HomeMy WebLinkAbout01-2916 FX
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: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO, 0 f. :L 91(, C;M-( f;.:-
CHARLES M, FOGARTY
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION :
LICENSE SUSPENSION APPEAL
AND NOW, comes CHARLES M. FOGARTY, by and through her
attorneys, MANCKE, WAGNER, HERSHEY & TULLY, and files the following
license suspension appeal:
1. Petitioner, CHARLES M. FOGARTY, is an adult individual and a
licensed driver within the Commonwealth of Pennsylvania with a residence address
of 617 Gutshall Road, Boiling Springs, Cumberland County, Pennsylvania,
2. Respondent, Pennsylvania Department of Transportation, Bureau of
Driver Licensing, has a mailing address at P,O. Box 68693, Harrisburg,
Pennsylvania.
3. On or about January 28, 2001, in the Borough of Mechanics burg,
Cumberland County, Pennsylvania, the Petitioner herein was charged with allegedly
violating 75 Pa.C.S.A. ~3731(a)(1).
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4, Petitioner herein is alleged to have violated ~1547 of the Motor Vehicle
Code (75 Pa.C.S.A. ~1547).
5. As a result of the alleged violation of ~ 1547, Petitioner received a notice
of license suspension dated Aprilll, 2001, a copy of which is attached hereto,
incorporated herein by reference, and marked as Exhibit A, for an alleged violation
of Section 1547 ofthe Motor Vehicle Code, refusing to take a chemical test.
4. The suspension of the Petitioner's license is invalid, improper, and illegal
for the following reasons:
A. Petitioner was not properly advised of the consequences of violating
~1547 of the Motor Vehicle Code;
B. Petitioner supplied sufficient samples of breath in order to have
activate the equipment being utilized to test his breath;
C. The equipment being utilized to test his breath malfunctioned or
otherwise did not function properly;
D. Petitioner did not refuse, and fully cooperated with the police in
providing a sample of breath;
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E. Petitioner supplied sufficient breath that provided a read out of his
breath sample for purposes of use by the Commonwealth;
F. Petitioner was not properly instructed on how to provide sufficient
breath; and
G. The booking center officials did not properly instruct the Petitioner on
how to give a sufficient breath sample.
5. As a result of the above, the Petitioner believes that he did not violate
~1547 of the Motor Vehicle Code and requests this Court to grant his appeal.
WHEREFORE, Petitioner prays this Court to grant his appeal from the
license suspension for allegedly violating ~1547 of the Motor Vehicle Code.
Respectfully submitted,
Mancke Wagner, Hershey & Tully
P ichar agner, Esquire
J.D. 23103
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
Attorney for Petitioner
DATE: 5'"/'i/~1
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VERIFICATION
I verify that the statements made in the foregoing
document are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.
Section 4904, relating to unsworn falsification to authorities.
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau Df Driver Licensing
Harrisburg, PA 17123
APRIL 18, 2001
BOILING SPGS PA
17007
011016112745575 001
04/11/2001
1"1671382
07/05/1"162
CHARLES MATTHEW FOGARTV
617 GUTSHALL RD
Dear MDtDrist:
As a result Df YDUr viDlatiDn Df SectiDn 1547 Df the
Vehicle CDde, CHEMICAL TEST REFUSAL Dn 01/28/2001, YDUr
driving privilege is being SUSPENDED fDr a periDd Df 1
YEAR(S).
In Drder tD cDmplY with this sanctiDn YDU are required tD
return any current driver's license, learner's permit and/Dr
tempDrary driver's license (camera card) in YDUr PDssessiDn
nD later than the effective date listed. If YDU cannDt
cDmp1Y with the requirements stated abDve, YDU are required
tD submit a DL16LC FDrm Dr a SWDrn affidavit stating that
YDU are aware Df the sanctiDn against YDUr driving privi-
lege. Failure tD cDmp1y with this nDtice shall result in
this Bureau referring this matter tD the PennsYlvania State
PDlice fDr prDsecutiDn under SECTION 1571(a)(4) Df the Ve-
hicle CDde.
AlthDugh the law mandates that YDUr driving privilege is
under suspensiDn even if YDU dD nDt surrender YDUr license,
Credit will nDt begin until all current driver's license
prDduct(s), the DL16LC FDrm, Dr a letter acknDwledging YDUr
sanction is received in t~~s Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE-
MENT, 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 OS/23/2001, 12:01 a.m.
***********************************************************
I WARNING: If YDU are cDnvicted fDr driving while YDur
I license is suspended, the penalties will be: a MINIMUM
I Df 90 days imprisDnment AND a 1,000 fine AND YDUr
I license will be suspended for 1 year. I
***********************************************************
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011016112745575
Please see the enclosed application for restoration fee in-
formation.
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, APRIL 18, 2001, 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, ynu 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
Sincerely,
~~,~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/DL-16LC/TO:
Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8693'
INFORMATION (7:00
IN STATE
OUT-OF-STATE
TOD IN STATE
TDD OUT-OF-STATE
AM TO 9:00 PM)
1-800-932-4600
717-391-6190
1-800-228-0676
717-391-6191
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CERTIFICATE OF SERVICE
I, DEBRA K. SPINNER, Secretary in the law firm of
MANCKE, WAGNER, HERSHEY & TULLY do hereby certify that I am this
day serving a copy of the foregoing document to the following
persons and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of civil
Procedure, by depositing the same in the United States Mail,
Harrisburg, Pennsylvania, with first class postage, prepaid, and
addressed as follows:
George Kabusk, Esuqire
Office of Chief Counsel
Department of Transportation
1101 South Front Street
Harrisburg, PA 17104
By Jil,w of. jo~
Debra K. Spinn~r, Secretary
MANCKE, WAGNER, HERSHEY & TULLY
2233 North Front Street
Harrisburg, PA 17110
P. Richard Wagner, Esquire
Attorneys for Charles M. Fogarty
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CHARLES M. FOGARTY
v,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. ~ 1- 2'11" ~ -r u-
COMMONWEALTH OF PENNSYLVANIA: LICENSE SUSPENSION APPEAL
DEPARTl\1ENT OF TRANSPORTATION :
ORDER
AND NOW, this ~l day of
Ma,.<I\
,
, 2001, upon Petition
of CHARLES M. FOGARTY, a hearing is set on the License Suspension Appeal
for the 1"/..., ~ day of
,2001, at
1-00
o'clock,
L.m., in Courtroom NO.~, of the Cumberland County Courthouse, One
Courthouse Square, Carlisle, Cumberland County, Pennsylvania, all proceedings to
stay meanwhile.
Pursuant to Section l550(b) of the Pennsylvania Motor Vehicle Code,
Petitioner's appeal shall act as an automatic supersedeas, and Petitioner's operating
privileges shall not be suspended pending final detennination in this matter.
~ BY THE
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CHARLES M. FOGERTY,
PETITIONER
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
01-2916 CIVIL TERM
ORDER OF COURT
AND NOW, this '8 '" day of August, 2001, following a hearing on the
merits, the within license suspension appeal, IS DISMISSED.
P. Richard Wagner, Esquire
For Petitioner
Edgar B. Bayley, J.
George Kabusk, Esquire
For the Department of Transportation
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CHARLES M. FOGARTY,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Petitioner,
v.
: NO: 01-2916 CI~ TERM
: CI~ ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
Respondent.
ORDER
AND NOW, this $0 day Of~, 2001, upon Petition of
Charles M. Fogarty, it is hereby ORDERED that a supersedeas be issued against the
(~ Respondent, Commonwealth of Pennsylvania, Department of Transportation,
\I,( staying the imposition of suspension. of tlte licen~e of the Peti~'Wer hereiA, pending I _. I"l
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o@fl Order of the Commonwealth Court of Pennsylvania.
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CHARLES M, FOGARTY,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
v,
: NO: 01-2916 CIVIL TERM
: CI~ACTION -LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
Respondent.
PETITION FOR SUPERSEDEAS
AND NOW, comes your Petitioner, Charles M. Fogarty, by and through his
attorneys, Mancke, Wagner, Hershey & Tully, and files the following Petition for
Supersedeas:
1. Your Petitioner, Charles M. Fogarty, is an adult individual residing at 617
Gutshall Road, Boiling Springs, Cumberland County, Pennsylvania.
2. The Respondent, Department of Transportation, is a state agency having
as an address, 1101 South Front Street, Harrisburg, Pennsylvania, 17104.
3. On or about August 8, 2001, the Court entered an Order dismissing the
appeal of the Petitioner herein and reinstating the one (1) year suspension by the
Department of Transportation.
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4. Petitioner herein desires to file an appeal to the Commonwealth Court of
Pennsylvania and believes that his appeal has merit.
5. Petitioner filed a license suspension appeal on the 17th day of May, 2001.
6. A hearing was set for the 23rd day of July, 2001, regarding his license
suspension appeal.
7. On August 8, 2001, following a hearing, the Court dismissed the license
suspension appeal without opinion.
8. Petitioner desires to file an appeal to the Commonwealth Court of
Pennsylvania, however, is unaware of the basis upon which the initial license
suspension appeal was dismissed.
9. Petitioner has surrendered his license as a result of ARD entrance on
August 10,2001, in Cumberland County and expects not to receive a return of that
license for a six (6) month period of time or February 10, 2002.
10. Upon the return of his license on February 10,2002, it is anticipated that
this appeal to the above matter will be still pending in the Commonwealth Court.
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11. Petitioner desires to retain his license pending appeal to the
Commonwealth Court, particularly since no opinion was provided upon which the
dismissal occurred.
12. Petitioner prays this Court to grant relief in granting him a stay of the
license suspension that would otherwise take effect as a result of the August 8,
2001. Order.
Respectfully submitted,
c a Wagner, Esquire
. #23103
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
Attorneys for Petitioner
Date: S/,A'i/OI
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VERIFICATION
I verify that the statements made in the foregoing
document are true and correct.
I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S.
Section 4904, relating to unsworn
DATE:
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CHARLES M, FOGARTY,
. IN THE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PENNSYLVANIA
v.
. NO. 01-2916 CIVIL TERM
. CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN that CHARLES M. FOGARTY, above-named,
hereby appeals to the Commonwealth Court of Pennsylvania from Judgement of
Suspension enter in this matter on the 8th day of August, 2001, by the Honorable Edgar B.
Bayley, Judge of the Court of Common Pleas Court, Cumberland County, Pennsylvania.
The Order has been reduced to judgment and entered in the docket as evidenced by the
attached docket entry.
Respectfully submitted,
er, Hershey & Tully
agner, Esquire
I.D. #23103
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
Attorneys for Defendant
Date. 3/.8tJ/tl!
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CHARLES M. FOGARTY,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO: 01-2916 CIVIL TERM
: CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTJ'vlENT OF
TRANSPORTATION,
ORDER FOR TRANSCRIPT
A NOTICE OF APPEAL, having been filed in this matter, the official court
reporter is hereby order to produce, certify and file the transcript in this matter in
conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure.
Respectfully submitted,
Mancke, Wagner, Hershey & Tully
, . Rich
I.D. #23103
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
By
Attorneys for Defendant
Date: S/.3~/()1
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CHARLES M. FOGARTY,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
: NO: 01-2916 CIVIL TERM
: CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
CERTIFICATE OF SERVICE
I, Debra K Spinner, Secretary in the law finn ofMANCKE, WAGNER, HERSHEY, &
TULLY, do hereby certifY that I am this day serving a copy of the foregoing document to the
following persons and in the manner indicated below, which service satisfies the requirements of
the Pennsylvania Rules of Appellate Procedure, by depositing the same in the United States Mail,
Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows:
George Kabusk, Esquire
Office of Chief Counsel
Department of Transportation
1101 South Front Street
Harrisburg, PA 17104
The Honorable Edgar B. Bayley
Court of Common Pleas
Cumberland County Courthouse
Carlisle, P A 17013
Court Reporter
Cumberland County Courthouse
Carlisle, PA 17013
DATE: 3/21"'1
By ~u{Jf~~
Debra K Spinner, Secretary
MANCKE, WAGNER, HERSHEY & TULLY
2233 North Front Street
Harrisburg, PA 17110
p, Richard Wagner, Esquire
Attorneys for Appellant
19
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PYS510
2001-02916
CUmbO.,land County prothonotary'~.. Office
, ... Civil Case Inquiry (,_,
~% -
FOGARTY CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF
Filed. . . . . . . . :
Time........, :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
Page
1
,
5/15/2001
8:06
0/00/0000
0/00/0000
Reference No. . :
Case Type. ....: APPEAL
Judgment..... .
Judge Assigned: BAYLEY
Disposed Desc. :
------------ Case Comments -------------
- LICENSE
.00
EDGAR B
SUSP
********************************************************************************
General Index Attorney Info
FOGARTY CHARLES M
17 GUTSHALL ROAD
BOILING SPRINGS PA 17007
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
POBOX 68693
HARRISBURG PA 17123
APPELLANT
WAGNER PRICHARD
APPELLEE
********************************************************************************
* Date Entries *
********************************************************************************
5/15/2001
5/21/2001
8/08/2001
8/31/2001
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-------------------------------------------------------------------
ORDER - DATED 5/.21/01 - IN RE LICENSE SUSPENSION APPEAL - A HEARING
IS SET FOR 7/23/01 AT 2:00 PM IN CR 2 OF THE CUMBERLAND CO~TY
CARLISLE PA - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 5/21/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 8/8/01 - LISCENSE SUSPENSION APPEAL IS
DISMISSED - BY EDGAR B BAYLEY J - COPIES MAILED 8/9/01
-------------------------------------------------------------------
ORDER - DATED 8/30/01 - IN RE PETITION OF CHARLES M FOGARTY IT IS
HEREBY ORDERED THAT A SUPERSEDEAS BE ISSUED AGAINST AGAINST THE
RESPONDENT COMMONWEALTH OF PA DEPT OF TRANSPORTATION STAYING THE
IMPOSITION OF SUPENSIONS OF THE LICENSE OF THE PETITION HEREIN
PENDINGS PERFECTION AND APPEAL TO THE COMMONWEALTH OF PA AND ANY
SUBSEQUENT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 9/4/01
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information *
* Fees & Debits BeQ Bal Pvmts/Adi End Bal *
********************************************************************************
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
35.00
.50
5.00
5.00
35.00
.50
5.00
5.00
.00
.00
.00
.00
45.50
45.50
.00
********************************************************************************
* End of Case Information *
********************************************************************************
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Commonwealth Court of Pennsylvania
September 10, 2001
RE: Fogarty v. DOT
No.: 2071 CD 2001
Agency Docket Number: No. 01-2916 Civil Term
Filed Date: September 5, 2001
Notice of Docketing Appeal
A Notice of Appeal, a copy of which is enclosed, from an order of your court has been
docketed in the Commonwealth Court of Pennsylvania. The docket number in the
Commonwealth Court is endorsed on this notice. 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 forty (40) 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. RAP. 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
Harold Cramer, Esq.
George H. Kabusk, Esq.
Paul Richard Wagner, Esq.
Party Name
Bureau of Driver Licensing
Bureau of Driver Licensing
Charles M. Fogarty
Party Type
Appellee
Appellee
Appellant
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CHARLES M. FOGARTY,
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: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V MiA
v.
: NO: 01-2916 CIVIL TERM
: CIVIL ACTION - LAW
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COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
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NOTICE OF APPEAL
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NOTICE IS HEREBY GIVEN that CHARLES M. FOGARTY, above-named,
hereby appeals to the Commonwealth Comt of Pennsylvania from Judgement of
Suspension enter in this matter on the 8th day of August, 2001, by the Honorable Edgar R
)..
Bayley, Judge of the Court of Common Pleali Court, Cumberland County, Pennsylvania.
The Order has been reduced to judgment and entered in the docket as evidenced by the
attached docket entry,
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Respectfully submitted,
TRUE COpy FROM RECORD
In TesUmonv wherecf I \ h'?re unto ~f,:t my ht.:nd
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I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
Attorneys for Defendant
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CHARLES M. FOGARTY,
PETITIONER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
RESPONDENT : 01-2916 CIVIL TERM
ORDER OF COURT
AND NOW, this 11th day of September, 2001, petitioner shall pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), file and serve in the chambers of
this judge a concise statement of matters complained of on appeal, with an
accompanying brief, within fourteen (14) days of this date.
P. Richard Wagner, Esquire
For Petitioner
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George Kabusk, Esquire
For Respondent
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CHARLES M. fOGARTY,
: IN THE COURT Of COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V AN1A
Petitioner,
v.
: NO: 01-2916 CIVIL
: CIVIL ACTION - LAW
COMMONWEALTH Of PA
DEPARTMENT Of TRANSPORTATION
Respondent.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
PURSUANT TO PA RULES OF APPELLATE PROCEDURE
RULE 1925(b)
AND NOW; comes the Petitioner, Charles M. Fogarty, by and through his
attorneys, Mancke, Wagner, Hershey & Tully, and files the following concise
Statement of Matters Complained of on Appeal:
1. Petitioner (licensee) contends that the officer who administered the breath
test failed to adequately instruct the Petitioner on how to complete the test
2. The officer who administered the test did not explain to the licensee that
the intoxilyzer required approximately ten (10) seconds of uninterrupted breath, and
further, at several points, indicated "o.k." to the licensee while he was attempting to
comply with the request for a breath test.
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3. The Petitioner believes he made a conscious effort to supply sufficient
breath (noting that one sample in fact was sufficiently supplied), that the operator
failure in instruction cannot be considered a refusal.
WHEREFORE, the above serves as the statement of matters Complained of
on Appeal.
Respectfully submitted,
Mancke, Wagner, Hershey & Tully
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By
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.D. #23103
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
Attorneys for Petitioner
Date: 9/R10 I
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CERTIFICATE OF SERVICE
I, Debra K. Spinner, Secretary in the law firm of MANCKE,
WAGNER, HERSHEY, & TULLY, do hereby certify that I am this day
serving a copy of the foregoing document to the following person
and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Appellate Procedure, by
depositing the same in the United States Mail, Harrisburg,
Pennsylvania, with first class postage, prepaid, and addressed as
follows:
George Kabusk, Esquire
Office of Chief Counsel
Department of Transportation
1101 South Front Street
Harrisburg, PA 17104
By D~.~~retarY
MANCKE, WAGNER, HERSHEY & TULLY
2233 North Front Street
Harrisburg, PA 17110
P. Richard Wagner, Esquire
Attorneys for Appellant
DATE: September 01 , 2001
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CHARLES M. FOGARTY,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
Respondent
01-2916 CIVIL TERM
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE EDGAR B. BAYLEY, J.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on July 23, 2001, at 2:20 p.m.
in Courtroom Number Two.
APPEARANCES:
GEORGE KABUSK, Esquire
For the Department of Transportation
P. RICHARD WAGNER, Esquire
For the Petitioner
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FOR THE DEPARTMENT
INDEX TO WITNESSES
DIRECT CROSS REDIRECT RECROSS
1. William R. Meneses
2. Brandon D. Mitchem
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22
FOR THE DEPARTMENT
INDEX TO EXHIBITS
IDENTIFIED
1. DL-26 Form
2. Breath test ticket
3 . Videotape
21
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ADMITTED
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1 July 23, 2001, 2:20 p.m.
2 Carlisle, Pennsylvania
3 (Whereupon, the following proceedings
4 were held:)
5 THE COURT: This one is the 2:00 one?
6 MR. KABUSK: Yes, Your Honor.
7 THE COURT: We will take it. Do you need an
8 order on the 1:30 one?
9 MR. KABUSK: Yes, Your Honor. Maybe we want
10 to take care of that after this one.
11 THE COURT: I will take care of it. Remind
12 me after we finish this one. Are we ready to go on this?
13 MR. WAGNER: We are.
14 THE COURT: Proceed.
15 MR. KABUSK: Your Honor, this is the case of
16 Charles M. Fogarty versus Commonwealth of Pennsylvania,
17 Department of Transportation, case number 2001-2916. This
18 is an appeal from a one year suspension as a result of the
19 motorist's failure -- or excuse me, a violation of Section
20 1547 of the Vehicle Code, a chemical test refusal on 1/28
21 of 2001. The Department now calls Officer Meneses.
22 Whereupon,
23 WILLIAM ROBERT MENESES,
24 having been duly sworn, testified as follows:
25 MR. WAGNER: Judge, if it helps, we are
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prepared to stipulate to a lot of things.
THE COURT: Well, whatever.
MR. KABUSK: Your Honor, if I may please put
on the case because it goes to certain things that I
believe Mr. Wagner is contesting. I will be brief.
THE COURT: If you wish to present your
case, go ahead.
MR. WAGNER: That's fine.
THE COURT: Not all stipulations are
accepted. Okay. Proceed.
DIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Meneses, please state your name.
A My name is William Robert Meneses, M-as in
Michael-e-n-e-s-e-s. I'm a police officer with the borough
of Mechanicsburg Police Department.
Q During the course of your official duties,
have you had occasion to investigate an alleged incident of
DUI on or about January 28th of 2001?
A Yes.
Q Would you please tell the Court about that
incident.
A Yes. On that date, I was assigned to a
uniformed patrol, and I was working from 10:00 at night
until 6:00 in the morning. At about 0230 or so, I was in
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1 full uniform and patroling in a marked vehicle. I was on
2 West Main Street when I took notice that there was a parked
3 white jeep occupied by the driver on the first block of
4 that street. Although this is common, it caught my
5 attention.
6 As I proceeded past the vehicle, I saw a
7 white male running from between parked -- or from between
8 buildings which occupy businesses and quickly enter the
9 passenger's side of that vehicle. That caused suspicion to
10 me, and I continued to watch this vehicle from my rear-view
11 mirror. At this time I'm driving westbound on Main Street.
12 Suddenly and without any required turn
13 signal usage, the white jeep pulled away from the curb very
14 quickly onto West Main Street heading westbound. Its
15 headlights were turned off. The vehicle then made a very
16 quick left-hand turn onto Lamont, it's Lamont Avenue. This
17 caused concern to me.
18 I viewed this activity as being extremely
19 suspicious, and my initial concern was that a burglary may
20 have occurred at one of these businesses where I saw the
21 white male coming out of. I also had two traffic
22 violations as well.
23 I circled the block, and I met the vehicle
24 at the intersection of Lamont and West Simpson Street.
25 When I saw the vehicle, the headlights were turned on, and
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I immediately put the emergency lighting on my police car
in order to stop this vehicle. It failed to stop.
The driver made a left-hand turn onto West
Simpson Street, and then made a right-hand turn onto South
Market Street, and another right-hand turn leading me to an
area behind a church in a parking lot. The total distance
was approximately one-tenth of a mile from when I initially
attempted to stop the vehicle.
I notified other officers of what I had and
awaited for their arrival before I approached the vehicle.
When I did approach the vehicle I spoke to the driver, whom
I recognized as Mr. Fogarty, sitting to the left of counsel
wearing a white shirt and a tie.
I asked the driver why he had pulled away
from the curb
or, I'm sorry, I asked the driver what had
occurred when I saw the male entering the vehicle. He
denied this.
I could smell a very strong odor of
alcoholic beverage. I asked him if he had had very much to
drink, and he stated, no, not too much. I then asked him
if he was very intoxicated, and his response was, no, not
very. I'm sorry, it was, no, not too much, which he then
changed to, no, I'm not.
I asked him for his driver's license,
registration and insurance cards. Mr. Fogarty seemed very
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1 confused in presenting the cards. In fact, he told me he
2 had presented the vehicle registration card to me, which he
3 never did.
4 The strong odor of alcoholic beverage, his
5 confusion and his -- and he admitting that he was -- he had
6 been drinking and was possibly intoxicated caused concern
7 to me that I was now investigating an active misdemeanor
8 level crime of DUI.
9 I asked Mr. Fogarty to step out of his
10 vehicle, and when he did so, I noticed his balance was very
11 poor. I asked Mr. Fogarty to submit to field sobriety
12 testing which is comprised of three tests. He completed
13 the first test, however, would not complete any other test.
14 He told me that there was no need for this,
15 that he was a businessman, that he had spent a considerable
16 amount of money that evening at a turkey dinner, that the
17 only beverage available to drink at this dinner was beer
18 and that he had consumed that, and if I felt that he was
19 intoxicated that I should then place him into custody,
20 which I did.
21 I advised Mr. Fogarty that he was under
22 arrest for suspicion of driving under the influence of
23 alcohol. When I handcuffed Mr. Fogarty as a standard
24 procedure, he protested that, again telling me that he was
25 a businessman, he shouldn't be treated as a common
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criminal, that he knew several police officers, and that he
had a good attorney that would get him out of all of this.
I transported Mr. Fogarty to the West Shore
Booking Center. At the booking center under video and
audio recording I explained to Mr. Fogarty that he had
rights under Pennsylvania's Implied Consent Law. I
explained to him that he was under arrest for the violation
indicated and that the waiver sheet was read to him,
I recall that I had to repeatedly read this
instructional sheet to Mr. Fogarty, specifically Section
4(b). Mr. Fogarty seemed confused, somewhat argumentative
and didn't fully understand the simple instructions and
rights that apply to this case.
Mr. Fogarty agreed to take -- or provide a
sample of breath for a breath test. After the first sample
was obtained which showed that it was above 10, Mr. Fogarty
then refused to take any other testing regarding his
arrest.
Q Were you there the entire time the booking
agent was performing the breath test?
A Yes, I was.
MR. KABUSK: That is all the questions for
right now, Your Honor.
THE COURT: Okay. Cross.
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1 CROSS EXAMINATION
2 BY MR. WAGNER:
3 Q Officer, do you have a log sheet to show
4 when you arrived at the booking center with Mr. Fogarty?
5 A I have it on my written report, if I may --
6 MR. WAGNER: May he be permitted to do that?
7 THE COURT: Sure.
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14 your question, this isn't a log sheet per se. However, on
15 my written report, which would be the second page, I have a
16 listing of times. These are approximate times. At 0307,
17 or about, I arrived at the booking center and Booking Agent
18 Mitchem's 20 minute observation period of Fogarty began.
19 BY MR. WAGNER:
20 Q Did you remain there with Mr. Fogarty during
21
22
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MR. WAGNER: Thank you.
THE COURT: You may refresh your
recollection. You may get it.
THE WITNESS: Thank you.
THE COURT: Just take it up with you.
THE WITNESS: Mr. Wagner, in reference to
the entire 20 minute wait period?
A Yes. Yes, I did.
Q He was in your presence?
A Yes.
Q And was the booking officer, Mr. Mitchem,
9
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also in your presence?
A I can't testify to that.
Q Do you recall approximately what time the
film began running at the booking center on Mr. Fogarty?
A I can't state with a high degree of
certainty. However, I indicated that at 0349 a.m., or
about, I read Mr. Fogarty his implied consent which would
indicate to me that the recording began at that time or
just shortly before that.
Q Up until the time you read the implied
consent, was there ever a period of time that the booking
officer and Mr. Fogarty were alone and you were not there?
A Not that I recall.
Q Was whatever the booking officer said to Mr.
Fogarty during Mr. Fogarty's time at the booking center on
film?
A That I don't know.
Q Did you ever hear the booking officer give
Mr. Fogarty instructions on how to take the test when the
camera was not running?
A I don't recall.
Q At any rate, if there would have been
instructions given by the booking officer off of the tape,
would you have noted that as being something important?
A No.
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Q Were the instructions to Mr. Fogarty given
after you read the Implied Consent Law to him?
A I'm sorry, the instructions?
Q The instructions on how to actually take the
test, were they given to him after you read the Implied
Consent Law?
A They generally are. I can't -- my
recollection just
Q In this case, is it your recollection that
they followed the general practice that they usually do,
and that is after you read the implied consent then they
tell them how to take the test?
A Yes. I noted nothing unusual in this
processing that I observed.
Q Now, just to be clear, you've indicated you
got one sufficient sample, is that correct?
A That's correct.
Q And when you used the phrase he refused to
do any other testing, he actually tried to give samples on
many occasions, did he not?
A Going solely by what the report says -- like
I said, this was January. My recollection isn't very good
with details. After the first breath test, my recollection
is that he refused any other testing. However, the
videotape should show.
11
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Q
1 Q Finally, Officer, did you instruct Mr.
2 Fogarty on how to take the intoxilyzer breath test or was
3 that strictly Mr. Mitchem?
4 A Primarily it would have been Mr. Mitchem. I
5 may have assisted. However, again, I don't recall.
6 MR. WAGNER: Thank you. I have no further
7 questions.
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MR. KABUSK: Your Honor, we do have the tape
here. May I reserve the right to recall Officer Meneses?
THE COURT: You may. You may step down.
MR. KABUSK: The Department calls Booking
Agent Brandon Mitchem.
Whereupon,
BRANDON D. MITCHEM,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Agent Mitchem, please state your name and
spell your last name for the record.
A Brandon D. Mitchem, M-i-t-c-h-e-m.
Q Where are you employed?
A Cumberland County District Attorney's
Office, Central Processing Department.
Q And what are your duties?
A My primary duties are to process any
12
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criminals that are brought in for criminal and/or DUI
processing.
Q During the course of your official duties,
have you had occasion to be involved in the alleged --
involved in the investigation of an alleged incident of DUI
on or about January 28th, 2001?
A
Yes, I had.
Q With Mr. Charles M. Fogarty?
A That's correct.
Q In regard to that, are you a certified
breath test operator?
A Yes, I am.
Q Do you have the certification with you?
A My actual certification --
MR. WAGNER: We will stipulate that he is
certified.
THE COURT: So stipulated.
BY MR. KABUSK:
Q What breath test instrument were you using
to administer the chemical test?
A The Intoxilyzer 5000.
Q Do you have the breath test instrument
certificate of accuracy for that instrument?
MR. WAGNER: We'll stipulate they have a
certificate of accuracy as well as calibration.
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THE COURT: So stipulated.
2 BY MR. KABUSK:
3
At the time of the incident was the breath
Q
4 test instrument that was in service for use in this
5 incident functioning properly?
6
Yes, it was.
A
7
And did you run the instrument through a
Q
8 self check?
9
A
Yes.
10
Did the petitioner inform you of any
Q
11 physical or medical conditions that may have prevented him
12 from properly performing the test?
13
Not that I recall, no.
A
14
Did the petitioner exhibit any symptoms
Q
15 which would indicate the presence of a physical or medical
16 condition that would have affected his ability to perform
17 the test?
18
A
No.
19
Q
Was a videotape made contemporaneously with
20 the requested breath test?
21
A
I'm sorry, I don't understand.
22
Q
Was a videotape made of the breath test?
23
A
Yes.
24
Q
And did you bring a copy of that along?
25
A
Yes.
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1 MR. KABUSK: Your Honor, I request that you
2 view the videotape, please.
THE COURT: All right. Do you want me to do
it now?
MR. KABUSK: The tape is approximately 40
minutes long. However, the first portion of it consists of
Officer Meneses reading to Mr. Fogarty the DL-26, and this
happens four times. Then the last approximately 15 minutes
is the actual breath test. So I would request that you
we could go over the very first part, fast forward over the
first part, and just view the breath test itself.
THE COURT: Are you challenging the
I see
here in the petition, the petitioner was not properly
advised of the consequences of violating 1547.
MR. WAGNER: There's some -- I've had a
chance to see the tape. There's some confusion at some
point concerning what he can and cannot do if he does or
does not take the test. I think that's important.
THE COURT: Okay. Hold on a second.
MR. WAGNER: Can we approach?
THE COURT: Yes, come on up.
(Whereupon, a brief discussion was held
off the record at sidebar.)
MR. WAGNER: Your Honor, if it please the
Court, as a result of the sidebar, petitioner's prepared to
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be allowed to cross-examine Mr. Mitchem, and at the
conclusion we have no objection to the Court, when the
Court deems the time available, to see the tape in the
Court's chambers.
THE COURT:
MR. WAGNER:
THE COURT:
MR. KABUSK:
And you have seen it?
I have seen it.
Have you seen it, counselor?
Yes, Your Honor.
THE COURT: Fine. That is excellent, and I
will watch the tape in its entirety.
MR. WAGNER: And I would note that Mr.
Fogarty was present with me when we both watched the tape.
Correct, sir?
MR. FOGARTY: Yes, sir.
THE COURT: That is an excellent way to do
it. You may proceed.
CROSS EXAMINATION
BY MR. WAGNER:
Q Officer, when the tape first begins, did you
prior to the beginning of the tape have any conversation
with my client?
A Not that I recall.
Q To the best of your knowledge, whatever
instructions were given to my client in taking the test
would be on this tape?
16
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A That's correct.
Q And specifically are there a set of
instructions that you give to a subject in order to have
that subject be able to take the test?
A There is a set of instructions that I
normally give with every test I do, yes.
Q Do you have any indication that you did it
in this case?
A No, I don't have any indication, but I do
the same instructions every time I process.
Q Those instructions include that a person is
supposed to give approximately ten seconds of uninterrupted
breath?
A The specific instructions I give?
Q Yes.
A No.
Q Tell us what they are. What are your
instructions?
A My instructions are take one good normal
breath, make a tight seal around the top part of the
mouthpiece, blow one steady, strong breath into the
mouthpiece until I tell you to stop blowing.
Q And you don't tell the person when they hear
the machine activate that they are supposed to sustain a
breath for any period of time?
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A Yeah. Whenever I -- I will tell them
whenever the instrument starts to make a tone you have to
keep that tone going until I tell you to stop.
Q You tell them that as they are blowing and
as you hear the tone, you don't tell them ahead of time,
here's what I want you to do, I want you to make a tight
seal, I want you to blow, and I'm going to require you to
have that tone activated five to ten seconds? You don't
tell them that ahead of time, do you?
A No.
Q You tell them that as they are blowing and
you say things like okay, stop, no, while they are
attempting to blow, don't you?
A That's correct.
Q So you don't tell somebody ahead of time
that they should blow in the machine until you hear a beep,
that the machines require approximately ten seconds of
uninterrupted breath, and that the person should take a
deep breath and continue to blow for that time period, do
you?
A No. My only instructions are to blow one
steady breath until I tell you to stop.
MR. WAGNER: No further questions. Thank
you.
THE COURT: Anything else?
18
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MR. KABUSK: Yes, Your Honor, if I may
proceed.
THE COURT: You may, sure,
REDIRECT EXAMINATION
BY MR. KABUSK:
Q Mr. Mitchem, as you understand the Judge is
going to view the videotape in his chambers. Did the
petitioner ever provide two consecutive adequate breath
samples without the required waiting period?
A No, he didn't.
Q Did he provide one adequate breath sample?
A Yes, he did.
Q Now, could you just very briefly
characterize Mr. Fogarty's breath test. Just very briefly
describe what happened in this matter.
A The first test he did provide a good sample,
but the second test he would not blow properly by not
supplying any air through the mouthpiece into the tube for
it to even register any kind of breath.
Q Now, if he was not blowing properly, what do
you recall telling him?
A I don't recall without -- it will be on the
tape.
Q What do you generally do? If someone is not
blowing properly, what do you generally do?
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A I would have them take the mouthpiece out of
their mouth, re-explain to them what they are supposed to
do, tell them not to put their tongue in front of the
mouthpiece because a lot of people do that, that will stop
the air from going into the mouthpiece. I will then give
the tube back to them, have them try again, and give them
the instructions over, make a tight seal, blow one steady
strong breath until I tell you to stop.
Q If someone is not blowing, can you tell
that?
A Yes.
Q If you tell them you are not blowing, are
they not blowing?
A Yes.
Q Do they oftentimes puff their cheeks out and
not blow?
A Sometimes.
Q Do they oftentimes let the air out the side
of their mouth?
A Sometimes.
Q Do they oftentimes put their tongue over the
tip?
A Sometimes.
MR. KABUSK: May I approach the witness,
Your Honor?
20
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THE COURT: Sure.
BY MR. KABUSK:
Q Does the machine print out a ticket
indicating the breath samples?
A
Q
Yes.
Would you identify what I just handed to
you?
A This is the breath test ticket from the time
in question.
Q And what does that indicate? Was there one
adequate breath test?
A Yes, the first one there at 4:01 hours.
Q What would that reading be?
A Point 181.
Q Was there ever a second adequate breath
test?
A No, there was not.
MR. KABUSK: I move for the admission of --
MR. WAGNER: No objection.
THE COURT: All of the exhibits are
admitted, including the tape.
MR. KABUSK: Additionally, I do have another
exhibit that's been marked Commonwealth's Exhibit No.1.
MR. WAGNER: That's the DL-26 form. We have
no objection to the entry of that form.
21
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THE COURT: That is admitted too.
MR. KABUSK: So if I could have that DL-26
as number one, the breath test ticket as number two.
THE COURT: And the tape is?
MR. KABUSK: And the tape is number three.
THE COURT: They are all admitted.
MR. KABUSK: Now, oftentimes the District
Attorney will request that I provide the Court with a copy
of the tape so that they could use that original tape in
the criminal matter. I would just ask leave from the Court
that I may do so if the District Attorney requests that.
THE COURT: If the D.A. requests it, fine.
We won't lose it.
MR. WAGNER: There is no -- this is an ARD
case.
THE COURT: Okay.
MR. WAGNER: It's not going to be necessary
for criminal prosecution.
RECROSS EXAMINATION
BY MR. WAGNER:
Q One question, if I could, Officer, on what
you just said. If a person supplied sufficient breath, the
machine is activated and you hear a tone, do you not?
A Correct.
Q If that tone is not sustained for a period
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of seconds, the machine says deficient sample, does it not?
A No.
Q Was there a test given to Mr. Fogarty that's
on the tape where you hear the machine activated -- the
tone activated and you say, okay, stop?
A It would be on the tape, whatever.
Q And that was approximately 4:04?
A No, 4:04 would have been the deficient
sample, the second test.
Q Now, when we look at the tape, we're also
going to see the tape stops at 4:06 and picks up again at
4:37. Can you tell me what happened during that 31 minute
break that's not on the tape?
A Not offhand.
Q Nothing from your recollection material to
the Court's determination of this case, correct?
A No, nothing happened in reference to the
breath test, no.
MR. WAGNER: Thank you. No further
questions.
THE COURT: You may step down. Anything
further?
MR. KABUSK: Just I move that the documents
be admitted, and I understand they were.
THE COURT: I have. Do you wish to present
23
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1 any testimony?
2 MR. WAGNER: We wish to present no
3 testimony. We would ask the Court to respectfully in
4 considering the decision to review, if the Court would,
5 please, 19(d) and (c) (4), page 523, a 1993 case, Barner
6 versus PennDOT, a decision written by President Judge
7 Kleinfelter in Dauphin County, noting that the appeal of
8 the Commonwealth Court was withdrawn by PennDOT, and this
9 has to do with exactly the nature of the instructions
10 given.
11 THE COURT: All right. I will figure it
12 out. I will watch the tape and have something down
13 shortly.
14 MR. WAGNER: Thank you, Judge, very much.
15 (Whereupon, the hearing was concluded
16 at 2:47 p.m.)
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1 CERTIFICATION
2 I hereby certify that the proceedings are
3 contained fully and accurately in the notes taken by me on
4 the above cause and that this is a correct transcript of
5 same.
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Pamela R. Sheaffer
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
~~, J(DI
Date
Edgar
Ninth
,
25
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CHARLES M. FOGARTY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSL YVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING
01-2916 CIVIL TERM
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE
PROCEDURE 1925
Bayley, J., October 3, 2001:--
Petitioner, Charles Matthew Fogarty, filed this appeal from an order of
Respondent, Commonwealth of Pennsylvania, Department of Transportation,
suspending his operator's license for one year for failure to complete a test of his breath
following his arrest for operating a motor vehicle while under the influence of alcohol.
Following a hearing, an order was entered on August 8, 2001, dismissing the appeal.
Petitioner filed a direct appeal from that order to the Superior Court of Pennsylvania. In
a concise statement of matters complained of on appeal, petitioner avers:
1. Petitioner (licensee) contends that the officer who administered
the breath test failed to adequately instruct the Petitioner on how to
complete the test.
2. The officer who administered the test did not explain to the
licensee that the intoxilyzer required approximately ten (10) seconds of
uninterrupted breath, and further, at several points, indicated "O.k." to the
licensee while he was attempting to comply with the request for a breath
test.
3. The Petitioner believes he made a conscious effort to supply
oft-
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01-2916 CIVIL TERM
sufficient breath (noting that one sample in fact was sufficiently supplied),
that the operator failure in instruction cannot be considered a refusal.
We find the following facts. On January 28, 2001, at approximately 2:30 a.m.,
Officer William Meneses of the Mechanicsburg Police stopped petitioner in the Borough
of Mechanicsburg for summary violations. Following an investigation at the scene,
Officer Meneses arrested petitioner for operating a motor vehicle while under the
influence of alcohol. Petitioner was taken to a booking center. He was advised of his
rights under the Implied Consent law. After considerable hesitation, the visibly, acutely
intoxicated petitioner agreed to undertake a test of his breath on an Intoxilyzer 5000. A
booking agent told petitioner to make a tight seal around the mouthpiece and blow one
steady, strong breath into it until he was told to stop. Petitioner hardly put any breath
into the machine. The Agent repeatedly told him to blow, blow, blow, blow, and that he
is not blowing enough air into the machine. The constantly argumentative petitioner
maintained that he was blowing air into the machine. It is obvious he is hardly blowing
any.' The Agent told petitioner that it was a constant beep of the machine that he was
looking for, and to keep blowing air into the machine until he was told to stop.
Petitioner was told several times to take a deep breath and make a tight seal around
the mouthpiece. As petitioner continued to blow insufficient amounts of air into the
machine, the Agent took another mouthpiece and blew into it to show petitioner how to
blow enough air into the machine. The Agent told petitioner to take a deep breath, "like
, All of this is memorialized on a videotape that was admitted into evidence.
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01-2916 CIVIL TERM
you are forcing up a balloon." On the seventh try, petitioner finally blew enough air into
the machine to register a valid test. The Agent then told him to do it one more time. He
gave petitioner six separate opportunities to do what he had already done. Petitioner
blew virtually no air into the machine on any of those occasions. The Agent then
deemed that petitioner refused to perform a valid second test. The Intoxilyzer was
properly calibrated, certified as accurate, and working properly.
Section 1547(b)(1) of the Vehicle Code, provides:
If any person placed under arrest for a violation of section
3731 (relating to driving under influence of alcohol or controlled
substance) is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by the police
officer, the department shall suspend the operating privilege of the
person for a period of 12 months. (Emphasis added.)
The regulations of the Department ofTransportation at 67 Pa. Code 9 77.24(b)
include:
The procedures for alcohol breath testing shall include, at a minimum: (1)
Two consecutive actual breath tests, without required waiting periOd
between the two tests.
The failure to perform two tests as required by this regulation warrants the suspension
of an operator's driving privilege under Section 1547(b)(1) ofthe Vehicle Code.
Commonwealth, Department of Transportation v. SChraf, 135 Pa. Commw. 246
(1990).
In Pappas v. Commonwealth Department of Transportation, 669 A.2d 504
(Pa. Commw. 1996), the Commonwealth Court of Pennsylvania stated:
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01-2916 CIVIL TERM
In order to establish a prima facie case in support of a Section
1547(b) license suspension, DOT must prove inter alia, that the licensee
refused to submit to chemical testing. DOT need not establish that the
licensee objected to taking the test. Yi v. Department of Transportation,
Bureau of Driver Licensing, 164 Pa.Cmwlth. 275, 642 A2d 625 (1995). 'It
is well established law that where a defendant, when taking a
breathalyzer test, does not exert a total conscious effort, and thereby
fails to supply a sufficient breath sample, such is tantamount to a
refusal to take the test.' Appeal of Budd, 65 Pa.Cmwlth. 314, 442 A.2d
404,406 (1982). Even a licensee's good faith attempt to comply with the
test constitutes a refusal where the licensee fails to supply a sufficient
breath sample. Vi.
A refusal is supported by substantial evidence where the
breathalyzer administrator testifies that the licensee did not provide
sufficient breath. See Mueller v. Department of Transportation, Bureau
of Driver Licensing, 657 A2d 90 (Pa.Cmwlth.), petition for allowance of
appeal denied, 542 Pa. 637, 665 A2d 471 (1995) (officer's testimony that
licensee did not make a 'proper effort' was sufficient to meet DOT's
burden regarding refusal); Books v. Department of Transportation, Bureau
of Driver Licensing, 109 Pa.Cmwlth. 25, 530 A.2d 972 (1987) (officer's
testimony that licensee did not provide sufficient breath and stopped
blowing as soon as he saw the machine register was sufficient to
meet DOT's burden); Budd (officer's testimony that licensee failed to
tighten his lips around the mouthpiece of the breathalyzer was
sufficient to prove refusal). If DOT establishes refusal by utilizing the
testimony of the administering officer, it need not prove that the machine
was in proper working condition at the time of the test. Books; Budd.
That is, once DOT establishes refusal, the operability or suitability of the
breathalyzer is not at issue. Books; Budd.
Alternatively, DOT may establish refusal under these
circumstances by presenting a printout form from a properly calibrated
breathalyzer indicating a 'deficient sample.' Department of
Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa.Cmwlth.
185, 624 A2d 792 (1993); Pestock. In this situation, proper calibration
may be proven by either documentary or testimonial evidence. See
Lohner (calibration established by stipUlation); Pestock (calibration
established by testimony of administering officer); see also 67 Pa.Code 9
77.25(c) ('The certificate of accuracy shall be the presumptive evidence of
accuracy referred to in 75 Pa.C.S. 9 1547 (relating to chemical testing to
determine amount of alcohol or controlled substance).').
Once DOT has presented evidence that the licensee failed to
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01-2916 CIVIL TERM
provide sufficient breath samples, refusal is presumed and the
burden of proof then shifts to the licensee to establish by competent
medical evidence that he or she was physically unable to perform
the test. Pestock. (Emphasis added.)
In a brief, petitioner cites Barner v. Commonwealth of Pennsylvania,
Department ofTransportation, 19 D. & C.4th 523 (Dauph. 1993), in support of his
contention that he made a conscious effort to perform a valid second breath test, and
due to operator error his license cannot be suspended. In Barner, the Dauphin County
trial court stated:
In a studied review of the videotape, counsel and the court
attempted to record the results of five attempted tests. The number of
seconds during which the tone was activated in each test is as follows:
Test 1, three seconds; test 2, nine seconds; test 3, four seconds; test 4,
three seconds; test 5, six seconds. During one of these tests the machine
provided a momentary reading of .215. Benner also explained that the
machine emits a beep when a sufficient sample has been received.
In this case, Mr. Benner conceded that he did not instruct the
defendant to blow into the machine until she heard a beep. He did not
explain to her that the machine required approximately ten seconds of
uninterrupted breath or that she would have to take a deep breath before
beginning to blow. At one point, the defendant stopped blowing after the
operator said "okay" even before the beep had sounded. We find that
the lack of clarity in Mr. Benner's instructions was a primary cause
of the failure to obtain a valid test. If the licensee makes a conscious
effort to comply but is unsuccessful because of operator failure, there can
be no refusal. See e.g., PennDot v. Marion, 109 Pa. Commw. 299, 530
A.2d 1053 (1987). (Emphasis added.)
The regulations ofthe Department of Transportation at 67 Pa. Code 9 77.24(b),
include:
Procedures ... Alcohol and breath tests ... shall be performed in
accordance with accepted standard procedures for operation
specified by the manufacturer of the equipment or comparable
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01-2916 CIVIL TERM
procedures. (Emphasis added.)
In Lackman v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, _ Cumberland L.J. _ (opinion filed
September 27,2001), the same claim was made that is being made in the present
case. We stated:
The Operator's Manual of the manufacturer of the Intoxilyzer 5000,
Federal Signal Corporation of Minturn, Colorado, sets forth an operating
procedure for the administration of a breath test. The manual includes the
following:
Request subject to blow into the mouthpiece until the tone
stops; the subject has three minutes to provide an adequate breath
sample. To insure a delivery of a sufficient sample, the display
command requests the subject to blow into the mouthpiece until the
tone stops. The tone, however, does not actually stop until the
subject stops blowing. . .. If the subject stops blowing before
providing a sufficient sample, then 'PLEASE BLOW flashes on the
display and beep sounds every five seconds. If this occurs,
request the subject to blow into the mouthpiece until the tone stops.
* * *
[Algent Mitchem never told petitioner to blow into the mouthpiece
until the tone on the machine stopped. However, he did tell
petitioner to make a tight seal around the mouthpiece, to blow
harder, and to blow in one sustained breath. He repeatedly told
petitioner to make one steady, strong breath until he was told to
stop. In Barner, the Dauphin County court reversed a license
suspension because, on the facts of that case, the court concluded
that "the licensee did make a conscious effort to comply with the
testing but was unsuccessful because of operator failure." Here, in
contrast, we know, despite petitioner's testimony to the contrary,
that he knew how to perform a valid test because he blew a valid
.202% on his third try. On his next sixteen efforts, he failed to do
the same thing that he had just done. When Agent Mitchem
repeatedly told him to make one steady, strong breath, with a tight
seal on the mouthpiece until he was told to stop, something he did
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01-2916 CIVIL TERM
not do, the procedure was comparable to that set forth in the
operator's manual. The procedure used by the Agent complied
with 67 Pa. Code i 77 .24(b). As long as petitioner was
informed on how to successfully complete the test, which he
was, there are no magic words that must be imparted to him.
Our review of the videotape satisfies us that the Agent was correct
in that petitioner did not exert a total conscious effort to complete a
second valid breath test, which he was told how to perform, and
which he knew how to perform. There was no operator error.
(Emphasis added.)
In the case sub judice, the booking agent told petitioner to make a tight seal
around the mouthpiece of the Intoxilyzer 5000, and blow one steady, strong breath into
it until he was told to stop. The Agent repeatedly told petitioner that he was not blowing
enough air into the machine. The Agent blew air into another mouthpiece to show
petitioner exactly how to perform the test. 2 He explained to petitioner that he should
take a deep breath, "like you are forcing up a balloon." The Agent explained to
petitioner that it was a constant beep of the machine that he was looking for, and to
keep blowing air into the machine until he was told to stop.' When petitioner finally
blew a valid test on his seventh try, the Agent told him to do it one more time. Despite
six separate opportunities, petitioner blew virtually no air into the machine. Our review
of the videotape satisfies us that the Agent was correct in his conclusion that petitioner
did not exert a conscious effort to complete a second valid breath test, which he was
2 A factor not present in Lackman.
3 A factor not present in Lackman.
-7-
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01-2916 CIVIL TERM
told how to perform, and which he knew how to perform having just blown a valid test.
There was no operator error. The order of August 8, 2001, dismissing petitioner's
appeal from the suspension of his operator's license for one year pursuant to Section
1547(b)(1) of the Vehicle Code, was properly entered.
~1,.zvo,
(Date)
Edgar B. Bayley, J.
George Kabusk, Esquire
For the Department of Transportation
P. Richard Wagner, Esquire
For Petitioner
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CETIFICATE 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 RAP. 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:
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CHARLES M. FOGARTY
v.
COMMONWEALTH OF PENNSYLVANIA
DEPARTM,ENT OF TRANSPIORTATION
en
...
~
01-2916 CIVIL TERM
2O.H- CD 2001
7/
The documents comprising the record have been numbered from No. 1 to 62 , 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 10-4-01 .
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date
Signature & Title
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Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of CUMBERLAND in the Commonwealth of Pennsylvania
2071 CD 2001
to No. 01-2916 Civil Ter!OTerm, 19 is contained the following:
COPY OF COMPLETE DOCKET ENTRY
CHARLES M. FOGARTY
v.
COMMONWEWALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SEE ATTACHED CERTIFIED DOCKET ENTRIES.
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1:29-53
1154-61
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PYS510
2001-02916
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FOGARTY
Cumberland County Prot~onotary's Office
Civil Case Inqu~ry
CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF
Filed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
5/15/2001
8'06
0/00/0000
0/00/0000
2071 cb 2001
Page 1
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned: BAYLEY EDGAR B
Disposed Desc. :
------------ Case Comments -------------
********************************************************************************
General Index Attorney Info
FOGARTY CHARLES M
17 GUTSHALL ROAD
BOILING SPRINGS PA 17007
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
POBOX 68693
HARRISBURG PA 17123
APPELLANT
WAGNER PRICHARD
APPELLEE
********************************************************************************
* Date Entries *
********************************************************************************
5/15/2001
5/21/2001
8/08/2001
8/31/2001
9/05/2001
9/11/2001
9/11/2001
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-------------------------------------------------------------------
ORDER - DATED 5/.21/01 - IN RE LICENSE SUSPENSION APPEAL - A HEARING
IS SET FOR 7/23/01 AT 2:00 PM IN CR 2 OF THE CUMBERLAND CO~TY
CARLISLE PA - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 5/21/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 8/8/01 - LISCENSE SUSPENSION APPEAL IS
DISMISSED - BY EDGAR B BAyLEY J - COPIES MAILED 8/9/01
-------------------------------------------------------------------
ORDER - DATED 8/30/01 - IN RE PETITION OF CHARLES M FOGARTY IT IS
HEREBY ORDERED THAT A SUPERSEDEAS BE ISSUED AGAINST AGAINST THE
RESPONDENT COMMONWEALTH OF PA DEPT OF TRANSPORTATION STAYING THE
IMPOSITION OF SUPENSIONS OF THE LICENSE OF THE PETITION HEREIN
PENDINGS PERFECTION AND APPEAL TO THE COMMONWEALTH OF PA AND ANY
SUBSEQUENT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 9/4/01
-------------------------------------------------------------------
NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM JUDMENT OF
SUSPENSION ENTER IN THIS MATTER ON 8/8/01 BY EDGAR B BAYLEY J -
BY P RICHARD WAGNER ESQ FOR DEFT
-------------------------------------------------------------------
COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2071 CD 2001
-------------------------------------------------------------------
ORDER OF COURT - DATED 9/11/01 - PETITIONER SHALL PURSUANT TO PA
RULE OF APPELLTE PROCEDuRE 1925 B FILE AND SERVE IN THE CHAMBERS OF
THIS JUDGE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
WITH AN ACCOMPANYING BRIEF WITHIN 14 DAYS OF THIS DATE - BY THE
COURT EDGAR B BAYLEY J COPIES
9/25/2001 STATEMENT OF MATTERS COMPLAINTED OF ON APPEAL PURSUANT TO PA RULES
OF APPELLATE PROCEDURE RULE 1925(B) BY P RICHARD WAGNER ESQ
-------------------------------------------------------------------
TRANSCRIPT LODGED
-------------------------------------------------------------------
OPINION PURSUANT TO PA RULE OF APPELLATE PROCEDURE 1925 - EDGAR B
BAYLEY J - COPIES MAILED 10-3-01
-------------------------------------------------------------------
10/03/2001 TRANSCRIPT FILED
- - - - - - - - - - - - - - LAST ENTRY
~TH'S EXHIBITS
********************************************************************************
* Escrow Information *
* Fees & Debits Beo Bal Pvmts/Adl End Bal *
********************************~********~******~*******************************
9/28/2001
10/03/2001
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
APPEAL
~~ 01 ,. - _, ~
35.00
.50
5.00
5.00
30.00
35.00
.50
5.00
5.00
30.00
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Cumberland County Prot~onotary's Office
Civil Case Inqulry
2001-02916 FOGARTY CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF
PYS510
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned: BAYLEY EDGAR B
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
------------
.00
------------------------
75.50
75.50
Page
2
5/15/2001
8:06
0/00/0000
0/00/0000
2071 cb 2001
********************************************************************************
* End of Case Information *
********************************************************************************
TRue U)PY FROM ReCORD
In Testimony whereof, I hereunto set my hand
~~m. _~~
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Commonwealth of Pennsylvania
County of Cumberland
1 ss:
I, 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
Michael M. Foqartv
In TESTIMONY WHEREOF, I
this 4 th
Plaintiff, and
Comm. of Pennsvlvania
Dent. of Transnortation
Defendant _, as the same remains of record
before the said Court at No.O 1- 2 916 of
Civil Term, A.D. 19__
have hereunto set my hand and affixed the seal of said Court
day of r A. D., I~OOl .
Prothonotary
I, George E. Hoffer President Judge of the Ninth
Judicial District, compQsed of the County of Cumberland, do certify that
CurtJ.s 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 qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record,
certificate and attestation are in due form of law and made by t IC .
Commonwealth of Pennsylvania
County of Cumberland
} ss:
sident Judge
t, Curtis R. Lona , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable Georae E. Hoffer. P. J .
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, t have hereunto
s'if tW hand and affixedd~1:~tJ of said CO~bOTs
of A.D. 19__
Prothonotary
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CHEMICAL TESTING WARNINGS AND REPORT OF
ItEI'llSAl. TO SUBMIT TO CHEMICAl. TiaSTIHO AS
AU1l\Ol'\1ZEtl 8'1 OF THE VEHICLE COllE
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SOCIAL SECIlTlIlY II1JDIft
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...0 .. Fle1lso be odUod fla. yeu.... now under """..10. I!rivlng undo. lIMo Inllutl_ '" alcohol 0'. __ ...bs'...... _no __ 91:11 oJ
. .... Vollida Codo.
.... 2..';' "",uo.linQ d1aI y=" .ubmllI0. dlomtoa'le" a' p.,a..~,., Tl-I ;lQ_ or WIne. QIlIca. __ "" chamIcaI lint)
o 3. .rr. my cluty... aJ',.lfca am.... 10 !nlarm you t1m11l you ../u.. 10 submit., .... ~"_' _tlng pMlflge...lla.uspondod Io..
~ pried of onG rea. _ .
.... 4. al Tho """.lIutionri rights JOu ha... as a erlmlnal dorondanl CQmmonly knawnu1llo M1r::,~1S. irldud.g lIMo righ'''' _""wllltalawyer and
C 111. right..,."""" _t """If onlJ 10 criminal P'O"OctJti""" and do _am 10'" l8dng..- unclar "-Msy_slmpllscl
Cons,", Uw. whJch Is . eMf. nol a criminal proeuodnQ.
bl You how,"" ""hIla .p.....la s (0"10.. 0' any.... _lIot.""!anI IaIdnl/ lIMo _1caI.... requo'lIld by 1IIa pollco 0_ _cia you....... right '"
ramal.ol....Whm ..lAIdbylf1opollcao/flcorla..-It'" Clte_...t UnIo.. you_b_'IOlIMo "",,_l8dby".polIco 0_
your "~Otll:i"Qt wll be deemttd 10 b8 refusal and JOur operating privlege wll M suspanded for OM par.
el y"", "".", '" ,ubmll '" dIemIcaIllISllng _ lIMo ImpllIocl Conurll La.. mal biJllll1Oclucecllnlo.-lno -_-Ior_lng
whlkJ under ItUI' itnuenc. of ak::01'tcI or. ccnlJalhtd SUB,*">>. .
PA
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, " SECTION i547 - CHEMIChJlL TESTING WARNINGS "
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t coerIlly !hall_ ""Ill lha all.....wamInll '" lho matWol "'!larding Ihe ouspsnslon oIl1>1l~ _ling ~ _p...... _""__
nlty 10 wubmR tochsmlcaf toatlnO. '
SIgna.... 01 01_:. ' ~. t;:>. 'lfy-.~ Dole: '" I.~?l - ClI c,~ ~ '(q
I h aV1t been ad.,;"Gd ct lhe abow.
Signature 01 Molorlal;
Dallf:
Motori,. ,elus" to $l;n. ahar bQing .dvllod.
S~natunt of 0fflCGf': '--S-.~ ~ i,:?, \f'r\ -J..-J -\ &> "
Do..:
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APFIDAVlT
,. ihB abovo r/llltonGI was ptaeed under &lrMt lor driving uncS9r tho lnltuontO cll atcoh04 Of . controUed lubstan6J in Ylotalfon 0' gecdon 3731 of the
Vohict-e Coch.lInd Ihgf1l we,. roDlonabhJ orounds to bertOVa that the ahoYII' mclorfsl had been ddvklg~ operallng tit In actual phJ&k:aI control oJ
th, movemGd 0'. mofOf vehk;fo whBe undM lhelnfluunc:e of alcohol cr<< confrow.d lubsttnClf or bolh.
or
Thai the qbm1J nanted molOri.ct waslnvolvod' In an ~nr 'It triIlc:h ,. operamr cr PlUJB1lfl6f 0' any wtNcI8ln\'olwd or. pedeo.1I'fan ntqu1md
t:rsalmonl all medc::al fad6ty or wu Idtred.
2. The abav8' tllI)loffsJ wa. mquested to submJt to cbemh:aJ I9slJnQ as aulborfzed b7 SectIon tS., oJ lb. VRhJehI Code.
3_ The UbOV9 rtIOtorist was tarorrnad by II pcb officer of It1G dNimfc::gJ m!' wamtngs c::cntainad In paragraph 3 and ... .bow.
.t. Th9 .bow n&mtJd motortst ratYsvd to SUbmit: lD chem5caJ t:Qstfng.
01=FlC~R NOlE: lb_ nl".aI to -'gn 1Is1. form .. not a r.fuAJ '0 aubmlt 10 lb. clJemlcal 'hI. You ftluat .1111 gIv_ the _010"''' ell CPPD1'1b-
nllf ra ufe_lb, eII""caJ .... .n., reviewing Ihta Ionn. II tit. IndlvlduaJ WAa op....lInO _ ~m rrtrJal motor y~ whh hawJqJ an,.
.1 echol or a cmtroltwd eub.bnce In thlllr aphm.-JQu ow.. .tao ClJftlpJ... tlI. r.~oI1bh fDnft; ~ ~
suasCRtBEttAm):n'IcRN . . OfncerStgnatuht: ~-". \ ",~..,(~~....,g.", ~
Z TO BUORElIIE: 110. CAY YEAR
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Departmenl of Transportation
SUTS-aU of f)"V9T UCGnsfng
P.O. Box 2253
Hanfsbu rg, P A 17r 05
THiS FORMlolAY BE DUPLICATED
Note: Any pertlnorlllaCIS oot Ctt\I8re-d by-tho nffldovll shoutd be IUbmaUso on a
separate ~h99t and aUaeb9rl oomto. That sheat should lncluda tho nam'G$ oi
addiUcoo.1 witnesses n8ceUtsry to proys lho atomOflts to whleh you havG alta;ted.
ADDITIONAL SUPPlieS OF nus FOAM MAY BE SECUREO BY COMPlEllNG fOR.MOS.S11A
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CETIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPE~LA TE 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 P A RAP. 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:
CHARLES M. FOGARTY
v.
COMMONWEALTH OF PENNSYLVANIA
DEPARTM,ENT OF TRANSPIORTATION
01-2916 CIVIL TERM
2017 CD 2001
The documents comprising the record have been numbered from No. 1 to 62 ,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 10-4-01 .
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date
Signature & Title
.
I .~~ ~
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Among the Records and Proceedings enrolled In the court of Common Pleas in and for the
COPY OF
CUMBERLAND
2071 CD 2001
01-2916 Civil Termrerm,19
COMPLETE
in the Commonwealth of Pennsylvania
county of
to No.
is contained the following:
DOCKET ENTRY
MICHAEL M. FOGARTY
v.
COMMONWEWALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SEE ATTACHED CERTIFIED DOCKET ENTRIES.
'-'~1m~
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Commonwealth of Pennsylvania
County of Cumberland
} ss:
I 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 ofthe whole record ofthe
case therein stated, wherein
Michael M. Foqarty
In TESTIMONY WHEREOF. I
this 4t-h
Plaintiff, and
Comm. of Pennsvlvania
Dent. of Transnortation
Defendant _, as the same remains of record
before the said Court at No.Ol-2916 of
Civil Term, A.D. 19_.
have hereunto set my hand and affixed the seal of said Court
day of A. D., 14!.ooL.
Prothonotary
I. George E. Hoffer President Judge of the Ninth
Judicial District, compQsed" of the County of Cumberland, do certify that
Curt1s 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, atthe time of so doing, and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record,
certificate and attestation are in due form of law and made by t 1C .
Commonwealth of Pennsylvania
County of Cumberland
} ss:
I, Curtis R. Lona . Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable Georae E. Hoffer. P. J .
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 ofthe 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
s'lit'N hand and affixedd~'t~~ of said Co~Ml.is
of A.D. 19_.
Prothonotary
'f' ,"">"~.~"
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PYS510
2001-02916
Cumberland County Prothonotary's Office
Civil Case Inquiry
FOGARTY CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF
1
Page
Reference No..:
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned: BAYLEY EDGAR B
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
5/15/2001
8:06
0/00/0000
0/00/0000
2071 CD 2001
********************************************************************************
General Index Attorney Info
FOGARTY CHARLES M APPELLANT WAGNER PRICHARD
17 GUTSHALL ROAD
BOILING SPRINGS PA 17007
APPELLEE
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
POBOX 68693
HARRISBURG PA 17123
********************************************************************************
* Date Entries *
********************************************************************************
PAGE 00.
2 - 9 5/15/2001
1 5/21/2001
10 8/08/2001
11 - 16 8/31/2001
17 - 21
9/05/2001
22 - 23
24
9/11/2001
9/11/2001
25 - 28 9/25/2001
29 - 53 9/28/2001
54 - 61 10/03/2001
29 - 53 10/03/2001
62 63
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-------------------------------------------------------------------
ORDER - DATED 5/.21/01 - IN RE LICENSE SUSPENSION APPEAL - A HEARING
IS SET FOR 7/23/01 AT 2:00 PM IN CR 2 OF THE CUMBERLAND COUWTY
CARLISLE PA - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 5/21/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 8/8/01 - LISCENSE SUSPENSION APPEAL IS
DISMISSED - BY EDGAR B BAyLEY J - COPIES MAILED 8/9/01
-------------------------------------------------------------------
ORDER - DATED 8/30/01 - IN RE PETITION OF CHARLES M FOGARTY IT IS
HEREBY ORDERED THAT A SUPERSEDEAS BE ISSUED AGAINST AGAINST THE
RESPONDENT COMMONWEALTH OF PA DEPT OF TRANSPORTATION STAYING THE
IMPOSITION OF SUPENSIONS OF THE LICENSE OF THE PETITION HEREIN
PENDINGS PERFECTION AND APPEAL TO THE COMMONWEALTH OF PA AND ANY
SUBSEQUENT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 9/4/01
-------------------------------------------------------------------
NOTICE OF APPEAL TO COMMONWEALTH CO~T OF PA FROM JUDMENT OF
SUSPENSION ENTER IN THIS MATTER ON 8/8/01 BY EDGAR B BAYLEY J -
BY P RICHARD WAGNER ESQ FOR DEFT
-------------------------------------------------------------------
COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2071 CD 2001
-------------------------------------------------------------------
ORDER OF COURT - DATED 9/11/01 - PETITIONER SHALL PURSUANT TO PA
RULE OF APPELLTE PROCEDuRE 1925 B FILE AND SERVE IN THE CHAMBERS OF
THIS JUDGE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
WITH AN ACCOMPANYING BRIEF WITHIN 14 DAYS OF THIS DATE - BY THE
COURT EDGAR B BAYLEY J COPIES
STATEMENT OF MATTERS COMPLAINTED OF ON APPEAL PURSUANT TO PA RULES
OF APPELLATE PROCEDURE RULE 1925(B) BY P RICHARD WAGNER ESQ
-------------------------------------------------------------------
TRANSCRIPT LODGED
-------------------------------------------------------------------
OPINION PURSUANT TO PA RULE OF APPELLATE PROCEDURE 1925 - EDGAR B
BAYLEY J - COPIES MAILED 10-3-01
-------------------------------------------------------------------
TRANSCRIPT FILED
- - - - - - - - - - - - - - LAST ENTRY
~TH 'S EXHIBITS
********************************************************************************
* Escrow Information *
* Fees & Debits Beo Bal Pvmts/Adl End Bal *
*****************************************~******~*******************************
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
APPEAL
"'~
-,.- T'-'
35.00
.50
5.00
5.00
30.00
35.00
.50
5.00
5.00
30.00
.00
.00
.00
.00
.00
t-'"
-~,
-
Cumberland County Prothonotary's Office
Civil Case Inquiry
2001-02916 FOGARTY CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF
keference No..: Filed.. ......:
Case Type.....: APPEAL - LICENSE SUSP Time.........:
Judgment. . . . . . .00 Execution Date
Judge Assigned: BAYLEY EDGAR B Jury Trial....
Disposed Desc.: Disposed Date.
____________ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
_ PY~S510
------------------------ ------------
75.50
75.50
.00
Page
2
5/15/2001
8:06
0/00/0000
0/00/0000
2071 CD 2001
************************************~*******************************************
* End of Case Information *
********************************************************************************
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CHARLES M. FOGARTY,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO: 01-2916 CIVIL TERM
: CIVIL ACTION - LAW
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COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
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NOTICE OF APPEAL
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NOTICE IS HEREBY GIVEN that CHARLES M. FOGARTY, above-named,
hereby appeals to the Commonwealth Court of Pennsylvania from Judgement of
Suspension enter in this matter on the 8th day of August, 2001, by the Honorable Edgar B.
Bayley, Judge of the Court of Common Pleas Court, Cumberland County, Pennsylvania.
The Order has been reduced to judgment and entered in the docket as evidenced by the
attached docket entry.
Respectfully submitted,
er, Hershey & Tully
agner, Esquire
LD. #23103
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
Attorneys for Defendant
Date: 3/ge/tJ/
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CHARLES M. FOGARTY,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO: 01-2916 CIVIL TERM
: CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
ORDER FOR TRANSCRIPT
A NOTICE OF APPEAL, having been filed in this matter, the official court
reporter is hereby order to produce, certifY and ftle the transcript in this matter in
confonnity with Rille 1922 of the Pennsylvania Rules of Appellate Procedure.
Respectfully submitted,
Mancke, Wagner, Hershey & Tully
By
, . Rich
I.D. #23103
2233 North Front Street
Harrisburg, P A 17110
(717) 234-7051
Attorneys for Defendant
Date: S!.3o/tJI
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CHARLES M. FOGARTY,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO: 01-2916 CIVIL TERM
: CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
CERTIFICATE OF SERVICE
I, Debra K. Spinner, Secretary in the law firm ofMANCKE, WAGNER, HERSHEY, &
TULLY, do hereby certifY that I am this day serving a copy of the foregoing document to the
following persons and in the manner indicated below, which service satisfies the requirements of
the Pennsylvania Rules of Appellate Procedure, by depositing the same in the United States Mail,
Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows:
George Kabusk, Esquire
Office of Chief Counsel
Department of Transportation
1101 South Front Street
Harrisburg, P A 17104
The Honorable Edgar B. Bayley
Court of Common Pleas
Cumberland County Courthouse
Carlisle, PA 17013
Court Reporter
Cumberland County Courthouse
Carlisle, P A 17013
DATE: a/dic/
By ~ '-i. ,.20l/!v,'.vJ
Debra K Spinner, Secfetary
MANCKE, WAGNER, HERSHEY & TULLY
2233 North Front Street
Harrisburg, PA 17110
P. Richard Wagner, Esquire
Attorneys for Appellant
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CumberlandCo~nty Prothonotary's Office
Civil Case Inquiry
Page
1.
.
2001-02916 FOGARTY CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF
Reference No..: .
'Case Type.....: APPEAL - LICENSE SUSP'
Judgment:. . . . . . .00
Judge Assigned: BAYLEY EDGAR B
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time. . . . .: . . . ..
Execution Date
Jury Trial....
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
5/15/2001
8:06
0/00/0000
0/00/0000
********************************************************************************
General Index Attorney Info
FOGARTY CHARLES M APPELLANT WAGNER PRICHARD
17 GUTSHALL ROAD
BOILING SPRINGS PA 17007
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
POBOX 68693
HARRISBURG PA 17123
APPELLEE
~
********************************************************************************
* Date Entries *
********************************************************************************
5/15/2001
5/21/2001
8/08/2001
8/31/2001
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-------------------------------------------------------------------
ORDER - DATED 5/.21/01 - IN RE LICENSE SUSPENSION APPEAL - A HEARING
IS SET FOR 7/23/01 AT 2:00 PM IN CR 2 OF THE CUMBERLAND COUNTY
CARLISLE PA - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 5/21/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 8/8/01 - LISCENSE SUSPENSION APPEAL IS
DISMISSED '- BY EDGAR B BAYLEY J - COPIES MAILED 8/9/01
-------------------------------------------------------------------
ORDER - DATED 8/30/01 - IN RE PETITION OF CHARLES M FOGARTY IT IS
HEREBY ORDERED THAT A SUPERSEDEAS BE ISSUED AGAINST AGAINST THE
RESPONDENT COMMONWEALTH OF PA DEPT OF TRANSPORTATION STAYING THE
IMPOSITION OF SUPENSIONS OF THE LICENSE OF THE PETITION HEREIN
PENDINGS PERFECTION AND APPEAL TO THE COMMONWEALTH OF PA AijD ANY
SUBSEQUENT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 9/4/01
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - -
********************************************************************************
* Escrow Information *
* Fees & Debits Beq Bal Pvmts/Adi End Bal *
********************************************************************************
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
35.00
.50
5.00
5.00
35.00
.50
5.00
5.00
.00
.00
.00
.00
------------
.00
45.50
45.50
********************************************************************************
* End of Case Information *
*******************************************************.*************************
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Commonwealth Court of Pennsylvania
Charles R Hostutler
Deputy Prothonotary/Chiel aerk
November 1, 2001
Notice of Discontinuance of Action
RE: Fogarty v. DOT
Appeal of: Charles M. Fogarty
Type of Action: Notice of Appeal
No. 2071 CD 2001
Cumberland County Court of Common Pleas
Agency Docket Number: No. 01-291.6 Civil Term
P.o. Box 11730
Harrisbur.. PA 17108
717.255.1650
The above-captioned matter has been marked "Discontinued" with this court.
Certification is being sent to the lower court.
Attorney Name
Party Name
Harold Cramer, Esq.
George H. Kabusk, Esq.
Paul Richard Wagner, Esq.
Bureau of Driver Licensing
Bureau of Driver Licensing
Charles M. Fogarty
CerIIIied from the FleCOId
. NaV - 1 2001
and Older Exit
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Party Type
Appellee
Appellee
Appellant
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File Copy
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Commonwealth Court of Pennsylvania
Charles R. Hostutler
Deputy Prothonotary/Ollef Gerk
November 1, 2001
P.O. Box 11730
HarrisbU11!. PA 17108
717.255-1650
Notice of Discontinuance of Action
RE:
Fogarty v. DOT
Appeal of: Charles M. Fogarty
Type of Action: Notice of Appeal
No. 2071 CD 2001
Cumberland County Court of Common Pleas
Agency Docket Number:
No. 01-2916 Civil Term
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
Harold Cramer, Esq.
Bureau of Driver Licensing
Appellee
George H. Kabusk, Esq.
Bureau of Driver Licensing
Appellee
Paul Richard Wagner, Esq.
Charles M. Fogarty
Appellant
Oenitied froIn the R8COnf
, NOv - 1 2001
-Onter_
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File Copy
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Commonwealth Court of Pennsylvania
Charles R. Hostutler
Deputy Prolhonornry /Chief Clerk
November 1, 2001
P.O. Box 11730
Hamsburl? PA 17108
717-255-1650
TO:
RE: Fogarty v. DOT
No.2071 CD 2001
Trial Court/Agency Dkt. Number: No. 01-2916 Civil Term
Trial Court/Agency Name~tmflJef1aneFS-6IInty:o@out:l:oL60mrn.Q\l:ELeas=
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
Trial Court Record
Video Tape
Date of Remand of Record: November 26, 2001
Filed Date
October 9, 2001
October 9, 2001
Description
1
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Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing,
dating, and returning the enclosed c~... ~' fP... IhQP2tary ?ffice <;f t~e Chief Clerk's office.
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