Opinion
Argued April 6, 1973
May 2, 1973.
Motor vehicles — Suspension of motor vehicle operator's license — Scope of appellate review — Sufficient evidence — Error of law — Abuse of discretion — Credibility — Competent evidence — The Vehicle Code, Act 1959, April 29, P. L. 58 — Speeding — Extenuating circumstances — Emergency.
1. In a motor vehicle operator's license suspension case it is the duty of the Commonwealth Court of Pennsylvania to examine the testimony to determine whether the findings of the court below are supported by competent evidence and to correct erroneous conclusions of law, and the action of the lower court will not be disturbed absent a manifest abuse of discretion. [204]
2. In a motor vehicle operator's license suspension case it is the duty of the court hearing the matter de novo to pass on the credibility of witnesses. [204]
3. A finding by a lower court supported by competent evidence that a motor vehicle operator's license, suspended following a speeding conviction pursuant to provisions of The Vehicle Code, Act 1959, April 29, P. L. 58, should be restored because of the existence of extenuating circumstances of emergency, will not be disturbed on appeal. [205]
Argued April 6, 1973, before Judges MENCER, ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 150 C.D. 1971, from the Order of the Court of Common Pleas of Allegheny County, in case of Commonwealth of Pennsylvania v. Barbara B. Toole, No. SA-735 of 1970.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. MARTIN, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Stuart A. Liner, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
Charles N. Caputo, for appellee.
On April 22, 1970, at approximately 2:00 a.m., Barbara B. Toole (Toole) was apprehended for speeding at the rate of 78 miles per hour in a 50 mile per hour zone. An information was filed alleging that Toole had violated Section 1002(b)(8) of The Vehicle Code, Act of April 29, 1959, P. L. 58, 75 Pa.C.S.A. § 1002(b)(8), and she thereafter paid a fine and costs of $15.00. A hearing was subsequently conducted by the Department of Transportation, and, pursuant to Section 618(b)(2) of The Vehicle Code, 75 Pa.C.S.A. § 618(b)(2), Toole's license was suspended for a period of three months.
Toole appealed the suspension of her license to the Court of Common Pleas of Allegheny County, and that court decided to hear the case de novo, as it was, of course, required to do. Commonwealth v. Fisher, 6 Pa. Commw. 159, 293 A.2d 644 (1972); Commonwealth v. Silverman, 2 Pa. Commw. 538, 279 A.2d 83 (1971). It sustained Toole's appeal and restored her operating privileges because she "was confronted with an emergency situation which placed her under considerable strain." We must affirm.
Our scope of review in this situation, of course, is limited. "In appeals of this nature our duty is to examine the testimony to determine whether the findings of the court below are supported by competent evidence and to correct any erroneous conclusions of law, and the action of the lower court will not be disturbed on appeal except for manifest abuse of discretion." Commonwealth v. Stamoolis, 6 Pa. Commw. 617, 621, 297 A.2d 532, 534 (1972); Yockers v. Department of Transportation, 4 Pa. Commw. 95, 99-100, 285 A.2d 893, 896 (1972); Commonwealth v. Pison, 2 Pa. Commw. 522, 524, 279 A.2d 84 (1971). "It is the lower court's duty to decide on the credibility of witnesses. . . ." Commonwealth v. Jenks, 6 Pa. Commw. 546, 551, 296 A.2d 526, 529 (1972).
Our examination of the record shows that Toole was employed as communications supervisor at the West Penn Hospital in the City of Pittsburgh. In the early morning hours of April 22, 1970, she was notified that the hospital had received a bomb threat, and she testified that she hurried to the hospital immediately because the night operator was "frantic" and also because it was urgent she be there for "there is certain things the switchboard must do, emergency measures that the switchboard operators have to do when something like this happens." It was her contention that she was speeding so as to reach the hospital as quickly as possible and assist in the emergency. While there was testimony that she did not explain the emergency to the arresting officer, this was, perhaps, because she feared further delay. At any rate, the testimony clearly supports her statement that there was, in fact, an emergency situation.
In a case such as this, where testimony is taken de novo by a hearing judge and extenuating facts and circumstances such as an emergency are adequately supported by the testimony, our Supreme Court has held that the exercise of the hearing judge's discretion will not be disturbed. Commonwealth v. Emerick, 373 Pa. 388, 96 A.2d 370 (1953). See Hergert Appeal, 384 Pa. 544, 120 A.2d 888 (1956).
Here the lower court found that the emergency arising from the bomb threat and Toole's belief that her presence was immediately necessary at the hospital constituted such mitigating circumstances as to justify reversing the suspension of Toole's license. There is certainly competent evidence in the record to support this decision, and we can find no basis, therefore, for questioning the lower court's discretion on this issue.
The order of the court below is affirmed.