Commonwealth v. Miernicki

OPINION :i;y Judge Craig, The Department of Transportation, Bureau of Traffic Safety (department) appeals from the order of the Court of Common Pleas of Bucks County which sustained the appeal of Michael Miernicki from the department’s 180-day suspension of his operating privileges under Section 1539 of the Vehicle Code, 75 Pa. C. S. §1539. As in Department of Transportation, Bureau of Traffic Safety v. Dinkins, 56 Pa. Commonwealth Ct. 182, 424 A.2d 591 (1981), argued before this panel the [256] same day as this case, the trial court here did not have the benefit of onr decision in Department of Transportation, Bureau of Traffic Safety v. Gearhart, 50 Pa. Commonwealth Ct. 474, 413 A.2d 1161 (1980) when it decided this case. The Gearhart decision has now established that the department acted correctly in raising Miernicki’s point total to five npon restoration of his license from a suspensión, including a non-point suspension. Hence, when later certifications of conviction brought Mier-nicki’s total to eleven or more points, the resulting additional suspension was proper. However, we agree with the court below that the department improperly assessed four points against Miernicki based on the speeding offense on September 4, 1977. The citation for that offense indicates that Miernicki was traveling at fifteen miles per hour over the allowed speed. Section 1535 of the Code, 75 Pa. C. S. §1535, provides that three points shall be assessed for speeding violations of 10-15 miles per hour over the maximum speed allowed. The trial court correctly adjusted Miernicki’s total to reflect the proper assessment. However, even thus adjusted, Miernicki’s total accumulation is eleven points, and, two earlier suspensions having been imposed, Section 1539 requires suspension for fifteen days for each point, or a total of 165 days in this case. The lower court’s order will be reversed, and the department’s suspension, as modified to 165 days, will be reinstated. Order A No Now, January 22, 1981, the June 11, 1979 order of the Court of Common Pleas of Bucks County, at No. 78-7450-10-6, sustaining the appeal of Mi [257] chael Miernield, is reversed, and the suspension imposed by the Department of Transportation, Bureau of Traffic Safety, as modified from 180 to 165 days, is reinstated.