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09/29/97 MARSHALL R. BARBOUR v. COMMONWEALTH

September 29, 1997

MARSHALL R. BARBOUR
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



Appealed From No. S.A. 153 of 1996. Common Pleas Court of the County of Allegheny. Judge RIDGE.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Charles A. Lord, Senior Judge.

The opinion of the court was delivered by: Lord

OPINION BY SENIOR JUDGE LORD

FILED: September 29, 1997

The Pennsylvania Department of Transportation (DOT) appeals an Allegheny County Common Pleas Court order sustaining the appeal of Marshall Barbour (Licensee) from a one-year suspension of his motor vehicle operating privileges for failure to submit to chemical testing under Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547. We reverse.

This case arises from the following circumstances. In November 1995, Licensee was arrested for driving while under the influence of alcohol and transported to a hospital for the administration of chemical testing. *fn1 The arresting officer asked Licensee to supply a blood sample and adequately warned him that a refusal to do so would result in a one-year suspension of his driver's license. Licensee refused the request and DOT subsequently notified him of a suspension.

Licensee appealed the suspension to the trial court. He submitted a deposition of Dr. Scott Celin in support of his claim that he was unable to make a knowing and conscious refusal of the test due to injuries he suffered in the course of his collision immediately prior to his arrest. The trial court initially ordered Licensee's appeal dismissed on May 9, 1986. Licensee then filed a petition for reconsideration, which the trial court granted in an order dated June 8, 1996 and marked filed with the Allegheny County prothonotary on June 19, 1996. By order dated October 24, 1996, the trial court granted Licensee's appeal. *fn2 DOT now appeals to this Court.

Our scope of review is limited to determining whether the trial court's findings of fact were supported by competent evidence, and whether the trial court committed an error of law or an abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).

DOT first contends before us that the trial court lacked jurisdiction to enter its order sustaining Licensee's suspension appeal, because the court did not vacate its May 9, 1996 order dismissing the appeal within thirty days. DOT emphasizes that, while the order vacating the May 9 order is dated June 8, it was not filed and docketed until June 19. DOT claims that an order vacating an earlier order must be "entered" within thirty days of the earlier order, and that a vacating/reconsideration order is not "entered" until docketed.

We reject DOT's argument. We simply cannot ignore the plain fact that there is an order of record, signed by the Honorable Joseph H. Ridge, stating that "this 8 day of June, 1996...the Order of May 9, 1996 is vacated." Although the order is marked as not having been filed with the prothonotary until June 19, and we do not condone the apparent delay indicated by that discrepancy, we do not ascribe the dispositive significance to the delay that DOT does here. Strictly from a practical point of view, we perceive no prejudice to DOT caused by the delay. *fn3 On the other hand, it would certainly be unfair if, through no fault of his own, Licensee were denied relief due solely to some administrative breakdown. It was obviously Judge Ridge's intent to vacate his prior order within thirty days, and his signed order in fact bears a date complying with that time constraint. *fn4

Moreover, DOT has not directed us to authority for the proposition that the reconsideration order cannot be properly considered to have been entered on June 8. Section 5505 of the Judicial Code provides that "a court upon notice to the parties may modify or rescind any order within 30 days after its entry..." 42 Pa. C.S. § 5505. The provision does not require that a reconsideration order must be marked filed with a prothonotary within 30 days, or that a reconsideration order dated and signed by a Judge within 30 days may be rendered ineffectual -- which is precisely what DOT would have us hold. *fn5 DOT's reliance on Department of Transportation v. Axsom, 143 Pa. Commw. 99, 598 A.2d 616 (Pa. Commw. 1991) *fn6 does not support its argument, because we emphasized that the trial court there clearly granted reconsideration well beyond the thirty-day period. In this case, we have no proper grounds to hold that the trial court did not vacate its prior order and grant reconsideration on June 8, within the thirty-day period. We therefore reject DOT's jurisdictional argument.

Having necessarily disposed of that procedural issue, we nevertheless must sustain this appeal in light of DOT's remaining argument on the merits.

DOT's substantive contention here is that Licensee did not produce unequivocal medical evidence that his injuries rendered him incapable of making a knowing and conscious refusal of chemical testing, and therefore failed to satisfy the burden the law places on licensees in these cases. Department of Transportation, Bureau of Driver Licensing v. Monsay, 142 Pa. Commw. 163, 596 A.2d 1269 (Pa. Commw. 1991). DOT submits we are constrained to sustain its appeal because Dr. Celin's testimony clearly supports the Conclusion that Licensee's refusal was related in part to his consumption of alcohol.

Licensee responds by relying on the trial court's acceptance of Dr. Celin's testimony for its Conclusion that Licensee's serious head injuries rendered him unable to ...


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