The URL can be used to link to this page

Home My WebLink About11-6831NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT TNELFROTHONOTARY MI AUG 30 PM 2:21 CUMBERLAND 0 LINTY DC1L11L1... .... - ROBERT B. LENKER Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee IN THE COURT OF COMMON PLEAS,bF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-b X31 CIVIL TERM LICENSE SUSPENSION APPEAL APPEAL OF DRIVER'S LICENSE SUSPENSION AND NOW comes the petitioner, Robert B. Lenker, by and through his attorney, Nathan C. Wolf, Esquire, and appeals the suspension of his driving privilege and avers as follows: 1. Appellant is Robert B. Lenker, an adult individual who resides at 584 Peak View Road, York Springs, Adams County, PA, 17372. 2. On or about July 1, 2011, Appellant allegedly violated section 75 Pa. C.S.§1547(b)(1)(ii) after being arrested on the suspicion of driving under the influence. 3. On August 19, 2011, Appellant waived his preliminary hearing before District Judge Mark Martin. 4. Appellant was excused from appearing at his formal arraignment because he is being considered for admission into the Accelerated Rehabilitative Disposition (ARD) program. 5. On or about August 3, 2011, Appellant received a notice from the Appellee, the Pennsylvania Department of Transportation, Bureau of Driver Licensing, informing him of his suspension. A true and correct copy of the notice of license suspension is attached hereto as Exhibit "A". 6. Appellant objects to this license suspension on grounds that his failure to provide a blood sample at the processing center was the direct and proximate result of the misleading or erroneous manner in which the State Police Trooper orally provided the implied consent warnings to Appellant in the processing center at the Cumberland County Prison. C?C3?K3 7. Furthermore, Appellant did cooperate and provide an admission to the trooper of his prior activity, obviating the necessity of administering a blood test of the Appellant at the time of his processing. 8. Moreover, the Trooper from the State Police, made some form of modification to the form thus creating a variation from the prescribed forms authorized by the Department of Transportation and creating confusion in the mind of Appellant as to the propriety of the Trooper's instructions. 9. Appellant submits that his actions do not constitute a refusal to provide a sample as required under the Motor Vehicle Code. 10. Appellant likewise submits that the misstatement as to the implied consent warnings and the alteration of the prescribed form by the trooper lead to the "refusal" by the Appellant. 11. Appellant submits that but for the circumstances complained of herein, there would be no alleged refusal and that such a breakdown in the administrative process does not justify a "deemed refusal" and that the suspension is therefore inappropriate and should therefore be vacated. 12. Appellant requests that the Court grant to him a Supersedeas of the suspension pending this appeal pursuant to Section 1550(b)(1) of the Motor Vehicle Code. WHEREFORE, Appellant Robert B. Lenker, respectfully prays that this Honorable Court issue an order vacating the suspension imposed by the Department or, in the alternative, scheduling a hearing on the foregoing Appeal and granting Appellant a Supersedeas of the suspension pending the outcome of such Appeal along with any additional relief that the Court may deem appropriate and just. Respectfully submitted WOLF & WOLF, Aytbr?teys at Law Dated: August 30, 2011 By: Nathan C. Wo ",squire 10 West Hig eet Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant VERIFICATION I, the undersigned, verify that the statements made in the foregoing pleading are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. August yU , 2011 r Robert B. Lenker COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: AUGUST 03, 2011 ROBERT B LENKER WID # 112086117950379 001 584 PEAK VIEW RD PROCESSING DATE 07/27/2011 DRIVER LICENSE # 20414449 YORK SPRINGS PA 17372 DATE OF BIRTH 04/14/1964 Dear MR. LENKER: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547B1II of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 07/01/2011: ¦ Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 09/07/2011 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 09/07/2011. You may surrender these items before, 09/07/2011, 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 513.50. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, f,tc.) 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 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: t*(31-r 9 112086117950379 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 .-iven 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. 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". 112086117950379 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 03, 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 Third r-loor, River-front 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 09/07/2011. Sincerely, 9 ?t j ?-- - Z g 0) i:, e) Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 5:00 p.m. IN STATE 1-800-932-4600 TOD IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TOO OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT ROBERT B. LENKER Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011- CIVIL TERM LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that I have, this date, served a true and correct copy of the foregoing appeal upon the following person and in the matter indicated: SERVICE BY CERTIFIED MAIL: Pennsylvania. Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Date: ?IS, Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant -OFFIC O THELPROTHONOTARY 1011 NOY -7 Ph 12: 11 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PETITIONER CUMBERLAND COUNTY PENNSYLVANIA ROBERT B. LENKER Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-6831 CIVIL TERM LICENSE SUSPENSION APPEAL MOTION FOR CONTINUANCE NOW comes the petitioner, Robert B. Lenker, by his attorney, Nathan C. Wolf, Esquire, and presents this motion for a continuance of the November 9, 2011 hearing, representing as follows: 1. The Petitioner received notice from the Department of Transportation that his driving privilege was suspended for a period of 18 months for violation of Section 1547 of the Vehicle Code. 2. On or about August 30, 2011, Petitioner filed an Appeal of his Driver's License Suspension and a hearing was scheduled before the Honorable Judge Edward E. Guido. 3. Petitioner has, through counsel, reached a tentative resolution of this matter but said resolution requires a postponement of the hearing currently scheduled for November 9, 2011. 4. Petitioner seeks to postpone said hearing to the scheduled date in February 2012 as the Department's administrative records will be corrected by that time which may permit the withdrawal of this action. There has been one prior continuance in this case, which was sought by the Department. 6. The Commonwealth, Department of Transportation, in the person of Phillip M. Bricknell, Esquire, was contacted by Petitioner's counsel and concurs in Petitioner's motion to continue. The relief requested would advance the interests of justice and would permit the opportunity to have a negotiated resolution of this matter, thus preserving judicial resources. WHEREFORE, the Petitioner, Robert B. Lenker, respectfully requests this Honorable Court continue his hearing scheduled for November 9, 2011, at 11:00 a.m., to a date in February 2012, along with any additional relief the Court deems appropriate and just. Respectfully submitted, WOLF & WC" Dated: November, 2011 By: Nathan C. , Esquire 10 West High Street Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Petitioner VERIFICATION I, the undersigned counsel for Petitioner, verify that the statements in the above motion are true and correct to the best of my knowledge, information and belief. 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. November, 2011 NATHAN C. WOLF, ESQUIRE WOLF & WOLF 10 WEST HIGH STREET CARLISLE, PA 17013-2922 (717) 241-4436 SUPREME COURT I.D. No. 87380 ATTORNEY FOR. PETITIONER ROBERT B. LENKER Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-6831 CIVIL TERM LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, do hereby certify that I have this date served a copy of this motion upon the Commonwealth, Department of Transportation, by U.S. Mail to the following: Phillip M. Bricknell, Esquire PennDOT - Office of Chief Counsel Third Floor - Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 November 3 2011 Nathan'C. Wolf, qu' e 10 West High e Carlisle, PA 1 -2922 PA Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Petitioner 0 ROBERT B. LENKER Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2011-6831 CIVIL TERM LICENSE SUSPENSION APPEAL ORDER OF COURT NOW, this day of 011, on motion of Nathan C. Wolf, Esquire, attorney for Defendant, the hearing scheduled for November 9, 2011 at 11:00 a.m. in thhee above-captioned matter is hereby continued to February 9, 2012 at 9T.36, k.m. in Courtroom /in the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Cumberland County, Pennsylvania. B e Court, Edward E. Guido, J. 'Distribution: PA Department of Transportation, Office of the Chief Counsel Nathan C. Wolf, Esquire For the Petitioner C C= ~ Z? 'Z7 r.. z @ 67 --+o 5o -v =-n Zo = :Z C w m rrlq?oC? < o -< NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT ROBERT B. LENKER : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2011-6831 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, -- DEPARTMENT OF -e-s TRANSPORTATION BUREAU OF DRIVER LICENSE SUSPENSION APPEAL LICENSING r- r Appellee ., _ .. PRAECIPE TO WITHDRAW ° ` LICENSE SUSPENSION APPEAL TO THE PROTHONOTARY: Based upon the agreement to defer the effective date of the Appellant's license suspension to August 9, 2012, kindly mark the above-captioned license suspension appeal WITHDRAWN. Respectfully submitted, WOLF & W tF, Attorneys at Law Dated: February if, 2012 By: Nathan C. Wolf, Esquire 10 West High Street Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant - -• 1q NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR APPELLANT ROBERT B. LENKER : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee NO. 2011- CIVIL TERM : LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that I have, this date, served a true and correct copy of the foregoing document upon the following person and in the matter indicated: SERVICE BY CERTIFIED MAIL: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Date: f,. Nathan W , Esquire 10 West Ph'gh Street Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Appellant ROBERT B. LENKER, Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 2011-6831 CIVIL TERM ORDER AND NOW, this 9th day of February, 2012, the appeal filed in the above- captioned matter is WITHDRAWN and the suspension which is the basis of this appeal shall be REINSTATED, effective August 9, 2012. Attest: BY THE COURT: n.. y ' gy CD ? Nathan C. Wolf, Esq., Wolf & Wolf, 10 West High St., Carlisle, PA 17013 Philip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, Td Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 Copt,, roa,'Ifel 919/y;t, Az-(-