(concurring).
The petitioner in the instant case alleges that the suspension of his operator’s license prior to an opportunity to demonstrate that the Secretary’s records are in error, constitutes a violation of his rights to due process, guaranteed by the Fourteenth Amendment.
“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). See also, Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); the concurring opinion of Mr. Justice Frankfurter in Joint Anti-Fascist Refuge Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951); Davis v. Weir, 328 F. Supp. 317 (N.D.Ga.1971); Ackies v. Purdy, 322 F.Supp. 38 (S.D.Fla.1970). However, it must be remembered that “Due process is not a fixed, inflexible procedure which must be accorded in every situation. It varies with the circumstances involved.” Baker v. Downey City Board of Education, 307 F.Supp. 517, 522 (D.C.Calif.1969). And one of the primary instances in which due process may be limited is in the valid exercise of reasonable police powers. Wilson v. Webster, 315 F.Supp. 1104 (D.C.Calif. 1970).
“The power of the State to regulate the use of its highways is broad and pervasive.” Bibb v. Navajo Freight Lines, 359 U.S. 520, 523, 79 S.Ct. 962, 964, 3 L.Ed.2d 1003 (1959). And the state may impose reasonable restrictions on such use, in the interests of public safety. Walkinshaw v. State of Pennsylvania, 119 F.Supp. 722 (W.D.Pa.1954). To further this end, the legislature of Pennsylvania enacted § 619.1 of the Motor Vehicle Code, the “Point system for driver education, testing and suspension”.
Section 619.1 provides that the Secretary maintain records of convictions of every person licensed by the Commonwealth, and that upon receipt of information concerning conviction, he assign a prescribed number of points to that individual’s record. In addition, it is provided that when an individual accumulates 11 points, the Secretary must suspend such person’s operator’s license or learner’s permit. No discretionary determination is sanctioned, but rather a mandatory act on the part of the Secretary. However, an individual always has a right to appeal any conviction,1 2and upon successful appeal to have the points eliminated. Furthermore, every driver in Pennsylvania is held to have knowledge of the point system, and recognize that conviction will result in the assessment of a fine and assignment of points to his record.3
Therefore, the time to appeal, and the allowance of a day in court with full procedural due process is provided in the statutory procedure for appealing from convictions by a magistrate. This day in court is what is contemplated by due process. Having failed to take advantage of this constitutional right, it does *749not appear warranted to accord an individual the opportunity to oppose the summary suspension of his license when he at no time opposed those matters which cumulatively created the situation which eventuated in suspension. “It is sufficient for the purpose of due process that the statute or statutes are drawn in such a manner as to notify the actor of the prohibited conduct.” United States ex rel. Shell Oil Co. v. Barco Corporation, 430 F.2d 998, 1001, C.A.8, 1970.
Closely analogous to the present situation is that of individuals sentenced to life imprisonment as habitual offenders. In Whiteley v. State of Wyoming, 293 F. Supp. 381 (D.C.Wyo.1968), affirmed 416 F.2d 36, C.A.10, 1969, reversed 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the District Court held that “Upon proof that petitioner had been convicted of a felony three times previous to the conviction about which he now complains, the trial court properly enhanced petitioner’s punishment by imprisonment in the state penitentiary for not less than life,” in accordance with the Wyoming statute on habitual offenders, 293 F.Supp. at 386. The Court of Appeals for the Tenth Circuit affirmed without reference to the state’s habitual offender statute, and the Supreme Court in reversing likewise did not refer to that statute. Both appellate courts concerned themselves with the issue of probable cause for arrest.
“Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is ‘essentially independent’ of the determination of guilt on the underlying substantive offense. * * * Thus, although the habitual criminal issue may be combined with the trial of the felony charge, ‘it is a distinct issue, and it may appropriately be the subject of separate determination. * * *
“Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense. * * * ” Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 504, 7 L.Ed.2d 446 (1962). Cited in United States ex rel. Swingle v. Rundle, 318 F.2d 64, C.A.3, 1963.
However, the relevant Pennsylvania statute 3 vests the trial judge with discretionary authority to impose a life sentence on an habitual criminal. Contrasted with this, is the mandatory imposition of license suspension under. the Code. There is no discretionary provision in the Code which would enable an individual to allege that a different or lesser penalty might have been imposed, as in the habitual criminal act.
Accordingly, the analogy is useful for a limited purpose only, because under the habitual criminal statutes, the penal provisions are discretionary, while in the motor vehicle license suspension cases, the suspension is mandatory. Thus an individual on trial as a fourth offender under the Pennsylvania habitual criminal statutes cannot be certain that the court will exercise its discretion, and should be permitted to come forth and show why a life sentence should not be imposed, whereas, an individual who acquires 11 points under the Code is held to have had prior knowledge that conviction of the offenses would result in mandatory suspension of his operator’s license. The final motor vehicle conviction contains the inherent penalty of license suspension, and an individual should not be permitted to collaterally attack prior convictions when he failed to do so directly, and in fact acquiesced to the convictions.
Likewise, it has been held that where a criminal defendant attempts to enter a guilty plea, he must be aware of his possible treatment as an habitual offender or one ineligible for parole. See Bye v. *750United States, 435 F.2d 177, C.A.2, 1970,4 and cases cited therein. However, even the analogy of lack of information on which to make an intelligent plea, which the Court reviewed in Bye, falls in view of the fact that the ineligibility for parole was an exception to the general provisions of law, and that an individual may rely on the generally held belief that he will be eligible for parole after serving one-third of his sentence.5
Those licensed by a state to operate motor vehicles on its highways are charged with the knowledge that a violation of the Code will result in liability for the payment of a fine and the assignment of a specified number of points to that individual's record, and that on the accumulation of 11 points automatic license suspension will result. Accordingly, it seems to me that the licensed public is charged with knowledge of the provisions of the Pennsylvania Motor Vehicle Code; that all motor vehicle operator licensees must abide by the rules of the road and that upon failure to do so to stand liable and submit to the penalty of a fine and points, and such suspension and revocation as are set forth in the Act.
I find it difficult to separate the penalty into two separate parts so as to indicate that the payment of a fine is one thing, and the imposition of points is another. In reality the paying of the fine and the imposition of the points are one and the same, since by legislative mandate the latter accompany the former. The only difference is that in the ease of the payment of the fine, it is the committing magistrate who imposes the penalty, and in the case of the points, it is the Secretary acting under the provisions of the Code.
Under Pennsylvania law, an individual who is convicted of a motor vehicle offense and has a fine- imposed upon him may still appeal the conviction to the proper court where he may test the right or wrong of the charge made before the magistrate. If he prevails on appeal, both the fine and any assigned point penalties must fall; if he does not prevail on the merits, he must pay the fine and point encumbrances, but that is not to say that the point penalty then is to be considered separately. He knows of the conviction and he has had notice and opportunity to defeat it. So when an individual has several convictions and the assigned points add up to 11, he has a continuing notice and the opportunity to take appeals on the merits. Under these circumstances, I do not see that there is a failure of due process when he, himself, should know that when 11 points are accumulated it is mandatory that the Secretary suspend his license.
In the present situation, the repeated nature of the offenses, and the non-discretionary duty of the Secretary compel the conclusion that in all probability the petitioner is the type individual which the Commonwealth sought to exclude from its highways in the interests of public safety. In almost every case of this sort, a hearing prior to the suspension would serve no valid purpose other than putting the Commonwealth to the added burden of providing a hearing which would disclose' that the assignment of 11 points to the individual’s driving record was properly made. However, as the majority indicates, there does exist the extremely remote possibility that compounded errors could result in the suspension of the license of an innocent individual. Under these circumstances, which I feel are highly improbable, a miscarriage of justice would result in an individual being deprived of his operator’s license without due process of law.
Prior to the addition of § 619.1 when the 1959 codification of § 618(b) (2) was effective, the Secretary was vested *751with discretionary power to determine when an operator-licensee should be cited for a license suspension hearing. Thereafter an appeal from such discretionary suspension by the Secretary was to the court of common pleas or the County Court of Allegheny County, which courts had broad power to reverse the suspension for various reasons including operational hardship.
Section 619.1, as enacted in 1966 removed this discretionary power from the Secretary and made it mandatory for him to suspend a license when eleven points were charged against the operator for convictions of motor vehicle violations. The legislature then gave the licensee the right of appeal under § 620 to the court of common pleas of the county in which the operator resides or the County Court of Allegheny County to determine from the records of convictions before the magistrates and the records of the court whether the suspension was given in accordance with the mandate of § 619.1. At such hearing the operator is permitted to show only that he was not convicted or that the records or computations of the Secretary are incorrect. Virnelson Motor Vehicle Operator License Case, 212 Pa.Super. 359, 243 A.2d 464 (1968). The court can inquire no further than this and it may not retry the merits of the convictions or upset the penalties provided for such violations.
As Judge Jacobs said in Virnelson at page 368, 243 A.2d at page 469, “The discretion in these cases has been exercised by the legislature. The merit of suspension is no longer a matter for determination by either the secretary or the courts.”
Section 620 gives one against whom the suspension has been directed thirty days to take an appeal to the appropriate court to test the correctness of the suspension. Under ordinary circumstances this should not take away from the due process requirement of the law. However, the majority is of the opinion that the right to show the incorrectness of such a suspension should occur prior to the suspension being made by the Secretary.
While I yield to the thinking of the majority that the innocent individual under these remote conditions should be provided with notice and an opportunity to be heard prior to suspending that individual operator’s license, I would emphasize the fact that I am of the firm opinion that the point system is, if not the best, at least a necessary procedure for the purpose of eliminating the offending licensee from the highways both for his own protection as well as for the protection of the general public. For no one will doubt that if ever our highways needed law enforcement for the preservation of the public safety, it is today. We all readily admit that there are too many users of the highways who do need to be supervised and apprehended. And where the law is plain enough we ought not to accept superfluous technical excuses that will help to defeat the safety protection on which the public depends.
It has been held that an operator’s license represents a right or privilege which is “ * * * not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971). The latter case, upon which the majority relies concerns itself with the requirements of due process as it relates to financial responsibility, and consequently Bell does not guide us factually here. But we should not lose sight of the fact that licensing is also a right of the public for protection in the use of the highway. If it were not so, why should there be any licensing at all? Why should not every person who desires to drive an automobile or another vehicle on the highway be permitted to do so without a license? The very fact that an individual is required to have a license also carries with it certain responsibilities, and when such an operator-licensee violates those responsibilities, then the State should have the right and the duty to avail itself of simple procedures for the purpose of enforc*752ing its rules for safety on the highways. I agree that there is no preliminary provision for matters of error in the computation of points or of mistaken identity of an individual in a suspension case, and I believe that there sííould not be an after-hearing on any errors that may have been committed in the office of a magistrate or even in a court. I believe that the simple record of the magistrate or the court indicating that a fine had been paid upon a particular charge and that no successful appeal was prosecuted should be conclusive. But since there is no provision in the law, or any rules which allow for correction of errors prior to suspension, I must agree that a procedure is lacking to assure the right of a charged person to present limited factual matters, as to the plaintiff here, matters such as identity and point accumulation accuracy. As the Supreme Court stated in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a governmental regulation “ * * * is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest * * See also, Martin v. Davison, 322 F.Supp. 318 (W.D.Pa.1971). The reasonableness of any regulation is to be judged by the context in which it is applied. Gfell v. Rickelman, 441 F.2d 444, C.A.6, 1971. And “ " * * it is fundamental that except in emergency situations * * * due process requires that when a State seeks to terminate an interest such as that here involved, it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” (Emphasis supplied) Bell v. Burson, supra, 402 U.S. at page 542, 91 S.Ct. at page 1591.
Thus, while I firmly believe that § 619.1 of the Pennsylvania Motor Vehicle Code is a valid exercise of police power, I am bound to support the ultimate conclusion reached by the majority only on the remote possibility that a summary suspension might inadvertently deprive an innocent person of his operator’s license without due process of law. For the limited purpose of inquiring into the propriety of the Secretary’s record, and not for the purpose of authorizing a review of each of the constituent cases or their respective penalties whether fines or points, or both, I join in the result reached by the majority.
. 75P.S. §1215.
. The record in the present case discloses as follows:
1. That on or about October 21, 1907, petitioner was convicted for speeding at the rate of 7G miles per hour in a 65 mile per hour zone in violation of Section 1002(b) (7) of the Code.
2. That petitioner attended Driver Improvement School in January 1968 for which he received a credit of one point.
3. That on or about June 24, 1968 petitioner was convicted of disobeying a traffic signal, and fined $5.00 ulus costs, and assigned 5 points.
4. That there then ensued a period of one year in which no convictions occurred, and for which petitioner received a two point credit.
5. That on or about August 28, 1969 petitioner was convicted of speeding at a rate of 55 miles per hour in a forty-five miles per hour zone, in violation of Section 1002(c) of the Code. A fine of $10.-00 plus costs was paid and 3 points were assigned.
. 18 P.S. § 5108.
. In Bye v. United States, supra, petitioner claimed that he had not been informed that as a consequence of pleading guilty to a narcotics offense he would be ineligible for parole. The Court held that it could not be said that the petitioner voluntarily entered his plea when he was not informed that he would be ineligible for parole.
. See 18 U.S.C. § 4202.