Opinion
No. 566 C.D. 2013
11-13-2013
Laverne Jayne Chianelli, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Laverne Jayne Chianelli appeals from the order of the Court of Common Pleas of Allegheny County that dismissed her challenge to the suspension of her driver's license. The Department of Transportation suspended Chianelli's license after she refused to submit to a blood alcohol test. Just as she asserted to common pleas, Chianelli asserts in the present appeal that substantial evidence does not support a finding that she refused to submit to testing. There is no merit in this contention and therefore, we affirm.
It is undisputed that police officers stopped and arrested Chianelli for driving under the influence of alcohol, asked her to submit to chemical testing and appropriately warned her that a refusal to submit would result in a suspension of her license. The only disputed factual element necessary to justify a suspension under 75 Pa. C.S. § 1547(b) is whether Chianelli refused to submit to testing. On this point, the testimony was in conflict.
Chianelli testified that she was prone to faint during a blood draw. Further, she said that she informed the officer of her tendency to faint and that she needed to lie down for the procedure rather than sit as directed in a chair from which she feared she might fall upon fainting. Chianelli further introduced the testimony of two witnesses who reported that they had observed Chianelli faint when submitting to having her blood drawn - once in 2001 when Chianelli attempted to donate blood during a blood drive, and again at an unspecified time when an intravenous line was inserted for an out-patient procedure. Chianelli maintains that this evidence established that she has a medical condition that required a slight accommodation. By contrast, Pittsburgh Police Officer Ronald Wolfe, who was present at the site where blood was to be drawn, testified that Chianelli repeatedly asked for an attorney before she would consent to testing even after she was informed that if she continued in this request it would be considered a refusal. Officer Wolfe further testified that Chianelli never informed him of a tendency to faint or any history of having done so.
Common pleas assigned greater weight and credibility to Officer Wolfe's testimony. This testimony is fully adequate to support the finding that Chianelli failed to give an unqualified, unequivocal consent to testing. Based on this finding, common pleas appropriately concluded that Chianelli refused testing. See Sitoski v. Dep't of Transp., Bureau of Driver Licensing, 11 A.3d 12, 19 (Pa. Cmwlth. 2010). As we repeat with some frequency, this court will not revisit the fact finder's assessment of credibility and evidentiary weight. See Reinhart v. Dep't of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765-66 (Pa. Cmwlth. 2008). Consequently, Chianelli cannot prevail in her appeal.
The Department contends that Chianelli's appeal is frivolous and requests an award of counsel fees and costs pursuant to Pa. R.A.P. 2744. The present appeal is meritless and at the outset was unlikely to succeed. The award of fees and costs, while authorized under such circumstances, is not mandated but remains a matter of sound discretion. Watkins v. Unemployment Comp. Bd. of Review, 689 A.2d 1019, 1022 (Pa. Cmwlth. 1997). Chianelli reasonably limited her appeal to a narrow question susceptible to an easy response from the Department's counsel. Further, Chianelli attempted, albeit mistakenly, to question whether she should have been afforded some accommodation in the testing process in light of her fear of fainting. Under the circumstances, we decline to award fees and costs. See Finney v. Dep't of Transp., Bureau of Driver Licensing, 721 A.2d 420, 425-26 (Pa. Cmwlth. 1998).
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 13th day of November, 2013, the order of the Court of Common Pleas of Allegheny County is hereby AFFIRMED.
Further, the Department's request for the award of fees and costs is hereby DENIED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge