Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P. L. 58 — Error of law — Special speed limit — Point assessment.
1. Under provisions of The Vehicle Code, Act 1959, April 29, P. L. 58, suspension of a motor vehicle operator's license is mandated for violation of special speed limits, and an error of law is committed by a reviewing court which vacates a suspension order resulting from such a violation on the ground that a similar violation of the general state speed limit would have resulted in no suspension but only in an assessment of points. [163]
OPINION BY JUDGE CRUMLISH, JR., April 19, 1974:
On April 29, 1972, Appellee Robert E. Thompson was apprehended on Interstate 81 for driving at a speed of 76 m.p.h. in a posted 65 m.p.h. zone, in violation of Section 1002(b)(8) of The Vehicle Code, Act of April 29, 1959, P. L. 58, as amended, 75 Pa.C.S.A. § 1002(b)(8). Following his conviction for this offense, the Secretary of Transportation suspended Thompson's operator's license for one (1) month pursuant to Section 618(b)(2) of The Vehicle Code, 75 Pa.C.S.A. § 618 (b)(2). On appeal to the Court of Common Pleas of Delaware County, and after a de novo hearing, the court below sustained the appeal on the ground that the suspension was excessive because, had the violation been punishable under Section 619.1 of The Vehicle Code, 75 Pa.C.S.A. § 619.1, Thompson would have only been assessed six points for exceeding the speed limit by 11 m.p.h.
There is no question that the lower court committed an error of law by sustaining Thompson's appeal solely on this ground. See our recent decisions in Commonwealth v. Jula, 12 Pa. Commw. 140, 316 A.2d 681 (1974); and Commonwealth v. Huff, 10 Pa. Commw. 261, 310 A.2d 435 (1973); Commonwealth v. Vairo, 9 Pa. Commw. 454, 308 A.2d 159 (1973); Commonwealth v. McCartney, 2 Pa. Commw. 540, 279 A.2d 77 (1971); Commonwealth v. Vekovius, 2 Pa. Commw. 226, 278 A.2d 371 (1971). Rather, Appellee argues that the case be remanded to enable the court below to determine the factual question of whether there were sufficient extenuating circumstances surrounding the incident to justify his violation. We need not remand the case, however, as the record clearly establishes that the Commonwealth has made out a prima facie case, and the mitigating circumstances presented, even if given full credence, would not afford the lower court a basis to reverse the suspension.
Primarily, Appellee contends that he was not aware of his speed because of a malfunction in his speedometer. Aside from the Appellee's own testimony, no attempt was made to prove that the speedometer was defective at the time of the violation, and thus the court could not excuse the violation on this basis. Commonwealth v. Buchser, 185 Pa. Super. 54, 138 A.2d 191 (1958). Nor does the fact that Appellee was unaware of his speed mitigate the violation. Commonwealth v. Boylan, 6 Pa. Commw. 629, 297 A.2d 831 (1972); Department of Transportation v. Jakiel, 4 Pa. Commw. 80, 286 A.2d 28 (1972). Nor does the absence of heavy traffic or the fact that the violation occurred on a down-grade in a desolate section of the highway warrant a driver to exceed the posted speed limit. Commonwealth v. Pison, 2 Pa. Commw. 522, 279 A.2d 84 (1971).
Accordingly, we reverse the order of the court below, and direct the Secretary of Transportation to reinstate the one month period of suspension.