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HomeMy WebLinkAbout13-2396 From:The McShane Firm To:2406573 05/01/2013 09:28 #199 P.002/003 Supreme Court:of Pennsylvania Co Com ~� Pleas et Far Rrathonotaryllse OnIY j, CU CoUnty Docket Not flj! 57 „ °J g The information collected on this form is wed solely for court administration purposes. 17iis form does not supplement or replace the.frling and service of pleadings or other papers as required by law or rules of court. E Commencement of Action: 0 Complaint Writ of Summons 0 Petition El Notice of Appeal _. _,•• 0 Transfer from Another Jurisdiction El Declaration of Taking �i Lead Plaintiff s Name Lead Defendant's Name Dylan Falrc�o �amirlolawt~ tk Af�A, Dwrpf FotTranspar a ian D Check here if you are a Self-Represented(Pro Se)Litigant Name of Plaintiff/Appellant's Attorney:Ttrta© hyVi BaFCOtiC,Esgutr Dollar.Amount Requested: [3 within arbitration limits i�,611y Are money damages requested?: Yes No (Check one) _outside arbitration limits is this s Class Action Suit? Yes l No Nature of:the ase 'lace as" "tt�tlae IeEt Df t rf.,ONE case category�hatmost accurately describes your: s.; FtI-MA1eYSE cif yott aremaktflg more tlxan one +pe of claim,check the one#hatti r t :you cor>sider titost tit�poftant t- ' - - r: 1 = TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS r Q Intentional Q Buyer Plaintiff Administrative Agencies q} Malicious Prosecution 0 Debt Collection:Credit Card Board of Assessment Q Motor Vehicle Q Debt Collection:Other El Board of Elections Q Nuisance Dept.of Transportation f Premises Liability Zoning Board Product Liability(does not include Statutory Appeal Other mass tort) E2 Employment Dispute: Discrimination r s Slander/Libel/Defamation Employment Dispute Other �> Q Other: ' Judicial Appeals [ , MDJ-Landlord/Tenant l ® Other MDJ Money Judgment MASS TORT Q Other [ � Asbestos Tobacco r Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS r; Q Toxic Waste El Ejectment Q Other Common Law/Statutory Arbitration a E3 Eminent Domain/Condemnation El Declaratory Judgment [] Ground Rent Mandamus t Q Landlord/Tenant Dispute Q Non-Domestic Relations Mortgage Foreclosure Restraining Order PROFESSIONAL LIABLITY [ Partition (] Quo Warranto El Dental E3 Quiet Title Replevin '= Q Legal Medical Q Other: ED Other: Other Professional i Pa.RC P.205.5 212010 a DYLAN T.FAIRCLOTH, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA V. COMMONWEALTH OF STATUTORY OPERATOR'S PENNSYLVANIA,DEPARTMENT LICENSE APPEAL OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, CASE NO.: v _ Respondent -U "' MCD • cn� t �� TO THE HONORABLE JUDGES OF SAID COURT: . C-) : Statutory Operator's License Appeal ,C= AND NOW, this 30th day of April, 2013, comes the above-captioned defendant, ~` Dylan T. Faircloth, by and through his counsel, The McShane Firm, LLC, and Timothy M. Barrouk, Esquire, and hereby appeals from a Notice of Suspension issued by the Pennsylvania Department of Transportation, Bureau of Driver's Licensing, and avers the following in support thereof. 1. This Court has jurisdiction over this case by virtue of 42 Pa.C.S.A. §933(a) and 75 Pa.C.S.A. §1550(a). 2. The Petitioner is Dylan T. Faircloth, Pennsylvania Driver License Number -22812577, whose place of residence is 1726 Penn Street, Harrisburg, PA 17102 in the County of Dauphin with a date of birth of September 13, 1958. 3. Respondent is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania, Department of Transportation, which has its principal place of business at the Riverfront Office.Center, 1101 South Front Street, Harrisburg, Pennsylvania. ,� c�# 01 4. The Appeal is taken from an Official Notice bearing a mailing date April 02, 2013. With that Notice the Bureau of Driver's Licensing notified Petitioner that it was suspending his privilege of operating a motor vehicle in Pennsylva- nia for a period of 1 year months, effective May 7, 2013, at 12:01 a.m., pursu- ant to Section 1547(b)(1) of the Pennsylvania Vehicle Code, as a result of an alleged refusal by Petitioner to submit to chemical testing on March 1, 2013. A true and correct copy of the Bureau's Notice of Suspension is appended to this Petition as Exhibit"A". 5. The 1 year month suspension of Petitioner's operating privilege is improper and illegal because: 5.1.The Officer involved in this matter did not possess rea- sonable grounds to demand that the Petitioner submit to the chemical test. 5.2. The Petitioner was not properly apprised of his implied consent and O'Connell warnings. The Petitioner did not render a knowing,voluntary and intelligent refusal. 6. The Petitioner requests relief pursuant to 75 Pa. C.S.A. §1550 (b)(1) — Supersedeas. As this matter is timely filed and service has been effected upon the Department's legal office, and none of the enumerated exceptions under 75 Pa. C.S.A. §1550(b)(1) (ii)or(iii)exist. WHEREFORE, Petitioner, Dylan T. Faircloth, by and through his counsel re- spectfully requests this Honorable Court hold a de novo hearing on his Appeal from the suspension of his operating privilege and invalidate the illegal taking of his privilege to operate an automobile and issue orders consistent with the same to the Department of Transportation, Bureau of Driver's Licensing, to suspend his operating privilege. Respectfully submitted, The McShane Firm,LLC Timothy M.Barrouk,Esquire Attorney for Petitioner 4807 Jonestown Road Suite 148 Harrisburg,PA 17109 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 Exhibit "A" { i i COMMONWEALTH OF PENNSYLVANIA r DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date : APRIL_ 02 , 2013 4 f DYLAN T FAIRCLOTH WID 130856680094368 001 2001 BLUE MOUNTAIN PKWY PROCESSING DATE 03/26/2013 DRIVER LICENSE # 22812577 HARRISBURG PA 17112 DATE OF BIRTH 09/13/1958 E i Dear MR. FAIRCLOTH : F This is an Official Notice of the Suspension of your Driving F Privilege as authorized by Section 1547B1I of the Pennsylvania Vehicle Code . As a result of your violation of Section 1547 of the Vehicle Code , CHEMICAL TEST REFUSAL , on 03/01/2013 : Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 05/07/2013 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 05/07/2013. You may surrender these items before , 05/07/2013 , 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 , 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 : 130856680094368 Pennsylvania Department of Transportation Bureau of Driver Licensing P .C . 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 three (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" . t i c i 130856680094368 j E i APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date , APRIL 02 , 2013, 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 j 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 05/07/2013 . Sincerely, 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 /1 DYLAN T.FAIRCLOTH, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA V. COMMONWEALTH OF STATUTORY OPERATOR'S PENNSYLVANIA,DEPARTMENT LICENSE APPEAL OF TRANSPORTATION, elutl BUREAU OF DRIVER'S LICENSING, CASE NO.: ✓ ! `y Respondent MM r-r-j � tY7 Order of Court -< , -'C)> AND NOW, this da y of , 2013, IT IS HEREBY =.CD DERED AND DECREED THAT the Petitioner's Motion for a de novo hem :> regarding the Bureau of Driver's Licensing of the Commonwealth of Pennsylyr-� nia's suspension of the Petitioner's Operating Privilege IS GRANTED. Specifically, the Court further finds that Petitioner's Motion challenging the sus- ,pension was timely filed as it was filed within thirty (30) days of the mailing date of the Bureau's Notice. GL %3 , This matter is set for agent the �'S day of yL, 20 at —L, o'clock in Courtroom FURTHER, this Court directs The Department to stay its planned suspension dur- ing the pendency of this Appeal pursuant to 75 Pa. C.S.A. §(b)(1). BY THE COURT GE '" Distribution: Court Administration ,/Office of Chief Counsel,PennDOT Timothy M. Barrouk, Esquire, The McShane Firm, LLC, 4807 Jonestown Road, O Suite 148,Harrisburg,PA 17109 DYLAN T. FAIRCLOTH, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, NO. 13-2396 CIVIL TERM DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, DRIVER LICENSE Respondent SUSPENSION APPEAL ORDER AND NOW, this 14th day of August, 2013, the appeal filed in the above- captioned matter is CONTINUED and RESCHEDULED for the 2nd day of October, 2013, at 1:30 p.m., in Courtroom 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: Attest: -6' Timothy M. Barrouk, Esq., The McShane Firm, LLC, 4807 Jonestown Road, Suite 148, - Harrisburg, PA 17109 -I-�Philip M. Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, Riverfront Office Center, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 CS Cn e7 j= N) DYLAN T. FAIRCLOTH, • IN THE COURT OF COMMON Petitioner : PLEAS OF CUMBERLAND : CUMBERLAND COUNTY v. • COMMONWEALTH OF PENNSYLVANIA, : NO. 13-2396 CIVIL TERM DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : DRIVER LICENSE Respondent : SUSPENSION APPEAL ORDER AND NOW, this 2nd day of October, 2013, the appeal filed in the above- captioned matter is CONTINUED and RESCHEDULED for the 13th day of November, 2013, at 1:30 p.m., in Courtroom 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: ef,( 66L, /2--&z4. J. Attest: Timothy M. Barrouk, Esq., The McShane Firm, LLC, 4807 Jonestown Road, Suite 148, Harrisburg, PA 17109 ✓ Philip M. Bracknell, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, Riverfront Office Center, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 CO p CES tra- L0/3//3 rri I/1/1 >c-. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA DYLAN T. FAIRCLOTH : - • NO. 13-2396 CPA V. O rr7 z -0 r�; COMMONWEALTH OF PENNSYLVANIA cnr w �' DEPARTMENT OF TRANSPORTATION, • '��' ; BUREAU OF DRIVER LICENSING - y, r._ t_ ORDER _ ; _., AND NOW, this 22.M day of P ou e 4 , 2013, the appeal filed in the above referenced matter is: r DISMISSED and the suspension shall be REINSTATED. 5'4+ SUSTAINED and the suspension shall be RESCINDED. REMANDED to the Department to update its records and to rescind the appealed suspension. WITHDRAWN. CONTINUED AND RESCHEDULED for the day of , 20_, at .m., in Courtroom No. of the Cumberland County Courthouse. * SFr-ex-14.4A. v.� itlaCC C1,0ws, 13 -2 3o / BY THE COURT: • 20 wv 2oL ), ' u T. ATTEST: Thombs A. Place�y a J. Common Pleas Ju 9 , (elly Edward Solomon, Esq., Office of Chief Counsel, Department of Transportation, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516 Timothy M. Barrouk, Esq., 3601 Vartan Way, 2"d Floor, Harrisburg, PA 17110 L(_, C(1)16 na L. ///.1.4/2 i DANA SPRECHER : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING : 13-2930 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., November 20, 2013:-- Licensee, Dana Sprecher, appeals the Order dated August 14, 2013, denying her appeal from the suspension of her operating privileges. Licensee complains of the following matters on appeal: 1. Whether this Honorable court erred in ruling that the United States Supreme Court decision in Missouri v. McNeely, holding that an involuntary blood draw is a search under the Fourth Amendment and as such a warrant is generally required, was not applicable to [Licensee]'s case because McNeely was a criminal case and [Licensee]'s case is of a civil nature regarding implied consent. 2. Whether the [Licensee]'s refusal to submit to chemical testing was a right protected by the Fourth Amendment, and therefore Pennsylvania's Implied Consent Law is unconstitutional Concise Statement of Matters Complained of on Appeal, filed October 8, 2013. FACTS At approximately 1:15 a.m. on April 6, 2013, Licensee operated a Ford pickup in East Pennsboro Township, Cumberland County, in a manner that attracted the attention of Officer Scott Rood. After observing Licensee's vehicle cross the fog line 13-2930 CIVIL TERM approximately four times, Officer Rood activated his overhead lights and pulled Licensee over. Officer Rood testified that he could smell alcohol coming from within the vehicle as soon as he approached the window. He also observed that Licensee exhibited indications of being under the influence including having bloodshot and glassy eyes. When asked, Licensee admitted to having consumed alcoholic beverages. After instructing Licensee to step out of the vehicle, Officer Rood attempted to administer a preliminary breath test (PBT), but Licensee gave very little air, something Officer Rood testified is common for someone trying to avoid getting a positive result. Officer Rood then asked Licensee to submit to other sobriety tests and Licensee agreed. The first test was the Horizontal Gaze Nystagmus Test, the results of which led Officer Hood to believe that Licensee was on some type of depressant, such as alcohol. After Licensee refused to do the Walk-and-Turn test because of her bad knees, Officer Rood asked her to do the One-Leg Stand. The results again indicated that Licensee was under the influence. Officer Rood then attempted to administer another PBT but still felt as though Licensee was not giving enough air to get a proper reading. At no time did Licensee mention any medical breathing problems. The reading of the second PBT was .19%. In Officer Rood's experience, when someone does not blow enough air, the true reading is actually higher than what is displayed. Based on the results of the second PBT and other sobriety tests, Licensee was placed under arrest.' Even in the absence of the PBT results and the Horizontal Gaze Nystagmus Test,there were more than enough indications that Licensee was under the influence to warrant her arrest. -2- 13-2930 CIVIL TERM At the Cumberland County Prison, Licensee was transferred to an interview room where Officer Rood clearly read the DL-26 form to her regarding the chemical test warnings, which Licensee refused to sign. Licensee testified that she did not understand why the blood sample was necessary and never intended to refuse, she just misunderstood. However, in light of all the other evidence, including the video of Licensee's behavior at the prison, Licensee's testimony lacked all credibility. Missouri v. McNeely In short, Licensee's reliance on Missouri v. McNeely is misplaced, as the following discussion makes manifest. Missouri v. McNeely is a criminal case that deals with the emergency exception to the warrant requirement contained in the Fourth Amendment. Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013). Tyler McNeely was arrested for driving while intoxicated after he failed multiple field sobriety tests. Id. at 1556-57. The arresting officer attempted to administer a portable breath-test, but McNeely would not consent to the test. Id. at 1557. Therefore, the arresting officer took McNeely to a local hospital for a blood sample. Id. "Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license for one year and could be used against him in a future prosecution." Id. McNeely refused the blood test. !d. Nevertheless, the officer, without obtaining a warrant, directed the hospital staff to take a blood sample. Id. McNeely moved to suppress the results of the blood test on grounds that it violated his Fourth Amendment right. Id. The question before the United States Supreme Court was "whether the natural dissipation of alcohol in the bloodstream -3- 13-2930 CIVIL TERM establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations."Id. at 1558. The Court declined to adopt such a categorical rule and instead held that "Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Id. at 1563. A simple reading of Licensee's Concise Statement of Matters Complained of on Appeal demonstrates that Missouri v. McNeely is not applicable to this case. Licensee claims that McNeely holds "that an involuntary blood draw is a search under the Fourth Amendment and as such a warrant is generally required." This statement mischaracterizes the holding of McNeely. The issue in McNeely was not whether an involuntary blood draw is a search under the Fourth Amendment but "whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations." Id. at 1558. Nevertheless, as Licensee states, McNeely deals with an involuntary blood draw. See id. at 1557. McNeely's entire case was based on a motion to suppress the blood sample taken from him after he refused to submit to the test. Id. Licensee, on the other hand, was not forced to provide a blood sample after she refused. This Court did not even reach the question presented in McNeely because, unlike in McNeely, Licensee was not subjected to a search against her will. Pennsylvania's Implied Consent Law is Not Unconstitutional Licensee's argument that Pennsylvania's Implied Consent Law is unconstitutional is without merit. As stated by the Pennsylvania Supreme Court, "all drivers in our -4- 13-2930 CIVIL TERM Commonwealth are deemed to consent to BAC tests when a police officer has reasonable grounds to believe the driver was operating his vehicle while under the influence of alcohol." Commonwealth v. Stair, 699 A.2d 1250, 1254 (Pa. 1997). Furthermore: [u]nder the operation of section 1547(b) of our Implied Consent Law, Licensee had no constitutional right to refuse chemical testing. . . . [D]riving in Pennsylvania is a civil privilege conferred on individuals who meet the necessary qualifications set forth in the Vehicle Code . . . . Under the terms of the Implied Consent Law, one of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to chemical sobriety testing, when requested to do so by an authorized law enforcement officer in accordance with the prerequisites of the Implied Consent Law. The obligation to submit to testing is related specifically to the motorist's continued enjoyment of the privilege of maintaining his operator's license. Id. at 1255-56; see also Commonwealth v. Graham, 703 A.2d 510, 512 (Pa. Super. Ct. 1997). Additionally, Officer Rood and the Department of Transportation followed the appropriate procedures in this case. Less than a month ago, our Commonwealth Court reiterated the procedure in Pennsylvania to sustain a suspension of operating privileges after the driver refuses to submit to chemical testing. Vora v. Commonwealth Dep't of Transp., Bureau of Driver Licensing, 90 C.D. 2013, 2013 WL 5822945 (Pa. Commw. Ct. Oct. 30, 2013). Specifically: In order to sustain a suspension of a licensee's operating privilege under Section 1547 of the Vehicle Code for a refusal to submit to chemical testing, PennDOT must establish that 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 -5- 13-2930 CIVIL TERM refusal might result in a license suspension. Once that burden is met, the licensee has the burden to prove that (1) he was physically incapable of completing the test or (2) his refusal was not knowing and conscious. Id. (internal citations omitted). The Department of Transportation met its burden in this case. The record clearly shows that Licensee was arrested for driving under the influence by Officer Rood who had reasonable grounds to believe that she was operating a vehicle under the influence of alcohol. Not only could he smell alcohol coming from Licensee's vehicle but Licensee admitted to consuming alcohol. Licensee also had bloodshot and glassy eyes and performed poorly on at least two field sobriety tests. Additionally, the record, including the video recording, also clearly shows that Licensee was asked to submit to a chemical test and refused to do so after being read her rights contained on the DL-26 form. The DL-26 form specifically states that "[i]f you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months." Licensee failed to meet her burden. First, Licensee presented no evidence that she was physically incapable of completing the blood test. Licensee testified that she does not like needles but her dislike of needles was never communicated to Officer Rood and, even if it was, disliking needles is not a trait that renders Licensee physically incapable of supplying a blood sample. Second, Licensee did not present sufficient evidence to prove that her refusal was not knowing and conscious. Licensee does not deny that Officer Rood read her the DL-26 form. Furthermore, although Licensee testified that she did not understand why the blood sample was necessary and never intended to refuse the test, Licensee's -6- 13-2930 CIVIL TERM testimony was not credible. In sum, Licensee knowingly and consciously refused to submit to a blood test. Conclusion For the above stated reasons, the Commonwealth Court should affirm this Court in all respects. By the Court, Albert H. Masland, J. Kelli Brownewell Statt, Esquire Attorney for Licensee Philip M. Brieknell, Esquire For Vehicle and Traffic Law Division -7- irLED-O F1:_.P T f:TOTu? c ,:, 2iE3DEC 16 PM 3: C3 CUMBERLAND COUNTY TY PENNSYLVANIA DYLAN T. FAIRCLOTH, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF : MOTION FOR STAY PENDING APPEAL PENNSYLVANIA, DEPARTMENT OF • TRANSPORTATION, • BUREAU OF DRIVER'S LICENSING, • Respondent TO THE HONORABLE JUDGE THOMAS H. PLACEY: APPLICATION FOR SUPERSEDEAS PENDING APPEAL Pursuant to Rule 1732 of the Pennsylvania Rules of Appellate Procedure, Dylan T. Faircloth, above- named, by and through his attorneys, The McShane Law Firm, LLC and Timothy M. Barrouk, Esquire, moves for a supersedeas of the order of the Court of Common Pleas of Cumberland County dated November 22, 2013, pending appeal in the above-referenced matter, and in support thereof represents as follows: 1. The Petitioner is Dylan T. Faircloth, Pennsylvania Driver License Number 22812577, whose place of residence is 1726 Penn Street, Harrisburg, PA 17102 in the County of Dauphin with a date of birth of September 13, 1958. . 2. The Appellee is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania, Department of Transportation, which has its principal place of business at the Riverfront Office Center, 1101 South Front Street, Harrisburg Pa 1.7104. 3. By way of an Official Notice bearing a mailing date of April 2, 2013, the Bureau of Driver's Licensing sought to revoke Petitioner's privilege of operating a motor vehicle pursuant to Section 1547(b)(1) of the Pennsylvania Vehicle Code for twelve (12) months, as a result of an alleged refusal to submit to chemical testing on March 1, 2013. See Exhibit A, which is a true and correct copy of the Bureau's Notice of Suspension. 4. Petitioner filed a timely Statutory License Appeal. See Exhibit B, which is a true and correct copy of Petitioner's Statutory License Appeal. 5. In said Statutory License Appeal, the Petitioner requested a supersedeas pursuant to 75 Pa. C.S.A. §1550(b)(1). 6. On November 22, 2013, this Honorable Court dismissed Petitioner's appeal and Reinstated his suspension. 7. Petitioner is filing his Notice of Appeal contemporaneously with this Application For Supersedeas Pending Appeal with this Honorable Court. 8. In order to be entitled to a stay or supersedeas pending appeal, a party must satisfy all of the following requirements: (1) the petitioner has made a strong showing that the petitioner is likely to prevail on the merits of the appeal; (2) the petitioner has shown that, without such relief, the petitioner will suffer irreparable harm; (3)the issuance of a stay or supersedeas would not substantially harm any other party interested in the proceeding; and (4)the issuance of a stay or supersedeas would not harm the public interest. Pennsylvania Public Utility Com'n v. Process Gas Consumers Group, 502 Pa. 545, 552-53, 467 A.2d 805, 808-09 (Pa. 1983). 9. Petitioner's appeal is meritorious. In a recent case, Missouri v. McNeely, 133 S.Ct. 1552 (2013), the United States Supreme Court(SCOTUS), in the context of DUI blood testing, there could no longer be justification to not get a search warrant when the justification was due to the single factor exigency analysis regarding the elimination of ethanol. In this case, the SCOTUS continued to interpret the Fourth Amendment to require, in all cases, that a totality of the circumstances test be used to determine whether exigent circumstances existed to excuse the need for a search warrant. Exigency cannot simply be based on the dissipation of ethanol in the accused motorist. In the cases of Commonwealth v. Quarless, 324 A.2d 452 (Pa. Super. 1974) and Com. v. Kohl, 576 Pa. 1049 (Pa. 1049), the Pennsylvania Superior and Pennsylvania Supreme Courts struck down 75 Pa.C.S.A. §1547(a)(2) which provided that individuals involved in an accident with injuries had given implied consent for a blood draw. However, Kohl and Quarless found 75 Pa.C.S.A. §1547(a)(1) was constitutional because it requires probable cause/ reasonable grounds be present before a test is requested. More specifically both cases found that a BAC test created exigent circumstances because of the risk of dissipation of the alcohol in the blood. However, McNeely makes it clear that dissipation of alcohol does not form per se exigent circumstances. In the present matter, there were no exigent circumstances present. Mr. Fairclothe was taken to the booking center without delay and arrived in a prompt manner. 10. Additionally, the Petitioner will suffer irreparable harm if the Petitioner is not granted a Supersedeas Pending Appeal in this matter. If the Petitioner's Appeal were to be granted, the Petitioner would be placed in a highly detrimental situation in that he has been denied his operating privileges. Furthermore, the Petitioner currently serves as an outside sales representative. As such, the ability to drive to appointments is essential to him maintaining his employment. Therefore, if this Honorable Court was to deny the Petitioner's request for a Supersedeas Pending Appeal, this would operate as a fundamental detriment to the Petitioner with respect to his employment. In addition, the monetary loss to the Petitioner that would result would not be otherwise compensated and is, therefore, irreparable. 11. If the Petitioner's request for a supersedeas were granted by this Honorable Court, no other party would be substantially harmed. The Department of Transportation reinstated the Petitioner's operating privileges during the time period in which the Petitioner's Statutory License Appeal was pending before the trial court. Likewise, there exists no reason why the Department of Transportation would be prejudiced in doing so under these similar circumstances. Should the Petitioner be unsuccessful on appeal, he would still be required to serve his full suspension. 12. Finally, if the Petitioner's request for a supersedeas were granted, the public interest would not be harmed. The Petitioner is simply requesting a delay be imposed pending the outcome of his appeal, such that he may retain his employment and attend to routine matters in the interim. 13. As a result, the Petitioner has satisfied each of the requirements necessary to obtain a supersedeas pending appeal. 14. Moreover, "[w]hen confronted with a case in which the other three factors strongly favor interim relief, a court may exercise its discretion to grant a stay if the movant has made a substantial case on the merits." Witmer v. Com., Dept. of Transp., Bureau of Driver Licensing, 889 A.2d 638 (Pa.Cmwlth.,2005). 15. Therefore, even if this Honorable Court were to determine that the Petitioner did not make such a showing, this Honorable Court should, in the exercise of its discretion, determine that the Petitioner is nevertheless entitled to a supersedeas pending appeal. WHEREFORE, Dylan T. Faircloth, above-named, requests this Honorable Court enter a supersedeas of the Order of the Court of Common Pleas of Cumberland County dated November 22, 2013 and for such other relief as may be just under the circumstances. . Respectfully submitted, The McShane Firm, LLC Timothy M. Barrouk, Esquire Attorney for Petitioner 3601 Vartan Way Second Floor ' Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 • DYLAN T. FAIRCLOTH, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF : MOTION FOR STAY PENDING APPEAL PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent AFFIDAVIT OF SERVICE I, Timothy M. Barrouk, Esquire, hereby certify that I am this day, December 12, 2013, serving the within document upon the person and in the manner indicated below, a true and correct copy of Dylan T. Faircloth's Application for Supersedeas Pending Appeal by sending said copy to the Bureau of Driver's Licensing by United States Postal Service, via first class mail, addressed as follows: Kelly Solomon, Esquire Office of Chief Counsel Department of Transportation Riverfront Office Center—3rd Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 This affirmation is made with the knowledge of the penalties of 18 P.S. §4904 relating to un-sworn falsification to authorities. Respectfully submitted, The McShane Firm, LLC Timothy M. Barrouk, Esquire Attorney for Petitioner 3601 Vartan Way Second Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 DYLAN T. FAIRCLOTH, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF • PENNSYLVANIA, DEPARTMENT OF • TRANSPORTATION, • r , BUREAU OF DRIVER'S LICENSING, Respondent • al Z_;._ . a TO THE HONORABLE THOMAS A. PLACEY JUDGE OF SAID COURT: NOTICE OF APPEAL Notice is hereby given that James Dylan T. Faircloth, above-named, hereby appeals to the Commonwealth Court of Pennsylvania from the order entered at the hearing in this matter on November 22, 2013. This order has been reduced to judgment and entered on the docket as evidenced by the attached copy of the docket entry. Respectfully submitted, The McShane Firm, LLC Timothy M. Barrouk, Esquire Attorney for Appellant 3601 Vartan Way Second Floor Harrisburg, PA 17110 Tel: 717-657-3900 5'7.o0 P13 NTT/ Fax: 717-657-2060 C1#3,714q Attorney ID: 204537 e,*aQq 48q Mailed Nigher Court' PYS511 Cumberland County Prothonotary' s Office Page 1 Civil Case Print 2013-02396 FAIRCLOTH DYLAN T (vs) PENNSYLVANIA COMMONWEALTH OF Reference No. . : Filed 5/01/2013 Case Type • CIVIL APPEALS - AGENCI Time 10 : 37 Judgment . 00 Execution Date 0/00/0000 Judge Assigned: PECK CHRISTYLEE L Jury Trial . Desc . : DISMISSED Disposed Date . 11/22/2013 Case Comments Higher Crt 1 . : Higher Crt 2 . : ******************************************************************************** General Index Attorney Info FAIRCLOTH DYLAN T PLAINTIFF BARROUK TIMOTHY M PENNSYLVANIA COMMONWEALTH OF DEFENDANT TRANSPORATION BUREAU OF DRIVER THIRD FLOOR RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries * ******************************************************************************** FIRST ENTRY 5/01/2013 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - BY TIMOTHY M BARROUK ATTY FOR APPELLANT 5/06/2013 ORDER @ 1 : 30 PM INNCROR A DE NOVO HEARING COURT ALBERT H MASLAND J - COPIES MAILED 5/6/13 8/14/2013 ORDER DATED 8-14-13 IN RE APPEAL IS CONTINUED AND RESCHEDULED TO OCTOBER 2 2013 AT 1 30 PM IN CR 5 - BY THE COURT ALBERT H MASLAND J- COPIES MAILED 8-15-13 10/03/2013 ORDER - 10/2/13 - APPEAL FILED IS CONTINUED AND RESCHEDULED FOR 11/13/13 @ 1 : 30 PM IN CR 6 CUMB CO COURTHOUSE - BY THE COURT CHRISTYLEE L PECK J - COPIES MAILED 10/3/13 11/22/2013 ORDER - 11/22/13 - IN RE: APPEAL *DISMISSED* AND SUSPENSION SHALL BE REINSTATED - BY THE OCURT THOMAS A PLACEY J COPIES MAILED 11/22/13 12/16/2013 NOTICE OF APPEAL TO COMMONWEALTH COURT - BY TIMOTHY M BARROUK ATTY FOR APPELLANT 12/16/2013 APPLICATION FOR SUPERSEDEAS PENDING APPEAL - BY TIMOTHY M BARROUK ATTY FOR APPELLANT LAST ENTRY ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Py*mts/Adi End Bal ******************************** ******** ****** ******************************* PETITION 65 . 25 65 . 25 . 00 TAX ON PETITION . 50 . 50 . 00 SETTLEMENT 9 . 50 9 . 50 . 00 AUTOMATION FEE 5 . 00 5 . 00 . 00 JCP FEE 23 . 50 23 . 50 . 00 APPEAL HIGH CT 57 . 00 57 . 00 . 00 160 . 75 160 . 75 . 00 ******************************************************************************** * End of Case Information * ******************************************************************************** DYLAN T. FAIRCLOTH, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA • v. : DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF : MOTION FOR STAY PENDING APPEAL PENNSYLVANIA, DEPARTMENT OF • TRANSPORTATION, • BUREAU OF DRIVER'S LICENSING, • Respondent AFFIDAVIT OF SERVICE I, Timothy M. Barrouk, Esquire, hereby certify that I am this day serving the within document upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121, and Pa. R.A.P. 122: Service via mail as follows: Kelly Solomon, Esquire The Honorable Thomas A. Placey Office of Chief Counsel 1 Courthouse Square Department of Transportation Carlisle, PA 17013 Riverfront Office Center—3rd Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 This affirmation is made with the knowledge of the penalties of 18 P.S. §4904 relating to un-sworn falsification to authorities. Respectfully submitted, The McS ne Firm, LLC Timothy M. Barrouk, Esquire Attorney for Appellant 3601 Varian Way Second Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 DYLAN T. FAIRCLOTH, Petitioner oti ii I ILc a 1: 'MI COMMONWEALTH OF IN THE COURT OF COMMON PLEAS PENNSYLVANIA, DEPARTMENT OF OF THE NINTH JUDICIAL DISTRICT TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent 2013-02396 CIVIL TERM IN RE: NOTICE OF APPEAL ORDER OF COURT AND NOW, this 19th day of December 2013, upon consideration of the Notice of Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this court and to serve upon the undersigned judge a concise statement of errors complained of an appeal NO LATER THAN 21 days after entry of this Order of Court. Any issues not properly included in the statement, timely filed and served pursuant to this order, shall be deemed WAIVED. Thomas . Placey C.P.J. Distribution: /imothy M. Barrouk, Esq. -,r --{ Kelly Solomon, Esq. 4 T N,, r 42 -cam o cr I.01P7p, >f°, . rx £_:-`Y- 5 Wi •: r . DYLAN T. FAIRCLOTH, Petitioner V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF 2013-02396 CIVIL TERM DRIVER'S LICENSING, Respondent IN RE: APPLICATION FOR SUPERSEDEAS PENDING APPEAL D� ORDER OF COURT AND NOW, this day of January 2014, upon consideration of the Petitioner's Application for Supersedeas Pending Appeal that does not contain a paragraph indicating that Respondent was given an opportunity to concur or oppose the motion pursuant to C.C.R.P. 208.3(a)(9), a RULE is issued upon Respondent to show cause why the relief requested should not be granted. PETITIONER shall effectuate service of this Order of Court and the Application for Supersedeas upon Respondent. RULE RETURNABLE twenty (20) days from the date of service. Y THE CO , Thom s . Placey C.P.J. Div ibution List: t') " r ,• Ke Solomon, Esq. -Te Timothy M. Barrouk, Esq. rTF M - L r' 7!s F` > V Id DYLAN T. FAIRCLOTH, IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO: 13-2396 CIVIL C*) c=) —""" COMMONWEALTH OF : S c- rnrri PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, (1) BUREAU OF DRIVER'S LICENSING, 77, Respondent (-) -z.c) "37 TO THE HONORABLE THOMAS A. PLACEY JUDGE OF SAID COURT: A CONCISE STATEMENT OF MATTERS COMPLAINED UPON APPEAL PURSUANT TO Pa. R.A.P.§1925(B) AND NOW, this 6th day of January, comes the above-captioned Appellant, Dylan T. Faircloth, by and through his counsel, The McShane Firm, LLC, and Tim M. Barrouk, Esquire, and files this timely Concise Statement of Matters Complained Upon Appeal Pursuant to Pa. R.A.P. §1925(B): 1. Whether the Trial Court erred by dismissing Appellant's Appeal. More specifically, whether the Appellant's constitutional rights were violated because there were no exigent circumstances that would justify a warrantless blood draw in Appellant's case.1 As such, whether the implied consent statute is constitutional as applied to Appellant. Respectfully submitted, The McShane Firm, LLC / Timothy M. Barrouk, Esquire Attorney for Appellant 3601 Vartan Way Second Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 I See Missouri v. McNeely, 133 S.Ct. 1552(2013) DYLAN T. FAIRCLOTH, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF : MOTION FOR STAY PENDING APPEAL PENNSYLVANIA, DEPARTMENT OF • TRANSPORTATION, • BUREAU OF DRIVER'S LICENSING, • Respondent AFFIDAVIT OF SERVICE I, Timothy M. Barrouk, Esquire, hereby certify that I am this day serving the within document upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121, and Pa. R.A.P. 122: Service via mail as follows: Kelly Solomon, Esquire The Honorable Thomas A. Placey Office of Chief Counsel 1 Courthouse Square Department of Transportation Carlisle, PA 17013 Riverfront Office Center—3rd Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 This affirmation is made with the knowledge of the penalties of 18 P.S. §4904 relating to un-sworn falsification to authorities. Respectfully submitted, The McShane Firm, LLC s Timothy M. Barrouk, Esquire Attorney for Appellant 3601 Vartan Way Second Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 2614 JAN 13 Aft 11: c CLJMBEnt-A Np PENNS yL�q N/WN T y DYLAN T. FAIRCLOTH, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF : MOTION FOR STAY PENDING APPEAL PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent TO THE HONORABLE JUDGE THOMAS H. PLACEY: AMENDED APPLICATION FOR SUPERSEDEAS PENDING APPEALI Pursuant to Rule 1732 of the Pennsylvania Rules of Appellate Procedure, Dylan T. Faircloth, above- named, by and through his attorneys, The McShane Law Firm, LLC and Timothy M. Barrouk, Esquire, moves for a supersedeas of the order of the Court of Common Pleas of Cumberland County dated November 22, 2013, pending appeal in the above-referenced matter, and in support thereof represents as follows: 1. The Petitioner is Dylan T. Faircloth, Pennsylvania Driver License Number 22812577, whose place of residence is 1726 Penn Street, Harrisburg, PA 17102 in the County of Dauphin with a date of birth of September 13, 1958. 1 This amended Application for Supersedeas Pending Appeal has been updated to reflect PennDOT's position. 2. The Appellee is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania, Department of Transportation, which has its principal place of business at the Riverfront Office Center, 1101 South Front Street, Harrisburg Pa 17104. 3. By way of an Official Notice bearing a mailing date of April 2, 2013, the Bureau of Driver's Licensing sought to revoke Petitioner's privilege of operating a motor vehicle pursuant to Section 1547(b)(1) of the Pennsylvania Vehicle Code for twelve (12) months, as a result of an alleged refusal to submit to chemical testing on March 1, 2013. See Exhibit A, which is a true and correct copy of the Bureau's Notice of Suspension. 4. Petitioner filed a timely Statutory License Appeal. See Exhibit B, which is a true and correct copy of Petitioner's Statutory License Appeal. 5. In said Statutory License Appeal, the Petitioner requested a supersedeas pursuant to 75 Pa. C.S.A. §1550(b)(1). 6. On November 22, 2013, this Honorable Court dismissed Petitioner's appeal and Reinstated his suspension. 7. Petitioner is filing his Notice of Appeal contemporaneously with this Application For Supersedeas Pending Appeal with this Honorable Court. 8. In order to be entitled to a stay or supersedeas pending appeal, a party must satisfy all of the following requirements: (1) the petitioner has made a strong showing that the petitioner is likely to prevail on the merits of the appeal; (2) the petitioner has shown that, without such relief, the petitioner will suffer irreparable harm; (3) the issuance of a stay or supersedeas would not substantially harm any other party interested in the proceeding; and (4) the issuance of a stay or supersedeas would not harm the public interest. Pennsylvania Public Utility Com'n v. Process Gas Consumers Group, 502 Pa. 545, 552-53, 467 A.2d 805, 808-09 (Pa. 1983). 9. Petitioner's appeal is meritorious. In a recent case, Missouri v. McNeely, 133 S.Ct. 1552 (2013), the United States Supreme Court(SCOTUS), in the context of DUI blood testing, there could no longer be justification to not get a search warrant when the justification was due to the single factor exigency analysis regarding the elimination of ethanol. In this case, the SCOTUS continued to interpret the Fourth Amendment to require, in all cases, that a totality of the circumstances test be used to determine whether exigent circumstances existed to excuse the need for a search warrant. Exigency cannot simply be based on the dissipation of ethanol in the accused motorist. In the cases of Commonwealth v. Quarless, 324 A.2d 452 (Pa. Super. 1974) and Com. v. Kohl, 576 Pa. 1049 (Pa. 1049), the Pennsylvania Superior and Pennsylvania Supreme Courts struck down 75 Pa.C.S.A. §1547(a)(2)which provided that individuals involved in an accident with injuries had given implied consent for a blood draw. However, Kohl and Quarless found 75 Pa.C.S.A. §1547(a)(1) was constitutional because it requires probable cause/ reasonable grounds be present before a test is requested. More specifically both cases found that a BAC test created exigent circumstances because of the risk of dissipation of the alcohol in the blood. However, McNeely makes it clear that dissipation of alcohol does not form per se exigent circumstances. In the present matter, there were no exigent circumstances present. Mr. Faircloth was taken to the booking center without delay and arrived in a prompt manner. 10. Additionally, the Petitioner will suffer irreparable harm if the Petitioner is not granted a Supersedeas Pending Appeal in this matter. If the Petitioner's Appeal were to be granted, the Petitioner would be placed in a highly detrimental situation in that he has been denied his operating privileges. Furthermore, the Petitioner currently serves as an outside sales representative. As such, the ability to drive to appointments is essential to him maintaining his employment. Therefore, if this Honorable Court was to deny the Petitioner's request for a Supersedeas Pending Appeal, this would operate as a fundamental detriment to the Petitioner with respect to his employment. In addition, the monetary loss to the Petitioner that would result would not be otherwise compensated and is, therefore, irreparable. 11. If the Petitioner's request for a supersedeas were granted by this Honorable Court, no other party would be substantially harmed. The Department of Transportation reinstated the Petitioner's operating privileges during the time period in which the Petitioner's Statutory License Appeal was pending before the trial court. Likewise, there exists no reason why the Department of Transportation would be prejudiced in doing so under these similar circumstances. Should the Petitioner be unsuccessful on appeal, he would still be required to serve his full suspension. 12. Under signed counsel has contacted Kelley Solomon, Office of Chief Counsel, Department of Transportation, who is not opposed to the request for a supersedeas. 13. Finally, if the Petitioner's request for a supersedeas were granted, the public interest would not be harmed. The Petitioner is simply requesting a delay be imposed pending the outcome of his appeal, such that he may retain his employment and attend to routine matters in the interim. 14. As a result, the Petitioner has satisfied each of the requirements necessary to obtain a supersedeas pending appeal. 15. Moreover, "[w]hen confronted with a case in which the other three factors strongly favor interim relief, a court may exercise its discretion to grant a stay if the movant has made a substantial case on the merits." Witmer v. Com., Dept. of Transp., Bureau of Driver Licensing, 889 A.2d 638 (Pa.Cmwlth.,2005). 16. Therefore, even if this Honorable Court were to determine that the Petitioner did not make such a showing, this Honorable Court should, in the exercise of its discretion, determine that the Petitioner is nevertheless entitled to a supersedeas pending appeal. • WHEREFORE, Dylan T. Faircloth, above-named, requests this Honorable Court enter a supersedeas of the Order of the Court of Common Pleas of Cumberland County dated November 22, 2013 and for such other relief as may be just under the circumstances. Respectfully submitted, The McShane Firm, LLC L Timothy M. Barrouk, Esquire Attorney for Petitioner 3601 Vartan Way Second Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 DYLAN T. FAIRCLOTH, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF : MOTION FOR STAY PENDING APPEAL PENNSYLVANIA, DEPARTMENT OF • TRANSPORTATION, • BUREAU OF DRIVER'S LICENSING, • Respondent AFFIDAVIT OF SERVICE I, Timothy M. Barrouk, Esquire, hereby certify that I am this day, January 10, 2014, serving the within document upon the person and in the manner indicated below, a true and correct copy of Dylan T. Faircloth's Amended Application for Supersedeas Pending Appeal by sending said copy to the Bureau of Driver's Licensing by United States Postal Service, via first class mail, addressed as follows: Kelly Solomon, Esquire Office of Chief Counsel Department of Transportation Riverfront Office Center—3d Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 This affirmation is made with the knowledge of the penalties of 18 P.S. §4904 relating to un-sworn falsification to authorities. Respectfully submitted, The McShane Firm, LLC Timothy M. Barrouk, Esquire Attorney for Petitioner 3601 Vartan Way Second Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 Qommoutueattb Court of Veuugprbania I', 1'' 2 ili 1 : Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 C Oh- A Attie,§tute 2100 Michael Krimmel,Esq. F'EN 6`S°j P Rod' 4,$1$5 Chief Clerk of Commonwealth Court Harrisburg,P7�1710 :91 i 5 January 10, 2014 www.pacourts.us NOTICE OF DOCKETING APPEAL RE: Faircloth, D v. Bureau of Driver Licensing 2237 CD 2013 Filed Date: December 16, 2013 Trial Court Docket No: 13-2396 CIVIL A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation,certification and transmission of the record. The address to which the Court is to transmit the record is set forth on the next page of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa.R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on the next page of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Participant Name Participant Type Timothy Matthew Barrouk, Esq. Dylan T. Faircloth Appellant Terrance M. Edwards, Esq. Bureau of Driver Licensing Appellee Kelly Edward Solomon, Esq. Bureau of Driver Licensing Appellee Address all written communications and direct all filings to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Filings may be made in person between 9:00 a.m. and 4:00 p.m. (except Saturdays, Sundays, and holidays observed by the Pennsylvania courts), by mail as provided by general rules, or as otherwise permitted by general rules of court. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA • DYLAN T. FAIRCLOTH • NO. 13-2396 CIVIL • v. • COMMONWEALTH OF PENNSYLVANIA, • DEPARTMENT OF TRANSPORTATION, • BUREAU OF DRIVER LICENSING RESPONSE OF THE DEPARTMENT OF TRANSPORTATION TO RULE TO SHOW CAUSE AND NOW comes the Department of Transportation, Bureau of Driver Licensing (hereinafter referred to as "Department") by and through its attorney, Kelly Edward Solomon, Assistant Counsel, and hereby respectfully represents as follows: 1. On December 16, 2013, Dylan T. Faircloth (hereinafter referred to as "Petitioner") filed an Application for Supersdeas Pending Appeal. 2. On January 3, 2014, this honorable Court issued a Rule upon the Department to show cause why the relief requested in the Petitioner's application should not be granted. 3. The Department has no objection to the Court granting the relief requested. 4. Although it does not object to the Petitioner's application, the Department does not waive any argument or challenge to any of the legal theories put forth by the Petitioner in his application. ? rn cs� Cr) ry "5g ": r:' --1 .S:' Respectfully submitted, Kelly Edward Solomon Assistant Counsel Office of Chief Counsel Riverfront Office Center-3rd Floor 1101 South Front Street. Harrisburg, PA 17104-2516 (717) 787-2830 Dated: January 15, 2014 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA • DYLAN T. FAIRCLOTH : NO. 13-2396 CIVIL v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, • • BUREAU OF DRIVER LICENSING CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania Rules of Civil Procedure: By first class mail, prepaid, addressed to: Timothy M. Barrouk, Esq. 3601 Vartan Way Second Floor Harrisburg, PA 17110 (6.2 Kelly Edward Solomon Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: January 15, 2014 V DYLAN T. FAIRCLOTH, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO: 13-2396 CIVIL COMMONWEALTH OF MOTION FOR STAY PENDING APPEAL PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent ORDER OF COURT AND NOW,this�day of ,'2014, upon consideration of the Appelant's Amended Application for Supercedeas Pending Appeal, said Motion is GRANTED. IT IS FURTHER ORDERED AND DECREED that Supersedeas is GRANTED and Appellant's driver's license is reinstated and shall not be revoked pending Appeal. It is further ordered that the Appellant shall notify the Department of Transportation of'the within order and supply a copy of the within petition to the Department of Transportation. BY THE COURT THOMAS A. PL EY, JUDGE Distribution: Kelly Solomon, Esquire Office of Chief Counsel, PennDOT �,l'imothy M. Barrouk, Esquire, The McShane Firm, LLC, 3601 Vartan Way, Second Floor, Harrisburg, PA 17110 LCVINVAUSININN ,��`y �Z ..I Wd 9- 83J IsGZ r TLED—OF HCr OF THE PRO THONG T 14i ( DYLAN T. FAIRCLOTH, 20i4 FEB 11+ API IQ: 13. ,,, lid; Plaintiff �� ' JJ. r►Ili '� J j 11 1r CUMBERLAND COUNTY , 1. I' 1 li PENNSYLVANIA •€i�J ��►�' : r psi►. v. ountp of tnmberinnb IN THE COURT OF COMMON PLEAS COMMONWEALTH OF OF THE NINTH JUDICIAL DISTRICT PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF 13-2396 CIVIL ACTION DRIVER LICENSING, Defendant IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Placey, C.P.J., 14 February 2014. HISTORY On 1 March 2013, a Pennsylvania State Police Trooper (hereinafter "Trooper") encountered Dylan T. Faircloth (hereinafter "Licensee") around 6:30 p.m. The police dispatch had received a call from an off-duty Corporal from the Newville Borough Police Department. Corporal indicated he was following a vehicle northbound on Interstate 81 that was driving very erratically; the vehicle had swerved numerous times and had almost caused a crash.' Trooper remained stationary in a highway crossover and observed a vehicle pass which matched the description provided by Corporal. Trooper then began to follow the vehicle and confirmed the license plate matched the one provided by Corporal.2 Trooper followed Licensee for approximately two minutes and 1 Notes of Testimony, In Re: Faircloth v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver's Licensing, 7, Nov. 13, 2013 (hereinafter"N.T."). 2 N.T. 10. saw the Licensee swerving within his lane and also outside of his lane, including crossing the fog line three times. Trooper then initiated a traffic stop.3 After Licensee finally pulled over, Trooper approached the vehicle at which time he noticed a bottle of vodka in the center console. The bottle was approximately 75% full.4 Licensee indicated he did not believe he was swerving or traveling outside the lane. When Trooper asked where Licensee was coming from, License stated he was coming from Harrisburg, even though he was traveling north on Interstate-81 toward Harrisburg; Trooper asked the question again and got the same response.5 During this interaction, Trooper noticed the odor of an alcoholic beverage coming from Licensee's breath, and he observed that Licensee appeared sluggish and slow to respond. When Trooper inquired about Licensee's consumption of alcohol, Licensee stated he had not had anything to drink that night.6 Trooper believed Licensee to be intoxicated and requested that the Middlesex Police Department have an officer respond with a Portable Breath Test (hereinafter "PBT").7 While waiting, Trooper asked Licensee to get out of the car and speak with him. Licensee agreed and Trooper noticed Licensee was leaning on the car to balance himself as he walked toward the rear of the car. Trooper then asked Licensee to 3 N.T. 10-11. 4 N.T. 11, 22. 5 N.T. 11. 6 N.T. 11-12. N.T. 12. Why Trooper felt this was necessary was not explained, nor would the refusal to take a PBT admissible in the criminal proceeding. See Commonwealth v. Marshall, 824 A.2d 323, 328 (Pa. Super. 2003). The refusal to submit to a PBT shall not be considered a chemical test refusal. 75 Pa.C.S. § 1547(k). 2 perform several field sobriety tests. Licensee agreed but could not perform each of the three tests administered.8 At that point, Trooper asked Licensee to submit to a PBT and Licensee refused. Trooper then placed Licensee under arrest for DUI.9 Trooper transported Licensee to Carlisle Regional Medical Center for a chemical blood test.10 Trooper read PennDOT form DL-26 verbatim to Licensee and signed it; Trooper then asked Licensee to sign the form to indicate Trooper had read the form to him, and Licensee signed his name. Trooper then asked Licensee if he would submit to the blood test and Licensee refused." Licensee was then transported to the Cumberland County booking center. As a result of these actions, Licensee's driving privileges were suspended for one year for refusal to submit to a chemical test pursuant to Section 1547 of the Vehicle Code.12 MATTERS COMPLAINED OF ON APPEAL Licensee appeals the 22 November 2013 order which dismissed Licensee's appeal and reinstated the suspension of his operating privileges. According to the Concise Statement of Matters Complained Upon Appeal Pursuant to Pa.R.A.P. § 1925(B), Licensee states the issue as follows: Whether the Trial Court erred by dismissing Appellant's Appeal. More specifically, whether the Appellant's constitutional rights were violated because there were no exigent circumstances that would justify a 8 N.T. 12-14. 9 N.T. 14. 10 N.T. 15. 11 Id. 12 N.T. 4 3 warrantless blood draw in Appellant's case. As such, whether the implied consent statute is constitutional as applied to Appellant. As support for his case, Licensee references Missouri v. McNeely, 133 S.Ct. 1552 (2013).13. DISCUSSION The Honorable Albert H. Masland's recent decision in Sprecher v. Comm., Dep't of Transp., Bureau of Driver Licensing, Docket 2013-2930 (Cumb. C.P. Nov. 20, 2013) (unpublished, attached), is directly on point. The facts in that case are remarkably similar to the facts in the instant matter. Sprecher was pulled over after an officer saw her vehicle swerving on the roadway. The officer observed that Sprecher exhibited signs of being under the influence. Sprecher did not refuse to perform the PBT but expelled very little air, which was the functional equivalent of refusing the PBT. Sprecher then failed several field sobriety tests, including two of the same tests administered to Licensee in this matter. Sprecher was then placed under arrest and taken to the Cumberland County Prison where the officer read the DL-26 form to her. Sprecher refused to submit to chemical testing and then appealed the suspension of her operating privileges. Sprecher too asserted that the suspension of her operating privileges was invalid under Missouri v. McNeely, 133 S. Ct. 1552 (2013), which held that an involuntary blood draw is a search under the Fourth Amendment and, as such, a warrant is generally required. Judge Masland clearly determined that the reliance on McNeely was 13 In McNeely, the United States Supreme Court held that whether a warrantless, involuntary blood draw of a drunk-driving suspect is reasonable must be determined on a case-by-case basis upon review of the totality of the circumstances. McNeely, 133 S.Ct. at 1563. 4 misplaced, as McNeely was a criminal case while Sprecher was a civil case regarding implied consent. Judge Masland noted that Sprecher mischaracterized the holding in McNeely, which was not that an involuntary blood draw is a search under the Fourth Amendment which generally requires a warrant. Instead it was noted that the true holding of McNeely was "whether the natural dissipation of alcohol in the bloodstream • establishes a per se exigency that suffices on its own to justify an exception of the warrant requirement for nonconsensual blood testing in drunk-driving investigations." McNeely, 133 S. Ct. at 1558. Judge Masland recognized, as does this Court, that McNeely merely examined whether the motion to suppress the results of the blood test due to the involuntary, warrantless blood draw was properly denied. In the instant case, Licensee was not forced to submit to an involuntary blood draw. Instead, Licensee was given the chance to submit to a blood draw and refused. The refusal to submit to the blood draw was in direct contravention to 75 Pa.C.S. § 1547(b) and resulted in Licensee's suspension of operating privileges.14 In the instant case, Licensee was pulled over by Trooper after Trooper received information that an off-duty officer felt Licensee may be driving under the influence and Trooper independently observed Licensee swerving on the roadway. Trooper 14 75 Pa.C.S. § 1547(b)(1)states that if any person placed under arrest for a violation under 75 Pa.C.S. § 3802 (related to driving under the influence) is requested to submit to chemical testing and refuses to submit, "the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person[.]" In order to ensure that the arrestee understands the consequences of refusal to submit to chemical testing, 75 Pa.C.S. § 1547(b)(2) places a duty on the police officer to inform the arrestee that said refusal will result in a suspension of the person's operating privileges. 5 approached Licensee's vehicle where he saw a bottle of alcohol in the center console, smelled alcohol emanating from Licensee, and noted that Licensee appeared disoriented based on Licensee's statement that he was coming from Harrisburg when in fact Licensee was driving toward Harrisburg. Trooper had reason to believe that Licensee was in violation of 75 Pa.C.S. § 3802, which was further corroborated by Licensee's failure of the field sobriety tests.15 Trooper had more than sufficient reason to believe that Licensee was under the influence of alcohol to warrant his arrest. After arresting Licensee for a violation under § 3802, Trooper informed him of the consequences of a refusal to submit to chemical testing, as required by 75 Pa.C.S. § 1547(b)(2), using the form DL-26. Based on Licensee's subsequent refusal to submit to chemical testing, 75 Pa.C.S. § 1547(b)(1) mandated that the Department of Transportation impose the civil consequence of suspension of operating privileges for one year upon Licensee. Licensee further asserted that the implied consent statute was not constitutional as applied in his case. Again, Judge Masland's opinion in Sprecher addressed this assertion. This Court adopts the reasoning of Sprecher and finds Licensee's argument to be without merit. The Pennsylvania Supreme Court expressly found that all drivers are deemed to consent to blood alcohol content tests when a police officer has reasonable grounds to believe the driver was driving under the influence and, thereby, upheld the implied consent statute. See Commonwealth v. Stair, 669 A.2d 1250, 1254 (Pa. 1997). Driving within the Commonwealth is a civil privilege and one requirement to exercise that privilege is that a motorist must submit to chemical testing when requested 15 No consideration was given to the refusal to submit to the PBT test. 6 to do so by a police officer in accordance with the Implied Consent Law. Id. at 1255-56. According to 75 Pa.C.S. § 1547(b)(1), a motorist in the Commonwealth of Pennsylvania has no constitutional right to refuse chemical testing. Id. at 1255. • As previously stated, Trooper had reasonable grounds to believe Licensee was driving under the influence. Trooper followed the provisions of the Implied Consent Law by requesting Licensee submit to the chemical testing and informing Licensee of the consequences of refusal. As such, Licensee had no valid constitutional right to refuse chemical testing and the implied consent statute was properly applied.16 CONCLUSION There is no error in dismissing Licensee's appeal as his constitutional rights were not violated by a warrantless blood draw. In fact, no blood was ever drawn from Licensee. The suspension of Licensee's driving privileges is a civil penalty imposed for his refusal to submit to chemical testing of his blood. Furthermore, the implied consent statute has been upheld by the Pennsylvania Supreme Court, and all provisions of the Implied Consent Law were followed in this case. For these reasons, this Court's 22 November 2013 Order dismissing Licensee's appeal and reinstating his suspension deserves to be affirmed. 16 Licensee was arrested for driving under the influence by a police officer who had reasonable grounds to believe he was operating a vehicle under the influence; Licensee was asked to submit to a chemical test, refused to do so, and was warned that refusal could result in a license suspension upon conviction for the underlying offense. Licensee has failed to prove that he was incapable of completing the requested chemical test or that his refusal was not knowing and conscious. See Vora v. Comm., Dep't of Transp., Bureau of Driver Licensing, 90 C.D. 2013(Pa. Cmwlth. Ct. Oct. 30, 2013) (stating the requirements to sustain a suspension of a licensee's operating privilege under Section 1547 of the Vehicle Code for refusal to submit to chemical testing.) 7 i BY THE C• Thomas A. acey C.P.J. Distribution: ,Kelly Edward Solomon, Esq. ✓ Timothy M. Barrouk, Esq. ,1-Cci— t21/4///zji 8 • A CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DYLAN T. FAIRCLOTH Vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING 2013-2396 CIVIL TERM 2237 CD 2013 The documents comprising the record have been numbered from No. 1 to 83, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 2/19/2014. tri 9 / David D. Buell, Prothonotary Alma Kostjerevac, I eputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title PYS511 Cumberland County Prothonotary' s Office Page 1 Civil Case Print 2013-02396 FAIRCLOTH DYLAN T (vs) PENNSYLVANIA COMMONWEALTH OF Reference No. . : Filed • 5/01/2013 Case Type • CIVIL APPEALS - AGENCI Time 10:37 Judgment .00 Execution Date 0/00/0000 Judge Assigned: PLACEY THOMAS A Jury Trial. . . . Disposed Desc. : DISMISSED Disposed Date. 2/14/2014 Case Comments Higher Crt 1. : 2237 CD 2013 Higher Crt 2 . : ******************************************************************************** General Index Attorney Info FAIRCLOTH DYLAN T PLAINTIFF BARROUK TIMOTHY M PENNSYLVANIA COMMONWEALTH OF DEFENDANT SOLOMON KELLY E TRANSPORATION BUREAU OF DRIVER THIRD FLOOR RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY �.— q 5/01/2013 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - BY TIMOTHY M BARROUK ATTY FOR APPELLANT 1 5/06/2013 ORDER @ 1:30 PM INNCR FOR A BY THE COURT HEARING COURTALBERT H MASLAND J - COPIES MAILED 5/6/13 /0 8/14/2013 ORDER DATED 8-14-13 IN RE APPEAL IS CONTINUED AND RESCHEDULED TO OCTOBER 2 2013 AT 1 30 PM IN CR 5 - BY THE COURT ALBERT H MASLAND J- COPIES MAILED 8-15-13 1/ 10/03/2013 ORDER - 10/2/13 - APPEAL FILED IS CONTINUED AND RESCHEDULED FOR 11/13/13 @ 1:30 PM IN CR 6 CUMB CO COURTHOUSE - BY THE COURT CHRISTYLEE L PECK J - COPIES MAILED 10/3/13 i2-1q 11/22/2013 ORDER - 11/22/13 - IN RE: APPEAL *DISMISSED* AND SUSPENSION SHALL BE REINSTATED - BY THE OCURT THOMAS A PLACEY J COPIES MAILED 11/22/13 2O-,2,2 12/16/2013 NOTICE OF APPEAL TO COMMONWEALTH COURT - BY TIMOTHY M BARROUK ATTY FOR APPELLANT P-1 241) 12/16/2013 APPLICATION FOR SUPERSEDEAS PENDING APPEAL - BY TIMOTHY M BARROUK ATTY FOR APPELLANT 3 Q 12/20/2013 ORDER OF COURT - 12/19/13 - IN RE: NOTICE OF APPEAL - CONCISE STATEMENT OF ERRORS COMPLAINED OF ON APPEAL SHOULD BE FILED NO LATER THAN 21 DAYS AFTER ENTRY OF THIS ORDER OF COURT - BY THE COURT THOMAS A PLACEY J - COPIES MAILED 12/20/13 3 1/03/2014 ORDER OF COURT - 1/3/14 - IN RE: APPLICATION FOR SUPERSEDEAS v` PENDING APPEAL - RULE ISSUED UPON RESPONDENT TO SHOW CAUSE - RULE RETURNABLE 20 DAYS FROM DATE OF SERVICE - BY THE COURT THOMAS A PLACEY J - COPIES MAILED 1/3/14 3) - 32, 1/08/2014 M CONCISE APPELOF COMPLAINED UPON APPEAL - BY TIMOTHY 3 (-- ,3g1/13/2014 BARROUK ATTY ICATIONTIOIOSUPERSEDEAS PENDING APPEAL - BY TIMOTHY M 3q - al/13/2014 TRANSCRIPT OF PROCEEDINGS - 11/131/13 - BEFORE HONORABLE THOMAS A 0-_ + 11/21/2014 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2237 CD 2013 111t11/21/2014 RESPONSE OF THE DEPT OF TRANSPORTATION TO RULE TO SHOW CAUSE - BY 2- KELLY EDWARD SOLOMON ATTY FOR DEFT 332/06/2014 ORDER OF COURT DATED 2-6-14 IN RE AMENDED APPLICATION FOR APPEAL - PYS511 Cumberland County Prothonotary' s Office Page 2 • Civil Case Print 2013-02396 FAIRCLOTH DYLAN T (vs) PENNSYLVANIA COMMONWEALTH OF Reference No. . : Filed 5/01/2013 Case Type • CIVIL APPEALS - AGENCI Time 10:37 Judgment .00 Execution Date 0/00/0000 Judge Assigned: PLACEY THOMAS A Jury Trial. . . . Disposed Desc. : DISMISSED Disposed Date. 2/14/2014 Case Comments Higher Crt 1. : 2237 CD 2013 Higher Crt 2 . : MOTION IS *GRANTED* - SUPERSEDEAS IS *GRANTED* - BY THE COURT THOMAS A PLACEY J- COPIES MAILED 2-7-14 q5---82 , 2/14/2014 OPINIONJPURSUANTSTOAIAED P/19254 2/14/14 - BY THE COURT THOMAS A 2/19/2014 NOTICE OF DOCKET ENTRIES MAILED TO KELLY E SOLOMON ESQ AND TIMOTHY M BARROUK ESQ LAST ENTRY ************ ****************************************************************** * Escrow Information * * Fees & Debits Beg Bal Pymts/Adj End Bal * ******************************** ******** ****** ******************************* PETITION 65.25 65 .25 . 00 TAX ON PETITION .50 .50 . 00 SETTLEMENT 9. 50 9 .50 . 00 AUTOMATION FEE 5. 00 5 . 00 . 00 JCP FEE 23 . 50 23 . 50 . 00 APPEAL HIGH CT 57. 00 57 . 00 . 00 160. 75 160 . 75 . 00 ******************************************************************************** * End of Case Information * ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof,I here unto set my hand and the s al of said Court CC rlisle,Pa. This /4o.day of __�.�sl ,20 Prothonotary yb,AlPfeaC ,0& Commonwealth of Pennsylvania County of Cumberland Ss: 1, David D.Buell , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full,true and correct copy of the whole record of the case therein stated, wherein DYLAN T.FAIRCLOTH Plaintiff, and COMMONWEALTH OF PENNSYLVANIA,DEPARTMENT OF TRANSPORTATION,BUREAU OF DRIVER'S LICENSING Defendant, as the same remains of record before the said Court at No. 2013-2396 f Civil Term.2237 G>7 a In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 19TH day of ' ARY A. D., 2014 (074.4.„ Prothonotary Kevin A.Hess President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that David D.Buell , by whom the annexed record, certificate and attestation were made and given,and who,in his own proper handwriting,thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County,was,at the time of so doing,and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania,duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere,and at the said record, certificate and attestation are in due form of law and made by t roper officer. Wit President Judge Commonwealth of Pennsylvania County of Cumberland ss: l David D.Buell , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A.Hess by whom the foregoing attestation was made,and who has thereunto subscribed his name,was,at the time of making thereof,and still is President Judge of the Court of Common Pleas,Orphan'Court and Court of Quarter Sessions of the Peace in and for said County,duly Commissioned and qualified;to all whose acts as such full faith and credit are and ought to be given. as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I ha hereunto set my hand and affixed the seal of sa'A Court this 19TH d. of FE:':UARY � . A. 2014 ME' i/ 41111°.' Prothonotary No. Term 19 2013-2396 CIVIL TERM No. 2237 CD 2013 DYLAN T. FAIRCLOTH Versus COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING EXEMPLIFIED RECORD Cumberland From County Debt, $ I nt. from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county c'' in the Commonwealth of Pennsylvania 2013-2396 CIVIL TERM to No. 2237 CD 2013 Term. 19 is contained the following: COPY OF Appearance DOCKET ENTRY DYLAN T. FAIRCLOTH Vs. COMMONWEALTH OF PENNSYLVANIA,DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING **SEE CERTIFIED COPY OF DOCKET ENTERIES** CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: DYLAN T. FAIRCLOTH Vs. _T9 rn COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT'fF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING-' 2013-2396 CIVIL TERM 2237 CD 2013 The documents comprising the record have been numbered from No. 1 to 83, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 2/19/2014. 7)-7Z)-%Afi David D. Buell, Prothonotary Alma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dylan T. Faircloth, v. : No. 2237 C.D. 2013 Appellant : Submitted: May 16, 2014 c Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing Low,,rCI-. �x,VA 13 - 239 b ex ✓i (-- BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: July 1, 2014 Dylan T. Faircloth (Licensee) appeals from the November 22, 2013, order of the Court of Common Pleas of Cumberland County (trial court), which dismissed Licensee's appeal from the operating privilege suspension imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) for Licensee's refusal to submit to chemical testing after his arrest for violating section 3 802 of the Vehicle Code.' We affirm. On April 2, 2013, DOT suspended Licensee's operating privilege, effective May 7, 2013, for one year for his refusal to submit to chemical testing on 75 Pa. C.S. §3802. Section 3802 of the Vehicle Code relates to driving under the influence (DUI) of alcohol or a controlled substance. March 1, 2013, in violation of section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1), commonly referred to as the Implied Consent Law. Licensee appealed, and the trial court held a de novo hearing on November 13, 2013. At the hearing, Pennsylvania State Trooper Scott Bowes testified that, on March 1, 2013, an off-duty corporal from the Newville Borough Police Department began to follow a vehicle traveling northbound on Interstate 81 in Cumberland County that was moving erratically, swerving, and had almost crashed. The off-duty corporal called the dispatcher, who then relayed the information to Trooper Bowes. Trooper Bowes located the vehicle and followed it for approximately two minutes. (Trial Ct. Op., 2/14/14, at 1.) Trooper Bowes observed the vehicle swerve in and out of its lane and cross the fog line three times. After the vehicle crossed the fog line for the third time, Trooper Bowes pulled it over. Trooper Bowes observed Licensee operating the vehicle, a bottle of vodka in the center console, and smelled an odor of alcohol on Licensee's breath. Trooper Bowes asked Licensee where he was coming from and Licensee responded, "Harrisburg." However, Licensee was traveling north on Interstate 81 toward Harrisburg. Trooper Bowes observed that Licensee was a little sluggish and slow to respond. Licensee denied having had anything to drink, whereupon Trooper Bowes asked him to exit the vehicle. (Id. at 2.) 2 Trooper Bowes administered a number of field sobriety tests, which Licensee could not complete.' Licensee then refused to submit to a preliminary breath test. Trooper Bowes placed Licensee under arrest for DUI and transported him to the hospital for a blood test. (Id. at 2-3.) At the hospital, Trooper Bowes read Form DL -26, which contains the implied consent warnings, to Licensee. Licensee agreed to sign the form but refused to take the blood test. The hospital did not administer the blood test. (Id. at 3.) Following Licensee's cross-examination of Trooper Bowes, DOT rested. Licensee did not testify or offer any other evidence. On November 22, 2013, the trial court dismissed Licensee's appeal. Licensee now appeals to this court.3 Licensee contends that the trial court erred in dismissing his appeal because no exigent circumstances justified a warrantless blood draw and, therefore, the blood draw violated Licensee's rights under the Fourth Amendment to the United States Constitution.' Specifically, Licensee cites Missouri v. McNeely, 133 S. Ct. 1552 (2013), and contends that the Implied Consent Law is unconstitutional as 2 Licensee testified that he informed Trooper Bowes that he had knee problems that could potentially compromise the result of the field tests. 3 Our scope of review is limited to determining whether the trial court's decision is supported by substantial evidence, whether an error of law occurred, or whether the decision indicates a manifest abuse of discretion. Stahr v. Department of Transportation, Bureau of Driver Licensing, 969 A.2d 37, 39 n.2 (Pa. Cmwlth. 2009). 4 The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Constitution, Amend. IV. 3 applied because the Fourth Amendment protects Licensee's right to deny consent to a warrantless blood draw where exigent circumstances are not present. In Missouri, McNeely was asked to submit to chemical testing, he refused and the arresting officer, without obtaining a warrant, directed the hospital staff to take a blood sample. McNeely tried to suppress the results in a criminal matter, arguing that the warrantless blood draw violated his Fourth Amendment rights. The issue before the United States Supreme Court was "whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk -driving investigations." Id., at 1558. The Supreme Court held that in a drunk -driving case, whether a warrantless blood draw is reasonable must be determined on a case-by-case basis, considering the totality of the circumstances. Id. at 1563. However, Missouri does not apply to the present controversy. Missouri relates to suppression of an involuntary blood draw in a criminal matter, see id. at 1557, whereas this case involves the civil consequences of refusing to submit to a blood draw. Licensee was not forced to provide a blood sample or subjected to a search against his will after he refused; he merely forfeited his operating privilege as a result of the refusal. See also Vora v. Department of Transportation, Bureau of Driver Licensing, 79 A.3d 743, 747 (Pa. Cinwlth. 2013), appeal denied, A.3d _, 2014 Pa. LEXIS 1001 (Pa., No. 931 MAL 2013, filed April 16, 2014). (finding that reliance on a criminal case is misplaced in an administrative appeal from a license suspension). Licensee was not subjected to a search against his will. 4 The Pennsylvania Supreme Court has determined that under 75 Pa. C.S. §1547(b), a licensee has "no constitutional right to refuse chemical testing" because "driving in Pennsylvania is a civil privilege conferred on individuals who meet the necessary qualifications set forth in the Vehicle Code." Commonwealth v. Stair, 699 A.2d 1250, 1255 (Pa. 1997). [O]ne of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to chemical sobriety testing, when requested to do so by an authorized law enforcement officer in accordance with the prerequisites of the Implied Consent Law.[5] The obligation to submit to testing is related specifically to the motorist's continued enjoyment of the privilege of maintaining his operator's license. Id. at 1255-56. Therefore, Licensee did not have a constitutional right to refuse the blood draw.6 5 Section 1547(a) of the Implied Consent Law provides in relevant part: 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 ... 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 ... . 75 Pa. C.S. §1547(a) (emphasis added). 6 Licensee also contends that the Implied Consent Law is unconstitutional because section 3804(c) of the Vehicle Code, 75 Pa. C.S. §3804(c), authorizes enhanced criminal punishment for exercising a constitutional right to deny a chemical blood draw. We note that any enhanced punishment pursuant to section 3804(c) of the Vehicle Code is not before this court because that punishment is criminal in nature. The only issues before this court are the civil consequences facing Licensee under the Implied Consent Law. 5 Accordingly, we affirm. 6 MAN, Senior Judge ti IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dylan T. Faircloth, : No. 2237 C.D. 2013 v. Appellant Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this lst day of July r. CD , 2014, we hereby affirm the November 22, 2013, order of the Court of Common Pleas of Cumberland County. ROCHELLE S. FRIEDMAN, Senior Judge Certified from the Record JUL - 1 2014 and Order Eqpt Amy Dreibclbis, Esq. Deputy Prothonotary Elizabeth E. Zisk Chief Clerk iiuprermme Court of Veuu5ptbanta Middle District August 1, 2014 RE: Dylan T. Faircloth, Petitioner v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Respondent No. 533 MAL 2014 Trial Court Docket No: 13-2396 CIVIL Commonwealth Docket Number: 2237 CD 2013 601 Commonwealth Avenue, Suite 4500 P.O. Box 62575 Harrisburg, PA 17106 (717) 787-6181 www.haeourts.us Appeal Docket No: o Z = . rri Date Petition for Allowance of Appeal Filed: July 31, 2014 z b., r Disposition:A f c Disposition Date: < �r > 231*. --t l Reargument/Reconsideration Disposition: ]z� - c -- _ M� 4,1 Reargument/Reconsideration Disposition Date: /ed cc: Buell, David D., Prothonotary /3 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dylan T. Faircloth, : No. 2237 C.D. 2013 Appellant : v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing PER CURIAM ORDER NOW, this 5th day of September, 2014, it is ordered that the above -captioned Memorandum Opinion, filed July 1, 2014, shall be designated OPINION and shall be REPORTED. Certified from the Record SEP - 5 2014 and Order Exit IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dylan T. Faircloth, v. : No. 2237 C.D. 2013 Appellant : Submitted: May 16, 2014 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION BY SENIOR JUDGE FRIEDMAN FILED: July 1, 2014 Dylan T. Faircloth (Licensee) appeals from the November 22, 2013, order of the Court of Common Pleas of Cumberland County (trial court), which dismissed Licensee's appeal from the operating privilege suspension imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) for Licensee's refusal to submit to chemical testing after his arrest for violating section 3802 of the Vehicle Code.' We affirm. On April 2, 2013, DOT suspended Licensee's operating privilege, effective May 7, 2013, for one year for his refusal to submit to chemical testing on 75 Pa. C.S. §3802. Section 3802 of the Vehicle Code relates to driving under the influence (DUI) ofalcohol or a controlled substance. March 1, 2013, in violation of section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1), commonly referred to as the Implied Consent Law. Licensee appealed, and the trial court held a de novo hearing on November 13, 2013. At the hearing, Pennsylvania State Trooper Scott Bowes testified that, on March 1, 2013, an off-duty corporal from the Newville Borough Police Department began to follow a vehicle traveling northbound on Interstate 81 in Cumberland County that was moving erratically, swerving, and had almost crashed. The off-duty corporal called the dispatcher, who then relayed the information to Trooper Bowes. Trooper Bowes located the vehicle and followed it for approximately two minutes. (Trial Ct. Op., 2/14/14, at 1.) Trooper Bowes observed the vehicle swerve in and out of its lane and cross the fog line three times. After the vehicle crossed the fog line for the third time, Trooper Bowes pulled it over. Trooper Bowes observed Licensee operating the vehicle, a bottle of vodka in the center console, and smelled an odor of alcohol on Licensee's breath. Trooper Bowes asked Licensee where he was coming from and Licensee responded, "Harrisburg." However, Licensee was traveling north on Interstate 81 toward Harrisburg. Trooper Bowes observed that Licensee was a little sluggish and slow to respond. Licensee denied having had anything to drink, whereupon Trooper Bowes asked him to exit the vehicle. (Id. at 2.) 2 Trooper Bowes administered a number of field sobriety tests, which Licensee could not complete.' Licensee then refused to submit to a preliminary breath test. Trooper Bowes placed Licensee under arrest for DUI and transported him to the hospital for a blood test. (Id. at 2-3.) At the hospital, Trooper Bowes read Form DL -26, which contains the implied consent warnings, to Licensee. Licensee agreed to sign the form but refused to take the blood test. The hospital did not administer the blood test. (Id. at 3.) Following Licensee's cross-examination of Trooper Bowes, DOT rested. Licensee did not testify or offer any other evidence. On November 22, 2013, the trial court dismissed Licensee's appeal. Licensee now appeals to this court.' Licensee contends that the trial court erred in dismissing his appeal because no exigent circumstances justified a warrantless blood draw and, therefore, the blood draw violated Licensee's rights under the Fourth Amendment to the United States Constitution.' Specifically, Licensee cites Missouri v. McNeely, 133 S. Ct. 1552 (2013), and contends that the Implied Consent Law is unconstitutional as applied because the Fourth Amendment protects Licensee's right to deny consent to a warrantless blood draw where exigent circumstances are not present. 2 Licensee testified that he informed Trooper Bowes that he had knee problems that could potentially compromise the result of the field tests. 3 Our scope of review is limited to determining whether the trial court's decision is supported by substantial evidence, whether an error of law occurred, or whether the decision indicates a manifest abuse of discretion. Stahr v. Department of Transportation, Bureau of Driver Licensing, 969 A.2d 37, 39 n.2 (Pa. Cmwlth. 2009). 4 The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Constitution, Amend. IV. In Missouri, McNeely was asked to submit to chemical testing, he refused and the arresting officer, without obtaining a warrant, directed the hospital staff to take a blood sample. McNeely tried to suppress the results in a criminal matter, arguing that the warrantless blood draw violated his Fourth Amendment rights. The issue before the United States Supreme Court was "whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk -driving investigations." Id., at 1558. The Supreme Court held that in a drunk -driving case, whether a warrantless blood draw is reasonable must be determined on a case-by-case basis, considering the totality of the circumstances. Id. at 1563. However, Missouri does not apply to the present controversy. Missouri relates to suppression of an involuntary blood draw in a criminal matter, see id. at 1557, whereas this case involves the civil consequences of refusing to submit to a blood draw. Licensee was not forced to provide a blood sample or subjected to a search against his will after he refused; he merely forfeited his operating privilege as a result of the refusal. See also Vora v. Department of Transportation, Bureau of Driver Licensing, 79 A.3d 743, 747 (Pa. Cmwlth. 2013), appeal denied, ______ A.3d 2014 Pa. LEXIS 1001 (Pa., No. 931 MAL 2013, filed April 16, 2014). (finding that reliance on a criminal case is misplaced in an administrative appeal from a license suspension). Licensee was not subjected to a search against his will. 4 The Pennsylvania Supreme Court has determined that under 75 Pa. C.S. § 1547(b), a licensee has "no constitutional right to refuse chemical testing" because "driving in Pennsylvania is a civil privilege conferred on individuals who meet the necessary qualifications set forth in the Vehicle Code." Commonwealth v. Stair, 699 A.2d 1250, 1255 (Pa. 1997). [O]ne of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to chemical sobriety testing, when requested to do so by an authorized law enforcement officer in accordance with the prerequisites of the Implied Consent Law.[5] The obligation to submit to testing is related specifically to the motorist's continued enjoyment of the privilege of maintaining his operator's license. Id. at 1255-56. Therefore, Licensee did not have a constitutional right to refuse the blood draw.6 5 Section 1547(a) of the Implied Consent Law provides in relevant part: 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 ... 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 ... . 75 Pa. C.S. §1547(a) (emphasis added). 6 Licensee also contends that the Implied Consent Law is unconstitutional because section 3804(c) of the Vehicle Code, 75 Pa. C.S. §3804(c), authorizes enhanced criminal punishment for exercising a constitutional right to deny a chemical blood draw. We note that any enhanced punishment pursuant to section 3804(c) of the Vehicle Code is not before this court because that punishment is criminal in nature. The only issues before this court are the civil consequences facing Licensee under the Implied Consent Law. 5 Accordingly, we affirm. ROCHELLE S. �.'- ROCHELLEME MAN Senior Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dylan T. Faircloth, v. Appellant Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing • No. 2237 C.D. 2013 ORDER AND NOW, this 1 day of July, 2014, we hereby affirm the November 22, 2013, order of the Court of Common Pleas of Cumberland County. 13 .237 .6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dylan T. Faircloth, v. Appellant Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing : No. 2237 C.D. 2013 ORDER AND NOW, this 4th day of September , 2014, we hereby deny the application for supersedeas filed by Dylan T. Faircloth. OCHELLE S. F 1ED Senior Judge , Certifiedfrom the Recoil SEP:0 5 .2014 And Order Exit ; •••;',T, •