaining question is whether the department has acted in accordance with applicable law. We believe that it has.
First of all, we reject the contention of Mark that there has been, in this case, an unconstitutional delegation of legislative powers. We fail to see that there is any delegation of legislative powers involved here. When a statute provides a penalty for the commission of a forbidden act an administrator or a judicial officer has only one responsibility, i.e., to determine whether the forbidden act was in fact committed. This involves a factual determination, not the exercise of a legislative function. If the
Mark’s remaining argument alleges a due process violation in that the department has flouted the will of the legislature by removing all substantive content from the mandated hearing and by establishing a policy that, regardless of events at the “hearing,” all motorists falling within
There can be no quarrel with the Commonwealth’s position that in order to regulate the use of its highways, the state does have power to enact the Point System Plan into law and that it may use infractions of the Vehicle Code as a basis for license suspension. We may say further that the legislation is an intelligent and commendable effort to diminish the carnage on our highways by focusing attention on the most common cause of accidents, the careless and code-violating driver. However, it is not enough that the substantive provisions of a statute pass constitutional muster because it is also necessary that the methods of administration meet appropriate standards of due process.
Reese, 334 F.Supp. at 746.
The court, further in the opinion, made the following statement:
We point out, however, that even if the convictions cannot be contested, there still remain the possibilities, among others, that the convictions were those of another person with the same name; that the fines and costs were paid on an information at variance with that for which the minor judiciary entered a conviction as plaintiff contends occurred in this case; that the points were improperly calculated; that credits were wrongfully withheld; or that there were errors on the report of conviction form.*156 In none of these instances is there a provision for a hearing before suspension even though notice of the assessment of points is given. Notice without opportunity to rectify error obviously is not sufficient.
Reese, 334 F.Supp. at 747.
We notice that the Vehicle Code has been amended to provide for a pre-suspension hearing; we also take note of the fact that the federal court confined its critique to formal and procedural irregularities liable to occur in the administration of the Vehicle Code, none of which are alleged here, and did not find the Vehicle Code generally violative of due process.
We conclude Section 1538(c) of the Vehicle Code is not constitutionally infirm.
Accordingly, we affirm the order of the Court of Common Pleas of Allegheny County.
ORDER
NOW, September 11, 1990, the order of the Court of Common Pleas of Allegheny County, at No. SA 1547 of 1989, entered September 6, 1989, is affirmed.
. This section reads:
"The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.”
. See G. Darlington, K. McKeon, D. Schuckers, K. Brown, Pennsylvania Appellate Practice (1986), which comments at Section 521:2:
. Act of November 29, 1933, Special Sess., P.L. 15, as amended, formerly 47 P.S. § 744-410, repealed by the Act of April 12, 1951, P.L. 90. A similar provision is now found in Section 471 of the Liquor Code, Act of April 12, 1951, P.L. 90, 47 P.S. § 4-471.
. Now Article 3, Section 31.
. This Court has addressed many of the concerns expressed by the federal district court. See Cessna v. Department of Transportation, Bureau of Driver Licensing, 130 Pa. Commonwealth Ct. 163, 567 A.2d 760 (1989); Southerland v. Department of Transportation, Bureau of Motor Vehicles, 127 Pa. Commonwealth Ct. 349, 561 A.2d 1276 (1989); Westfall v. Department of Transportation, Bureau of Driver Licensing, 126 Pa. Commonwealth Ct. 88, 558 A.2d 619 (1989); Department of Transportation, Bureau of Traffic Safety v. Pompeo, 73 Pa. Commonwealth Ct. 414, 458 A.2d 327 (1983); Department of Transportation v. Jaffe, 65 Pa. Commonwealth Ct. 594, 442 A.2d 1253 (1982); Department of Transportation, Bureau of Traffic Safety v. Miernicki, 56 Pa. Commonwealth Ct. 254, 424 A.2d 990 (1981); Department of Transportation, Bureau of Traffic Safety v. Gibboney, 51 Pa. Commonwealth Ct. 221, 414 A.2d 408 (1980).