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Home My WebLink About00-01064 ~- '~ ' "' ' ^ . , ;1',-- ~ -0." 4 t ...;;.; COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW MATTHEW SCOTT MANNING, Petitioner NO. 2000-1064 CIVIL TERM ORDER OF COURT AND NOW, this l ~t day of March, 2000, upon consideration of Petitioner's Petition for Appeal from Order of Department of Transportation Suspending Operator's License Nunc Pro Tunc, a Rule is hereby issued upon Respondent to show cause why Petitioner should not be permitted to appeal his license suspension nunc pro tunc. RULE RETURNABLE within 20 days of service. BY THE COURT, esley Oler, J:.;)', n I ~ 1'ftUl-uJ 3-}{-OO RK3 (") 0> 0 c: 0 -o~ -" ::I: :r::o ~93 )>0 ;;n C''f'J, 2:S; I -.r;:; (J) N :li~ ~z 0 ;.;::0 ." 6~ ~8 ::x '"7 ~ i:'5 2: N ~ ;;! N , We-? George Kabusk, Esq. Assistant Counsel Department of Transportation Motor Vehicle & Traffic Safety Sections 3rd Floor, Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent ., ~...-', Paul B. Orr, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Petitioner :rc ,-'i. ~.- < . .~-, ".-' '"-;'l_'~-'"",,;;" ,,'---,-_~___. ,', '" .-::;,,' --;",-,,-, 'A'-l.'____.;~; ,-"--,f. ", -,'" ,--__~--'s - ',~ -"". c~J' ..,--" " , ~__; ''-;',_ .;1;-,> --, -"-c-'. -, -, 0_,.--. ! . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING STATUTORY APPEALS Respondent, No. S.A. .:2606- /0(.'-/ (J{Jt(-r~ I j< Ii l " I i fc ; VS. MATTHEW SCOTT MANNING Petitioner. ORDER OF COURT I' I' " ~" I AND NOW, this _ day of , 2000, it is hereby Ordered and Decreed J. ~ , , t p; i, l: ~ ! f that the Petitioner, Matthew Scott Manning, be permitted to Appeal his License Suspension, effective December 7, 2010, Nunc Pro Tunc. AND NOW, upon review of the attached Petition for Appeal from Order of Department of Transportation Suspension, it is hereby ordered and directed that a hearing be scheduled for _ day of . 1999, at _ o'clock _ ffi. in Courtroom No. _, Cumberland County Courthouse, Cumberland County, Pennsylvania. J. ---,-, ,-,\-- ',: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING STATUTORY APPEALS Respondent, No. S.A. .2-iTvV - / /) C. 'f &;;:;.p ,- L-.. vs. MATTHEW SCOTT MANNING, PETITION FOR APPEAL FROM ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATOR'S LICENSE NUNC PRO TUNC I ! ~ ~ I ~ , F ~ ~ , , f; l: , F j r; I, t I: I' " r; , I I ~ Petitioner. TO THE HONORABLE JUDGES OF SAID COURT: 1. Your Petitioner, Matthew Scott Manning, is an individual residing at 1820 Mountain Road, Newburg, Cumberland County, Pennsylvania, 17240. 2. On or about January 25, 2000, Petitioner received a Notice from the Pennsylvania Department of Transportation notifying him that his present operator's license, bearing card number 23192804, was being suspended for a period of one year, effective December 7, 2010. A true and correct copy of said notice is attached hereto, made a part hereof and marked as Exhibit "A.", 3. Said Suspension arises out of the Petitioner's alleged chemical test refusal which occurred on or about January 9, 2000. 4. Petitioner has a corresponding criminal preliminary hearing arising out of this incident, which was scheduled for the first time by District Justice Helen B. Shulenberger, to occur on March 2, 2000. made a part hereof and marked as Exhibit "B". ,.~,,"o,- -. _',_"'0;,__' . 0"- -- --"--,""..- ,'- ,::'".( - --,.-.. - . ',.",-~:~'~ -<_c~X':;"i' .~,,-,,-, , , 5. Petitioner had his initial attorney client conference on February 25, 2000 at 0930 hours. 6. Petitioner was unaware that he was required to file this appeal prior to meeting with his attorney. 7. Petitioner alleges that a third party was driving the vehicle and will offer evidence to that I !, I 1 " i ~ i' !i assertion at the time of the hearing. 8. Petitioner has suffered serious head and facial injuries and alleges that a knowing and conscious chemical test refusal could not have occurred on January 9, 2000. 9. Petitioner respectfully request permission to proceed with this Appeal Nunc Pro Tunc, as I: ~ I I t there will be no prejudice to the Commonwealth by allowing this Appeal which is less than twenty-four (24) hours late, but was in fact immediately filed within six (6) hours, of the Defendant becoming aware of his suspension, after his initial client conference with Counsel. WHEREFORE, your Petitioner respectfully request that this Honorable Court allow this Nunc Pro Tunc appeal to proceed, and in the interim, this Honorable Court enter a stay of the suspension of Petitioners operating privileges pending a hearing of this appeal. Respectfully submitted, Date: 2 11.5 { f)D ~ICES OF PAUL BRADFORD ORR " Paul Bradford Orr, Esquire Attorney for Petitioner 50 East High Street Carlisle, PA 17013 (717) 258-8558 Supreme Court ill No. 71786 "~" -~-'" VERIFICATION I verifY that I am the petitioner and that the statements made in the foregoipg Petition are true and correct. I understand that false statements herein are made s).Ibject to the penalties of Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. DATE: )/~5 /00 fe14.)~ ' Matthew Scott Man~itioner ,;..0.'.;;,,__, ""0'...."'...:; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING STATUTORY APPEALS Respondent, No. SA vs. MATTHEW SCOTT MANNING, Petitioner. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Petitioner's PETITION FOR APPEAL FROM ORDER OF SECRETARY OF TRANSPORTATION SUSPENSION OF OPERATOR'S LICENSE NUNC PRO TUNC was served by Certified Mail upon the following: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Date: "L lL~(()() P2 Paul Bradford Orr. Esquire -; '.,.-, , --~ '_c_'.';_,.:;;_ "-,-,'" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 JANUARY 25, 2000 MATTHEW SCOTT MANNING 1820 MOUNTAIN RD NEWBURG PA 17240 000186117960966 001 01/18/2000 23192804 09/13/1972 LICENSE IN BUREAU Dear Motorist: As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL on 01/09/2000, your driving privilege is being SUSPENDED for a period of 1 YEAR(S). The effective date of suspension is 12/07/2010, 12:01 a.m. **********~********************************************************* IWARNING: If you are convicted for driving while your license is I Isuspended, the penalties will be: not less than 90 days imprison-I Iment and a 1,000 fine and an additional 1 year suspension. I **********~********************************************************* The ab~ve mentioned sanction is in addition to any pre- v ious1Y:ls~UEld._~Rct:lan (5) . APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 3D days of the mail date of this letter, JANUARY 25, 2000. If you file an appeal in the County Court, the Court will give you a time-stamped certified COpy of the appeal. Send this time-stamped cer- tified copy of the appeal by certified mail to: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL THIRD FLOOR, RIVERFRONT OFFICE CENTER HARRISBURG, PA. 17104-2516 {XHrBIT "~II "--.'_-<->o~" "-~".,,,,-. ,~,-~__ ,'_,"_~'. '~, __<__ _,~,~. -o--,,,,_,,~,,-,-,.-,; ,'-',._'__ --.,,';'~ -;;c'-,;,' "'-",. ~ 0001B6117960966 Sincerely, ~~,~ :-';-.."';;I':~-: r, ,,;.. ~ _,_ _ - '~ Rebecca L. Bickley, Director Bureau of Driver Licensing S~ND FEE/LICENSE/DL-16LC/TO: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7:00 IN STATE OUT-OF-STATE TOO IN STATE TOO OUT-OF-STATE AM TO 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 , ,...,.,",_,1 ." ~"' ". 'H'-' -,-' -'- _~._ ,;,,_~_" .' -'-1_ --''''''' w- ,," ~-~-.:j,,;-:~I ,,-- p,,-,' - . COMMONW~ALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND .. NOTICE OF PRELIMINARY HEARING Mag. Dlst. No,; 09-3-02 COMMONWEALTH OF OJ Name: Hon. HELEN B. SHULENBERGER Address, P.O. BOX 155 27 W. BIG SPRING AVENUE NEWVILLE, PA T",phone, (717) 776 - 3187 17241 PENNSYLVANIA MATTHEW S. MANNING 1820 MOUNTAIN ROAD NEWBURG, PA 17240 VS. DEFENDANT: NAME and ADDRESS iMANNING, MATTHEW SCOTT 1820 MOON'l'AIN ROAD NEWBURG, PA 17240 L Docket No.: CR-0000019 - 00 Date Filed: 2/04/00 OTN: F 177960-6 --, --l &~- ~ Charnels): 75 53731 SSA1* DRIVING UNDER THE INFLUENCE 75 51543 55A DRIVING UNDER SUSPENSION 75 53309 551 DRIVING ON ROADWAYS LANED FOR TRAFFIC NOTICE TO DEFENDANT A complaint has been filed charging you with the offense(s) set forth above and on the attached copy of the complaint. A preliminary hearing on these charges has been scheduled for: Date: 3/02/00 Place: DISTRICT COURT 09-3-02 P.O. BOX 155 Time: 9:30AM 27 W. BIG SPRING AVENUE NEWVII,LE, PA 17241 If you fail to appear at the time and place above, a warrant will be issued for your arrest. At the preliminary hearing you may: 1. Be represented by counsel; 2. Cross-examine witnesses and inspect physical evidence offered against you; 3. Call witnesses on your behalf other than witnesses to testify to your good reputation only, offer evidence on your behalf and testify; 4. Make written notes of the proceeding, or have your counsel do so, or make a stenographic, mechanical or electronic record of the proceedings. If you cannot afford to hire an attorney, one may be appointed to represent you. Please contact the office of the district justice for additional information regarding the appointment of an attorney. If you are disabled and require assistance, please contact the Magisterial District office at the address above. If you have any questions, please call the above office immediately. A-f .--oa Date -:&_ .6 >,J..t_4--b" d~ My commission expires first Monday of January, 2006. , District Justice SEAL DATE PRINTED: 2~08/00 /.2. II ;; K H:r:.B J:.T I lid ?LAINT SIGNED: 2/04/00 AOPC 629-97 I.. ) " C) 0 Q c,:: CJ " ';;"'.... -,., - "'T] C ") ~ rn [:'1 -).; Z 2:: i'-) t.J;! <.J , -, c;: -1:J ),; , L':" , - j;-; 1._- t".,,) ~....,. :':::1 t:- , -<: -< m ~ ~~ ",' - MATTHEW SCOTT MANNING, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLANDCOUNT~ PENNSYLVANIA v. No. 2000-1064, CIVIL COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL ORDER AND NOW, this J.... L{ ft. day of , 2000, upon tf1.1 7J I' l consideration of the Department's Response to Rule to Show, this Court fmds that the appeal was not filed and perfected within the thirty (30) days allowed by law. Accordingly, the license suspension appeal is quashed and dismissed for want of jurisdiction. The Department of Transportation, Bureau of Driver Licensing, is hereby ordered to reinstate the suspension which is the subject of this appeal. BY THE COURT (") c rg~ Z::C' ZC" (/)~~ -<.c_ C) DISTRIBUTION: George H. Kabusk, Esquire, PermDOT, Office of Chief Counsel, Riverfront Office Center-3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 Paul B. Orr, Esquire, 50 East High Street, Carlisle, P A 17013 -I - ..Mr., c' () C) YTl ::?l~ .-... 1~:'"' ::-0 .,12~ ~~1 ~-;::-: ~'~ _..l -0 ~~B ::~ :::-; f:J C,.,) ;~:"'irn ~ :::> - ,p ?~ J . ?~XP Il.i 'd c.J ~+- ~~ ~, ~':' . MATTHEW SCOTT MANNING, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. No. 2000-1064, CIVIL COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION'S RESPONSE TO RULE TO SHOW CAUSE AND NOW comes the Department of Transportation (hereinafter referred to as "Department") by and through its attorney, George H. Kabusk, Assistant Counsel, and hereby responds to the Order of Court dated March 1, 2000, as follows: 1. The Department of Transportation notified the petitioner by notice dated January 25, 2000, that as a result of his violation of Section 1547 of the Vehicle Code, Chemical Test Refusal, on January 9, 2000, his driving privilege was being suspended for a period of one year effective December 7,2010. 2. On February 25, 2000, the petitioner, Matthew Scott Manning, filed a Petition for Appeal Nunc Pro Tunc from a notice of suspension dated January 25, 2000. 3. On March 1,2000, an Order was issued upon the Department to show cause why the petitioner should not be permitted to appeal his license suspension nunc pro tunc. CiWIOI ~ I ~~" . 4. Mr. Manning's appeal is untimely. 5. An appeal of a license suspension must be filed within thirty days of the mailing date of the Department's Notice of Suspension. See 75 Pa. C.S.{l1550 and 42 Pa. C.S. {l{l5571, 5572; Bye v. Department of Transportation, Bureau of Driver Licensing, 147 Pa. Commw. 205, 607 A.2d 325 (1992). 6. Failure to file the appeal within the thirty-day appeal period deprives the court of jurisdiction to entertain the merits of the case. See Department of Transportation, Bureau of Motor Vehicles v. Shemer, 157 Pa. Commw. 380, 629 A.2d 1063 (1993), appeal denied, 536 Pa. 635, 637 A.2d 294 (1993), (appeal quashed when filed one day after the expiration of the 30 day appeal period.); Kulick v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 1148 (Pa. Cmwlth. 1995), appeal denied, 544 Pa. 616, 674 A.2d 1077 (1996). 7. An appeal nunc pro tunc may only be allowed when there is proof of extraordinary circumstances involving fraud or breakdown of administrative or judicial system which causes the late filing. Maxion v. Department of Transportation, Bureau of Driver Licensing, 728 A.2d 442 (pa. Cmwlth. 1999); Kulick v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 1148 (Pa. Cmwlth. 1995), appeal denied, 544 Pa. 616,674 A.2d 1077 (1996); Department of Transportation, Bureau of Traffic Safety v. Rick, 75 Pa. Conunw. 514, 462 A.2d 902 (1983). 8. The petitioner's alleged reason for allowance of appeal nunc pro tunc, that reason being he was unaware that he was required to file an appeal prior to meeting with his attorney, is not an extraordinary circumstance involving fraud or the breakdown of the system meriting granting a nunc pro tunc appeal. ,>SiW'.~ ~ ~ o~, . WHEREFORE, the Department of Transportation respectfully requests that the Petitioner's request for relief be denied and the appeal be quashed. Respectfully submitted, Jt-0K~c George H. Kabusk Assistant Counsel Department of Transportation Riverfront Office Center 11 0 1 South Front Street Harrisburg,PA 17104-2516 (717) 787-2830 Dated: March 20, 2000 " L...... "- ,-~,.-,~, ''"' ?~~, "" "~.. . - - ,~ 1], .. MATTHEW SCOTT MANNING, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLANDCOUNT~ PENNSYL VANIA v. No. 2000-1064, CIVIL COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL VERIFICATION I verify that the statements made in the Department of Transportation's Response to Show Cause are true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Date: March 20, 2000 J,yK.b~C Assistant Counsel Department of Transportation Riverfront Office Center-3rd Floor 11 0 1 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 ,,~~ ~-,~ ,'~ ~i\J, . . MATTHEW SCOTT MANNING, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 2000-1064, CIVIL COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I hereby certifY that I am this day serving a copy of the Department of Transportation's Response to Show Cause upon the person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania Rules of Civil Procedure: By first class mail, prepaid, addressed to: Paul B. Orr, Esquire 50 East High Street Carlisle, PA 17013 Date: March 20, 2000 j'Jc~"" ~L Assistant Counsel Department of Transportation Riverfront Office Center-3rd Floor 110 I South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 , (") c: <- -ofr! m,~, z:H :z:c: w2~?: n :<::>..j ;;;'0 ~3 :z: ::<! ~ .. o o :J: -p.. "" N o o "T' ,-j ;ri~ -..m ~~JO .'.... I ~:'<Q 'T \1 ? ,;1;1 ;:W"l. J c:)rn :;;l ::JJ -~ > :z: '!? '" (}'l