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Cox v. Commonwealth4/27/2005
Anthony D. Cox (Licensee) appeals from the October 25, 2004, order of the Court of Common Pleas of Washington County (trial court), which denied Licensee's challenge to the driver's license suspension imposed upon him by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to section 1547 of the Vehicle Code. We vacate and remand.
On August 17, 2003, Pennsylvania State Trooper Jon Demi (Trooper Demi) noticed that Licensee's vehicle had been traveling on the left side of the roadway and had made contact with a guardrail. After stopping Licensee's vehicle, Trooper Demi detected a strong odor of alcoholic beverages on Licensee. He also noticed that Licensee's eyes were red and glassy and that his speech was slurred. Trooper Demi conducted a field sobriety test, which indicated to the officer that Licensee was intoxicated. (Trial ct. op. at 1-2.)
Trooper Demi took Licensee to the police station and asked him to submit to chemical testing of his breath. After receiving chemical test warnings, Licensee agreed to the test. However, Licensee failed to provide a sufficient breath sample. Trooper Demi administered a second breath test. This time, Licensee's first breath sample was adequate, but his second breath sample was insufficient because Licensee was not blowing properly into the machine. Trooper Demi then informed Licensee that he would report a deemed refusal and that DOT would suspend Licensee's driver's license for one year. (Trial ct. op. at 2.)
DOT suspended Licensee's driver's license, and Licensee appealed to the trial court. On April 28, 2004, the Honorable David L. Gilmore (Judge Gilmore) held a hearing, at which Trooper Demi and Licensee testified. (R.R. at 12a-13a, 37a-38a.) On September 30, 2004, before rendering a decision in Licensee's case, Judge Gilmore passed away. (R.R. at 38a.) On October 25, 2004, the Honorable Debbie O'Dell Seneca (Judge O'Dell Seneca) issued an order denying Licensee's appeal. (R.R. at 47a, 52a.) Licensee filed a motion for reconsideration, in which Licensee requested that the trial court vacate the October 25, 2004, order and schedule a new trial. (R.R. at 38a.) By order dated November 10, 2004, the trial court denied the motion. (R.R. at 43a, 52a.) Licensee now appeals to this court.
Licensee argues that the trial court erred in denying his motion for reconsideration requesting a new trial. Licensee contends that he is entitled to a new trial under Wasiolek v. City of Philadelphia, 606 A.2d 642 (Pa. Cmwlth. 1992), because Judge Gilmore, who heard his case, died before rendering a decision and because Judge O'Dell Seneca rendered her decision based on the record made before Judge Gilmore. We agree.
In Wasiolek, a non-jury trial was held before a judge (First Judge) who, subsequently, was suspended by the Pennsylvania Supreme Court. The case was reassigned to a second judge (Second Judge), who directed the parties to submit proposed findings of fact and conclusions of law based on the record developed before the First Judge. Before the Second Judge rendered a decision, the case was reassigned to a third judge (Third Judge), who scheduled a trial to elicit further testimony. Before the Third Judge could conduct the trial, the Second Judge issued a verdict based on the record developed before the First Judge. Wasiolek filed a post-trial motion requesting a new trial, but the Third Judge denied the motion. On appeal, this court vacated and remanded for a rehearing, stating that, "in the absence of the parties' consent, a court may not substitute another judge for the trial judge where the testimony has been heard without a jury and the trial judge has not rende
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