IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony Albert Grejda v. No. 353 C.D. 2014 Commonwealth of Pennsylvania, Submitted October 3, 2014 Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED December 18, 2014 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from the Order of the Court of Common Pleas of Allegheny County (trial court) sustaining Anthony Albert Grejda s (Licensee) statutory appeal from the Department s one-year suspension of his operating privilege pursuant to Section 1547(b)(1)(i) of the Vehicle Code. 1 On 1 75 Pa. C.S. 1547(b)(1)(i). Section 1547(b)(1)(i) provides, in relevant part, that (b) Suspension for refusal.-- (1) If any person placed under arrest for a violation of section 3802 [(relating to driving under the influence of alcohol or a controlled substance)] is requested to submit to chemical testing and refuses to do so, the testing shall (Continued )
appeal, the Department argues (1) the trial court abused its discretion in denying the Department s first request for a continuance when it had granted Licensee four continuances; and (2) the trial court s decision was arbitrary and manifestly unreasonable and frustrates the fair administration of justice. Discerning no abuse of discretion, we affirm. By letter dated January 2, 2013, the Department notified Licensee that his operating privilege was suspended for one year due to his refusal to submit to chemical testing on December 9, 2012. (Letter from the Department to Licensee (January 2, 2013) at 1, R.R. at 10a.) Licensee appealed the suspension to the trial court. (Licensee s Petition for Appeal, R.R. at 7a-8a.) The de novo hearing on Licensee s appeal was scheduled for April 11, 2013. Licensee requested, for reasons including conflicting trial schedules and health issues, three postponements, the Department consented to those postponements, and the trial court granted those requests. (Motion for Postponement (April 10, 2013), R.R. at 13a; Motion for Postponement (June 26, 2013), R.R. at 14a; Motion for Postponement (November 6, 2013), R.R. at 16a.) A hearing was sua sponte postponed on one occasion due to a conflict with the trial court s schedule. (Motion for Postponement (September 26, 2013), R.R. at 15a.) The trial court rescheduled Licensee s de novo hearing for January 30, 2014. (Motion for Postponement (November 6, 2013), R.R. at 16a.) Id. not be conducted but upon notice by the police officer, the [D]epartment shall suspend the operating privilege of the person as follows (i) Except as set forth in subparagraph (ii), for a period of 12 months. 2
At the beginning of the January 30, 2014 hearing, the Department requested a continuance because [t]he [police] officer on the case had to be out of town on a work-related matter, and stated it had advised Licensee of its need for a continuance prior to the hearing, but Licensee would not agree. (Hr g Tr. at 2-3, R.R. at 19a-20a.) When asked by the trial court where the officer was, the Department s counsel responded that the officer s chief had informed him several weeks ago that the officer would be out of town. (Hr g Tr. at 3, R.R. at 20a.) The Department noted this was its first postponement request and Licensee had been granted three postponements with the Department s consent. (Hr g Tr. at 4, R.R. at 21a.) Licensee opposed the continuance because he and his witness had made arrangements to be at the hearing and the underlying criminal matter had been delayed multiple times due to this officer s unavailability. (Hr g Tr. at 3-5, R.R. at 20a-22a.) Licensee then noted this matter involved two officers, the arresting officer and the officer that read the DL-26 warnings to Licensee, and neither officer was present. (Hr g Tr. at 5-6, R.R. at 22a-23a.) When the trial court asked the Department about the second officer, the Department s counsel stated The officer - -, and the trial court said You only need one officer. I m going to deny the continuance and sustain the appeal. (Hr g Tr. at 6, R.R. at 23a.) Accordingly, the trial court denied the Department s request to continue the hearing and sustained Licensee s appeal. (Motion for Postponement (January 30, 2014), R.R. at 17a; Trial Ct. Order, R.R. at 25a). The Department appealed and asserted in its Concise Statement of Errors Complained of on Appeal (Statement), Pa. R.A.P. 1925(b), that the trial court had abused its discretion because the trial court had granted Licensee s prior requests for postponements and that it was manifestly unreasonable to deny the 3
Department s request for a continuance which was based on the unavailability of the officer, who was a material witness. (Statement, R.R. at 35a.) In its 1925(a) Opinion, the trial court explained it sustained Licensee s appeal because the Department s witness was not at the January 30, 2014 de novo hearing. 2 (1925(a) Op. at 1.) The trial court noted it was undisputed that this incident involved two officers and the Department failed to explain why the second officer was not present at the hearing. (1925(a) Op. at 2.) The trial court acknowledged the professional courtesy extended by the Department to Licensee by agreeing to Licensee s postponement requests, but did not find that Licensee s refusal to reciprocate provided the good cause necessary to justify the officer s absence from the hearing. (1925(a) Op. at 2-3.) The trial court stated it could not compel Licensee to consent to the postponement, particularly where Licensee was ready to proceed and the Department has had in excess of 2 months[ ] notice of the date of hearing[,] but failed to present [its] [M]otion until the time of the hearing. (1925(a) Op. at 3.) This matter is now ready for this Court s review. 3 2 The trial court cited Rule 462(C)(3) of the Pennsylvania Rules of Criminal Procedure, Pa. R. Crim. P. 462(C)(3), which provides that [i]n appeals from summary proceedings arising under the Vehicle Code,... the law enforcement officer who observed the alleged offense must appear and testify. The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless... the trial judge determines that good cause exists for the law enforcement officer s unavailability and grants a continuance. Id. (emphasis added). 3 Our review of the trial court s decision in a license suspension case is limited to determining whether the trial court s findings of facts are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its 4 (Continued )
On appeal, the Department argues that the trial court abused its discretion by denying the Department s first and only request for continuance and that sustaining Licensee s appeal was arbitrary and frustrated the fair administration of justice. A trial court s decision to grant or deny a continuance is exclusively within the discretion of the trial court, and this Court will not disturb the trial court s determination in the absence of an apparent abuse of discretion. Gillespie v. Department of Transportation, Bureau of Driver Licensing, 886 A.2d 317, 319 (Pa. Cmwlth. 2005). We have stated that Judicial discretion, broadly defined, is the option which a judge may exercise either to do or not to do that which is proposed to him. As a guide to judicial action, it means a sound discretion exercised with due regard for what is right and equitable under the circumstances and under the law. Abuse of discretion is not merely an error of judgment; however, if, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused. Commonwealth v. Korn, 467 A.2d 1203, 1205 (Pa. Cmwlth. 1983). Implicit in the concept of judicial discretion is the rendering of an informed decision between multiple courses of action in this case, to grant or deny a continuance. Gillespie, 886 A.2d at 319. The Department first argues that the trial court abused its discretion by delegating its authority to grant or deny continuances to Licensee, which was decision. Orloff v. Department of Transportation, Bureau of Driver Licensing, 912 A.2d 918, 922 n.7 (Pa. Cmwlth. 2006) (citation omitted). 5
rejected by this Court in Gillespie, by incorrectly relying on a criminal procedural rule in this civil case, and by not granting the Department s one and only continuance request. In Gillespie, the trial court had a standing policy by which it would grant a continuance only where the parties agreed to the continuance. Gillespie, 886 A.2d at 320. Accordingly, when the Department requested a continuance in that case because its witness was unavailable to testify and the licensee opposed that request, the trial court denied the continuance. Id. On appeal to this Court, we vacated and remanded for a new hearing on the Department s continuance request. Id. at 320-21. We held that the trial court s policy of delegat[ing] its decision-making function to the attorneys and not considering the merits of the Department s continuance request, reflected an abdication of the judge s role to an interested party, was manifestly unreasonable, and constituted an abuse of discretion. Id. at 320. The Department equates the trial court s decision here to that in Gillespie, citing the trial court s asking Licensee How come you are not granting [the Department s] continuance? (Department s Br. at 14 (quoting Hr g Tr. at 5, R.R. at 22a).) However, a review of the record and the trial court s 1925(a) Opinion reveals that the trial court made an informed decision between multiple courses of action in this case, to grant or deny a continuance. Gillespie, 886 A.2d at 319. The trial court allowed the Department and Licensee to explain their respective positions, after which the trial court denied the Motion and sustained Licensee s appeal. In doing so, the trial court particularly noted the absence of the second officer who had been involved in the incident. (Hr g Tr. at 6, R.R. at 23a.) In its 6
1925(a) Opinion, the trial court cited the following reasons for denying the Motion the unexplained absence of the second officer; Licensee s opposition to the Motion, of which the Department knew well before the time of the hearing ; the presence of Licensee and his witness and his desire to proceed with the hearing; and the fact that the Department... had in excess of 2 months[ ] notice of the date of the hearing but failed to present [its] [M]otion... until the time of the hearing. (1925(a) Op. at 2-3.) This record and the trial court s explanations reflect that the trial court considered the arguments and circumstances before it and did not abdicate its role to Licensee. Gillespie, 886 A.2d at 320. As such, the record supports the conclusion that the trial court made an informed decision to deny the continuance. Id. at 319. The Department claims it was not given the opportunity to explain why the second officer was absent and, accordingly, the trial court should not have relied on that lack of explanation to deny the Motion. While the record indicates the Department may not have had a full opportunity to explain the second officer s absence, in the Department s brief to this Court, it explains that [w]hen one of the two officers was unavailable for the January 30, 2014 hearing of [Licensee s] appeal, counsel for the Department instructed the other officer not to attend because counsel believed the trial court would grant his request for a continuance. 4 (Department s Br. at 16 n.4.) The Department s decision to instruct the available officer not to attend the hearing based upon its belief that the 4 The explanation proffered by the Department in its appellate brief to this Court constitutes a judicial admission of the reason for that officer s absence. Ciamaichelo v. Independence Blue Cross, 928 A.2d 407, 413 (Pa. Cmwlth. 2007) ( A party s statement in its brief is treated as a judicial admission, which, although not evidence, has the effect of withdrawing a particular fact from issue. ) 7
trial court would exercise its discretion in the Department s favor and grant the Motion is an insufficient reason to hold that the trial court abused its discretion in denying the Motion. Thus, any error the trial court may have committed in not allowing the Department to assert this reason at the hearing was harmless. The Department argues that the trial court s reliance on Rule 462(C)(3), Pa. R. Crim. P. 462(C)(3), to sustain Licensee s civil appeal and statement that it could not compel Licensee to agree to a postponement demonstrates that the trial court delegated its decision to Licensee. However, as stated, the record supports the contrary conclusion, and we discern no error or abuse of discretion by the trial court requiring the Department to provide good cause for the absence of its witnesses before granting the Motion on that basis. The Department also argues that it was manifestly unreasonable and simply unfair for the trial court to deny the Department s first and only request for a continuance because it had granted Licensee multiple postponements, and the Department had advised Licensee of its need to postpone the January 30, 2014 hearing prior to that date, but Licensee would not agree to the postponement. (Department s Br. at 18.) A review of the record shows that all of Licensee s motions for postponement were filed at least the day before the scheduled hearing, thereby allowing the parties and the trial court time to make the necessary arrangements for proceeding the next day if the motions had been denied. In contrast, the Department waited until the beginning of the hearing when the Licensee and the trial court were ready to proceed to ask for the continuance, despite knowing for 8
weeks that one of its two indispensable witnesses was not available and Licensee opposed postponing the hearing. Furthermore, the Department instructed the second witness, who could have been available, not to attend the hearing. Thus, it was the Department s choice to appear at the hearing with no evidence or witnesses and to proceed based only upon its assumption that the trial court would grant its last minute motion. 5 The trial court s denial of the Motion was neither manifestly unreasonable, nor unfair, given the Department s knowledge of one of its witnesses unavailability for more than several weeks prior to the date of trial. Finally, the Department asserts that, because the trial court denied the Motion and sustained Licensee s appeal without considering the merits of that 5 The Department contends that this Court s decision in Williams ex rel. Williams v. School District of Philadelphia, 870 A.2d 414 (Pa. Cmwlth. 2005), is instructive and the trial court should have considered a lesser sanction than sustaining the appeal. In Williams, neither counsel nor witnesses for the defendant school district appeared at a trial, the trial court held the trial ex parte without making any efforts to determine the reason for counsel s absence, and the trial court entered judgment in favor of the plaintiff. Id. at 415. The school district argued on appeal it was entitled to a new trial because it never received notice of the hearing, and the trial court abused its discretion by going forward with the trial and entering judgment for the plaintiff without considering (1) whether counsel s failure to appear was part of a pattern of improper behavior, misconduct or abuse; (2) whether the failure to appear was inadvertent; (3) whether the court attempted to contact counsel; (4) whether the opposing party would be prejudiced by the delay; and (5) whether the court gave any consideration to lesser sanctions. Id. at 416. We agreed with the school district that the trial court should have considered these factors before proceeding with the trial and remanded for a new trial. Id. at 417. However, Williams is distinguishable because, unlike in that case, the Department s counsel had knowledge of the scheduled hearing and did appear, but chose not to request the continuance in advance or bring its available witnesses to the hearing. Thus, the Department had the opportunity to explain its position that was missing in Williams, but did not have a good explanation for its actions. 9
appeal, the trial court frustrate[d] the General Assembly s policy to reduce the deaths and injuries associated with DUI offenses. (Department s Br. at 15 (footnote omitted).) This Court recognizes the importance of the General Assembly s policies and goals in this area. Nonetheless, we are unpersuaded by the Department s arguments that the trial court s decision creates a roadmap by which licensees can avoid the suspension of their operating privileges by obtaining continuances of their appeal hearings until the Department requests a continuance and then refuse to agree to the continuance. (Department s Br. at 15-16.) As noted above, the trial court did not deny the Motion simply because Licensee did not agree to the postponement, but cited numerous factors for its decision, including the Department s decision not to ask the trial court for a continuance in advance, but to wait until the time and date of trial when the judge and Licensee were present and ready to proceed. Accordingly, we affirm the trial court s Order. RENÉE COHN JUBELIRER, Judge 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony Albert Grejda v. No. 353 C.D. 2014 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant O R D E R NOW, December 18, 2014, the Order of the Court of Common Pleas of Allegheny County, entered in the above-captioned matter, is hereby AFFIRMED. RENÉE COHN JUBELIRER, Judge