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Home My WebLink About06-0878 v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO, 0(,- en l?wu h~ SCOTT C. PENWELL, JR. Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent LICENSE SUSPENSION APPEAL AND NOW, this13th day of February, 2006, comes Petitioner Scott C. Penwell, Jr" through his attomeys, Mancke, Wagner & Spreha, who respectfully represent: 1, Petitioner Scott C. Penwell, Jr, is an adult individual residing at 904 Walnut Street, Wormleysburg, Pennsylvania and is a licensed Pennsylvania motor vehicle operator. 2, The occurrences allegedly giving rise to the suspension hereinafter occurred on or about December 31, 2005 in Cumberland County, Pennsylvania, 3, Petitioner has received notice of an 12-month suspension as authorized by Section 1547BII and a copy of said license suspension notice is attached hereto and made a part hereof as Exhibit A. 4, The license suspension is illegal, unjust and improper for reasons which include, but are not limited to, the following: a. there was no valid or proper request to take chemical testing; b, there was no valid, intelligent or knowing refusal to take a chemical test; c. ~1547 and ~3B02, facially and as applied to the Petitioner, are in violation of the State and Federal Constitutions; d, any alleged refusal would violate equal protection oflhe laws in violation oflhe State and Federal Constitutions; e. Petitioner was not properly advised and/or timely advised of his rights and/or obligations to submit to chemical testing; f. the warnings failed to comply with Act 177 of 2004,75 Pa,C.SA ~1547(b)(ii); g, Petitioner was misadvised about his right to a lawyer and further denied the right to a lawyer as required by 6th Amendment of the U.S, Constitution and Article I, ~9 of the Pa. Constitution; h, the Petitioner's rightto counsel, pursuant to 6th Amendment of the U,S, Constitution and Article I, ~9 of the Pa, Constitution, were violated at the time of the request for testing; i. under the circumstances at the hospital, Petitioner had a right to counsel under the State and Federal Constitutions before deciding to take a chemical test; j, ~1547 and/or ~3802 of the Pennsylvania Motor Vehicle Code constitutes: (i) Violation of substantive due process under the Pa. (Article I, ~9) and U,S, Constitutions (5th and 14th Amendments) as being vague and overbroad facially and as applied to the Petitioner and as impermissibly delegating a legislative function to the judiciary in violation of the Pa. and U,S. Constitutions. (ii) Act 24 of 2003, Chapter 38, ~3802 and/or ~1547 and their related provisions violate procedural due process under Article I, ~9 of the Pa, Constitution and the 5th and 14th Amendments of the U.S. Constitution facially and as applied to the Petitioner. (iii) Chapter 38 of Act 24 of 2003, ~3802 and/or ~1547 and their related provisions violate equal protection guaranteed by the State and Federal Constitutions, facially and as applied to the Petitioner, in that they treat similarly situated persons differently and such different treatment is not rationally related to the protection of the public from intoxicated drivers, (iv) The Petitioner was advised that there was no right to an attorney at the time of a request for the chemical test or refused such right then such action violates the Defendanfs 6th Amendment (U.S. Constitution) and Article I, ~9 (Pa, Constitution) right to counsel, facially and as applied to the motorist. (v) It is believe that the Petitioner was advised if he remained silent during the request process, his silence would be a refusal which statements were in violation of his right to remain silent as guaranteed by the 5th Amendment of the U,S, Constitution and Article I, ~9 of the Pa, Constitution, WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to determine the validity of the license suspension outlined in Exhibit A. 2 Dated: ~/I g ~ 0& John B, M eke, Esq" ID No. 07212 Maneke, gner & Spreha 2233 N, Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner 3 VERIFICATION I hereby verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C,S, Section 4904, relating to unsworn falsification to authorities. L}I-"'/ob Datel ( ~~~ Scott C, Penwell, Jr, 01/3)'1/2005 15:01 71 72341099 . STEVENS & LEE HSBOH . PAGE 02/13 COMMONWEALTH OF PENNSVLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: JANUARV 20, 2006 SCOTT C PENWELL JR 904 WALNUT ST WORMlEVSBURG PA 17043 bIID. 060136137363398 001 PROCESSING DATE 01/13/2006 DRIVER LICENSE' 25685093 DATE OF BIRTH 06/27/1981 Dear MR, PENWELL, This is an O~~1c1al Notice of the Suspension of your Driving Privilege as authorized by Section 154781 I of the PennsYlvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code. CHEMICAL TEST REFUSAL, an 12/31/2005: . Vour driving privilege is SUSPENDED for a period of 1 YEAR(S) ef1ective 02/24/2006 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION Vou must return all current PennSYlvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 02/24/2006. You may surrender these items before. 02/24/2006. for earlier credit; however, you may not drive after these itl.ms are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. Howl!ver, you maY apply for and obtain a photo identification ~ard at any Driver License Center for a cost of $10.00. Vou must present two (2) forms of proper iden- tification (e.g.. birth ce.rtiLicate, vali.d U..S. pa.ssp.ert. marriage ~ertificate. etc.) in order to obtain your photo identification card. You will ~ot receive credit toward serVing any susDension until we receive your license(sl. Coftlplete the fOllOWing steps to acknowledge this suspension. 1. Return all ~urrent Pennsylvania driver's licenses, learner's pl!rmits andlor camera cards to PennOOT. If yOU do not have anY ~f these items, send a sworn nota- rized letter stating ~ou are aware of the suspension of your driVing privilege. Vou 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 identifi~ation purposes. Please send these items to: PennsYlvan" t of Transoortation EXHIBIT ~ ~ ~ ~ A 01/30/2005 15:01 71 72341099 . STEVENS g, LEE HSBOH . 060136137363398 BU~eau of D~ive~ licensing P.Q, Box 68693 Ha~~isbu~g, PA 17106-8693 Z. Upon receiPt, review and acc~ptanc~ of Your Pennsylvania driver's licens'..cs), learne~'s Permit(s), and/or a sworn notarized letter, PennDQT will send you a ~eceipt con- firming the date that credit began. If YOU do not r~- ceive a receipt from us within 3 weeks, pleaSe contact our office. Otherwis~, yoU will not be given credit toward serving this sus..pension. P@n-f'.OOT. ph<m-e mrnrbe-rs 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 PennsV1vania State Police for prosecution unde~ SECTION 1571(a) (4) of the PennsYlvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration f~e to PennDQT to be restored from a suspension/revocation of Your driving privilege. To pay your r~storation fee, COmplete the follOWing steps. 1. Return the enclosed Application for Restoration. The amount due is listed on the application. Z. Write your driver's license number (listed on the first page) on the check Or monel.' order to ensure proper credit, 3, Follow the payment and mailing instructions On the back of the a~plication. APPEAL You have the rigkt to appeal this action to the Court of Common Pleas (Civil DiviSion) within 30 days of tke mail date, JANUARy 20, 2006, of this lett~r, If yoU file an ap- peal in the county Court. the Court will give YOU a time- stamped cert1i'ied 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 Oftice of Chief Counsel Third Floor, Riverfront Office Cente~ Harrisburg, PA 17104-2516 R~memb...., this is an OFFICIAl. NOTICE OF SUSPENSION. You must return all current PennsYlvania driver license products to PennDOT by 02/24/Z006. PAGE 03/13 01!~0!2005 15:01 7172341033 . STE"/ENS & LEE HSBOH . PAGE 04/13 060136137363398 Sincerely, b,.e~ Janet L. Dolan, Acting Director Bureau of Driver licensing IN STAlE OUT-OF-STATI: WEB SITE ADDRESS INFORMATION 8:00 a.m. to_6:ClL..p...-I1I.. 1-800-932-4600 TOO IN STATE 717-412-5300 TOO OUT-OF-STATE www.dmv.state.pa.us 1-S00-nS-0676 717-412-5380 :'::", ,'-) ;'j-, \ --, ~" ~ ~ Q \4 -, ,~ ~ . - ~ :,-" -- ~...a.- ~ ~ ~ c) - -.-.f::' C'" .::] .-...(, 0J .. , >!- ~ '" (' 1): ---------- - . /y RECEIVED rES 15:~ SCOTT C. PENWELL, JR. Petitioner v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO, o,UX- fS1<g ov,j COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this -2.b1 day of r~b , 2006, upon consideration ofthe within Petition, it is hereby ordered and decreed that a hearing be held on the 1!1L day of ~ ' 2006, at q: 30 ftd:~k in Courtroom -1-, Cumberland County Courthouse, Carlisle, Pennsylvania. Notice of said hearing shall be sent by certified mailto the Department of Transportation by Petitioner's attomey at least sixty days prior to the date of the hearing. By the Court, J. ! Distribution: Prothonotary's Office John B, Mancke, ESQ., 2233 N. Front Street, Harrisburg, PA 17110 PA Dept. of Transportation, Office of Chief Counsel, 1101 S. Front S t, Harrisburg, PA 17104 J- ;)J-7J~ ~<J ~~ ]115' . fln.>. fl "Vld,-'/ucl L/--fJV-I~ /17 'lr- ;;/J,,/C0 1cC..-> '_('1 .. ~' ,~':J ',- c...'! .~ .~ - , SCOTT C. PENWELL, JR., PETITIONER v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT CIVIL ACTION - LAW NO. 878-2006 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL ORDER OF COURT of the Petitioner's License Suspension Appeal, and following a AND NOW, this 1st day of May, 2006, upon consideration deem is necessary for a disposition of the case, but at which proceeding at which both sides presented the evidence which they Counsel agreed that the record should remain open for purposes of facilitation of receipt by the Court of appellate decisions on various issues raised in this case, the record shall remain open. It is noted that at the time of adjournment on today's date, Respondent's Exhibit 1 had been identified and admitted, and Petitioner's Exhibit 1 had been identified and admitted. No other the Respondent. testimony had been received from Officer Edward Curtis on behalf of exhibits had been identified or admitted. It is further noted that By the Court, the record closed and dispose of the matter. herein to have been handed down. At that time the Court will deem as they regard the decisions from the appellate courts involved Counsel are requested to notify the Court at such time should be in the form of a motion to close the record. Counsel's notification to the Court In this regard ~\O olj\(j -- .. V\N\j,1\1/~SNN3d 1INn/~"'> 'T'" r" t....(-I~M."'\ f\J,. ~;kJ'" ~ 1, ,1"_.!\';' ~:'~~jrjv~' h,J GO :6 W~ 0 \ k\1W 900l J..i:N10NOH10pci ,at\!. ::10 30~~,~" .', , . . , John B. Mancke, Esquire 2233 North Front Street Harrisburg, PA 17110 For the Petitioner Beverly J. Points, Esquire Office of Chief Counsel 1101 South Front Street - 3rd Floor Harrisburg, PA 17104-2516 For the Respondent pcb SCOTT C. PENWELL, JR. Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 878-2006 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent PRAECIPE TO WITHDRAW To the Prothonotary: Please withdraw the abov~aptioned license Res Dated : Prothonotary's Office John B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110 PA Dept. of Transportation, Office of Chief Counsel, 1101 S. Front Street, Harrisburg, PA 17104 John B a c ,Esq., ID No. 07212 Manck , Wagner & Spreha 2233 Front Street, Harrisburg, PA 17110 717-234-7051, Attomey for Petitioner o 11 :::::! CD o -.J -----------