DOYLE, President Judge.
Anthony Millili appeals from an order of the Court of Common Pleas of Montgomery County which upheld the Department of Transportation’s (DOT) suspension of his driver’s license pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1).1 ' Also, before the Court is DOT’s request for counsel fees under Pa. R.A.P. 2744 based upon Millili’s purportedly frivolous appeal from the order of Common Pleas. .
On December 25, 1997, at approximately 2:05 a.m., Millili was stopped by Sergeant John Cane of the Bridgeport Police Department after he observed Millili’s car coming toward him with its fights off. Sergeant Cane first flashed his headlights to alert Millili that his lights were not on, but the car proceeded past him, and Sergeant Cane put on his emergency lights and eventually pulled the car over one-half mile further down the road. ’As Sergeant Cane approached, Millili did not roll down his window or even acknowledge Sergeant Cane after the officer banged on the passenger side window to get his attention. Sergeant Cane then walked around to the driver’s side of the ear, opened the door and shut the engine off “for my safety as well as his.” At that point, he detected a strong odor of alcohol coming from Millili. As a result, Sergeant Cane asked Millili to perform several field sobriety tests, all of which Millili failed. Accordingly, Sergeant Cane placed Millili under arrest for DUI and asked him to submit to chemical testing, which Millili refused.
Thereafter, Sergeant Cane took Millili to the police station, read him DOT’s Form DL-26, entitled “Chemical Testing Warning and Report of Refusal to Submit to Chemical Testing as Authorized by Section 1547 of the Vehicle Code.” Millili again [113]*113refused to submit to chemical testing and refused to sign the form. Sergeant Cane reported Millili’s actions as a refusal.
Based on that refusal, DOT suspended Millili’s operator’s license for one year, and Millili appealed that decision to the Court of Common Pleas of Montgomery County.
At the hearing before Common Pleas, Sergeant Cane testified to the above events. Specifically, he testified that, at the scene, he asked Millili to submit to a blood test and advised him that, if he refused, his license would be suspended for one year. Sergeant Cane testified that Millili refused to submit to the blood test.
In addition, Sergeant Cane testified that he read the form DL-26 to Millili at the police station and again gave Millili the opportunity to submit to a chemical test, but Millili refused to take a chemical test and refused to sign the form.
On cross-examination, Millili’s attorney read into the record a portion of Sergeant Cane’s testimony from Millili’s preliminary hearing on the criminal charges before a district justice where Sergeant Cane testified that he did not offer Millili an opportunity at the police station to submit to chemical testing.2 On redirect examination, Sergeant Cane reiterated that, at the police station, he gave Millili another chance to submit to chemical testing, again advising him of the consequences of refusing to submit to the test, and Millili again refused.
In response, Millili testified that he was never given an opportunity to submit to chemical testing at either the scene of arrest or at the police station. He stated that, if he had been asked to submit to chemical testing, he would have done so.
In a November 6, 1998 opinion, the Common Pleas Court upheld DOT’s suspension of Millili’s license. The court concluded that DOT had demonstrated that Millili was asked to submit to chemical testing and refused to do so. The court then concluded that Millili did not offer evidence indicating that his refusal was not knowing or conscious. This appeal followed.
On appeal,3 Millili argues that Common Pleas erred by finding that he was asked to submit to chemical testing, but refused. Specifically, Millili argues as follows:
In the instant case, the Department of Transportation has not met its burden of proof as follows: Millili’s version that there was no refusal is the only credible one and Sergeant Cane’s version by his own admitted contradictory testimony simply cannot be given any weight.... Further, Sergeant Cane admitted on cross examination that he never showed Millili the DL-26 form nor read the warnings to him....
(Millili’s Brief at 9.) At the outset, we note that it is settled law beyond question that determinations as to the credibility of witnesses and the weight assigned to their testimony is solely within the province of the fact finder, in this case the Court of Common Pleas. See Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989) (stating that, “Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, [114]*114not our appellate courts”). In the present case, the Common Pleas Court received conflicting testimony concerning whether or not Millili was asked to submit to a chemical test, as well as whether he refused to take that test. Reconciling this conflict, the Common Pleas Court determined that Millili had been asked to submit to the test, but refused. Accordingly, we will not reverse that determination on appeal.
In addition, Millili asserts that, even if Sergeant Cane’s testimony is accepted, Millili did not refuse to submit to chemical testing because he was not taken to the hospital where the test was administered. In support of this contention, Millili directs our attention to Abate v. Department of Transportation, 53 Pa.Cmwlth. 104, 416 A.2d 1159 (1980), and Department of Transportation, Bureau of Traffic Safety v. Guarino, 19 Pa.Cmwlth. 104, 339 A.2d 861 (1975).
In Guarino, the driver remained silent when asked to submit to a Breathalyzer at the scene and at the magistrate’s office. The driver, however, was never taken to the location of the Breathalyzer. We affirmed the judgment of Common Pleas, concluding that there was no evidence that, if Guarino were taken to the place where the Breathalyzer apparatus was, he would have refused the test.
In Abate, the .driver was arrested for DUI and was asked to submit to chemical testing, which he agreed initially to do. While he was at the police station, however, a scuffle broke out, and the officers told Abate that they were taking him to the State Police barracks. Abate was not told that he was being taken there for chemical testing, and he refused to go. As in Guar-ino, we concluded that there was no refusal because Abate was not told why he was being taken to the police barracks and, therefore, he did not refuse to submit to a test because he did not know that he was again being asked to take a chemical test.
In Department of Transportation, Bureau of Driver Licensing v. Stay, 114 Pa. Cmwlth. 532, 539 A.2d 57 (1988), the driver was taken to a police station and asked to submit to a Breathalyzer test, which Stay refused to do. There was, in fact, no Breathalyzer machine at the police station.
Free access — add to your briefcase to read the full text and ask questions with AI
DOYLE, President Judge.
Anthony Millili appeals from an order of the Court of Common Pleas of Montgomery County which upheld the Department of Transportation’s (DOT) suspension of his driver’s license pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1).1 ' Also, before the Court is DOT’s request for counsel fees under Pa. R.A.P. 2744 based upon Millili’s purportedly frivolous appeal from the order of Common Pleas. .
On December 25, 1997, at approximately 2:05 a.m., Millili was stopped by Sergeant John Cane of the Bridgeport Police Department after he observed Millili’s car coming toward him with its fights off. Sergeant Cane first flashed his headlights to alert Millili that his lights were not on, but the car proceeded past him, and Sergeant Cane put on his emergency lights and eventually pulled the car over one-half mile further down the road. ’As Sergeant Cane approached, Millili did not roll down his window or even acknowledge Sergeant Cane after the officer banged on the passenger side window to get his attention. Sergeant Cane then walked around to the driver’s side of the ear, opened the door and shut the engine off “for my safety as well as his.” At that point, he detected a strong odor of alcohol coming from Millili. As a result, Sergeant Cane asked Millili to perform several field sobriety tests, all of which Millili failed. Accordingly, Sergeant Cane placed Millili under arrest for DUI and asked him to submit to chemical testing, which Millili refused.
Thereafter, Sergeant Cane took Millili to the police station, read him DOT’s Form DL-26, entitled “Chemical Testing Warning and Report of Refusal to Submit to Chemical Testing as Authorized by Section 1547 of the Vehicle Code.” Millili again [113]*113refused to submit to chemical testing and refused to sign the form. Sergeant Cane reported Millili’s actions as a refusal.
Based on that refusal, DOT suspended Millili’s operator’s license for one year, and Millili appealed that decision to the Court of Common Pleas of Montgomery County.
At the hearing before Common Pleas, Sergeant Cane testified to the above events. Specifically, he testified that, at the scene, he asked Millili to submit to a blood test and advised him that, if he refused, his license would be suspended for one year. Sergeant Cane testified that Millili refused to submit to the blood test.
In addition, Sergeant Cane testified that he read the form DL-26 to Millili at the police station and again gave Millili the opportunity to submit to a chemical test, but Millili refused to take a chemical test and refused to sign the form.
On cross-examination, Millili’s attorney read into the record a portion of Sergeant Cane’s testimony from Millili’s preliminary hearing on the criminal charges before a district justice where Sergeant Cane testified that he did not offer Millili an opportunity at the police station to submit to chemical testing.2 On redirect examination, Sergeant Cane reiterated that, at the police station, he gave Millili another chance to submit to chemical testing, again advising him of the consequences of refusing to submit to the test, and Millili again refused.
In response, Millili testified that he was never given an opportunity to submit to chemical testing at either the scene of arrest or at the police station. He stated that, if he had been asked to submit to chemical testing, he would have done so.
In a November 6, 1998 opinion, the Common Pleas Court upheld DOT’s suspension of Millili’s license. The court concluded that DOT had demonstrated that Millili was asked to submit to chemical testing and refused to do so. The court then concluded that Millili did not offer evidence indicating that his refusal was not knowing or conscious. This appeal followed.
On appeal,3 Millili argues that Common Pleas erred by finding that he was asked to submit to chemical testing, but refused. Specifically, Millili argues as follows:
In the instant case, the Department of Transportation has not met its burden of proof as follows: Millili’s version that there was no refusal is the only credible one and Sergeant Cane’s version by his own admitted contradictory testimony simply cannot be given any weight.... Further, Sergeant Cane admitted on cross examination that he never showed Millili the DL-26 form nor read the warnings to him....
(Millili’s Brief at 9.) At the outset, we note that it is settled law beyond question that determinations as to the credibility of witnesses and the weight assigned to their testimony is solely within the province of the fact finder, in this case the Court of Common Pleas. See Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989) (stating that, “Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, [114]*114not our appellate courts”). In the present case, the Common Pleas Court received conflicting testimony concerning whether or not Millili was asked to submit to a chemical test, as well as whether he refused to take that test. Reconciling this conflict, the Common Pleas Court determined that Millili had been asked to submit to the test, but refused. Accordingly, we will not reverse that determination on appeal.
In addition, Millili asserts that, even if Sergeant Cane’s testimony is accepted, Millili did not refuse to submit to chemical testing because he was not taken to the hospital where the test was administered. In support of this contention, Millili directs our attention to Abate v. Department of Transportation, 53 Pa.Cmwlth. 104, 416 A.2d 1159 (1980), and Department of Transportation, Bureau of Traffic Safety v. Guarino, 19 Pa.Cmwlth. 104, 339 A.2d 861 (1975).
In Guarino, the driver remained silent when asked to submit to a Breathalyzer at the scene and at the magistrate’s office. The driver, however, was never taken to the location of the Breathalyzer. We affirmed the judgment of Common Pleas, concluding that there was no evidence that, if Guarino were taken to the place where the Breathalyzer apparatus was, he would have refused the test.
In Abate, the .driver was arrested for DUI and was asked to submit to chemical testing, which he agreed initially to do. While he was at the police station, however, a scuffle broke out, and the officers told Abate that they were taking him to the State Police barracks. Abate was not told that he was being taken there for chemical testing, and he refused to go. As in Guar-ino, we concluded that there was no refusal because Abate was not told why he was being taken to the police barracks and, therefore, he did not refuse to submit to a test because he did not know that he was again being asked to take a chemical test.
In Department of Transportation, Bureau of Driver Licensing v. Stay, 114 Pa. Cmwlth. 532, 539 A.2d 57 (1988), the driver was taken to a police station and asked to submit to a Breathalyzer test, which Stay refused to do. There was, in fact, no Breathalyzer machine at the police station. Stay’s response was recorded as a refusal, and his license was suspended. The Common Pleas Court reversed the suspension, concluding that, because there was not a Breathalyzer machine at the police station where Stay was taken, his refusal was a nullity. We reversed that decision, however, concluding that a refusal to submit to chemical testing is not, a nullity when the request is made and the refusal is given at a site other than where the test is administered.
In reaching our conclusion in Stay, we distinguished Guarino from that case because, unlike Guarino, Stay refused to submit to the test and did not merely refuse to answer the officer. Also, we distinguished Abate because the driver did not merely refuse to go with the- officer to a location, but actually refused to submit to chemical testing.
In the present case, as in Stay, Millili twice refused to submit to chemical testing. The record indicates, and the Common Pleas Court found as a fact, that Sergeant Cane twice asked Millili to submit to chemical testing and. each time advised Millili of the consequences of his refusal. Moreover, at the police station, Sergeant Cane read the form DL-26 to Millili, which discharged Sergeant Cane’s duty under the law. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). Thus, the fact that Millili was not taken to the hospital where the blood test would have been performed does not affect the validity of either of his two refusals. Accordingly, we agree with the conclusion of Common Pleas that Millili was asked to submit to chemical testing and refused to do so, thereby warranting the suspension of his driver’s license.
[115]*115As for DOT’s request for counsel fees under Pa. R.A.P. 2741, although Millili principally seeks review of the trial court’s credibility determinations, which could be the basis of a frivolous appeal, DiCola v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 398 (Pa.Cmwlth.1997), Millili did present legal argument concerning the adequacy of the refusal as a matter of law. Accordingly, exercising our discretion, we will not impose counsel fees in this case.
Order affirmed.
ORDER
NOW, January 81, 2000, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is hereby affirmed.
Judge SMITH and Judge KELLEY dissent.