Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Antoinette Campion Kruc, No. 3105 June Term, 1987.
Donald H. Poorman, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
Paul Gordon Hughes, Sereni and Lunardi, for appellee.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt. Dissenting Opinion by Judge Colins.
[ 125 Pa. Commw. Page 202]
The Department of Transportation, Bureau of Driver Licensing (DOT), appeals from the order of the Court of Common Pleas of Philadelphia County sustaining the appeal of Antoinette Campion Kruc (appellee) and reversing DOT's suspension of her operating privilege. We will reverse.
[ 125 Pa. Commw. Page 203]
The facts surrounding the arrest of the appellee are considerably disputed. Because the trial court accepted her testimony as credible, we will set forth the facts as portrayed by the appellee. According to her, she was on her way home from Chinatown in center city Philadelphia on Sunday, March 15, 1987, when she was arrested by Officer James Boleman at approximately 7:55 p.m. She came upon some construction as she was traveling west on Vine Street approaching the intersection with 15th Street. To avoid entering the expressway, she crossed the medial strip in order to get into the local lanes of Vine Street.*fn1 Officer Boleman observed this, and subsequently signaled for the appellee to pull over. He then arrested her for driving while intoxicated.*fn2 She was brought to Officer James Whitt, a breathalyzer operator, at the Police Administration Building at around 11:30 that night.
Obviously, a considerable period of time had passed between the time of her arrest and the time when the appellee was requested to undergo a breathalyzer test.*fn3 She pointed out to Officer Whitt that as a physician, she knew that this would affect the accuracy of the results, and therefore refused to submit to the test. She did, however, indicate that she would be willing to undergo a
[ 125 Pa. Commw. Page 204]
test of blood or urine. Officer Whitt warned her that if she did not take the breathalyzer test, she would lose her license, and that she could not choose the test that she would like to take.*fn4 The appellee's behavior was taken as a refusal.
On the basis of this refusal, DOT mailed an official notice to the appellee on April 3, 1987, indicating that her driving privileges would be suspended for one year, effective May 8, 1987, pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547. She did not appeal this decision to the trial court until June 16, 1987, 74 days after the mailing date of DOT's official notice.*fn5 At that time, she filed a Petition for Permission to Appeal Suspension of Motor Vehicle Operator License Suspension Nunc Pro Tunc, alleging that she never saw DOT's official notice until sometime after the 30-day appeal period had expired. This, she said, was due to the significant amount of medical literature and junk mail she receives as a physician.
Although no order appears in the certified record, the appellee's request for allowance of appeal nunc pro tunc was apparently granted. An evidentiary hearing was held before the trial court on the merits of this case on January 20, 1988. The appellee, Officer Boleman and Officer Whitt were present, and each testified. The trial court then entered an order on March 15, 1988 sustaining the appellee's ...