Commonwealth v. Eichhorn

458 A.2d 322, 73 Pa. Commw. 425, 1983 Pa. Commw. LEXIS 1534

• Court: Commonwealth Court of Pennsylvania
• Decided: April 14, 1983
• Docket: Appeal, No. 2581 C.D. 1980
• Status: Published

Opinions

Opinion by

Judge MacPhail,

This is an appeal ¡by the Department of Transportation, Bureau of Traffic Safety (DOT), from an order of the Court of Common Pleas of Lancaster County which sustained a demurrer to DOT’s evidence in the appeal of Mr. Eichhorn from a five year revocation of his operating privileges as a habitual offender pursuant to the provisions of Section 1542(a) of the Vehicle Code (-Code), 75 Pa. C. S. §1542(a).¹

The relevant facts were stipulated. Mr. Eichhorn’s driving record disclosed the following offenses:

April 28, 1977 — violation of Section 1038 of The Vehicle Code (1959 Code)² (driving without lights to avoid identification or arrest).

March 4, 1978 — violation, of Section 3731 of the Code, 75 Pa. C. S. §3731 (driving under the influence of alcoholic beverages or a controlled substance).

March 9, 1980 — violation of Section 3731 of the Code.

Mr. Eichhorn demurred to DOT’S evidence because not all of his offenses were committed after the effective date of the Code and Section 1038 of the 1959 Code is not an offense identified in Section 1542 as one to he considered in a determination of whether he was a habitual offender. Since the trial court found that the April 28, 1977 offense should not have been counted because it preceded the effective date of Section 1542, it did not reach the second issue.

It will he observed that Section 1542(a) sets forth two requirements for a determination that a person is a habitnal offender: first, the offenses must he those described and enumerated in sub-section (b) of Section 1542³ and second, the offenses must have been committed “after the effective date of this title.” The trial court held that that language meant offenses committed .after July 1,1977, the date the Code was generally effective. Section 8(a) of the Act of June 17,1976, P.L. 162.⁴

DOT, however, contends that .such an interpretation renders ineffective the language of .Section 8(b) of the Appendix to Title 75. There, it is specifically provided that Section 1542, among others, would take effect immediately. Since the Governor signed the Code into law on June 17, 1976, DOT argues that offenses committed after June 17,1976 would be subject to the .sanctions of Section 1542.

It .appears to us that the two clauses, Section 1542 and Section 8(b) of the Appendix to Title 75, are irreconcilable. We must turn then to the provisions of the Statutory Construction Act of 1972 (.Statutory Construction Act), 1 Pa. C. S. ^1501-1991⁵ for assistance. Section 1934 of the Statutory Construction Act provides that whenever, in the same statute, several clauses are irreconcilable, “the clause last in order of date or .position shall prevail.” The statute which enacts the Code contains 8 “sections”. Section 1 is the codification of all of the provisions of the Code. Sections 2 through 8 contain the so-called “transition provisions” and, of course, Section 8 is last in order of position in the statute. We hold then, pursuant to Section 1934 of the Statutory Construction Act, that Code Section 1542 (as distinguished from .statutory section 8) became effective June 17, 1976 and that offenses committed after that date must be counted in a determination of whether driving privileges should be revoked.

Such, an interpretation is consistent with other provisions of the Statutory Construction Act, specifically, 1 Pa. C. S. §1921 (a) and (e) and 1 Pa. C. S. §1922(2). We are required thereby to construe every statute, if possible, by giving effect to all of its provisions and we may consider in ascertaining the intent of the General Assembly, the mischief to be remedied and the consequences of our interpretation.

There can be no doubt that the legislature carefully considered the impact of an entirely new vehicle code upon the driving public and for that reason provided more than 1 year lead time for the implementation of most of its provisions. At the same time, the legislature did not intend an amnesty for habitual offenders who are a continual menace on our highways and, for that reason, specifically provided for the uninterrupted continuum of sanctions against such drivers. To construe Section 1542 as contended by Mr. Eichhorn would have the practical effect of removing from consideration an offense for which he would have been accountable had not the Code been enacted. We do not think that was the legislature’s intention.

We must next consider whether the offense of driving without lights to avoid identification or arrest under the Code of 1959 can be counted as an enumerated offense under the provisions of Section 1542(b). Driving without lights to avoid identification or arrest is an offense for which DOT may suspend operating privileges under Section 1532(b) and Section 1532 offenses are among the enumerated offenses to be counted towards revocation sanctions under Section 1542(b). It is true, of course, that the identification section numbers for the offense are different in the two codes but we think it is clear that it is the nature of the offense, not its code identification number, that controls. Such an. interpretation again considers the mischief to be remedied and the consequences of tbe result.

We conclude, therefore, that Mr. Eiehhorn was properly classified as a habitual offender by DO.T and that the revocation of his driving privileges was required by the provisions of the Code.

Order.

The order of the Lancaster 'County Court of Common Pleas dated October 7,1980 is reversed.

1 Section 1542(a) reads as follows :

(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.

2 Act of April 29, 1959, P.L. 58, as amended, formerly 75 P.S. §§101-2521, repealed by the Act of June 17, 1976, P.L. 162.

3 75 Pa. C. S. § 1542(b) reads as follows:

(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 as a habitual offender:

(1) Any offense set forth in Section 1532 (relating to revocation or suspension of operating privilege).

(2) Operation following suspension of registration as defined in section 1371 (relating to operation following suspension of registration).

(3) Making use of or operating any vehicle without the knowledge or consent of the owner or custodian thereof.

(4) Utilizing a vehicle in the unlawful transportation or unlawful sale of alcohol or any controlled substance.

(5) Any felony in the commission of which a court determines that a vehicle was essentially involved.

4 Sections 2-8 of .the Act .of June 17, 1&76 comprise and will hereinafter be referred to as the Appendix to Title 75.

5 Section 6 of the Appendix to Title 75 regarding the inapplicability of certain sections of the Statutory 'Construction Act to the Code is noted.