PENNA. DEPT. OF TRANSP. v. DURKIN, 22 Pa. Commw. 492 (1976)

349 A.2d 791

Commonwealth Court of Pennsylvania.Argued October 9, 1975
January 5, 1976.

Motor vehicles — Suspension of motor vehicle operator’s license — The Vehicle Code, Act 1959, April 29, P.L. 58 — Proof of conviction — Payment of fine — Admission — Collateral attack.

1. A conviction justifying suspension of a motor vehicle operator’s license under The Vehicle Code, Act 1959, April 29, P.L. 58, may be proved by the Commonwealth through evidence that the fine and costs were paid constituting an admission, thus eliminating

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the need for producing certified documents establishing the conviction. [493-4-5]

2. An attack on a conviction for a traffic violation on the ground that the operator’s spouse paid a fine without his consent must be made in an appeal in that proceeding, not by collateral attack in a subsequent civil proceeding to suspend the license of the operator. [493-4-5]

Argued October 9, 1975, before Judges CRUMLISH, JR., KRAMER, and WILKINSON, JR., sitting as a panel of three.

Appeal, No. 420 C.D. 1975, from the Order of the Court of Common Pleas of Luzerne County in case of Department of Transportation, Commonwealth of Pennsylvania v. James J. Durkin, Jr., No. 10730 of 1974.

Suspension of motor vehicle operator’s license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Luzerne County. Appeal dismissed. BROMINSKI, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Charles A. Shea, III, with him A. Richard Caputo, and Shea, Shea Caputo, for appellant.

John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe,
Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

OPINION BY JUDGE CRUMLISH, JR., January 5, 1976:

James J. Durkin, Jr., (Durkin) appeals a decision of the Court of Common Pleas of Luzerne County, which sustained the Secretary of Transportation’s thirty day suspension of his driver’s license.

Durkin had been charged with violating Section 1002(b)(6) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended,
75 Pa.C.S.A. § 1002(b)(6) by driving

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seventy-nine (79) m.p.h. in a fifty-five (55) m.p.h. zone. When his wife learned that her husband had failed to pay the traffic fine, she forwarded a check to cover the fine and costs. In due course, Durkin was notified that because of his conviction on February 2, 1973, of the violation, he was required to attend driver improvement school. Following successful completion of the driver improvement school term, Durkin was notified that pursuant to Section 619.1 (b), 75 Pa.C.S.A. § 619.1 (b) a mandatory thirty (30) day suspension was imposed because of his speeding conviction, whereupon he requested a departmental hearing. After a series of aborted scheduled hearings[1] he appealed to the County Common Pleas Court. The suspension was affirmed and his appeal is now before us.

Durkin argues that where the certification of disposition contains no entry of the adjudication by the issuing authority, and the traffic citation issued to the licensee failed to disclose the route, location or date of the alleged violation, his suspension cannot stand.

In light of the leading point system case, Virnelson Motor Vehicle Operator License Case, 212 Pa. Super. 359, 243 A.2d 464 (1968), we find this contention to be without merit. In Virnelson, our Superior Court said, “Although in this case the Commonwealth did not proceed in the manner we have suggested, there was only one conviction at issue and the appellee admits that she paid the fine and costs. This constitutes an admission of conviction and it would be useless to remand the case to determine an admitted fact. Commonwealth v. Halteman, 192 Pa. Super. 379, 162 A.2d 251 (1960).”

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Virnelson, supra, 212 Pa. Super. at 368, 243 A.2d at 470 Virnelson tells us that the Commonwealth may establish a conviction by means other than certified documents Commonwealth v. James, 6 Pa. Commw. 493, 296 A.2d 530
(1972) is factually similar to Durkin’s appeal. In James, supra, 6 Pa. Commw. at 496, 296 A.2d at 531, we wrote: “The lower court correctly noted that where the operator pays the fine and costs this amounts to a waiver of a hearing and a plea of guilty and is tantamount to an admission of conviction. Commonwealth v. Halteman, 192 Pa. Super. 379, 162 A.2d 251 (1960): Stout Motor Vehicle Operator License Case, 199 Pa. Super. 182, 184 A.2d 108 (1962).” Moreover, this Court also held that the issue of whether or not a conviction occurred when Mrs. James paid the fine without her husband’s consent should have been determined by an appeal of the conviction to the Court of Common Pleas and to allow Mr. James to collaterally attack the validity of the conviction in a later civil proceeding was clearly error.

In light of James, we believe that Durkin has waived his right to a departmental hearing.

Affirmed.