Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. James D. Peppelman, No. 77-18809.
John J. Kerrigan, Jr., with him Stuckert, Yates & Krewson, for appellant.
Harold H. Cramer, Assistant Attorney General, with him Francis P. Bach, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellee.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 44 Pa. Commw. Page 263]
This is the appeal of James D. Peppelman from an order of the Montgomery County Court of Common Pleas upholding the suspension of his driving privileges by the Department of Transportation under Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1), for his refusal to submit to a breathalyzer test.
On August 28, 1977, Peppelman was involved in an automobile accident and was arrested and charged with operating a vehicle while under the influence of alcohol in violation of Section 3731(a)(1) of the Vehicle Code, 75 Pa. C.S. § 3731(a)(1). The arresting officer requested Peppelman to submit to a breathalyzer test
[ 44 Pa. Commw. Page 264]
and warned him that if he refused, he could lose his license. Peppelman agreed to take the test. On the way to the state police barracks where the test was to be conducted, the officer told Peppelman that the driver of another car involved in the accident had died and advised Peppelman to consult a lawyer. Peppelman called a lawyer as soon as he arrived at the barracks and, on the lawyer's advice, refused to submit to the breathalyzer test. Peppelman appears to have refused to submit to the test for a reason other than that of the form of the officer's warning. The Department suspended Peppelman's operating privileges.
Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(2), states: "It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended or revoked upon refusal to submit to a chemical test." (Emphasis added.) Peppelman argues here that the officer's use of the word "could" instead of "will" in informing him of the consequences of refusal was not that required by the statute and that the suspension should therefore be set aside. We are impelled to agree.
In Moran v. Commonwealth, 44 Pa. Commonwealth Ct. 105, A.2d (1979), we found it unnecessary to decide the question here raised because the petitioner there, who also was informed only that his license could be suspended, was also given a copy of Section 1547(b)(2) which he read -- so that we held that he had been properly informed. Peppelman was afforded only the officer's oral information and we must now decide whether the Act requiring that the motorist shall be told that his license will be suspended or revoked if he refuses the test is satisfied by telling him that the license could be suspended or revoked for this cause.
Section 1547(b)(2) of the Vehicle Code, requiring the warning that suspension or ...