No. 7 W.D. Appeal Docket 1984, Appeal from the Order of the Commonwealth Court of Pa. at No. 2489 C.D. 1980 dated May 25, 1983, reversing the Order of the Court of Common Pleas of Allegheny County entered September 26, 1980 at No. SA 761 of 1980,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Papadakos, J., did not participate in the consideration or decision of this case. Nix, C.j., filed a concurring opinion. Zappala, J., filed a dissenting opinion.
The appellant, Charles John Korchak, received official notice from the appellee Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety (Commonwealth) that his operator's license was suspended for a period of six months. The Commonwealth ordered the suspension pursuant to the provisions of Section 1547 of the Vehicle Code*fn1 for appellant's alleged refusal to submit to a breathalyzer test when properly requested to do so. Appellant appealed the suspension to the Allegheny County Common Pleas Court and, after a hearing, his appeal was sustained. The Commonwealth appealed to the Commonwealth Court which reversed the trial court's decision and
reinstated the six month suspension of appellant's driving privileges.*fn2 We granted appellant's petition for allowance of appeal and now reverse.
After leaving a cocktail lounge in the early morning on June 7, 1980, the appellant promptly became involved in a motor vehicle accident. A short distance from the bar he operated his vehicle into a parked car belonging to another patron of the lounge. Within minutes after the collision, local police officers arrived on the accident scene. Following a brief investigation, the appellant was placed under arrest for driving under the influence.*fn3 He was advised of his constitutional rights*fn4 and his obligation to take a breathalyzer test. He was handcuffed and transported to the nearest police station where a chemical test could be administered. After arriving at the station house the appellant was asked to take a breathalyzer test. He was told that if he refused to take the test his driver's license would be suspended or revoked.
At trial the Commonwealth called one witness, William Klobucher, a police officer for the municipality of Penn Hills. Officer Klobucher testified that at the station he re-advised the appellant of his constitutional rights and read him the Miranda warnings from a "rights form." He stated that immediately after the Miranda warnings were read, the appellant was asked to submit to a breathalyzer test. Officer Klobucher testified that the appellant refused to take the test and continued to refuse when the request was repeated.*fn5
The appellant, on the other hand, testified that at the station he was taken to a room where the breathalyzer test was to be administered. Appellant stated that in the testing room he was verbally informed of his constitutional rights, including his right to have an attorney. He was given a paper to read which set forth in writing the rights of which he had just been orally informed. He was asked if he understood his rights and he responded that he did. He testified that after reading the "rights form" he asked to have his attorney present. Appellant stated that as soon as he requested his attorney, the officers, without explanation, immediately took him to a cell. He testified that he was, at all times, willing to take the breathalyzer test and he never refused.
The trial court reconciled the conflicts in the testimony in favor of the appellant and found that appellant did not refuse to take the breathalyzer test when requested. Then Judge (now Justice) Papadakos said:
I will have to extend the benefit of doubt to say he didn't refuse to take the breathalizer (sic) test when he was asked to do so. Therefore, we will sustain the appeal.*fn6
The Commonwealth Court ignored this clear finding of the trial court, made its own finding that the appellant refused to take the test, and then attributed the new finding to the trial court. After quoting part of the trial judge's remarks which followed the close of testimony, Judge Doyle, writing for the Commonwealth Court panel, stated:
The clear implication from the colloquy of the court is that the court found as a matter of fact that Korchak did refuse to take the ...