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HomeMy WebLinkAbout10-3012COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION vs. DOROTHY JEAN MALINICH Petitioner IN THE COURT OF COMMQN hLE fT:' OF CUMBERLAND COUNTY',' FT PENNSYLVANIA CIVIL ACTION -`' NO. 2010- ?CIS ?uL r_ O APPEAL FROM SUSPENSI N OF OPERATING PRIVILEGES APPEAL FROM NOTICE OF SUSPENSION OF OPERATING PRIVILEGES TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, this ? f-6 day of May, 2010, comes Petitioner, Dorothy Jean Malinich, by her attorney, Joseph D. Buckley, Esquire, and appeals the Notice of Suspension of her operating privilege based on the following: 1. Dorothy Jean Malinich is an adult individual who resides at 1138 Pheasant Drive, North, Carlisle, PA 17013. 2. On April 30, 2010 Dorothy Jean Malinich received a Notice stating that her driving privileges were being suspended for a period of one (1) year effective June 1, 2010. (A true and correct copy is attached hereto and marked Exhibit "A") 3. The Notice states that the authorization for the suspension could be found in Section 1547BIl of the Pennsylvania Vehicle Code for Petitioner's alleged violation of Section 1547 of the Vehicle Code, Chemical Test Refusal on 04/09/2010. 4. The Commonwealth and its agents did not have probable cause to detain Dorothy Jean Malinich. 5. The Commonwealth and its agents did not have probable cause to believe Dorothy Jean Malinich had been operating her vehicle while under the influence of alcohol. p?z,0d RL ?-? j?19 .241 6. Dorothy Jean Malinich was not properly placed under arrest for driving under the influence of alcohol nor was she properly informed that she was being arrested for operating her vehicle while under the influence of alcohol. 7. Dorothy Jean Malinich did not refuse any chemical testing on April 9, 2010 nor has she ever refused to submit to such testing. 8. The Commonwealth through its agents failed to ask Petitioner if she would take a chemical test. 9. The Commonwealth through its agents failed to properly administer a chemical test and have attempted to impute its failure into a refusal by Dorothy Jean Malinich. 10. The Commonwealth through its agents failed to inform Petitioner that if she refused to submit to a test or that if it determined that she was not cooperating with the agents demands, that her driving privileges would be suspended. WHEREFORE, Petitioner, Dorothy Jean Malinich, prays that this Court review the matter and reverse the determination of the Department of Transportation and further stay the suspension pending a final determination by this Honorable Court. Respectfully submitted, Supreme Court I.D. #38444 Law Offices of Joseph D. Buckley 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 JoeBLaw@aol.com Attorney for Dorothy Jean Malinich EXHIBIT 44 A 99 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: APRIL 30, 2010 DOROTHY JEAN MALINICH WID # 101136739245007 001 1138 PHEASANT DR N PROCESSING DATE 04/23/2010 DRIVER LICENSE # 23145757 CARLISLE PA 17013 DATE OF BIRTH 04/23/1963 - - . --- D-e.a-r MS.- MA.L.I-N-IjCJ.L,._ - - --- - - - - - - 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 04/09/2010: ¦ Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 06/04/2010 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 06/04/2010. You may surrender these items before, 06/04/2010, 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 identification (e.g., birth certificate, valid U.S. passport, marriage certificate; efc.) in--ord`er'- to --obta-in 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 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 driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: 101136739245007 Pennsylvania Department of Transportation 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 confirming the date that credit began. If you do not _ receive a _receipt from us within 3 weeks, please contact our office. Otherwise, you will not-be given credi-t- -- - - 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 products, 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". 101136739245007 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, APRIL 30, 2010, of this letter. If you file an appeal in the County Court, the Court will give you a time-stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certified copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 06/04/2010. Sincerely, 9i?-u ?-* - '6 g &,/) Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 6.00 P.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.pa.us VERIFICATION I, Dorothy Jean Malinich, hereby verify that the facts set forth in the foregoing Appeal are true and correct to the best of my knowledge and belief. I understand that the statements made herein are subject to the provisions and penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. Date: & vie; t 0 Dorothy Jean M 4 nich CERTIFICATE OF SERVICE I, Joseph D. Buckley, Esquire, hereby certify that a true and correct copy of the foregoing Appeal from Order Recalling/Suspending Operating Privileges was duly served on the following office via prepaid United States First Class Mail as required by law. Pennsylvania Department of Transportation Office of the Chief Counsel Riverfront Office Center, Third Floor Harrisburg, PA 17104-2516 Date: 5-- 6 - ZVO Buckley,'Esquire „~ . ~u~ ~ zoo 3 DOROTHY J. MALINICH, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY v. COMMONWEALTH OF PENNSYLVANIA, NO. 3012 CIVIL 2010 DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER ,1 2010, u on AND NOW, this ~ day of ~ ~ p consideration of the Department's Motion to Continue, the Motion is hereby granted and the Matter is Continued and rescheduled for hearing on the ~ ~ day of 2 0 at~' ~m. in Courtroom No. 3, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT DISTRIBUTION: J. Joseph D. Buckley, Esq., The Law Offices of Joseph D. Buckley, 1237 Holly~ke,~arlis~e, PA a 17013 -~-~ ~_' ~ Y ~.;,ir~- 'Philip Bricknell, PennDOT, Riverfront Office Center-3rd Floor, 1101 Soutltrhront ~h'eet ;i ~~ ~_ ~, ~ Harrisburg, PA 17104-2516 ~=' -' -~ -"~,' p . ~ ~. ~ ~ ,~~c- DOROTHY J. MALINICH,, Petitioner V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 3012 CIVIL 2010 APPEAL FROM SUSPENSION OF OPERATING PRIVILEGES ORDER OF COURT AND NOW, this 1st day of September, 2010, hearing in this matter is continued to October 27, 2010, at 11:00 a.m., to take testimony from the breath test operator cn whether or not the machine was properly operating. By the Court, Edward E. Guido, J. ?Joseph D. Buckley, Esquire For the Petitioner Philip Bricknell, Esquire For the Respondent srs t. V-S en?FLLL v 0 C - D pn ? r. ? c = .'ern ? N 1N THE COURT OF COMMON PLEAS OF ~; _.~ CUMBERLAND COUNTY, PENNSYLVANIA ~ rn ~°-, DOROTHY J. MALINICH Petitioner v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent r -r ., 2 N k....... . r ~ '~/ i , ~ . ~~, ~~ µ NO. 3012 CIVIL TERM 201 0 MOTION FOR CONTINUANCE °~~ _~ r~*i ~n .~ ~ C7 ""~ . j_ ~~ _~i=~ :~J AND NOW, this 25~h day of October, 2010, comes, Petitioner, Dorothy J. Malinich, by and through her attorney, Joseph D. Buckley, Esquire and moves that this Honorable Court grant a Continuance in this Matter based on the following: 1. The above captioned matter is scheduled for a hearing before this Honorable Court on October 27, 2010 at 11:00 a.m.in Courtroom No. 3. 2. On the afternoon of Friday October 22, 2010, Petitioner was informed that her father had passed away. 3. Petitioner contacted her attorney, Joseph D. Buckley, Esquire and he immediately contacted Respondent's attorney's office of Petitioner's father's passing and left a message for Phillip M. Bricknell, Esquire requesting a continuance. 4. On Monday October 25, 2010, Attorney Bricknell contacted Attorney Buckley and stated that the Commonwealth had no objection to the Motion for Continuance. 5. Petitioner will be out of the jurisdiction until November 3, 2010. 6. Counsel for Respondent wishes to inform the Court that he will be out of the country from November 11,2010 through November 30, 2010 and counsel for Petitioner will be out of the continental U.S. from December 2, 2010 through December 12, 2010. WHEREFORE, Petitioner humbly requests a Continuance be granted in this matter. Respectfully submitted, Joi D. Buckley, Est[Ciir~ Attorney for Petitioner Supreme Court ID # 38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 JoeBLaw@aol.com VERIFICATION I, Joseph D. Buckley, Esquire, verify that the statements made in this Motion are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: October 25, 2010 CERTIFICATE OF SERVICE I, Joseph D. Buckley, Esquire, certify that the following person was served with the foregoing Motion pursuant to the Pennsylvania Rules of mCivil Procedure via prepaid, first class United States mail: Phillip M. Bricknell, Esquire Pennsylvania Department of Transportation Office of General Counsel 1101 South Front Street, 3ra Floor Harrisburg, Pa, 17104-2516 October 25, 2010 i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOROTHY J. MALINICH Petitioner v. NO. 3012 CIVIL TERM 2010 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent ORDER ACT Z 6 ZU1~ "'Z7/ AND NOW, this /~ ~ day of October, 2010, upon consideration of the Petitioner's Motion for Continuance, the Motion isGhereby granted, and the Matter is Continued and rescheduled for hearing on the y ~ day of ~ , 2010 At ©~ h . M. in Courtroom No. 3, Fourth Floor, Cumberland County Courthouse, Corner of High and Hanover Streets, Carlisle, PA 17013. BY THE COURT J. Copie to: Joseph D. Buckley, Esquire Attorney for Petitioner hillip M. Bricknell, Esquire Counsel for the Respondent f~ t~£S m.5 t ~~. !O!z?~(D -~ 1 _.~ a _; r~ ice' r~ ~~ u' .~,, ~`, ~, ~~ T} C'z ~O 37' ~ --~ -L n ~~ ~~ T.~ v rn~ -~ rn c:, ~ xp ©'*1 ~~ O ~ D DOROTHY J. MALINI:CH, Petitioner V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 3012 CIVIL 2010 APPEAL FROM SUSPENSION OF OPERATING PRIVILEGES ORDER OF COURT AND NOW, this 8th day of November, 2010, after hearing, the appeal from the Department's suspension of the Defendant's operating license for refusal to give a breath test is DISMISSED, and the action of the Department is sustained. Rtr i-1-1 r- (''nlirF Edward E. Guido, J. zioseph, D. Buckley, Esquire th.ePetitioner iP ?Bricknell, Esquire Zl For the Respondent C"I srs o u % M ? s C:7 !!! ' C0 M 5 r