
    Hanuszczak License
    
      I. Finkelstein, for appellant.
    
      Bernard I. Shovlin, for Commonwealth.
    April 13, 1960.
   McClanaghan, J.,

— The following facts are admitted:

1. Appellant was the holder of a 1959 automobile driver’s license.

2. On January 9, 1960, he was notified that his driving privileges had been suspended for a period of 15 days because of his conviction for operating an automobile too fast for conditions in violation of The Vehicle Code of April 29,1959, P. L. 58.

3. Appellant contends the suspension is without authority in that he was not afforded a hearing as required by The Vehicle Code.

4. The Commonwealth contends that the notice sent to appellant requested appellant to return the letter to the Revenue Department and indicate whether or not he wished a hearing, and advised appellant that his failure to do so within 10 days would be considered an automatic suspension.

5. Appellant did not notify the Revenue Department.

6. No hearing was held, and appellant’s driver’s license was ordered suspended.

Conclusions of Law

1. Section 618 of The Vehicle Code of 1959 (Section 615, The Vehicle Code of May 1, 1929, P. L. 905) provides that the Secretary of Revenue may suspend an operator’s license after a hearing before the Secretary or his representative, whenever the Secretary finds upon sufficient evidence that such person has committed any violation of the laws of this Commonwealth relating to vehicles.

2. The holder of a driver’s license may not be compelled to waive a hearing before the Secretary or his representative.

3. The Vehicle Code does not require an operator to request a hearing but, on the contrary, provides that the Secretary may suspend the operator’s driving privileges after a hearing whenever the Secretary finds upon sufficient evidence that such person has committed a violation of The Vehicle Code.

4. If section 618 is mandatory and if the person may not waive a hearing, the Secretary cannot suspend such person’s driving privileges without a hearing held in accordance with the requirements of The Administrative Code of April 9, 1929, P. L. 177. See Pennsylvania State Athletic Commission v. Bratton, 177 Pa. Superior Ct. 598; Lebendig License, 16 D. & C. 2d 102; Commonwealth v. Frisco, 67 D. & C. 51; Commonwealth v. Hockenbury, 72 D. & C. 274.

5. Section 618 of the act is mandatory if the thing (the hearing) directed to be done is of the essence of the thing required to be done: Socialist Labor Case, 332 Pa. 78.

6. A reading of The Vehicle Code in its entirety clearly indicates that the purpose of such a hearing is to afford the operator a full opportunity to be heard, to cross-examine witnesses and to present a full legal defense. The fact that on appeal from the decision of the Secretary the court hears the matter de novo emphasizes that a hearing is of the essence of the thing required to be done.

7. The Secretary was required to fix a hearing before suspending appellant’s driving privileges, and the fact that appellant did not, as requested by the Secretary, demand a hearing, did not authorize the Secretary to suspend appellant’s driving privileges without a hearing.

8. The action of the Secretary in suspending appellant’s driving privileges without a hearing was illegal and improper.

Order

And now, April 13, 1960, it is ordered and decreed that the appeal of Walter Hanuszcak from the order of the Secretary of Revenue of the Commonwealth of Pennsylvania suspending his automobile operator’s privileges for a period of 15 days is hereby sustained and the suspension order rescinded.

Irvin Stander, for Commonwealth.

Richard V. Zug, of Obermayer, Rebmann, Maxwell & Hippel, for appellant.  