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COMMONWEALTH PENNSYLVANIA v. LOUIS H. GRIPPO (12/03/87)

decided: December 3, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
LOUIS H. GRIPPO, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Louis H. Grippo, No. SA 850, 1985.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, for appellant.

S. Michael Streib, for appellee.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Senior Judge Kalish.

Author: Doyle

[ 111 Pa. Commw. Page 422]

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Allegheny County sustaining the appeal of Louis H Grippo (Appellee) from a one-year suspension of his operator's license for failure to submit to a breath test pursuant to Section 1547 of the Vehicle Code (Code).*fn1 We vacate and remand.

The suspension of Appellee's license arose out of an incident occurring on March 23, 1985. Although the versions of the incident related by Appellee and Officer Cindy Dietrich of the Pittsburgh Police Department differed widely in the proceeding below, the following facts are not disputed. On the day in question, Appellee, a Pittsburgh restaurateur, was observing a movie being filmed on location in his establishment. His car was parked in an adjoining alley. At the request of a

[ 111 Pa. Commw. Page 423]

    garbage truck operator attempting to make his way through the alley, Officer Dietrich entered Appellee's restaurant and directed him to move his car. Appellee eventually complied and moved his automobile to another parking space. Officer Dietrich, who testified that she detected the odor of alcohol on Appellee's breath, arrested Appellee for driving under the influence,*fn2 and transported him to a nearby police station for purposes of having him submit to a breath test.

What transpired next is murky at best, but there is no question Appellee never took a breath test. Upon receiving a report of the incident, the Department suspended Appellee's operating privileges for one year pursuant to Section 1547 of the Code, due to Appellee's purported refusal to submit to the breath test.

Appellee appealed the suspension to the court of common pleas, which, following a hearing, sustained his appeal. The Department's appeal to this Court ensued.*fn3

The trial court premised its reversal of Appellee's license suspension on the ground that the underlying charge against Appellee of driving under the influence was subsequently withdrawn by Officer Dietrich. This was clear error by the trial court. Under Section 1547 of the Code, the Department in order to suspend a driver's license must show only:

1) That the licensee was arrested for driving under the influence and that the arresting officer had reasonable grounds to believe the ...


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