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Home My WebLink About14-0004 Supreme Cou tlofTennsylvania Cow Pleas For Prothonotary Use Only: Cavil C6ver)SAe t Docket No: •1�1,1� 7 �1; t., CUMBP-R17�1Nb �, , ., Coun ' The information collected on this form is used solely.for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: S El Complaint D Writ of Summons Petition Transfer from Another Jurisdiction r Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: JEFFREY W. MONTGOMERY COMMONWEALTH OF PENNSYLVANIA, DEPARTMEd T Dollar Amount Requested: Dwithin arbitration limits I Are money damages requested? D Yes R No (check one) Doutside arbitration limits O N Is this a Class Action Suit? Yes CR No Is this an MDJAppeal? 0 Yes ER No A Name of Plaintiff/Appellant's Attorney: Timothy M. Barrouk, Esquire 0' Check here if you have no attorney(are a Self-Represented [Pro Se] 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 F1 Intentional [I Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution i=1 Debt Collection:Credit Card D Board of Assessment 0 Motor Vehicle El Debt Collection:Other E] Board of Elections Nuisance jX Dept.of Transportation D Premises Liability 3 Statutory Appeal:Other S 0 Product Liability(does not include tort) E! Employment Dispute: muss E Discrimination 0 Slander/Libel/Defamation E3 Employment Dispute:Other [3 Zoning Board C E] Oiher: D Other: T I M Other: O MASS TORT D Asbestos N D Tobacco Toxic Tort-DES -i Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS D Toxic Waste El Ejectment n Common Law/Statutory Arbitration B [3 Other: E3 Eminent Domain/Condemnation E] Declaratory Judgment D Ground Rent D Mandamus D Landlord/Tenant Dispute D Non-Domestic Relations 0 Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY [I Mortgage Foreclosure:Commercial 13 Quo Warranto Q Dental Partition 0 Replevin El Legal Quiet Title Other: E3 Medical -I Other: E] Other Professional: Updated 1/1/2011 f`..f JEFFERY W.MONTGOMERY, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA V. •-:� a COMMONWEALTH OF STATUTORY OPERATOR'S e- c PENNSYLVANIA,DEPARTMENT LICENSE APPEAL OF TRANSPORTATION, G �" BUREAU OF DRIVER'S LICENSING, CASE NO.:, N- Cy Respondent OPERATING SUSPENSION AND COMMERCIAL DRIVING PRIVELEGE DISQUALIFICATION APPEAL TO THE HONORABLE JUDGE OF SAID COURT: AND NOW,comes the above-named Petitioner,Jeffrey W. Montgomery,by and through his Attorney,Tim 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 Jeffrey W.Montgomery,Pennsylvania Operator Number 24190768,whose place of residence is 635 Geary Street,Harrisburg,PA 17110 in the County of Dauphin with a date of birth of February 9, 1977. 3. Respondent is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania,De- partment of Transportation,which has its principal place of business at the Riverfront Office Center, 1101 South Front Street,Harrisburg,Pennsylvania. 4. The Appeal of Petitioner's Operating Privilege is taken from an Official Notice bearing a mailing date of December 12, 2013. With that Notice the Bureau of Driver's Licensing noti- fied Petitioner that it was suspending his driving privilege for the period of one(18)months, effective January 16,2014,at 12:01 a.m.,pursuant to Section 1547(b)(1)(i)of the Pennsylva- nia Vehicle Code, as a result of an alleged refusal by Petitioner to submit to chemical testing ate.+ C P-4 3- g 2�aggqya on November 24, 2013. A true and correct copy of the Bureau's Notice of Suspension is ap- pended to this Petition as Exhibit"A". 5. The eighteen(18)month suspension of Petitioner's driving.privilege is improper and illegal because: a. Reasonable grounds to request chemical testing did not exist. b. The procedural prerequisites that law enforcement must follow in order to obtain a valid sample were not met in this case including,but not limited to, deficient implied consent warnings. 6. The Appeal of Defendant's disqualification of his commercial driving privilege is taken from an Official Notice bearing a mailing date of December 12, 2013. With that Notice the Bureau of Driver's Licensing notified Petitioner that it was disqualifying his privilege of operating a commercial motor vehicle for the period of one(1)year, effective January 16,2014 at 12:01 a.m.,pursuant to Section 1613 of the Pennsylvania Vehicle Code, as a result of an alleged re- fusal by Petitioner to submit to chemical testing on November 24,2013. A true and correct copy of the Bureau's Notice of Disqualification is appended to this Petition as Exhibit`B". 7. The one(1)year disqualification of Petitioner's commercial operating_privilege is improper and illegal because: a. Reasonable grounds to request chemical testing did not exist. b. The procedural prerequisites that law enforcement must follow in order to obtain a valid sample were not met in this case including,but not limited to, deficient implied consent warnings. 8. The Petitioner requests relief regarding his operator's license 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,the Petitioner specifically requests that this Honora- ble Court in its Order grant Supersedeas to stay the Department's planned suspension. 9. The Petitioner requests relief regarding his commercial operators privilage pursuant to 75 Pa. C.S.A. §1550(b)(2)—Supersedeas. As this matter is timely filed and service has been.effected upon the Department's legal.office;and there is a reasonable likelihood of success on Appeal,the Petitioner specifically requests that this Honorable Court in its Order grant Supersedeas to stay the Department's planned disqualification. 10. A judge has not ruled upon any other issue in this matter or a related matter. WHEREFORE,Petitioner,Jeffrey W. Montgomery respectfully requests this Honorable Court hold a de novo hearing on his Appeal from the suspension of his operating privilege and dis- qualification of his commercial license will invalidate the illegal taking of his privilege and the im- proper action of the Department of Transportation,Bureau of Driver's Licensing,to suspend his op- erating privilege. Respectfully submitted, r,- Tim 1 arrouk,Esquire Attorney for Petitioner Attorney ID#: 204537 3601 Vartan Way,2"d Floor Harrisburg,Pennsylvania 17110 Telephone: (717) 657 73900 EXHIBIT A l COMMONWEALTH OF PENNSYLVANIA ---- DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: DECEMBER 12, 2013 JEFFREY W MONTGOMERY WID 133316032076U52 002 635 GEARY STREET PROCESSING DATE 12/05/2013 DRIVER LICENSE 24190768 HARRISBURG PA 17110 DATE OF BIRTH 02/09/1977 Dear MR. MONTGOMERY: This is an Official. Notice of the Suspension of your Driving Privilege as authorized by Section 154781I1 of the Pennsylvania Vehicle Code . As a result of your violation of Section 1547 of the Vehicle Code , CHEMICAL TEST REFUSAL , on 11/24/2013 : ■ Your driving Privilege is SUSPENDED for a period of 18 MONTH(S) effective 01/162014 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 0111612014 . You may surrender these items before , 01/16/2014, for earlier credit; howevers you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. however , you may apply for and obtain a photo identification card at any Driver License Center for a cost of $13.50 . You must present two (2) forms of proper iden- tification (e .g. , birth certificate , valid U .S. passports mar r4 asge—c e r t if i cat-O.? etc—) ix�.....ox.d.e..r _t Q..__a.b_t a i.rl_�►o u r__ Rblat p. .. ..�,.�.. . _-, 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 nota- rized 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 far identification purposes. Please send these items to : Pennsylvania Department of Transportation EXHIBIT B 12/12/2013 02;55 7172363640 JEFF JM TRUCK,ING COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 DECEMBER 12, 2013 _. JEFFREY W MONTGOMERY WID # 133396032076052 002 635 GEARY STREET PROCESSING DATE 12/05/2013 DRIVER LICENSE * 24190768 HARRISBURG PA 17110 DATE OF BIRTH 02/09/1977 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 11/24/2013 of 1547 of the Pennsylvania Vehicle Code, CHEMICAL TEST RE- FUSAL . Your commercial driving privilege is disqualified for a Pe r.iod of 1 YE ARCS) effective 01/16/2014 at 12:01 A.M. In 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 law 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 Farm, 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 AD NOT RFCEIVE 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) . 12/12/2013 02:55 7172363640 JEFF JM TRUCKING taut raw .r- 133,96032076052 action to the to appeal the Department"n 30 days of the You have the right YOU bust 2013} of this notice Court of Common Pleas (Civil Division) Within mail date (DECEMBER is cense before the of th�youdhaveoa still send in Your license ou show the Court appeal and re- disqualification unless f succeeding in the app reasonable likelihood o you to to any appeal continue to drive . PLEASE permitting ceive an. order NOTE that this Civil Appeal l i5 icon viction- You have to file from the crl 0�T,,. A. AFTER THE APPEAL HAS BEEN THE APPEAL MUST BE SENT BY TIME-STAMPED CERTIFIED CERTIFIED MAIL TO: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE, OF CHIEF COUNSEL THIRD FLOORP 17104E CENTER Sincerely , Janet L . Dolan , Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/TO: INFORMATION (8:00 1MB O 5'U04PPM) Department of Transportation IN STATE Bureau of Driver Licensing OIIT-OF-STATE 717-4i2-5300 P.Q. Box b8693 TDD IN STATE 1-800-228-0676 Har. Box r6 PA 17106-8693 'TD7U-TrUT--DF�TATE------ 12/12/2013 02:55 7172363640 JEFF JM TRUCKING rr�ut n� 133396032076052 Bureau of Driver Licensing P:O. Box 68693 Harrisburg , PA 17106-8693 2. Upon receipt , review and acceptance of your Pennsylvania driver 's license(s) , learner 's permit(s) , and/or a sworn notarized letter, PennDOT Will send you a receipt con- finming the date that credit began. It you do not re- ceive 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 pro- ducts , 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 pavment and mailing instructions, on the back of the application . Please note : - Paving the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation . If you have not acknowledged your suspension/revocation , please foXIOw the instructions listed under_ "Complying_ with this Suspension/Revocation" . APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, DECEMBER 12 , .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 certi- fied copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor , Riverfront Office Center Harrisburg , PA 17104-2516 12/12/2013 02:55 7172363640 JEFF JM TRUCKING HAUL bb 133396.032076052__ Remember , this is an OFFICIAL NOTICE OerSlScENSeOproduYou must return all current Pennsylvania to PennDOT by 0111612014. Sincerely, - Janet L. T�oTari : -II'3rec '�r" Bureau of Driver Licensing INFORMATION 8.00 a .m. to 5.0€1 .m• IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-.DF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 wEB SITE ADDRESS www dmv . state.Pa .us 3 JEFFREY W.MONTGOMERY, : IN THE COURT OF COMMON Petitioner : PLEAS OF CUMBERLAND : COUNTY,PENNSYLVANIA v. COMMONWEALTH OF : STATUTORY OPERATOR'S PENNSYLVANIA,DEPARTMENT LICENSE APPEAL " ` -+ OF TRANSPORTATION, /y BUREAU OF DRIVER'S LICENSING, : CASE NO.: J 'I `7 Vl Respondent 3 • • CD y t N) ; r ORDER OF COURT AND NOW, this / day oft/ANLL$b2 , 2014,IT IS HEREBY ORDERED AND DECREED THAT the Petitioner's Motion for a de novo hearing regarding the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania's suspension of the Petitioner's Operating Privilege and Disqualification of his Commercial Drivers License IS GRANTED. Specifically,the Court further finds that Petitioner's Motion challenging the suspension and disqualification was timely filed as it was filed within thirty(30)days of the mailing date of the Bu- reau's Notice. G This matter is set for argument the 3/ it.day of (,/y�/v 7• 30 o'clock in Courtroom 3 FURTHER,this Court directs The Department to stay its planned suspension of petitioners driving privilege and disqualification of his commercial driving privilege during the pendency of this Appeal pursuant to 75 Pa. C.S.A. §1550(b)(1)and 75 Pa.C.S.A. §1550(b)(2). BY °1URT JUDGE D' tribution: Tim M. Barrouk,Esquire 3601 Vartan Way, 2nd Floor Harrisburg, PA 17110 —fice of Chief Counsel, Department of Transportation, Riverfront Office Center—3rd Floor, 1101 Front Street, Harrisburg, PA 17104-2516 GriES tict,* '/9/,y JEFFERY W.MONTGOMERY, : IN THE COURT OF COMMON Petitioner : PLEAS OF CUMBERLAND : COUNTY,PENNSYLVANIA v. COMMONWEALTH OF : STATUTORY OPERATOR'S PENNSYLVANIA,DEPARTMENT : LICENSE APPEAL OF TRANSPORTATION, u7 BUREAU OF DRIVER'S LICENSING, : CASE NO 14-4 Civil ,., Respondent ru y, ---4 -< AFFIDAVIT OF SERVICE I, Tim M. Barrouk, Esquire, do hereby affirm that on January 13, 2014, I have served upon the Department of Transportation,Bureau of Driver's Licensing,a true and correct copy of Jeffrey W. Montgomery's Petition for Appeal of Operating Suspension and Commercial Driving Privilege Dis- qualification and Order by sending said copy to the Bureau of Driver's Licensing by United States Postal Service, Certified Mail, Return Receipt Requested, Receipt No. 7012 2920 0000 8823 8398, addressed as follows: 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 Date: 47)1 . 16/ By: Tim M.Barrouk,Esquire Attorney for Petitioner Attorney m#202061 3601 Vartan Way,2nd Floor Harrisburg,Pennsylvania 17110 Telephone: (717) 657-3900 Fax: (717) 657-2060 • UNITED STATES POSTAL SERVICE Fis Mail Postage rst-Clas&Fees Paid USPS Permit No.G-10 r ; • Sender: Please print your name, address, and ZIP+4 in this box • I MI C'ME \At-C\AAN-WrOrl JAN 1 7 20142 1\ Via"1 Y: 221\\ 4(At \AILIfil Pk nit 1111111i1"111"„111111,11,11)1111111111111111111111111111'1'111 EXHIBIT A JEFFREY W. MONTGOMERY, • IN THE COURT OF COMMON Petitioner • PLEAS OF CUMBERLAND • CUMBERLAND COUNTY v. • COMMONWEALTH OF PENNSYLVANIA, NO. 14-0004 CIVIL TERM DEPARTMENT OF TRANSPORTATION, • BUREAU OF DRIVER LICENSING, • DRIVER LICENSE Respondent • SUSPENSION APPEAL ORDER AND NOW, this 318T day of January, 2014, the appeal filed in the above- captioned matter is CONTINUED and RESCHEDULED for the 2nd day of June, 2014, at 1:30 p.m., in Courtroom 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE CO ' • 001111j..011- J. Attest: M. Barrouk, Esq., The McShane Firm 3601 Vartan Way, 2nd Floor, Harrisburg, PA 17110 Ciilip M. Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, Riverfront Office Center, 3rd Floor, 1101 South Front Street, H fist i rg,c_ PA 17104-2516 LECL4 -±"M f Cn q2qiy -11 3 r- " J f") JEFFREY W. MONTGOMERY, : IN THE COURT OF COMMON PLEAS OF PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWELATH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING RESPONDENT : NO. 14-0004 CIVIL ORDER OF COURT AND NOW, this 2nd day of June, 2014, this being the time and place set for a hearing in the above captioned appeal and the parties having agreed to a continuance of the hearing in this matter; IT IS HEREBY ORDERED AND DIRECTED the hearing on this matter will now be held on August 20, 2014, at 1:30 p.m. in Courtroom No. 1 of the Cumberland County Courthouse, Carlisle, Pennsylvania. IT IS FURTHER ORDERED AND DIRECTED that no further continuances in this matter will be granted. Timothy M. Barrouk, Esquire Attorney for Petitioner X'hilip M. Bricknell, Esquire Attorney for PennDot bas ces peLli.LL qapv =tel By the Court, C— w rn JEFFREY W. MONTGOMERY, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF CO IMo PLEAS OF CUMBER al, D CUMBERLAND COWN ca =p1 NO. 14-0004 CIVIL T6 DRIVER LICENSE 5 SUSPENSION APPEAL -14 ti.. CD ORDER AND NOW, this 20th day of August, 2014, 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 evZile ve r�6,-, wJ ZO a9,5T /% CONTINUED and RESCHEDULED for the day of Room No. Carlisle, Pennsylvania. , 2014, at .m., in Courtroom of the Cumberland County Courthouse, BY THE COURT: Attest: — Tim M. Barrouk, Esq., 3601 Vartan Way, 2nd Floor, Harrisburg, PA 17110 Philip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 eep e. /yam., /d '/c)///Lt