Feathers v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

I dissent from the conclusion of the majority to reverse the trial court’s judgment in this appeal, and specifically dissent from the majority’s misconstruction of the issue, error in shifting the burden of proof, recasting of the facts, and reaching a decision on the basis of an issue which was never raised before the trial court, and therefore, waived by the appellant, Jerry Feathers.

The following recital of the facts is taken from the opinion of the trial judge, Judge *1363Wilbur H. Rubright, which summarizes the stipulation of facts agreed upon at the de novo hearing. At that hearing the…