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Home My WebLink About12-0253IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA/ LEE A. KIMMEL No.: 2012- a - Appellant v COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee C:n Driver's License/Auto Registration ri -,a- rri r- - fir- N 4; TI 81` Appeal :P, r-, r n, ? J rr• s APPEAL OF DRIVER'S LICENSE / AUTO REGISTRATION SUSPENSION AND NOW, this 13'' day of January, 2012, comes Appellant, Lee Kimmel, and states as follows: 1. Appellant's Pennsylvania operator's number or automobile registration number is 22-628-237. 2. PennDOT proposes, by Notice dated January 4, 2012 to suspend Appellant's driving privileges for a period of 18 months pursuant to Section 1547 of the Vehicle Code, which suspension is to be effective February 8, 2012. A true and correct copy of the Notice sent by PennDOT is attached hereto as Exhibit "A". 3. The suspension of Appellant's operating privileges is contrary to law in that (1) The police lacked reasonable grounds to stop Appellant and/or request Appellant to submit to a chemical test; (2) Appellant did not knowingly or intentionally refuse a chemical test; and (3) on or about November 23, 2011, Defendant was stopped by Officer Jason Beltz, a Mount Holly Springs police officer. Officer Beltz was out of his jurisdiction when he stopped me without activating his emergency lights and siren. Officer Beltz had no probable cause for making the stop. 4. Additionally, this case has not be tried in front of a Judge in the Court of Common Pleas of Cumberland County. WHEREFORE, Appellant respectfully requests this Honorable Court to grant the appeal from the suspension of operating privileges or automobile registration. 4 /03 7SPOlPff C6b A )E7a 70 v /a Respe ully s bmitte Lee Kimmel VERIFICATION The undersigned hereby states that the statements made in the attached Appeal of Suspension or Registration are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements in the attached Appeal are made subject to the penalties of 18 Pa.C.S. Sec. 04 rela 'ng to unsworn falsificatio to authorities. Lee Kimmel 16 Cedar Street Mount Holly Springs, Pa, 17065 717-226-3693 EXHIBIT A 0. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: JANUARY 04, 2012 LEE ALLEN KIMMEL WID # 113626032833992 001 16 CEDAR ST PROCESSING DATE 1212812011 DRIVER LICENSE # 22628237 MT HOLLY SPGS PA 17065 DATE OF BIRTH 03/08/1972 Dear MR. KIMMEL: This is an official Notice of the Suspension of your Driving Privilege as authorized by Section 1547BIII of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 11/23/2011: ¦ Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 02/08/2012 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 02/08/2012. You may surrender these items before, 02/08/2012, 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, 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 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: 113626032833992 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 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". 113626032833992 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, JANUARY 04, 2012, 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 02/08/2012. Sincerely, 9?tju ?-- - Z W, &'if) Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 5:00 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 I ?-? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA fee A. K,A&LAe I (Print your name) No. 4 - 92 S S &1Z Vs. Commonwealth of Pennsylvania Department of Transportation Bureau of Driver Licensing Driver's License/Auto Registration Appeal ORDER SCHEDULING HEARING ON APPEAL AND NOW, this --A day of- 20-M, a hearing is scheduled on the appeal of Petitioner for the 16 *4 day of / jeMo,/. , 20 AA at 9 :3 A M in Courtroom #1 of the Cumberland County Courthouse, One Courthouse Square, 4`h Floor, Carlisle, PA 17013, at which time testimony will be taken and argument heard. A copy of this Order has been served on Appellant. It shall be Appellant's responsibility to serve a copy of this Appeal, all attachments, and this Order on the attorney for the Commonwealth, at the following address: Office of Chief Counsel Vehicle and Traffic Law Division Riverfront Office Center, 3`a Floor 1101 South Front Street Harrisburg, PA 17104-2516 It shall further be Appellant's responsibility to file a Certificate of Service with the Prothonotary stating that service was made on the Commonwealth of Pennsylvania. y the Court, Judge rn rn c--. r S cn r! -G> : ro ?- ' C"'a ?C C'? q Nrlat.Gl ,'s > CAP/ ? bc8 Itp- o f S ervi c-e ¦ Complete items 1, 2, and 3. Also complete A. Signature item 4 If Restricted Delivery is desired. ) ? Agent ¦ Print your name and address on the reverse X (?- ? Addressee so that we can return the card to you. B. Received by (Printed Name) C. Date of Del' ¦ Attach this card to the back of the maiipiece, 17 L or on the front If space permits. 1. Article Addressed to: D. Is delivery address different from Item 11 ? Yee If YES, enter delivery address below: ? N Pees L~ia Nt. 4 fl lC.t' Ch ?co?S P Mf63`1iwc,S;VA, 17011f -?61(o 3 Certtfled Mail 13 Express Mail ? egistered ? Return Receipt for Merchandise ? Insured Mall ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. 'article Number 7 010 1670 0001 5399 7970 ()rensfer f from rom service label) PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 ::--.D --oa w -? - - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Zee No. /O ?53 z1,11 al ?___ 71°/0,1" (Print your name) Vs. Driver's License/Auto Registration Appla) c? • a `t C Commonwealth of Pennsylvania ?3 --? Department of Transportation 2 rn rry Bureau of Driver Licensing ; ?lo?>'aN ?Q C0?,1 t u u? z yiC q G? Ja?ruary au, 2012 w h i t I? 5 S cF Ju I e d ?o r Apr it ! (P) zo / Z s ?e5 of P_Vw t Al ?ebvo,,,y :1:1r&_ "duec? Ajoji c e c _ as v? gc- ?y `iha?- will -take p lace- ov die dArcrf /pf'i I x-,y t' h -eA(i+x 1"s r #16h `,vy 4 T / v-4 V 1 Ke +0 b? ?' 4?? r? ?'a g i uee M y 4 (1 es -r S 100or t d vi? +0 bi re ad &,A1 i Aky s Y OJ? ?'ki; Cput-ts -h please +aKe_ 4 k 'LS ` ,ufio 0 0-kk C'at `a'u Flew `e-schedule my heat it j . ,+-havk -you A f-./79d/z IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ee. No. (Print your name) Vs. Driver's License/Auto Registration Appeal Commonwealth of Pennsylvania Department of Transportation Bureau of Driver Licensing oraes- k ORDER OF COURT AND NOW, this 1ST day of MARCH, 2012, the hearing scheduled for Monday, April 16, 2012, at 9:30 a.m. is continued and rescheduled for FRIDAY, JUNE 22, 2012, at 9:00 a.m. in Courtroom # 2. By the Court, Edward E. Guido, J. Pennsylvania Dept. of Transportation ` Riverfront Office Center, 3 Floor 1101 South Front Street - ,:, --s Harrisburg, Pa. 17104-2516 z? ; -q cnr- ?e Lee Kimmel r- ? 16 Cedar Street > ° -n ? ' Mount Holly Springs, Pa. 17065 zc _ -- ; mac co p ca : sld ? --a r_v P i ??L Lee A. Kimmel, v Commonwealth of Pennsylvania Department of Transportation Bureau of Driver Licensing No: 12-253 Civil Term Driver's License/Auto Registration Appeal ORDER AND NOW, this day of 2012, upon consideration of the Motion to Continue, it is hereby ordered that the hearing scheduled for June Y 22, 2012 shall be continued to the day of 203,. ' '11-1 64 "x- *I. BY THE COURT: /Lee Kimmel cc : Court Administration ? Commonwealth of Pennsylvania Department of Transportation r Bureau of Driver Licensing i LEE A. KIMMEL, Petitioner V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS ~JF CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-0253 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of August, 2012, upon consideration of the appeal from suspension of operating privileges, and after hearing argument from the parties, the Court makes the following findings: 1. On November 23, 2011, at approximately 11:00 p the defendant was operating a motor vehicle in the borough of Mt. Holly Springs at or about the Sheetz convenience store. 2. At that time Officer Jason Beltz of the Mt. Hol~.y Springs Police Department was notified by county dispatch tha the petitioner was in an inebriated state and posed a potenti~l danger to the public. 3. Upon arrival at the Sheetz station and determi that the petitioner and his vehicle were no longer present, Officer Beltz pursued in hot pursuit with reasonable suspicio that the defendant was operating a motor vehicle under the influence and came upon the vehicle approximately one half mi e outside of Mt. Holly Springs borough. 4. Upon observing the petitioner at the point of t stop, the officer determined that he was visibly intoxicated, and he was also decidedly uncooperative with the officer duri the initial stop and the ensuing investigation. 5. The petitioner was placed under arrest and take to the Cumberland County Prison for processing. 6. Officer Beltz read the chemical test warning to { ~ the petitioner from the DL-26 form. 7. After hearing the testimony of the officer and viewing the video of the petitioner's behavior at the Booking Center, which is Commonwealth's Exhibit No. 2, we find that t e officer's testimony is credible with respect to the pctitione 's behavior, and notwithstanding the petitioner's arguments to t e contrary, he clearly refused to sign the form. 8. The petitioner was not confused about the information written on the DL-26 as read to him by Officer Beltz. 9. The petitioner refused to submit to chemical testing. Accordingly, it is hereby ordered and directed that the petitioner's appeal of his license suspension is dismissed, and the suspension which is the basis of this appeal shall be reinstated. By the Court, Albert Masla J. ~ Lee A. Kimmel, pro se 16 Cedar Street Mt. Holly Springs, PA 17065 t~ Phi lip M. Bricknell , Esquire ~ --, For the De artment P of Trans ortation p ~~ `~'~ ~- :~--' "` - ~ ~- P` es /~+~ ..~~d ~~/~/~a ~~ ~ ~~r. `_ . f--...~ ~ .u ..-~ ~3 «~,~ F ~ ~~ .I i ~. ~ . .~ COMMONWEALTH IN THE COURT OF COMMONP:LE.AS~OF . CUMBERLAND COt1NTY, PET~NSYE;VANIA `, _... LEE ALLEN KIMMEL NO. 12-0253 CIVIL TERM ~ _ y CONCISP: STATEMENT OF MATTERS Counsel raises the following issues for Appeal, and requests additional time as follows; 1. The police officer did not have a reasonable basis to ask defendant to submit to chemical testing. ?. The defendant's refusal to the extent there was one under the circumstances was not knowing intelligent, nor voluntary, and there was in tact no refusal, therefore license suspension does not lie. 3. The requesting officer was not in his jurisdiction. Respectfully submitted, Rominger & Associates Date: October 17, 2012 Karl E. Rominger, Esquire Supreme Court ID # 81924 155 South Hanover Street Carlisle, Pennsylvania 17013 (717)241-6070 Attorney for Appellant __ _ _ _ __ COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ~. LEE ALLEN KIMMEL NO. I2-0253 CIVIL TERM CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Appellant, do hereby certify that a true and correct copy of the within Concise Statement of Matters was served upon the following individuals on the below date, by HAND DELIVERY and U.S. MA[L. addressed as follows: The Honorable Judge Albert H. Masland One Courthouse Square Carlisle, Pennsylvania 17013 Official Court Reporter Court Administrator's Office One Courthouse Square One Courthouse Square Carlisle, PA 17013 Carlisle, PA 17013 Philip M. Bracknell, Equire For the Department of Transportation Riverfron.t Office Center (Driver and Vehicle Services) 1 101 South Front Street Harrisburg, PA 17104-2516 Respectfully submitted, Rominger & Associates Date: October 17, 2012 Karl E. Rominger, Esquire Supreme Court ID # 81924 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Attorney for Defendant ~u~erior court of ~eun~plbani~~ Karen Keul Bramblc~tt, Esc. Prothnnotarv. i'~]C1C~~C ~l$tl"1Ct .Marv :A. C;ravhill, I~sy. Def~utt Prothonotarti October 17, 2012 RE: Com. v. Kimmel, L. No. 1633 MDA 2012 Trial Court Docket No: 12-0253 Yennsvlvania Judicial Center P.U. Box 62435 601 CommonweaL:h Avenue, Suite 1600 Han-i>~~laurg, PA 17106-2435 (~ i ;> ~w i z94 ~cww.sup~rrior court.state.pa.us Dear Attorney Rominger Enclosed please find a copy of an order dated October '17, 2012 entered in the above-captioned matter. Pursuant to the foregoing Order, a certified copy is being sent to the trial court judge, the trial court and Commonwealth Court, along with all related material. Respectfully, ~ ~,. ~ , ... `~ Mary A. Graybill, Esq. Deputy Prothonotary /ks Enclosure cc: Kristen W. Brown, Prothonotary Buell, David D., Prothonotary David James Freed, Esq. The Honorable Albert H. Masland, Judge Commonwealth o~f Pennsylvania v. Lee Allen Kimmel IN THE SUPERIOR COURT OF PENNSYLVANIA (C. P. Cumberland Co. No. 12-0253) No. ]'.633 MDA 2012 Filed: October 17, 2012 ORDER Appellant filed this notice of appeal with thE~ Superior Court on September 14, 2012, appealing the Common Pleas Court's order dismissing his appeal from the suspension of his clriver's lia°nse and reinstating suspension. Appellee, the Commonwealth Department of Transportation, filed an application for relief to transfer this appeal to the Commonwealth Court on September 24, 2012. Driver's license suspensions are within the appellate jurisdiction of the Commonwealth Court. See Pa.R.A,P. 7SI; 42 Pa.C.S. § 762(a)(3); Commonwealth v, Duffey, 639 A.2d 1174 (Pa. 1994), cert. denied, 513 U.S. 884 (1994). Appellee's application for relief is hereby GRANTED. Per Curiam mRU~ C~~ >~O1Vx RBCOR~ ~ttest~ ~- Y 7 1~It~ ~~j~r ~' ~ ~PutY P~-~onotaiy ~ J Superior Court of IPA. - 1~ic~dle DlstrIct INDEX TO WITNESSES FOR THE COMMONWEALTH DIRECT CROSS 1. Officer Jason Beltz 14 29 2 INDEX TO EXHIBITS FOR THE COMMONWEALTH IDENTIFIED ADMITTED 1. Driving Record 11 14 2. DVD 26 34 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 August 15, 2012 Carlisle, Pennsylvania MR. BRICKNELL: Your Honor, may it please the Court, my name is Philip Bricknell, and I represent the Department of Transportation. We have a number of cases to deal with. Primarily, Your Honor, we have a number of continuances, a number of changes. The first case I would like to call is one of the chemical test refusals. This is an appeal by Lee Kimmel. Mr. Kimmel, come forward. THE COURT: I have two files for Mr. Kimmel, Mr. Bricknell. I have one at 12-253 and one at 12-649. Are we going to address both of them? MR. BRICKNELL: Yes, we can, Your Honor. The first one at 253 is the chemical test refusal. Your Honor, this case has been continued several times, and I believe Mr. Kimmel -- I haven't had a chance to look at it, but he says he has an order continuing this case a second time. MR. KIMMEL: The second case is under a suppression hearing, and it has been rescheduled for trial hearing and whatnot. Pretrial is October 3rd this year, and trial would be the 11th, I believe. MR. BRICKNELL: But I believe that's for the actual DUI. MR. KIMMEL: Yes, it's for the chemical 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 refusal . MR. BRICKNELL: I didn't realize that that was just in relation to the DUI trial on the criminal side. But as the Court knows, the chemical test refusal is a separate proceeding on the civil side, and the two are quite separate as far as the standards of proof, and also the fact that the chemical test refusal is not conviction based. So really the outcome of the criminal trial for the DUI charge is irrelevant to our proceedings here. THE COURT: Do you understand that, Mr. Kimmel? MR. KIMMEL: I believe so, Your Honor. Your Honor, there's a suppression hearing the Judge has not made a decision yet. This is based on a bad stop. It was 2.1 miles out of jurisdiction with no pursuit involved when this incident supposedly took place. I'm asking the Court -- my father's in bad health, and I would have brought him along today, but he's not up to health. I would be asking that this suspension please be stayed until after the trial in October. THE COURT: I'm sorry to hear about your father, but I'm not sure I understand what the connection is on that. MR. KIMMEL: With my father? THE COURT: Yes. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMMEL: I'm driving him to his doctors' appointments, et cetera, a lot and running errands for him and my mother, a lot of confusion. He was in an acute care facility. Since April 18th, he was in an intensive care unit, and he's slowly progressing but he's not up to speed yet. THE COURT: It appears that this has been continued a number of times. Is that correct, Mr. Bricknell? MR. BRICKNELL: Yes, it has, Your Honor. I'n looking back. I think the initial -- the initial hearing was set for April, April this month. I think I sent a notice out in January about that to our officer witness. But it's been continued then at least two other times. THE COURT: And you're ready to proceed? MR. BRICKNELL: We are, Your Honor. THE COURT: Now, what about the other case? Before we jump into this one, what is the other matter? MR. BRICKNELL: The other matter, I believe, is the criminal trial of the DUI charges against Mr. Kimmel. THE COURT: The other appeal. MR. BRICKNELL: Sorry. The other appeal for this morning? THE COURT: Yes. MR. BRICKNELL: 6 That's a separate matter. 1 That relates to a driving while suspended. 2 THE COURT: And one of the reasons I asked 3 about that is that in that case I have an appeal filed by 4 Mr. Monfredo on behalf of Mr. Kimmel. So he's represented 5 by counsel, it would appear, on that file or at least was 6 represented. However, he's clearly seated by himself today. 7 Do you have counsel on any of these? 8 MR. KIMMEL: I have a Public Defender, 9 Michael Halkias, and he has filed the suppressions and 10 everything, sir. 11 THE COURT: And that's on the criminal 12 matter. You don't have -- you don't have an attorney hired 13 to handle this separate license appeal? 14 MR. KIMMEL: I wasn't sure -- I was unaware 15 of that, that I should have an attorney with me, sir. 16 THE COURT: Well, there are two different 17 matters, as Mr. Bricknell has pointed out, and you should be 18 aware that. there is the criminal issue and then there is the 19 license suspension issue. 20 MR. KIMMEL: Your Honor, I thought this was 21 all together, the license suspension was all one case. 22 THE COURT: Well, it is and it isn't. They 23 relate back to some of the same facts, but the issues and 24 burden of proof are different in the cases. One is an 25 administrative matter dealing with the suspension of your j 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • license far a refusal to take a chemical test of your blood. The other is a criminal case which is a prosecution of the offense of actually driving under the influence. In the one case, they have to prove that you were driving under the influence. In this matter, they need to prove that you basically refused the test. Do you understand that? MR. KIMMEL: I'm aware of it now that you brought it to my attention, Your Honor. My Public Defender -~- as the way that I interpreted the matter is that the suppression hearing that we're waiting on the results from the judge was, like, uphold this based on a bad stop and I'm -- that was what I was under -- assuming that we were waiting the outcomes of that. Everything keeps getting --- everything has been rescheduled by the Commonwealth. THE COURT: Do you know why it's been continued in the past, Mr. Bricknell? Was it continued with respect to this suppression issue? MR. BRICKNELL: No. My impression, Your Honor, was that it was continued because of illness, family illness. The motion to continue that was filed on June 11th refers to Mr. Kimmel's father being under medical treatment and that he was just discharged from the care center and that Mr. Kimmel needed the time so that he could continue to 8 1 drive his father. The Court granted his motion and 2 rescheduled the hearing for today. 3 But I believe the suppression issue is -- I 4 don't practice criminal law, so I'm not sure exactly how 5 that affects the DUI conviction or how any ruling on the DUI 6 side would really affect our proceeding here on the civil 7 side. I do know that the issue of jurisdictional arrest has 8 come up in chemical test refusals, and I've researched that 9 for this morning's hearing to discuss what the standards are 10 in the recent case law and to argue why the Department 11 believes Officer Beltz did have jurisdiction and authority 12 to ask Mr. Kimmel to submit to testing on that date. 13 Actually, the two events we're talking about 14 here, the two different appeals, are related to traffic 15 events that are almost three years apart, a few days of 16 being three years apart, so they really are quite separate, 17 separate matters. 18 THE COURT: Mr. Kimmel, I'm going to allow 19 the Commonwealth to proceed, and they have the burden of 20 proof. Mr. Bricknell will give you copies of exhibits and 21 explain things to the Court and to you as he proceeds. He 22 will call his witness, I assume there's just one witness, 23 the officer, and you will be able to ask that officer 24 questions as we proceed. 25 You have a pen. It looks like you have a 9 i f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stack of papers in front of you. If you need a pad to take notes, we'll give you a notepad. If you have any questions, you may ask them of the Court, and you certainly may cross-examine the witness as he testifies. We are going to proceed. MR. KIMMEL: Your Honor. THE COURT: Yes, Mr. Kimmel, anything else? MR. KIMMEL: Your Honor, I wasn't aware this was going to be an actual kind of a trial. I thought -- THE COURT: Well, Mr. Kimmel, you're representing yourself, and courts traditionally makes some allowances, but in this case it's clear that this was scheduled for a hearing. It's clear that -- let me look at the last order. The original order was scheduling it for a hearing on April 16th. The continuance dated June 18th scheduled this for a hearing on August 15th, that the hearing scheduled for June 22, 2012, shall be continued to the 15th day of August 2012 at 9:30 a.m., and you were on notice then that this was scheduled for a hearing. You did not file a motion to continue before today. You've made an oral motion today, but clearly you should have known. I say that because you filed the last notice to continue, what you needed to do, and you should have known that we were ready to proceed for a hearing. I find that it is inappropriate for us and prejudices the 10 r ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Commonwealth and inconveniences their witness for us to continue it again at this time. So the Commonwealth is going to proceed, and you can take notes and ask questions of the witness. Mr. Bricknell. MR. BRICKNELL: Thank you, Your Honor. What I would like to do is have the Department's exhibits marked as Commonwealth's Exhibit 1. (Whereupon, Commonwealth's Exhibit No. 1 was marked for identification.) MR. BRICKNELL: I'm also handing the Court a prepared order for this hearing. Your Honor, as we've established, this is an appeal by Mr. Kimmel of a suspension imposed under Section 1547(b)(1)(ii) Just to talk through the documents that I've had marked as Commonwealth's Exhibit 1. The front page, as noted at the top, is a certification and attestation page. This simply establishes that the enclosed documents in this package are true and correct copies of Department's records. The first item, the first document, is a three page notice of suspension dated January 4th, 2012, addressed to Lee Kimmel and informing him that his license will be suspended for a period of 18 months under Section 1547(b)(1)(ii) This notice of suspension was triggered by the DL-26 form that's document number 2 that the Department received indicating that Mr. Kimmel refused to submit to 11 • ! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 chemical testing on November 23rd, 2011, and Section 1547(b)(1)(ii) requires imposition of an 18 month suspensi where somebody is reported for refusing chemical testing a that person has prior DUI convictions or prior refusals. So the remainder of the documents in this set basically relate to Mr. Kimmel's previous DUI arrests and suspensions. So document number 3 is a restoration letter establishing that he was restored on October 12th, 2011. Document number 4 is a notice of suspension dated September 17, 2003, informing Mr. Kimmel that he was being suspended ~' as a result of his violation of the old DUI law, Section 3731 of the Vehicle Code, and that happened on November 23rd, 2002. That four page notice of suspension was triggered by document number 5 which is the report of conviction for that DUI violation on November 23rd, 2002. Document number 6 is the September 4th, 2003, notice of suspension for a DUI violation on 11/24 -- November 24th of 2002. That notice of suspension was triggered by document number 7 which is a notice of conviction. for that November 24, 2002, DUI violation. Document number 8 is another restoration letter. Document number 9 is a letter from the Department to Mr. Kimmel acknowledging that he was accepted into the ARD program for a DUI on January 23rd, 2000. Document number 10 -- actually, the violation was January 12 1 23rd, 2000. That is the conviction report that led to that 2 DUI acceptance. 3 Document number 11 lays out in table form 4 that process and shows that prior to the refusal on November 5 23rd, 2011, Mr. Kimmel had three previous -- well, two 6 previous convictions for DUI and one acceptance into ARD. 7 Therefore, under Section 1547 when he was reported for a 8 refusal, the Department had to impose an 18 month 9 suspension.. And then finally at the end we have a certified 10 copy of Mr. Kimmel's driving record. 11 The Department would move that this be 12 admitted into evidence. 13 THE COURT: Mr. Kimmel, do you have any 14 objection to admitting Commonwealth's 1 into evidence? 15 MR. KIMMEL: Your Honor, I realize that 16 there's a driving record there, but how is that related to 17 any of my violation now conviction of my suspension? 18 THE COURT: Well, I think your driving record 19 is relevant in this case, as Mr. Bricknell said, because of 20 the 18 month suspension that the Commonwealth is imposing 21 related to your prior offenses. That's why it's 18 months 22 as opposed to, what, 12 months, Mr. Bricknell? 23 MR. BRICKNELL: That's correct, Your Honor, 24 12 months for a first. 25 THE COURT: So that is the relevance of your 13 1 driving record. Anything else, Mr. Kimmel? 2 MR. KIMMEL: Your Honor, I had filed 3 harassment charges through the courts here, and I've got no 4 reply. They were incidents that happened with Mr. Beltz in 5 the area of this time this went down, and I have got no 6 reply over. it yet. And this is one of the incidents that 7 where he has actually been out of his jurisdiction again as 8 well as come to my house and threaten to arrest me and 9 everything else, and this is boiling back down to that. 10 THE COURT: Well, Mr. Kimmel, you can 11 cross-examine him when he's on the stand, and if it is 12 relevant, I will permit you to question him. But with 13 respect to Commonwealth's Exhibit 1, that is not relevant, 14 and Commonwealth's Exhibit 1 is admitted. 15 MR. BRICKNELL: Thank you, Your Honor. 16 THE COURT: Mr. Bricknell, you may proceed. 17 MR. BRICKNELL: Thank you, Your Honor. The 18 Department would call Officer Jason Beltz to the stand. 19 Whereupon, 20 OFFICER JASON BELTZ, 21 having been duly sworn, testified as follows: 22 DIRECT EXAMINATION 23 BY MR. BRICKNELL: 24 Q Good morning, Officer Beltz. 25 A Good morning. 14 ~ ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Could you please state your full name and spell your last name for the record. A It's Jason Beltz, B-e-1-t-z. Q And who is your employer? A I'm employed with Mount Holly Springs Police Department. Q And how long have you worked for them? A I have worked with them since August 2007. Q What's the nature of your work there? A Basic patrol functions, investigating DUI's, ~I vandalism, you know, like I said, various patrol work. Q How many -- if you can estimate, how many DUI's have you dealt with since you started working? A Between me and other officers I assisted, I would estimate 50 or so. Q Did you work at another police force before this one? A No, sir. Q Were you working for that police force on November 23rd, 2011? A Yes, sir. Q What were you doing that day? A That night I was running a routine patrol of the area. Q And on that date, did you come in contact 15 U 1 with Mr. Kimmel? 2 A Yes, sir. 3 Q And do you see him here today? 4 A Yes, sir. He's seated at the table to your 5 left . 6 Q Thank you. How did you come in contact with 7 him? 8 A We received a phone call from County Control. 9 A private citizen had called and made a complaint that there 10 was a possible alleged DUI at the Sheetz parking lot. 11 Q What time of day was this? 12 A It was 2258 when I received my call. 13 Q And do you remember what day of the week that 14 was? 15 A Not right offhand, no. 16 Q So you have this call. Was anything 17 described to you in the call? 18 A Yes. The caller described a white male and 19 the clothing that he was wearing. She also gave a 20 description of the vehicle he was driving, and she stated 21 that it appeared that he was intoxicated, and she was 22 concerned that he was going to drive from the scene. 23 Q Did she give you any details why he appeared 24 intoxicated? 25 A She stated that it appeared that he urinated 16 1 himself. It appeared that he was stumbling around the 2 parking lot, that he had trouble getting the gas nozzle in 3 the gas port of the vehicle. 4 Q So you received that call. What did you do? 5 A After I received the call, I was on the far 6 end of my town, and I responded to the location. During th 7 time I was responding, Mr. Kimmel had left the scene. I wa 8 given a direction of travel and a description of the 9 vehicle. 10 Q Now, was the Sheetz within your jurisdiction 11 A Yes, sir. 12 Q And so where was -- what was the direction o 13 travel you were told? 14 A He turned east and left the Sheetz parking 15 lot east on Mill Street. 16 Q And where was he headed then? 17 A I believe he was heading back to his house 18 which is on Cedar Street. 19 Q And was there a town he was headed towards? 20 A Well, the general direction the next town 21 would be Boiling Springs. 22 Q So you were given a direction and you 23 traveled. What did you do? 24 A I activated my emergency lights and proceede~ 25 to try to catch up to him and investigate the incident. 17 1 Q And did you catch up to Mr. Kimmel? 2 A I did. 3 Q And how far away from the Sheetz was that? 4 A It's roughly a mile and a half to two miles. 5 I don't have the exact. 6 MR. KIMMEL: Two point one miles. 7 THE COURT: Sir, you can ask questions. 8 BY MR. BRICKNELL: 9 Q So about two miles from the Sheetz? 10 A Yes, sir. 11 Q At that point you saw Mr. Kimmel or you saw 12 the car that had been described to you? 13 A Yes, sir. 14 Q Were you still within your jurisdiction at 15 that point? 16 A At that point I was not in my jurisdiction, 17 but I was in hot pursuit. 18 Q What did you do when you identified the 19 vehicle? 20 A I pulled in behind it. Mr. Kimmel pulled 21 into a rail yard owned by Norfolk Southern which was posted 22 no trespassing. I conducted a traffic stop at a location 23 along the railroad tracks off of -- it's Zion Road just 24 outside the borough of Mount Holly. 25 Q And how far out of your jurisdiction were yo 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at that point? A At that point, from the closest line, I woul say it's about half a mile. I don't have the exact measurements, but he was actually headed back in towards the borough, the borough line. Q Now, you mentioned earlier you said you were in hot pursuit. Why did you consider this a matter of hot pursuit? A Well, I have a report of a drunk individual, you know, public drunkenness at the beginning, and then when he left then, you know, I started to investigate the DUI. Q Was there a concern, a safety concern? A Absolutely. Q And what was that? A Well, just driving under the influence is very dangerous to the general public. In fact, the original caller started to follow him, and she decided not to because she didn't want to witness the accident. Q Now, when you caught up to the vehicle, did you observe the driving? A Yes, sir. When I approached the vehicle, I observed that he was driving down the center of the roadway, and his driver's side wheel was over the double yellow line. Q And for about how far did that happen? A When I made contact, it was a short distance 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • until he pulled into the train yard. So I don't know, a couple hundred feet maybe from when I could actually, you know, positively identify him. Q So I think we left you followed the car into the train yard. A Yes, sir. Q Both vehicles stopped. A Yes, sir. Q What happened then? A I asked Mr. Kimmel to exit the vehicle. At first he refused to. After a little prompting, he steps out of the vehicle. At that point I observed that he was swaying, steadying himself against the vehicle with his hand. Mr. Kimmel made a comment that he had taken a Percocet. There was also an odor of alcohol. After he got out of the vehicle, Mr. Kimmel decided that he was going to get back in the vehicle. Q Was there anybody else in the vehicle? A No, sir. Q And so you said he decided to get back into the vehicle? A Yes, sir. He sat back in the vehicle and attempted to start it, at which point I reached in and removed the keys from the ignition. Mr. Kimmel then exited the vehicle a second time, at which point he placed his hand 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in his pocket. I had no idea what he was getting, so I backed up. I observed that Mr. Kimmel had a large silver pocketknife in his pocket, so I gave myself a little more distance. Mr. Kimmel jumps back in the vehicle, produces a second set of keys, and locks the door and drives away. Mr. Kimmel -- when I attempted to keep -- you know, to keep Mr. Kimmel from getting into the vehicle, he pushed me back with his hands before getting back in. Q Were you able to pursue Mr. Kimmel when he drove off? A We left the scene. We did have a short pursuit until Mr. Kimmel took his truck into a farmer's field. There was no way I was going to follow him up across a farmer's field with his vehicle being four-wheel drive and mine being a two-wheel drive vehicle. I had a good idea where he was going, back to his parents' house, which the field cuts across to a road, a mountain road, that leads back to his residence. So I ended -- turned around and then went to his house to see if I could find him there. Q Now, is his house in your jurisdiction? A His house is actually just outside my jurisdiction. Q So when you arrived at the house, what 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 happened? A I talked to his parents to see if he was there. They stated that he wasn't. I checked up the road a little ways, and I saw headlights coming down the road. When I come around the turn, Mr. Kimmel's vehicle was parked -- pulled off to the side of the mountain road. It was stuck on a tree stump, and he was attempting to back out. He was spinning the wheels, throwing up dirt and mud. At. that point I ordered him out of the vehicle, which he did comply. Q What happened when he got out of the vehicle? A I took him into custody, did a quick Terry search, placed him in the back of the vehicle of my patrol car, and transported him to Cumberland County Prison. Q So at that point you arrested him -- A Yes, sir. Q -- for DUI? And that was just outside of your jurisdiction? A Yes, sir. Q You said you transferred -- or transported him in for processing? A Yes, sir. Q Did you talk at all with Mr. Kimmel during that trip? A I don't recall. I think we just had general ~ 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conversations. I don't believe I talked to him about, you know, what was transpiring. I know his father was sick, and he had to go down and get his truck from the scene instead of me towing it. I did allow him to do that. But I don't recall, you know, specific conversations at that time. Q Okay. And so when you got into the processing center, is that the first time the issue of chemical testing came up? A Yes, sir. When we get to the prison, I read him the DL-26 form verbatim and gave him an opportunity to submit to testing. Q Do you have the DL-26 in front of you? A I believe it's there beside me. MR. BRICKNELL: If I can approach, Your Honor? THE COURT: You may. THE WITNESS: I wanted to grab that. BY MR. BRICKNELL: Q I'm handing Officer Beltz a copy of what has been marked as document number 2 in Commonwealth's Exhibit 1. Is this the DL-26 that you completed? A Yes, sir. Q And at the top that's your handwriting? A Yes, sir. Q And it indicates here -- you said you read 23 • ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the warnings to Mr. Kimmel. Are the warnings you're referring to in the middle of the page, the four numbered paragraphs? A Yes, sir. Q And did you read those word for word? A Yes, sir. Q And at the bottom there, is that your signature certifying that you read those? A Yes, sir. Q And did you ask Mr. Kimmel to sign this form? A Yes, sir. Q What did he say? A He lunged out of his chair towards me making a reference that I was saying to bury him under the jail, and he had to be physically restrained by the prison CO's. Q Then at the bottom there's an affidavit portion of this form. A Yes, sir. Q And that indicates -- is that your signature underneath that affidavit? A Yes, sir. Q And then you filled in the rest of your information at the bottom? A Yes. Q So you read the full warnings to Mr. Kimmel. 24 ~ i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Did he have any questions about the warnings? A No, sir. Q Did Mr. Kimmel suffer any injuries in the process of your interactions with him? A No, sir. Q Did he indicate to you that he was suffering from any illnesses? A No, sir. Q Did he flat out -- how exactly did he indicate to you that he wasn't going to submit to the test? A Well, when he lunged out of the chair at me, I think that was pretty clear that he was refusing the test. Q Did he have any -- I think I already asked. Did he have any questions about the warnings? A No, sir. Q About how much time elapsed from when you read the warnings to Mr. Kimmel until he actually -- until you determined that he had refused to submit? A Let me refer to my notes here. This is our Cumberland County sheet. The stop took place at 2258 -- or the call come in at 2258. THE COURT: I think the question was how muc time after you read the rights or read the DL-26. THE WITNESS: From the time I read the DL-26 to the time he lunged out of the chair? 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BRICKNELL: Well, until. you determined that he had decided to refuse. THE WITNESS: Less than a minute. BY MR. BRICKNELL: Q And what was the nature -- you already described your first interaction with Mr. Kimmel when you stopped him in the rail yard. A Yes, sir. Q What was his attitude towards you and toward this whole process after you had placed him under arrest? A Very hostile. Q Could you give us an example? You already explained how he lunged at you. Was there anything else? A Well, when we were at the prison, there was three separate occasions that he had attempted to either charge towards me or make verbal assaults towards me. Q And was a video recording made of that processing in the prison? A Yes, sir. MR. BRICKNELL: At this time, Your Honor, I would like to show that to the Court. THE COURT: You may. Has this been marked a; an exhibit? MR. BRICKNELL: No, it hasn't. This will be Commonwealth's Exhibit 2. 26 ~/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMMEL: Your Honor. THE COURT: Mr. Kimmel. MR. KIMMEL: I'm here for the suspension hearing of license, not the rest of the issues of the DUI and other charges. THE COURT: That's correct. This is on a license suspension. MR. KIMMEL: This is for license suspension? THE COURT: This is for a license suspension related to your refusal following the arrest by Officer Beltz. They are now going to show -- Mr. Bricknell, is this the DVD of the proceedings at Cumberland County Prison? (DVD played briefly) MR. BRICKNELL: Yes, Your Honor. This is actually a. videotape, as Officer Beltz testified, that was created at the processing center. BY MR. BRICKNELL: Q Officer Beltz, is it normal procedure to videotape processing people when you read them the warnings -- A Yes, it is. Q -- at the processing center? A Yes, sir, it is. They advise them before that they are being videotaped and audio recorded. Q So this video will show you reading those 27 1 warnings to -- 2 A Yes. 3 Q -- Mr. Kimmel and his response? 4 A Yes, sir. 5 Q Now, just the short clip that was played, 6 there was a woman's voice speaking to Mr. Kimmel. Who was 7 that? 8 A That's one of the correctional officers. I 9 don't recall which by name, but she's one of the 10 correctional officers at the Cumberland County Prison. As I 11 said, they advise them that they are being audio and 12 visually recorded. 13 (DVD was played) 14 BY MR. BRICKNELL: 15 Q Officer Beltz, does that videotape 16 accurately -- DVD accurately reflect what happened -- 17 A Yes, sir. 18 Q -- on the evening of 11/23? And it was at 19 that point when Mr. Kimmel stood up that you determined that, 20 he was refusing? 21 A Yes, sir. 22 MR. BRICKNELL: I have no further questions, 23 Your Honor. 24 THE COURT: Mr. Kimmel, you may now question 25 Officer Beltz. 28 1 CROSS EXAMINATION 2 BY MR. KIMMEL: 3 Q Officer Beltz, one of your last statements 4 said something to the effect of bury you under the jail. 5 That was not present in that video. 6 A Yes, sir. ~ Q And also an attorney was asked to be present, 8 was there not? It's on the recording. I did ask for an 9 attorney and we just -- 10 A You did not ask for an attorney and -- 11 Q It's on the recording. 12 THE COURT: Sir, wait until he answers the 13 question. 14 MR. KIMMEL: Also -- 15 THE COURT: Sir, when I put my hand up like 16 this, you stop. If you're going to ask a question, you have 17 to wait until he answers the question. You were asked about 18 his request for an attorney. You may answer that. 19 THE WITNESS: The request for an attorney was 20 not requested, and even so, if you would have asked for it, 21 it would have been a refusal of the DL-26 form. 22 THE COURT: Next question. 23 BY MR. KIMMEL: 24 Q Officer Beltz, you were hired for the Mount 25 Holly Springs Borough Police? 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, sir. Q Not South Middleton Township? A Yes, sir. Q Did you after receiving your call, knowingly that I which you did not physically see in control of that said truck at Sheetz, did you contact the State Police to come into their jurisdiction or ask them to take on the call of this incident? A I don't understand the relevance of this question. THE COURT: Did you contact the State Police? THE WITNESS: The State Police was not contacted. BY MR. KIMMEL: Q They were not contacted? A No, sir. Q And -- A I believe this has been addressed in the criminal proceedings. THE COURT: Just answer the questions, Officer. THE WITNESS: Yes, sir. THE COURT: It makes it a whole lot easier i you just answer the questions. THE WITNESS: Yes, sir. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • BY MR. KIMMEL: Q Was it raining the night of the incident? A Yes, sir. Q There was no possibility that you leaning me on the vehicle as you handcuffed me would make me wet or the fact that -- you said you smelled alcohol. Was it maybe lacquer thinner you smelled, because you were told that I just got done cleaning a car and I was very tired? A Sir, I -- THE COURT: Wait. What did you smell? THE WITNESS: I smelled an odor of an alcoholic beverage. BY MR. KIMMEL: Q Nothing else? A I smelled an odor of an alcoholic beverage, and if I recall, there was an open container in the vehicle when I stopped you. Q Open container of what? A Beer. Q Okay. Also, I just got done pumping gas, an I had a lot of trouble pumping my gas. Did I have an emittance of gas coming off myself? A No, sir. Q Okay. That's what your witness says who is not here today. And you say did you run a file too? 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, sir. Q And it came back to myself? A Yes, sir. Q Okay. Mr. Beltz, did you in previous incidents, including the night you talked to my mother, that you're going to throw the book at me, put me behind bars, and pretty much drag me in for anything you can get? And remember you are under oath. A No, sir. Q It also says witness did not want to witness an accident. The witness did not want to follow at all according to the 911 taping and also you stated -- THE COURT: Sir, you have got to ask questions. You're making statements. You'll have an opportunity to testify if you wish. You don't have to, but you have an opportunity to do so. But you're making statements. It works out a whole lot better if you ask questions. MR. KIMMEL: All right. BY MR. KIMMEL: Q You saw my vehicle sitting in the railroad tracks parking lot, correct, as you stated? A Sitting in? I saw you drive into the railroad tracks. Q That's not -- I don't believe that's what 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stated first. A That's exactly what I stated, sir. Q And in the video it says lunged off of chair. I simply stood up. I don't know if I was asked to or not. I couldn't hear in the video. And, yes, I was upset because you were clearly out of your jurisdiction and -- anyway, I don't think I'm getting anywhere here. That's all I have. THE COURT: You can keep asking questions, sir. I'll give you an opportunity to argue. I'll give you an opportunity to testify if you wish. But now is the opportunity to ask questions of this witness. Do you have any other questions that you wish to ask? MR. KIMMEL: No. My question was was I on Connor property, and now you stated that you saw me pull into there, and that's not what you stated at Susan Day's. You said you saw me at Connor property and that you did follow me and that you buttered up your affidavit as usual. It keeps getting better and better. THE WITNESS: That's incorrect. That is incorrect. MR. BRICKNELL: That wasn't actually a question, Your Honor. THE COURT: Do you have another question? MR. KIMMEL: No, Your Honor. THE COURT: Any redirect? 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BRICKNELL: No, Your Honor. THE COURT: You may step down. THE WITNESS: Thank you, Judge. MR. BRICKNELL: Your Honor, with the admission of the videotape, the Department rests. THE COURT: Mr. Kimmel, do you have any objection to the admission of the videotape, of the DVD? MR. KIMMEL: I really have no comment on that. I don't know how it can be used. I don't understand. I'm not prepared. THE COURT: It is admitted. Does the Commonwealth have any additional testimony? MR. BRICKNELL: No additional testimony, You Honor, just argument. THE COURT: Before we get to that point, Mr. Kimmel, do you wish to present any testimony at this time? MR. KIMMEL: Your Honor, if this is the testimony, I would just ask that the suspension be stayed until after the suppression hearing verdict is past. THE COURT: So you just wish to argue? You don't wish to testify about what happened? You don't wish to testify about whether or not you knowingly refused or were properly read the -- MR. KIMMEL: I knowingly refute to the fact that he's out of his jurisdiction, and I asked for my 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C~ attorney and the videotape was stopped. THE COURT: I'll give you an opportunity to testify or you can argue. Do you wish to testify under oath or do you wish to argue from the table? MR. KIMMEL: I can argue from the table, You Honor. THE COURT: You may. Why don't you tell me what you think I should do and why I should do it. MR. KIMMEL: Your Honor, based on issues regarding this stop, this said incident, there's no video from the Sheetz as he stated in his affidavit that was going to be there. His witness wrote a statement, and she never testified she actually saw me. No one actually physically saw me at Sheetz. He testified at Susan Day's that he saw me i the parking lot of Norfolk Southern, that he did not follow me off of Zion Road, and I can get the transcript from that, as Michael Halkias, my Public Defender, also has it and is aware of because he stated it before. All in all this is plainly a bad stop because I'm in South Middleton Township. I'm also -- I understand that they can say you drove off Zion Road, or whatever, but I was not seen physically in control, so to speak, driving off Zion Road onto private property. He also when I complied with him was on private property on a dirt road and 35 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all I -- I just feel it was a bad stop and also does Michael Halkias, my Public Defender, Your Honor. The Commonwealth pushed everything out because a decision has not been made until the schedules -- the trial schedules in October. Now I just ask that everything be stayed until that goes forth with a reply from the suppression hearing and the hearing in the courts here in October. THE COURT: Mr. Bricknell. MR. BRICKNELL: Your Honor, in an appeal of a chemical test refusal suspension, the Department has the initial burden. It has to prove four things. First, it has to show that the police officer had reasonable grounds to believe that the Appellant, driver, was driving under the influence of alcohol and arrested him for that, and the standard for proving that is pretty low, actually. It's just whether a reasonable person in the shoes of a police officer seeing what he saw and under those circumstances he experienced could reasonably conclude that the Appellant was driving under the influence. Here we heard from Officer Beltz that he received a detailed report of somebody who was having difficulty walking, difficulty pumping gas, appeared to have wet themselves driving off in a vehicle. In fact, the witness who reported it said she was frightened for her own 36 1 safety and didn't follow him because of that. 2 Based on that Officer Beltz pursued, 3 identified the vehicle, pulled that vehicle over, interactec 4 with the driver when he noticed slurred speech, difficulty 5 standing, and the smell of alcohol, and the driver was by 6 himself. We then heard that when Mr. Kimmel was eventually 7 arrested and apprehended he was asked to submit to the 8 chemical test. He was read the warning verbatim, and you 9 saw that on the DVD, and he refused to do so. 10 Having established those four points -- and 11 by the way, those are the four points that Officer Beltz 12 signed to on the affidavit on the bottom of the DL-26 -- the 13 burden at that point shifts to Mr. Kimmel, and he has to 14 prove that either his refusal was not known or conscious or 15 that he was physically unable to take the test. He didn't 16 present any evidence supporting either of those points. 17 What Mr. Kimmel has argued and what is in his 18 appeal is the argument that the arrest or the detention -- 19 his arrest for DUI occurred outside the jurisdiction and 20 therefore was tainted or unconstitutional. There are a 21 number of cases that deal with that. 22 The first point is a case, and I'm looking 23 for a cite for it, but the driver in the case was named 24 Wysocki, which is W-y-s-o-c-k-i. In that case, basically 25 the Supreme Court has repeatedly ruled that even an 37 1 unconstitutional stop is irrelevant for the purposes of 2 chemical test refusal suspension hearings. 3 There is no problem with the fruit of the 4 poisonous tree argument, even an unconstitutional stop, if 5 the officer during the course of that interaction determines 6 that the person he believes -- or comes to the conclusion 7 that the driver is under the influence of alcohol can then 8 go ahead and ask and the person driving still has a 9 responsibility to submit to testing. 10 But the jurisdictional issue has been 11 addressed through a number of statutes and a recent case 12 from the Commonwealth Court. But the statute that's 13 relevant is in Title 42 of Pennsylvania Consolidated 14 Statutes at Section 8953, specifically Sections (a)(2) and 15 (a) (5) . 16 (A)(2) here reads, "When the officer is in 17 hot pursuit of any person for any offense which was 18 committed or which he has probable cause to believe was 19 committed within his primary jurisdiction and for which 20 offense the officer continues in fresh pursuit of the person 21 after the commission of the offense, then the person, that 22 officer, can leave his area and make a legitimate arrest." 23 So the key words there are probable cause. 24 But in the case of Weems versus Department of 25 Transportation -- Weems is spelled W-e-e-m-s, and that's at 38 1 990 A.2d, 1208. That's an opinion from 2010. The 2 Commonwealth Court basically said that the statute from the 3 Municipal Police Jurisdiction Act at Section 8953 has to be 4 read in combination with Section 6308 of the Vehicle Code. 5 Section 6308 is the section of the Vehicle 6 Code that authorizes officers to stop drivers, and there the 7 relevant wording is whenever a police officer has reasonable 8 suspicion that a violation of this title, that being Title 9 75 of the Vehicle Code, is occurring or has occurred he may 10 stop the vehicle to secure such information as the officer 11 may reasonably believe to be necessary to enforce the 12 provisions of this title. 13 So whereas the Municipal Police Jurisdiction 14 Act says probable cause, the Vehicle Code Section 6308 says 15 reasonable suspicion. In Weems, the Commonwealth Court 16 focused on the potential for danger as reaching that level 17 of reasonable suspicion. With Weems, the violation there 18 wasn't driving under the influence. It was careless 19 driving. 20 The Court reviewed the facts and determined 21 that there was reasonable suspicion because of the nature of 22 the reckless driving. It was in a built-up area. There was 23 a chance for danger to the public. Basically the Court said 24 that potential danger of causing an accident establishes 25 probable cause to initiate a traffic stop. So that meets 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 :~ the requirement of 8953, Section 8953. The Court went on to say that that interpretation applies in full to the reasonable suspicion standard in Section 6308. Therefore, in Weems, the officer who was in hot pursuit and left his jurisdiction to make an arrest even though he was outside of his jurisdiction, for purposes of the Vehicle Code violations, he had jurisdiction to make the arrest. The Department argues that the same circumstances exist here. Officer Beltz testified that it wasn't just that they had a report of speeding. They had a report of somebody who was staggering around a parking lot, difficulty pumping gas, had wet himself and lost control to that extent, and then drove off and the reporting person indicated that it was unsafe to follow the driver. When Officer Beltz came across the vehicle, he was driving down the middle of the road, and then proceeded to behave in his interactions with Officer Beltz indicating a disregard for his own safety and the safety of other people on the road. So the Department believes that there was jurisdiction here, and Officer Beltz was within his powers to make an arrest. Thank you, Your Honor. THE COURT: Thank you. Mr. Bracknell, you have passed up, I guess, the new orders that you are using for these various cases. Although it appears that there are 40 1 a number of blocks that can be checked -- 2 MR. BRICKNELL: Yes, Your Honor. 3 THE COURT: -- I have customarily given a fe 4 findings of facts as part of my order in the past. Whether 5 that is necessary or not, I am going to do that in this 6 case. 7 MR. BRICKNELL: That would be great, Your 8 Honor. The form order that we prepare, there are only so 9 many outcomes. But in a case like this that is so fact 10 dependent and involved testimony detailed, the inclusion of 11 facts, findings of facts in the order, would be greatly 12 appreciated. 13 THE COURT: Well, I'm going to give it to you 14 now, sir, as best I can, Mr. Kimmel, because I think while 15 you're here you should hear my findings as well. I may have 16 to word check and spell check the grammar, but here it goes. 17 AND NOW, this 15th day of August, 2012, upon 18 consideration of the appeal from suspension of operating 19 privileges, and after hearing argument from the parties, the 20 Court makes the following findings: 21 1. On November 23, 2011, at approximately 22 11:00 p.m., the defendant was operating a motor vehicle in 23 the borough of Mt. Holly Springs at or about the Sheetz 24 convenience store. 25 2. At that time Officer Jason Beltz of the 41 1 Mt. Holly Springs Police Department was notified by county 2 dispatch that the petitioner was in an inebriated state and 3 posed a potential danger to the public. 4 3. Upon arrival at the Sheetz station and 5 determining that the petitioner and his vehicle were no 6 longer present, Officer Beltz pursued in hot pursuit with 7 reasonable suspicion that the defendant was operating a 8 motor vehicle under the influence and came upon the vehicle 9 approximately one half mile outside of Mt. Holly Springs 10 borough. 11 4. Upon observing the petitioner at the 12 point of the stop, the officer determined that he was 13 visibly intoxicated, and he was also decidedly uncooperative 14 with the officer during the initial stop and the ensuing 15 investigation. 16 5. The petitioner was placed under arrest 17 and taken to the Cumberland County Prison for processing. 18 6. Officer Beltz read the chemical test 19 warning to the petitioner from the DL-26 form. 20 7. After hearing the testimony of the 21 officer and viewing the video of the petitioner's behavior 22 at the Booking Center, which is Commonwealth's Exhibit No. 23 2, we find that the officer's testimony is credible with 24 respect to the petitioner's behavior, and notwithstanding 25 the petitioner's arguments to the contrary, he clearly 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • C~ refused to sign the form. 8. The petitioner was not confused about t information written on the DL-26 as read to him by Officer Beltz. 9. The petitioner refused to submit to chemical testing. Accordingly, it is hereby ordered and directed that the petitioner's appeal of his license suspension is dismissed, and the suspension which is the basis of this appeal shall be reinstated. Anything else, Mr. Bricknell? MR. BRICKNELL: No. Thank you, Your Honor. (Whereupon, the hearing was concluded at 11:00 a.m.) 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. ------~ ~ a.k~rv..Q 1 Pamela R. Sheaffer Official Court Reporte The foregoing record of the proceedings on the hearing of the within matter is hereby approved and direct to be filed. -~~ //' //. r., ,~~, Klbert H. Ma~land, J. Ninth Judicial District 44 LEE A. KIMMEL V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 12-0253 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., November 27, 2012:-- Before the court is the appeal filed by Lee A. Kimmel (Licensee) h..) ~.. m ~ -- '- -~ Ty ' v ~' ;: , ..~,~ ~ ~ t~ C ~ ,-; ~ ~. -; ; ,~, ---- r,. ~~ ~~ ~~ ~ r ,. •~ ~ . --.-~ _~ - challenging the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT)'s suspension of his operating privileges for a refusal to submit to chemical testing. After a hearing on the matter, the court affirmed the suspension. Licensee now complains of the following matters on appeal: 1. The police officer did not have a reasonable basis to ask [Licensee] to submit to chemical testing. 2. The [Licensee's] refusal to the extent there was one under the circumstances was not knowing, intelligent, nor voluntary, and there was in fact no refusal, therefore license suspension does not lie. 3. The requesting officer was not in his jurisdiction. Concise Statement, filed October 17, 2012. I. Facts On the night of November 23rd, 2011, Jason Beltz, an officer with the Mount Holly Springs Police Department, was on a routine patrol when he 12-0253 CIVIL TERM received a call from County Control that a private citizen had reported a possible DUI at the Sheetz parking lot.' Officer Beltz was given a description of the alleged DUI driver and ,his vehicle.2 The private citizen also reported the alleged driver had urinated himself, was stumbling around the parking lot, and had difficulty refueling his vehicle.3 While Officer Beltz was responding to the Sheetz, the alleged DUI driver drove away from the parking lot and headed east in the direction of Boiling Springs.4 Armed with this information, Officer Beltz followed in hot pursuit, ultimately catching up to the vehicle between a mile and a half to two miles from the Sheetz parking lot.5 By the time Officer Beltz effectuated a traffic stop of the alleged DUI driver, later identified as Licensee, the officer was outside his jurisdictions Specifically, Officer Beltz pursued Licensee from the Sheetz parking lot which was in his jurisdiction, to approximately half a mile beyond the borough line that indicates the limits of Mount Hoiiy Springs.' At the hearing, Officer Betz testified as to why he considered this a matter of hot pursuit. The following exchange occurred: Officer Beltz: Well, I have a report of a drunk individual, you know, public drunkenness at the beginning, and the when he left then, you know, I started to investigate the DUI. Attorney Brickneli: Was there a concern, a safety concern? ' Notes of Testimony, August 15, 2012 at 16. (N.T, at ~. 2 N. T, at 16. 3 N.T, at 17. a N.T. at 17. s N.T. at 18. 6 N.T. at 18. ~ N.T, at 18-19 -2- 12-0253 CIVIL TERM Officer Beltz: Absolutely. Attorney Bricknell: And what was that? Officer Beltz: Well, just driving under the influence is very dangerous to the general public. In fact, the original caller started to follow him, and she decided not to because she didn't want to witness the accident.$ Further, as Officer Beltz approached Licensee's vehicle, he observed him driving in the center of the road, well over the center line.9 After Officer Beltz initiated the traffic stop, he ordered Licensee out of his vehicle, at which time he observed the Licensee swaying and steadying himself against his vehicle and that Licensee smelled of alcohol.10 Soon after exiting his vehicle, Licensee reentered the vehicle and attempted to start his vehicle, at which point Officer Beltz reached in and removed the keys from the ignition." At this point, Licensee again exited the vehicle, but began reaching into his pockets and produced a second set of keys, jumped into his vehicle, started the ignition, and fled.12 Following a brief pursuit, Licensee veered off the road into a farmer's field.'3 Due to the limitations of the officer's vehicle and his suspicion that Licensee was headed to his parents' house, Officer Beltz broke off his immediate pursuit and travelled to Licensee's parents' house.14 That location was just a N.T. at 19. 9 N.T. at 19. 10 N.T at 20. " N.T. at 20. 1z N.T. at 21. 13 N.T. at 21. 'a N.T. at 21. -3- 12-0253 CIVIL TERM outside the Officer's jurisdiction.15 Shortly after arriving, Officer Beltz observed Licensee's vehicle stuck on a stump and spinning its wheels.16 He approached the vehicle and arrested Licensee for DUI." At the processing center, Officer Beltz read the DL-26 form verbatim to Licensee regarding the consequences of refusing to submit to chemical testing.t$ In response, Licensee lunged at the Officer and had to be physically restrained by prison correctional officers.19 Officer Beltz determined that Licensee's attempted physical attack and verbal hostility constituted a refusal of chemical testing.20 Following the close of Officer Beltz' testimony, PennDOT then introduced a video recording of Licensee's behavior at the processing center that corroborated Officer Beltz' account of Licensee's refusal of chemical testing.21 II. Discussion The relevant portion of the Implied Consent Provision of the Motor Vehicle Code provides: (a) General rule.--Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle: 15 N.T. at 21. 16 N.T. at 21. "N.T. at 21. 18 N.T. at 23-24. 19 N.T. at 24. 20 N.T. at 25-26. Z' N.T. at 28. -4- 12-0253 CIVIL TERM (1) in violation of section ... 3802 (relating to driving under influence of alcohol or controlled substance) (b) Suspension for refusal.- (1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows: (ii) For a period of 18 months if any of the following apply: (B) The person has, prior to the refusal under this paragraph, been sentenced for: (I) an offense under section 3802 .... 75 Pa.C.S. §1547. To sustain a suspension under this section of the Code, PennDOT must prove the licensee: 1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension. Sinsinni v. Dept. of Transp., Bureau of Driver Licensing, 31 A.3d 1254, 1256 (Pa. Cmwlth. 2011). A. Reasonable Grounds for Chemical Testing Licensee first argues Officer Beltz did not have a reasonable basis for requesting chemical testing. In Sinsinni, the Commonwealth Court explained: -5- 12-0253 CIVIL TERM Whether reasonable grounds exist is a question of law reviewable by this Court on a case-by-case basis. The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution. Reasonable grounds exist to support a license suspension when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the licensee was operating the vehicle while under the influence of intoxicating liquor. Further, it is not necessary for a motorist to fail a field sobriety test in order for a police officer to have reasonable grounds to request a motorist to submit to a chemical test. Id. at 1257 (citations omitted). Additionally, there are no set of characteristics alicensee must exhibit to give rise to reasonable grounds to believe he is under the influence of alcohol. However, case law has identified several factors that have provided reasonable grounds for an arrest, including "staggering, swaying, falling down, belligerent or uncooperative behavior, slurred speech, and the odor of alcohol." !d. at 1258. Here, Officer Beltz credibly testified that Licensee was swaying, having difficulty standing, exhibiting belligerent behavior, and smelled of alcohol. All these factors coupled with Licensee's flight from the initial traffic stop, provided Officer Beltz with ample information to form a reasonable basis for arresting Licensee for DUI and therefore was entitled to request Licensee submit to chemical testing. B. Knowing, Intelligent, and Voluntary Refusal Licensee next argues that he did not refuse chemical testing and that to the extent the court determines that he did, it was not a knowing, intelligent, and voluntary refusal. -6- 12-0253 CIVIL TERM As previously stated, to sustain a suspension based on a refusal of chemical testing, PennDOT must prove the licensee was asked to submit to a chemical test, refused to do so, and was warned that refusal might result in a license suspension. Sinsinni, 31 A.3d at 1256. A refusal is defined as "anything substantially less than an unqualified, unequivocal assent to [submit to] a [chemical] test.... A refusal need not be expressed in words, but can be implied from a motorist's actions." Lanthier v. Com., Dept. of Transp., Bureau of Driver Licensing, 22 A.3d 346, 348 (Pa. Cmwlth. 2011). Once again, we find that Officer BeIt2 testified credibly that he asked Licensee to submit to a test and that he read Licensee the DL-26 warning. This was corroborated by the Officer's contemporaneously signed affidavit regarding the refusal and the video surveillance footage at the processing center. And, Licensee's refusal was manifestly demonstrated by his attempted attack and verbal abuse of Officer Beltz. Such conduct is not only far less than an unequivocal assent to testing, it is tantamount to an unequivocal refusal. As such, Licensee did refuse chemical testing in a knowing, intelligent, and voluntary manner. C. Jurisdiction Licensee's final argument is that Officer Beltz acted outside his jurisdiction and therefore had no power to arrest or submit Licensee to chemical testing. First, there is no dispute that the initial traffic stop and ultimate arrest of Licensee occurred outside of Mount Holly Springs and thus outside of Officer -7- 12-0253 CIVIL TERM Beltz' primary jurisdiction. However, Officer Beltz credibly testified that he was in hot pursuit of Licensee and was therefore justified in acting outside his jurisdiction in the interest of protecting public safety. Municipal police jurisdiction is governed by the following: Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases: (2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense. 42 Pa.C.S. § 8953(a)(2). In the context of DUI pursuits, probable cause sufficient to make an extraterritorial arrest has been found where the officer's testimony established that the road was a high pedestrian area, without sidewalks and that the vehicle, travelling at twice the speed limit was approaching a hill crest and an intersection, while within the officer's primary jurisdiction. Weems v. Com., Dept. of Transp., Bureau of Driver Licensing, 990 A.2d 1208, 1215 (Pa. Cmwlth. 2010). Here, Officer Beltz was acting on time-sensitive eye witness descriptions of Licensee appearing to be extremely intoxicated, covered in his own urine, unable to walk or properly pump gas, and within Officer Beltz' primary jurisdiction. In light of the serious public safety concerns presented by -8- 12-0253 CIVIL TERM intoxicated drivers, Officer Beltz was justified in pursuing and stopping Licensee roughly two miles outside his jurisdiction. Officer Beltz had even more justification for the second stage of the extraterritorial pursuit as he had directly observed Licensee exhibiting signs of intoxication and driving recklessly off road during the subsequent chase. Accordingly, at all times, Officer Beltz was justifiably in hot pursuit of Licensee while outside his jurisdiction. III. Conclusion For the foregoing reasons, Licensee's appeal was properly denied, and that denial should be affirmed in all respects. By the Court, -' Ibert H. Mas and, J. ./Philip M. Bricknell, Esquire For the Department of Transportation /Karl E. Rominger, Esquire For Lee Allen Kimmel :sal ~ ~~~ -9- In the Commonwealth Court of Pennsylvania Commonwealth of Pennsylvania 1944 CD 2012 V. Lee Allen Kimmel, Appellant ORDER AND NOW, this 11th day of June, 2013, Appellant having failed to comply with this court's previous order of May 17, 2013 the above action is dismissed as of course. FOR THE COURT: P Mic a rmmel, Esq. Chief Clerk of Commonwealth Court Trial Court Docket No: 12-0253 Civil Term 1633 MDA 2012 =M c Certified from�e Record JUN 112013 And Order Exit J tw f� K Commoubiealtb Court of fleuuoplbania Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue,Suite 2100 Michael Krimmel,Esq. P.O.Box 69185 Chief Clerk of Commonwealth Court Harrisburg,PA 17106-9185 August 19, 2013 www.pacourts.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell Prothonotary RE: Cmwlth, v. Kimmel, L. 1944 CD 2012 Trial Court: Cumbeflaiad:C-aunty=Court-of-Common_Pfeas--�, Trial Court Docket No: 1633 MDA 2012 12-0253 Civil Term Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Trial Court Record January 28, 2013 1 Remand/Remittal Date: ORIGINAL RECIPIENT ONLY- Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectf I Commonwealth Court Filing Office o CD f' r j Cmwlth.v. Kimmel, L. August 19, 2013 1944 CD 2012 Letter to: Buell, David D. Acknowledgement of Certificate of RemittaVRemand of Record(to be returned): Signature Date Printed Name In the Commonwealth Court of Pennsylvania Commonwealth of Pennsylvania ; 1944 CD 2012 V. Lee Allen Kimmel, Appellant ORDER AND NOW, this 11th day of June, 2013, Appellant having failed to comply with this court's previous order of May 17, 2013 the above action is dismissed as of course. FOR THE COURT: o Mic a rmmel, Esq. Chief Clerk of Commonwealth Court Trial Court Docket No: 12-0253 Civil Term 1633 MDA 2012 Certified from the Record JUN 11 2013 And Order Exit