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Home My WebLink About13-2399 Supreme Coufy_of^Pennsylvania Court..4 Common Pleas For Prothonotary Use Only: } � �� heet ley I� Civil)Cov_J,S/ Docket No: -W m1C'C;"ICA A' County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S f.i Complaint LO_ Writ of Summons !x' Petition E Transfer from Another Jurisdiction 0 Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T James Miscovich Commonwealth of Pennsylvania Dollar Amount Requested: Owithin arbitration limits I Are money damages requested? I-w Yes IX No (check one) Ejoutside arbitration limits O N Is this a Class Action Suit? -6 Yes RX No Is this an MDJAppeal? 0 Yes iX No A Name of PlaintifflAppellant's Attorney: John B. Dougherty 0 Check here if you have no attorney(are a Self-Represented [Pro Sep Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS El Intentional 1 Buyer Plaintiff Administrative Agencies El Malicious Prosecution El Debt Collection: Credit Card E Board of Assessment 0 Motor Vehicle [17 Debt Collection: Other E Board of Elections 0 Nuisance 0 Dept.of Transportation Q Premises Liability El Statutory Appeal: Other SQ Product Liability(does not include E mass tort) I❑— Employment Dispute: Slander/Libel/Defamation Discrimination 0 C El Other: 1 Employment Dispute:Other C Zoning Board T. 0 Other: Driver's License Suspension I 0 Other: Appeal O MASS TORT 3 Asbestos N E] Tobacco F1 Toxic Tort-DES E] Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Other: 0 Ejectment M Common Law/Statutory Arbitration B 0 Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent : Mandamus R Landlord/Tenant Dispute 0 Non-Domestic Relations 0 Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial F1 Quo Warranto C+ Dental 0 Partition 17 Replevin El Legal EJ Quiet Title 0 Other: Medical 1= Other: Other Professional: Updated 1/1/2011 F1LED-OF F IGE _ THE "0Tg0,14.9Tr RY �,�3� � }'c. IF,i i i 1 l!1 Nc i i l 2013 MAY —1 AM 11. 0 04 Jo1r1 B.Dougherty, Esquire Pa. I.D.No. 70680 CUMBERLA-40 COUNTY IRA H. WEINSTOCK,P.C. PENNSYLVANIA 800 North Second Street Harrisburg,PA 17102 Telephone: 717-238-1657 Attorneys for: Pax: 717-238-6691 PLAINTIFF JAMES MISCOVICH IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiff, vs. No. 13 9M COMMONWEALTH OF PENNSYL- VANIA, Defendant. CIVIL ACTION - LAW APPEAL FROM ORDER OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SUSPENDING DRIVING PRIVILEGE TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, Petitioner, James Miscovich, by and through his attorneys, IRA H. WEINSTOCK, P.C., respectfully submits this petition for an appeal from the order of the Pennsylvania Department of Transportation suspending his driving privileges and, in support thereof, avers the following: 1. The Court has jurisdiction over the instant Petition pursuant to 42 Pa. C.S.A. § 933(a)(1)(ee) and 75 Pa. C.S.A. § 1550. 2. Petitioner, James Miscovich, is an adult individual currently residing at 448 Shed Road, Newvil.le, PA, 17241. 2$9IN0 3. Petitioner currently possesses a valid Pennsylvania operator's license, License No. 27471.674. 4. On or about April 2, 2013, a letter was issued from the Pennsylvania Department of Transportation suspending Plaintiff's driving privilege effective May 7, 2013 for one year as a result of a violation of 1547 of the Pennsylvania Vehicle Code, Chemical Test Refusal on March 2, 201.3. See Exhibit"A" attached hereto. 5. On March 2, 2013, after being arrested for a suspected violation of 3802 of the Pennsylvania Vehicle Code, DUI, the Commonwealth transported the Plaintiff to the Cunnberland County Booking Center for chemical testing. 6. While at the booking center, the Commonwealth alleges that the Plaintiff was read the "DL 26 test." 7. After being read the "DL 26 test"the Plaintiff requested a lawyer which the Commonwealth concluded was a refusal. 8. The action of the Pennsylvania Department of Transportation is erroneous and should be stayed pending final decision by the Court for the following reasons: (a) The Pennsylvania Department of Transportation failed to act in accordance with the law; (b) The Commonwealth failed to properly notify the Petitioner of his rights as required by Commonwealth v. O'Connell prior to the Petitioner's alleged refusal. (c) The Commonwealth failed to properly notify the Petitioner of the consequences of a refusal. 2 (d) The Commonwealth failed to adequately explain that the right to counsel did not apply to a request for chemical testing. (e) The Plaintiff did not make a knowing and conscious refusal of chemical testing. WHEREFORE, Petitioner prays that this matter be set down for a hearing and that the Order of the Department of Transportation disqualifying his privilege to drive a motor vehicle be stayed pending final decision by the Court. Respectfully Submitted, IRA H. WEINSTOCK, P.C. 800 North Second Street Harrisburg, PA 17102 Phone: 717-238-1657 B • OHN B. DOUGHER Attorney I.D. No. 70680 3 COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF DAUPHIN ) I: verify that the statements made in the attached PETITION are true and correct. I understand that false statements herein are made subject to the penalties set forth in 18 Pa.C.S. 54904.relating to unsworn falsification to authorities. DATED: 5 /-3 JAMES MISCOVICH Received: Apr 2 ZU13 UJ:39pm 43 3:38 PM FAX 7177764362 BIG SPRING PHARMACY 0002/0003 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 APRIL 02, 2013 JAMES MICHAEL MISCOVICH WID 0 130856680094438 002 448 SHED RD PROCESSING DATE 03/26/2013 DRIVER LICENSE # 27471674 NEWVILLE PA 17241 DATE OF BIRTH 04/10/1973 Dear Motorist : This is an Official Notice of Disqualification of your com- mercial driving privilege as authorized by Section 1613 of the Pennsylvania Vehicle Code as a result of your violation in Pennsylvania . Your driving record reflects a violation on 03/02/2013 of 1547 of the Pennsylvania Vehicle Code,. CHEMICAL TEST RE- FUSAL. Your commercial driving privilege is disqualified for a Pe- riod of I YEAR(S) effective 05/07/2013 at 12:01 A.M. Xn order to comply With this sanction you are required to return any .current driver's license, learner's permit and/or temporary driver's license (camera card) in your possession no later than the effective date listed. If you cannot comply with the requirements stated above, you are required to submit a DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving Privi- lege . Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for Prosecution under SECTION 1571(a) (4) of the Ve- hicle Code. Although the laiW_mandates that* Your driving - privilege is under disqualification even if you do not surrender your license, credit will not begin until all current driver 's license product (s) , the DL16LC Form, or a letter acknowl- , edging Your sanction is received in this Bureau . WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The above mentioned sanction is in addition to any pre- viously issued sanction(s) . EXHIBIT 44A99 xeceivea: Hpr Z tu13 u3:3ypm •,3 3:39 PM FAX 7177764362 BIG SPRING PHARMACY 0003/0003 13085668009443€3 You have the right to appeal the Department 's action to the Court of Common Pleas (Civil Division) within 30 days of the mail date (APRIL 02, 2013) of this notice . You must still send in your license before the effective date of disquali- fication unless you show the Court that you have a reason- able likelihood of succeeding in the appeal and receive an order permitting you to continue to drive. PLEASE NOTE that this Civil Appeal is in addition to any appeal you have to file from the criminal conviction. AFTEW -T-ftE- -APff-_AL--itAS BEEN-"FAD- TN-'"THE --COUNTY 'Cot1IRT,' A—"'... - -- -- TIME-STAMPED CERTIFIED COPY OF THE APPEAL, MUST BE SENT BY CERTIFIED MAIL TO: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL THIRD FLOOR$ RIVERFRONT OFFICE CENTER HARRISBURG, PA. 17104 Sincerely, ' Janet L. Dolan, Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/TO: INFORMATION (8: 00 AM TO- 5:00 PM) Department of Transportation IN STATE 1-800-932-4600 Bureau of Driver Licensing OUT-OF-STATE 717-412-5300 P.O. Box 68693 TOD IN STATE 1-800-228-0676 -- - Harrisburg , PA 17106-8693 TDD OUT70F_STATE 717-412-5380 CERTIFICATE OF SERVICE AND NOW, this � —day of rMoLq 2013, I, John B. Dougherty, Esquire, attomey for Petitioner, hereby certify that I served the within PETITION FOR APPEAL FROM ORDER OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SUSPENDING DRIVING PRIVILEGE this day by depositing the same in the United States nna11, postage prepaid, in the post office at Harrisburg, Pennsylvania, addressed to: By Certified Mail, Return Receipt Requested: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 By: 6, JOHN B. DOT E Y t GAMES MISCOVICH, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiff, vs. No. COMMONWEALTH OF PENNSYL- VANIA, - s Min Defendant. CIVIL ACTION - LAWS' Cis f 7)6 PRELIMINARY ORDER AND NOW, this day of , 2013, upon consideratioQ f : foregoing Petition, a hearing is granted to dete ine whether the action of the Pennsylvania Department of Transportation in suspending the driving privileges of Petitioner should be set aside. The action of the Pennsylvania Department of Transportation in suspending the driving privileges of Petitioner is hereby stayed pending final decision by the Court. A hewing is fixed for OW4660J / , 2013, at /:-V a n./p.m. in Courtroom No. aild Petitioner shall notify the Pennsylvania Department of Transportation forthwith. BY THE COURT: J. DISTRIBUTION: &,1ohn B. Dougherty, Esquire, 800 North Second Street, Harrisburg, PA, 17102 .(Phone: 717-238-1657; Facsimile: 717-238-6691; e-mail: johri.dougherty@verizon.net) i/PemiDOT, Office of the Chief Counsel, Riverfront Office Center, .5 Floor, Harrisburg, PA, 1.71.04-2516 (Phone: 717-787-2830; Facsimile: 717-705-1122) 4 - )R i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY JAMES M. MISCOVICH NO. 13-2399 CIVIL TERM Petitioner DRIVER LICENSE V. SUSPENSION APPEAL AND COMMONWEALTH OF PENNSYLVANIA, COMMERCIAL DRIVER DEPARTMENT OF TRANSPORTATION, LICENSE DISQUALIFICATION BUREAU OF DRIVER LICENSING, APPEAL Respondent 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 No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: a J. Attest: John B. Dougherty, Esq., 800 North Second Street, Harrisburg, PA 17102 �ilip M. Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, Riverfront Office Center, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 • • �.Q,7 xr. `7 < ` �M ° CD 3--- JAMES M. MISCOVICH, : IN THE COURT OF COMMON Petitioner : PLEAS OF CUMBERLAND : CUMBERLAND COUNTY v. • • COMMONWEALTH OF PENNSYLVANIA, : NO. 13-2399 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: REMANDED to the Department of Transportation for correction of its records. DISMISSED and the suspension which is the basis of this appeal shall be REINSTATED. SUSTAINED and the suspension which is the basis of this ' appeal shall be RESCINDED. WITHDRAWN and the suspension which is the basis of this appeal shall be REINSTATED. CONTINUED and RESCHEDULED for the day of • , 2013, at .m., in Courtroom L. Room No. of the Cumberland County Courthouse, ° Carlisle, Pennsylvania. CD 0 i BY THE COURT: .1 n COW e‘"--14t- Zif)- A4 J. Attest: •John B. Dougherty, Esq., 800 North Second Street, Harrisburg, PA 17102 ✓Philip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 /U 3/13