Opinion
Argued December 8, 1980
January 20, 1981.
Motor vehicles — License suspension — Vehicle Code, 75 Pa. C. S. § 1545 — Failure to respond to a citation — Points.
1. A non-point suspension of a motor vehicle operator's license for failure to respond to a citation is to be considered a suspension under the Vehicle Code, 75 Pa. C. S. § 1545, which calls for the driver's record to show five points upon restoration from suspension. [185]
Argued December 8, 1980, before Judges WILKINSON, JR., CRAIG and PALLADINO, sitting as a panel of three.
Appeal, No. 1568 C.D. 1979, from the Order of the Court of Common Pleas of Dauphin County in the case of Commonwealth of Pennsylvania v. William M. Dinkins, No. 2077 S 1979.
Suspension of motor vehicle operator's license by the Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Dauphin County. Appeal sustained. CALDWELL, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Harold H. Cramer, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, Transportation, and Harvey Bartle, III, Acting Attorney General, for appellant.
No appearance for appellee.
The Department of Transportation, Bureau of Traffic Safety (department) appeals from the order of the Court of Common Pleas of Dauphin County sustaining the appeal of William M. Dinkins from the department's order suspending his operating privilege under Section 1539 of the Vehicle Code, 75 Pa. C. S. § 1539. We reverse.
As of July 1, 1977, Dinkins' record reflected three points. On May 22, 1978, the department suspended his license indefinitely for failure to respond to a speeding citation issued on July 3, 1977. On July 17, 1978, the department imposed a second suspension, for failure to respond to a citation issued April 29, 1978 for reckless driving.
On January 3, 1979, Dinkins paid the fines and costs on the July 3, 1977 citation and also on a third citation which had been issued for speeding on July 4, 1977. On January 4, 1979, he paid the fines and costs on the April 29, 1978 citation.
The department restored Dinkins' license on January 22, 1979, and, pursuant to Section 1545 of the Vehicle Code, 75 Pa. C. S. § 1545, thereupon raised his point total to five points. The correctness of that action of the department is the key issue here.
Section 1545 provides:
Upon restoration of any person's operating privilege which has been suspended or revoked pursuant to this subchapter, such person's record shall show five points, except that any additional points assessed against the person since the date of the last violation resulting in the suspension or revocation shall be added to such five points unless the person has served an additional period of suspension or revocation pursuant to section 1544(a) (relating to additional period of revocation or suspension).
In April 1979, the department received certifications of Dinkins' convictions on the July 3 and July 4, 1977 citations, and assessed three more points against his record for each conviction, making his total accumulation eleven points. In view of that new total, the department suspended Dinkins' license for a third time. This appeal is from that third suspension.
Section 1539 of the Vehicle Code, 75 Pa. C. S. § 1539, provides in part:
(a) General rule. — When any person's record shows an accumulation of 11 points or more, the department shall suspend the operating privilege of the person as provided in subsection (b).
(b) Duration of suspension. — The first suspension shall be for a period of 5 days for each point, the second suspension shall be for a period of 10 days for each point, the third suspension shall be for a period of 15 days for each point and any subsequent suspension shall be for a period of one year.
(c) Determination of subsequent suspensions. — Every suspension and revocation under any provision of this subchapter shall be counted in determining whether a suspension is a second, third or subsequent suspension.
This case is controlled by our decision in Department of Transportation, Bureau of Traffic Safety v. Gearhart, 50 Pa. Commw. 474, 413 A.2d 1161 (1980) which had not been decided when the trial court here made its decision. In Gearhart we held that a non-point suspension for failure to respond to a citation is also to be considered a suspension under Section 1545, which calls for the driver's record to show five points upon restoration from suspension.
Because the third suspension was therefore founded upon a proper point total, the court's order must be reversed, and the suspension reinstated.
ORDER
AND NOW, January 20, 1981, the July 12, 1979 order of the Court of Common Pleas of Dauphin County, at No. 2077 S 1979, sustaining the appeal of William M. Dinkins, is reversed, and the 165-day suspension imposed by the Department of Transportation, Bureau of Traffic Safety, is reinstated.