Appeal from the Order of the Court of Common Pleas of Cambria County in case of Commonwealth of Pennsylvania v. Peter R. Francis, No. 91, December Term, 1971.
Robert S. Glass, with him Glass, Glass and Moot, for appellant.
Anthony J. Maiorana, Assistant Attorney General, with him Stuart A. Liner, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.
Very briefly stated, the facts here presented are that appellant was involved in an automobile accident. To use the words of appellant's counsel in the history of the case: "He failed, neglected or refused to submit to a Breathalyzer or blood chemistry test. He was charged with driving while intoxicated, went to trial on that and was acquitted. . . ."
The Secretary of Transportation suspended his operator's license for a period of six months under Section 624.1 of The Motor Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 624.1. An appeal was filed in the Court of Common Pleas alleging that appellant suffered a head injury and was so "dazed and not in full possession of his mental facilities" that he could not intelligently accept or refuse the test. A hearing date was set for 9:30 a.m., July 11, 1972, in Courtroom No. 1, at the Court House in Ebensburg and the appellant so notified. He did not appear in person or by counsel. The Commonwealth produced its case and the lower court dismissed the appeal.
On July 20, 1972, appellant filed exceptions to the order of the court dismissing his appeal.*fn1 The exceptions alleged that "the failure of the defendant to appear was in no way the fault of the defendant." The exceptions further alleged that defendant had a proper
defense*fn2 that he was prepared to present. The exceptions do not allege that defendant did not have notice.
On the above state of the record, there is absolutely no doubt that the lower court was within the bounds of its discretion in hearing the case in the absence of the defendant. When you add to the above two exhibits attached to the Petition for Supersedeas filed by appellant with this Court, any possible doubt, not only of timely notice, but of the actual knowledge of appellant of the time and place of the hearing, is removed. One is a letter to the appellant, a physician duly qualified and specializing in psychiatry, which states:
"I have been informed by the Court Administrator of Cambria County that the hearing on your appeal from suspension for failure to take a breath test has been scheduled for 9:30 o'clock a.m. in Courtroom No. 1, at the Courthouse in Ebensburg, Pennsylvania on July 11, 1972. I have ...