Opinion
November 11, 1957.
January 21, 1958.
Motor vehicles — Licenses — Suspension — Excessive speed — Appeal — Evidence — Defective speedometer in defendant's car — Scope of appellate review — The Vehicle Code.
1. On appeal by the Commonwealth from an order of the court below sustaining defendant's appeal from the action of the Secretary of Revenue in suspending his motor vehicle operator's license for a period of thirty days, in which it appeared that the uncontroverted material facts were that defendant was driving his automobile on a public highway at a speed of eighty-five miles per hour where the lawful limit was fifty miles per hour, that it was raining, and that defendant had had twenty-three years experience as a licensed operator; that defendant testified in the court below that he had thought that he was going forty-eight or forty-nine miles per hour because his speedometer did not register over fifty miles per hour; and that the court below, after hearing de novo, sustained defendant's appeal, basing its decision upon a finding that defendant's speedometer was defective as testified to by defendant; it was Held that the order of the court below should be reversed and the order of the Secretary of Revenue reinstated.
2. On a hearing de novo, on appeal by a motor vehicle operator from the suspension of his license, the court below, while entitled to act independently in the exercise of its discretion, must, nevertheless, act in accordance with the evidence and circumstances presented.
3. Under the amendment of 1956 to § 616 of The Vehicle Code of May 1, 1929, P.L. 905, the scope of review of the Superior Court on appeal from an order of the court below entered in a motor vehicle operator's license case is the same as heretofore in the Supreme Court.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 72, April T., 1957, from order of County Court of Allegheny County, 1956, No. C-1964, in case of Commonwealth of Pennsylvania v. Albert J. Buchser. Order reversed.
Appeal by defendant to County Court of Allegheny County from decision of Secretary of Revenue suspending motor vehicle operating privileges. Before O'CONNOR, J.
Order entered sustaining appeal. Commonwealth appealed.
Frederic G. Antoun, Deputy Attorney General, with him Thomas D. McBride, Attorney General, for appellant.
Thomas R. Neely and Scott, Neely Dunn, for appellee.
Argued November 11, 1957.
On February 24, 1956, Albert J. Buchser, the appellee, was apprehended by the Chief of Police of Salem Township, Westmoreland County, for driving his automobile on a public highway in that township at a speed of eighty-five miles per hour where the lawful limit was fifty miles per hour. Information was filed before a justice of the peace, and appellee was convicted of a violation of section 1002 (b) 6 of the Act of May 1, 1929, P.L. 905, Article X, as amended, 75 Pa.C.S.A. § 501 (b) 6.
Upon receiving notice of these facts the Secretary of Revenue cited appellee for hearing, which was conducted by a representative of the Secretary on September 10, 1956. The Secretary of Revenue suspended for the violation appellee's motor vehicle operator's license for a period of thirty days under section 615 of the Act of May 1, 1929, P.L. 905, Article VI, as amended, 75 Pa.C.S.A. § 192.
Thereupon appellee appealed to the County Court of Allegheny County which, after a hearing de novo, sustained appellee's appeal. From that order the Commonwealth has appealed to this Court.
The material facts are not controverted. It was established that appellee was driving his automobile on a public highway at a speed of eighty-five miles per hour where the lawful limit was fifty miles per hour; that it was raining; that appellee passed other traffic at the excessive speed; that appellee had twenty-three years experience as a licensed operator. The decision of the court below was based upon its finding that appellee's speedometer was defective in that it did not register more than forty-eight or forty-nine miles per hour due to a mechanical defect.
Under the amendment of 1956 to section 616 of The Vehicle Code of May 1, 1929, P.L. 905, 75 Pa.C.S.A. § 193, our scope of review in this type of appeal is the same as heretofore in the Supreme Court. Com. v. Fisher, 184 Pa. Super. 75, 81, 132 A.2d 739.
In Bureau of Highway Safety v. Wright, 355 Pa. 307, 311, 49 A.2d 783, 785, our Supreme Court said: "The jurisdiction conferred by Sec. 616 of the Vehicle Code upon courts of common pleas [and the County Court] does not authorize them to act either arbitrarily or capriciously with respect to the reinstatement of a suspended license. There must be a justifiable factual basis for the court's action in the premises." In the order of the court below we find no justifiable factual basis for sustaining the appeal of appellee. The hearing was de novo, and the court made no finding that the offense with which appellee was charged and convicted had not been committed. As said in Com. v. Emerick, 373 Pa. 388, 396, 96 A.2d 370, 374: ". . . on a hearing de novo, on appeal, the court of common pleas [and the County Court], while entitled to act independently in the exercise of its discretion, must, nevertheless, act in accordance with the evidence and circumstances presented."
Appellee testified in the court below that he thought he was going forty-eight or forty-nine miles per hour as his speedometer did not register over fifty miles per hour. Such testimony afforded no basis for the court to reverse the suspension. Cf. Com. v. Fisher, supra, 184 Pa. Super. 75, 132 A.2d 739. An applicable pronouncement is found in Com. v. Moogerman, 385 Pa. 256, 263, 122 A.2d 804, 808: "But a court may not, as in the case at bar, ignore evidence, slight the law, and release with but a slight reproof a motorist who says that, although she was driving 85 miles per hour: `I didn't realize I was going that fast and it is very hard to adjust the car.'" It would be very difficult to conclude that appellee, who had been driving for twenty-three years and who drove approximately twenty thousand miles per year, was unable to judge speed within reasonable limits notwithstanding a defective speedometer.
We agree with the Commonwealth that the decision of the court below would permit "a motorist to adjust or set his speedometer so that it fails to record speeds in excess of lawful limits, and thereby prevent the Secretary of Revenue, upon a hearing, from suspending his operating privileges."
The order of the County Court of Allegheny County is reversed, and the order of the Secretary of Revenue is reinstated. A reinstated suspension shall be issued within thirty days.