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HomeMy WebLinkAbout08-5173STEVEN D. BURKHOLDER, Petitioner VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMA : CUMBERLAND COUNTY, PI :NO. 2008- 5-1 7 3 CIVIL : APPEAL FROM DRIVER'S L : SUSPENSION PETITION FOR APPEAL Petitioner, Steven D. Burkholder, by her attorneys, Martson Deardorff & Faller, sets forth the following: 1 Petitioner is Steven D. Burkholder, an adult individual residing at 414 Boiling Springs, PA, 17001. 2 On July 30, 2008, the Director of the Bureau of Driver Licensing for Department of Transportation suspended Petitioner's operating privileges f year effective September 3, 2008. A copy of the Suspension Notice is att marked as Exhibit "A". 3 PLEAS NSYLVANIA Otto Gilroy Kaufman Street, the Pennsylvania Dr a period of one hereto and The Order suspending Petitioner's license as set forth on Exhibit A is illegal, arbitrary, unreasonable, an abuse of discretion, contrary to law, untimely issued, and a violation of the Petitioner's Constitutional Rights. 4 Petitioner seeks a de novo Hearing to determine whether the license suspension is appropriate. WHEREFORE, the Petitioner requests this Honorable Court to set a hearing to address the issues raised in this Petition. Respectfully submitted, Date: 8/0? -1/09 i? Katie J. well, Esquire .n. 67GoiB Martson Deardorff Williams Otto Gilroy & Faller Attorney for Petitioner EXHIBIT A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: JULY 30, 2008 STEVEN DAVID BURKHOLDER WID 08205611 414 KAUFFMAN STREET PROCESSING DATE BOILING SPGS PA 17007 DRIVER LICENSE DATE OF BIRTH Dear MR. BURKHOLDER: This is an Official Notice of the Suspension of your t Privilege as authorized by Section 1547B1I o Pennsylvania Vehicle Code. As a result of your vic of Section 1547 of the Vehicle Code, CHEMICAL TEST RE on 07/04/2008: ¦ Your driving privilege is SUSPENDED for a pert YEAR(S) effective 09/03/2008 at 12:01 a.m. ?429547 001 07/23/2008 k 19853432 14/11/1963 riving F the lation FUSAL, of 1 COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 09/03/2008. You may surrender these items before, 09/03/2008, for a rlier credit; however, you may not drive after these ite s are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for cost of $10.00. You must present two (2) forms of roper identification (e.g., birth certificate, valid U.S. Passport, marriage certificate, etc.) in order to btain your photo identification card. You will not receive credit toward serving any susp nsion until we receive your license(s). Complete the fol owing steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's lice learner's permits and/or camera cards to PennDOT you do not have any of these items, send a notarized letter stating you are aware of the suspe of your driving privilege. You must specify in letter why you are unable to return your dri license. Remember: You may not retain your dri license for identification purposes. Please send items to: nses, If sworn nsion Your ver's ver's these 082056117429547 Pennsylvania Department of Transpo Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Penns driver's license(s), learner's permit(s), and/or notarized letter, PennDOT will send you a confirming the date that credit began. If you receive a receipt from us within 3 weeks, please our office. Otherwise, you will not be given toward serving this suspension. PennDOT phone are listed at the end of this letter. 3. If you do not return all current driver products, we must refer this matter to the Penns! State Police for prosecution under SECTION 157: of the Pennsylvania Vehicle Code. tation ?lvania 3 sworn ,eceipt do not :ontact credit umbers icense lvania (a) (4) PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following ste s: 1. Return the enclosed Application for Restoration amount due is listed on the application. 2. Write your driver's license number (listed on the page) on the check or money order to ensure credit. 3. Follow the payment and mailing instructions on tl of the application. APPEAL You have the right to appeal this action to the Co Common Pleas (Civil Division) within 30 days of th date, JULY 30, 2008, of this letter. If you file an in the County Court, the Court will give you a time-s certified copy of the appeal. In order for your app be valid, you must send this time-stamped certified c the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. must return all current Pennsylvania driver license prc to PennDOT by 09/03/2008. The first proper back in of mail appeal tamped gal to )py of You ducts 082056117429547 Sincerely, ?-U'b g ? Janet L. Dolan, Direc or Bureau of Driver Lice sing INFORMATION 8:00 a m to 6.00 P.M. IN STATE 1-800-932-4600 TDD IN STATE -800-228-0676 OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa us m y 1 v a t D AUG 2 9 2000p STEVEN D. BURKHOLDER : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA VS. : No. OY- S-173 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, : APPEAL FROM DRIVER'S LICENSE Respondent :SUSPENSION COURT ORDER AND NOW, this day of ? yj;;??008, upon consideration of the foregoing Petition For Appeal from an Order of the Director of the Bureau of Driver Licensing, a hearing is granted de novo to determine whether the Petitioner is subject to the suspension of his operating privileges as set forth in the Petition. A hearing is scheduled in Courtroom No. of the Cumberland County Courthouse on the d day of , 2008 at d7' 30 4-.m at which time the issues raised in this Petition will be heard. This appeal shall act as a supersedeas of the Suspension Order issued by the Department of Transportation on July 30, 2008 and relating to the suspension of Petitioner's license effective on September 3, 2008. Petitioner's counsel is directed to serve a copy of the attached Petition and this Order on the appropriates offices of the Pennsylvania Department of Transportation. Judge Cc: tie J. Maxwell, Esquire ffice of the Chief Counsel of Penn-DOT / A0 6 STEVEN D. BURKHOLDER, Petitioner VS COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-5173 CIVIL TERM APPEAL FROM DRIVER'S LICENSE SUSPENSION ORDER OF COURT AND NOW, this 3rd day of November, 2008, after hearing the testimony and the arguments of counsel, we are satisfied that the Trooper read items 1, 2, 3, and 4 of Document No. 2 from Exhibit No. 1 to Petitioner. We also find as a fact that the Officer did not sign or date the form immediately under those warnings. He did, however, sign the form at the bottom. Petitioner is given 10 days to file a brief in support of his position. The Commonwealth may have 10 days thereafter to file a reply brief. We will then issue our decision after reviewing the briefs. By t Court, Edward E. Guido, J. ? Hubert X. Gilroy, Esquire /For Petitioner Office of the Chief Counsel of PennDOT mlc t r S m? t CAL lip /! ??08 2? '8 PV L- 0 BQOZ 1.34 j 1?"Vi".:tic. if'? l1 STEVEN BURKHOLDER THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, NO. 2008 - 5173 CIVIL TERM : CIVIL ACTION -LAW ORDER OF COURT AND NOW, this 12TH day of DECEMBER, 2008, after hearing the evidence and having reviewed the briefs filed by each party, Petitioner's appeal is DISMISSED and the Department's action suspending his operating privileges is AFFIRMED. By the Court,,, Edward E. Guido, J. XTIE J. MAXWELL, ESQUIRE ,XEPARTMENT OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA RIVERFRONT OFFICE CENTER 1101 SOUTH FRONT STREET HARRISBURG, PA 17104 c ??? : sld ...(\ Q M 7A ??: Z ...t ..? yy?r 4' i S `,1 .... ?.1.? ? Z ? : ? '??? Z l ??fl ???Z Steven D. Burkholder, : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-5173 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondant APPEAL FROM DRIVER'S LICENSE SUSPENSION PRAECRE FOR ENTRY OF APMRANCE TO THE PROTHONOTARY OF SAID COURT: Please enter the appearance of Brian O. Williams, Esquire, on behalf of the Petitioner in the above-captioned case. Date Respectfully Submitted, TURO LAW OFFICES V04 Brian O. Williams, Esquire Attorney for Plaintiff Attorney I.D. 209610 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 co I Steven D. Burkholder, Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-5173 CIVIL TERM APPEAL FROM DRIVER'S LICENSE SUSPENSION NOTICE OF APPEAL Notice is hereby given that Steven D. Burkholder, Plaintiff above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on December 12, 2008. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully Submitted, / A? Date 0, sy A Brian O. Williams, Esquire Attorney for Plaintiff Attorney I.D. 209610 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Steven D. Burkholder, Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-5173 CIVIL TERM APPEAL FROM DRIVER' S LICENSE SUSPENSION A Notice of Appeal having been filed in this matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. ?dla 0 Date rian O. Williams, Esquire Attorney for Plaintiff Attorney I.D. 209610 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 r Steven D. Burkholder, : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-5173 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondant APPEAL FROM DRIVER' S LICENSE SUSPENSION PROOF OF SER VICE I hereby certify that I am this date serving the following documents: Notice of Appeal; Proof of Service, upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 906. Service by personal service at the following offices: Philip M. Bricknell, Esquire Department of Transportation Office of Chief Counsel 1101 South Front Street 3`d Floor Harrisburg, PA 17104 Phone: 1-800.932-4600 Court Stenographer Cumberland County Court House Carlisle, PA 17013 Phone: (717) 240-6200 Hon. Edward E. Guido Melissa Calvanelli Judge, Court of Common Pleas Court Administrator Cumberland County Court House Cumberland County Court House Carlisle, PA 17013 Carlisle, PA 17013 Phone: (717) 240-6296 Phone: (717) 240-6200 Date 'an O. Williams, Esquire Attorney for Plaintiff Attorney I.D. 209610 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 11073401122009 Cumberland County Prothonotary's Office PYSS10 Civil Case Print '2008-05173 BURKHOLDER STEVEN D (vs) PENNSYLVANIA COMMONWEALTH OF Reference No... Case Type.....: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: Disposed Desc.: ------------ Case Comments ------------- Page 1 Filed......... 8/27/2008 Time.......... 4:13 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt l.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info BURKHOLDER STEVEN D APPELLANT MAXWELL KATIE J 414 KAUFMAN STREET BOILING SPRINGS PA 17001 PENNSYLVANIA COMMONWEALTH OF APPELLEE BRICKNELL PHILIP M DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL 1101 SOUTH FRONT ST 3RD FLR HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - 8/27/2008 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - BY KATIE J MAXWELL ATTY FOR PLFF ------------------------------------------------------------------ 9/04/2008 COURT ORDER DATED 09-03-08 - A HEARING IS SCHEDULED FOR 11-03-08 AT 9:30 AM IN CR#3 - BY THE COURT EDWARD E GUIDO J - COPIES MAILED ------------------------------------------------------------------- 11/07/2008 ORDER OF COURT - 11/3/08 - AFTER HEARING THE TESTIMONY AND THE ARGUMENTS OF COUNSEL WE ARE SATISFIED THAT THE TROOPER READ ITEMS 1 2 3 4 OF DOCUMENT NO 2 FROM EXHIBIT NO 1 TO PETITIONER - WE ALSO FIND AS A FACT THAT THE OFFICER DID NOT SIGN OR DATE THE FORM IMMEDIATELY UNDER THOSE WARNINGS - HE DID HOWEVER SIGN THE FORM AT THE BOTTOM - PETITIONER IS GIVEN 10 DAYS TO FILE A BRIEF IN SUPPORT OF HIS POSITION - THE COMMONWEALTH MAY HAVE 10 DAYS THEREAFTER TO FILE A REPLY BRIEF - WE WILL THEN ISSUE OUR DECISION AFTER REVIEWING THE BRIEFS - BY EDWARD E GUDIO J - COPIES MAILED 11/7/08 ------------------------------------------------------------------- 12/12/2008 ORDER OF COURT - 12/12/08 - AFTER HEARING THE EVIDENCE AND HAVING REVIEWED THE BRIEFS FILED BY EACH PARTY - PETITIONERS APEPAL IS DISMISSED AND THE DEPARTMENTS ACTION SUSPENDING HIS OPERATING PRIVILEGES IS AFFIRMED - BY EDWARD E GUIDO J - COPIES MAILED 12/12/08 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Bw*Bal***P*ymts/Add End Bal *********************************** ****** ******************************* APPEAL LIC SUSP 55.00 55.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 ------------------------ ------------ 78.50 78.50 .00 ******************************************************************************** * End of Case Information TRUE COPY FR( ,k4 PECORD w. TaNerovy whereof, I r to set my hW sW tonal of said C Pa. 14 ? , 0 .... day aa.. o©? ? ? t... ? ?? ? t ? ? ? ? Cam, ? ? a'' ' ..?. i ti Cti pry ' ? ?'{ -+? ? 1, ! v (?} ?1 ?? d Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 5012 - 10/99 10/1/99 Commonwealth Court of Pennsylvania www.aopc.org January 13, 2009 RE: Burkholder v. DOT No.: 56 CD 2009 Agency Docket Number: 2008-5173 Filed Date: January 12, 2009 Notice of Docketing Appeal A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible Attorney Name Party Name Party Type Philip Murray Bricknell, Esq. Bureau of Driver Licensing Appellee Brian Oliver Williams, Esq. Steven D. Burkholder Appellant Address all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Irvis Office Building Harrisburg, PA 17120 (717) 255-1650 Filings may be made in person at the following address (except on Saturdays, Sundays and holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Sixth Floor Irvis Office Building Harrisburg, PA 17120 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Comonwealth Court shall exit only from the Harrisburg Office. rn W STEVEN D. BURKHOLDER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2008 - 5173 CIVIL TERM APPEAL FROM DRIVER'S LICENSE SUSPENSION ORDER OF COURT AND NOW, this 13TH day of JANUARY, 2009, pursuant to Pa.R.C.P. 1925, Plaintiff/Petitioner Steven Burkholder shall file of record and serve on this judge, within twenty-one (21) days of this date, a concise statement of errors complained of on appeal. Any issue not properly included in the concise statement timely filed and served pursuant to Rule 1925(b) shall be deemed waived. ? Brian 0. Williams, Esquire For the Plaintiff ,/Philip M. Bricknell, Esquire Department of Transportation Court Reporter :sld 1 'AES I'Y z (LCL B e our , Edward E. Guido, J. bits'VA-tA NN3d ZS .C Wd £ i WVf 6001 A8ViQN -&,l d 3Hi -4U i?? 431Y STEVEN D. BURKHOLDER, : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-5173 CIVIL TERM COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondent : APPEAL FROM DRIVER'S LICENSE SUSPENSION MOTION FOR SUPERSEDERS 1. Petitioner is Steven D. Burkholder, an adult individual residing at 414 Kaufman Street, Boiling Springs, PA 17001. 2. On July 30, 2008, the Director of the Bureau of Driver Licensing for the Pennsylvania Department of Transportation suspended Petitioner's operating privileges for a period of one year effective September 3, 2008. A copy of the Suspension Notice is attached hereto and marked as Exhibit "A". 3. On August 27, 2008, Petitioner requested a de novo Hearing to determine whether the license suspension was appropriate. 4. A hearing was held before the Honorable Edward E. Guido on November 3, 2008, and on December 12, 2008, an Order was issued which dismissed the Petitioner's appeal and affirmed the Department's action suspending his operating privileges. A copy of the Order is attached hereto and marked as Exhibit "B" 5. On January 12, 2008 Petitioner filed a Notice of Appeal to the Commonwealth Court of Pennsylvania. A copy of the Notice of Appeal is attached hereto and marked as Exhibit GGC" 9 6. The sole issue on appeal is to determine whether the suspension was fair and appropriate. 7. The test for whether an applicant is entitled to a supersedeas pending appeal pursuant to 75 Pa.C.S. § 1550(b)(1), has been established by the Pennsylvania Supreme Court. 8. The test is found in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983) which is: (1) the petitioner makes a strong showing that he is likely to prevail on the merits; (2) the petitioner has shown that without the requested relief, he will suffer irreparable injury; (3) the issuance of a supersedeas will not substantially harm other interested parties in the proceedings; and (4) the issuance of a stay will not adversely affect the public interest 9. Petitioner is likely to prevail on the merits because (1) the police officer did not properly inform the Petitioner of his consequences of refusal and (2) the Petitioner did not knowingly and consciously refuse to take the breath test as evidenced by the video and as documented in Form DL-26. 10. Petitioner would suffer an irreparable injury because he is the President of Family Home Medical, which provides home health care products to consumers and he is required to travel to meet with his clients. The loss of his driving privileges would render him unable to adequately perform his duties. 11. Petitioner is under consideration for the A.R.D. Program and would not substantially harm other interested parties in the proceedings. 12. The issuance of a stay would not adversely affect the public interest, as this is Petitioner's first offense and is currently awaiting acceptance into the A.R.D. Program. 13. The Department of Transportation, opposing party, does object to this Motion for Supersedes. WHEREFORE, Petitioner requests this Honorable Court to GRANT supersedeas of the Suspension Order issued by the Department of Transportation on July 30, 2008 and relating to the suspension of Petitioner's license effective on September 3, 2008 pending the appeal to the Commonwealth Court. D e Respectfully Submitted, Brian O. Williams, Esquire Attorney for Plaintiff Attorney I.D. 209610 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 EXHIBIT A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Nail Date: JULY 30, 2008 STEVEN DAVID BURKHOLDER YID ; 08205613 414 KAUFFMAN-STREET PROCESSING DATE DRIVER LICENSE BOILING SPGS PA 17007 DATE OF BIRTH Dear MR. BURKHOLDER: This is an Official Notice of the Suspension of your 1 Privilege as authorized by Section 1S4791I a Pennsylvania Vehicle Code. As a result of your vii of Section 1547 of the Vehicle Code, CHEMICAL TEST RI on 07/04/2008: ¦ Your driving privilege is SUSPENDED for a Pori YEAR(S) effective 09i03i2008 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's lie learner's permits, temporary driver's licenses cards) in your possession on or before 09/03/2008. Y surrender these items before, 09/03/2008, for e credit; however, you may not drive after these itei surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR tDZMTlF7 PURPOSES. However, you may apply for and obtain a identification card at any Driver License Center for of $10.00. You must present two (2) forms of identification (e.g., birth certificate, valid passport, marriage certificate, etc.) in order to your photo identification card. 1429547 001 07/23/2008 ? 19853432 14/11/1963 riving F the lation FUSAL, of 1 enses, :agora ou may rlier s are ATION Photo cost roper U. S. btain You will not receive credit toward serving any susp nsion until we receive your license(s). Complete the fol owing steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's lic nses, learner's permits and/or camera cards to PennDOT If you do not have any of these items, send a sworn notarized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your dri er's license. Remember: You may not retain Your dri er's license for identification purposes. Please send hese items to: 082056117429547 Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Penns lvania driver's license(s), learner's permit(s), and/or sworn notarized letter, PennDOT will send you a eceipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please ontact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone umbers are listed at the and of this letter. 3. If you do not return all current driver 1cense products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(n)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be r stored from a suspension/revocation of your driving privile e. To pay your restoration fee, complete the following ste st 1. Return the enclosed Application for Restoration amount due is listed on the application. 2. Write your driver's license number (listed on thi page) on the check or money order to ensure credit. 3. Follow the payment and mailing instructions on ti of the application. APPEAL You have the right to appeal this action to the Co Common Pleas (Civil Division) within 30 days of th, date, JULY 30, 2008, of this letter. If you file an in the County Court, the Court will give you a time-9 certified copy of the appeal. In order for your app be valid, you must send this time-stamped certified c the appeal by certified mail tot Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 The first roper back rt of mail ppeal al to py of Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license Pr ducts to PennDOT by 09/03/2008. EXHIBIT B STEVEN BURKHOLDER : THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, : NO. 2008 - 5173 CIVIL TERM CIVIL ACTION -LAW AND NOW, this 12TH day of DECEMBER, 2008, after hearing the evidence and having reviewed the briefs filed by each party, Petitioner's appeal is DISMISSED and the Department's action suspending his operating privileges is AFFIRMED. By the Court, .! t Edward E. Guido, J. XTIE J. MAXWELL, ESQUIRE APARTMENT OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA RTVERFRONT OFFICE CENTER 1101 SOUTH FRONT STREET HARRISBURG, PA 17104 t :sld t u, 5: EXHIBIT C Steven D. Burkholder, Petitioner V. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-5173 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondent APPEAL FROM DRIVER'S LICENSE SUSPENSION o j--- I NOTICE OF APPEAL _--? t_+ cY -? ? ?y Notice is hereby given that Steven D. Burkholder, Plaintiff above named,'?eref d ap is to the Commonwealth Court of Pennsylvania from the Order entered in this matter on December 12, 2008. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully Submitted, I A? f Date r 1 V s? 0, Brian O. Williams, Esquire Attorney for Plaintiff Attorney I.D. 209610 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 CERTIFICATE OF SERVICE I hereby certify that on January 15, 2009, I served a true and correct copy of the foregoing Motion on the following counsel: Philip Bricknell, Esquire Department of Transportation Vehicle and Law Division River Front Office Center 3rd Floor 1101 S. Front Street Harrisburg, PA 17104 (717) 787-2830 Brian O. Williams, Esquire z?. Ln 5 JAN 16 2009 G Steven D. Burkholder, : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA a. : NO. 2008-5173 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondent : APPEAL FROM DRIVER'S LICENSE : SUSPENSION ORDER OF COURT AND NOW, this P1 day of January 2009, upon consideration pf titipn is °6 request for a su ersedeas pursuant to 75 Pa.C.S. § 1550(b)(1) in this matter, tit n... r^"4 t.9.W0 ; &A, 4N f ? . IM .7 _T?'22"MMOM The De hall reinstate petitioner's operating privileges pursuant to P § 1550(b)(1) of the Vehicle Code until the Commonwealth Court has decided the merits of this appeal. B e Court: Edward E. Guido J. CC: Xrian O. Williams, Esquire For the Plaintiff Alip M. Bricknell, Esquire 1 Department of Transportation oE.,. 9 E:?i W 1 Z Nvr 6082 -301.404,131lj Steven D. Burkholder, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-5173 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondent APPEAL FROM DRIVER'S LICENSE SUSPENSION Concise Statement of Errors Complained on Aimed 1. The Commonwealth has the burden of proving by competent evidence that the proper warnings were given. The testimony presented in the lower court does not support a finding that the Trooper gave the warnings as required under 75 Pa.C.S. §1547. 2. If the Court finds that warnings were given, there is no competent evidence that the warnings were those specifically required by 75 Pa.C.S. §1547. 3. The Commonwealth has failed to prove by competent evidence that the Trooper advised the Defendant that his license would be suspended if he refused and therefore the Defendant cannot have knowingly refused to take the test. Respectfully Submitted, :215le Dt Brian O. Williams, Esquire Attorney for Plaintiff Attorney I.D. 209610 Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 ? ?; ?? ?r ? ?-? t N ,411- STEVEN D. BURKHOLDER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF : NO. 2008 - 5173 CIVIL TERM PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., February I a. , 2009 The petitioner has filed this appeal from our order of December 12, 2008, which affirmed the suspension of his operating privileges for failure to submit a breath test as required by Section 1547 of the Vehicle Code.' He contends that the evidence was insufficient to prove that he was given the warnings required by Section 1547 (b)(2).2 Section 1547 (b)(2) of the Vehicle Code provides: It shall be the duty of the police officer to inform the person that: (i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). 75 Pa. C.S.A. § 1547 (b)(2). Trooper Matthew Johnston of the Pennsylvania State Police testified that he read "the standard DL 26 Penn DOT Form" to petitioner "as he was seated in the chair directly in front of the intoxilyzer machine. ,3 The warnings read to petitioner comply with the '75 Pa. C.S.A. § 1547. 2 See "Concise Statement of Errors Complained of on Appeal." 3 Transcript of Proceedings, November 3, 2008, p. 12. 4" l requirements of Section 1547(b)(2) of the Vehicle Code.4 He further testified that he read all of the warnings contained on the form in their entirety.5 We found the Trooper's testimony to be credible. DATE />3nan O. Williams, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, Pa. 17013 flip M. Bricknell, Esquire Department of Transportation Commonwealth of Pennsylvania , Riverfront Office Center 1101 South Front Street Harrisburg, Pa. 17104 : sld Edward E. Guido, J. 4 See Document #2 of Commonwealth's Exhibit # 1. 5 Transcript of Proceedings, November 3, 2008, pp. 13-14. -ull"I"! Al 1 0 :1 Wd Z 1931 600Z ,l 'd1G N?`,')H Obd ?Hl 20 ?"€:!2(-, -mIy CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Steven D. Burkholder vs Commonwealth of Pennsylvania Department of Transportation 08-5173 Civil Term 56 CD 2009 The documents comprising the record have been numbered from No.1 to 67, 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 0211/2009 C s R. Long, on ary Regina L An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of g5 C rrberl and in the Commonwealth of Pennsylvania to No. 0V5?Cpp 1732C01vi1 Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Steven D. Burkholder Petitioner VS. Cannonwealth of Pennsylvania, Departrnent of Transportation Respondent **SEE CERTIFIED COPY OF THE DOCKET ENTRIES** Commonwealth of Pennsylvania County of Cumberland ss: Curtis R. Long , Prothonotary In TESTIMONY WHEREOF, I.have hereunto this 19th 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 Steven D. Burkholder Plaintiff, and CCGEXnctrealth of Penn-gyl van i a ,_D=ar+ nent of Tran?,nnr.ation Defendant , as the same remains of record before the said Court at No. 08-5173 of ('i:&ri l Term, A.D. 19 . set my hand and affixed the seal of said Court day of -?r-?,- 4-A. D., *.gg9 Prothonotary 1 Edgar B. Bayley President Judge of the N:Lnt:h Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned a lified to all of whose acts as such full faith and credit are and ought to be given as well in Court judicat a and that the said record, certificate and attestation are in due form of law n made b he p r of cer. G 1[-' resident Judge Commonwealth of Pennsylvania County of Cumberland ss: 1, Oirtia R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 19th day of D.392Ma. Prothonotary b 0 s 0 0 w -s•1 I c. ? y b a ?' ro Fi O a N n O d n 0 c I i G r? y d ? o a cell i G Y coo .o I I PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2008-05173 BURKHOLDER STEVEN D (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: 8/27/2008 Case Type.....: APPEAL - LICENSE SUSP Time.......... 4:13 Judgment.......: .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 56 CD 2009 Higher Crt 2.: General Index Attorney Info BURKHOLDER STEVEN D APPELLANT MAXWELL KATIE J 414 KAUFMAN STREET WILLIAMS BRIAN 0 BOILING SPRINGS PA 17001 PENNSYLVANIA COMMONWEALTH OF APPELLEE BRICKNELL PHILIP M DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL 1101 SOUTH FRONT ST 3RD FLR HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - '7 (p 8/27/2008 ATTYAL FROM SUSPENSION OF DRIVERS LICENSE - BY KATIE J MAXWELL FOR PLFF ---------------=--------------------------------------------------- 9/04/2008 COURT ORDER DATED 09-03-08 - A HEARING IS SCHEDULED FOR 11-03-08 AT 9:30 AM IN CR#3 - BY THE COURT EDWARD E GUIDO J - COPIES MAILED ------------------------------------------------------------------- 11/07/2008 ORDER OF COURT - 11/3/08 - AFTER HEARING THE TESTIMONY AND THE ARGUMENTS OF COUNSEL WE ARE SATISFIED THAT THE TROOPER READ ITEMS 1 2 3 4 OF DOCUMENT NO 2 FROM EXHIBIT NO 1 TO PETITIONER - WE ALSO FIND AS A FACT THAT THE OFFICER DID NOT SIGN OR DATE THE FORM IMMEDIATELY UNDER THOSE WARNINGS - HE DID HOWEVER SIGN THE FORM AT THE BOTTOM - PETITIONER IS GIVEN 10 DAYS TO FILE A BRIEF IN SUPPORT OF HIS POSITION - THE COMMONWEALTH MAY HAVE 10 DAYS THEREAFTER TO FILE A REPLY BRIEF - WE WILL THEN ISSUE OUR DECISION AF?E1 REVIEWING THE BRIEFS - BY EDWARD E GUDIO J - COPIES MAILED 11 7//08 ------------------------------------------------------------------- 12/12/2008 ORDER OF COURT - 12/12/08 - AFTER HEARING THE EVIDENCE AND HAVING REVIEWED THE BRIEFS FILED BY EACH PARTY - PETITIONERS APEPAL IS DISMISSED AND THE DEPARTMENTS ACTION SUSPENDING HIS OPERATING PR VI EGES IS AFFIRMED - BY EDWARD E GUIDO J - COPIES MAILED 12?12?08 ---------------=--------------------------------------------------- 9 1/12/2008 PRAECIPE FOR ENTRY OF APPEARANCE FOR PETITIONER - BY BRIAN 0 WILILAMS ESQ ------------------------------------------------------------------- 10..13 1/12/2009 NOTICE OF APPEAL TO SUPERIOR COURT - BY BRIAN O WILLIAMS ATTY FOR PLFF ------------------------------------------------------------------- M13//091jN4?0 9 NOTICE OF APPEAL - BY EDWARD E 1/13/2009 ORDER OF-COURT // ------------------------------------------------------------------- 1/15/2009 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING #56 CD 2009 ------------------------------------------------------------------- a 3611/15/2009 MOTION FOR SUPERSEDEAS - BY BRIAN 0 WILLIAMS ATTY FOR PLFF ---------------7--------------------------------------------------- 3 1/21/2009 TRANSCRIPT OF-PROCEEDINGS -_-BY-EDWARD -E GUIDO J a? 1/21/2009 ORDER OF COURT - 1/21/09 IN RE: MOTION FOR SUPERSEDERS - IT HAVING BEEN RELATED THAT RESPONDENT DOES NOT OBJECT THE SUPERESEDEAS IS GRANTED - BY EDWARD E GUIDO J - COPIES MAILED 1/21/09 ------------------------------------------------------------------- 2/03/2009 CONCISE STATEMENT OF ERRORS COMPLIANED ON APPEAL - BY BRIAN 0 WILLIAMS ATTY FOR PLFF ------------------------------------------------------------------- 2/12/2009 ORDER - IN RE: OPINION PURSUANT TO PA R A P 1925 - DATED FEBRUARY 12, 2009 BY EDWARD E GUIDO J PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2008-05173 BURKHOLDER STEVEN D (vs) PENNSYLVANIA COMMONWEALTH OF Reference No... Filed......... 8/27/2008 Case Type.....: APPEAL - LICENSE SUSP Time........ 4:13 Jud meet..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 56 CD 2009 COPIES MAILED Higher Crt 2.: ------------------------------------------------------------------- 2/19/2009 NOTICE OF DOCKET ENTRIES MAILED TO BRIAN O WILLIAMS ESQ AND PHILIP M BRICKNELL ESQ - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Bw*Bal*** mts/Adj End Bal ***********************************P ****** ******************************* APPEAL LIC SUSP 55.00 55.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPEAL HIGH CT 48.00 - 48.00 .00 -- ----------- 126.50 ---------- --- 126.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** In Testimony whereof, I here ur:' .y hafd and the seal of said Court at Carlisle, Pa. This ..../. ....... day of. Z?? .............,a 1.. ?. 2?NQ:....'`a.... ` ........... Prothonotary i ,06;- 517.E Cvd Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 ---------------- ----------------------------------------------------------- AOPC 1231 Rev.08/12/2009 a. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. No. 56 C.D. 2009 SUBMITTED: June 5, 2009 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: August 13, 2009 Steven D. Burkholder (Burkholder) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) which denied his statutory appeal and affirmed the suspension imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) of his driving privilege pursuant to Section 1547(b)(1) of the Vehicle Code.' Burkholder asks us to determine whether DOT met its burden of proving by competent evidence that the ' 75 Pa. C.S. § 1547(b)(1). This section of the Vehicle Code, popularly known as the "Implied Consent Law," requires DOT to suspend for one year the operating privilege of any person arrested for driving under the influence of alcohol or a controlled substance who refuses a police officer's request to submit to chemical testing. Under certain circumstances delineated in Section 1547, the suspension is for eighteen months. warnings required by Section 1547 and case law interpreting that section were given to Burkholder' and, further, whether Burkholder's refusal to submit to a chemical test of his breath was knowingly made. For the reasons that follow, we affirm and find that granting DOT's request for counsel fees is appropriate. On July 4, 2008, State Troooper Johnson arrested Burkholder for driving under the influence of alcohol and transported him to a center for chemical testing of his blood. Burkholder refused to submit to the testing. As a result, DOT notified Burkholder that his driving privilege was being suspended for one year pursuant to 75 Pa. C.S. § 1547(b)(1)(ii). Burkholder filed a timely appeal of his suspension and the trial court conducted a de novo hearing on November 3, 2008. The only witness that DOT called to testify was Trooper Johnson; Burkholder's only witness was himself. Trooper Johnson testified that at the testing center, he read Burkholder the warnings contained in paragraphs 1, 2, 3 and 4 of the standard DL-26 PennDOT form and then asked Burkholder if he understood the warnings. Burkholder acknowledged that he did. The Trooper further testified that he requested Burkholder to sign on the line in the middle of the DL-26 form to acknowledge that the warnings were read to him. He saw Burkholder write on the line and believed that Burkholder had signed. He then clearly heard Burkholder decline to provide a breath sample for chemical testing. The Trooper also testified that he himself signed the DL-26 form at the bottom? When requested on cross- 2 The warnings include that the person's operating privilege will be suspended upon refusal to submit to chemical testing, and that enhanced sanctions can be assessed in specified circumstances. 3 The subject DL-26 form was admitted in evidence as part of DOT's Exhibit 1. That exhibit was the only non-testimonial evidence offered in evidence by either party. 2 examination to say, based on looking at Exhibit 1, whether Burkholder had signed his name on the middle line of the form or had written "refused to sign," the Trooper replied that he had not looked at what Burkholder had written at the time nor since. Looking at the form, the Trooper testified that it was hard to tell what Burkholder wrote, but that it could be "refused to sign." Burkholder testified, after being asked whether the DL-26 form that was part of DOT's Exhibit 1 was presented to him on July 4, 2008, that the only thing he recalled was that a document was placed in front of him and that he wrote on it "refused to sign," and that the only part of the handwriting in the middle of the DL-26 form (which his attorney suggested said "refused to sign") that appeared to be his writing was the letter "t" in "to." He also testified that he did not believe that the Trooper had read paragraphs 1 through 4 to him because he did not recall his doing so.' At the conclusion of the hearing, the trial court found as fact that the Trooper read to Burkholder the warnings in paragraphs 1 through 4 of the DL-26 form that was part of Exhibit 1, and that while the Trooper did not sign and date the form on the line for doing so immediately following paragraphs 1 through 4, he did sign at the bottom of the form. The trial court further stated it would rule on Burkholder's appeal of the suspension after a 20-day period for submission of briefs. By order dated December 12, 2008, the trial court dismissed Burkholder's appeal and affirmed DOT's suspension of his operating privileges. Burkholder then filed this appeal. In an opinion issued February 12, 2009 in response to 4 The transcript of the hearing reflects that DOT, with Burkholder's consent, played a part of a DOT DVD recording which DOT described as being of Burkholder's refusal to give a breath sample, but nothing that was stated on the DVD recording was transcribed and the DVD was not moved or admitted in evidence. 3 Burkholder's statement of errors complained of on appeal, the trial court rejected Burkholder's contention that the record evidence does not support the finding that the Trooper gave the warnings required by Section 1547. The opinion noted that the Trooper had testified that he read all the warnings in the DL-26 form, that those warnings comply with the requirements of Section 1547 and that the Trooper's testimony had been found to be credible. In this appeal, Burkholder argues that DOT failed to satisfy its burden of proof because it did not show by competent evidence that the Trooper had read to him the warnings in the DL-26 form.' Burkholder predicates this argument on his contention that DOT offered no proof other than the Trooper's own testimony, that the DL-26 form is incomplete, and that there were inconsistencies in the Trooper's testimony which call into question his ability to recall the operative events. Burkholder cites as the inconsistencies that Burkholder did not sign the form as the Trooper testified but rather wrote "refused to sign," that Burkholder does not recall being given the form to sign and testified that the writing on the form does not appear to be his, that the DVD does not show the Trooper reading to Burkholder from the form, and that the Trooper identified the booking officer at the Center as male while the DVD shows a female officer. Burkholder also argues that based on his own testimony that he was not given the required warnings and the fact that the Trooper's ability to recall the operative events is questionable, his refusal to take the test cannot be deemed knowingly made. ' Based on the issues presented, our review is limited to determining whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dept of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008). 4 I In Thoman v. Dept of Transp., Bureau of Driver Licensing, 965 A.2d 385, 388 (Pa. Cmwlth. 2009), this Court reiterated the well-established burden of proof of the parties in a license suspension case: To sustain a license suspension under Section 1547 of the Vehicle Code, ... , the Department bears the burden of proving that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver's license. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 197, 723 A.2d 655, 657-658 (1999). If the Department satisfies its initial burden as found in Todd, the burden shifts to the licensee to show that his refusal was not knowing or conscious or that he was physically unable to take the test. Here, Trooper Johnson testified on behalf of DOT that he read to Burkholder all four warning paragraphs of the DL-26 form. That testimony plainly is competent evidence that the requirements of Section 1547 were fulfilled, and satisfied DOT's burden of proof. See, e.g., Reinhart v. Dep't. of Transp., Bureau of Driver Licensing, 954 A.2d 761 (Pa. Cmwlth. 2008). After hearing all the evidence, the trial court found the Trooper's testimony to be credible. Burkholder's arguments on appeal amount to nothing more than a request that this Court set aside that credibility determination. Disturbing a trial court's determination of credibility of witnesses clearly is not an appellate court's function or right. As stated in Reinhart, 954 A.2d at 765: In reviewing this matter, we are mindful that it is not the province of this Court to make new or different findings of fact.... Rather, we may only review the trial court's findings to determine if they are supported by substantial, competent evidence.... As long as sufficient evidence exists that is adequate to support the facts found by the trial court as fact-finder, we are precluded from 5 41 overturning those findings. . . . Additionally, we must view the evidence in a light most favorable to the party that prevailed before the trial court.... Determinations as to the credibility of witnesses and the weight assigned to the evidence are solely within the province of the trial court as fact-finder.... As fact- finder, the trial court may accept or reject the testimony of any witness in whole or in part.... Conflicts in the evidence are for the trial court to resolve and are improper questions for appellate review.... [Citations omitted.] Burkholder's reliance on the DVD to contradict the Trooper's testimony is misplaced and inappropriate for another reason. The DVD was never offered or admitted in evidence. What was said on the portion of it that was played to the trial court was not transcribed. The DVD was not even included in the certified record transmitted to the Court. It thus is not part of the record of this case and cannot be considered. Since the trial court's dismissal of Burkholder's appeal of DOT's suspension of his operating privileges is supported by substantial and competent evidence, it will be affirmed. We now turn to DOT's request for attorney's fees pursuant to Pa. R.A.P. 27446 on the ground that Burkholder's appeal is frivolous. "Basing an 6 Pennsylvania Rule of Appellate Procedure 2744 is as follows: In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including: (1) a reasonable counsel fee and (2) damages for delay at the rate of 6% per annum in addition to legal interest, if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be (Footnote continued on next page...) 6 i appeal solely on facts contrary to those found by the trial judge has been held to be frivolous." Postgate v. Dep't. of Transp., 781 A.2d 276, 280 (Pa. Cmwlth. 2001) (citing DiCola v. Dep't. of Transp., 694 A.2d 398 (Pa. Cmwlth. 1997)); Morrell v. Dep't. of Transp., 575 A.2d 171 (Pa. Cmwlth. 1990). As noted above, Burkholder is doing nothing more than rearguing the facts and asking us to substitute our judgment for that of the trial court. Therefore, as in Postgate, we find that a sanction for pursuing a frivolous appeal should be imposed. For the foregoing reasons, we affirm the trial court's order and grant the Department's request for attorney's fees and costs. -7? BONNIE BRIGANCE LEADBETTER, President Judge (continued...) imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. No. 56 C.D. 2009 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this 13th day of August, 2009, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby AFFIRMED. Pursuant to Pa. R.A.P. 2744, attorney's fees are GRANTED to the Department of Transportation, and this case is REMANDED to the Court of Common Pleas of Cumberland County for an assessment and award of such fees. Jurisdiction is relinquished. _t*fA.i4xa - ???Xk BONNE BRIGANCE LEADBETTER, President Judge wwN.a rte, the PAW# 0132009 71717 I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing No. 56 C.D. 2009 Submitted: June 5, 2009 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED CONCURRING AND DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN FILED: August 13, 2009 I agree with the majority that the trial court properly denied Steven D. Burkholder's (Licensee) statutory appeal from the suspension of his driving privileges imposed by the Department of Transportation, Bureau of Driver Licensing (DOT). However, because I would conclude that Licensee's appeal was not frivolous, I disagree that the award of attorney's fees and costs is warranted. An appeal is considered frivolous and warrants the award of attorney's fees if, either as a matter of fact or law, the appellant's contentions have no likelihood of success. Department of Commerce v. Casey, 624 A.2d 247 (Pa. Cmwlth. 1993). An appeal is not frivolous for the purposes of awarding attorney's fees merely because it lacks merit. Id. Licensee asserts on appeal that Trooper Johnson's inconsistent testimony does not constitute substantial evidence to support the trial court's denial of Licensee's appeal. The majority holds that Licensee's appeal is frivolous because it is based solely on his version of the events. However, Licensee supports his allegations not merely with his own testimony but also with Trooper Johnson's testimony. Specifically, Licensee points to Trooper Johnson's admissions that: (1) he did not sign and date the proper lines on the DL-26 form (Form) certifying that he read the implied consent warnings to Licensee; (2) although he believed Licensee signed the Form, Trooper Johnson did not examine what Licensee wrote on the Form until he testified, at which time he acknowledged that what he thought was Licensee's signature was the statement "refused to sign"; and (3) he erroneously identified Licensee's booking officer as a man. (R.R. at 31 a-35a) Had the triad court weighed Trooper Johnson's admissions of inaccuracies and inconsistent testimony in favor of Licensee, Licensee could have prevailed.' Accordingly, I would conclude that Licensee's appeal is not frivolous and that DOT's request for attorneys' fees and costs should be denied. N ? ROCHELLE S. FRIED MAN, Senior Judge ' I recognize that the trial court's credibility determinations are not subject to review on appeal; however, the mere fact that the trial court accepted Trooper Johnson's testimony as credible does not automatically render Licensee's appeal frivolous and warrant the award of attorney's fees and costs. RSF-2- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE F CHIEF COUNSEL BY: vl?HILIP M. BRICKNELL ATTORNEY I.D. NO. 88330 ASSISTANT COUNSEL VEHICLE AND TRAFFIC LA W DIVISION 1101 SOUTH FRONT STREET - THIRD FLOOR HARRISBURG, PA 17104-2516 (717) 787-2830 STEVEN D. BURKHOLDER, Appellant : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee : No. 08-5173, CIVIL TERM BILL OF COSTS TO THE PROTHONOTARY: 1. By Order entered August 13, 2009, the Commonwealth Court of Pennsylvania affirmed the Order of the Honorable Edward E. Guido, Judge of the Court of Common Pleas of Cumberland County, entered in the above-captioned matter on December 12, 2008, which denied Appellant Burkholder's statutoryappeal from a one-year suspension of his operating privilege imposed by Appellee Department of Transportation as a consequence of Appellant Burkholder's refusal to submit to chemical testing pursuant to 75 Pa.C.S. §1547 (relating to chemical testing to determine amount of alcohol or controlled substance). See Burkholder v. Department of Transportation, Bureau of Driver Licensing, No. 56 C.D. 2009 (Pa. Cmwlth. Aug. 13, 2009) (Memorandum Opinion), a copy of which is attached hereto as Appendix A. 2. In its Opinion, Commonwealth Court opined that "... Burkholder is doing nothing more than rearguing the facts and asking us to substitute our judgment for that of the trial court. Therefore, as in Postgate, we find that a sanction for pursuing a frivolous appeal should be imposed." See Appendix A at 7; quoting Postgate v. Department of Transportation, 781 A.2d 276, 280 (Pa. Cmwlth. 2001) ("Basing an appeal solely on facts contrary to those found by the trial judge has been held to be frivolous.") 3. In its Order, Commonwealth Court directed, "Pursuant to Pa. R.A.P. 2744, attorney's fees are GRANTED to the Department of Transportation, and this case is REMANDED to the Court of Common Pleas of Cumberland County for an assessment and award of such fees." See Appendix A. 4. More than thirty (30) days has passed since Commonwealth Court filed its Opinion and Order, and Appellant Burkholder has not filed a petition for allowance of appeal in the Supreme Court. Accordingly, the Order imposing fees and costs entered by Commonwealth Court on August 13, 2009, is final. 5. Pursuant to the Order entered by Commonwealth Court on August 13, 2009, and Pa. R.A.P. 2742, 2744, and 2762(a), this Bill of Costs is being filed as a detailed accounting of the reasonable attorney's fees and costs ordered paid by Commonwealth Court. 6. Accordingly, the following is a breakdown of time and costs: Philip M. Bricknell, Esquire, Assistant Counsel: Preparing this Bill of Costs' (One-half (0.5) hour @ $150.00 per hour) $75.00 Preparing Appellee Department's brief filed in Commonwealth Court (Eight (8.0) hours @ $150.00 per hour) $1,200.00 Terrence M. Edwards, Esquire, Assistant Counsel: Reviewing/approving brief (One half (0.5) hour @ $175.00 per hour) $87.50 Harold H. Cramer, Esquire, Assistant Chief Counsel: Reviewing/approving brief (Seven-tenths (0.7) hours @ $200.00 per hour) $140.00 Reproduction costs (25 briefs of 21 pages each @ $0.25 per page) 131.25 TOTAL $1,633.75 In support of the amount of time spent preparing and filing Appellee Department's brief in Commonwealth Court, a copy of a "Brief Routing Record" is attached as Appendix B hereto. ' Time spent by counsel in collecting attorney's fees is compensable. See Durkin v. Department of Transportation, Bureau of Driver Licensing, 869 A.2d 27 (Pa. Cmwlth. 2004). As directed by the Order of Commonwealth Court, please tax attorney's fees and costs against Appellant Burkholder and his counsel, Ron Turo, Esquire, jointly and severally, in the amount of $1,633.75. Respectfully submitted, Philip M. Bricknell Attorney I.D. No. 88330 Assistant Counsel Vehicle and Traffic Law Division Attorney for Appellant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL BY: PHILIP M. BRICKNELL ATTORNEY I.D. NO. 88330 ASSISTANT COUNSEL VEHICLE AND TRAFFIC LAW DIVISION 1101 SOUTH FRONT STREET - THIRD FLOOR HARRISBURG, PA 17104-2516 (717) 787-2830 STEVEN D. BURKHOLDER, Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND COUNTY No. 08-5173, CIVIL TERM VERIFICATION I, PHILIP M. BRICKNELL, hereby verify that the facts and information set forth in the foregoing Bill of Costs are true and correct to the best of my knowledge, information, and belief. This verification is made with knowledge of the penalties set forth in 18 Pa.C.S. §4904 (relating to unworn falsification to authorities). l PHILIP M. BRICKNELL Assistant Counsel Attorney I.D. No. 88330 APPENDIX A Burkholder v. Department of Transportation, Bureau of Driver Licensing, No. 56 C.D. 2009, Filed August 13,'2009 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing No. 56 C.D. 2009 SUBMITTED: June 5, 2009 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: August 13, 2009 Steven D. Burkholder (Burkholder) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) which denied his statutory appeal and affirmed the suspension imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) of his driving privilege pursuant to Section 1547(b)(1) of the Vehicle Code.' Burkholder asks us to determine whether DOT met its burden of proving by competent evidence that the 1 75 Pa. C.S. § 1547(b)(1). This section of the Vehicle Code, popularly known as the "Implied Consent Law," requires DOT to suspend for one year the operating privilege of any person arrested for driving under the influence of alcohol or a controlled substance who refuses a police officer's request to submit to chemical testing. Under certain circumstances delineated in Section 1547, the suspension is for eighteen months. warnings required by Section 1547 and case law interpreting that section were given to Burkholder' and, further, whether Burkholder's refusal to submit to a chemical test of his breath was knowingly made. For the reasons that follow, we affirm and find that granting DOT's request for counsel fees is appropriate. On July 4, 2008, State Troooper Johnson arrested Burkholder for driving under the influence of alcohol and transported him to a center for chemical testing of his blood. Burkholder refused to submit to the testing. As a result, DOT notified Burkholder that his driving privilege was being suspended for one year pursuant to 75 Pa. C.S. § 1547(b)(1)(ii). Burkholder filed a timely appeal of his suspension and the trial court conducted a de novo hearing on November 3, 2008. The only witness that DOT called to testify was Trooper Johnson; Burkholder's only witness was himself. Trooper Johnson testified that at the testing center, he read Burkholder the warnings contained in paragraphs 1, 2, 3 and 4 of the standard DL-26 PennDOT form and then asked Burkholder if he understood the warnings. Burkholder acknowledged that he did. The Trooper further testified that he requested Burkholder to sign on the line in the middle of the DL-26 form to acknowledge that the warnings were read to him. He saw Burkholder write on the line and believed that Burkholder had signed. He then clearly heard Burkholder decline to provide a breath sample for chemical testing. The Trooper also testified that he himself signed the DL-26 form at the bottom.' When requested on cross- 2 The warnings include that the person's operating privilege will be suspended upon refusal to submit to chemical testing, and that enhanced sanctions can be assessed in specified circumstances. 3 The subject DL-26 form was admitted in evidence as part of DOT's Exhibit 1. That exhibit was the only non-testimonial evidence offered in evidence by either party. 2 examination to say, based on looking at Exhibit 1, whether Burkholder had signed his name on the middle line of the form or had written "refused to sign," the Trooper replied that he had not looked at what Burkholder had written at the time nor since. Looking at the form, the Trooper testified that it was hard to tell what Burkholder wrote, but that it could be "refused to sign." Burkholder testified, after being asked whether the DL-26 form that was part of DOT's Exhibit 1 was presented to him on July 4, 2008, that the only thing he recalled was that a document was placed in front of him and that he wrote on it "refused to sign," and that the only part of the handwriting in the middle of the DL-26 form (which his attorney suggested said "refused to sign") that appeared to be his writing was the letter "t" in "to." He also testified that he did not believe that the Trooper had read paragraphs 1 through 4 to him because he did not recall his doing so.' At the conclusion of the hearing, the trial court found as fact that the Trooper read to Burkholder the warnings in paragraphs 1 through 4 of the DL-26 form that was part of Exhibit 1, and that while the Trooper did not sign and date the form on the line for doing so immediately following paragraphs 1 through 4, he did sign at the bottom of the form. The trial court further stated it would rule on Burkholder's appeal of the suspension after a 20-day period for submission of briefs. By order dated December 12, 2008, the trial court dismissed Burkholder's appeal and affirmed DOT's suspension of his operating privileges. Burkholder then filed this appeal. In an opinion issued February 12, 2009 in response to 4 The transcript of the hearing reflects that DOT, with Burkholder's consent, played a part of a DOT DVD recording which DOT described as being of Burkholder's refusal to give a breath sample, but nothing that was stated on the DVD recording was transcribed and the DVD was not moved or admitted in evidence. 3 Burkholder's statement of errors complained of on appeal, the trial court rejected Burkholder's contention that the record evidence does not support the fording that the Trooper gave the warnings required by Section 1547. The opinion noted that the Trooper had testified that he read all the warnings in the DL-26 form, that those warnings comply with the requirements of Section 1547 and that the Trooper's testimony had been found to be credible. In this appeal, Burkholder argues that DOT failed to satisfy its burden of proof because it did not show by competent evidence that the Trooper had read to him the warnings in the DL-26 form.' Burkholder predicates this argument on his contention that DOT offered no proof other than the Trooper's own testimony, that the DL-26 form is incomplete, and that there were inconsistencies in the Trooper's testimony which call into question his ability to recall the operative events. Burkholder cites as the inconsistencies that Burkholder did not sign the form as the Trooper testified but rather wrote "refused to sign," that Burkholder does not recall being given the form to sign and testified that the writing on the form does not appear to be his, that the DVD does not show the Trooper reading to Burkholder from the form, and that the Trooper identified the booking officer at the Center as male while the DVD shows a female officer. Burkholder also argues that based on his own testimony that he was not given the required warnings and the fact that the Trooper's ability to recall the operative events is questionable, his refusal to take the test cannot be deemed knowingly made. ' Based on the issues presented, our review is limited to determining whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dept of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008). 4 In Thoman v. Dept of Transp., Bureau of Driver Licensing, 965 A.2d 385, 388 (Pa. Cmwlth. 2009), this Court reiterated the well-established burden of proof of the parties in a license suspension case: To sustain a license suspension under Section 1547 of the Vehicle Code, ... , the Department bears the burden of proving that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver's license. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 197, 723 A.2d 655, 657-658 (1999). If the Department satisfies its initial burden as found in Todd, the burden shifts to the licensee to show that his refusal was not knowing or conscious or that he was physically unable to take the test. Here, Trooper Johnson testified on behalf of DOT that he read to Burkholder all four warning paragraphs of the DL-26 form. That testimony plainly is competent evidence that the requirements of Section 1547 were fulfilled, and satisfied DOT's burden of proof. See, e.g., Reinhart v. Dept of Transp., Bureau of Driver Licensing, 954 A.2d 761 (Pa. Cmwlth. 2008). After hearing all the evidence, the trial court found the Trooper's testimony to be credible. Burkholder's arguments on appeal amount to nothing more than a request that this Court set aside that credibility determination. Disturbing a trial court's determination of credibility of witnesses clearly is not an appellate court's function or right. As stated in Reinhart, 954 A.2d at 765: In reviewing this matter, we are mindful that it is not the province of this Court to make new or different findings of fact.... Rather, we may only review the trial court's findings to determine if they are supported by substantial, competent evidence.... As long as sufficient evidence exists that is adequate to support the facts found by the trial court as fact-finder, we are precluded from 5 overturning those findings.... Additionally, we must view the evidence in a light most favorable to the party that prevailed before the trial court.... Determinations as to the credibility of witnesses and the weight assigned to the evidence are solely within the province of the trial court as fact-finder.... As fact- finder, the trial court may accept or reject the testimony of any witness in whole or in part.... Conflicts in the evidence are for the trial court to resolve and are improper questions for appellate review.... [Citations omitted.] Burkholder's reliance on the DVD to contradict the Trooper's testimony is misplaced and inappropriate for another reason. The DVD was never offered or admitted in evidence. What was said on the portion of it that was played to the trial court was not transcribed. The DVD was not even included in the certified record transmitted to the Court. It thus is not part of the record of this case and cannot be considered. Since the trial court's dismissal of Burkholder's appeal of DOT's suspension of his operating privileges is supported by substantial and competent evidence, it will be affirmed. We now turn to DOT's request for attorney's fees pursuant to Pa. R.A.P. 27446 on the ground that Burkholder's appeal is frivolous. "Basing an 6 Pennsylvania Rule of Appellate Procedure 2744 is as follows: In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including: (1) a reasonable counsel fee and (2) damages for delay at the rate of 6% per annum in addition to legal interest, if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be (Footnote continued on next page...) 6 appeal solely on facts contrary to those found by the trial judge has been held to be frivolous." Postgate v. Dept. of Transp., 781 A.2d 276, 280 (Pa. Cmwlth. 2001) (citing DiCola v. Dep't. of Transp., 694 A.2d 398 (Pa. Cmwlth. 1997)); Morrell v. Dep't. of Transp., 575 A.2d 171 (Pa. Cmwlth. 1990). As noted above, Burkholder is doing nothing more than rearguing the facts and asking us to substitute our judgment for that of the trial court. Therefore, as in Postgate, we find that a sanction for pursuing a frivolous appeal should be imposed. For the foregoing reasons, we affirm the trial court's order and grant the Department's request for attorney's fees and costs. BONNIE BRIGANCE LEADBE=R, President Judge (continued...) imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. No. 56 C.D. 2009 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this 13th day of August, 2009, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby AFFIRMED. Pursuant to Pa. R.A.P. 2744, attorney's fees are GRANTED to the Department of Transportation, and this case is REMANDED to the Court of Common Pleas of Cumberland County for an assessment and award of such fees. Jurisdiction is relinquished. BONNIE BRIGANCE LEADBETTER, President Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. : Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing No. 56 C.D. 2009 Submitted: June 5, 2009 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED CONCURRING AND DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN FILED: August 13, 2009 I agree with the majority that the trial court properly denied Steven D. Burkholder's (Licensee) statutory appeal from the suspension of his driving privileges imposed by the Department of Transportation, Bureau of Driver Licensing (DOT). However, because I would conclude that Licensee's appeal was not frivolous, I disagree that the award of attorney's fees and costs is warranted. An appeal is considered frivolous and warrants the award of attomey's fees if, either as a matter of fact or law, the appellant's contentions have no likelihood of success. Department of Commerce v. Casey, 624 A.2d 247 (Pa. Cmwlth. 1993). An appeal is not frivolous for the purposes of awarding attorney's fees merely because it lacks merit. Id. Licensee asserts on appeal that Trooper Johnson's inconsistent testimony does not constitute substantial evidence to support the trial court's denial of Licensee's appeal. The majority holds that Licensee's appeal is frivolous because it is based solely on his version of the events. However, Licensee supports his allegations not merely with his own testimony but also with Trooper Johnson's testimony. Specifically, Licensee points to Trooper Johnson's admissions that: (1) he did not sign and date the proper lines on the DL-26 form (Form) certifying that he read the implied consent warnings to Licensee; (2) although he believed Licensee signed the Form, Trooper Johnson did not examine what Licensee wrote on the Form until he testified, at which time he acknowledged that what he thought was Licensee's signature was the statement "refused to sign"; and (3) he erroneously identified Licensee's booking officer as a man. (R.R. at 31a-35a.) Had the trial court weighed Trooper Johnson's admissions of inaccuracies and inconsistent testimony in favor of Licensee, Licensee could have prevailed.' Accordingly, I would conclude that Licensee's appeal is not frivolous and that DOT's request for attorneys' fees and costs should be denied. ROCHELLE S. FRIEDMAN, Senior Judge ' I recognize that the trial court's credibility determinations are not subject to review on appeal; however, the mere fact that the trial court accepted Trooper Johnson's testimony as credible does not automatically render Licensee's appeal frivolous and warrant the award of attorney's fees and costs. RSF- 10- ?N'M?f4w APPENDIX B BRIEF ROUTING RECORD BRIEF ROUTING RECORD 18 COMMONWEALTH OF PENNSYLVANIA pennsylvania DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION NAME OF OPPOSING PARTY: Steven D. Burkholder DATE DUE: May 20, 2009 SUBJECT: License Suspension EXTENDED TO: None COMMENTS: ATTORNEY NAME DATE RECEIVED DATE COMPLETED TIME SPENT (In Tenths of an Hour) Philip M. Bricknell S js' l Casey Edwards S_ lS"? - jS" U? `, h ? f Harold Cramer p-7 4 l? ?. - J? COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL BY: PHILIP M. BRICKNELL ATTORNEY I.D. NO. 88330 ASSISTANT COUNSEL VEHICLE AND TRAFFIC LAW DIVISION 1101 SOUTH FRONT STREET - THIRD FLOOR HARRISBURG, PA 17104-2516 (717) 787-2830 STEVEN D. BURKHOLDER, Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 08-5173, CIVIL TERM PROOF OF SERVICE I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Entry of Appearance and Bill of Costs upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid Addressed as Follows: Ron Turo, Esquire Attorney for Appellant Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Date: ? 1i S?? RGD.._O"I OF TH. 77 1* ;TARY 200 S EP 24 f`r' ^. 2 Kristen W. Brown (Commonhleaitb (Court of Vennop1bania Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue, Suite 2100 Michael Krimmel, Esq. P.O. Box 69185 Chief Clerk of Commonwealth Court Harrisburg, PA 17106-9185 October 20, 2009 CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Mr. Long Prothonotary RE: Burkholder v. DOT 56 CD 2009 Trial Court: Trial Court Docket No: 2008-5173 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description trial court record February 20, 2009 1 Remand/Remittal Date: ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Icep e Commonwealth Court Filing Office Burkholder v. DOT 56 CD 2009 Letter to: Mr. Curtis R. Long October 20, 2009 Acknowledgement of Certificate of RemittaYRemand of Record (to be returned): Signature Date Printed Name Z?' Cco Z 22 Fat 2 as IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing No. 56 C.D. 2009 SUBMITTED: June 5, 2009 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: August 13, 2009 Steven D. Burkholder (Burkholder) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) which denied his statutory appeal and affirmed the suspension imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) of his driving privilege pursuant to Section 1547(b)(1) of the Vehicle Code.' Burkholder asks us to determine whether DOT met its burden of proving by competent evidence that the ' 75 Pa. C.S. § 1547(b)(1). This section of the Vehicle Code, popularly known as the "Implied Consent Law," requires DOT to suspend for one year the operating privilege of any person arrested for driving under the influence of alcohol or a controlled substance who refuses a police officer's request to submit to chemical testing. Under certain circumstances delineated in Section 1547, the suspension is for eighteen months. warnings required by Section 1547 and case law interpreting that section were given to Burkholder' and, further, whether Burkholder's refusal to submit to a chemical test of his breath was knowingly made. For the reasons that follow, we affirm and find that granting DOT's request for counsel fees is appropriate. On July 4, 2008, State Troooper Johnson arrested Burkholder for driving under the influence of alcohol and transported him to a center for chemical testing of his blood. Burkholder refused to submit to the testing. As a result, DOT notified Burkholder that his driving privilege was being suspended for one year pursuant to 75 Pa. C.S. § 1547(b)(1)(ii). Burkholder filed a timely appeal of his suspension and the trial court conducted a de novo hearing on November 3, 2008. The only witness that DOT called to testify was Trooper Johnson; Burkholder's only witness was himself. Trooper Johnson testified that at the testing center, he read Burkholder the warnings contained in paragraphs 1, 2, 3 and 4 of the standard DL-26 PennDOT form and then asked Burkholder if he understood the warnings. Burkholder acknowledged that he did. The Trooper further testified that he requested Burkholder to sign on the line in the middle of the DL-26 form to acknowledge that the warnings were read to him. He saw Burkholder write on the line and believed that Burkholder had signed. He then clearly heard Burkholder decline to provide a breath sample for chemical testing. The Trooper also testified that he himself signed the DL-26 form at the bottom.' When requested on cross- 2 The warnings include that the person's operating privilege will be suspended upon refusal to submit to chemical testing, and that enhanced sanctions can be assessed in specified circumstances. 3 The subject DL-26 form was admitted in evidence as part of DOT's Exhibit 1. That exhibit was the only non-testimonial evidence offered in evidence by either party. 2 examination to say, based on looking at Exhibit 1, whether Burkholder had signed his name on the middle line of the form or had written "refused to sign," the Trooper replied that he had not looked at what Burkholder had written at the time nor since. Looking at the form, the Trooper testified that it was hard to tell what Burkholder wrote, but that it could be "refused to sign." Burkholder testified, after being asked whether the DL-26 form that was part of DOT's Exhibit 1 was presented to him on July 4, 2008, that the only thing he recalled was that a document was placed in front of him and that he wrote on it "refused to sign," and that the only part of the handwriting in the middle of the DL-26 form (which his attorney suggested said "refused to sign") that appeared to be his writing was the letter "t" in "to." He also testified that he did not believe that the Trooper had read paragraphs 1 through 4 to him because he did not recall his doing s0.4 At the conclusion of the hearing, the trial court found as fact that the Trooper read to Burkholder the warnings in paragraphs 1 through 4 of the DL-26 form that was part of Exhibit 1, and that while the Trooper did not sign and date the form on the line for doing so immediately following paragraphs 1 through 4, he did sign at the bottom of the form. The trial court further stated it would rule on Burkholder's appeal of the suspension after a 20-day period for submission of briefs. By order dated December 12, 2008, the trial court dismissed Burkholder's appeal and affirmed DOT's suspension of his operating privileges. Burkholder then filed this appeal. In an opinion issued February 12, 2009 in response to 4 The transcript of the hearing reflects that DOT, with Burkholder's consent, played a part of a DOT DVD recording which DOT described as being of Burkholder's refusal to give a breath sample, but nothing that was stated on the DVD recording was transcribed and the DVD was not moved or admitted in evidence. 3 Burkholder's statement of errors complained of on appeal, the trial court rejected Burkholder's contention that the record evidence does not support the finding that the Trooper gave the warnings required by Section 1547. The opinion noted that the Trooper had testified that he read all the warnings in the DL-26 form, that those warnings comply with the requirements of Section 1547 and that the Trooper's testimony had been found to be credible. In this appeal, Burkholder argues that DOT failed to satisfy its burden of proof because it did not show by competent evidence that the Trooper had read to him the warnings in the DL-26 form.' Burkholder predicates this argument on his contention that DOT offered no proof other than the Trooper's own testimony, that the DL-26 form is incomplete, and that there were inconsistencies in the Trooper's testimony which call into question his ability to recall the operative events. Burkholder cites as the inconsistencies that Burkholder did not sign the form as the Trooper testified but rather wrote "refused to sign," that Burkholder does not recall being given the form to sign and testified that the writing on the form does not appear to be his, that the DVD does not show the Trooper reading to Burkholder from the form, and that the Trooper identified the booking officer at the Center as male while the DVD shows a female officer. Burkholder also argues that based on his own testimony that he was not given the required warnings and the fact that the Trooper's ability to recall the operative events is questionable, his refusal to take the test cannot be deemed knowingly made. ' Based on the issues presented, our review is limited to determining whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dept of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008). 4 In Thoman v. Dept. of Transp., Bureau of Driver Licensing, 965 A.2d 385, 388 (Pa. Cmwlth. 2009), this Court reiterated the well-established burden of proof of the parties in a license suspension case: To sustain a license suspension under Section 1547 of the Vehicle Code, ... , the Department bears the burden of proving that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver's license. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 197, 723 A.2d 655, 657-658 (1999). If the Department satisfies its initial burden as found in Todd, the burden shifts to the licensee to show that his refusal was not knowing or conscious or that he was physically unable to take the test. Here, Trooper Johnson testified on behalf of DOT that he read to Burkholder all four warning paragraphs of the DL-26 form. That testimony plainly is competent evidence that the requirements of Section 1547 were fulfilled, and satisfied DOT's burden of proof. See, e.g., Reinhart v. Dept. of Transp., Bureau of Driver Licensing, 954 A.2d 761 (Pa. Cmwlth. 2008). After hearing all the evidence, the trial court found the Trooper's testimony to be credible. Burkholder's arguments on appeal amount to nothing more than a request that this Court set aside that credibility determination. Disturbing a trial court's determination of credibility of witnesses clearly is not an appellate court's function or right. As stated in Reinhart, 954 A.2d at 765: In reviewing this matter, we are mindful that it is not the province of this Court to make new or different findings of fact.... Rather, we may only review the trial court's findings to determine if they are supported by substantial, competent evidence.... As long as sufficient evidence exists that is adequate to support the facts found by the trial court as fact-finder, we are precluded from 5 overturning those findings.... Additionally, we must view the evidence in a light most favorable to the party that prevailed before the trial court.... Determinations as to the credibility of witnesses and the weight assigned to the evidence are solely within the province of the trial court as fact-finder.... As fact- finder, the trial court may accept or reject the testimony of any witness in whole or in part.... Conflicts in the evidence are for the trial court to resolve and are improper questions for appellate review.... [Citations omitted.] Burkholder's reliance on the DVD to contradict the Trooper's testimony is misplaced and inappropriate for another reason. The DVD was never offered or admitted in evidence. What was said on the portion of it that was played to the trial court was not transcribed. The DVD was not even included in the certified record transmitted to the Court. It thus is not part of the record of this case and cannot be considered. Since the trial court's dismissal of Burkholder's appeal of DOT's suspension of his operating privileges is supported by substantial and competent evidence, it will be affirmed. We now turn to DOT's request for attorney's fees pursuant to Pa. R.A.P. 27446 on the ground that Burkholder's appeal is frivolous. "Basing an 6 Pennsylvania Rule of Appellate Procedure 2744 is as follows: In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including: (1) a reasonable counsel fee and (2) damages for delay at the rate of 6% per annum in addition to legal interest, if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be (Footnote continued on next page...) 6 appeal solely on facts contrary to those found by the trial judge has been held to be frivolous." Postgate v. Dep't. of Transp., 781 A.2d 276, 280 (Pa. Cmwlth. 2001) (citing DiCola v. Dep't. of Transp., 694 A.2d 398 (Pa. Cmwlth. 1997)); Morrell v. Dep't. of Transp., 575 A.2d 171 (Pa. Cmwlth. 1990). As noted above, Burkholder is doing nothing more than rearguing the facts and asking us to substitute our judgment for that of the trial court. Therefore, as in Postgate, we find that a sanction for pursuing a frivolous appeal should be imposed. For the foregoing reasons, we affirm the trial court's order and grant the Department's request for attorney's fees and costs. BONNIE BRIGANCE LEADBETTER, President Judge (continued...) imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. No. 56 C.D. 2009 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this 13th day of August, 2009, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby AFFIRMED. Pursuant to Pa. R.A.P. 2744, attorney's fees are GRANTED to the Department of Transportation, and this case is REMANDED to the Court of Common Pleas of Cumberland County for an assessment and award of such fees. Jurisdiction is relinquished. BONNIE BRIGANCE LEADBETTER, President Judge ! ;i IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven D. Burkholder, Appellant V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing No. 56 C.D. 2009 Submitted: June 5, 2009 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED CONCURRING AND DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN FILED: August 13, 2009 I agree with the majority that the trial court properly denied Steven D. Burkholder's (Licensee) statutory appeal from the suspension of his driving privileges imposed by the Department of Transportation, Bureau of Driver Licensing (DOT). However, because I would conclude that Licensee's appeal was not frivolous, I disagree that the award of attorney's fees and costs is warranted. An appeal is considered frivolous and warrants the award of attorney's fees if, either as a matter of fact or law, the appellant's contentions have no likelihood of success. Department of Commerce v. Casey, 624 A.2d 247 (Pa. Cmwlth. 1993). An appeal is not frivolous for the purposes of awarding attorney's fees merely because it lacks merit. Id. Licensee asserts on appeal that Trooper Johnson's inconsistent testimony does not constitute substantial evidence to support the trial court's denial of Licensee's appeal. The majority holds that Licensee's appeal is frivolous because it is based solely on his version of the events. However, Licensee supports his allegations not merely with his own testimony but also with Trooper Johnson's testimony. Specifically, Licensee points to Trooper Johnson's admissions that: (1) he did not sign and date the proper lines on the DL-26 form (Form) certifying that he read the implied consent warnings to Licensee; (2) although he believed Licensee signed the Form, Trooper Johnson did not examine what Licensee wrote on the Form until he testified, at which time he acknowledged that what he thought was Licensee's signature was the statement "refused to sign"; and (3) he erroneously identified Licensee's booking officer as a man. (R.R. at 31a-35a.) Had the trial court weighed Trooper Johnson's admissions of inaccuracies and inconsistent testimony in favor of Licensee, Licensee could have prevailed.! Accordingly, I would conclude that Licensee's appeal is not frivolous and that DOT's request for attorneys' fees and costs should be denied. ROCHELLE S. RIED AN, Senior Judge 1 I recognize that the trial court's credibility determinations are not subject to review on appeal; however, the mere fact that the trial court accepted Trooper Johnson's testimony as credible does not automatically render Licensee's appeal frivolous and warrant the award of attorney's fees and costs. RSF-2- Docket No: 56 CD 2009 Service List Addressed To: Philip Murray Bricknell, Esq. PA Department of Transportation 1101 S Front St 3rd Fl Harrisburg, PA 171042516 The Honorable Edward Guido Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Square Carlisle, PA 17013 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Ronald A Turo, Esq. Turo Law Offices 28 S Pitt St Carlisle, PA 17013 Brian Oliver Williams, Esq. Turo Law Offices 28 S Pitt St Carlisle, PA 17013 J. FERREE AUG 13 2NA File Copy AOPC 1231 Rev. O&1=009 Instance: 2000143955 NEWS RM. TRIALJUDGE RUE, ZC ? E" 22 Psi 2 f ? 1 is CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Steven D. Burkholder vs Commonwealth of Pennsylvania Department of Transportation' oo? .nac-) 08-5173 Civil Term 00 X; 56 CD 2009 .a >rnm C; The documents comprising the record have been numbered from No.1 to 67, ai c?attaa hereto as Exhibit A is a list of the documents correspondingly numbered ancfjdentified with reasonable definiteness, including with respect to each document, the dumber of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 02/ /q1 /2009 Cu s R. Lon , thon ary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title 0