Tarka v. COM., DEPT. OF TRANSP.

• Decision Date: 14 July 2000
• Citation: 756 A.2d 138
• Parties: Thomas J. TARKA, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING.
• Court: Pennsylvania Commonwealth Court

756 A.2d 138

Thomas J. TARKA, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 28, 2000.

Decided July 14, 2000.

Stewart J. Greenleaf, Blue Bell, for appellant.

Marc A. Werlinsky and Timothy P. Wile, Asst. Counsel In-Charge, Harrisburg, for appellee.

Before COLINS, J., McGINLEY, J., and JIULIANTE, Senior Judge.

COLINS, Judge.

Thomas J. Tarka (Tarka) appeals from the October 15, 1999 order of the Court of Common Pleas of Philadelphia County (Trial Court) denying his appeal and sustaining a suspension of his operating privilege by the Department of Transportation, Bureau of Driver Licensing (Department) for refusing to submit to chemical testing pursuant to Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).¹ We affirm.

This matter was originally before former Philadelphia Common Pleas Court Judge Bernard J. Avellino, who after a very brief hearing on September 13, 1994, granted Tarka's appeal. The Department appealed, and this Court, by order dated April 25, 1995, vacated the Trial Court's order and remanded the matter for the Trial Court to re-examine its evidentiary rulings, reverse said rulings if deemed legally correct to do so, and to conduct additional hearings if appropriate. The case was next listed for trial on March 25, 1998. Subsequently, on June 24, 1998, Tarka's appeal was dismissed for lack of prosecution, but was reinstated on August 19, 1998. In spite of the aforementioned listed March 25, 1998 hearing date, it was not until October 15, 1999 that the Trial Court, after conducting a full hearing, denied Tarka's appeal and affirmed the Department's suspension order. This appeal to our Court followed.²

The factual history of the case indicates that early on March 12, 1994, Montgomery Township Officer Scott Bendig was on patrol in a marked police car when he observed a black Lincoln moving in the wrong direction on Route 202. After crossing over the medial strip, the vehicle, which was operated by Tarka, stopped in the middle of the highway. Upon approaching the vehicle, Officer Bendig observed that Tarka was glassy eyed, exhibited slurred speech, and emanated an odor of alcohol. Tarka took two field sobriety tests and failed. The record further indicates that Officer Bendig gave Tarka an alpha sensor breath test, which registered a 0.13 reading.

Tarka was arrested and taken to North Penn Hospital for a blood test where he was given the implied consent warnings. Although Tarka initially consented to give blood, he ultimately refused when the laboratory technician appeared. Tarka alleges that he offered to take a urinalysis instead of a blood test, after advising Officer Bendig that he had medical concerns about taking the blood test because two weeks earlier, he had been treated in Thomas Jefferson University Hospital for blood poisoning for which he was still on medication, and that any blood test would likely yield tainted results. Nevertheless, Tarka was taken back to the police station where he was given the warnings from the Department DL-26 Form, which reports a refusal to submit to chemical testing, and which form he signed. As a result of the aforementioned refusal, Tarka's operating privilege was suspended.

On appeal, Tarka first argues that the Trial Court erred in limiting the parties to a totally new hearing, without considering any of the matters placed on the record in the proceedings before Judge Avellino that resulted in the latter sustaining Tarka's appeal. Second, Tarka maintains that the Trial Court erred in dismissing his appeal almost six years after the initial suspension notice was issued, and he argues that the Department was responsible for a three and one-half year delay, which prejudiced his due process rights to a prompt hearing on his license suspension appeal. In this regard, Tarka contends that he has been driving and pursuing his customary activities with no idea that his license would be suspended. He further argues that any punitive measures that may have been imposed upon him as a result of his initial arrest have long been satisfied, thereby making any reinstatement of his license suspension tantamount to an unreasonable second punishment for the same incident. Finally, Tarka maintains that the Trial Court erred in reinstating his license suspension based upon his alleged refusal, considering that he advised Officer Bendig of his medical concerns about the blood test and asked to take a urine test instead.

Upon review, we note that the record is marked by inordinately lengthy and inexplicable time gaps in the docketed proceedings. Specifically, no explanation is proffered for the three-year gap between our April 25, 1995 order remanding the matter to the Trial Court, and March 25, 1998, the first date the case was docketed for a hearing. In this regard, Tarka contends that his due process rights to a prompt hearing were prejudiced by the aforementioned excessive delay for which he avers the Department was responsible.

We find the foregoing argument to be without merit. We must note that this Court's order of April 25, 1995, which vacated and remanded the matter to the Trial Court, returned the parties to the status quo ante. Therefore, Tarka, having initially appealed the Department's suspension of his license in the Trial Court, was again the Appellant and moving party, with the burden of moving his case forward. In the recent Supreme Court opinion, Terraciano v. Department of Transportation, Bureau of Driver Licensing, ___ Pa. ___, 753 A.2d 233, 237 n. 8 (2000), the Supreme Court reaffirmed Koller...