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Home My WebLink About03-5871PAUL A. KINERT, Jr., Plaintiff THE HONORABLE HELEN SHULENBERGER, Defendant : iN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW :NO: sa- I NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgmem may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FiND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. PAUL A. KINERT, Jr., Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW THE HONORABLE HELEN SHULENBERGER, Defendant :NO: 0 COMPLAINT IN MANDAMUS AND NOW, comes Paul A. Kinert, Jr., by and through his counsel, Karl E. Rominger, Esquire and pleads the following action In mandamus: 1 .Paul Kinert is an adult individual with an address at 1066 Centerville Road Newville, PA 17241. 2. The Defendant, The Honorable Helen Shulenberger is a District Justice in Cumberland County whose office is located at P.O. Box 155, 27 West Big Springs Avenue, Newville, Pennsylvania. 3. Defendant has jurisdiction over the preliminary hearing phase of criminal matters. 4. A Criminal Complaint was sworn out against Plaintiff by Trooper Michael Mitchell alleging that he committed various traffic related defenses within Defendant's primary jurisdiction. 5. A preliminary hearing was held on Thursday, November 06, 2003, at 9:15 a.m. 6. At the end of the preliminary hearing a subpoena was issued to plaintiff to appear for formal arraignment at the Cumberland County Courthouse on November 12, 2003, at 9:00 a.m. (Exhibit "A") 7. The Court Administrator's Office provides the District Justices with a list of dates for which arraignments are to be set based upon when the preliminary hearing occurs or when the waiver of the preliminary hearing occurs. (Exhibit "B") 8. The District Justices in Cumberland County then place a date in the Subpoena for Formal Arraignment based upon the Court Administrator's promulgated dates and times. 9. A review of Exhibit "B" shows that Plaintiff's arraignment should have been scheduled for December 16, 2003, pursuant to the sheet promulgated to District Justice Shulenberger's Offfice by the Court Administrator. 10. When counsel for Plaintiff questioned the November 12th date, Defendant indicated that she was instructed to set this date by the District Attorney's Office. 11. According to Commonwealth v. Edmunds, 586 A.2d 887 (1991) the District Justice is not a vassal of the police and has the responsibility of being a "disinterested arbiter". 12. In carrying out her function as a District Justice, Defendant should have set the arraignment date based upon the dates which are promulgated to her by the Common Pleas Court for Cumberland County. 13. Defendant informed counsel for Plaintiff that the November 12th was in fact set on the request of the District Attorney. 14. A preliminary hearing is an important procedural step, and the length of time between the preliminary hearing and the arraignment is designed to provide ample time for all parties involved to prepare and/or complete all ministerial tasks which exists in any criminal case which is bound over. 15. The District Justice, in setting the arraignment, should not have unilaterally changed the date at the request of an interested party. 16. The appropriate form for the Commonwealth to seek a change in an arraignment date would be in the Court of Common Pleas. 17. There is no other remedy at law to make Plaintiff whole. 18. Plaintiffthus seeks an Order from this Court directing District Justice Helen Shulenberger rescind the Subpoena for Paul Kinert's attendance at formal arraignment on November 12, 2003, and reissue a Subpoena with the appropriate date and time of December 16, 2003. WHERFORE, Plaintiff respectfully requests this Honorable Court Order District Justice Helen Shulenberger to vacate the Subpoena requiring Paul A. Kinert's attendance at formal arraignment which was issued on November 6, 2003, compelling his presence on November 12, 2003, and instead issue the appropriate and proper Subpoena as required by law and as promulgated by the Court Administrator's Office for December 16, 2003. Date: November 6, 2003 Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff PAUL A. K1NERT, Jr., Plaintiff vi. THE HONORABLE HELEN SHULENBERGER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO: VERIFICATION KARL E. ROM1NGER, ESQUIRE, states that he is the attorney for, Paul A. Kinert, Jr., Plaintiff in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unswom falsification to authorities. Date: November 6, 2003 Karl E. Rominger, Esquire Attomey for Plaintiff COMMONWEALTH OF PENNSYLVANIA V. IN THE COURT OF COM}40N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : o5- : SS#: '" " DATE OF BIRTH: SUBPOENA TO APPEAR FOR FOPJ~AL A~AIGNMENT YOU ~ HEREBY ORD~-I~ED AND SUBPOENAED TO APPEAR, before the Court of Common Pleas of Cumberland County for the purpose of formal arraignment on: at the Jury Assembly Room, Fourth Floor, Cumberland County Courthouse One Courthouse Square, Carl i s lc, Pennsylvania. %~ (Bring this notice with you) If You fail to appear a bench warrant will be issued for your arrest. At that time you will receive a copy of the Criminal Information filed against you and you will receive the dates of future required Court appearances. Your attorney must appear with you and private counsel must enter their appearance at this time. If you are represented by a Public Defender or you want a Public Defender to be appoin'~ed to represent you, you should report to the Cumberland County Public Defender office, 3rd Floor, East Wing, Cumberland County Court House 1/2 hour before the time referenced above. If yOU have private counsel, and wish to arrange for arraignment or entry ofw th YO~ att a gulltYrPlea. ' r~ y to the criminal charge(s), your attorney must make an appointment for you to appear 1 o e in the Clerk of Courts Office or in Court before the above date. You would then receive the date of your pre trial conference and date of the trial term when your trial would be scheduled. I accept service of the Subpoena to Appear For Formal Arraignment. WITNESS, the Date of Service: Honorable President Judge SEAL Defendant Di~trzct Justice Clerk of Courts White * Clerk of Court · Canary - District Attorney Pink - Defense Attorney · Goldenrod - Defendant Mov 06 03 10:36a District Court 09-3-03 ?17-486-0224 10/lq/~0~3 13:1~ 717737~779 DISTRICT COURT 89384 P~6~ 82 p.! PAUL A. KINERT,JR. Plaintiff THE HONORABLE HELEN SHULENBERGER, Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : NO: CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Complaint in Mandamus upon the following by hand delivery addressed as follows: The Honorable Helen Shulenberger P.O. Box 155, 27 West Big Springs Avenue Newville, Pennsylvania. Dated: November 6, 2003 Karl E. Rominger, Esquire Attorney for Plaimiff PAUL A. KINERT,JR. Plaintiff V THE HONORABLE HELEN SHULENBERGER, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO: 03-5871 AMENDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Paul A. Kinert, Jr., do hereby certify on November 6, 2003, a Copy of the Complaint in Mandamus was served upon District Justice Helen Shulenberger via facsimile at (717) 776-9284. Receipt of which was acknowledged by District Justice Shulenberger's Office on Friday, November 07, 2003. A copy of the Complaint in Mandamus was also given to the Sheriff of Cumberland County along with applicable filing fees to be served on District Justice Helen Shulenberger at her office address of 27 West Big Spring Avenue, P.O. Box 155, Newville, PA 17241. Dated: November 7, 2003 Karl E. Rominger, Esquire Attorney for Plaintiff PAUL A. KINERT, JR., Relator HONORABLE HELEN B. SHULENBERGER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5871 CIVIL TERM ORDER OF COURT AND NOW, this 10th day of November, 2003, upon consideration of Defendant's Request for Peremptory Judgment Pursuant to Pa. R.C.P. 1098, the request is denied, without prejudice to Defendant's right to pursue a habeas corpus motion previously filed in D ' ' ' efendant s criminal case. ~K~arl Rominger, Esq. Attorney for Paul A. Kinert, Jr. .Tile Honorable Helen B. Shulenberger :rc BY THE COURT, J~esley Oler, FJ II-13 PAUL A. KINERT, Jr., Plaintiff THE HONORABLE HELEN SHULENBERGER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : NO: 03-5871 PRAECIPE TO DISCONTINUE TO THE PROTONOTARY: Please mark the above captioned action discontinued. Respectfully submitted, ROMINGER & BAYLEY Date: November 13, 2003 Karl E. Rmninger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney fc,r Plaintiff cc. The Honorable Helen Shulenberger SHERIFF'S RETURN - REGULAR CASE NO: 2003-05871 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KINERT PAUL A JR VS SHULENBERGER HELEN HON RICHARD SMITH , Cumberland County, Pennsylvania, Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the 7th day of November , __ by handing to together with says, the within COMPLAINT & NOTICE SHULENBERGER HELEN HON DEFENDANT , at 1355:00 HOURS, on the at 27 WEST BIG SPRING AVENUE NEWVILLE, PA 17241 MEG MILLER, SECRETARY a true and attested copy of COMPLAINT & NOTICE 2003 and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this /g ~ day of ~r~thonotary So Answers: R. Thomas Kline ii/10/2003 ROMINGER & BAYLEY By: ~~ ~riff