                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tamika Bellamy,                              :
                     Appellant               :
                                             :    No. 14 C.D. 2016
              v.                             :
                                             :    Submitted: August 12, 2016
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing                   :



BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                         FILED: November 21, 2016


              Tamika A. Bellamy (Licensee) appeals from the December 16, 2015
order of the Court of Common Pleas of Bucks County (trial court) denying her
statutory appeal from a one-year suspension of her driving privileges imposed by the
Department of Transportation (DOT) pursuant to section 1547(b)(1) of the Vehicle
Code.1 We affirm.
              On March 9, 2014, at approximately 6:45 a.m., Trooper Justin Oliverio
investigated a report of a vehicle partially blocking the southbound lane of I-95 near
the Langhorne, Bucks County exit. Upon arrival, Trooper Oliverio observed that the

       1
         Section 1547(b)(1)(i) provides that if any person placed under arrest for driving while
under the influence is requested to submit to a chemical test and refuses to do so, DOT shall
suspend the person’s operating privileges for one year. 75 Pa.C.S. §1547(b)(1)(i).
vehicle had suffered moderate damage after coming into contact with a guardrail, that
the keys were in the ignition, and that Licensee was asleep in the driver’s seat.
(Notes of Testimony (N.T.) at 7-8.)
              Trooper Oliverio woke Licensee, and she informed the Trooper that she
had run out of gas while driving home from a friend’s house. Licensee further
informed Trooper Oliverio that while attempting to pull onto the shoulder of I-95, she
“actually put the car in reverse and backed into the guardrail at that point.” (N.T. at
8.) Trooper Oliverio stated that Licensee admitted to consuming 7.5 milligrams of
Percocet earlier that morning and that she had a prescription for this amount. (N.T. at
8-9.)2
              Trooper Oliverio administered field sobriety tests to Licensee, and based
upon her performance of the tests, he concluded that Licensee was incapable of safely
operating a vehicle.       Trooper Oliverio then placed Licensee under arrest and
transported her to St. Mary Medical Center for a blood test. While at the hospital,
Trooper Oliverio read Licensee the implied consent warnings verbatim from the DL-
26 form. After requesting to read the form herself, Licensee informed Trooper
Oliverio that she “would not do the test.” (N.T. at 9-11.)
              After receiving notice that Licensee refused to submit to chemical
testing, DOT mailed her a notice on May 12, 2014, advising her that her driving
privileges would be suspended for a period of twelve months, effective June 16,



         2
          Notably, in Pennsylvania, a person can be convicted of driving under the influence, see
Section 3802(d)(2) of the Vehicle Code, 75 Pa.C.S. §3802(d)(2), where the driver has ingested
prescription drugs and the Commonwealth proves that the driver was under the influence to such a
degree that the driver’s ability to drive is impaired, see Commonwealth v. Griffith, 32 A.3d 1231,
1238-40 (Pa. 2011); Commonwealth v. Graham, 81 A.3d 137, 147 (Pa. Super. 2013).



                                                2
2014, pursuant to Section 1547 of the Vehicle Code. (Official Notice of Suspension,
5/12/2014.)
              On June 10, 2014, Licensee filed an appeal to the trial court for a de
novo hearing. On July 3, 2014, the trial court issued an order scheduling a hearing on
Licensee’s appeal for September 22, 2014.          On September 22, 2014, Licensee
requested a continuance, which was unopposed by DOT. By order dated September
22, 2014, the trial court granted the continuance and rescheduled the hearing for
February 17, 2015. (Docket Entries at Nos. 1-4.)
              After another request for a continuance was granted in favor of Licensee,
the case was relisted from October 15, 2015, to December 16, 2015. On December
9, 2015, Licensee requested another continuance, due to her alleged medical
condition and injuries from the accident, and the trial court advised her to submit
medical documentation to substantiate her medical condition by December 14, 2015.
When Licensee failed to do so, Andrew Pressner from Court Administration informed
Licensee on December 14, 2015 that her request for a continuance was denied and
that the hearing remained scheduled for December 16, 2015. (Docket Entries at Nos.
5-7.)
              The hearing was held on December 16, 2015. Licensee did not appear at
the hearing and the trial court heard the testimony of the sole witness, Trooper
Oliverio, who testified to the facts stated above. (N.T. at 3.)
              Based on Trooper Oliverio’s testimony and Licensee’s failure to appear
at the hearing, the trial court dismissed Licensee’s appeal by order dated December
16, 2015. (Docket Entry at No. 8.)
              On January 5, 2016, Licensee filed a notice of appeal and a petition for
leave to proceed in forma pauperis. On January 12, 2016, the trial court granted



                                            3
Licensee in forma pauperis status.       On March 9, 2016, the trial court directed
Licensee to file a concise statement of the errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(b), which she
subsequently filed on March 29, 2016. (Docket Entries at Nos. 10-12, 15-16.)
              In her concise statement, Licensee alleged sixteen errors, which, when
unraveled of their redundancy, can be reduced to three: (1) that she was not provided
with proper notice of the December 16, 2015 hearing; (2) that the trial court should
have continued the hearing to a later date; and (3) that there was insufficient evidence
to establish that she was operating a vehicle while under the influence of a controlled
substance and/or refused to submit to the chemical testing. (Licensee’s Concise
Statement of Errors, 3/29/2016.)
              In its Pa.R.A.P. 1925(a) opinion, the trial court determined that Licensee
did in fact receive notice of the December 16, 2015 hearing. The trial court reasoned
as follows:

              [Licensee’s] allegations concerning her claim that she was
              not properly notified of the December 16, 2015 rescheduled
              hearing are undermined by the fact that she sent a request to
              Court Administration on December 9, 2015, requesting
              another continuance of the December 16, 2015 hearing date
              [due to a medical condition]. Notation in the Court
              Administration file indicates that [Licensee] was notified on
              December 10, 2015, that she would have until Monday,
              December 14, 2015, to contact counsel for [DOT] and
              provide a doctor’s note. She was then contacted by Andrew
              Pressner in Court Administration on December 14, 2015,
              and advised that her request for a continuance had been
              denied and her case remained listed for December 16,
              2015 . . . .
(Trial court op. at 5-6.)




                                           4
              The trial court also determined that it did not err in failing to continue
the December hearing because Licensee had alleged on a few occasions that she was
experiencing medical problems from the car accident, had previously established a
routine of “calling at the last minute” to request a continuance, and failed to produce
evidence to substantiate her medical condition or need for a continuance. Id. at 5-6.
Finally, the trial court found that Licensee’s claims regarding the sufficiency of the
evidence were waived because she failed to appear at the hearing and lodge an
objection. Id. at 6-7.
              On appeal to this Court,3 Licensee first argues that the trial court erred in
dismissing her appeal because she never received “proper notice” of the December
16, 2015 hearing. (Licensee’s brief at 11.)
              However, Licensee admits in her brief that she received actual notice of
the hearing date:

              [Court] Administration indicated that a letter had been
              mailed to [Licensee] who never received it. Due to not
              receiving any further information or documentation,
              [Licensee] searched the dockets and discovered that a court
              date had been scheduled for December 16, 2015 . . . .

              On December 14, [Licensee] received a call from [Pressner]
              and he advised [Licensee] that a continuance . . . would not
              be granted and the court date scheduled for December 16,
              2015 would remain listed.
(Licensee’s brief at 8.)



       3
         Our scope of review is limited to determining whether the trial court’s necessary findings
are supported by substantial evidence and whether the trial court committed an error of law or
abused its discretion. Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881
A.2d 30, 34 n.6 (Pa. Cmwlth. 2005).



                                                5
               This Court has held that “[a] party’s statements in its brief . . . are treated
as a judicial admission.” Bartholomew v. State Ethics Commission, 795 A.2d 1073,
1078 (Pa. Cmwlth. 2002) (citation omitted).              Judicial admissions are formal
concessions “which have the effect of withdrawing a fact from issue and dispensing it
without the need for proof of the fact.” Id. For purposes of due process, “actual
notice of the continued hearing date will suffice.” In re Phillip F., 78 Cal. App. 4th
250, 259 (Cal. App. 5th Dist. 2000); see also Stanford-Gale v. Tax Claim Bureau of
Susquehanna County, 816 A.2d 1214, 1217 (Pa. Cmwlth. 2003) (concluding that
“actual notice of a pending tax sale waives strict compliance with statutory notice
requirements[.]”). Therefore, given Licensee’s admission that she had actual notice
that the hearing would occur on December 16, 2015, we conclude that her argument
lacks merit.
               Next, Licensee contends that the trial court abused its discretion in
denying her request to continue the December 16, 2015 hearing date. Licensee
asserts that she was “suffering from the effects of a car accident, and ankle and
female problems[.]” (Licensee’s brief at 11.)
               The decision to grant a continuance is a matter within the trial court’s
exclusive discretion and can be reversed only on a showing that the trial court abused
its discretion. Commonwealth v. Lutz, 618 A.2d 1254, 1255 (Pa. Cmwlth. 1992);
Swoyer v. Department of Transportation, 599 A.2d 710, 712 (Pa. Cmwlth. 1990). To
establish an abuse of discretion, Licensee must show “not merely an error of
judgment,” but that “the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.” Sitoski
v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 22 (Pa.




                                              6
Cmwlth. 2010) (quoting Shaw v. Township of Aston, 919 A.2d 303 (Pa. Cmwlth.
2007)).
             Here, the trial court granted Licensee two continuances, and after Court
Administration made relisting changes to the trial schedule, Licensee’s original
hearing date of September 22, 2014, was eventually rescheduled to December 16,
2015. In denying Licensee’s third request for a continuance, alleging that she was
suffering from medical problems, the trial court directed Licensee to submit a
doctor’s note in support of her contention. Licensee failed to do so. Therefore, on
this record, we cannot conclude that the trial court abused its discretion in denying
Licensee’s third request for a continuance. See Miller v. Miller, 577 A.2d 205, 207-
08 (Pa. Super. 1990) (concluding that a continuance was properly denied where the
trial court informed the appellant “that a continuance would be granted if he obtained
a medical excuse outlining his ill health” and the appellant “failed to secure an excuse
[or] attend the hearing.”).
             Finally, Licensee argues that the Commonwealth failed to establish that
she was in actual physical control of the vehicle while impaired. Although the trial
court determined that this issue was waived because Licensee did not attend the
hearing, and failed to prosecute her appeal, this Court will address it on the merits.
             To sustain a suspension of operating privileges under section 1547 of the
Vehicle Code, DOT must establish that the licensee: (1) was arrested for driving
under the influence by a police officer who had reasonable grounds to believe that the
licensee was operating or was in actual physical control of the movement of the
vehicle while under the influence; (2) was asked to submit to a chemical test; (3)
refused to do so; and (4) was warned that refusal might result in a license suspension.




                                            7
Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339
(Pa. Cmwlth. 2010).
             In determining whether an officer had reasonable grounds to believe that
a motorist was in “actual physical control” of a vehicle, this Court must consider the
totality of the circumstances, including the location of the vehicle, whether the engine
was running and whether there was other evidence indicating that the motorist had
driven the vehicle at some point prior to the arrival of the police.         Banner v.
Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206
(Pa. 1999). “[A]t 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. It is immaterial whether alternative reasonable explanations for how the
motorist came to be as he was found exist.”              Gammer v. Department of
Transportation, Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth. 2010)
(citations and internal quotation marks omitted).
             Here, Trooper Oliverio observed Licensee’s vehicle partially blocking
the southbound lane of I-95 and noticed that the vehicle collided into a guardrail,
suffering moderate damage. Licensee admitted that she was driving home from her
friend’s house and ran out of gas before pulling over onto the shoulder of the
southbound lane. Although Licensee was asleep when Trooper Oliverio arrived, the
keys were in the engine and Licensee admitted that she previously ingested 7.5
milligrams of Percocet earlier that morning. In addition, Licensee failed two field
sobriety tests, specifically the horizontal gaze nystagmus test and the nine step walk-
and-turn test. (N.T. at 9-10.) Based on this record, we conclude that there were
ample facts from which Trooper Oliverio could form reasonable grounds to believe




                                           8
that Licensee was in physical control of the vehicle while under the influence of a
controlled substance.
            Accordingly, having determined that Licensee’s arguments on appeal are
devoid of merit, we affirm the trial court’s December 16, 2015 order denying her
statutory appeal from a one-year suspension of her driving privileges.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tamika Bellamy,                      :
                  Appellant          :
                                     :    No. 14 C.D. 2016
            v.                       :
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :


                                 ORDER


            AND NOW, this 21st day of November, 2016, the December 16, 2015
order of the Court of Common Pleas of Bucks County (trial court) is hereby
affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
