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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
RANDY CERANDO,
:
Appellant
:
:
v.
:
No. 1017 C.D. 1998
:
Submitted: October 9, 1998
COMMONWEALTH OF
:
PENNSYLVANIA, DEPARTMENT
:
OF TRANSPORTATION, BUREAU OF:
DRIVER LICENSING
:
BEFORE:
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JAMES R. KELLEY, Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION BY JUDGE FRIEDMAN
FILED: February 26, 1999
Randy Cerando (Cerando) appeals from an order of the Court of
Common Pleas of Lehigh County (trial court) denying Cerando's statutory appeal
from the Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing's (DOT) suspension of his operating privilege pursuant to
section 1547(b)(1) of the Vehicle Code.1 We affirm.
On May 3, 1997, Officer Wendy Brantley was working at a DUI
checkpoint. When Cerando came through the checkpoint and rolled down his

1 Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. §1547(b)(1), states that DOT shall
suspend the operating privilege of a person for 12 months if that person is placed under arrest for
driving under the influence of alcohol and refuses to submit to chemical testing when asked to do
so.

window, Officer Brantley noticed the odor of alcohol on Cerando's breath.2 In
response to the officer's questions, Cerando admitted that he had "maybe one or
two beers." (R.R. at 28.) Officer Brantley then asked Cerando to perform two
field sobriety tests, which yielded mixed results. The officer also asked Cerando to
take a preliminary breath test; however, in two attempts at this test, Cerando failed
to provide a sufficient breath sample. (Trial court op. at 2-3.)
Officer Brantley then took Cerando to a mobile unit for an Intoxilyzer
test. Officer Brian Lewis, a certified Intoxilyzer 5000 operator, read Cerando the
requisite chemical test warnings and administered the test. (R.R. at 2.) When
Cerando failed to provide a sufficient breath sample in several attempts, Officer
Lewis deemed that Cerando refused to submit to chemical testing. (Trial court op.
at 3.)
By letter dated May 16, 1997, DOT suspended Cerando's operating
privilege for one year because of the May 3, 1997 refusal. (R.R. at 3-4.) On June
5, 1997, Cerando appealed to the trial court, which scheduled a hearing on the
matter. (R.R. at 5-9.) In preparing for the hearing, Cerando subpoenaed the
Allentown Police Department for a copy of the video tape taken of the May 3,
1997 Intoxilyzer test. (R.R. at 10.)

2 The trial court stated that Officer Brian Lewis noticed the odor of alcohol on Cerando's
breath. (Trial court op. at 2.) However, the record indicates that Officer Brantley did so. (R.R.
at 28.)
- 2 -

Michael P. Combs, Captain of Police for the Allentown Police
Department, responded to Cerando's subpoena with a letter dated July 22, 1997.
In that letter, Captain Combs stated:
I am in receipt of your subpoena requesting a copy of the
video tape that was taken on May 2 and May 3, 1997 at
the DUI checkpoint in the 2000 Block of Hamilton
Boulevard. I have been informed that the video camera
that was used at that checkpoint was malfunctioning and
the tape that was made is unusable. The officers at the
checkpoint were unaware of the camera malfunction and
it was not discovered until they went to copy the 8mm
video camera tape on to a full size VHS tape. A new
video camera has been purchased but I have been
informed by our technical people that the tape could not
be salvaged.
(R.R. at 11.)
In August 1997, Cerando filed a motion to dismiss the suspension of
his operating privilege based on the doctrine of spoliation. In the memorandum of
law that accompanied the motion, Cerando explained that the spoliation doctrine
arises out of product liability cases and that the doctrine is applied where the
allegedly defective product is no longer available for inspection as a result of the
plaintiff's conduct. Without the product, there is no evidence to establish the
identity of the product, the nature of the defect or the causal connection between
the product and the plaintiff's injury. See DeWeese v. Anchor Hocking Consumer
and Industrial Products Group, 628 A.2d 421 (Pa. Super. 1993); Roselli v. General
Electric Co., 599 A.2d 685 (Pa. Super. 1991), appeal granted, 530 Pa. 645, 607
A.2d 255 (1992), appeal discontinued, (January 11, 1993). Cerando asked the trial
court to apply the doctrine of spoliation in this case because DOT failed to
- 3 -

preserve the video tape, the only exculpatory evidence available to him. (R.R. at
12-19.) After a hearing, the trial court denied Cerando's motion to dismiss and his
statutory appeal.
The sole issue before us is whether the trial court erred when it
refused to grant Cerando's motion to dismiss DOT's suspension of his operating
privilege based on the spoliation doctrine.3 We hold that the spoliation doctrine
does not apply here.
The spoliation doctrine essentially applies only in product liability
cases where the plaintiff destroys an allegedly defective product that the plaintiff
claims caused an injury. That situation is not present in this case.4
Moreover, contrary to Cerando's claim, the video tape was not the
only potentially exculpatory evidence available to Cerando. For example, Cerando
could have presented the Intoxilyzer printouts; Cerando could have challenged the
certification of the Intoxilyzer operator; and Cerando could have questioned the
certifications of the Intoxilyzer itself.5 However, Cerando failed to do so.

3 Our scope of review is limited to determining whether the trial court's findings of fact
are supported by substantial evidence, whether the trial court made an error of law or whether the
trial court committed an abuse of discretion. Koller v. Department of Transportation, Bureau of
Driver Licensing, 682 A.2d 82 (Pa. Cmwlth. 1996).
4 Neither party here has alleged that a defect in the video tape caused harm to anyone.
Also, DOT has not destroyed the video tape; indeed, the video tape was in the custody and
control of the police department. (See R.R. at 53.)
5 DOT regulations require that breath test equipment undergo simulator tests and periodic
accuracy and calibration tests. 67 Pa. Code §§77.24-77.26. DOT regulations also require the
(Footnote continued on next page...)
- 4 -

Accordingly, we affirm.
_____________________________
ROCHELLE S. FRIEDMAN, Judge
Judge Kelley dissents.

(continued...)
issuance of a certificate of accuracy and a certificate of calibration upon satisfactory completion
of the accuracy and calibration tests. 67 Pa. Code §§77.25(c) and 77.26(d).
- 5 -

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
RANDY CERANDO,
:
Appellant
:
:
v.
:
No. 1017 C.D. 1998
:
COMMONWEALTH OF
:
PENNSYLVANIA, DEPARTMENT
:
OF TRANSPORTATION, BUREAU OF:
DRIVER LICENSING
:
O R D E R
AND NOW, this 26th day of February, 1999, the order of the Court of
Common Pleas of Lehigh County, dated March 9, 1998, is affirmed.
_____________________________
ROCHELLE S. FRIEDMAN, Judge