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DAVID PATRICK KELLY v. COMMONWEALTH PENNSYLVANIA (01/21/88)

decided: January 21, 1988.

DAVID PATRICK KELLY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Washington County in the case of Commonwealth of Pennsylvania v. David Patrick Kelly, No. 426 August Term, 1985.

COUNSEL

Raymond P. Amatangelo, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellee.

Judges MacPhail and Barry, and Senior Judge Blatt. Reconsideration granted by submission on briefs on December 1, 1987 to President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge MacPhail. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Macphail

[ 113 Pa. Commw. Page 2]

David Kelly (Appellant) appeals an order of the Court of Common Pleas of Washington County (trial court) which dismissed his appeal of a Department of Transportation (DOT) order suspending his operator's license for a period of one year pursuant to Section 1547(b)(2) of the Vehicle Code, 75 Pa. C. S. ยง 1547(b)(2) (refusal to submit to chemical testing).

On July 27, 1985, the Appellant was involved in an automobile accident, subsequent to which he failed four field sobriety tests and was placed under arrest for driving under the influence of alcohol. He was thereafter requested to submit to a blood alcohol test and he was told that, if he refused, "he would be subject to having his license suspended by [DOT] for one year." The Appellant refused to submit to a test,*fn1 and DOT suspended

[ 113 Pa. Commw. Page 3]

    his license. The Appellant appealed the suspension, and after a de novo hearing, the trial court dismissed the appeal. This appeal followed.*fn2

The Appellant's sole contention on appeal is that pursuant to this Court's holding in Commonwealth of Pa., Department of Transportation, Bureau of Traffic Safety v. Landau, 91 Pa. Commonwealth Ct. 646, 498 A.2d 47 (1985), a warning that his license "would be subject to" suspension is insufficient to meet the requirements of Section 1547(b)(2).*fn3 DOT counters by arguing that Landau was erroneously decided because that case overlooks this Court's holding in Smolick v. Commonwealth, 60 Pa. Commonwealth Ct. 180, 430 A.2d 1230 (1981) (warning of "could and would" held sufficient under statute) and because the word "subject" was used as a verb in the police officer's warning rather than as an adjective modifying the noun "suspension."

Preliminarily, we note that at issue in Smolick was a warning consisting of the words "could and would." That, however, is not the situation in the case sub judice. At issue here is a warning consisting of the words "would be subject to" a suspension. In Landau , we specifically rejected DOT's argument that the use of the word "subject" does not render a warning insufficient under Section 1547(b)(2), when we stated that:

[T]he use of 'subject' serves to modify or qualify 'suspension.' And, in consulting Webster's Third New International Dictionary 2275 (1966), we found no use of 'subject' to provide such a sense of ...


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