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HomeMy WebLinkAbout07-0866NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT MAHMOOD M. SAAND Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO.2007-? `- CIVIL TERM : LICENSE SUSPENSION APPEAL APPEAL OF DRIVER'S LICENSE SUSPENSION AND NOW comes the petitioner, Mahmood M. Saand, by and through his attorney, Nathan C. Wolf, Esquire, and appeals the suspension of his driving privilege and avers as follows: 1. Appellant is Nfahmood M. Saand, an adult individual who resides at 408 William Drive, Shippensburg, Cumberland County, PA, 17257. 2. On or about, November 3, 2006, Appellant allegedly violated section 75 Pa. C.S.§1547(b)(1)(i) after being arrested on the suspicion of driving under the influence. 3. On December 7, 2006, Appellant waived his preliminary hearing before District Justice Vivian J. Cohick 4. Appellant was excused from appearing at his formal arraignment because he is being considered for admission into the Accelerated Rehabilitative Disposition (ARD) program 5. On or about February 1, 2007, Appellant received a notice from the Appellee, the Pennsylvania Department of Transportation, Bureau of Driver Licensing, informing him of his suspension. A true and correct copy of the notice of license suspension is attached hereto as Exhibit "A". 6. Appellant objects to this license suspension on grounds that his failure to provide an adequate breath sample at the processing center was the direct and proximate result of the uncontrolled outbursts of another suspect who was in the processing center at the Cumberland County Prison. 7. Upon information and belief, the woman's outburst was so egregious that she was charged by the Pennsylvania State Police with a misdemeanor charge of disorderly conduct, in violation of the laws of the Commonwealth. 8. Moreover, the Pennsylvania State Trooper who charged Appellant has indicated that until the outburst of the other individual, the Petitioner was completely compliant and cooperative. 9. Furthermore, Appellant did cooperate and provide a breath sample by means of a Portable Breath Test (PBT) at the time of the traffic stop. 10. Appellant is a naturalized citizen and has some difficulty understanding the English language. 11. At the time Appellant was directed to provide the breath sample, he requested the processing center staff and/or the state trooper to explain what they wanted him to do in another way or using other words since the interruption of the other prisoner was so bad that he could not understand what they needed him to do. 12. Appellant submits that his actions do not constitute a refusal to provide a breath sample as required under the Motor Vehicle Code. 13. Appellant likewise submits that the failure of the police and the processing center personnel to provide an atmosphere appropriate for administering the testing lead to the "refusal" by the Petitioner. 14. Appellant submits that but for the circumstances present in the testing site, there would be no alleged refusal and that such a breakdown in the administrative process does not justifya "deemed refusal" and that the suspension is therefore inappropriate and should therefore be vacated. 15. Appellant requests that the Court grant to him a Supersedeas of the suspension pending this appeal pursuant to Section 1550(b)(1) of the Motor Vehicle Code. WHEREFORE, Appellant Mahmood M. Saand, respectfully prays that this Honorable Court issue an order vacating the suspension imposed by the Department or, in the alternative, scheduling a hearing on the foregoing Appeal and granting Appellant a Supersedeas of the suspension pending the outcome of such Appeal along with any additional relief that the Court may deem appropriate and just. Dated: February 15, 2007 Respectfully submitted, WOLF & WOLF, Attorneys at Law Na a fiX. Wolf, Esquire 1 est High Street Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: FEBRUARY 01, 2007 MAHMOOD SAAND WID # 070256187918499 001 473 E KING ST PROCESSING DATE 01/25/2007 DRIVER LICENSE # 23742303 SHIPPENSBURG PA 17257 DATE OF BIRTH 03/23/1970 Dear MR. SAAND: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547B1I of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 11/03/2006: ¦ Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 03/08/2007 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 03/08/2007. You may surrender these items before, 03/08/2007, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of 010.00. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. Passport, marriage certificate, etc.) in order to obtain your photo identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn notarized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: 0 1a? 3 070256187918499 Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, FEBRUARY 01, 2007, of this letter. If you file an appeal in the County Court, the Court will give you a time-stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certified 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 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 03/08/2007. ?9d 3 070256187918499 Sincerely, 9&?- zgot) Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 6:00 p.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us 3J3 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR APPELLANT MAHMOOD M. SAAND Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2007- CIVIL TERM LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that I have, this date, served a true and correct copy of the foregoing appeal upon the following person and in the matter indicated: SERVICE BY CERTIFIED MAIL: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 171042516 Date: ?S 007 Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant C- ° j `fl c z m G Cn -G y NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT MAHMOOD M. SAAND Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee FEa1esMnr? : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2007- 4 G CIVIL TERM : LICENSE SUSPENSION APPEAL ORDER OF CO URT AND NOW this day of February, 2007, upon consideration of the instant Appeal, it is hereby ordered and decreed that this matter be scheduled for hearing on the day of 2007 at Q o'clock, par, at Courtroom , Fourth Floor, Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania. Furthermore, a Supersedeas is granted pursuant to Section 1550(6)1(1) f the Motor Vehicle Code, pending this Court's res lu Oon o this appe fe I c Gxtv-t f 5 ? S c-1 e, l S S 2 e r BY TIE COURT: 9,/A) partment of Transportation, Office of Chief Counsel than C. Wolf, Esquire :e Appellant or the AA--1 N?./ III J C)? EC .C W8 0Z 83.4 LOOZ Ali' ClF uHIOU d 3Nl d0 t MAHMOOD M. SAAND, Appellant v COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007-866 CIVIL TERM LICENSE SUSPENSION APPEAL IN RE: RECORD TO REMAIN OPEN ORDER OF COURT AND NOW, this 17th day of May, 2007, upon consideration of the Appellant's Appeal of Driver's License Suspension, and following an initial period of hearing, which has not yet been completed, the record shall remain open, and counsel are requested to contact the Court's secretary for purposes of scheduling a further period of hearing in the case. It is noted that at the time of adjournment on today's date the Appellee, Commonwealth of Pennsylvania, Department of Transportation, had presented the testimony of one witness, whose testimony had been completed, and had secured the admission of one exhibit, Commonwealth's Exhibit 1. No other exhibits had been identified or admitted, and the Commonwealth was still presenting its case-in-chief. It is noted further that Appellant's counsel, Nathan C. Wolf, Esquire, has requested that the stenographer transcribe and file the notes of testimony from today's proceeding r, Jr L. J. By the Court, S_i ?_ C`j c ,than C. Wolf, Esquire 0 West High Street Carlisle, PA 17013 For Appellant Pennsylvania Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 For Appellee :mae MAHMOOD M. SAAND, Appellant v COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007-866 CIVIL TERM LICENSE SUSPENSION APPEAL IN RE: ORDER FOR TRANSCRIPT VACATED ORDER OF COURT AND NOW, this 17th day of May, 2007, pursuant to further information from the Appellant's counsel in this case to the effect that he does not at this time wish to request a copy of the transcript, the portion of the Order of Court entered earlier on this date requiring that the stenographer transcribe and file the notes of testimony of today's hearing is vacated. than C. Wolf, Esquire 10 West High Street Carlisle, PA 17013 For Appellant G orge Kabusk, Esquire ennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 For Appellee mae A By the Court, }.. ,°-? ? ? c:. -- F?.- :'1 - 1" ?ti.;Y ,.,??ta_ C`,,.i t ?r,? -. ._ rv ? _ _ ? -? ? G ? MAHMOOD M. SAAND, : IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee NO. 07-866 CIVIL TERM IN RE: APPELLANT'S APPEAL OF DRIVER'S LICENSE ORDER OF COURT AND NOW, this 29?' day of May, 2007, a further hearing is scheduled in the above matter for Monday, July 30, 2007, at 10:45 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. _,,/athan C. Wolf, Esq. 10 West High Street Carlisle, PA 17013 Attorney for Appellant Y?eorge Kabusk, Esq. Pa. Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Cent, 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee BY THE COURT, 6C :2 Wd 6Z AN tool ,MCINIGH odd NHL dQ MAHMOOD M. SAAND, Appellant : V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-866 CIVIL TERM IN RE: APPELLANT'S APPEAL OF DRIVER'S LICENSE ORDER OF COURT AND NOW, this 27th day of July, 2007, upon request of Nathan C. Wolf, Esq., attorney for Appellant, and with no objection from George Kabusk, Esq., attorney for Appellee, the hearing previously scheduled in the above matter for July 30, 2007, is rescheduled to Wednesday, October 10, 2007, at 10:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Aathan C. Wolf, Esq. 10 West High Street Carlisle, PA 17013 Attorney for Appellant J , fa'eorge Kabusk, Esq. Pa. Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee VINVAlkSNN3d AlNno =^r4 ' B Nf?J LS :? wJ oc inr Loot iONCHiObd 3HI :10 301:00-ate MAHMOOD M. SAAND, Appellant v COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007-866 CIVIL TERM LICENSE SUSPENSION APPEAL IN RE: APPEAL OF DRIVER'S LICENSE SUSPENSION ORDER OF COURT AND NOW, this 11th day of October, 2007, upon consideration of the Appeal of Driver's License Suspension filed by Appellant in the above-captioned matter, and following a hearing held on May 17, 2007, and October 10, 2007, the appeal is denied, and the suspension of Appellant's driving privilege noticed by the Appellee by a mailing on February 1, 2007, is affirmed. .Nathan C. Wolf, Esquire 10 West High Street Carlisle, PA 17013 For Appellant ,Zeorge Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 For Appellee :mae V By the Court, co .,_? ± - p MAHMOOD M. SAAND, Appellant v COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007-866 CIVIL TERM LICENSE SUSPENSION APPEAL IN RE: APPEAL OF DRIVER'S LICENSE SUSPENSION ORDER OF COURT AND NOW, this 10th day of October, 2007, upon consideration of the Appeal of Driver's License Suspension, and following a final period of hearing in this matter held on this date, the record is declared closed, and the matter is taken under advisement. than C. Wolf, Esquire 10 West High Street Carlisle, PA 17013 For Appellant /eorge Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 C For Appellee :mae By the Court, cn F 5 0- a CJ 1 ? 4 i`d NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT MAHMOOD M. SAAND Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2007-866 CIVIL TERM LICENSE SUSPENSION APPEAL PETITION FOR SUPERSEDEAS DURING PENDENCY OF APPEAL AND NOW comes the petitioner, Mahmood NL Saand, by and through his attorney, Nathan C. Wolf, Esquire, and presents the following petition for supersedeas during the pendency of his appeals to the Commonwealth Court averring as follows: 1. Appellant is Mahmood X Saand, an adult individual who resides at 408 William Drive, Shippensburg, Cumberland County, PA, 17257. 2. On or about, November 3, 2006, Appellant allegedly violated section 75 Pa. C.S.§1547(b)(1)(i) after being arrested on the suspicion of driving under the influence. 3. On December 7, 2006, Appellant waived his preliminary hearing before District Justice Vivian J. Cohick. 4. Appellant was entered into the Accelerated Rehabilitative Disposition (ARD) program on March 30, 2007 and his record was expunged on September 28, 2007. 5. Appellant was notified by the Department of Transportation on February 1, 2007 of the one year suspension being imposed as a result of Appellant's alleged refusal to submit to chemical testing. 6. Appellant filed his License Suspension Appeal at the above term and docket on or about February 15, 2007. 7. This Honorable Court conducted hearings on May 17, 2007 and October 10, 2007 on the License Suspension Appeal. 8. On October 11, 2007 this Honorable Court issued an Order denying the License Suspension Appeal. 9. Contemporaneous with the filing of the instant petition, the Appellant has filed a Notice of Appeal to the Commonwealth Court of Pennsylvania of this Court's Order of October 11, 2007. 10. Appellant believes that the decision in the matter of Broadbelt v. Dept, of Transportation, 903 A.2d 636 (Pa. Cmwlth. 2006) was applicable to the instant matter and should have been sufficient to sustain the appeal. 11. Appellant is seeking relief from this Court in the form of a Supersedeas during the pendency of the Commonwealth Court's consideration of his appeal, so that he may retain his driver's license during said appeal. 12. Unless the instant relief is granted, Appellant would be unable to travel to and from work between Shippensburg and Mechanicsburg during the pendency of the appeal and would thus suffer irreparable harm if his appeal is successful. 13. Appellant believes and therefore avers that there will be no harm to the Appellee if the relief requested is granted. 14. Appellant submits that the issuance of the stay will not adversely affect the public interest. 15. Appellant believes that this Honorable Court is the "court of competent jurisdiction" to make a determination as to his instant petition. 16. Appellant has sought the concurrence of the Department of Transportation in the person of George Kabusk, Esquire in the instant request and no response was received as of the time of filing of the instant petition. 17. Appellant requests that the Court grant to him a Supersedeas of the suspension pending this appeal pursuant to Section 1550(b)(1)(1) of the Motor Vehicle Code. WHEREFORE, Appellant Mahmood K Saand, respectfully prays that this Honorable Court issue an order granting a Supersedeas of the suspension to be imposed by the Department pending the outcome of such Appeal to the Commonwealth Court along with any additional relief that this Court may deem appropriate and just. Dated: November 13, 2007 By: Respectfully submitted, WOLF & WOLF, Attorneys at Law Na n C. , Esquire 10 West Hikh Street "PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLAN'T' MAHMOOD M. SAAND Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2007-866 CIVIL TERM LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, the undersigned, do hereby cenify that I have, this date, served a true and correct copy of the foregoing petition upon the following person and in the matter indicated: SERVICE BY CERTIFIED MAIL: George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Date: 11 13 7 Nathad , Esquire 10 We Street Car ' le A 17013 Su a Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant 0 d ,U CrT v qc MM -? iV C7 t i NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT MAHMOOD M. SAAND : IN THE OUR OF COMMON PLEAS OF Appellant : CUMBER LAND COUNTY, PENNSYLVANIA V. : NO.2007- 66 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENS SUS ENSION APPEAL LICENSING Appellee Notice is hereby given that Mahmood M. Sa Commonwealth Court of Pennsylvania from the on 2007. This Order has been entered in the docket as nt above named, hereby appeals to the entered in this matter on October 11, by the attached copy of the docket entry. tfully submitted, & WOLF By: Esquire November A, 2007 10 W h Stkeet Car ' , PA 17013 (717) 41-4436 Atto ey for Appellant MAHMOOD M. SAAND : IN THE OUR OF COMMON PLEAS OF Appellant : CUMBER COUNTY, PENNSYLVANIA V. : NO.2007- 66 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSE SUS ENSION APPEAL LICENSING Appellee A Notice of Appeal having been filed in this Ordered to produce, certify and file the transcript in the Official Court Reporter is hereby conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. 10 (717) Date: November Y , 2007 'C off, Esquire 41igh Street , PA 17013 1-4436 e Court ID # 87380 y for Appellant MAHMOOD M. SAAND : IN THE OUR OF COMMON PLEAS OF Appellant : CUMBER COUNTY, PENNSYLVANIA V. : NO.2007- 66 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSE SUSP ENSION APPEAL LICENSING Appellee I, Nathan C. Wolf, Esquire, attorney for Ap Rant, o hereby certify that I, this day, served a copy of the Notice ofAppeal upon the following b U. S. ' , postage prepaid, at Carlisle, Pennsylvania, addressed as follows: The Honorabl J. We ley Oler One Courthouse Squire Carlisle, PA 1 013 George Kabus k Esq ' Pennsylvania D epartr nt of Transportation Office of Chie f Co el Third Floor, verfro t Office Center Harrisburg, P 17104 -2516 Counsel for A ppellee Official Court Report er One Courthous e Squ ?re Carlisle, PA 1 013 Date: November 12 , 2007 Cumberland One Courth Carlisle, PA 13 Administrator 4 Wolf form ,PYS511 Cumberland County Civil Case 2007-00866 SAAND MAHMOOD M (vs) PENNSYL Reference No..: Case Type ..... : APPEAL - LICENSE SUSP Judgment......: 00 Judge Assigned: OLER J WESLEY JR Disposed Desc.: ------------ Case Comments ------------- General Index SAAND MAHMOOD M APPELLANT 408 WILLIAM DRIVE SHIPPENSBURG PA 17257 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING FRONT STREET HARRISBURG PA 17104 ***************************************** * Date Entries ***************************************** - - - - - - - - - - - - - FI] 2/15/2007 APPEAL FROM SUSPENSION OF DRI' ESQ FOR PLFF ---------------------------- 2/20/2007 ORDER OF COURT - 02-16-07 - I] SCHEDULED FOR HEARING ON 05-1' COURTHOUSE - A SUPERSEDEAS IS RESOLUTION OF THIS APPEAL TO ' STATUTARILY UNDATED - BY J WE; 02-23-07 ----------------------------- 5/21/2007 ORDER OF COURT - 05-17-07 - I] WESLEY OLER JR J - COPIES MAI' ----------------------------- 5/21/2007 ORDER OF COURT - 05-17-07 - I] PORTION OF ORDER OF COURT EN' THAT THE STENOGRAPHER TRANSCR TODAY'S HEARING IS VACATED - MAILED 05-22-07 ----------------------------- 5/29/2007 ORDER OF COURT - 05-29-07 - I] LICENSE - HEARING 07-30-07 AT - BY J WESLEY OLER JR J - COP ----------------------------- 7/30/2007 ORDER OF COURT - DATED 7/27/0 DRIVER'S LICENSE - HEARING /. 10:30 AM CR 1 - BY J WESLEY 0: ----------------------------- 10/10/2007 TRANSCRIPT FILED - BY J WESLE' ----------------------------- 10/11/2007 ORDER OF COURT - DATED 10/11/ SUSPENSION - UPON CONSIDERATI, SUSPENSION FILED BY APPELLANT 5/17/07 AND 10/10/07 THE APPS, APPELLANT'S DRIVING PRIVILEGE ON 2//1/707 IS AFFIRMED - BY J ' 10/120 ----------------------------- 10/11/2007 ORDER OF COURT - DATED 10/10/ SUSPENSION - UPON CONSIDERATI] SUSPENSION AND FOLLOWING A FI] HELD ON THIS DATE THE RECORD TAKEN UNDER ADVISEMENT - BY J 10/12/07 - - - - - - - - - - - - - - L; ***************************************** * Escrow I: * Fees & Debits Beg Bal P: ho nt IA * * * * i tary's Office Page 1 EALTH OF Filed......... 2/15/2007 Time.........: 11:15 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: ********************************* Attorney Info WOLF NATHAN C * **** ********************************* ST E] ERS ] RE: -07 1 GRAN' HE E: LEY RE: ED 0! RE: ERED BE A] BY J RE:? 10:4! ES K I] 30/07 E J] OLE] 7 - N OF AND L IS NOTI( ESLE' 7 - OF ' N AL P: S DE( WESL: ST E] **** fo= mt s /: TRY - - - - - - - - - - - - - - ICENSE FILED BY NATHAN C WOLF -------------------------------- ORDERED THAT THIS MATTER T 10:30 AM IN CR 1 CUMB CO ED PENDING THIS COURT'S TENT THAT SUCH A SUPERSEDEAS IS LER JR J - COPIES MAILED -------------------------------- RECORD TO REMAIN OPEN - BY J -22-07 -------------------------------- ORDER FOR TRNASCRIPT VACATED - EARLIER ON THIS DATE REQUIRING D FILE NOTES OF TESTIMONY OF WESLEY OLER JR J - COPEIS -------------------------------- PPELLANT'S APPEAL OF DRIVER'S AM IN CR 1 CUMB CO COURTHOUSE ILED 05-29-07 -------------------------------- IS ERESCHEDULED APPELLANT'S TO APPEAL 10/10/07 J - COPIES MAILED 7/31/07 -------------------------------- JR J -------------------------------- N RE APPEAL OF DRIVER'S LICENSE THE APPEAL OF DRIVER'S LICENSE OLLOWING A HEARING HELD ON DENIED AND THE SUSPENSION OF ED BY THE APPELLEE BY A MAILING OLER JR J - COPIES MAILED -------------------------------- N RE APPEAL OF DRIVER'S LICENSE HE APPEAL OF DRIVER'S LICENSE RIOD OF HEARING IN THIS MATTER LARED CLOSED AND THE MATTER IS Y OLER JR J - COPIES MAILED TRY - - - - - - - - - - - - - - ********************************* tion dj End Bal .PYS511 Cumberland County Pro ho Civil Case Print 2007-00866 SAAND MAHMOOD M (vs) PENNSYLV IA Reference No... Case Type ..... : APPEAL - LICENSE SUSP Judgment..... : 00 Judge Assigned: OLER J WESLEY JR Disposed Desc.: ------------ Case Comments ------------- k ary's Office )MMONWEALTH OF Page 2 Filed......... 2/15/2007 Time. 11.15 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: ******* ************* *********** APPEAL LIC SUSP 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 3.00 3.00 .00 ----------------- ------ ------------ 58.50 58.50 .00 ****************************************** ************************************* * End of Case Information ****************************************** ************************************* TiW' FROM RL, ? ?eearva?? 1 I?w?lot? h? g7r-?- .7007 A, LA ? _ _ Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 5012 - 10/99 10/1/99 Commonwealth Court of Pennsylvania www.aopo.org November 16, 2007 RE: Saand v. DOT No.: 2109 CD 2007 Agency Docket Number: 2007-866 Filed Date: November 13, 2007 Notice of Docketing Appeal A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible Attorney Name Party Name Party Type George H. Kabusk, Esq. Bureau of Driver Licensing Appellee Nathan Charles Wolf, Esq. Mahmood M. Saand Appellant Address all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Irvis Office Building Harrisburg, PA 17120 (717) 255-1650 Filings may be made in person at the following address (except on Saturdays, Sundays and holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Sixth Floor Irvis Office Building Harrisburg, PA 17120 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Comonwealth Court shall exit only from the Harrisburg Office. s--a Cn fill, MAHMOOD M. SAAND, Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-0866 CIVIL TERM ORDER OF COURT AND NOW, this 16`h day of November, 2007, upon consideration of the Notice of Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a concise Statement of Matters Complained of on Appeal no later than 14 days after entry of this Order. Nathan C. Wolf, Esq. 10 West High Street Carlisle, PA 17013 Attorney for Appellant BY THE COURT, J George Kabusk, Esq. Assistant Counsel Department of Transportation 3rd Floor, Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee w11_t ? n /? f,??.' vl)yVam f? r t?! F ?`?. AY .Z Yd 61 ?? 3?p _40 MAHMOOD M. SAAND, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 07-0866 CIVIL TERM COMMONWEALTH OF PA, . DEPT. OF TRANSPORTATION, : CIVIL ACTION - LAW BUREAU OF DRIVER LICENSING : Appellee : LICENSE SUSPENSION APPEAL CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL AND NOW, comes the Appellant, Mahmood M. Saand, by and through his counsel, Nathan C. Wolf, Esquire, and in support of his Notice of Appeal, and as directed by this Court's Order of November 16, 2007, avers as follows: 1. The Court erred in denying the driver's license suspension appeal on the basis that the Appellant was not provided a meaningful opportunity to comply with the requirements of the statute because of the conditions and circumstances in the booking center of the Cumberland County Prison, namely the interruptions and distractions caused by another prisoner present at the time the breath test was administered. 2. The Court erred in not sustaining the appeal by applying the guidance presented by the decision of Bmadbelt v. Cmw of Pennsylvania, Dept. of Trans 'p., Bureau of Driver Liven rind 903 A.2d 636 (Pa.Cmwkh, 2006), a copy of which was provided to the Court by the Appellant during argument. 3. Beyond the basis stated above which is based upon speculation only, the Court's error cannot be ascertained with specificity because the reasons for the Court's ruling are vague or not discernable from the record, and the Court has given no indication to this point as to the basis for its decision. WOLF Dated: November . Z,4?, 2007 By: submitted, Nath olf, Esquire 10 st igh Street C 's , PA 17013 S eme Court I.D. No. 87380 Attorney for Petitioner NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PETITIONER MAHMOOD M. SAAND, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 07-0866 CIVIL TERM COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, : CIVIL ACTION - LAW BUREAU OF DRIVER LICENSING : Appellee : LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Nathan C Wolf, attorney for the Appellant, do hereby certify that a true and correct copy of the within STATEMENT OF MATTERS COMPLAINED OF ON APPEAL was served upon the following individuals on the below date by hand delivering or first class mail, as follows: The Honorable J. Wesley Oler One Courthouse Square Carlisle, PA 17013 George H. Babusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Counsel for Appellee submitted, )LF, Attorneys at Law Date: November a, 2007 C. Wolf for the Appellant _r? i`- F CrN 3 Irn I MAHMOOD M. SAAND, : IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent CIVIL ACTION - LAW • ? y?1I NO. 07-9666CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., December 11, 2007. In this driver's license suspension appeal case, Appellant has filed an appeal to the Pennsylvania Commonwealth Court from an order of this court affirming a one-year suspension of his driving privilege based upon a chemical test refusal.' The grounds for the appeal to the Commonwealth Court have been expressed in a statement of matters complained of on appeal as follows: 1. The Court erred in denying the driver's license suspension appeal on the basis that the Appellant was not provided a meaningful opportunity to comply with the requirements of the statute because of the conditions and circumstances in the booking center of the Cumberland County Prison, namely the interruptions and distractions caused by another prisoner present at the time the breath test was administered. 2. The Court erred in not sustaining the appeal by applying the guidance presented by the decision of Broadbelt v. Cmw of Pennsylvania, Dept. of Transp., Bureau of Driver Li[c]ensing, 903 A.2d 636 (Pa.Cmwlth,2006), a copy of which was provided to the Court by the Appellant during argument. 3. Beyond the basis stated above which is based upon speculation only, the Court's error cannot be ascertained with specificity because the reasons for the Court's ruling are vague or not discernable from the record, and the Court has given no indication to this point as to the basis for its decision.2 ' Notice of Appeal, filed November 13, 2007. 2 Appellant's Concise Statement of Matters Complained of on Appeal, filed November 26, 2007. Luz "j '' This opinion in support of the court's order affirming the suspension of Appellant's driving privilege is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an arrest for driving under the influence, Appellant Mahmood M. Saand was transported by Pennsylvania State Police to a booking facility in Cumberland County.3 At the facility, the arresting trooper requested that he submit to a chemical test of his breath, and read him the proper implied consent warning.4 Based upon Appellant's failure to submit to the test, the Pennsylvania Department of Transportation suspended his driving privilege for a period of one year.5 Appellant filed an appeal from the suspension with this court on February 15,2007. 6 A hearing on the appeal was held on May 17, 2007, and October 10, 2007. At the hearing, Appellee, the Department of Transportation, presented the testimony of Pennsylvania State Trooper Kenneth F. Tallman, who arrested Appellant,' and of two booking agents who were present during Appellant's processing at the booking center, Shawn R. Washinger8 and Joshua Sheaffer;9 the Department also presented evidence in the form of a DL-26 [implied consent] Form read to Appellant,10 a transcript of Appellant's processing at the booking 3 N.T. S, Hearing, May 17, 2007. 4 N.T. 9, Hearing, May 17, 2007. ' N.T. 3, Haring, May 17, 2007. 6 Appeal of Driver's License Suspension, filed February 15, 2007. ' N.T. 3, Hearing, May 17, 2007. 8 N.T. 5, Hearing, October 10, 2007. 9 N.T. 29, Hearing, October 10, 2007. 10 Commonwealth's Exhibit l; N.T. 9-10, Hearing, May 17, 2007. 2 center, 11 and a DVD of that processing. 12 Appellant testified on his own behalf at the hearing. 13 The evidence which the court found credible established that Appellant, a professor at a technical institute in Mechanicsburg, Pennsylvania," with a good command of the English language, 15 was read the following information by Trooper Tallman upon his arrival at the booking center at about 12:45 a.m. on November 3, 2007: 1. Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code. 2. 1 am requesting that you submit to a chemical test of breath. 3. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months. If you have prior refusals or have been previously sentenced for driving under the influence. In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000. 4. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.16 11 Commonwealth's Exhibit 2; N.T. 3, Hearing, October 10, 2007. 12 Commonwealth's Exhibit 3; N.T. 8, Hearing, October 10, 2007. 13 N.T. 32, Hearing, October 10, 2007. 14 N.T. 14, Hearing, May 17, 2007; N.T. 32, Hearing, October 10, 2007. 15 N.T. 11, Hearing, May 17, 2007. 16 N.T. 9-10, Hearing, May 17, 2007; Commonwealth's Ex. 1, Hearing, May 17, 2007 (emphasis added). 3 c Appellant signed the Form, acknowledging his receipt of this information. 17 As one of the booking agents explained the procedure for the breathalyzer test, a highly intoxicated woman in a holding cell at the facility yelled at Appellant to "ask for an attorney" and advised him "do not blow in that." 18 For more than seven minutes, during which the breathalyzer instrument "timed out," Appellant professed confusion as to his right to an attorney and failed to submit to the test, 19 permitting the persistent ranting of a drunken prisoner on the issue 20 to prevail over repeated admonitions of a trooper and a booking agent that he did not have a right to an attorney.21 Ultimately, his conduct was deemed a refusal.22 During the subsequent phase of the processing procedure, Appellant apologized to the operator of the instrument, remarking that "I made a mistake."23 Appellant testified on his own behalf that he had refrained from blowing into the breathalyzer as instructed: A Because of her statements, [the intoxicated woman's] statements. Q What do you mean? A Because she asked me not to do it. Q Okay. A The way she was sounding, call your attorney and don't do it. Q Okay. A Don't listen to them, something like that. Q Right. And obviously that went on for more than 10 minutes, correct? 17 N.T. 10, Hearing, May 17, 2007; N.T. 38, Hearing, October 10, 2007. 18 N.T. 12, Hearing, May 17, 2007; N.T. 11, 14, 33, Hearing, October 10, 2007. 19 N.T. 10, Hearing, October 10, 2007. 20 See N.T. 33, Hearing, October 10, 2007; Commonwealth's Exhibit 2, Hearing, October 10, 2007. 21 See N.T. 13, 18, Hearing, May 17, 2007; N.T. 11, 26, 35-36, 39-43,Hearing October 10, 2007; Commonwealth's Exhibit 2, Hearing, October 10, 2007. 22 N.T. 12, Hearing, October 10, 2007. 23 Commonwealth's Exhibit 2, Hearing, October 10, 2007, Transcript of Processing 12. 4 10 A Yes. All the time I was sitting there, yes. 24 Appellant also testified that he ultimately decided he would submit to the test, as indicated by a statement to the agent that "I will listen to you."25 However, by that time he was told it was too late.26 From the evidence, it was apparent that Defendant and the intoxicated prisoner were not acquainted. Subsequent to the hearing, and after considering all of the evidence presented on the issue of the validity of Appellant's refusal, the Court entered the following order, from which Appellant has appealed: AND NOW, this l Ith day of October, 2007, upon consideration of the Appeal of Driver's License Suspension filed by Appellant in the above-captioned matter, and following a hearing held on May 17, 2007, and October 10, 2007, the appeal is denied, and the suspension of Appellant's driving privilege noticed by the Appellee by a mailing on February 1, 2007, is affirmed.27 DISCUSSION The law in the area of license suspensions arising out of a chemical test refusal has been summarized by the Commonwealth Court as follows: In order for PennDot to satisfy its initial burden of proof and make out a prima facie case in an appeal from the suspension of driving privileges for failure to submit to chemical testing, PennDot must establish the following: that the licensee was arrested ... for driving while under the influence of alcohol; was requested to submit to chemical testing; refused to do so, and was warned of the consequences of refusing that test. Regarding the third element, generally, any response from a licensee that is short of an unqualified, unequivocal assent to take the test requested constitutes a refusal and requires the one-year suspension of the motorist's operating privileges. Wilt v. Commonwealth of Pennsylvania, Department of Transportation, 711 A.2d 590, 591-92 (Pa. Commw. Ct. 1998) (citations omitted). "In proving whether a licensee refused to submit to chemical testing, DOT has the burden of showing that the licensee was offered a meaningful opportunity 24 N.T. 33, Hearing, October 10, 2007. 25 N.T. 36, Hearing, October 10, 2007; Commonwealth's Exhibit 2, Hearing, October 10, 2007, Transcript of Processing, 11. 26 Commonwealth's Exhibit 2, Hearing, October 10, 2007, Transcript of Processing 13. 27 Order of Court, October 11, 2007. 5 L to comply with [the chemical test provision of the Vehicle] Code." Broadbelt v. Commonwealth of Pennsylvania, Department of Transportation, 903 A.2d 636, 640 (Pa. Commw. Ct. 2006) (citations omitted). However, "police officers are not required to spend effort either cajoling the licensee or spend time waiting to see if the licensee will ultimately change his mind." King v. Commonwealth of Pennsylvania, Department of Transportation, 828 A.2d 1, 5 n.8 (Pa. Commw. Ct. 2002). Upon the Department's establishment of a prima facie case as aforesaid, the burden shifts to the licensee to prove "that the refusal was not knowing or conscious or that the licensee physically was unable to take the test." Id.; see Pappas v. Commonwealth of Pennsylvania, Department of Transportation, 669 A.2d 504 (Pa. Commw. Ct. 1996). In Broadbelt v. Commonwealth of Pennsylvania, Department of Transportation, 903 A.2d 636 (Pa. Commw. Ct. 2006), the Pennsylvania Commonwealth Court upheld a lower court's rejection of a licensee's position that his failure to submit to a chemical test resulted, in part, from distractive conduct of another person in the room at the time of the request. In holding that the police had fulfilled their obligation to advise the licensee of the requisite information, the Court further concluded that the licensee had been given "a meaningful opportunity to comply with [the chemical test provision of the Vehicle Code] and that his silence constituted a refusal [to submit to the test]." Id. at 641. In the present case, based upon the facts recited above, the Commonwealth, in the court's view, clearly met its burden of showing that Appellant was arrested for driving under the influence of alcohol, was requested to submit to chemical testing, was warned of the consequences of refusing the test, and failed to submit to the test within a reasonable period of time. Notwithstanding Appellant's testimony to the contrary, the court was further of the view that the effective refusal was a consequence not of the absence of a meaningful opportunity to comply with the trooper's request but of his own decision to temporize based on 6 the advice of an intoxicated prisoner with whom he was not acquainted. Finally, it did not appear to the court that the Commonwealth Court's affirmance of the allegedly distracted licensee's suspension in Broadbelt, supra, compelled a different result. Accordingly, the court entered the order, from which Appellant has appealed, affirming Appellee's suspension of his driving privilege. J Xathan C. Wolf, Esq. 10 West High Street Carlisle, PA 17013 Attorney for Appellant Xorge Kabusk, Esq. Assistant Counsel Department of Transportation 3rd Floor, Riverfront Office Cent 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent J 7 BY THE COURT MAHMOOD M. SAAND, Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-866 CIVIL TERM IN RE: PETITION FOR SUPERSEDEAS DURING PENDENCY OF APPEAL ORDER OF COURT AND NOW, this 17th day of December, 2007, upon consideration of Appellant's Petition for Supersedeas During Pendency of Appeal, a Rule is hereby issued upon the Commonwealth, to show cause why the relief requested should not be granted. RULE RETURNABLE within 7 days of service. BY THE COURT, Nathan C. Wolf, Esq. 10 West High Street Carlisle, PA 17013 Attorney for Appellant 00?ies rnauLC George Kabusk, Esq. Pa. Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee r ? C-i '17- C-> , z claw I' MAHMOOD M. SAAND : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2007-866 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER : LICENSE SUSPENSION APPEAL LICENSING Appellee ORDER OF COURT AND NOW this day of , 2007, upon consideration of the instant petition for Supersedeas- during the Pendency of Appeal to the Commonwealth Court it is hereby ordered and decreed that the relief requested is hereby granted, to the extent this Court is authorized to grant such relief pursuant to Section 1550(b)(1) of the Motor Vehicle Code. BY THE COURT: J cc: PA Department of Transportation, Office of Chief Counsel Nathan C. Wolf, Esquire For the Appellant NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 741-4436 ATTORNEY FOR APPELLANT MAHMOOD M. SAAND Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-866 CIVIL TERM , V . Mr ^D' (D ` 1 LICENSE SUSPENSION APPEAL • C) --;?: r,') rn -1 . cn 4M PETITION FOR SUPERSEDEAS DURING PENDENCY F APPEAL AND NOW comes the petitioner, Mahmood M. Saand, by and through his attorney, Nathan C. Wolf, Esquire, and presents the following petition for supersedeas during the pendency of his appeals to the Commonwealth Court averring as follows: 1. Appellant is Mahmood M Saand, an adult individual who resides at 408 William Drive, Shippensburg, Cumberland County, PA, 17257. 2. On or about, November 3, 2006, Appellant allegedly violated section 75 Pa. C.S.51547(b)(1)(i) after being arrested on the suspicion of driving under the influence. 3. On December 7, 2006, Appellant waived his preliminary hearing before District Justice Vivian J. Cohick. 4. Appellant was entered into the Accelerated Rehabilitative Disposition (ARD) program on March 30, 2007 and his record was expunged on September 28, 2007. 5. Appellant was notified by the Department of Transportation on February 1, 2007 of the one year suspension being imposed as a result of Appellant's alleged refusal to submit to chemical testing. 6. Appellant filed his License Suspension Appeal at the above term and docket on or about February 15, 2007. 7. This Honorable Court conducted hearings on May 17, 2007 and October 10, 2007 on the License Suspension Appeal 8. On October 11, 2007 this Honorable Court issued an Order denying the License Suspension Appeal 9. Contemporaneous with the filing of the instant petition, the Appellant has filed a Notice of Appeal to the Commonwealth Court of Pennsylvania of this Court's Order of October 11, 2007. 10. Appellant believes that the decision in the matter of Broadbelt v Dept of Transportation, 903 A.2d 636 (Pa. Cmwlth. 2006) was applicable to the instant matter and should have been sufficient to sustain the appeal 11. Appellant is seeking relief from this Court in the form of a Supersedeas during the pendency of the Commonwealth Court's consideration of his appeal, so that he may retain his driver's license during said appeal. 12. Unless the instant relief is granted, Appellant would be unable to travel to and from work between Shippensburg and Mechanicsburg during the pendency of the appeal and would thus suffer irreparable harm if his appeal is successful. 13. Appellant believes and therefore avers that there will be no harm to the Appellee if the relief requested is granted. 14. Appellant submits that the issuance of the stay will not adversely affect the public interest. 15. Appellant believes that this Honorable Court is the "court of competent jurisdiction" to make a determination as to his instant petition. 16. Appellant has sought the concurrence of the Department of Transportation in the person of George Kabusk, Esquire in the instant request and no response was received as of the time of filing of the instant petition. 17. Appellant requests that the Court grant to him a Supersedeas of the suspension pending this appeal pursuant to Section 1550(b)(1)(1) of the Motor Vehicle Code. V I EREFORE, Appellant Mahmood R Saand, respectfully prays that this Honorable Court issue an order granting a Supersedeas of the suspension to be imposed by the Department pending the outcome of such Appeal to the Commonwealth Court along with any additional relief that this Court may deem appropriate and just. Respectfully submitted, WOLF & WOLF, Attorneys at Law Dated: November 13, 2007 By: Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT MAHMOOD M. SAAND Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-866 CIVIL TERM LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that I have, this date, served a true and correct copy of the foregoing petition upon the following person and in the matter indicated: George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Date: I?A l NathadC. , Esquire 10 Street Car ' le A 17013 Su me Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 MAHMOOD M. SAAND, } IN THE COURT OF Appellant COMMON PLEAS } OF CUMBERLAND COUNTY vs. } CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellee } NO. 07-866 CIVIL TERM ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellee, in the above-entitled matter. /h. Terrance M. Edwards Assistant Counsel Vehicle & Traffic Law Division Attorney I.D. No. 25231 Department of Transportation Office of Chief Counsel Riverfront Officer Center, Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 MAHMOOD M. SAAND, } Appellant VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellee } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 07-866 CIVIL TERM PROOF OF SERVICE I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Entry of Appearance upon the person and in the manner indicated, which service satisfies the requirements of Pa. R.A.P. 121: Certified Mail, Return Receipt Requested; Addressed as Follows: Nathan C. Wolf, Esquire Attorney for Appellant 10 West High Street Carlisle, PA 17013 (717)24 1-4436 r ,^ • • TERRANCE M. EDWARDS Date: December 26, 2007 r.ar nor ?? ? ?? F A w rT Y p y ?.J P RJ L 1 std . 14 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 MAHMOOD M. SAAND, Appellant vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellee } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 07-866 CIVIL TERM ANSWER TO RULE TO SHOW CAUSE TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Bureau), Appellee, by and through its attorney, Terrance M. Edwards, and respectfully submits this Answer to Rule to Show Cause, and avers the following in support thereof: 1. On November 13, 2007, Mahmood M. Saand (Saand), Appellant, filed an appeal of the order entered October 10, 2007, by the Honorable J. Wesley Oler, Jr., Judge of the Court of Common Pleas of Cumberland County, which dismissed Saand's statutory appeal from a one-year suspension of his operating privilege that had been imposed by Appellee Bureau in accordance with Section 1547 of the Vehicle Code, 75 Pa.C.S. §1547 (relating to chemical testing to determine amount of alcohol or controlled substance).' 2. In response to a petition for supersedeas of his suspension filed by Appellant Saand, Judge Oler issued a rule to show cause on December 17, 2007, which was entered on December 20, 2007. In the rule to show cause, Judge Oler directed Appellee Bureau to "show cause why the relief requested should not be granted." 3. In answer to the rule to show cause, Appellee Bureau respectfully submits that Appellant Saand has failed to make "a strong showing that he is likely to prevail on the merits." Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 552, 467 A.2d 805, 808 (1983) (Holding that a litigant who appeals a matter where there is no "automatic" supersedeas must satisfy four conditions in order to be granted a supersedeas. Id., 502 Pa. at 552- 553, 467 A2d at 808-809); Witmer v. Department of Transportation, Bureau of Driver Licensing, 889 A.2d 638, 640 (Pa. Cmwlth. 2005) (Same). On December 11, 2007, Judge Oler issued an opinion in which the Court found that Appellant Saand had refused chemical testing of his breath after being properly warned. As this finding of this Court is amply supported by competent evidence of record, there is virtually no likelihood that Saand will succeed on the merits in his appeal to Commonwealth Court. See Rice v. Compro Distributing, Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006) ("The trial court, as the finder of fact, has exclusive authority to weigh the evidence, make credibility determinations, and draw ' 75 Pa.C.S. §1547(a) & (b) is referred to as the Pennsylvania Implied Consent Law, Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 245 n.4, 684 A.2d 539, 541 n.4 (1996), under which the Department is required to suspend a licensee's operating privilege for at least one year for refusing a police officer's request to submit to chemical testing. Id. reasonable inferences from the evidence presented."); Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003) ("Questions of credibility and conflicts in the evidence are for the trial court to resolve, not our appellate courts. Millili v. Dept of Transp., Bureau of Driver Licensing, 745 A.2d 111 (Pa.Cmwlth.2000). If sufficient evidence exists to support the trial court's findings, we must pay it, as fact finder, proper deference and affirm. Dept of Transp. Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).19). 4. Appellee Bureau also respectfully submits that Appellant Saand has failed to show how the "issuance of a stay will not substantially harm other interested parties in the proceedings." Process Gas, 502 Pa. at 553, 467 A.2d at 809. Cf. Sandler v. Department of Transportation, 2007 Phila. Ct. Com Pl. LEXIS 88 (C.P. Phila. Jan. 26, 2007), slip op. at 9 ("As to the possibility of injury to another party, that would be the Commonwealth in the form of its Department of Transportation. PennDOT, where it has ordered a suspension following all the statutory and regulatory requirements, would be injured by the failure of the trial court to enforce that order. The Common Pleas Court found that PennDOT had carried out its duties properly and that the suspension and fine were not unreasonable."). 5. Appellee Bureau respectfully submits that Appellant Saand has failed to show how the "issuance of a stay will not adversely affect the public interest." Process Gas, 502 Pa. at 553, 467 A.2d at 809. The Bureau respectfully submits that "[t]he suspension of a licensee's operating privileges . . . serves not so much as punishment, but rather serves the remedial goal of protecting the public against the licensee's unsafe driving habits." Ponce v. Department of Transportation, Bureau of Driver Licensing, 685 A.2d 607, 610 (Pa. Cmwlth. 1996), appeal denied, 548 Pa. 641, 694 A.2d 625 (1997). See also Urciuolo v. Department of Transportation, Bureau of Driver Licensing, 684 A.2d 1094 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 747, 690 A.2d 1165 (1997) ("The suspension of one's operating privilege is a remedial sanction that is civil in nature and is designed to protect the public from unsafe drivers." Id., 684 A.2d at 1096); Krall v. Department of Transportation, Bureau of Driver Licensing, 682 A.2d 63, 66 (Pa. Cmwlth. 1996) (Same). The Bureau also notes that "[t]he object of the Implied Consent Statute is to reduce the number of motorists driving under the influence, as the Commonwealth has a compelling interest in protecting its citizens from the dangers posed by drunk drivers. Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992). The Implied Consent Law remains one of the Commonwealth's most effective tools against drunk driving, providing an effective means of quickly denying intoxicated motorists the use of the Commonwealth's highways. Kostyk v. Commonwealth, Department of Transportation, 131 Pa.Commw. 455, 570 A.2d 644 (1990); Hando v. Commonwealth, 84 Pa.Commw. 63, 478 A.2d 932 (1984); Commonwealth v. Charles, 270 Pa.Super. 280, 411 A.2d 527 (1979)." Occhibone v. Department of Transportation, Bureau of Driver Licensing, 542 Pa. 588, 592- 593, 669 A.2d 326, 328 (1995). The Bureau respectfully submits that allowing Saand to continue driving under a stay would defeat the very purposes of the Implied Consent Law, especially that of "providing an effective means of quickly denying intoxicated motorists the use of the Commonwealth's highways." Occhibone, 542 Pa. at 592-593, 669 A.2d at 328. Accordingly, the Bureau respectfully submits that the "public interest" will best be served by denying Saand's application to stay his operating privilege suspension. 6. Finally, Appellee Bureau respectfully submits that Appellant Saand has failed to show that, absent the granting of a stay, "he will suffer irreparable injury." Process Gas, 502 Pa. at 553, 467 A.2d at 808. Saand maintains that he needs to be able to drive in order to get to and from work. However, he has not demonstrated why he could not make alternative arrangements, e.g., having a family member or a co-worker drive him to and from work. In any event, while Saand may suffer some inconvenience in not being able to drive, there is no showing that his inconvenience will be any greater than any of the other driver whose operating privilege is suspended for a violation of the Vehicle Code. 7. Appellee Bureau respectfully submits that it has adequately shown why the relief requested by Appellant Saand should not be granted. Accordingly, this Honorable Court should enter an order denying Appellant Saand's petition for supersedeas of his operating privilege suspension. Process Gas; Witmer; Sandler. Respectfully submitted, 0000 k • Terrance M. Edwards Assistant Counsel Vehicle & Traffic Law Division Attorney I.D. No. 25231 Attorney for Appellee COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 MAHMOOD M. SAAND, Appellant VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY } CIVIL ACTION - LAW } } NO. 07-866 CIVIL TERM PROOF OF SERVICE I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Answer to Rule to Show Cause upon the person and in the manner indicated, which service satisfies the requirements of Pa. R.A.P. 121: Certified Mail, Return Receipt Requested; Addressed as Follows: Nathan C. Wolf, Esquire Attorney for Appellant 10 West High Street Carlisle, PA 17013 (717) 24 -44 6 TERRANCE M. EDWARDS Date: December 26, 2007 Q c (:) rTl r y= . rv n ? ft -.1 ifs' +p? c E5 ? X tiv .yry i c .w.. y i. I le MAHMOOD M. SAAND, Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-866 CIVIL TERM IN RE: PETITION FOR SUPERSEDEAS DURING PENDENCY OF APPEAL ORDER OF COURT AND NOW, this 31St day of December, 2007, upon consideration of Appellant's Petition for Supersedeas During Pendency of Appeal, and of Appellee's Answer to Rule To Show Cause, the petition for supersedeas is denied. Nathan C. Wolf, Esq. 10 West High Street Carlisle, PA 17013 Attorney for Appellant George Kabusk, Esq. Pa. Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee 7 BY THE COURT, VIN - NA d 6 6.101 WV 1 E 330 t00Z AdVI Otiva 20d'd 3HI dO Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland 2109 F 2Q07 to No. 2007-866 Civil in the Commonwealth of Pennsylvania Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Mahmood M. Saand Appellant VS. Commonwealth of Pennsylvania, Departrnent of Transportation, Bureau of DriverLicensing Appellee ** See Certified Copy of the Docket Entries ** CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Mahmood M. Saand VS. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing 2109 CD 2007 2007-866 Civil The documents comprising the record have been numbered from No.1 to 142, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 01/04/2008. 4&W'_e C is R. Lop-, ?th Regina Lebo An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of21 ?p Cumberland in the Commonwealth of Pennsylvania to No. 20009866 Ciiyil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Mahmood M. Saand Appellant VS. Commonwealth of Pennsylvania, Department of Transportation, Bureau of DriverLicensing Appellee ** See Certified Copy of the Docket Entries ** Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 4th 1, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Mahmood M. Saand Plaintiff, and CCOMnwealtn oz: rennsyly? Department of TranW=ation. B irr?au of DriverLicensing Defendant , as the same remains of record before the said Court at No. 07-866 of .i_vi 1 Term, A. D. 19 . set my hand and affixed the seal of said Court 8 day of A. D., WOO Prothonotary 1 Edgar B. Bayley President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualifie of whose acts as such full faith and credit are and ought to be given as well in Courts of judicat as elsew er t the said record, certificate and attestation are in due form of law and made y e prope offic 1 President Ave Commonwealth of Pennsylvania County of Cumberland ss: 1 Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable FdQar B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 4th y of Janu A.D. 4#2008 Prothonotary "C 0 S 0 ti +G N i a ? o. ? A O d 0 Z ' ? o a t? n o o UHt h o ?j p+ F' N 1+? PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2007-00866 SAAND MAHMOOD M (vs) PENNSYLVANIA COMMONWEALTH OF Reference No... Filed........: 2/15/2007 Case Tyyppe..... : APPEAL - LICENSE SUSP Judgment..... 00 Time...... . Execution Date 1:15 0/001/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 21 t 1 i C 0/00/0000 09 C 2007 ------------ Case Comments ------------- gher r .: H Higher Crt 2.: ********************************************************************** ********** General Index Attorney Info SAAND MAHMOOD M APPELLANT WOLF NATHAN C 408 WILLIAM DRIVE SHI,PPENSBURG PA 17257 PENNSYLVANIA COMMONWEALTH OF APPELLEE EDWARDS TERRANCE M DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING FRONT STREET HARRISBURG PA 17104 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - r? g 2/15/2007 EAPP SQEAL FROM SUSPENSION OF DRIVERS LICENSE FILED BY NATHAN C WOLF FOR PLFF I ------------------------------------------------ 2/20/2007 ORDER-OF-COURT---02-16-07---IN-RE:-ORDERED-THAT-THIS-MATTER -------- SCHEDULED FOR HEARING ON 05-17-07 AT 10:30 AM IN CR 1 CUMB CO COURTHOUSE - A SUPERSEDEAS IS GRANTED PENDING THIS COURT'S RESOLUTION OF THIS APPEAL TO THE EXTENT THAT SUCH A SUPERSEDEAS IS STATUTARILY UNDATED - BY J WESLEY OLER JR J - COPIES MAILED 02-23-07 ------------------------------------------------------------------- ?L 5/21/2007 ORDER OF COURT - 05-17-07 - IN RE: RECORD TO REMAIN OPEN - BY J WESLEY OLER JR J - COPIES MAILED 05-22-07 ---------------------------=--------------------------------------- 5/21/2007 PORDER ORTION F OF COURT ORDER 05-17-07 - IN COURT ENTERED EARLIER ON THIS DATE REQUIRING THAT THE STENOGRAPHER TRANSCRIBE AND FILE NOTES OF TESTIMONY OF TODAY'S HEARING IS VACATED - BY J WESLEY OLER JR J - COPEIS MAILED 05-22-07 ------------------------------------------------------------------- 5/29/2007 ORDER OF COURT - 05-29-07 - IN RE:APPELLANT'S APPEAL OF DRIVER'S LICENSE - HEARING 07-30-07 AT 10:45 AM IN CR 1 CUMB CO COURTHOUSE - BY J WESLEY OLER JR J - COPIES MAILED 05-29-07 ---------------------------//---------------------------------------- 7/30/2007 DRIVER'S LICENSE - //HEARING77/30/07NISERESCHEDULED S TO APPEAL 0/10/07 10:30 AM CR 1 - BY J WESLEY OLER JR J - COPIES MAILED 7/31/07 ------------------------------------------------------------------- y - 10/10/2007 TRANSCRIPT FILED - BY J WESLEY OLER JR J ------------------------------------------------------------------- 10/11/2007 ORDER OF COURT - DATED 10/11/07 - IN RE APPEAL OF DRIVER'S LICENSE SUSPENSION - UPON CONSIDERATION OF THE APPEAL OF DRIVER'S LICENSE SP NSION FIL D BY APPELLANT AND FOLLOWING A HEARING HELD ON U17 07 AND 10 10/07 THE APPEAL IS DENIED AND THE SUSPENSION OF PE LANT'S DR VING PRIVILEGE NOTICED BY THE APPELLEE BY A MAILING ON 2 1/07 IS AFFIRMED - BY J WESLEY OLER JR J - COPIES MAILED 10/12/07 ------------------------------------------------------------------- Gf-7 10/11/2007 ORDER OF COURT- DATED 10/10/07 - IN RE APPEAL OF DRIVER'S LICENSE SUSPENSION - UPON CONSIDERRAATIN OF THE APPEAL OF DRIVER'S LICENSE SUSPENSION AND FOLLOWING A FINAL PERIOD OF HEARING IN THIS MATTER HELD ON THIS DATE THE RECORD IS DECLARED CLOSED AND THE MATTER IS TAKEN UNDER ADVISEMENT BY J WESLEY OLER JR J - COPIES MAILED 10/12/07 ----------------------- 1 1/13/2007 PETITION FOR SUPERSEDEAS DURING PENDENCY OF APPEAL - BY NATHAN C WOLF ESQ ------------------------------------------------------------------- ?_?? 11/13/2007 NOTICE OF APPEAL TO COMMONWEALTH COURT FROM ORDER ENTERED 10/11/07 PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2007-00866 SAAND MAHMOOD M (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed......... 2/15/2007 Case Type.....: APPEAL - LICENSE SUSP Time.........: 1:15 Judgment..... : 00 Execution Date 0/001/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------"Case Comments ------------- Higher Crt 1.: 2109 CD 2007 - BY NATHAN C WOLF ESQ Higher Crt 2.: ------------------------------------------------------------------- (o? _ y 11/19/2007 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2109 CD 2007 ------------------------------------------------------------------- ?? s 11/19/2007 ORDER OF COURT - DATED 11-16-07 - IN RE: NOTICE OF APPEAL FILED IN ABOVE-CAPTIONED MATTER - APPELLANT IS. DIRECTED PURSUANT TO RAP 1925(B) TO FILE OF RECORD IN THIS COURT AND TO SERVE UPON THE UNDERSIGNED JUDGE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL NO LATER THAN 14 DAYS AFTER ENTRY OF THIS ORDER - BY J WESLEY OLER JR J - COPIES MAILED 11-19-07 ----------------------------------------------- ------------- 11/26/2007 CONCISE ST TEMENTIOIOMATTERS COMPLAINED OF ON APPEAL - BY NATHAN C ------------------------------------------------------------------- _ 11I 11/28/2007 TRANSCRIPT OF PROCEEDINGS - BY J WESLEY OLER JR J - 10/10/07 ------------------------------------------------------------------- 12/12/2007 OPINION PURSUANT TO PA R A P 1925 - 12111107 IN RE: DRIVERS LICENSE SUSPENSION APPEAL CASE - BY J WESLEY OLER JR J - COPIES MAILED 12/12/07 ------ ------------------------------------------------------=------ 12/20/2007 ORDER OF COURT - 12/17/07 IN RE: PETITION FOR SUPERSEDEAS DURING PENDENCY OF APPEAL RULE IS HEREBY ISSUED UPON THE COMMONWEALTH TO SHOW CAUSE WHY THE RELIEF REQUESTED SIJOULD NOT BE GRANTED - BY J WESLEY OLER JR J - COPIES MAILED 12/20/07 ------------------------------------------------------------ ?1?"J3S 12/27/2007 ENTRY OF APPEARANCE - BY TERRANCE M EDWARDS ATTY FOR APPELLEE ------------------------------------------------------------------- 12/27/2007 ANSWER TO RULE TO SHOW CAUSE - BY TERRANCE M EDWARDS ATTY FOR / L - /y/ APPELLEE ------------------------------------------------------------------- / ).,133 12/31/2007 ORDER OF COURT - 12/3.1/07 IN RE: PETITION FOR SUPERSEDAS DURING PENDENCY OF APPEAL AND APPELLEE'S ANSWER TO RULE TO SHOW CAUSE - THF PETITION IS DENIED - BY J WESLEY OLER JR J - COPIES MAILED 12/31/07 ------------------------------------------------------------------- 1/04/2008 NOTICE OF DOCKET ENTRIES MAILED TO NATHAN C WOLF ESQ AND TERRANCE M EDWARDS ESQ / 70? -_ - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beg Bal Pymts/Adj End Bal ******************************** ******** ****** ******************************* APPEAL LIC SUSP 35.00 35.00 .00 TAX ON APPEAL .50 ,50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 3.00 3.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 106.50 106.50 .00 * End of Case Information TRUE COPY FRCM RECORD In Testimony whereof, 1 here unto set my hand and the seal of said Court at Carlisle, Pa. This ...... ...... day of. <S .. .......... ............ r' Prothonot t File Copy Commonwealth Court of Pennsylvania Kristen W. Brown February 15, 2008 Irvis Office Building, Room 624 Harrishure. PA 17120 717-255-1652 Prothonotary Michael Krimmel, Esq. Chief Clerk of Commonwealth Court Certificate of Remittal/Remand of Record TO: RE: Saand v. DOT No.2109 CD 2007 Trial Court/Agency Dkt. Number: 2007-866 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description trial court record January 7, 2008 1 Date of Remand of Record: ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certific a to our office. Copy recipients (noted below) need not acknowledge receipt. • Signature Date Printed Name e? ? c? ?: ? -r? ?.. -? amt ??, " _ ?? ,?4 ` ? ? ? ° t •? ? } { µ ?? ?T ?i "^St ?s ? ra "? Commonwealth Court of Pennsylvania Kristen W. Brown Prothonotary February 15, 2008 Michael Krimmel, Esq. Chief Clerk of Commonwealth Court Notice of Discontinuance of Action RE: Saand v. DOT Appeal of: Mahmood M. Saand Type of Action: Notice of Appeal No. 2109 CD 2007 Cumberland County Court of Common Pleas Agency Docket Number: 2007-866 File Copy Irvis Office Building, Room 624 Harrisbum. PA 17120 717-255-1652 The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Party Name Party Type George H. Kabusk, Esq. Nathan Charles Wolf, Esq. Bureau of Driver Licensing Mahmood M. Saand Appellee Appellant Certified from the Record FEB 15 2008 and order Exit ?j ?"f'1 .?{te ?- r 1 ' ? ?, 1'? 1 ? A +' .,. .+r?? ? ? ?' ? .,?. ?' • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Mahmood M. Saand vs. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing 2109 CD 2007 2007-866 Civil • µ .: The documents comprising the record have been numbered from No.l to 142, and attached hereto as Exhibit A is a list of the documents correspondingly numbered aid identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 01/04/2008 . Curt' R. Lon ono y Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title