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HomeMy WebLinkAbout14-3358From:The McShane Firmr Supreme C Cou To:2406573 06/03/2014 14:24 nnsylvania leas County 11404 P.002/002 l?nr,P, thoaiotary U.ie.. '. Y3 /f�77✓ �.tr,i� IDoekel Np ' " 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. fit 0. '. Y3 Commencement of Action: 0 Complaint Cl Writ of Summons a Petition Declaration of Taking 11 Transfer from Another Jurisdiction Lead Plaintiff's Name: LAURA E. BOISVERT Lead Defendant's Name: Commonwealth of Pennsylvania, Department of Trans% Dollar Amount Requested: ®within arbitration limits (check one) outside arbitration limits Are money damages requested? 0 Yes lB No Is this a Class Action Suit? 0 Yes lB No Is this an MDJAppeal? © Yes lB No _ 1 Name of Plaintiff/Appellant's Attorney: 0 Check here if you have no attorney (are a Self -Represented [Pro Se] Litigant) TORT (do not include Mass Tort) 0 Intentional 0 Malicious Prosecution 0 Motor Vehicle 0 Nuisance O Premises Liability 0 Product Liability (does not include mass tort) O Slander/Libel/ Defamation Cl Other: MASS TORT O Asbestos O Tobacco O Toxic Tort - DES O Toxic Tort - Implant O Toxic Waste O Other: PROFESSIONAL LIABLITY Cl Dental O Legal O Medical O Other Professional: CONTRACT (do not include Judgments) ® Buyer Plaintiff O Debt Collection: Credit Card 0 Debt Collection: Other O Employment Dispute: Discrimination 0 Employment Dispute: Other 0 Other: REAL PROPERTY ® Ejectment 0 Eminent Domain/Condenmation 0 Ground Rent in Landlord/Tenant Dispute 0 Mortgage Foreclosure: Residential Cl Mortgage Foreclosure: Commercial 0 Partition 0 Quiet Title 0 Other: CIVIL APPEALS Administrative Agencies 0 Board of Assessment O Board of Elections Dept. of Transportation Statutory Appeal: Other Cl Zoning Board O Other: MISCELLANEOUS © Common Law/Statutory Arbitration 0 Declaratory Judgment 0Mandamus Non -Domestic Relations Restraining Order 0 Quo Warranto 0 Replevin 0 Other: Updated 1/1/2011 LAURA E. BOISVERT, : IN THE COURT OF COMMON Petitioner : PLEAS CUMBERLAND COUN- : TY, PENNSYLVANIA v. COMMONWEALTH OF : STATUTORY OPERATOR'S LI - PENNSYLVANIA, DEPARTMENT : CENSE APPEAL OF TRANSPORTATION, 2 p BUREAU OF DRIVER'S LICENS : 4ff(j, 3 J5O ING, ry� -0 53 f. Respondent cam r, t+ TO THE HONORABLE JUDGE OF SAID COURT: Statutory Operator's License Appeal AND NOW, this 2nd day of June, 2014, comes the above -captioned defend- ant, Laura E. Boisvert, by and through counsel, The McShane Firm, LLC, and Timothy M. Barrouk, Esquire, and hereby appeals from a Notice of Suspen- sion 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 Laura E. Boisvert, Pennsylvania Driver License Number 20668572 , whose place of residence is 623 Brookhaven Road, New Cumberland, PA 17070 in the County of Cumberland with a date of birth of October 20, 1963. 3. Respondent is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania, Department of Transportation, which has its principal atkX4 15167S c�� 6/os3 PC1411 place of business at the Riverfront Office Center, uoi South Front Street, Harrisburg, Pennsylvania. 4. The Appeal is taken from an Official Notice bearing a mailing date May 8, 2014. With that Notice the Bureau of Driver's Licensing notified Petition- er that it was suspending Petitioner's privilege of operating a motor vehi- cle in Pennsylvania for a period of i8 months, effective June 12, 2014, at i2:oi a.m., pursuant to Section 1547(b)(i) of the Pennsylvania Vehicle Code, as a result of an alleged refusal by Petitioner to submit to chemical testing on April 18, 2014. A true and correct copy of the Bureau's Notice of Suspension is appended to this Petition as Exhibit "A". 5. The i8 months month suspension of Petitioner's operating -privilege is improper and illegal because: 5.1. The Officer involved in this matter did not possess reasonable grounds to demand that the Petitioner submit to the chemical test. 5.2. Whether Petitioner was properly advised of her im- plied consent and O'Connell Warnings. 5.3. Whether her refusal was knowing voluntary and intel- ligent. 6. The Petitioner requests relief pursuant to 75 Pa. C.S.A. §3.55o (b)(i) - Supersedeas. As this matter is timely filed and service has been effected upon the Department's legal office, and none of the enumerated excep- tions under 75 Pa. C.S.A. §155o (b) (1) (ii) or (iii) exist. WHEREFORE, Petitioner, Laura E. Boisvert, by and through counsel re- spectfully requests this Honorable Court hold a de novo hearing on Appeal from the suspension of operating privilege and invalidate the illegal taking of privilege to operate an automobile and issue orders consistent with the same to the Department of Transportation, Bureau of Driver's Licensing, to sus- pend operating privilege. Respectfully submitted, The McShane F Ism, LLC G Timothy M. Barrouk, Esquire Attorney for Petitioner 3601 Vartan Way, 2nd Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 05/22/2014 -02:52 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: MAY 08, 2014 LAURA E BOISVERT 62 BROOKHAVEN RD. NEW CUMBERLAND PA 17070 Dear MS. BOISVERT: WID * 141216241 PROCESSING DATE DRIVER LICENSE I DATE OF BIRTH 1 #4577 P.001/016 900 001 /01/2014 0668572 0/1963 Thjs is an official Notice -Of the suspension of your—Dr10ing • Privilege as authorized by Section 1547B1Il of the Pennsylvania Vehicle Code. As a result of your viol tion of Section 1547 of the Vehicle Code, CHEMICAL TEST REF SAL, on 04/18/2014: g Your driving privilege is SUSPENDED for a period 18 MONTH(S) effective 06/12/2014 at 12:01 a.m. COMPLYING WITH THIS. SUSPENSION You must return all current Pennsylvania driver's lice learner's permits, temporary driver's licenses (c cards) in your possession on or before 06/12/2014. Yo surrender these items before, 06/12/2014, for e credit; however, you may not drive after these ite surrendered. e era may "er are YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENT1FI ATION PURPOSES. However, YOU may apply for and obtain a hoto identification card at any Driver License Center far cost of $13.50. You must present two (2) forms of roper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to 'btain You will not receive credit toward serving any su p nsion until we receive your license(s). Complete the fol awing steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's lic n es, learner's permits and/or camera cards to PennDO . If you do not have any of these items, send a sworn notarized letter stating You are aware of the susp nsion of your driving privilege. You must specify i your letter why you are unable to return your d iver's license. Remember: You may not retain your d iver's license for identification purposes. Please sen these items to: 05/22/2014 02:52 #4577 P.002/016 141216249051900 Pennsylvania Department of Tran5porta ion 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 s orn notarized letter, PennDOT Will send you a rec ipt confirming the date that credit began. If you do not receive a receipt from us within three (3) weeks, pl ase c_ordact_ our _offi.ce,_ _Otherwise, YOU will not be g yen 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 li nse products, we must refer this matter to the Pennsyl ania State Police for prosecution under SECTION &57l(-)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be res ored 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 irst page) on the check or money order to ensure p oper credit. 3. Follow the payment and mailing instructions on the back of the application. Please-AOtbT-TPTYing-flieThestorWtion --re-/ -DOESNOT satisfy the requirement to acknowledge Your suspension/revoc If you have not acknowledged Your suspension/revoc please follow the instructions listed under "Complyin this Suspension/Revocation". on, tion, with 05/22/2014 02:52 #4577 P. 903/016 141216249051900 APPEAL You have the right to appeal this action to the Cour of Common Pleas (Civil Division) within 50 days of the ail date, MAY 08, 2014, of this letter. If you file an appeal in the county Court, the Court will give VoU a time -et mPed certified copy of the appeal. In order for your appeal to be valid, you must send this time -stamped certified coy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Rlvertr_Ent Office Center__ Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license pro ucts to PennDOT by 06/12/2014. Sincerely, Kara N. Templeton, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 5:00 p.m., IN STATE 1-800-932-4600 TOD IN STATE 1 800-228-0676 OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS LAURA E. BOISVERT, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENS- ING, Respondent : IN THE COURT OF COMMON : PLEAS CUMBERLAND : COUNTY, PENNSYLVANIA STATUTORY OPERATOR'S LI- CENSE APPEAL Order of Court AND NOW, this day of 2014, IT IS HEREBY OR- DERED AND DECREED THAT the Petitioner's Motion for a de novo hearing regarding the Bureau of Driver's Licensing of the Commonwealth of Penn- sylvania's suspension of the Petitioner's Operating Privilege IS GRANTED. Specifically, the Court further finds that Petitioner's Motion challenging the suspension was timely filed as it was filed within thirty (30) days of the mail- ing date of the Bureau's Notice. This matter is set for argument the /jz day of f 2o1 L', at _1 `3D o'clock in Courtroom .- . FURTHER, this Court directs The Department to stay its planned suspension during the pendency of this Appeal pursuant to 75 Pa. C.S.A. §(b)(1). BY THE COURT ak/(Ai- JUD E n, c - r Distribution: Court Administration ,---Office of Chief Counsel, PennDOT /'f timothy M. Barrouk, Esquire, The McShane Firm, LLC, 3601 Vartan Way, 2nd Floor, Harrisburg, PA 17110 1 £S 02.. titT4, LAURA E. BOISVERT, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Cd BUREAU OF DRIVER'S LICENS- : 14-3358 Civil c Q -11 : IN THE COURT OF COMMON : PLEAS CUMBERLAND : COUNTY, PENNSYLVANIA : STATUTORY OPERATOR'S : LICENSE APPEAL ING, rn co Respondent zm • ! - ) Imo-'> ...I a ,C C) --c Affidavit of Service z' I, Timothy M. Barrouk, Esquire, do hereby affirm that I have served upon the DepoIrtrr ent o Transportation, Bureau of Driver's Licensing, a true and correct copy of Laura E. Boisvert's Peti- tion for Appeal of Operating Privilege Suspension 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 8381, 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 1- 00,2' Timothy M. Barrouk, Esquire Attorney for Petitioner 3601 Vartan Way, 2nd Floor Harrisburg, PA 17110 Tel: 717-657-3900 Fax: 717-657-2060 Attorney ID: 204537 SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the maiipiece, or on the front if space permits. 1. Article Addressed to: yO62)11J bed- 611;tet•-_- of eh/ mrd `/ Cott) s j <, ver on i" Qc"2 s. > -- Al-v, /2,9 /9/ay COMPLETE THIS SECTION ON DELIVERY A. Signature ❑ Agent ❑ Addressee B. Received by (Printed Name) C. tefi JUNr D. Is delivery address different from item 1? 0 Yes If YES, ether delivery adGr'ess berowc- —0 No `:. 3deS ic �ad Mail ❑ Registered ❑ Insured Mail ress Mail m Receipt for Merchandise 0 C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number, (Transfer from service labs0 CR ,29,20, 0000 8823,8;381;,, PS Form 3811, February 2004 Domestic Retum Receipt 102595-02-M-1540 Exhibit "A" LAURA E. BOISVERT, Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 14-3358 CIVIL TERM DRIVER LICENSE SUSPENSION APPEAL AND NOW, this 16th day of October, 2014, the appeal filed in the above - captioned matter is CONTINUED and RESCHEDULED for the 18th day of December, 2014, at 1:30 p.m., in Courtroom 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: Attest: - X m cc' rfl c.n - 0> < - (Z) J CD Tomothy M. Barrouk, Esq., The McShane Firm, LLC, 3601 Vartan Way, 2" Floor, Harrisburg, PA 17110 C=▪ 0 -C- cD 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 £° pe 044,1 -ed 10/0//v ern LAURA E. BOISVERT, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND CUMBERLAND COUNTY NO. 14-3358 CIVIL TERM DRIVER LICENSE SUSPENSION APPEAL ORDER AND NOW, this 18th day of December, 2014, the appeal filed in the above- captioned matter is: Attest: (. Timothy M. Barrouk, Esq., The McShane Firm, LLC, 3601 Vartan Way, 2nd Floor, Harrisburg, PA 17110 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 2015, at .m., in Courtroom Room No. of the Cumberland County Courthouse,.t7-3 Carlisle, Pennsylvania. Philip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, 3rd Floor, 1101xSouthoFront Street, Harrisburg, PA 17104-2516 Co',6es %�2'atl�cC 419/1y Jfr)