Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Sylvan Goldman, No. SA 20 of 1981.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
No appearance for appellee.
Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Craig did not participate in the decision of this case.
The Department of Transportation, Bureau of Traffic Safety (DOT), appeals from an order of the Court of Common Pleas of Allegheny County which sustained a demurrer to DOT's evidence*fn1 in a hearing on the appeal of Sylvan Goldman (Appellee) to the suspension of Appellee's motor vehicle operator's license.
DOT suspended Appellee's driver's license pursuant to Section 1547(b) of the Vehicle Code (Code),
[ 86 Pa. Commw. Page 1675]
Pa. C.S. § 1547(b), for his refusal to submit to a breathalyzer test following his arrest for driving while under the influence of alcohol.
While not admitted, the facts in the record are not controverted. Officer Gremba, DOT's only witness, testified that on October 16, 1980, county police officers observed a motorist believed to have been under the influence of alcohol. In response to that information, Gremba was dispatched to 264 Connecting Drive, Mt. Lebanon to locate the driver and the vehicle in question. Approximately eight minutes after he received the dispatch, Officer Gremba arrived at that address. The vehicle was parked in the driveway, and Appellee was standing alone next to the driver's door. Officer Gremba observed that Appellee had a hard time locating his driver's license and owner's card, even though both items were easily visible to the officer. Additionally, Officer Gremba noticed a heavy odor of alcohol about the Appellee's person. Based upon these observations, Officer Gremba arrested Appellee for driving under the influence of alcohol and took him to the police station where, after giving him the necessary warnings, Appellee twice refused to take a breathalyzer test. Thereafter, DOT notified Appellee that his operating privileges were being revoked for a six month period.
Appellee filed a timely appeal, and at the hearing held on February 17, 1981, Officer Gremba testified as to his observations. However, the court below refused to admit testimony from Officer Gremba in response to questions by DOT's counsel concerning what happened prior to his arrival. The court reasoned that the officers who observed Appellee in the vehicle were not present to testify and that it would be hearsay for Officer Gremba to testify as to what they told him. The court below then found as facts that the Appellee was not driving the vehicle in question and that
no cause existed to submit Appellee to a ...