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05/28/97 DAVID L. DICOLA v. COMMONWEALTH

COMMONWEALTH COURT OF PENNSYLVANIA


May 28, 1997

DAVID L. DICOLA
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT

Appealed From No. S.A. 426 of 1996. Common Pleas Court of the County of Allegheny. Judge ZELEZNIK.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Friedman.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: May 28, 1997

The Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT), appeals from an order of the Court of Common Pleas of Allegheny County (trial court) sustaining the statutory appeal of David L. DiCola (Licensee) from a one-year operator's license suspension imposed by DOT under section 1547 of the Vehicle Code. *fn1 We affirm. *fn2

The trial court held a hearing in this case. At the hearing, Officer Michael Metzger testified that, on January 20, 1996, Licensee drove his vehicle through an alleged police roadblock; the officer pursued and stopped the vehicle. Officer Metzger further testified that Licensee had slurred speech, blood-shot eyes and a strong alcoholic odor emanating from his person. (Trial court's amended op. at 1.)

Officer Metzger subsequently arrested Licensee and transported him to a local police station. At the station, Officer Robert Steffy allegedly advised Licensee of the implied consent law and requested that Licensee submit to chemical testing. Licensee supplied one sufficient breath sample and attempted to supply a second sample, but was unable to do so. Officer Steffy recorded a refusal, and, as a result, DOT suspended Licensee's operating privileges for a one-year period. (Trial court's amended op. at 1.)

Before the trial court, Officer Metzger admitted on cross-examination that, in certain respects, his testimony was in direct conflict with his prior testimony at Licensee's preliminary hearing. *fn3 Officer Metzger also conceded that his recall of the events that occurred on January 20, 1996 was clearer at the preliminary hearing. For these reasons, the trial court rejected Officer Metzger's entire testimony. Absent Officer Metzger's testimony, the trial court could only conclude that there were no reasonable grounds to believe that Licensee was driving under the influence of alcohol. *fn4 Thus, the trial court sustained Licensee's appeal.

On appeal to this court, *fn5 DOT argues that the trial court abused its discretion in rejecting Officer Metzger's testimony about those things which gave him reasonable grounds to believe that Licensee was driving under the influence of alcohol. *fn6 We disagree.

In a license suspension case, the trial Judge does not sit as an automaton which is required to accept as credible everything to which an arresting officer testifies on the stand. McCullough v. Department of Transportation, 165 Pa. Commw. 371, 645 A.2d 378 (Pa. Commw. 1994). As the factfinder, the trial court is free to accept or reject any testimony in whole or in part, subject only to review by this court for an abuse of discretion. Id.

Here, we do not believe that the trial court abused its discretion when it rejected the entire testimony of Officer Metzger because portions of the officer's testimony were in direct conflict with his prior testimony at Licensee's preliminary hearing. Thus, having found Officer Metzger's testimony to be incredible, the trial court properly concluded that the officer lacked reasonable grounds to believe that Licensee was driving under the influence of alcohol. *fn7

We next address whether Licensee is entitled to an award of counsel fees because DOT's appeal is frivolous. Under Rule 2744 of the Pennsylvania Rules of Appellate Procedure, an appellate court may award reasonable counsel fees if it determines that an appeal is frivolous. *fn8 Basing an appeal solely upon facts which are contrary to the factual findings of the trial court, the sole arbiter of credibility, has been held to be frivolous. Morrell v. Department of Transportation, Bureau of Traffic Safety, 133 Pa. Commw. 338, 575 A.2d 171 (Pa. Commw. 1990). Here, DOT's appeal is based solely on the testimony of Officer Metzger, which the trial court rejected in its entirety. Although DOT claims that the trial court abused its discretion in making this credibility determination, DOT presents no legitimate reasoning to support this claim. Therefore, we grant Licensee's request for counsel fees.

Accordingly, we affirm the decision of the trial court and remand this case to the trial court for a determination of reasonable counsel fees.

ROCHELLE S. FRIEDMAN, JUDGE

ORDER

AND NOW, this 28th day of May , 1997, the order of the Court of Common Pleas of Allegheny County (trial court), dated August 8, 1996, is affirmed, and this case is remanded to the trial court for a determination of reasonable counsel fees.

Jurisdiction relinquished.

ROCHELLE S. FRIEDMAN, JUDGE


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