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HomeMy WebLinkAbout97-05403 ,I: " " ~ , , ~ I' ", ' , ,'l i' , " " ~ ~ " " ~ I ~ ~ i" , , , , 'I " 1,1 III " " '" " " " ',I , " " .' I; " ,,' ,'I' " , ' ,', " , , , ..:) .~ ~ " ", " ,I, " ,," -", ~.""'.".' " ',,\ , .' ' ,- , , ,'" " 'I, " I :",;,1 ,I, j,'! '/ " 'I I, I' , , " , , " " " " " , , II " , , , .,. d, ''',.. tc ('\: ~~ , . ~~ , .. , . ,-. .".!' " ~~Jq ';;1 r,..I;",' " :"I:: , rr' , it, . " I. : I~" J' (..ll'l 1./', c; (~~ ~: I I . UI" , .JI)1 ...", ". IL (n; , " I c.::J .. ti ,... d (f'I ", v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN'rY, PENNSYLVANIA , NOI RICHARD P. CUMMINGS, Petitioner :i I COMMONWEALTH OF PA, PA DEPT. , OF TRANSPORTATION, BUREAU OF DRIVERS LICENSING, Respondent APPEAL NUNC PRO TUNC PETITION INEFFECTIVE ASSISTANCE OF COUNSEL LICENSE SUSPENSION APPEAL DBFBNDANT'S PBTITION FOR LEAVE TO FILE APPEAL NUNC PRO TUNC AND NOW, comes the Petitioner, Richard P. Cummings, by and I through his attorney, Allen C. Welch, Esquire, and petitions this' Honorable Court as follows I 1. Petitioner is Richard P. Cummings who resides at 616 North Second Street, Wormleysburg, Cumberland County, Pennsylvania 17043. 2. Petitioner received a Notice dated August 11, 1997, that, , as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privilege was being suspended for a period of one year, effective suspension date Septelnber 15, 1997, at 12101 a.m. A true and correct copy of the Notice is attached as Exhibit "A". 3. Petitioner had a right to appeal his suspension within thirty days from the date of the Notice, August 11, 1997. 4. Petitioner immediately gave the Notice to his attorney, Patrick F. Lauer, Jr., with instructions to file an appeal on his behalf . jl ,! 5. Through no fault of Petitioner, Patrick F. Lauer, Jr., ! neglected to file the appeal within the required thirty day period. I In fact, an appeal was filed by Patrick F. Lauer, Jr., on September, 17, 1997. See attached Exhibit B. 6. Patrick F. Lauer, Jr., contacted Petitioner to inform him that he had negligently failed to file hie license suspension I " appeal within the proper time limit. Petitioner immediately ! retained undersigned counsel to file this Petition for Leave to , file an Appeal Nunc Pro Tunc. 7. Petitioner will be severely prejudiced if permission to file an appeal nunc pro tunc is not granted as he will automatically loee his driving privileges for one year. B. The Commonwealth will not be prejudiced if permission to file an appeal nunc pro tunc is granted since ordinarily an automatic supersedeas is granted when appeals are timely filed and only a short time has elapsed since the expiration of the thirty days. WHEREFORE, for the reasons set forth above, Petitioner respectfully requests this Honorable Court to allow Petitioner to file a Notice of Appeal nunc pro tunc in the above captioned matter. ---- ---- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION lureeu of Driver Licenling Herrilburg, PA 1712:5 AUGUST 11, 1997 ---- ---- RICHARD P CUnnINGS ~lb N ~ND STRttT WORnLEVSBURG PA 17D~3 '7~lb~lD1731~1~ 001 DlI/D~/:.,.t7 lS'~lIDSll DU~S/1'S3 D..r Motorist I As e result of your violation of Section 1547 of the Ve- hicle Code, CHEMICAL TEST REFUSAL on 07/27/1997, your driving privilege is being SUSPENDED for a period of 1 YEAR(S). In order to cOIIIPly with this sanction you are required to return any current driver's license, learner's perlllit and/or te.porary drivar's license (calllera card) in your possession no later than the effective date listed. If you cannot COIII- ply with the require.ents stated above, you are required to sub.it a DL16LC Fora or a sworn affidavit stating that you ara aware of the sanction against your driving privilege. Failure to comply with this notice shAll result in this Bu. reau referring this .atter to the Pennsylvania State police for prosecution under SECTION 1571(8)(4) of the Vehicle Code. Although the law Mandates that your driving privilege is un- der suspension even if you do not surrender your license, Cradit will not begin until all current driver's license product(S), the DU6LC For., or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The effective date of suspension is 09/15/1991, 12101 a... .................................................................... \WARNING, If you are convicted for driving while your 1icenle is I Iluspended, the penaltias will be' not less than 90 days i.prilon-I Iment and a 1,000 fine and an additional 1 year suspension. I .................................................................... 'I I . ',' I I I I 1 NOI 1 0 1,0 n !:;;; -J " 1 ~ ~ ~ 1 LICBNSB SUSPBNSION~r.,;; ~ m"l] I APPBAL ?:r'...,r- 1 ti~ -.I ?3~ ~rj ~ ~ ....,.;C' :K ~ APPEAL PROM SUSPBRSION OF OPBRATOR'S PRI~B '::' ~ ~ '...J . AND NOW comes the Appellant, Richard P. Cummings,O by~ and I' Ii through his attorney, Patrick F. Lauer, Jr., Bsquire, and COMMONWBALTH or PBNNSYLVANIA PBNNSYLVANIA DBPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICBNSING, Appellee IN THB COURT or COMMON PLBAS or CUMBBRLAND COUNTY, PBNNSYLVANIA v. RICHARD P. CUMMINGS, Appellant respectfully avers the following 1 1. Appellant resides at 616 North Second Street, Wormleysburg, Cumberland County, Pennsylvania 17043. 2. The Appellant received a Notice dated August 11, 1997, that, as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privilege was being suspended for a period of one year, effective suspension date Septomber 15, 1997, at 12101 a.m. A true and correct copy of the Notice is attached as Bxhibit "A". 3. The Appellant submits that the police officer lacked a reasonable basis to request Appellant to submit to a chemical test. 4. The Appellant submits th~t he did not intelligently and voluntarily refuse to submit to a chemical test. ~ 6." .~ ,il ~ il ~ Inl i i i -...J F b. L661 9 0 l:JO€~ f!' . , . , , (~ ,~ ~ ~ ~ VI, ~ ~~ ~ &' { ~"~ , .\ \ ~ ~,~ ~, ~ (') ..0 (') ~~; _I .."1 ., t' ~ r.-, ,..j n n ,..., "F , I '" 'n (, 10"" ,:::1 '9- , . ,J:B ;t'" :J,; ':.~,~') .', -, '::jrn ,...., -. .. .... ;:) ~) \'Q ..... , 4. On July 27, 1997, Petitioner was driving his car in which he had three passengers south on Route 15. At approximately 3110 a.m. he was stopped by a Lower Allen Township police officer. S. The police officer alleged that petitionel;' had been speeding and upon the officer's request, Petitioner provided his licenee and registration to the officer. 6. The police officer requested Petitioner to exit his vehicle stating that he suspected that Petitioner had been consuming alcoholic beverages. However, the officer admitted in his police report that he was unable to smell any odor of an alcoholic beverage prior to Petitioner exiting his vehicle. 7. Prior to exiting his vehicle, Petitioner responded that he was the designated driver. He did not inform the officer that he had consumed any alcohol and he did not commit any acts in the presence of the officer which could have been construed as evidence of impairment from alcohol. 8. When Petitioner exited the vehicle he informed the officer that he would not take any coordination tests because of a prior bad experience in Highspire involving an officer's treatment of him in front of his young daughter. 9. Based on the speeding and the refusal to perform coordination tests, Petitioner was arrested and taken in to perform a chemical test which he allegedly refused. , I ,I " 'I , I, ! Ii 'I. " , , II !I observations that Petitioner had bloodshot syes, slurred speech, 'i was weaving while he was driving, pulled his car over unsafely, or 10. The officer's report does not oontain any referenoe to , , II any other observations which could have been construed as evidence of impairment from alcohol. III. APPLICABLE LEGAL STANDARD FOR ISSUANCE OF A STAY 11. A stay or supersedeas is warranted if (1) the Petitioner . i makes a strong showing that he is likely to prevail on the merits I (2) The Petitioner has shown that without the requested relief, he I The issuance of a stay will will suffer irreparable injury; (3) II I not substantially harm other interested parties in the proceedings; (4) The iuuance of a stay will not adversely affect the public 1 interest. pennavlvania Public Utilitv Commission v. Process Gas i '; Consumers GCOUD, 467 A.2d 805 (pa. 1983), citing the criteria set :1 I, forth in Virainia Petroleum Jobbers Association v. Federal Power ,I Ii Conunission, 259 F.2d 921 (D.C.Cir.1958). i 12. When confronted with a case in which the other three II " : faotors strongly favor interim relief, the court may exercise its disoretion to grant a stay if the petitioner has made a substantial case on the merits. Process Gas, supra, adopting refinement of Virainia Jobbers standard set forth in Washinqton MetroDolitan Are4 ' ,Transit Conunission v. Holidav Tours. Inc., 559 F.2d 841 II : (D.C.Cir.1977). , ,I Ii I I A. PBTITIONER IS LIKELY TO PREVAIL ON THE ME~ 13. Peti tioner' s alleged speeding and refusal to perform I ooordination tests without any other evidence of impairment is not II sufficient reasonable grounds to stop and arrest Petitioner for driving under tho influence of alcohol. 14. The officer arrested Petitioner and requested a chemical test on the basis that Petitioner was speeding late at night and would not perform coordination tests which he is not required by law to perform, not because of any observed behavior indicative of alcohol consumption. Com. v. Dixon, 596 A.2d 286 (Cmwlth. 1991). 15. Since any suspicion of the officer that Petitioner had been I II 'I driving under the influence of alcohol is unreasonable, petitioner has a strong likelihood of success on the merits of his appeal nunc pro tunc. B. APPELLANT WILL SUFFER IRREPARABLE INJURY WITHOUT A STAY 16. If a stay is not granted, Petitioner will have served a substantial term of suspension prior to a decision on the merits of his case. 17. If Petitioner is successful on obtaining the right to file an appeal nunc pro tunc and is then successful on that appeal, his license would have been erroneously suspended for a substantial period of time. C. THE ISSUANCE OF A STAY WILL NOT SUBSTANTIALLY HARM OTHER INTERESTED PARTIES IN THE PROCEEDINGS .... COMMONWEALTH OF PENNSVLVANIA DEPARTMENT OF TRANSPORTATION Bureeu 0' Driver Lieensing Herrisburg. PA 17125 AUGUST 11. 1997 ..-- ---- RICHARD P CUnnINGS ~1~ N ~ND STR[[T WORnL[VSBURG PA 170~3 '7~1~~101731~1~ 001 01l/0~/l"7 lS'~IlOS6 OU~S/1'S3 D..r Motorist I As a result of your violation of Section 1547 of the Ve- hicle Code. CHEMICAL TEST REFUSAL on 07/27/1997. your driving privilege is being SUSPENDED for a period of 1 YEAR(S). In order to co.plY with thh unction you are required to return any currsnt driver's licensa. learner's permit and/or tnporary driver's licanse (calllera card) in your possession no later than the effective date listed. If you cannot com- plY with the require.ents stated above, you are required to subdt a DLl6LC Forll or a sworn affidavit stating that you are aware of the sanction against your driving privilege. Failure to co.ply with this notice shall result in this Bu- reau referring this .atter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Vehicle Code. Although the law .andates that your driving privilege is un- der suspension even if you do not surrender your licensa. Credit will not begin until all current driver's license product(s). the DLl6LC corlll, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT. WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAVS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE. YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The effective dato of suspension is 09/15/1997, 12101 a.lII. .................................................................... IWARNING. If you are convicted for driving while your license is I Iluspended. the penalties will be. not leiS than 90 days i.prison-I I.ent and a 1,000 fine and an additional 1 year suspension. I .................................................................... !gl Ilil i i L661 9 0 laO. , " I,' (') J'l r , (.. - I 'r) .' ....) .,.. , . I r r' ,:".-t I '~J :".; I I . 'J .' '" I', j';' ),.\) r.'. '. , :;t : , . - ~J 0:'. (' ) ..... '':'1:. I ;', - , :,1'1"1 ;~ .. I :" ,. :'J:I u;.o -< ",' , , " " , , . "... " 'II .' ! 'I. " " " I , '. " COSTOPOULOS. FOSTER e. FIELDS A'rToIINIlV. AND COUNIELLOR. A" LAW 111 M....RKET .TREET PO, .0)( 222' LEMOYNE. PENNSYLVANIA 17043 1991 l#OCT' ~ ~ . .. I ~ \(i~~"J,~~ ,~~~",~. '4"" ,'. ",~ .oW . . ;' ,." "'; , ',i,.:;'- ~"'.?'"- - ~..- . ...n_.... , .,".- ,-' I I " I I COMMONWEALTH OF PA, PA DEPT. I OF TRANSPORTATION, BUREAU OF I DRIVERS LICENSING, I Respondent I v, I IN THE COURT OF COMMON PLEAS I OF CUMBERLAND COUNTY, PENNSYLVANIA I I I I NOI RICHARD P. CUMMINGS, Petitioner APPEAL NUNC PRO TUNC PETITION INEFFECTIVE ASSISTANCE OF COUNSEL LICENSE SUSPENSION APPEAL PETITION FOR STAY PENDING APPEAL NUNC PRO TUNC AND NOW comes the Appellant, by and through his attorney, Allen C. Welch, Esquire, and respectfully represents the following in support of this Petition I I. PROCEDURAL BACKGROUND 1. Petitioner received a notice from the Pennsylvania Department of Transportation dated August 11, 1997, which notified him that effective September 15, 1997, his driving privilege was being suspended for a period of one year as a result of his violation of Section 1547 of the Pennsylvania Vehicle Code, Chemical Test Refusal. See Exhibit A. 2. On September 17, 1997, Petitioner's former counsel, Patrick F. Lauer, Jr., filed an untimely Appeal from Suspension of Operator's Privilege. 3. Undersigned counsel has filed a Petition for Leave to File an Appeal Nunc Pro Tunc simultaneously with this Petition. II. FACTUAL BACKGROUND i 4. On July 27, 1997, Petitioner was driving his car in which he had three passengers south on Route 15. At approximately 3110 ! a.m. he was stopped by a Lower Allen Township police officer. s. The police officer alleged that Petitioner had been speeding and upon the officer's request, Petitioner provided his lioense and registration to the officer. 6. The police officer requested Petitioner to exit his ve:licle stating that he suspected that Petitioner had been consuming alcoholic beverages. However, the officer admitted in his police report that he was unable to smell any odor of an alcoholic beverage prior to Petitioner exiting his vehicle. 7. Prior to exiting his vehicle, Petitioner responded that he was the designated driver. He did not inform the officer that he had consumed any alcohol and he did not commit any acts in the presence of the officer which could have been construed as evidence of impairment from alcohol. B. When Petitioner exited the vehicle he informed the officer. that he would not take any coordination tests because of a prior bad experience in Highspire involving an officer's treatment of him in front of his young daughter. 9. Based on the speeding and the refusal to perform coordination tests, Petitioner was arrested and taken in to perform a chsmical test which he allegedly refused. I I, I 10. The officer's report does not contain any reference to , II I' observations that Petitioner had bloodshot eyss, slurred speech, I I I was weaving while he was driving, pulled his car over unsafely, or i any other observations which could have been construed as evidence of impairment from alcohol. III. APPLICABLE LEGAL STANDARD FOR ISSUANCE OF A STAY 11. A stay or supersedeas is warranted if (1) the Petitioner makes a strong showing that he is likely to prevail on the merits; (2) The Petitioner has shown that without the requested relief, he will suffer irreparable injury; (3) The issuance of a stay will not substantially harm other interested parties in the proceedings; (4) The issuance of a stay will not adversely affect the public interest. Pennsvlvania Public Utilitv Commi.ssion v. Process Gas Conaumers GrouD, 467 A.2d 805 (Pa. 1983), citing the criteria set forth in Virqinia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.1958). 12. When confronted with a case in which the other three factors strongly favor interim relief, the court may exercise its -liscretion to grant a stay if the petitioner has made a substantial case on the merits. Process Gas, supra, adopting refinement of VirClinia Jobbers standard set forth in Washinqton MetroDolitan Area Transit Commission v. Holidav Tours. Inc., 559 F.2d 841 (D.C.Cir.1977) . Ii A. PETITIONER IS I,IKELY TO PREVAIL ON THE MERITS 13. Petitioner's alleged speeding and refusal to perform ooordination tests without any other evidence of impairment is not I sufficient reasonable grounds to stop and arrest Petitioner for driving under the influence of alcohol. 14. The officer arrested Petitioner and requested a chemical test on the basis that Petitioner was speeding late at night and would not perform coordination tests which he is not required by law to perform, not because of any observed behavior indicative of alcohol consumption. Com. v. Dixon, 596 A.2d 286 (Crnwlth. 1991). 15. Since any suspicion of the officer that Petitioner had been driving under the influence of alcohol is unreasonable, Petitioner has a strong likelihood of success on the merits of his appeal nunc pro tunc. B. APPELLANT WILL SUFFER IRREPARABLE INJURY WITHOUT A STAY 16. If a stay is not granted, Petitioner will have served a substantial term of suspension prior to a decision on the merits of his case. 17. If Petitioner is successful on obtaining the right to file an appeal nunc pro tunc and is then successful on that appeal, his license would have been erroneously suspended for a substantial period of time. C. THE ISSUANCE OF A STAY WILL NOT SUBSTANTIALLY HARM OTHER INTERESTED PARTIES IN THE PROCEEDINGS I RICHARD P. CUMMINGS, I IN THE COURT OF COMMON PLEAS Petitioner I OF CUMBERLAND COUNTY, PENNSYLVANIA I I I v. I NOI I I I II COMMONWEALTH OF PA, PA DEPT. I APPEAL NUNC PRO TUNC PETITION OF TRANSPORTATION, BUREAU OF I INEFFECTIVE ASSISTANCE OF COUNSEL DRIVERS LICENSING, I LICENSE SUSPENSION APPEAL Respondent I CERTIFICATE OF SERVICE I, Allen C. Welch, Esquire, hereby certify that a true and correct copy of the foregoing APPELLANT'S PETITION FuR STAY PENDING APPEAL was sent to the following counsel of record by placing a copy of same in the united States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Harrisburg, PA 17104 BY: Allen C. Welch, Esquire COSTOPOULOS, FOSTER & FIELDS B3l Market Street/Box 222 Lemoyne, PA 17043 Phonel (717) 761-2121 PA Supreme Ct. I.D. No. 34962 ATTORNEY FOR PETITIONER DATED I 10 l .... COMMONWEALTH OF PENNSYLVANIA DEPART"ENT OF TRANSPORTATION Bureeu 01 Driver Licensing Herrisburg, PA 17125 AUGUST 11, 1997 ..."'. .... RICHARD P CU""INGS ..lo.. N i!ND STREET WOR"LEVSBURG PA lo7043 '7i!],....100lo73lo..1oi! DOlo 0&/011/],"7 loS'''&OS& 0i!/i!S/lo'S3 Dear Motorist I As a result of your violation of Section 1547 of the Ve- hicle Code, CHEMICAL TEST REFUSAL on 07/27/1997, your driving privilege is being SUSPENDED for a period of 1 YEAR(S). In order to comply with t.his sanction yoU are required to return any current driver's license, learner's permit andlor temporary driver's license (camera card) in your possession no later than the effective date listed. If you cannot com- ply with the requirements stated above I you are required to subllit a DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privilege. Failure to comply with this notice ShAll result in this Bu- reau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571 (a) (4) of the Vehicle Code. Although the law mandates that your driving privilege is un- der suspension even if you do not surrender your 1icenu, Credit will not begin until all current driver's license product(s), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau, WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION, The effective date of suspension is 09/15/1997, 12101 a,II. .................................................................... tWARNING, If you are convicted for driving while your license is I I suspended, the penalties will be: not less than 90 days illprison-I '.ent and a 1,000 flne and an additional 1 year suspension, I .................................................................... q 1 ' I ,I 'I, , I' ,II I ,> ,.1', , , , 'II. I , I I /, I I (j) OCT 0 6 I9Sl ~ CQ8TOPOULOS, FOSTER 81 FIELDS ATTOIINIVI AND COUNllELLORI AT LAW 131 MARKIIt ITRIEIET. PO.IOY. au LIEMOYNE, PENNSYLVANIA 170..3 I' ;ii<lV,'ifH-.t!1;W/l(..l lW"""',...---.,. " " ~ .';".o;..':_.~,__._._. , , ,-.. 4. On July 27, 1997, Petitioner was driving his car in which he had three passengers south on Route 15. At approximately 3110 a.m. he was stopped by a Lower Allen Township police officer. 5. The police officer alleged that Petitioner had been , i I speeding and upon the officer's request, Petitioner provided his il II II I I license and registration to the officer. 6. The police officer rsquested Petitioner to exit his vehicle stating he Petitioner had been euspscted that that consuming alcoholic beverages. However, the officer admitted in his police report that he was unable to smell any odor of an alcoholic beverage prior to Petitioner exiting his vehicle. 7. Prior to exiting his vehicle, Petitioner responded that he was the designated driver. He did not inform t~e officer that he had consumed any alcohol and hs did not commit any acts in the presence of the officer which could have been construed as evidence of impairment from alcohol. 8. When Petitioner exited the vehicle he informed the officer that he would not take any coordination tests because of a prior bad experience in Highspire involving an officer's treatment of him in front of his young daughter. 9. Based on the speeding and the refusal to perform coordination tests, Petitioner was arrested and taken in to pet"forrn a chemical test which he allegedly refused. .~ I' 'I I I' obmv.tio", th.t P.tit10"" h.d blood.hot 'yee, dumd .pee,h, 10. The officer's report does not contain any reference to was weaving while he was driving, pulled his car over unsafely, or any other observations which could have been construed as evidence of impairment from alcohol. III. APPLICABLE LEGAL STANDARD FOR ISSUANCE OF A STAY 11. A stay or supersedeas is warranted if (1) the Petitioner makes a strong showing that he is likely to prevail on the merits; (2) The Petitioner has shown that without the requested relief, he will suffer irreparable injury; (3) The issuance of a stay will not substantially harm other interested parties in the proceedings; (4) The issuance of a stay will not adversely affect th~ public interest. ~nsvlvania Public Utilitv Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983), citing the criteria set forth in Virainia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.l958). 12. When confronted with a case in which the other three factors strongly favor interim relief, the court may exercise its discretion to grant a stay if the petitioner has made a substantial case on the merits. Process G~, supra, adopting refinement of Vi:rainia Jobbers standard set forth in Washinaton Metropolitan Area Transit Commission v. Holidav Tours. Inc., 559 F.2d 841 (D.C.Cir.1977) . --.. COMMONWEALTH OF PENNSVLVANIA DEPARTMENT OF TRANSPORTATION Burllu of Drivlr Licensing Hlrrisburg, PA 17125 AUGUST 11, 1997 .-.. .--. RICHARD P CUMMINGS "J," N 2ND STREET WORMLEYSBURG PA 17043 '721b"101731"12 001 06/04/1''17 15'1b6056 02125/1'153 Dur Motorist 1 As I result of your violation of Sectlon 1547 at the Ve- hicll Code, CHEMICAL TEST REFUSAL on 07/27/1997, your driving privilege is being SUSPENDED for a period of 1 VEAR(S). In order to complY with this sanction you ere required to return Iny current driver's license, learner's permit and/or temporery driver's license (cemera card) in your possession no liter than tho effective date listed. If you cannot com- ply with the requirements stated above, you are required to sub.it I DLl6LC Form or a sworn affidavit stating that you arl eWlre of tha sanction against your driving privilege. Failure to comply with this notica shall result in this Bu- reeu referring this matter to the Pennsylvania State police for prosecution under SECTION 1571(a)(4) of the Vehicle Code. Although the llw mandetes that your drivlng privilege is un- der suspension even if you do not surrlnder your license, Credit will not begln until all current driver's license product(s), the DLl6LC Form, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAVS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The efhctive date of suspension is 09/15/1997, 12101 a.m. .................................................................... IWARNINGl 11 you are convicted for drivlng while your license ls I Isuspended, the pena1tios will he: not less than 90 days imprison-I I.ent end e 1,000 flne end In additional 1 year suspenslon. I .................................................................... 1lt.."It"l (;) CHIIIICAL TlllllNQ WARNINGI AND REflORT Of' Rf;fUSAL TO SUBMIT TO CHEMICAL TESTINO AS AUTHORIZED BY I!IDI1mII!m OF THE VEHICLE CODE (COMMERCIAL MOTOR VEHICLE) NAill 'illS' L:: IIMJ ADOIII" CIIY DIIIYIR NUllIIR IUIE Wa.. CIIV Iloolg 0.- _ICllac'- ""pi ...., W... "al_Ila.."".1lotng Camold _..l~'.......-l SECTION 1613. CHEMICAL TESTING WARNINGS I I Mt fVlJJU&1ng ":' !.~ ~I to. thumIc..W W., 01 . IbIw.". blood 01 ~ (If'oft lhoout. ... dwJrng ... J I h ..m~ l)J~. '" oMcef.lOlnIonn..au Ihtl..-.oe W'OU ....Of*.tng. CMV. Ii ,uurvlJ..1O ,ubnMI k) ........h...mt.... kt,l, ..'*~*"""o ~. ..,1 be oaqual,hed for . ,""mum punud of 0fW ~., , .... apolQ_, ''''''1 '"'" 1Il.........rou ....'..."""_Ilg/lll ot..erou In a___... ..."..... ...__....""" III dltmul .'IIng"-'" "'P-d......n1law 5_"..", "'" em nol haw a nghlIoCOOlI." WI" aiawy.. Of...""'" _ p"alll 1oNng'" _... 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The ,."'.. _ ....IN. 'ann I. not. ,,'u.. _..".llOfte chefNalLIIL You mull "'II gift themotoriet WI opportunI"...... .hImkaI tul"" rwlntnt "'" tom, . ..... tndlvtdu8l... DlKM uti" .,... tor operating. cO,""lfwd-' moltOr ftNc" .t\1" under ~ lnfIuMcI.. MGifta Ot. con..OiI... MIIIMt "''''11'I110 s.cllon ~nt o'lte Vthkle Code, you mull"lO compl'" 1M"''''' 1Nd, of Ihl, tonn. 0ffKM s.gne",. __.______..__.__,_..__.~. lu S AI AIt swe ~ IU'tHOI4( WI ! "" 0" ~ ~ , _I.' 0.' S :! E " . 0 A SIaN IN PIIESENCE 01' NOTARY z L "'[All 0Maw N..... (Typeor-P"nl) " Badg. Numbef ."_" Phone (__..) JunsdicbOn MIlling ~tll AODHIONAL IN'ORIIATION If NO' THE SAllE Cll'FICER WHO WI'NESSED THI REfUSAL: N'mt 01 AHI1Uh'lg 0"11.." AdO'.." of AlUulng QtlI(.Ut Pt\one Numbof 01 Amtung Off..:. L.._) _.__._..__________._.__..,_. I' It"Ier. I VlduOI.? IYol or No)____ If VII. name 01 cullCdlan _Md_.oI__Iy'_wa._tod nnd phone numbor ( _'__ _ I __ THIS 'ORM MAV II DUPLICATED ~O~;;~;:~UPPLlI' OP T" POIlM IMYII';:\ Sf~U~ED BV COMPUTING FORIIIONllA 'j.~ 4. , On July 27, 1997, Petitioner was driving his car in which he had three passengers south on Route 15. At approximately 311Q a.m. he was stopped by a Lower Allen Township police officer. 5. The police officer alleged that Petitioner had been speeding and upon the officer's request, Petitioner provided his license and registration to the officer. 6. The police officer requested Petitioner to exit his vehicle stating that he suspected that Petitioner had been II consuming alcoholic beverages. However, the officer admitted in his police report that he was unable to smell any odor of an alcoholic beverage prior to Petitioner exiting his vehicle. 7. Prior to exiting his vehicle, Petitioner responded that he was the designated driver. He did not inform the officer that he had consumed any alcohol and he did not commit any acts in the presence of the officer which could have been construed as evidence of impairment from alcohol. 8. When Petitioner exited the vehicle he informed the officer that he would not take any coordination tests because of a prior bad experience in Highspire involving an officer's treatment of him in front of his young daughter. 9. Based on the speeding and the refusal to perform coordination tests, Petitioner was arrested and taken in to perform a chemical test which he allegedly refused. I: I II 10. The officer's report does not contain any reference to observations that Petitioner had bloodshot eyes, slurred speech, was weaving while he was driving, pulled his car over unsafely, or any other observations which could have been construed as evidence of impairment from alcohol. III. APPLICABLE LEGAL STANDARD FOR ISSUANCE OF A STAY 11. A stay or supersedeas is warranted if (1) the Petitioner makes a strong showing that he is likely to prevail on the merits; (2) The Petitioner has shown that without the requested relief, he will suffer irreparable injury; (3) The issuance of a stay will not substantially harm other interested parties in the proceedings; (4) The issuance of a stay will not adversely affect the public interest. Pennsvlvania Public utilitv Commission v. Process Gas Consumers GrouP, 467 A.2d 805 (pa. 1983), citing the criteria set forth in Virainia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.l958). 12. When confronted with a eaSEl in which the other three factors strongly favor interim relief, the court may exercise its discretion to grant a stay if the petitioner has made a substantial case on the merits. Process Gas, supra, adopting refinement of virainia Jobbers standard set forth in Washinaton MetroDolitan Area Transit Commission v. Holiday Tours. Inc., 559 F.2d 841 (D.C.Cir.1977) . A. PETITIONER IS LIKELY TO PREVAIL ON THE MERITS 13. Petitioner's alleged speeding and t'efusal to perform coordination tests without. any other evidence of impairment is not sufficient reasonable grounds to stop and arrest Petitioner for driving under the influence of alcohol. 14. The officer arrested Petitioner and requested a chemical test on the basis that Petitioner was speeding late at night and would not perform coordination tests which he is not required by law to perform, not because of any observed behavior indicative of alcohol consumption. Corn. v. Dixon, 596 A.2d 286 (Cmwlth. 1991). 15. Since any suspicion of the officer that Petitioner had been driving under the influence of alcohol is unreasonable, Petitioner has a strong likelihood of success on the merits of his appeal nunc pro tunc. B. APPELLANT WILL SUFFER IRREPARABLE INJURY WITHOUT A STAY l6. If a stay is not granted, Petitioner will have served a substantial term of suspension prior to a decision on the merits of his case. 17. If Petitioner is successful on obtaining the right to file an appeal nunc pro tunc and is then successful on that appeal, his license would have been erroneously suspended for a substantial period of time. C. THE ISSUANCE OF A STAY WILL NOT SUBSTANTIALLY HARM OTIIER INTERE~!LfARTIES IN THE J:J!.OCEEDlwm .-.- --.. COMMONWEALTH OF PENNSVLVANIA DEPARTMENT OF TRANSPORTATION Bur.aU of Driver Licensing Harrisburg, PA 17125 AUGUST 11, 1997 .......- ---- RICHARD P CUMMINGS "1" N 2ND STREET ~ORMLEVSBURG PA 17043 '721bbl01731b12 001 06/04/1'1'17 15'1b8056 Oi!l25/1'153 Dear Motorist I As a result of your violation of Sectlon 1547 of the Ve- hicle Code, CHEMICAL TEST REFUSAL on 07/27/1997, your driVing privilege is being SUSPENDED for a period of 1 YEAR(S). In order to complY with this sanction you are required to return any current driver's license, learner's permit and/or temporary driver's license (camera card) in your possession no later than the effective date listed. If you cannot com- plY with the requirements stated above. you are required to sub..it a DL16LC Form or a sworn affidavit stating that you ere aware of the sanction against your driving privilege. Failure to comply with this notice shall result in this Bu- reau referring this matter to the Pennsylvania State police for prosecution under SECTION 1571(a)(4) of the Vehicle Code. Although the law mandates that your driving privilege is un- lieI' suspension even if you do not surrender your license, Credit will not begin until all current driver's license product(s), the DLl6LC Form, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The effective date of suspension is 09/15/1997, 12,01 a.m. .................................................................... IWARNING, If you are convicted for driving whl1e your license is I Isuspended. the penalties will be: not less than 90 days imprison-I I..ent and a 1.000 fine and an additional 1 year suspension. I .................................................................... " , , " " " " , , I "' c> C-I \(,1 C I ~i' ..l 1\ ! ,~, t: '-..i,l' ",'>') ,! I " ,-1 , f',;J I " , I I' " l'" L ,~ ) .il .. . ., , ~ ,., illl '.., ,. \ :", '_n ',:',j . ,;." ..<; ...... 'I ~ '.' ~ " " ~ ' , ~. , I p.., " ~ Iv '" 0- .... .0 . ..J :'t> -.. 97-5403 CIVIL TERM The Vehicle Code at 75 Pa,C,S, Section 1550 titled "Judicial review," provides: (a) General rule,--Any person denied a driver's license or whose operating privilege has been recalled, canceled, suspended, revoked or disqualified by the department shall have the right to appeal to the court vested with Jurisdiction of such appeals by or pursuant to Title 42 (relating to Judiciary and judicial procedure), The Judicial Code at 42 Pa,C,S, Section 5571 (b) provides, In pertinent part: [a]n appeal from a , , , government unit to a court, , , muet be commenced within 30 days after the entry of the order from which the appeal Is taken, " (Emphasis added,) Section 5572 of the Judicial Code titled "Time of entry of order," provides In pertinent part: The dats of service of an order of a government unit, which shall be the date of mailing If .ervlce I. by mall, shall be deemed to be the date of the entry of the order for the purposes of this subchapter, (Emphasis added,) On October 2, 1997,52 day. after the mailing of the notice of the license suspension, Richard Cummings through his current attorney, filed the within petition at 97-5403 for leave to file an appeal nunc pro tunc from the license suspension, A hearing was conducted on that petition on December 1,1997, Attorney Lauer testified that he met Cummings sometime in the beginning of August Cummings had been charged with driving under the Influence but had not yet received the notice of the suspension of his operating privilege for falllrlg to submit to a chemical test Lauer discussed the implications of the refusal with Cummings, On a later date, Cummings brought Into Lauer's office the funds for his representation and the paperwork on the suspension of his driving privilege, Lauer -2- 97-5403 CIVIL TERM testified that It was the policy in his of1lce that Items dropped off by clients should be brought to his attention Immediately, Notwithstanding, Lauer testified that his secretary put the suspension notice In Cummings' file and It did not reach his desk for calendaring, He discovered the paperwork the day before he filed the appeal from the license suspension. 1 In Riddle v. Commonwe.lth, Department of Tranlportatlon, 136 Pa, Commw, 508 (1990), a licensee appealed from an order of a trial court quashing his appeal from the suspension of his driving privilege by the Department pursuant to the Vehicle Code at 75 Pa,C,S, Section 1547 for his refusal to take a blood alcohol test. The appeal was filed thirty-three days after the Department mailed the licensee notice of the suspension, The licensee claimed that his attomey was negligent for filing the appeal three days late, Therefore, he maintained that he should have been allowed to present evidence of his attorney's negligence that would have warranted nunc pro tunc relief, The Commonwealth Court held that"Because timeliness Is jurisdictional the trial court was without authority to act and properly quashed Licensee's appeal." The Court concluded: The thirty day period within which a license suspension appeal must be commenced cannot be extended absent a showing of extraordinary circumstances which are equivalent to fraud or a breakdown In the operations of the court through a default of Its officers, Department of 1, Attorney Lauer also testified that the District Justice dismissed the driving under the Influence charge because there was no probable cause for the arrest. At a preliminary hearing, a District Justice determines whether there is a prima facie case, The District Justice does not conduct a suppression hearing, .3. " 97.5403 CIVIL TERM Tranaportatlon v. Lefever, 111 Pa,Commonwealth Ct 105, 533 A,2d 501 (1987), Licensee has failed to show the existence 01 such circumstances. The averments of Ineffective assistance and negligence on the part of Licensee's original attorney are Insufficient to establish either fraud or a breakdown In the court's operations. In Riddle, which Involved the negligence of an attorney In failing to file a timely appeal, the Commonwealth Court distinguished the decision of the Supreme Court of Pennsylvania In B... v. Commonw.alth of Penn.ylvanla, 485 Pa, 256 (1979), In Ba.., the Court permitted an appeal which had been untimely filed because 01 the non-negligent conduct of an attorney, The lacts were: Appellant decided to Ille an appeal In this Court Irom the order of Commonwealth Court, Appellant's counsel prepared the necessary appeal papers which were typed up by his secretary and were ready for filing on Friday, July 7, six days prior to the expiration 01 the time allowed lor filing the appeal, The papers were placed In a folder on the corner 01 the secretary's desk, along with other papers to be taken to the courthouse for filing, During the late afternoon of that Friday, the secretary became sick and left work, She was out sick during the entire following week, returning to work on Monday, July 17, Although the normal office procedure was to have a secretary check the desk of a secretary who was ill, In this case the secretary who was III was the one who routinely did this checking, The III secretary, in her deposition concemlng this matter, stated that she was too sick to think about calling the office, During her illness, she was treated by a physician, When the secretary returned to the office, she became aware that the appeal had not been filed and Immediately took steps to correct the situation, A petition for permission to file an appeal nunc pro tunc was flied In this Court on Monday, July 17, four days atter the normal appeal period had expired, The Supreme Court stated: The negligence of an appellant, or an appellant's counsel, or an agent of appellant's counsel, has not been considered a sufficient excuse for the failure to file a timely appeal, In this case, however, we are presented with a non-negligent -4- .' 97.5403 CIVIL TERM failure to file a timely appeal after the client had made a decision to appeal, In allowing the filing of the appeal nunc pro tunc, the Supreme Court cOl')cluded: [a)tleast In those circumstances Involving the non.negllgent failure to file an appeal, members of the public should not lose their day In court, Without doubt the passage of any but the briefest period of time during which an appeal Is not timely flied would make It most difficult to arrive at a conclusion that the failure to file was non.negllgent Under the circumstances of this case, however, we fall to find any basis for conCluding that either the attorney or his secretary acted negligently, Although there are some exceptions, ordinarily non-negligent conduct, although Its results In Injury to another Is not actionable, This principle can be Illustrated by assuming that an attorney, while on his way to the Prothonotary's Office to file an appeal has an unexpected heart attack or other Illness which causes him to lose control of his vehicle, and Injure a bystander, The attorney (or other person) would not be held liable, Society and the courts have recognized that events occur sometimes because of unexpected non-negligent causes, Just as the attorney would not be liable for damages to the bystander resulting from his non.negllgent driving, his client should not suffer because the attorney, as a result of his Illness, was unable to file the appeal, The example we have given is akin to the case before us, There has been a non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimaL Justice (later Chief Justice) Nix stated In a concurring opinion: , , , [t]he uncontroverted facts In this appeal would not Justify a finding of 'Fraud or some breakdown in the court's operation,' We,t Penn Power Co. v. Goddard, 460 Pa, 551, 333 A2d 909 (1975), It Is agreed that the time In which an appeal must be filed 'cannot be extended as a matter of grace,' We.t Penn Power Co. v. Goddard, ,upra, 460 Pa, at 556, 333 A.2d at 912, Finally, it Is agreed that negligence of the party, or of counsel for the party, does not provide a basis for Ignoring the fact of an untimely filing of an appeal. * * * The uncontroverted evidence establishes that the omission of the .s.