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COMMONWEALTH PENNSYLVANIA v. JOSEPH P. PHELPS (01/06/81)

decided: January 6, 1981.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
JOSEPH P. PHELPS, JR., APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania v. Joseph P. Phelps, Jr., No. 79-03394.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, Robert C. Bell, Assistant Attorney General, Ward T. Williams, Chief Counsel, Transportation, and Harvey Bartle, III, Acting Attorney General, for appellant.

Martin J. Cunningham, Jr., for appellee.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 56 Pa. Commw. Page 18]

The narrow question presented for decision in this case is whether the trial court abused its discretion in denying the Commonwealth's request for a "continuance of 15 minutes" and sustaining Joseph P. Phelps, Jr.'s (Phelps) appeal when the Commonwealth failed to call its first witness. We hold that the trial court did abuse its discretion and reverse.

On February 7, 1979 Phelps was requested to submit to a chemical test of his breath. The issue on the merits before the trial court was to have been whether he consented to the test and endeavored to comply or whether he refused the test. On the basis that he had refused the test, Phelps was notified by notice dated February 22, 1979 that his operating privileges were suspended for a period of six months.

On February 28, 1979 Phelps filed his appeal with the trial court and a hearing was set for April 2, 1979. A supersedeas was granted. At the request of counsel for Phelps, with the agreement of Counsel for the Commonwealth, this April 2, 1979 hearing was twice continued, once to May 14, 1979 and once to July 2, 1979. The entire transcript of the hearing on July 2, 1979 follows:

MR. LEVIN: Your Honor, I request a continuance of 15 minutes for the police officer.

MR. SALUS: Your Honor, I oppose any delay of this hearing at this time. This matter

[ 56 Pa. Commw. Page 19]

    has been scheduled for today. The Commonwealth got full notice of when it was supposed to be and they do not have their witness here.

MR. LEVIN: May it please the court, Your Honor, the Commonwealth gave Mr. Salus two continuances at his request, not at the Commonwealth's request. We continued this matter on 4-2-79 at the ...


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