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HomeMy WebLinkAbout10-5751":-TICE F? ^=.t pc-'??'? CUf p y t_vSYLWMIA RICHARD P. BROWN, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. STATUTORY OPERATOR'S LICENSE COMMONWEALTH OF APPEAL PENNSYLVANIA, DEPARTMENT OF 10-51751 Civit Tenn TRANSPORTATION, : BUREAU OF DRIVER'S LICENSING, Respondent TO THE HONORABLE JUDGES OF SAID COURT: STATUTORY OPERATOR'S LICENSE APPEAL AND NOW, this 3rd day of September, 2010, comes the above-captioned defendant, Richard P. Brown, by and through his counsel, The McShane Firm, LLC, and Shawn M. Dorward, 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 Richard P. Brown, Pennsylvania Driver License Number 21609720, whose place of residence is 101 Orchard Crest Court, Gardners, PA 17324 in the County of Adams, with a date of birth of February 2, 1968. 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 0 A Office Center, 1101 South Front Street, Harrisburg, Pennsylvania. *gA.0o PO A17Y elf aasl R:*-aka 4. The Appeal is taken from an Official Notice bearing a mailing date August 11, 2010. With that Notice the Bureau of Driver's Licensing notified Petitioner that it was suspending his privilege of operating a motor vehicle in Pennsylvania for a period of 1 year, effective September 15, 2010, 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 July 3, 2010. A true and correct copy of the Bureau's Notice of Suspension is appended to this Petition as Exhibit "A". 5. The 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 procedural prerequisites that law enforcement must follow in order to obtain a valid sample were not met in this case including, but not limited to, deficient implied consent warnings. 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, Richard P. Brown, by and through his counsel 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 his operating privilege. Respectfully submitted, The McShane Finn, LLC Shawn M. Dorward, Esquire Attorney for Petitioner 4807 Jonestown Road Suite 148 Harrisburg, PA 17109 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 209595 Exhibit "A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: AUGUST 11,.2010 RICHARD P BROWN WID * 102166117807686 001 101 ORCHARD CREST CT PROCESSING DATE 08/04/2010 DRIVER LICENSE * 21609720 GARDNERS PA 17324, DATE OF BIRTH 02/02/1968 Dear MR BROWN: - This is an official Notice of the Suspension of your Driving Privilege as authorized by Section 1547BII of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the.Vehicle Code,.CHEMICAL TEST REFUSAL, on 07/03/2010: ¦ Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 09/15/2010 at 12:0.1 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 09/15/2010. You may surrender these items before, 09/15/2010, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR bRIVER'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, marFiage cer`tificate,., etc.) in order to--obtain .youur 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 Pen-nDOT. 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 102166117807686 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 Poli.ce_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. (listed on ensureheprfirst oper 2. Write on r the check license page) 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, AUGUST 11, 2010, of this letter. if you rile 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 102166117807686 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 09/15/2010. Sincerely, Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8.00 a.m. to 6:00 p.m 1-800_228_0676 IN STATE 1-800-932-4600 TDD IN STATE OUT-OF-STATE ..717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www dmv.state.pa.us O SEP 0 9 ZU1U RICHARD P. BROWN, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PENNSYLVANIA v. No.: to - 5751 Vil lerM COMMONWEALTH OF STATUTORY OPERATOR'S LICENSE PENNSYLVANIA, DEPARTMENT OF APPEAL TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent ORDER OF COURT AND NOW, this 104 day of t , 2010, 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 A) at 1 OV o'clock in Courtroom _?. !j 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;` U} O 7r} r Y J 'JUDGE Distribution: Court Administration ffice of Chief Counsel, PennDOT ,__?awn M. Dorward, Esquire, The McShane Firm, LLC, 4807 Jonestown Road, Suite 148, Harrisburg, PA 171091- 4 ?.S ?'Y1`a.l RICHARD P. BROWN, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. STATUTORY OPERATOR'S LICENSE COMMONWEALTH OF APPEAL PENNSYLVANaA, DEPARTMENT OF '~ o TRANSPORTATION, ~2.~d p..~7~ j ~~ ._~~ Q BUREAU OF DRIVER'S LICENSING, ~ ;ern ~ -.~' ', ~_ ~ . -~ Respondent ;r, r ,-,~, -<n ---- AFFIDAVIT OF SERVICE ~° ~~ . ... , . . _.., .._. I, Shawn M. Dorward, Esquire, do hereby affirm that I have served upon the Depart~aent ~ of Transportation, Bureau of Driver's Licensing, a true and correct copy of Richard P. Brown'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,.'1~j~~ ~~~-m ~~q ,addressed as follows: o8L3 Office of Chief Counsel Department of Transportation Riverfront Office Center - 3ro 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. Respecffully submitted, The McShane Firm, LLC Shawn M. Dorward, Esquire Attorney for Petitioner 4807 Jonestown Road Suite 148 Harrisburg, PA 17109 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 209595 . ~; ~ ~ ^ Gomplete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ^ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addre sed t /t° ~,~~0 / r ry. i `E 1 " ~ ,, ~T~~ C ~^o~~~,~ O -3rd ~ ~,~ S /1~ A. Signatur X ~ ^ Agent ^ Addressee B. Received by (Printed Name) I C- Date of Delivery D. Is delivery address different from item 1? ^ Yes If YES, enter delivery address below: ^ No 3.ice Type ertrfied Mail ^ Registered Retum Receipt fe~MereMeradica., ^ Insured Mail ^ C.O.D. _ 4. Restricted Delivery? (Extra Fee) ^ Yes 2. Article Number 7d~6 3450 D001 6399 Q823 (Jiansfer from service labeq -.~__ _____ __ ._ __ _ PS Form 3$11, February 2004 Domestic Return Receipt 102595-02-M-154L Exhibit "A" RICHARD P. BROWN, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent 10-5751 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this 7th day of December, 2010, after hearing the Court finds by a preponderance of the evidence that the Department has sustained its burden, and, accordingly, the suspension of Mr. Brown's license is affirmed and his appeal is dismissed. By the Court, Albert H. Mas and, J. Shawn M. Dorword, Esquire 4807 Jonestown Rd, Ste 148 Harrisburg, PA 17109 For the Petitioner Philip M. Bricknell, Esquire Office of Chief Counsel 1101 South Front Street- 3rd Floor Harrisburg, PA 17104-2516 For the Respondent pcb CD , Cl m - e -? ' --4 C:) C:) 'C N --a C:) ? w ?