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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Gillespie v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: : : : : : : : :

No. 546 C.D. 2005 Submitted: July 15, 2005

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION BY JUDGE LEAVITT

FILED: November 2, 2005

The Department of Transportation, Bureau of Driver Licensing (Department), appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) that sustained the statutory appeal of Robert E. Gillespie from a one-year suspension of his operating privilege. In this case we consider whether the trial court abused its discretion by denying the Department's request to continue Gillespie's hearing. For the reasons set forth below, we vacate the trial court's order and remand the matter for a hearing on the Department's continuance request. The facts in this case are not in dispute. On April 25, 2004, Gillespie refused to consent to chemical testing following his arrest for driving under the influence of alcohol. As a result of his refusal, the Department notified Gillespie

that, pursuant to Section 1547 of the Vehicle Code (Implied Consent Law),1 his driving privileges were being suspended for one year, effective June 22, 2004. Gillespie filed a timely statutory appeal from the one-year suspension. Gillespie's case was originally listed for October 8, 2004. At the hearing, Gillespie requested a continuance, which PennDOT did not oppose. The trial court granted the continuance and relisted the case for February 4, 2005. At the inception of the rescheduled hearing, the Department requested a continuance because a necessary witness, Officer Dona Lindenmuth, was attending mandatory training and was unavailable to testify. Gillespie's counsel opposed the request. The trial court denied the continuance and explained to counsel that it continues cases only where the parties agree to the request.2 Because the Department was unable to proceed with its case, the trial court sustained Gillespie's appeal and rescinded the license suspension. The Department's motion for reconsideration was subsequently denied, and this appeal followed. On appeal, the Department argues that the trial court abused its discretion, or, more accurately, failed to exercise its discretion when it denied the request for a continuance based solely upon its standing policy that all parties must agree to the continuance. The Department contends that the trial court's policy is manifestly unreasonable. Gillespie counters that the policy is reasonable because it

1

It states that "[i]f any person placed under arrest for [driving under the influence of alcohol or controlled substance] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person ... for a period of 12 months." 75 Pa. C.S.

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