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Home My WebLink About11-5012DANIEL L. SWANK, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PENNSY VA I v No. - Sol a CA k Vi"n rn'? . z? -vim COMMONWEALTH OF Civil Appeal From License Suspens t; Z CQ PENNSYLVANIA, DEPARTMENT OF <C) -M TRANSPORTATION, za o PETITION OF APPEAL FROM SUSPENSION OF DRIVING PRIVILEGES And now comes the Petitioner Daniel L. Swank by and through his attorney, Douglas K. Marsico of Caldwell & Kearns and file the within Petition of Appeal from Suspension of Driving Privileges and in support thereof aver the following: The Petitioner is an adult individual residing at 3159 Redlawn Drive, Bethlehem, Northampton County, Pennsylvania 18017. 2. The Petitioner is licensed as a motor vehicle driver by the Commonwealth of Pennsylvania, License No. 26777996. By official notice dated May 31, 2011, the Petitioner received notification from the Commonwealth of Pennsylvania, Department of Transportation that his driving privileges were suspended for a period of one year effective July 5, 2011. (See Exhibit "A") 4. The suspension notice was based upon an alleged refusal to take a chemical test in Cumberland County on May 7, 2011. The Petitioner appeals the notice of suspension and requests a hearing on the merits by this Honorable Court. A QMk $ 9a. Pd a ?? ? S7oy3 ?LL accaceto a WHEREFORE, the Petitioner prays this Honorable Court to vacate the one year license suspension as imposed by the Commonwealth of Pennsylvania, Department of Transportation in its May 31, 2011 notice. Respectfully submitted, l Marsico, tto ey I.D. No. 69804 CA DWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 717-232-7661 / f I Attorney for Petitioner Date: C/7 178226 05/31/2011 10:46 6106913907 MARK SWANK PAGE 01 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Dates MAY 31, 2011 DANIEL L SWANK WID i 111446032796460 001 3159 REDLAWN DRIVE PROCESSING DATE 05/24/2011 BETHLEHEM PA 18017 DRIVER LICENSE $ 26777996 DATL OF BIRTH 05/12/1984 Dear MR. SWANK: This is an Official Notice of the Su$Penvion 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 05/07/2011: • Your driving privilege is SUSPENDED for a Period of 1 YEAR(S) effective 07/05/2011 at 12:01 a.m. CO PLY NG WITH TH S 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 07/05/2011. You may surrender these items before, 07/05/2011, 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 $13.50. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. "smomr_t,.. mpr.riage ,certificate, etc.) in order to obtain your photo identification cerd'. 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: 05/31/2011 10:46 6106913907 MARK SWANK PAGE 02 111446032798460 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 o..ffiz-a- 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 products, we must refer this matter to the Pennsylvania State Police for Prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PA ING E RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revacation 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' the requirement to acknowledge your If you have not acknowledged your please follow the instructions listed this Suspension/Revocation". r e suspension/revocation. suspension/revocations under "Complying with 05/31/2011 10:46 6106913907 MARK SWANK PAGE 03 111446032798460 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, MAY 31, 2011, 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 T-i?4d..--Flo_or-P R-.verfront... 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 07/05/2011. Sincerely, 9?tu? Z g o? Janet L. Dolan, Director Bureau of Driver Licensing INFQRNATION 8:00 a.m. to 5.00 a.m IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TDO OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www..dmv.state.oa.us CERTIFICATE OF SERVICE AND NOW, this I$ day of June, 2011, I hereby certify that I have served a copy of the within document on the following by certified mail addressed to: Commonwealth of Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, River Front Office Center Harrisburg, PA 17104 CALDWELL & KEARNS DANIEL L. SWANK, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. No. 1. So t o I N c? COMMONWEALTH OF Civil Appeal From License SuspenAw rrnr PENNSYLVANIA DEPARTMENT OF = '0rn TRANSPORTATION, y o y q Om Z. ...G N ce --i ORDER ` And now this _7A-1 day of c_ , 2011, upon presentation of the attached Petition, a hearing de novo is granted to determine whether the actions of the Department of Transportation in suspending the driving privileges of t e Petit ner should be set cu=e in Courtroom No. Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT v Docx?la? K M4.rs?co, 1?. est. oPTro?.?s?br?,cM to>SC' S6 ? ?-> azh c., 4 S f mss, aside. It is hereby ordered and decreed that no suspension shall occur until a hearing has been n held. The hearing in this matter is scheduled for 10 , 2011 at %o O M. OK6 DANIEL L. SWANK, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. No. 11-5012 Civil COMMONWEALTH OF Civil Appeal From License Suspensba PENNSYLVANIA, DEPARTMENT OF T crnnD ?- ? rn F TRANSPORTATION, c'En 4? ?x. N a ORDER = C7, .r And now this ! 6?_'day of 2011, upon presentation 4theZ attached Motion for a Continuance, the Petitioner's request is granted and the hearing in this matter is rescheduled for -GkZ.Ge? , 2011 at ,-?2 ill in Courtroom No., Cumberland County, Carlisle, Pennsylvania. M,ild Distribution List: C C. "P 8J4, if Douglas K. Marsico, Esquire, Caldwell & Kearns, 3631 North Front Street, Harrisburg, PA 17110 Philip Bricknell, Esquire, Commonwealth of Pennsylvania, Department of Transportation, Office of Chief Counsel, Third Floor, River Front Office Center, Harrisburg, PA 17104 , DANIEL L. SWANK, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COtJNTY, PENNSYLVANIA V. : No. 11-5012 Civil COMMONWEALTH OF : Civil Appeal From License Suspension PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, ~ r.a . MOTION FOR CONTINUANCE ~ - ~ c"i TO: Honorable J. Wesley Oler, Jr. ..l.M~- r--^ 1. On June 17, 2011, the Petitioner filed an Appeal from the notice of liiy~e v, suspension resulting from an alleged refusal on May 7, 2011. 2. The Court has scheduled a hearing in this matter for November 21, 2011 at 2:30 p.m. 3. The license suspension in this matter arises from an alleged refusal in which criminal charges are pending against Petitioner for driving under the influence of alcohol. 4. In order for the Petitioner to defend this appeal, it may be necessary for him to testify in this civil proceeding. II 5. By testifying in this civil proceeding, the Petitioner is at risk of providing self- ! incriminating evidence that could be used against him in the criminal case. 6. In order to avoid any risk of self-incrimination, Petitioner respectfully requests the hearing on this appeal be continued until after the disposition of the Petitioner's pending criminal charge. - 7. At this point, it is requested that the matter be continued until February 9, 2012. If more time is required at that point, a second continuance motion will be filed. 8. PennDOT counsel Philip Bricknell concurs with this continuance request. ~ + . WHEREFORE, it is respectfully requested this Honorable Court grant the instant Petition for Continuance and reschedule the above matter. Respectfully submitted, s sico, ' e rne D. No. 69804 CAL ELL & KEARNS 363 orth Front Street Harrisburg, PA 17110 717-232-7661 • ~ Attorney for Petitioner Date: ~ I ~I ( 11152-001/183560 . a CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Philip Bricknell, Esquire Commonwealth of Pennsylvania Department of Transportation Office of Chief Counsel - Third Floor, River Front Office Center Harrisburg, PA 17104 CALDWELL & KEARNS ; Dated: ~ ` ~ I By ti DANIEL L. SWANK, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. No. 11-5012 Civil COMMONWEALTH OF Civil Appeal From License Sus rf?f? io= ?F== PENNSYLVANIA, DEPARTMENT OF ... TRANSPORTATION, CO -dam p C a -r r ORDER . _ ° - ?j 77 - And now this 1 day of , , 2011, upon presentation of the o y attached Motion for a Continuance, the Petitioner's request is granted and the hearing in this matter is rescheduled for February 9, 2012 at G - 3 C 1'? * 0 in Courtroom No. ?, Cumberland County, Carlisle, Pennsylvania. Distribution List: Qi'v Douglas K. Marsico, Esquire, Caldwell & Kearns, 3631 North Front Street, elite Harrisburg, PA 17110 eopies r!' M D Philip Bricknell, Esquire, Commonwealth of Pennsylvania, Department of Transportation, Office of Chief Counsel, Third Floor, River Front Office Center, Harrisburg, PA 17104 DANIEL SWANK, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER NO. 11-5012 CIVIL TERM AND NOW, this 9th day of February, 2012, the appeal filed in the above- captioned matter is CONTINUED and RESCHEDULED for the 16th day of April, 2012, at 9:30 a.m., in Courtroom no. 3 of the Cumberland County Courthouse, Carlisle, Pennsylvania. CD ?C7 f BY THE COURT:' J. Attest: ? Douglas K. Marsico, Esq., Caldwell & Kearns, P.C., 3631 N. Front St., Harrisburg, PA 17110 ? Philip M. Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, Riverfront Office Center, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 Cop; eS ma. l-ed -;?jgba J?4t& DANIEL SWANK, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, NO. 11-5012 CIVIL TERM DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER AND NOW, this 16th day of April, 2012, the appeal filed in the above- captioned matter is CONTINUED and RESCHEDULED for the 15th day of August, 2012, at 9:30 a.m., in Courtroom no. 1 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE, J. /Attest: ? Douglas K. Marsico, Esq., Caldwell & Kearns, P.C., 3631 N. Front St., Harrisburg, PA 17110 ? Philip M. Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, Riverfront Office Center, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 NO ?- r ,QS ` 7 ?? ?Y??F [ II?L? L-// z rw Cn -- _ -: r .., 71, C- ?. _C . ' _- w DANIEL SWANK, Petitioner V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS ~JF CUMBERLAND COUNTY, PENNSYLVANIA N0. 11-5012 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of August, 2012, upon consideration of appellant's appeal from suspension of operator's privilege, and after hearing argument from counsel the Court makes the following findings of fact: 1. On May 7, 2011, at approximately 4:00 a.m., Officer James Miller stopped the petitioner because of failur to have proper lighting on his vehicle. 2. After stopping the petitioner, he observed vari indications that the petitioner was under the influence. 3. Based on the stipulation of the parties, there were reasonable grounds to both stop and arrest the petitioned. 4. The petitioner was read the DL-26 form at the scene of the stop and did not respond at that time. 5. The petitioner was transported to the central processing station at the Cumberland County Prison where he w s once again read the DL-26 form. 6. The petitioner was properly advised that his silence would be considered a refusal. 7. The statement by petitioner that he would "pref~r to be tested" was equivocal at best. Based on petitioner's conduct at the station and his failure to answer questions specifically asking for a yes or no, his alleged consent to testing was a qualified consent at best. 8. Officer Miller was eminently patient with the petitioner in reading the DL-26 form to him twice, allowing h'm an opportunity to review it, and giving him time to consider whether or not to both sign the form and whether or not to consent to the testing. 9. Petitioner was given a minimum of 30 minutes to consider whether he would consent to the testing; however, baked on petitioner's behavior at the station, it appeared to take eternity for him to respond. 10. After hearing the testimony of the officer a viewing the video of petitioner's behavior at the Booking Center, the Court finds the testimony of petitioner that he consented to the test and that he was confused not to be credible. 11. The petitioner was not confused about the information written in the DL-26 form as read to him by Officer Miller. 12. The petitioner refused to submit to chemical testing. Accordingly, it is hereby ordered and directed that the appeal is denied, and the supersedeas formerly granted this case is rescinded. By the Court, Albert H. Masl d, J. Douglas K. Marsico, Esquire ~~r'+ ~ For Petitioner .d-~~ Philip M. Bricknell, Esquire ~~. ~, ~ r.~ ~_ ~ ~.,-~'_ For the Department of Transportation ~ ~ ~ .~~.:_' ~. ~ P ~~ ~.~