                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Marnik, Jr.,                        :
                              Appellant         :
                                                :
                      v.                        :
                                                :
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :   No. 814 C.D. 2017
Bureau of Driver Licensing                      :   Submitted: December 1, 2017


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: April 19, 2018

               Christopher Marnik, Jr., (Marnik) appeals from the Allegheny County
Common Pleas Court’s (trial court) May 11, 2017 order dismissing his appeal from
the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing’s (DOT) 18-month operating privilege suspension imposed pursuant to
Section 1547 of the Vehicle Code (commonly referred to as the Implied Consent
Law) (Law).1 The sole issue before this Court is whether, on remand from this Court,
a trial court judge who did not preside over the trial, had the ability to make
credibility determinations and factual findings concerning the same.2 After review,
we vacate and remand.

       1
          75 Pa.C.S. § 1547. The Law provides for a 12-month driving privilege suspension for
refusal to submit to chemical testing; however, it increases to 18 months where, inter alia, an
individual has been previously sentenced for driving under the influence of alcohol or a controlled
substance pursuant to Section 3802 of the Vehicle Code, 75 Pa.C.S. § 3802.
        2
          Marnik raises three issues in his Statement of the Questions Involved that are all subsumed
within this issue: (1) whether fairness dictates that principles of due process and fundamental
fairness require that the original trial judge be consulted to determine what credibility and factual
              By letter dated May 10, 2013, DOT notified Marnik that, due to his
refusal to submit to a chemical test following an arrest for driving under the influence
of alcohol (DUI) on April 29, 2013, his vehicle operating privileges would be
suspended for 18 months beginning June 14, 2013.                   On June 6, 2013, Marnik
appealed to the trial court.
              On May 29, 2014, trial court Judge Robert C. Gallo (Judge Gallo) held a
de novo hearing during which Robinson Township Police Department patrolman
Michael Gastgeb (Officer Gastgeb) testified regarding the incidents on April 29,
2013, that led to Marnik’s arrest and Officer Gastgeb’s request that Marnik submit to
chemical testing. Officer Gastgeb was the only witness to testify at the hearing.
              On February 24, 2015, the trial court sustained Marnik’s appeal,
reasoning:

              The objective evidence was that Officer Gastgeb observed a
              vehicle belonging to [Marnik’s] grandfather parked on the
              roadway with a bent tire and scratches on its passenger side.
              Officer Gastgeb could not recall if the keys were in the
              ignition or if the car was running, although he recalled that
              he had testified at the preliminary hearing that he would
              have made a note of it on his Police Report if the keys were
              in the ignition. While Officer Gastgeb was at the scene, he
              observed [Marnik] approaching the car. Officer Gastgeb
              observed that [Marnik] exhibited several signs of
              intoxication and [Marnik] told him that he had drinks
              earlier. Officer Gastgeb did not ask him when he had been
              drinking or where he had been. When [Marnik] met with
              the Officer, [he] had no car keys with him.
              Nowhere is there any evidence that [Marnik] had any
              intoxicating beverage when he drove his car. There is
              simply no objective evidence from which to conclude that


determinations he made; (2) whether the newly-assigned trial court judge should have provided
Marnik notice and an opportunity to be heard before the newly-assigned trial court judge rendered
his decision; and, (3) whether the newly-assigned trial court judge improperly speculated as to the
original trial court judge’s credibility and factual determinations.
                                                2
             [Marnik] was in actual physical control of his vehicle while
             intoxicated.

Reproduced Record (R.R.) at 99a-100a.
             DOT appealed to this Court.            In Marnik v. Department of
Transportation, Bureau of Driver Licensing, 145 A.3d 208 (Pa. Cmwlth. 2016)
(Marnik I), this Court explained that to justify a license suspension for refusal to
submit to chemical testing, DOT must demonstrate, among other things, that the
licensee was arrested for DUI by a police officer who had reasonable grounds to
believe that the licensee was operating or in actual physical control of the movement
of the vehicle while under the influence of alcohol. The Court further stated:
             ‘In assessing whether [DOT] has met this burden, we
             consider the totality of the circumstances and determine, as
             a matter of law, whether a person in the position of the
             arresting officer could have reasonably reached this
             conclusion.’ Helt v. Dep’t of Transp., Bureau of Driver
             Licensing, 856 A.2d 263, 266 (Pa. Cmwlth. 2004)
             (emphasis added). ‘It is not necessary for an officer to
             actually witness a licensee operating a vehicle in order to
             have reasonable grounds to place him under arrest for
             [DUI].’ Walkden v. Dep’t of Transp., Bureau of Driver
             Licensing, 103 A.3d 432, 437 (Pa. Cmwlth. 2014)
             (emphasis added). However, ‘at the very least, there must
             be some objective evidence that the motorist exercised
             control over the movement of the vehicle at the time he was
             intoxicated.’ Banner [v. Dep’t of Transp., Bureau of Driver
             Licensing], 737 A.2d [1203,] 1207 [(Pa. 1999)].

Marnik I, 145 A.3d at 212.
             According to Officer Gastgeb’s testimony: Marnik appeared intoxicated
within 20 minutes of the accident and admitted that he had been drinking earlier;
Marnik acknowledged to Officer Gastgeb that the vehicle belonged to his
grandfather, and he had driven it earlier; Officer Gastgeb had passed the same
location within minutes before the accident and the vehicle was not there; Marnik did
not know whether he had been in an accident; and, no one was around the vehicle

                                          3
when Officer Gastgeb arrived on the scene at approximately 1:20 a.m.3 Relying in
part on this Court’s statement in Helt, that “[a]n officer’s belief that the licensee was



      3
          In Marnik I, this Court summarized DOT’s evidence as follows:
               [Officer Gastgeb] testified that, on April 29, 2013 at approximately
               1:20 a.m., he observed a disabled vehicle on the roadway with no
               occupant. According to Officer Gastgeb, no one was around the
               vehicle at that time. Officer Gastgeb stated that the vehicle had a bent
               tire and scratches on the passenger side consistent with a guard rail
               impact. Officer Gastgeb explained that the accident had occurred just
               prior to his arrival, since the vehicle had not been present when he
               passed that location just fifteen minutes earlier. Officer Gastgeb
               further indicated that while he was at the scene, Marnik approached,
               dressed in gym shorts and a t-shirt. Marnik stumbled, had glassy
               eyes, slurred speech and smelled of alcohol. Officer Gastgeb
               described his interaction with Marnik as follows:

                      Q.     And how long after you came upon this
                      disabled vehicle did [Marnik] show up?

                      A.      It was within a few minutes.

                      Q.     And what kind of balance did [Marnik]
                      manifest at that time?

                      A.     [Marnik] was stumbling.       He had [a]
                      general[ly] hard time keeping his balance walking
                      towards me.

                      Q.      And what happened after [Marnik] approached
                      you?

                      A.      I asked him if that was his vehicle.

                      Q.      What was his answer?

                      A.      He said, yes; it’s my grandfather’s vehicle.

                      Q.      What did you next say to him?

                      A.      I asked if he had been driving the vehicle and
                      he said yes. And I asked if he was in an accident and
                      he said he did not know.

                                                  4
driving will justify a request to submit to chemical testing if one reasonable
interpretation of the circumstances supports the officer’s belief[,]” the Marnik I Court
concluded that if Officer Gastgeb’s testimony was credible, DOT met its burden of
proving that Officer Gastgeb reasonably believed that Marnik was operating the
vehicle while intoxicated. Helt, 856 A.2d at 266. However, the Marnik I Court could
not discern from Judge Gallo’s opinion whether he had found Officer Gastgeb’s
testimony credible.       Accordingly, the Court vacated Judge Gallo’s order and
remanded the matter to the trial court to address the credibility of Officer Gastgeb’s
testimony and render a new decision consistent with Marnik I.
              Unbeknownst to this Court, when Marnik I was decided, Judge Gallo
had retired from the bench. Trial court Senior Judge Lester G. Nauhaus (Judge
Nauhaus) was assigned the case and attempted to comply with this Court’s order in
Marnik I by reviewing the certified record, making his own credibility determinations
regarding Officer Gastgeb’s testimony, and rendering a new decision. On May 11,
2017, Judge Nauhaus issued his opinion and order explaining:

              This Court has reviewed the record and the transcript of the
              hearing that occurred on May 29, 2014, and has found no
              indication that Judge Gallo found any of Officer Gastgeb’s
              testimony to be incredible. Moreover, this [trial c]ourt finds
              the testimony of Officer Gastgeb to be credible, including
              his testimony that [Marnik] admitted driving the vehicle and
              that he had been patrolling the area 15 minutes earlier and
              the vehicle was not there.


                     Q.      He didn’t know. Okay. What happened next
                     after you asked him if he had been in an accident and
                     he responded that he didn’t know?

                     A.     Yes. I asked if he had been drinking tonight
                     and he said, yes; I was earlier. At that time, [Marnik]
                     refused to communicate with me and the other officers.

Marnik I, 145 A.3d. at 210 (quoting the Reproduced Record at 17a-18a).

                                               5
Trial Ct. Op. (filed May 11, 2017) at 2. Thus, the trial court dismissed Marnik’s
appeal. Marnik appealed to this Court.4
               Marnik contends that Judge Nauhaus, who was not the original presiding
trial court judge and, thus, did not hear Officer Gastgeb’s live testimony, improperly
made credibility determinations and factual findings with respect to Officer Gastgeb’s
testimony.
               Pennsylvania courts have addressed the legal consequences of a
presiding judge’s unavailability due to retirement, suspension, disability, resignation
or death. In Ercolani v. Department of Transportation, Bureau of Driver Licensing,
922 A.2d 1034 (Pa. Cmwlth. 2007), DOT appealed from a lower court decision that
sustained Ercolani’s statutory appeal and rescinded Ercolani’s suspension. DOT
argued, in part, that the lower court should have held a second merits hearing because
the original hearing judge had retired and the case had been reassigned to a judge
who rendered the opinion. This Court rejected DOT’s argument, explaining:

               There is no merit in this assertion of error. [The newly-
               assigned judge] received the case as an assignment after the
               retirement of [the original judge], who conducted the de
               novo merits hearing. On reassignment, [the newly-assigned
               judge] did not substitute his decision for that of [the original
               judge] but merely wrote the opinion called for under
               [Pennsylvania Rule of Appellate Procedure] 1925[(a)],
               explaining the reasons for Judge Brown’s decision. In so
               doing, [the newly-assigned judge] accepted all of [the
               original judge’s] determinations as to the credibility and
               weight of the testimony. Under these circumstances,
               where the [the original judge] rendered his decision, stating
               very briefly on the record the basis therefor, and [the newly-
               assigned judge] did not make any independent findings,
               there is no need to conduct a new hearing. Cf. Wasiolek v.

       4
         “This Court’s scope of review in a license suspension case is limited to determining
whether the trial court’s findings of facts are supported by competent evidence and whether the trial
court committed an error of law or an abuse of discretion.” Stancavage v. Dep’t of Transp., Bureau
of Driver Licensing, 986 A.2d 895, 898 n.6 (Pa. Cmwlth. 2009).
                                                 6
            [City of] Phila[.], . . . 606 A.2d 642 ([Pa. Cmwlth.] 1992)
            (where the initial hearing judge failed to render a decision
            prior to the reassignment of the case, a new hearing must be
            conducted); Ciaffoni v. Ford, . . . 237 A.2d 250 ([Pa.
            Super.] 1968) (on reassignment, the substituted judge
            cannot render a decision based on the record made before
            the initial hearing judge).

Ercolani, 922 A.2d at 1036 n.2 (bold emphasis added; text italics added).
            In Wasiolek, former city employee Wasiolek filed a complaint in equity
alleging Philadelphia Home Rule Charter violations relating to his employment. A
non-jury trial was held before Judge Julian F. King (Judge King) whom the
Pennsylvania Supreme Court subsequently suspended from his duties. Thereafter,
Wasiolek received Judge King’s decision. Because Judge King had been suspended,
the matter was reassigned to Judge Lawrence Prattis (Judge Prattis), who held a
conference with counsel and requested proposed findings of fact and conclusions of
law based on the record created before Judge King. Thereafter, the matter was
reassigned to Judge Armand Della Porta (Judge Della Porta). After pre-trial hearings,
Judge Della Porta scheduled the case for trial to elicit additional testimony.
However, before the trial could be held, Judge Prattis issued a verdict based on the
record created by Judge King. Wasiolek filed post-trial motions, complaining that
Judge Prattis should not have rendered a decision after the action had been transferred
to Judge Della Porta.    Judge Della Porta denied Wasiolek’s motion.         Wasiolek
appealed to this Court arguing, inter alia, that a rehearing should have been held
before Judge Prattis, and that it was improper for Judge Prattis to render findings
based on credibility evaluations of witnesses who did not testify before him. The
Wasiolek Court agreed and reasoned:

            The Pennsylvania Superior Court considered a similar
            situation in the case of Hyman v. Borock, . . . 235 A.2d 621
            ([Pa. Super.] 1967), and determined 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
                                          7
            without a jury and the trial judge has not rendered a
            decision on the factual issues. Hyman was followed in
            Ciaffoni . . . , where the Superior Court considered a
            situation where the trial judge had rendered a verdict, but
            subsequently recused himself.         The Superior Court
            determined that the substituted judge was not entitled to
            rely upon the record made before the first judge in the
            absence of evidence of consent from both parties. Although
            the present situation differs slightly from both situations
            above, it is apparent that Wasiolek is entitled to a
            rehearing; Judge King was unable to provide a valid
            verdict and Judge Prattis’ verdict based upon a review
            of the record made before Judge King is not a
            satisfactory substitute for the verdict of a judge who has
            heard testimony.

Wasiolek, 606 A.2d at 644 (emphasis added). Thus, this Court vacated the trial
court’s order denying post-trial motions and remanded for a rehearing.
            Similarly, in Commonwealth ex rel. Davis v. Davis, 408 A.2d 849 (Pa.
Super. 1979), the Superior Court remanded a custody matter for a new hearing and
full opinion where a hearing judge granted custody to the father and granted visitation
rights to the mother. Because the original hearing judge completed his term in office,
the opinion in support of the original hearing judge’s orders was written by another
judge. The Superior Court explained:

            It should first be noted that the hearing judge did not file an
            opinion in support of the custody orders. Rather a common
            pleas judge, not the hearing judge, wrote the lower court’s
            opinion upholding the hearing judge’s decision. While we
            acknowledge the opinion was ably done, it should not have
            been undertaken at all. The record discloses that there were
            serious conflicts in the testimony of the appellant and the
            appellee. The opinion writing judge inadvertently misstated
            the testimony of a principal witness called on behalf of the
            appellant. Not uniquely peculiar to this case, the accepted
            facts and the inferences that can be drawn from them
            depend on the credibility of the testifying witnesses. This
            vital function can only be determined by the judge before
            whom these witnesses appear.


                                          8
             For these reasons, we are satisfied that the orders entered
             below must be vacated and the matter remanded for a full
             hearing and a comprehensive opinion by the hearing judge,
             reflecting a thorough analysis of the record as a whole,
             including an assessment of the credibility of the witnesses.

Davis, 408 A.2d at 850; see also Sherman v. Yoder, 430 A.2d 347, 348 (Pa. Cmwlth.
1981) (“Certainly, if [the subsequently-assigned judge] had been requested to pass
upon factual issues where the testimony had been presented to [the recused judge],
his doing so would have been error.”).
             In Labyoda v. Stine, 441 A.2d 379 (Pa. Super. 1982), the appellants filed
an equity claim in the trial court seeking injunctive relief for alleged damage to their
property resulting from water and rocks entering their property from the appellees’
lot.   The original chancellor (chancellor) granted a rule to show cause why a
preliminary injunction should not issue. The chancellor viewed the property, and
while there, took testimony and admitted evidence. Before the chancellor could
render a decision, he joined the Pennsylvania Supreme Court as a Justice. The
appellants argued to the trial court that a new chancellor should conduct a new
property viewing and hearing. The new chancellor heard oral argument, but declined
to view the property or take new evidence. Thereafter, he made findings of fact and
conclusions of law, and in his decision denied the appellants’ relief, and granted the
appellees the relief they sought in a counterclaim. On appeal, the Superior Court
relied on the Hyman and Ciaffoni cases, characterizing those holdings as
“disallow[ing] a [trial court’s] decision based on the record developed before a judge
no longer sitting on the case where such a procedure was not consented to by the
parties . . . [and where] there were factual questions still in dispute.” Labyoda, 441
A.2d at 380-81. Applying Hyman and Ciaffoni to the facts before it, the Superior
Court reversed the trial court’s decision and remanded the matter.



                                           9
            After concluding in Marnik I that the trial court’s opinion lacked a
credibility determination for Officer Gastgeb, who was the only witness to testify,
and whose testimony was critical to whether DOT had met its burden, this Court
remanded for that express purpose. Our Supreme Court has explained:

            Ordinarily, where the record is in a confused state and the
            trial court has not made findings of fact, we would remand
            the proceedings for appropriate factual determinations by
            the trial judge. In the present action, however, this is
            impossible since the trial judge has retired from the bench
            and is no longer available to make the necessary findings.
            Therefore, in order to protect against a possible miscarriage
            of justice in the present situation, a new trial is necessary to
            clarify the many ambiguities appearing on the record and to
            permit the rendering of necessary factual and legal
            determinations by a trial court.

Ballinger v. Howell Mfg. Co., 180 A.2d 555, 557 (Pa. 1962).             Consistent with
Ballinger, a new trial is necessary in the instant matter to permit a new presiding
judge to hear testimony and render necessary credibility determinations, factual
findings and conclusions of law.

            We recognize that to remand now means not merely a
            remand for a fuller opinion, but rather to start the
            proceedings all over again. This is necessitated by the fact
            that the presiding judge is no longer on the bench. We find
            it extremely unfortunate that the proceedings must be
            renewed in the lower court, but we see no acceptable
            alternative. We cannot review the record of this case
            without . . . a determination of witness credibility.

Delbaugh v. Delbaugh, 487 A.2d 417, 419 (Pa. Super. 1985).




                                          10
            For all of the above reasons, the trial court’s order is vacated, and the
matter is remanded for a new hearing on the merits.

                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         11
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christopher Marnik, Jr.,                    :
                           Appellant        :
                                            :
                   v.                       :
                                            :
Commonwealth of Pennsylvania,               :
Department of Transportation,               :   No. 814 C.D. 2017
Bureau of Driver Licensing                  :


                                       ORDER

             AND NOW, this 19th day of April, 2018, the Allegheny County
Common Pleas Court’s May 11, 2017 order is vacated and this matter is remanded
for a new hearing on the merits consistent with this opinion.
             Jurisdiction relinquished.


                                          ___________________________
                                          ANNE E. COVEY, Judge
