Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania v. Kenneth R. Everett, No. 1052, April Term, 1970.
Stuart A. Liner, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
Charles E. Marker, with him Marker and McBride, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
On April 11, 1970, Pennsylvania State Police Trooper Michael J. Cunningham arrested*fn1 Kenneth R. Everett (appellee) for operating a motor vehicle while under the influence of intoxicating liquor, a violation of Section 1037 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended (Code), 75 P.S. § 1037. Following his arrest, appellee was asked by Trooper Cunningham
to submit to a breathalyzer test, as provided in Section 624.1(a)*fn2 of the Code, 75 P.S. § 624.1(a). Appellee refused to submit to this test and specifically so admitted his refusal when he testified before the lower court.
Upon receiving a report of this refusal, the Secretary of Transportation, under Section 624.1(a), suspended appellee's operator's license for three months, effective June 19, 1970. The Court of Common Pleas of Westmoreland County, after granting a supersedeas on June 18, 1970, held a hearing on September 21, 1972 and sustained appellee's appeal and reversed the Secretary's suspension. The Commonwealth has appealed that ruling to this Court.
The sole basis stated by the lower court for sustaining the appeal and reversing the suspension was that "[t]he magistrate having dismissed the charge of driving while under the influence of intoxicating beverages, the Court is therefore of the opinion that a suspension of the petitioner for refusal to submit to a breathalizer test is an abuse of discretion on behalf of the Secretary. . . ."
We realize that the lower court did not have the benefit of our recent decision in Commonwealth v. Abraham, 7 Pa. Commonwealth Ct. 535, 300 A.2d 831 (1973). In Abraham we held that despite the fact that the criminal charge (operating a motor vehicle while under the influence of intoxicating liquor) was dismissed,
there remained the separate refusal to take the breathalyzer test, the suspension for which was a civil proceeding and within the power of the Secretary to impose in accord ...