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HomeMy WebLinkAbout09-7901BRIAN M. PIETON, IN THE COURT OF COMMON Petitioner PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. : No.. ? 'V COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATUTORY OPERATOR'S TRANSPORTATION, LICENSE APPEAL BUREAU OF DRIVER'S LICENSING, Respondent TO THE HONORABLE JUDGES OF SAID COURT: STATUTORY OPERATOR'S LICENSE APPEAL AND NOW, this 12th day of November, 2009, comes the above-captioned defendant, Brian M. Pieton, by and through his counsel, The McShane Firm, LLC, and Tim M. Barrouk, Esquire, and hereby appeals from a Notice of Suspension issued by the Pennsylvania Department of Transportation, Bureau of Driver's Licensing, and avers the following in support thereof: 1. This Court has jurisdiction over this case by virtue of 42 Pa.C.S.A. §933(a) and 75 Pa.C.S.A. §1550(a). 2. The Petitioner is Brian M. Pieton, Pennsylvania Driver License Number 21486468, whose place of residence is 4615 Carlisle Road, Gardners, PA 17324 in the County of Cumberland with a date of birth of 14 September 1961. 3. Respondent is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania, Department of Transportation, which has its principal place of business at the Riverfront Office Center, 1101 South Front Street, Harrisburg, Pennsylvania. 4. The Appeal is taken from an Official Notice bearing a mailing date 14 October 2009. With that Notice the Bureau of Driver's Licensing notified Petitioner that it was suspending his privilege of operating a motor vehicle for the period of 1 months, effective 18 November 2009, at 12:01 a.m., pursuant to Section 1547(b)(1) of the Pennsylvania Vehicle Code, as a result of an alleged refusal by Petitioner to submit to chemical testing on 12 September 2009. A true and correct copy of the Bureau's Notice of Suspension is appended to this Petition as Exhibit "A". 5. The one (1) year suspension of Petitioner's operating privilege is improper and illegal because: a. The Officer involved in this matter did not possess reasonable grounds to demand that the Petitioner submit to the chemical test. b. The Petitioner attempted to perform a blood test at the Cumberland County Booking Center but was unable to provide sufficient samples because he was suffering from bronchitis. c. The Petitioner requested that he be given a blood test in light of his inability to perform the breath test due to his medical condition and was denied the opportunity. d. The Petitioner went on his own to get a blood test at the Carlisle Regional Medical Center and was subsequently charged with DUI Highest rate as a result of said test. 6. The Petitioner requests relief pursuant to 75 Pa. C.S.A. §1550 (b)(1) - Supersedeas. As this matter is timely filed and service has been effected upon the Department's legal office, and none of the enumerated exceptions under 75 Pa. C.S.A. §1550 (b)(1) (ii) or (iii) exist. WHEREFORE, Petitioner, Brian M. Pieton, respectfully requests this Honorable Court hold a de novo hearing on his Appeal from the suspension of his operating privilege and invalidate the illegal taking of his privilege to operate an automobile and issue orders consistent with the same to the Department of Transportation, Bureau of Driver's Licensing, to suspend her operating privilege. Respectfully submitted, The McShane Firm, LLC IT -)?? Tim M. Barrouk, Esquire Attorney for Petitioner 4807 Jonestown Road Suite 148 Harrisburg, PA 17109 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 Exhibit "A" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 14, 2009 BRIAN M PIETON WID # 092806691239818 001 4615 CARLISLE RD PROCESSING DATE 10/07/2009 DRIVER LICENSE # 21486468 GARDNERS PA 17324 DATE OF BIRTH 09/14/1961 Dear MR. PIETON: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547B1I of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 09/12/2009: ¦ Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 11/18/2009 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 11/18/2009. You may surrender these items before, 11/18/2009, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of $12.00. You must present two (2) forms of proper iden- tification (e.g.., birth certificate, valid U.S. passport, marriage certif'date,'etc. ) in order to obtain 'your photo - -`` identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn nota- rized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation 092806691239818 Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's-.permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. Please note: Paying the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation. If you have not acknowledged your suspension/revocation, please follow the instructions listed under "Complying with this Suspension/Revocation". APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, OCTOBER 14, 2009, of this letter. If you file an ap- peal in the County Court, the Court will give you a time- stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 092806691239818 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 11/18/2009. Sincerely, 9?U? Z g t4C Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 6:00 a.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.aa.us COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17123 10/23/09 BRIAN M PIETON 4615 CARLISLE RD GARDNERS PA 17324 Dear MR. PIETON : DRIVER'S LICENSE NUMBER: 21486468 BIRTH DATE: 09/14/61 ELIGIBILITY DATE: 10/17/10 This is a RESTORATION REQUIREMENTS LETTER. It lists what you must do to restore your driving privilege. PLEASE BE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You will be notified by the Department of Transportation (PennDOT) that your driving privilege has been restored. Only after that may you drive. An ELIGIBILITY DATE is listed above. This is the date you are eligible to have your driving privilege restored, provided no other violations are processed against your driving record. This date is effective regardless of any other dates listed within this letter. Please read the following information carefully and be sure to complete all requirements to have your driving privilege restored. Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS listed at the end of this letter. TERM SUSPENSION/REVOCATION -You have a 1 YEAR(S) suspension/revocation that began.(or will begin) on 10/17/09. Credit for serving this suspension/revoca- tion began (or will begin) on 10/17/09 and will end on 10/17/10. The suspension/revocation resulted from a violation on 09/12/09. of Section 1547, CHEMICAL TEST REFUSAL This letter identified the requirements necessary to restore your driving privilege and we are looking forward to working with you to do this. Unless another address was indicated, return any documents and/or fees to the MAILING ADDRESS listed below. Phone numbers are provided for your use. To ensure prompt customer service, please write your driver's license number, listed at the beginning of this letter, on all documents you send to PENNDOT. Thank you. P.S. REMEMBER, your ELIGIBILITY DATE is 10/17/10. 1 LICENSE NO. : 21486468 MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (8:00 AM to 6:00 PM) IN STATE 1-800-932-4600 OUT-OF-STATE 717-412-5300 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-412-5380 2 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 10/23/2009 BRIAN M PIETON WID * 092948013000572 001 4615 CARLISLE RD PROCESSING DATE 10/23/2009 DRIVER LICENSE * 21486468 GARDNERS PA 17324 DATE OF BIRTH 09/14/1961 Dear Motorist: This letter will acknowledge receipt of the LICENSE you surrendered 10/17/2009 to serve your suspension, revocation or disqualification period. Our records indicate that your LICENSE was returned to the Department by the MAIL. Credit toward serving your sanction began on 10/17/2009. Sincerely, 9?u'- Z g yr Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION (8:00 AM to 6:00 PM) IN STATE 1-800-932=4600 OUT-OF-STATE 717-412-5300 TOD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-412-5380 FLEC-na Tfic: Z C4 NOV 13 PH ou: 2 i l.. t t ?t 7 F7, SU hod. 4 #1 1'4 SiOA e ??41- l 9? 3 -3 BRIAN M. PIETON, IN THE COURT OF COMMON Petitioner PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. No.: 09-7901 Civil COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATUTORY OPERATOR'S TRANSPORTATION, LICENSE APPEAL BUREAU OF DRIVER'S LICENSING, Respondent AFFIDAVIT OF SERVICE I, Tim M. Barrouk, Esquire, do hereby affirm that I have served upon the Department of Transportation, Bureau of Driver's Licensing, a true and correct copy of Brian M. Pieton's Petition for Appeal of Operating Privilege Suspension by sending said copy to the Bureau of Driver's Licensing by United States Postal Service, Certified Mail, Return Receipt Requested, Receipt No,. 7004 0550 0000 2646 3594, addressed as follows: Office of Chief Counsel Department of Transportation Riverfront Office Center - 3rd Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 This affirmation is made with the knowledge of the penalties of 18 P.S. §4904 relating to un-sworn falsification to authorities. Respectfully submitted, The McShane Firm, LLC Tim M. Barrouk, Esquire Attorney for Petitioner 4807 Jonestown Road Suite 148 Harrisburg, PA 17109 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 .. ? ., , 6 NOV 17 2009 y BRIAN M. PIETON, IN THE COURT OF COMMON Petitioner PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. : No.: (? ?7 U / C J i. l COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATUTORY OPERATOR'S TRANSPORTATION, LICENSE APPEAL BUREAU OF DRIVER'S LICENSING, Respondent ORDER OF COURT AND NOW, this day of 2009, IT IS HEREBY ORDERED AND DECREED THAT the Petitioner's Motion for a de novo hearing regarding the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania's suspension of the Petitioner's Operating Privilege IS GRANTED. Specifically, the Court further finds that Petitioner's Motion challenging the suspension was timely filed as it was filed within thirty (30) days of the mailing date of the Bureau's Notice. This matter is set for argument the day of , 20:0'x, at Vj 30 o'clock in Courtroom ?} FURTHER, this Court directs The Department to stay its planned suspension during the pendency of this Appeal pursuant to 75 Pa. C.S.A. §(b)(1). BY THE COURT JUDGE Distribution: ?p ice of Chief Counsel, PennDOT ?fim M. Barrouk, Esquire, The McShane Firm, LLC, 4807 Jonestown Road, Suite 148, Harrisburg, PA 17109 i £s rn?. c // !R(U1 f1'? ICE OF THE PRON` OTMY 2009 NOV 19 AM 10: 2 3 CAM w:. ()LJINiY PENNSYLVANA BRIAN M. PIETON, Petitioner vs. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 09-7901 CIVIL DRIVER'S LICENSE SUSPENSION APPEAL ORDER AND NOW, this Z Y , day of February, 2010, hearing in the above-captioned matter set for February 23, 2010, is continued to Thursday, April 15, 2010, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, '~ Tim M. Barrouk, Es uire q For the Petitioner lip M. Bricknell, Esquire For the Respondent :rlm ~ ~ S rYLa. [1.0. ~~as~~d ~~'1 Kevin .Hess, P. J. n ~~ a`~ ~ ~~ , ~;~ ~ .- -~~, ~ -~, ~ ~ -~ . . ,._ C.w ~. ..~'~El -..r O :a3 ~(3 `~, BRIAN M. PIETON, Petitioner vs. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.09-7901 CIVIL DRIVER'S LICENSE SUSPENSION APPEAL IN RE: DRIVER'S LICENSE SUSPENSION APPEAL ORDER AND NOW, this ~ ~ day of March, 2010, following hearing, and careful consideration of the testimony adduced, the appeal of Brian M. Pieton from the suspension of his driver's license is DENIED. BY THE COURT, / Tim M. Barrouk, Esquire For the Petitioner ~ilip M. Bricknell, Esquire For the Respondent :rlm • ~ ~ ~ ~s ,~~. ~ t.~L 3~,~ ~ cv _1~ Cx3 ~' ~~' ~y 0 0 w ~. a 0 i ~~ BRIAN M. PIETON, Petitioner vs. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.09-7901 CIVIL DRIVER'S LICENSE SUSPENSION APPEAL ORDER AND NOW, this 2 ~ day of March, 2010, our order of February 24, 2010, is VACATED as having been improvidently entered. ~im M. Barrouk, Esquire For the Petitioner ~hilip M. Bricknell, Esquire For the Respondent :rlm eo~~ ~ ,~. ~~C t 3 j~~~v ~~ ~= ~~~ N ~, ~, -~ ~. w 3 Q '~ ~? BY THE COURT, v ~DIYITI~DIT~>°DYt~ ~DUrt Df ~enngpCbanfa Kristen W. Brown Prothonotary Michael Krimmel, Esy. Chief Clerk of Commonwealth Court April 13, 2010 NOTICE OF DOCKETING APPEAL RE: Pieton v. DOT 576 CD 2010 Filed Date: April 1, 2010 Trial Court Docket No: 09-7901 Civil Law Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 www.pacourts.us 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 the next page 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 the next page of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Participant Name Participant Type Timothy Matthew Barrouk, Esq. Brian M. Pieton Appellant Philip Murray Bricknell, Esq. Bureau of Driver Licensing Appellee Address all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Filings may be made in erson 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 Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (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 1339 Chestnut Street Philadelphia, PA 19107 (215) 496-4980 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 Commonwealth Court shall exit only from the Harrisburg Office. !JF THc FqC'~~~^~'~?TARIf 201Q APR ! 9 PH 2= 19 r'tP~1~v~Y't_d-~NlA Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 --- ----- ----- ----------------- ---- ---- -- --- AOPC 5012 Rev.04/13/2010 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: Brian M. Pieton Vs. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver's Licensing 09-7901 Civil 576 CD 2010 The documents comprising the record have been numbered from No.l to 104, 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 06/03/2010 David D. Buell, Pr honotary Regina Lebo, Deputy An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of 5Cti~66r-1~CerDl2and in the Commonwealth of Pennsylvania to No. ~0~9-~7901~~~yil Term, 19 is contained the following: COPY OF A~z~arance DOCKET ENTRY BRIAN M. PIETON, VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTM~IT OF TRANSPORTATION, BUREAU OF DRI'JER'S LICENSING **SEE CERTIFIED COPY OF DOCKET ENTERIES** Commonwealth of Pennsylvania County of Cumberland ss: I, David D. Buell ,Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein $r; an M. Pieton Plaintiff, and Corrrrtonwealth of PA ~,-,art-rr,Pn+- r f Tran~artat i on Ri ire~~i i of T?ri rPr' s T,i .any i n~ Defendant , as the same remains of record before the said Court at No. 09-7901 of Civil Term, A. D. 19 In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 3rd day June A. D., ~21J10 Prothonotary 1 Kevin A. Hess President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that David D. Buell 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 Ctunberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by~roper officer ,. ~ ~L President .ludee Commonwealth of Pr°nnsy!vania ss: County of Cu~nberla~:d David D. t3ue11 I, Prothonotar of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. iN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seat of said Court this 3 day of June p, D lc~c2010 t Prothonotan o' s 0 a w m a w a a n 0 0 ~ ~' ~ a- 0 (D N a RJ n O C 7 ~G X b '=9 v n 0 O b0 G O ~-h m"c~ `/ ~'i N r c"~' (D N c~ rt 0 ~-3 ~'{ N AS rt O~ i~ N ~ ~' c Q y ''C F-' Cd 3 ro m (.'}~ z z 0 0 cn J ~O (~ d O . E.., 0 ~ ~ ~ ~ ~O ~D PYS511 Cumberland County Prothonotary's Office Civil Case Print 2009-07901 PIETON BRIAN M (vs) PENNSYLVANIA COMMONWEALTH OF Reference No... Case Ty e.....: Z- APPEAL - LICENSE SU Jud men......: .00 Judge Assigned: HESS KEVIN A Disposed Desc.: ------------ Case Comments ------------- Page Fi.led........: 11/13/2009 Time. .. 10:25 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: 576 CD 2010 Higher Crt 2.: General Index Attorney Info PIETON BRIAN M 4615 CARLISLE ROAD GARDNERS PA 17324 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER'S LICENSING RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT BARROUK TIMOTHY M APPELLEE * Date Entries 3-~~ 11/13/2009 /'j 11/16/2009 ~ . a 11/19/2009 ~~ 2/25/2010 / 3 3/03/2010 ~~O 3/03/2010 7' JS 3/04/2010 ,5 t.v- (,p04 / 01 / 2 010 ~a_gf.~4/01/2010 ~` 4/12/2010 ~J'r - 9 ( 4/19/2010 12 ~9S 4/19/2010 q(p 4/21(2010 (~.~_QGt 5/11/2010 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - STATUTORY OPERATOR'S LICENSE APPEAL FILED BY TIM M BARROUK ESQ FOR PLFF ------------------------------------------------------------------- AFFIDAVIT OF SERVICE - SERVED UPON DEFTS PETITITON - TIM BARROUK ATTY FOR PETITIONER ------------------------------------------------------------------- ORDER OF COURT - 11/18/09 IN RE: STATUTORY OPERATORS LICENSE APPEAL - THEIS MATTER IS SET FOR ARGUMENT ON 2/23/10 AT 9:30 AM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 11/19/09 ------------------------------------------------------------------- O%2D3/10 IS2CONTINUEDATON4/15/lOEATB9v30CPMTINNCR4MCUMBERS~DFOR COUNTY COURTHOUSE - BY KEVIN A HESS PJ - COPIES MAILED 2/25/10 ------------------------------------------------------------------- ORDER - 3/2/10 IN RE: DRIVERS LICENSE SUSPENSION APPEAL - THE APPEAL OF HIS DRIVERS LICENSE IS DENIED - BY KEVIN A HESS PJ - COPIES MAILED 3/3/10 ------------------------------------------------------------------- ORDER - 3/2/10 - ORDER OF 2/24/10 IS VACATED AS HAVING BEEN IMPROVIDENTLY ENTERED - BY KEVIN A HESS PJ - COPIES MAILED 3/3(10 ------------------------------------------------------------------- TRANSCRIPT FILED ------------------------------------------------------------------- NOTICE OF APPEAL - TIMOTHY M BARROUK ATTY FOR PLFF ------------------------------------------------------------------- APPLICATION FOR SUPERSEDEAS PENDING APPEAL - TIMOTHY M BARROUK ATTY FOR PLFF ------------------------------------------------------------------- ORDER - 4/12/10 IN RE: APPLICATION FOR SUPERSEDEAS PENDING APPEAL - A RULE IS ISSUED UPON TTHE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION TO SHOW CAUSE WHY THE RELIEF REQUESTED IN THE ATTACHED APPLICATION FOR SUPERSEDEAS PENDING APPEAL OUGHT NOT TO BE GRANTED - SAID RULE RETURNABLE 10 DAYS AFTER SERVICE - BY KEVIN A HESS PJ - COPIES MAILED 4/12/10 ------------------------------------------------------------------- ANSWER TO APPLICATION FOR SUPERSEDEAS PENDING APPEAL - BY PHILIP M BRICKNELL ATTY FOR APPELLEE ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING ## 576 CD 2010 ------------------------------------------------------------------- COPIES MAILEDI4/21/RO: APPEAL OF PETITIONER -- BY KEVIN A HESS PJ - ------------------------------------------------------------------- A CONCISE STATEMENT OF MATTERS COMPLAINED UPON APPEAL PURSUANT TO PA RAP 1925 B- BY TIMOTHY M BARROUK ATTY FOR PETITIONER ~~4 _035/27/2010 OPINION PURSUANT TO RULE 1925 - 5/27/10 - BY KEVIN A HESS PJ Y'YJ511 l:umiJerlana l:0UI1Ly YYOLriO17OLary' S V=Lice rage L Civil Case Print 2009-07901 PIETON BRIAN M (vs) PENNSYLVANIA COMMONWEA=~TH OF Reference No..: F_iled........: 11/13/2009 Case Ty e.....: Z- APPEAL - LICENSE SU T_ime...... : 10:25 Jud men .00 E;tecution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jta.ry Trial.... Disposed Desc.: HLspposed Date. 0/00/0000 ------------ Case Comments ----- D'~gher Crt l.: 576 CD 2010 COPIES MAILED 5/27/10 H~-gher Crt 2.: ------------------------ 6 03/2010 NOTICE OF DOCKET ENTRIES MAILED TO TIMOTHY BARROUK ESQ AND PHILIP BRICKNELL ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * * Fees & Debits Be*q Bal Pmts/Ad' 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 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 126.50 126.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE ~~~Y F120M REEORD M Te3tir~5ony ~herabi, i hste Bantu set my hand and tha seatflf said Gotyrx ai ~~ariisle, Pa. Tt~=,.....daXW.~.._.,.zo t ~ P 'honotary r ~____--~--- , F r - l ~~~~~~.. CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCED~i€:TRE 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: Brian M. Pieton Vs. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver's Licensing 09-7901 Civil 576 CD 2010 o ~~{__ ~~~- 1 xfTtr~a =: ~ ~~~ -C-~.~' ''. ~ r n~'~ `: w zap ~'~° ~ -~ The documents comprising the record have been numbered from No.l to 104, 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 06/03/2010 ~/ l ~ yid D. Buell, Prothonotary Regina Lebo, Deputy An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian M. Pieton, Appellant V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing 0q. 7901 No. 576 C.D. 2010 Submitted: September 10, 2010 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED c v r-n z z? Ny, z? MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: November 19, 2010 z 0 N N -a ?c c-, Brian Pieton (Pieton) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) which dismissed his statutory appeal from a one-year suspension of his operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (Department) pursuant to 75 Pa. C.S. § 1547, as a result of his refusal to submit to chemical testing. We quash the appeal. On October 14, 2009, the Department informed Pieton that his license would be suspended for one year for his refusal to submit to -n m_ -Or,, ?? x Q C:r-n rn n chemical testing on November 18, 2009. Pieton appealed the suspension to the trial court which conducted a hearing. At the hearing, Trooper Roussell testified that he arrested Pieton for driving under the influence of alcohol and transported him to the Cumberland County Booking Center for a breath test. Officer Spahr (Spahr) administered the breath test to Pieton. According to Spahr, Pieton did. not provide a constant breath sample, that such was intentional and that his failure to provide a sufficient breath sample was deemed a refusal. The trial court also viewed a DVD of Pieton's processing. Pieton did not testify. On March 2, 2010, the trial court dismissed Pieton's appeal and affhm4the suspension imposed by the Department for his refusal to submit to, pheal testing. On May 27, 2010, the trial court issued an opinion in support of its order. Therein, the trial court observed that: On April 20, 2010, we filed an order directing the appellant [Pieton] to file a Statement of Matters Complained of on Appeal with the direction that the statement be served on the hearing judge. We have learned that a Statement of Matters Complained of on Appeal was filed on or about May 11, 2010. However, the statement was not served upon the undersigned.' We are satisfied that the Commonwealth Court would be within its rights to quash this appeal because it was not served upon the trial court. See Commonwealth v. 766.00 US. Currency, 948 A.2d 912 (Pa. Cmwlth. 2008). (Trial court opinion at 1.) We agree with the trial court that Pieton has waived all of his issues by failing to serve on the trial court a copy of his statement of matters 1 We did not receive a copy of it. The affidavit of service attached to the 1925(b) statement indicates that a copy of it was served upon the Office of Chief Counsel for the Department of Transportation. There is no reference to service on the hearing judge. 2 complained of on appeal and that the appeal must be quashed. Pa. R.A.P. 1925 provides, in part, that a trial court judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of matters complained of on appeal. The rule further provides that the order directing the filing and service of a statement shall specify that the statement shall be served on the trial court judge and the order shall state that any issue not properly included in the statement shall be deemed waived. Pa. R.A.P. 1925(b)(3).2 2 Pa. R.A.P. 1925(b) provides in pertinent part: (b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court.--If the judge entering the order giving rise to the notice of appeal ("judge") desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of matters complained of on appeal ("Statement"). (1) Filing and service.--Appellant shall file of record the Statement and concurrently shall serve the judge. (3) Contents of order.--The judge's order directing the filing and service of a Statement shall specify: (i) the number of days after the date of entry of the judge's order within which the appellant must file and serve the Statement; (ii) that the Statement shall be filed of record; (iii) that the Statement shall be served on the judge pursuant to paragraph (b)(1); (iv) that any issue not properly included in the Statement timely filed and served pursuant to subdivision (b) shall be deemed waived. 3 Here, the trial court's April 20, 2010 order adhered to the language of Pa. R.A.P. 1925, in that it directed Pieton to file a ,concise statement of matters complained of on appeal, directed that such statement be filed and served on the trial court judge and also stated that any issue not included in the statement would be deemed waived. (R.R. at 64a.) "[F}ailure to serve a 1925(b) statement on the trial court judge constitutes a fatal defect which shall result in the issues being waived and the appeal being quashed." Commonwealth v. $766.00, 948 A.2d at 915. Accordingly, having failed to comply with the requirements of Pa. R.A.P. 1925(b), the appeal filed by Pieton is quashed. Next, we address the Department's contention that it is entitled to an award of counsel fees and costs pursuant to Pa. R.A.P. 2744. With respect to the merits of the case, the Department maintains that Pieton's appeal is frivolous in that it lacks any reasonable basis in either law or fact. Specifically, the Department maintains that on appeal, Pieton merely attacks the trial court's credibility determinations, wherein the trial court credited the testimony of the Department's witnesses that Pieton intentionally provided an insufficient breath sample and "credibility determinations cannot be disturbed on appeal if they are supported by substantial evidence." De e t of Tr I3 f 'v v. Gaertner, 589 A.2d 272, 276 (Pa. Cmwlth. 1991). We conclude, however, that an award of counsel fees and costs is not warranted. In his appeal, Pieton also addresses the difference between an "invalid sample" and a "deficient sample" of breath and whether the Department met its burden of proof in accordance with Department of 4 Transportation, Bureau of Driver Licensing v. Valania, 69S A.2d 9S3 (Pa. Cmwlth. 1997). Although this court does not reach the merits of Pieton's appeal, we conclude that such has a reasonable basis in law or fact. In accordance with the above, the appeal filed by Pieton is quashed. 5 { IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian M. Pieton, Appellant V. No. 576 C.D. 2010 Commonwealth of Pennsylvania, Department of Tranporlon, Bureau of Driver Licensing ORDER Now, November 19, 2010, the above-captioned appeal is quashed. eFFLLAAHERTY, Senior A e 00rwea*0M#*a9=m MV 1 9 2010 ffld0Fd9rE* I Co Kristen W. Brown Prothonotary Michael Krimmel, Esq. Chief Clerk of Commonwealth Court CE TO: David D. Buell Prothonotary RE: Pieton v. DOT 576 CD 2010 Trial Court Trial Court Docket No Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 March 24, 2011 www.pacourts.us I-E OF REMITTAL/REMAND OF RECORD 7901 Civil Law Annexed hereto pursuant toE entire record for the above mattr. Original Record contents: Item is Rules of Appellate Procedure 2571 and 2572 is the Filed Date Description trial court record Remand/Remittal Date: ORIGINAL RECIPIENT ONL the enclosed copy of this certi acknowledge receipt. June 8, 2010 1 - Please acknowledge receipt by signing, dating, and returning ate to our office. Copy recipients (noted below) need not Respectfully, Commo ea rCour?t' Filin Office (? N C.= C) z Zf'*'I 7?? ??'.' ?D 00 Cp ? ? ZG ?" ry " C'7 y Q CD ,ern ? w ? ? M Pieton v. DOT 576 CD 2010 Letter to: Buell, David D. Acknowledgement of Certifi Signature March 24, 2011 of RemittaVRemand of Record (to be returned): Date Printed Name L N IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian Pieton Common Pleas of Cum statutory appeal from a imposed by the Departm, (Department) pursuant to submit to chemical testing. On October 1 license would be ?) appeals from an order of the Court of County (trial court) which dismissed his ne-year suspension of his operating privilege t of Transportation, Bureau of Driver Licensing 5 Pa. C.S. § 1547, as a result of his refusal to We quash the appeal. 2009, the Department informed Pieton that his for one year for his refusal to submit to chemical testing on November 18, 2009. Pieton appealed the suspension to the trial court which conduced a hearing. At the hearing, Trooper Brian M. Pieton, Appellant v. No. 576 C.D. 2010 Submitted: September 10, 2010 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensin BEFORE: HONORABL BERNARD L. McGINLEY, Judge ? N HONORABLE , ROBERT SIMPSON, Judge = --i HONORABLE ' JIM FLAHERTY, Senior Judge z? tn? N Q ? OPINION NOT REPORTE D r-= v<° 00 N rO o--n zo 5;c= r z-- CDrn MEMORANDUM OPINIO N BY SENIOR JUDGE FLA RTY FILED: November 19 , 2010 Roussell testified that he arrested Pieton for driving under the influence of alcohol and transported him to the Cumberland County Booking Center for a breath test. Officer Spahr (Spahr) administered the breath test to Pieton. According to Spahr, Pieton did not provide a constant breath sample, that such was intentional and that his failure to provide a sufficient breath sample was deemed a refusal. The trial court also viewed a DVD of Pieton's processing. Pieton did not testify. On March 2, 2010, the trial court dismissed Pieton's appeal and affirmed the suspension imposed by the Department for his refusal to submit to chemical testing. On May 27, 2010, the trial court issued an opinion in support of its order. Therein, the trial court observed that: On April 20, 2010, we filed an order directing the appellant [Pieton] to file a Statement of Matters Complained of on Appeal with the direction that the statement be served on the hearing judge. We have learned that a Statement of Matters Complained of on Appeal was filed on or about May 11, 2010. However, the statement was not served upon the undersigned.' We are satisfied that the Commonwealth Court would be within its rights to quash this appeal because it was not served upon the trial court. See Commonwealth v. $76600 U.S. Currency, 948 A.2d 912 (Pa. Cmwlth. 2008). (Trial court opinion at 1.) We agree with the trial court that Pieton has waived all of his issues by failing to serve on the trial court a copy of his statement of matters 1 We did not receive a copy of it. The affidavit of service attached to the 1925(b) statement indicates that a copy of it was served upon the Office of Chief Counsel for the Department of Transportation. There is no reference to service on the hearing judge. 2 I complained of on appeal 1925 provides, in part, tr the appellant to file of r concise statement of ma d that the appeal must be quashed. Pa. R.A.P. a trial court judge may enter an order directing ?rd in the trial court and serve on the judge a -s complained of on appeal. The rule further provides that the order dir cting the filing and service of a statement shall specify that the statement shall be served on the trial court judge and the order shall state that any is ue not properly included in the statement shall be deemed waived. Pa. R.A.P 1925(b)(3).2 z Pa. R.A.P. 1925(b) provides in pertinent part: (b) Direction to file statement of errors complained of on appeal; instructs ns to the appellant and the trial court.--If the judge enterig the order giving rise to the notice of appeal ("judge') desires clarification of the errors complained of appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of matters complained of o appeal ("Statement"). (1) Filing and service.--Appellant shall file of record the Statement and co currently shall serve the judge. (3) Contents o order.--The judge's order directing the filing and service of a Statement shall specify: (i) the n ber of days after the date of entry of the j dge's order within which the appellant ;ust file and serve the Statement; (ii) that Jhe Statement shall be filed of record; (iii) that Ithe Statement shall be served on the judge ursuant to paragraph (b)(1); (iv) that any issue not properly included in the Statement timely filed and served pursuant t subdivision (b) shall be deemed waived. 3 Here, the trial court's April 20, 2010 order adhered to the language of Pa. R.A.P. 1925, in that it directed Pieton to file a concise statement of matters complained of on appeal, directed that such statement be filed and served on the trial court judge and also stated that any issue not included in the statement would be deemed waived. (R.R. at 64a.) "[F]ailure to serve a 1925(b) statement on the trial court judge constitutes a fatal defect which shall result in the issues being waived and the appeal being quashed." Commonwealth v. $766.00, 948 A.2d at 915. Accordingly, having failed to comply with the requirements of Pa. R.A.P. 1925(b), the appeal filed by Pieton is quashed. Next, we address the Department's contention that it is entitled to an award of counsel fees and costs pursuant to Pa. R.A.P. 2744. With respect to the merits of the case, the Department maintains that Pieton's appeal is frivolous in that it lacks any reasonable basis in either law or fact. Specifically, the Department maintains that on appeal, Pieton merely attacks the trial court's credibility determinations, wherein the trial court credited the testimony of the Department's witnesses that Pieton intentionally provided an insufficient breath sample and "credibility determinations cannot be disturbed on appeal if they are supported by substantial evidence." Department of Transportation, Bureau of Driver Licensing v. Gaertner, 589 A.2d 272, 276 (Pa. Cmwlth. 1991). We conclude, however, that an award of counsel fees and costs is not warranted. In his appeal, Pieton also addresses the difference between an "invalid sample" and a "deficient sample" of breath and whether the Department met its burden of proof in accordance with Department of 4 J Transnortati Cmwlth. 1997). Althou appeal, we conclude that In quashed. 5 icensinp- v. Valania, 695 A.2d 953 (Pa. ? this court does not reach the merits of Pieton's ich has a reasonable basis in law or fact. with the above, the appeal filed by Pieton is IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian M. Pieton, Appellant V. No. 576 C.D. 2010 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing : ORDER Now, November 19, 2010, the above-captioned appeal is quashed.