Melcher v. Commonwealth

58 Pa. Commonwealth Ct. 634 (1981)

Joseph Francis Melcher, Appellant
v.
Commonwealth of Pennsylvania, Appellee.

No. 299 C.D. 1980.

Commonwealth Court of Pennsylvania.

Argued March 2, 1981. April 24, 1981.

Argued March 2, 1981, before Judges MENCER, ROGERS and PALLADINO, sitting as a panel of three.

David P. Grau, Semisch & Grau, for appellant.

Maurice Levin, with him Harold H. Cramer, Attorney for Department of Transportation, Ward T. Williams, Chief Counsel for Transportation, for appellee.

OPINION BY JUDGE ROGERS, April 24, 1981:

Joseph Francis Melcher has appealed from an order of the Court of Common Pleas of Montgomery County affirming the action of the Department of Transportation, Bureau of Traffic Safety, revoking his operator's license for five years.

On the evening of October 2, 1978, Melcher was racing another car on a public highway and thereafter pleaded guilty to charges of violating three sections of the Vehicle Code, 75 Pa. C.S. § 101 et seq.: Section 3367, racing on highways, Section 3733, fleeing or attempting to elude a police officer; and Section 3734, driving without lights to avoid identification or arrest.

On September 20, 1979, Melcher received a notice from the Department of Transportation stating that the three convictions stemming from the October 2, 1978, incident brought him within the class habitual offender under Section 1542 of the Vehicle Code and that his operator's license therefore was revoked for five years. Melcher appealed the Department's action to the court below, which, after a hearing denovo, entered an order on January 29, 1980, reinstating the Department's revocation of Melcher's operator's license. We granted supersedeas pending this appeal.

Melcher contends here, as he did in the lower court, that although he committed three separate offenses, they all occurred within ten minutes as parts of one act and thus do not make him an habitual offender. The law is directly contrary to his position.

Section 1542 of the Vehicle Code provides in pertinent part that

(a) General rule. — The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A ``habitual offender' shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter.

(b) Offenses enumerated. — Three convictions arising from separate acts of any one or more of the following offenses committed either singularly or in combination by any person shall result in such person being designated a habitual offender:

. . . .

It is now settled law that a person who commits three offenses during a single, short-lived incident is an habitual offender under Section 1542. Weaver v. Department of Transportation, 52 Pa. Commonwealth Ct. 625, 416 A.2d 628 (1980); Brewster v. Department of Transportation, 52 Pa. Commonwealth Ct. 112, 415 A.2d 922 (1980).

Accordingly, we enter the following:

ORDER

AND NOW, this 24th day of April, 1981, the order of the Court of Common Pleas of Montgomery County No. 79-19013, is affirmed. The Department of Transportation shall forthwith reinstate its order of revocation.

This decision was reached prior to the expiration of the term of office of Judge WILKINSON.