Com., Dept. of Transp., Bureau of Driver Licensing v. Axsom
| Decision Date | 18 October 1991 |
| Citation | 598 A.2d 616,143 Pa.Cmwlth. 99 |
| Parties | COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. James F. AXSOM, Jr., Appellee. |
| Court | Pennsylvania Commonwealth Court |
Timothy P. Wile, Asst. Counsel-in-Charge of Appellate Section, for appellant.
No appearance for appellee.
Before DOYLE and PELLEGRINI, JJ., and NARICK, Senior Judge.
The Department of Transportation (Department) appeals from an order of the Court of Common Pleas of Chester County. That court vacated its previous order entered on June 28, 1990 and sustained the appeal of James F. Axsom, Jr. from a one-year suspension of his operating privileges imposed by the Department pursuant to Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b). 1
The pertinent facts are as follows: On February 11, 1990, Officer Joseph V. Carabba of the West Goshen Township Police Department responded to a report of an accident. Upon arriving at the scene, Officer Carabba noticed a vehicle that appeared to be involved in an accident. The police officer was then directed to a nearby house and upon entering the house, found Axsom. Axsom admitted operating the vehicle and was then transported to Chester County Hospital by ambulance for treatment of his injuries.
At the hospital, Officer Carabba presented to Axsom the implied consent form which Axsom signed. Officer Carabba next presented to Axsom a form entitled "CONSENT FOR ALCOHOL OR DRUG SCREENING." That form provides as follows:
I, the undersigned, do hereby consent to have blood withdrawn or urine obtained by The Chester County Hospital to determine the alcohol and/or drug content of my blood and/or urine. I understand that the results of this test may be presented as evidence in any subsequent civil or criminal action, and I release The Chester County Hospital, nurses, technicians, assistants and members of the hospital staff performing the withdrawal of blood or obtaining a urine specimen from any liability and claims as a result of such use.
Officer Carabba's testimony at the de novo hearing before the court may be summarized as follows: The officer read the hospital form to Axsom and Axsom then became agitated. An employee of the hospital entered the treatment area and advised Axsom to be quiet. Officer Carabba again attempted to read the form to Axsom and he again became loud. The hospital employee then returned and told Axsom that he should either be quiet or he could leave. At this point, Axsom left the hospital emergency room. Officer Carabba followed Axsom out of the emergency room and advised him that his leaving would be considered a refusal of the blood test. Axsom did not acknowledge Carabba, did not return to the hospital nor did he acknowledge the hospital form.
Axsom, on the other hand, testified that he did not understand the hospital form and asked Officer Carabba several times to explain it. Axsom further testified that the police officer did not give him any explanation of the form, and that when he requested an explanation the officer would instead start to read the form again. Axsom testified that he left the emergency room after the hospital employee informed him that if he did not calm down he could leave. Axsom also testified to a conversation with Officer Carabba which took place after he left the hospital.
Q. Tell me what happened in that conversation?
A. He said to me again, "We just want to get permission to take blood." I said, and that's--
Q. Okay.
A. He kept saying it was permission when, actually, I knew it was a release, but he wouldn't address that part of the statement on the sheet of paper.
Q. Did you say, "I don't want to sign the form?"
A. Unless someone explained it to me.
Q. Did you ever say that, "I don't want to sign the form?"
A. I don't know if I said that specifically, just like that. I asked that it be explained.
Q. You never said, "I'll give blood, but I won't sign the form," did you?
A. Yes, I think I did say that.
Q. When did you say that?
A. Probably on several occasions.
Both witnesses testified that Officer Carabba did not tell Axsom that he could have his blood drawn without signing the hospital form.
At the conclusion of the hearing, the common pleas court dismissed Axsom's appeal. The court found that Axsom had terminated his consent by leaving the hospital and that Axsom's refusal to return to the hospital "makes moot the issue of the hospital form, because, at that point, the defendant clearly had not given his unqualified, unequivocal assent to take the test."
On July 9, 1990, Axsom filed a "Motion for Post-Trial Relief Pursuant to Pa.R.C.P. No. 227.1." On December 6, 1990, the common pleas court issued an opinion in which it construed the motion as being a motion for reconsideration which it then granted. The court there found that our decision in Maffei v. Department of Transportation, 53 Pa.Commonwealth Ct. 182, 416 A.2d 1167 (1980), was controlling and that Axsom's refusal to execute the hospital form was not a refusal to consent to a blood test. The court vacated its prior order and sustained Axsom's appeal. Appeal to this Court followed.
On appeal, the Department raises two arguments: 1) that the common pleas court lacked jurisdiction to issue its order of December 6, 1990; and 2) that Axsom's refusal to sign the hospital form constituted a refusal to submit to a blood test for purposes of 75 Pa.C.S. § 1547.
The Department first argues that the common pleas court lacked jurisdiction pursuant to Section 5505 of the Judicial Code, 42 Pa.C.S. § 5505, to vacate or otherwise modify an order more than thirty days following the entry of that order. Section 5505 provides as follows Modification of orders
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
In the instant case, the trial court entered its order dismissing Axsom's appeal on June 28, 1990. Axsom did not appeal to this Court pursuant to Section 762(a)(3) of the Judicial Code, 42 Pa.C.S. § 762(a)(3). Instead, Axsom filed a "Motion for Post-trial Relief Pursuant to Pa.R.C.P. 227. 1.," the filing of which motion is available only in civil actions, not in statutory appeals. Department of Transportation, Bureau of Driver Licensing v. Zurka, 135 Pa.Commonwealth Ct. 238, 580 A.2d 466 (1990).
Where a motion for post-trial relief is improvidently filed, it will be regarded as a request for reconsideration which, of course, does not toll the appeal period. Scripture Union v. Deitch, 109 Pa.Commonwealth Ct. 272, 531 A.2d 64 (1987). Unless the court enters an order granting reconsideration within the thirty-day appeal period, the power to grant reconsideration is lost. Borough of Jefferson v. Bracco, 113 Pa.Commonwealth Ct. 223, 536 A.2d 868 (1988), petition for allowance of appeal denied, 522 Pa. 597, 562 A.2d 321 (1988) (citing 1 Darlington, McKeon, Schuckers, Brown, Pennsylvania Appellate Practice § 1701:19 (1986)). In the instant case, the common pleas court granted reconsideration on December 6, 1990, a date well beyond the thirty-day period in which it had to grant reconsideration.
In its opinion in support of its December 6, 1990 order, the common pleas court stated that it failed to perceive properly the facts in issuing its order on June 28, 1990, and this failure created an extraordinary circumstance entitling Axsom to relief beyond the thirty-day period.
It is well settled that courts of this Commonwealth possess inherent power to act where equity so demands. Great American Credit Corp. v. Thomas Mini-Markets, Inc., 230 Pa.Superior Ct. 210, 326 A.2d 517 (1974). In such situations,...
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