Smith Motor Vehicle Operator License Case

Dissenting Opinion by

Ervin, J.:

I am compelled to dissent from the majority opinion. The Secretary of Revenue received a document, apparently from the Clerk of Court of Union County, which indicated that the defendant plead guilty to a charge of burglary on October 26, 1963. The alleged certification does not state that the defendant used a motor vehicle in connection with the burglary, which is required under §616 of The Vehicle Code, 75 PS §616. That section provides that “(a) Upon receiving a certified record, from the clerk of the court, of proceedings in which a person pleaded guilty ... of any of the crimes enumerated in this section, the secretary shall forthwith revoke, for a period of one (1) year from the date of revocation, the operating privilege of any such person, and where such person was convicted, or entered a plea of guilty or nolo contendere, of any one of the crimes enumerated in this section, such operating privilege shall not be restored, unless and until the fine and costs, imposed in such cases, have been fully paid. The clerk of the courts shall, when such fine and costs have been so paid in any such case, certify such fact to the Department of Revenue. Bases requiring such certification follow:

“(1) ....
“(2) Any crime punishable as a felony under the motor vehicle or tractor laws of this Commonwealth, or any other felony in the commission of which a motor vehicle or tractor is used.”

*385It is obvious that the Clerk of Court of Union County did not make a certification that a motor vehicle was used in the commission of the burglary. Nevertheless, the Secretary of Revenue revoked the license of the defendant for a period of one year on the basis of the aforesaid document. I would hold that the aforesaid was not a proper certification as required by the act and that the secretary had no power to revoke the license in question.

Section 620 of The Vehicle Code provides that “Any person whose operator’s license or learner’s permit has been suspended, or who has been deprived of the privilege of applying for an operator’s license or learner’s permit under the provisions of this act, shall have the right to file a petition, within thirty (30) days thereafter, for a hearing in the matter in the court of common pleas of the county in which the operator or permittee resides. . . . Such courts are hereby vested with jurisdiction, and it shall be their duty, to set the matter down for hearing upon thirty (30) days’ written notice to the secretary, and thereupon to take testimony and examine into the facts of the case, and to determine . . . whether he may be deprived of the privilege of applying for an operator’s license. . . .”

Section 621 of The Vehicle Code provides as follows : “Any person whose operator’s license or learner’s permit has been revoked under the provisions of this act, shall not be entitled to apply for or receive any new operator’s license or learner’s permit until the expiration of one (1) year from the date of revocation. . .

The legislature has clearly stated in §621 of The Vehicle Code that a revocation makes it impossible for a person to apply for an operator’s license; therefore, under §620 of the Code, he may take an appeal to the court of common pleas in the county where he resides because he has been deprived of the privilege *386of applying for an operator’s license, at least for the period of one year. If the legislature did not intend to permit an appeal arising out of a revocation which also is a denial to apply for a license, it could have easily so provided in either §620 or §621 by merely stating that no appeal shall be permitted in the case of a revocation. I believe that the legislature has saved the defendant in this case by its language in §621.

In Brennan’s Case, 344 Pa. 209, 25 A. 2d 155, the Supreme Court did not discuss the language set forth in §621 at all. Everyone understands that there is a distinction between suspension and revocation. In the case of a suspension, the defendant is given the opportunity of attending a hearing before the secretary orders a suspension; whereas, in a revocation, there is no such hearing before the secretary prior to the revocation. Under these circumstances, it seems obvious that the legislature did not intend to foreclose an appeal to the courts from a revocation. The theory behind this is logical since the grounds for revocation are usually of a more drastic and severe nature than those for a suspension. Under these circumstances, it is reasonable that the legislature would, and did, by §§620 and 621, permit an appeal to the court of common pleas in the county where the defendant resides on the ground that he is deprived of applying for an operator’s license, at least during the period of one year from the date of the revocation.

Judge Weight and I merely concurred in the result in the TJllman case; because, in that case the certificate from the clerk of courts to the Secretary of Revenue stated that the defendant plead guilty to operating a motor vehicle while under the influence of intoxicating liquor and the appeal from the revocation would have to have been dismissed in any case. The case at bar presents a different situation.

*387The majority opinion concedes that the authority of the secretary to revoke in the instant case was “questionable” and that, if tbe secretary was without authority, Smith must have a remedy. The majority would relegate Smith to action of mandamus or injunction or a proceeding against the clerk of court to correct or withdraw the certification. I would allow the appeal and sustain the order of the court below.

Weight, J., joins in this opinion.