Commonwealth v. Axsom

598 A.2d 616, 143 Pa. Commw. 99, 1991 Pa. Commw. LEXIS 559
CourtCommonwealth Court of Pennsylvania
DecidedOctober 18, 1991
DocketNo. 2694 C.D. 1990
StatusPublished
Cited by10 cases

This text of 598 A.2d 616 (Commonwealth v. Axsom) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Axsom, 598 A.2d 616, 143 Pa. Commw. 99, 1991 Pa. Commw. LEXIS 559 (Pa. Ct. App. 1991).

Opinion

DOYLE, 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

[101]*101The pertinent facts are as follows: On February 11,1990, Officer Joseph Y. 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I, the undersigned, do hereby consent to have blood withdrawn or urine obtained by The Chester County Hospital to determine the alcohol and/or drug content of my blood and/or urine.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.

[102]*102Axsom, 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.

Direct Examination
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, “I don’t care about taking the blood. I already gave you permission to take the blood," 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.
Cross Examination
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 [103]*103had 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.-[104]*1041.,” 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).

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Bluebook (online)
598 A.2d 616, 143 Pa. Commw. 99, 1991 Pa. Commw. LEXIS 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-axsom-pacommwct-1991.