McKinley v. COM., DEPT. OF TRANSP.

onstrated the WCJ erred. Further-

more, in accordance with the Court’s hold- Huskins, Linko

ings in Petitioner present specificity required

failed to proof provide

meet his burden of protect indemnity

sufficient evidence

Respondent overpay- in the of an event therefore benefits.

affirms the order of the Board.

ORDER NOW, March, 2002, day

AND this 8th Compensation

the order of the Workers’

Appeal hereby Board affirmed. McKINLEY, Larry

C. Pennsylvania,

COMMONWEALTH of Bu- Licensing, Appellant.

reau of Driver Pennsylvania.

Commonwealth Court of

Argued Dec. 2001.

Decided March The of Trans- Licensing

portation, Bureau of Driver (DOT) on remand whether questions to be a arresting police officer continued in fact when he “police officer” Larry McKinley for driv- and arrested C. of alcohol or a ing under the influence event, substance, and, controlled arrest is imma- legality whether the whether to sustain a determining terial in failure to submit to suspension for commonly testing under the Act Law, Implied Sec- known as the Code, tion 1547 I for this The Court remanded clarify jurisprudence its concern- Court to suspen- in a license consequence, proceeding, sion of a determination police-citizen oc- underlying encounter jur- curred outside the officer’s territorial con- Specifically, isdiction. Court is to nature of sider whether the extraterritorial sta- an encounter undermines the officer’s tus as a officer” under to Kuzneski Consent Law with reference Commonwealth, 595, 511 98 Pa.Cmwlth. Edwards, Harrisburg, Terrance M. Depart- and Horton v. appellant. Driver Transportation, Bureau ment of Mancke, appel- Harrisburg, John B. (Pa.Cmwlth.1997), Licensing, 694 A.2d lee. and, not, extent the whether and to what aspect impacts upon the extraterritorial SMITH-RIBNER, Judge, Before pos- that the officer statutory requirement PELLEGRINI, MIRARCHI, Jr., Judge, grounds to believe sess reasonable Judge. Senior driving under the influence. licensee was signif- If the extraterritorial arrest is of no Judge BY OPINION SMITH- icance to the determination of reasonable RIBNER. grounds, then the Court is to determine has Pennsylvania aspect war- the extraterritorial whether this driver’s license remanded remedy suppression. rants the v. De- appeal to this Court here At the time of the events involved Transportation, Bureau partment Licensing, Driver 769 A.2d refusal; operated by owned and Pursuant he raised the claim that Cor- DOT.1 5903(a)(10) poral to Section of the Aviation Miller lacked to invoke 5903(a)(10), was autho- or otherwise to en- DOT Consent Law persons to employ by provisions rized commissioned force of the Vehicle Code be- “police pursu- the as in accor- he not a officer” Governor officers” cause was 1547(a). 21, 1943, § May dance with the Act of P.L. ant to 75 That section Pa.C.S. 469, amended, 1791-1792, drives, §§ provides part person as 71 P.S. to who 4, provide police protection. January operates physical or in actual control of On 1997, Corporal Laurence Miller of the the movement of a motor vehicle shall be Police, Harrisburg Airport International in deemed to have consent to one or given vehicle, sport purpose his marked saw a black Ford more for the chemical tests vehicle, utility initially parked determining which the alcoholic content of blood ramp airport property, abruptly presence on a on or the of a controlled substance go up grounds cross the road and onto a “if a concrete officer has reasonable opposite Corporal person curb on the side. Miller driving, to believe the to have been vehicle, then operating physical followed the which accelerat- actual control speed per ed toward the limit of 55 the vehicle” while miles movement of a motor hour. The vehicle crossed the centerline under the influence of alcohol or a con- leaving airport property. once before trolled substance or both. In the alterna- Cor- poral pursue McKinley argued Corporal Miller continued to the vehi- tive that Miller cle, any authority which crossed the centerline twice lost to enforce the Vehicle more, emergency airport and he then activated grounds. his Code once he left the vehicle, lights. The operated by McKin- agreed Corporal The trial court that ley, approximately traveled of a two-tenths Miller lacked to outside of coming stop roughly mile before to a one- airport territory under Section 1.1 of airport property. half mile from 21, 1943, May Act of added Section 28, 1957, 435, Corporal strong detected a odor the Act of June P.L. 71 P.S. Miller 1791.1, Corporal § of alcohol then McKinley. about Mil- and stated McKinley ler grounds arrested for became whether sufficient existed premises airport the influence of to warrant alcohol or controlled sobriety reasonably after that substance he failed field officer to believe Corporal provided McKinley tests. Miller the re- under the influence. quired Implied warnings Law to The that after court stated it was McKinley, him including informing leaving airport that reasonable Corporal to to a grounds developed. refused submit chemical test for Because operator’s pow- possess blood alcohol content his license Miller did not extraterritorial year. would McKin- ers make an court suspended granted be one test, appeal. ley refused to submit to a chemical On DOT’s this Court suspended majority accepted as result DOT his reversed. The DOT’s year pursuant argument airport for one to 75 that because the consist- Pa.C.S. 1547(b)(1). § ... McKinley timely appealed. buildings ed of “State State Dauphin County” grounds conceded before the trial court 1929, and his 2416 of The Administrative Code of relating facts his arrest ownership, manage- quehanna Regional Airport Authority. In 1998 control and Area Harrisburg McKinley, responsibility Inter- See 564 Pa. at 567 n. 769 A.2d at Airport Sus- 1154 n. 1. national was transferred amended, Further, had incor- legislature 9, 1929, because P.L. as April Act of jurisdiction concept primary porated a which authorized applied, 71 P.S. enactments, court de- pertinent in the to exercise Property Police Commonwealth of extra- authorization in the mu- termined as the the same ex- necessarily should be power are locat- nicipalities buildings where State of the Judicial press. Section 8953 ed. providing Court vacated this Court’s jurisdiction municipal police for statewide and remanded. The order circumstances, apply be- did not in certain Corporal Miller was a concluded first that cause meaning within the of Sec- “police officer” municipal police, and are not Police tion 102 of Corporal that Supreme concluded Court person § 102: “A natural au- McKinley therefore was Miller’s arrest of arrests for viola- by thorized law to make jurisdiction. truly outside his 1791.1, § law.” Pursuant to P.S. tion of this noted employ per- The Court departments may the heads of conflicting to reached appeared or have police buildings to act as officers at Court sons Commonwealth, of an extraterritori- results as to the effect by owned installations rejected In the Court al arrest. Kuzneski persons and so commissioned “shall have was that because he argument a licensee’s powers prerogatives all the and conferred jur- arresting officer’s stopped outside the by upon the law constables of the Com- isdiction, “police offi- the officer was not a Although monwealth.” Code. purposes of the Vehicle held in v. cer” Court had Commonwealth Roose, re- held that the Vehicle Code The Court the test person requesting stop quired to that constables lack influence, not police in fact a officer but did driving under the the was arrest for specific inquiry into whether allow for a court noted that Section 5903(a)(10) make the by allowed law to the officer was authorized the head of DOT Horton, however, airports arrest at issue. provide police protection at and campus police and retain Court determined “perform arrests and collect to arrest a licen- was not authorized arising all fines from infractions of the officer influence outside under the that 71 1791.1 afforded see for law” and P.S. any re- jurisdiction and that power “full to his territorial employees commissioned was to chemical all law fusal to submit make arrests for violations of the upon part inconsequential. of they may any which witness building premises [State] such II overlapping With these or installation.” that Harris- powers, the court concluded Miller Corporal regard to whether With pow- Police had burg International purposes of “police officer” for remained a to arrest for infractions of the Vehicle er Law, refers to DOT Code. Bureau Evans, 20 Pa.Cmwlth. However, Safety v. Supreme Court deter- Traffic There a by 342 A.2d jurisdiction conferred mined that township observed sus- officer from one on legislature in an of a vehicle while pect operation was constrained Airport Police officers stopped the township, and he adjacent according employer agency that of the him for ultimately arrested driver and purposes employment. of their to the driving under the influence of alcohol. authority, campus police of a non-state- suspended pursu- driver’s license was university aided to make arrests. provisions prede- ant to the similar quotes length also at cessor to the Consent Law.2 On University Horton. In that case a appeal argued the driver that the former Pittsburgh sergeant Police observed a car statutory definition of a officer” as stop city fail to at a red traffic light on group peace one of a officers vested street; the vehicle and arrest- with a power required of arrest ed the influ- driver for possess power such where the ar- sustaining ence. This affirmed place. rest took The Court held that the of the driver’s from his fact, arresting officer was an officer in refusing chemical testing. The Court law, not and he acting under full affording police noted that the statute color of authority as a officer. What powers campus police at state-related important factually was that the driv- specifically provided they institutions placed er was that he was should perform exercise their charged with operating a motor vehicle premises their duties on the under the intoxicating influence of liquor, employed facilities which them. The that he was to requested breathaly- take a Court held that 2416 of The Ad- zer test and that he being refused. “Such provide ministrative Code of 1929 did not case, legal there is no defense available authority for the officer to arrest the driv- Evans, to him.” 342 A.2d at 445. influence, driving er for under the refusal to submit to chemical was upon Snyder relies first v. inconsequential. It cited Commonwealth Commonwealth, 178, 163 Pa.Cmwlth. 640 446, Savage, Pa.Super. v. 403 589 A.2d 696 (1994). Carnegie A.2d 490 a There Mellon (1991), in which approved sup- the court University police officer arrested a driver pression of evidence in an from a campus driving on under the influence campus police criminal conviction where a alcohol, and the driver later refused illegal officer observed behavior off cam- appealed chemical The driver in pus pursued and arrested a driver part language on the basis of in Section away campus. 1547(a) of the Vehicle Code that a driver shall given be deemed to have consent to The Court that-in Snyder and and the Court sees analysis testing). from depart

reason to the settled of these cases. Ill underlying issue of whether an ar clear that an Pennsylvania law is driving the influence must

rest for under a officer” need not be support a arrest a entirely proper in order to be in order and lawful arrest perfectly with dif valid has been dealt for chemical request a valid jurisdictions. support In Peo ferently in different proposition corollary of this One ple Krueger, Ill.App.3d v. authority to who has the is that a officer Ill.Dec. 567 N.E.2d 717 not violations does the arrest for Vehicle Code requirement court held that the under purposes “police officer” for cease to be a Implied of the Consent Illinois version of his Law outside the “arrested” meant of Law that driver be jurisdiction.3 territorial arrest, primary her although the stat or lawful and valid not be that an arrest need proposition The The explicitly require such. ute did not support a and lawful to perfectly valid Transportation court cited 3731, relating to provisions of Section argues by analogy that 3. DOT also Code, 3731(c) alcohol or a the influence of of the Vehicle substance, 3731(c), supports Corporal Miller's stalus regardless of whether controlled away although "police officer” as a presence of in the the offense was committed 3731(c) pro- airport property. Section presented argument was not the officer. This powers of addition to other vides that in Court, Court need Supreme and this lo ar- "police officer” is authorized comply it in order not address oifl- any person who the without warrant rest Supreme remand order. Court’s has violaled probable cause to believe eer has develop reasonable may officer relates to the lice valid chemical test operat- posed that a driver is grounds Court to believe question second i.e., her remand, outside his or the extent to which under the influence ing Evans, aspect jurisdiction im- not fatal. extraterritorial territorial (“It requirement makes no difference pacts upon the 342 A.2d at 445 pur- in grounds to be- not been hot possess officer] reasonable had [the ...”); township that a licensee was under the Evans across lines. lieve suit of does holding the Court influence. Kuzneski. so primary limited not alter the legislature McKinley argues that officers; jurisdiction many police for extraterritorial provided could have Con- simply recognizes to the from criminal sent Law cases are different Savage, Police but did not do so. He cites proceedings. suppression the court stated that where evidence of the extraterritorial arrest an Court has Finally, prevent campus police from necessary to of whether already swered municipalities and patrolling surrounding aspect the arrest the extraterritorial usurping municipal police powers. McKin- suppression. remedy warrants the Johnson, v. ley cites Commonwealth specifically held Glass We (Pa.Super.1999), Supe- where engraft the legislature did not intend to rior Court reversed a conviction based exclusionary rule requirements upon park police officer’s citation for ... question. Where onto the statute summary offenses breathalyzer are test] the results of [a empowered expressly the statute when in a criminal being used as evidence felony officers to arrest or such trial, properly pro- excluded in that it is violations or for those caus- misdemeanor fruit of an if it is found to be the ceeding involving contributing to accidents employing illegal arrest. The basis upon He also relies Com- injury or death. Amend- exclusionary rule Fourth Sadvari, 588, 752 monwealth police officials ment situations is to deter (2000) (overturning conviction A.2d conduct for engaging improper in in of driver Delaware violat- where arrest obtaining criminal convic- purpose of statute), and pursuit ed Delaware’s fresh to take tions. the driver refuses Where McCandless, 538 Pa. v. Commonwealth test, that refusal violates breathalyzer a (1994) 286, (suppressing evi- of privilege for the continued a condition municipal pursuit officer’s of dence where proper- vehicle and is operating a motor neighboring municipality violat- driver into suspension as a basis for ly considered jurisdic- municipal police relating ed act guilt The driver’s privilege. of that tion). is not at a criminal offense innocence of suspension proceed- in the license issue cases, however, apply only to These ings. effect of an extraterri of the 180, A.2d at 79 Pa. at 535 Wysocki, in a 517 extra-jurisdictional arrest torial or omitted). (citations there is Accordingly, The Court has stat proceeding. criminal of proof of a refusal requirement no suspen that license ed: “It is well-settled in administrative, suppressed a license testing be not chemical proceedings are sion police offi- suspension proceeding where 550 A.2d at Menosky, in nature.” criminal suspect a viola- probable cause to cer with purposes of enforcement 1374. For of the Vehicle Code Law, of Section po- fact that a tion 3731 Consent

1003 First, v. in Kuzneski Commonwealth his or her territori- made an arrest outside of stated, 595, jurisdiction. For the reasons Pennsylvania, al Pa.Cmwlth. trial court. reverses the order of the (1986), allowance petition A.2d 951 of denied, A.2d 934 ORDER police (1987), although we held March, NOW, day AND this 11th of limita jurisdictional his was outside officer order of the Court Common was, tions, fact, in because he reversed, Dauphin County is and Pleas of 102 of the defined officer as Larry of C. the driver’s McKinley is reinstated. and re arrest of the licensee his sup testing properly quest Dissenting Opinion by Judge subsequent suspension of ported the PELLEGRINI. recent driving privileges. More licensee’s majori- from the respectfully I dissent Department v. ly, though, Horton Internation- ty’s holding (Pa.Cmwlth. 694 A.2d employed Airport (Airport) police al 1997), police officer that where a we held Transportation jurisdiction, he was not outside of his (DOT)1 to make an extra- was authorized the licensee for driv to arrest authorized arrest or an individual influence, and the licensee’s suspi- to submit to chemical testing could refusal to submit to chemical cion of under the influence when suspend license. his stop Airport proper- was made outside not be used ty- so, v. we relied on Commonwealth doing Pa.Super. Savage, 403 Our Court remanded this mat- Superior Court held where clarify jurisprudence our con- ter to us to appropriate evidence was suppression of cerning consequence, a license sus- comply officer failed where pension proceeding, of determination jurisdiction, stat statutorily mandated his underlying police-citizen encoun- with the complied the officer ing, “[h]ad outside the officer’s territorial ter occurred mandate, jurisdiction, including statutory appellee [Sav how the encounter above analyzed purposes should be for the have been age] would never Law, as as the rele- therefore, well was, preju truly arrested and protec- vancy, any, processes noncompliance.” Id. at by the diced proceedings. in criminal tions available determining that in majority holds Transpor- McKinley Department See testing chemical was request whether tation, Pa. important was proper, what was upon a a license based Whether under arrest factually placed driver was breathaly- refusal to submit to a licensee’s autho- officer was that whether the requested by officer who zer test legal arrest was by law to make the rized vehicle outside has the licensee’s in a license sus- not relevant determination has jurisdiction the officer’s that because Concluding pension case. two occa- previously considered on been Mil- (Corporal Corporal Laurence Miller resulting conflicting by this court sions ler) officer, fact, awas outcomes. to the Sus- Airport was transferred manage- national ownership, control and 1. Authority. Regional Airport quehanna Area Harrisburg Inter- responsibility for the arrest, powers of majority adopts our

holding Kuzneski. Petitioner, McCOY, Gerald However, in resolving the conflict be- Kuzneski, tween Horton per- I am

suaded that Horton sets forth the better PENNSYLVANIA BOARD position. An extra-territorial arrest is not AND OF PROBATION improper based on a defect in whether the PAROLE, Respondent. probable officer had cause to make the Pennsylvania. Commonwealth Court of goes authority but to the basic jurisdiction

limited officer to make such an Argued Oct. 2001. where, here, there was more probable than cause to do so. The Gener- Decided March Assembly quite specific al in providing

where these officers had jurisdiction only— property did not autho- —and pursuit” arrests,

rize them to make “fresh

again indicating that it did not want them

to make extra-territorial arrests. Be- jurisdiction police

cause a limited

does not have the to arrest an off-premises

individual and is not covered pursuit,” “fresh juris- is also without

diction an individual to submit Horton,

Moreover, as we held in where

an officer is not authorized to arrest an influence,

individual for

any refusal to submit to chemical Therefore, inconsequential. because

Corporal Miller was not authorized to ar-

rest or to request he submit to

chemical testing, sup- his refusal cannot

port a suspension.2

Accordingly, I respectfully dissent. However, aspect required. 2. As to whether an extra-territorial conviction was that case remedy suppression, distinguishable Wysocki, an arrest warrants the because in majority relies on our Court's Court addressed whether a roadblock con- constitutional; Transportation troopers decision in ducted state Wysocki, challenge did not the licensee whether the legality it wherein held that the of the under- officers had the him lying applicable arrest was not in a license under the influence or him suspension proceeding proof because no submit to chemical notes Kuzneski one or police more chemical tests “if a upon relied Court Evans refute a driv officer has grounds” reasonable to believe police er’s contention that a officer who person operating that the was made a for chemical testing was influence of alcohol. The Court stated “police not a officer” under the Vehicle plain reading a of that subsection Code because was outside his territorial a legislative evidenced intent to trigger jurisdiction. argued The driver that the provisions of Consent Law adoption of a new definition of offi person a legal authority when cer” under Section 102 of the Vehicle Code, amended, arrest has reasonable cause to 102, believe as 75 a as motorist has been while intoxi- “natural person by authorized law to make cated. The Court noted that DOT relied arrests per for violations of law” did not statutory provisions that did not confer mit the courts draw distinctions be 17, 1976, by 2. See former Section 624.1 of The Vehicle Section 7 of the Act of June P.L. 29, 1959, April Act of P.L. as 624.1, formerly repealed 75 P.S. Pa. Wysocki, 517 at law. v. tween officers in fact and officers (1987), Wy contrary position. for the ques noted that there was no The Court stopped at a roadblock duly a driver was officer was socki arresting tion that the drunk up part munici to enforce employed by set and his testing, make He refused pality authorized law to law. and was pursuant to Section suspended only ques The license was arrests within that area. The Code. by law 1547 of the Vehicle was whether he was authorized tion driver’s ar arrest, to consider the legal declined but that was to make unconstitu roadblock was sus gument not relevant a license determination had no bear because that important tional pension case. What of the ease. factually placed on the resolution that the driver was that the term arrest; that it had held the officer was outside his court noted whether predecessor to Section 1547 properly an “arrest” in the jurisdictional limit was issue physical act of referred to the challenging legality in an action raised Depart v. v. of the arrest. See also Luzins Glass 362, 333 Safety, 460 Pa. Transportation, 128 Pa.Cmwlth. Bureau of Traffic saw no and the Court Unlike the secu A.2d 768 result under to reach a different rity Snyder officer in or the constable held reason Roose, Menosky also Com possess authority not to to arrest Section 1547. See monwealth, A.2d Corporal Miller was a officer with Pa.Cmwlth. (1988) (holding that a lawful arrest case is thus present of arrest. The li to a valid driver’s prerequisite than to not a more akin to Evans and Kuzneski Roose, failure to submit to no cense

Case Details

Case Name: McKinley v. COM., DEPT. OF TRANSP.

Court Name: Commonwealth Court of Pennsylvania

Date Published: Mar 11, 2002

Citation: 793 A.2d 996

Court Abbreviation: Pa. Commw. Ct.