HomeMy WebLinkAbout06-6712JONATHAN J. IRWIN : IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
N0. [~ G - G 7 /.Z ~ ~cN-~
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPEAL
AND NOW, this ~D~ay of November, 2006, comes Petitioner Jonathan J. Irwin, through his
attorneys, Mandce, Wagner, Spreha ~ McQuillan, who respectfully represent:
1. Petitioner Jonathan J. Irwin is an adult individual residing at 132 Lefever Road, Newville,
Pennsylvania and is a licensed Pennsylvania motor vehicle operator.
2. The occurrences allegedly giving rise to the suspension hereinafter occurred on or about
September 16, 2006 in West Pennsboro Township, Cumberland County, Pennsylvania.
3. Petitioner has received notice of an 12-month suspension as authorized by Section "1547611° 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. there was no reasonable grounds to request chemical testing;
d. §1547, §3802 and §3802(a)(1), facially and as applied to the Petitioner, are in
violation of the State and Federal Constitutions;
e. any alleged refusal would violate equal protection of the laws in violation of the
State and Federal Constitutions;
f. Petitioner was not properly advised, was misadvised and/or not timely advised
of his rights, penalties and/or obligations to submit to chemical testing;
g. the wamings and procedures failed to comply with Act 177 of 2004, 75 Pa.C.S.A.
§1547(b)(ii) and the wamings were confusing, misleading and inadequate;
h. 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;
i. the Petitioner's right to 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;
j. 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;
k. §1547, §3802 and/or §3802(a)(1) 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 Defendant's 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.
submitted,
John Mancke, Esq., ID No. 07212
Man ,Wagner, Spreha ~ McQuillan
2233 N. Front Street, Hamsburg, PA 17110
n ~~ 717-234-7051, Attorney for Petitioner
Dated: ~'~Y ~ ...
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 unswom
falsification to authorities.
~ ~o d _...
Date Jo an J. Irwin
COMMONWEALTH OF .PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Dates NOVEMBER 08, 2006
JONATHAN JAMES IRWIN WID # 063056187858241
132 LEFEVER RD PROCESSING DATE 11/01/2006
NEWVILLE PA 17241 DRIVER LICENSE # 17388190
DATE OF BIRTH 08/3b/1956
. .~ Dear. MR. IRWINs
This isgan Oas icaul Notice of the 3uspen.~__-~~-~~_
Pr~.vile a thor,ized by Section ion of your Driving
Pennsylvania Vehicle Code. 154761I of the
of Section 1547 of the Vehicles CodeeSCHEMICALy TESTvREFUSAL,~
on 09/16/2006:
' Your driving privilege is 3USPENOED for a
YEAR(S) effective 12~13i2006 at 12:Q1 a.m, period of 1
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 12/13/200,6.
surrender these items before, 12/13/2006, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU MAY NOT RETAYN YOUR DRIVER'S LICENSE FOR xpENTIFICATION
PURPOSES. However
., you may apply for and obtain a photo
identification card at
any Driver License Center far a cost
of $10.00. You must
present two (2) forms of
___identification (e.E., ;_
birth Pr.oaer
,_
passport, marriage certificate, et~j ~-gi
~~ tam
b _.~__ _
n o
o
in
your photo identification card.
You will not receive chegit toward serving any suspension
until we receive your license
(s)
,
. Complete the following
steps to acknowledge this
s
e
su
p
nsion.
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
o
y
u are aware of the suspension
of your driving privilege. Ya
u must specify fn your
letter why you are unable to return you
lice
'
r driver
s
nse. Remember: You may not retain your driver's
license for identificati
on purposes. Please send these ~
items to: EXHIBIT
~
063056187858241
-_
Pennsylvania Aepartment of Transportation
Bureau of Driver Licensing
P.0. Box 68693
Harrisburg, PA 17106-8693
2. Upon receipt, review and acceptance of
driver's license(s), learner's your Pennsylvania
notarized letter, PennDOT willrmsend.)' and/or a sworn
confirming the date that credit began. If you doenot
receive,a receipt from us within 3 weeks, please contact
-,-~---->--- 4.~r,_:office, _..Otherw.zs _
toward serving this suspension. PennDOT~~~~ n~m~b`ers_"`-`-"-~'-
are listee! at the end of this letter.
3• If you do not return all current driver
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 RESTOR 0 FEE
You must pay a restoration fee to
from a suspension/revocation of PennDOT to be restored
Pay your restoration fee, completeutherfollowingvsteps; To
1• Return the enclosed A
amount due is listed onptheaapplicati restoration. The
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.
Y o u h a v e t h e r i - -- -~...~_.... -...,: „-- ----- --- - _ ___ _ ___
9ht to appeal this action to the Court, of ~.
Common Pleas (Civil Division) within 30 days of~the mail
date, NOVEMBER O8, 2006, of this letter.
appeal in the County Court, the Court will you file an
time-stamped certified copy of the a give you a
your appeal to be valid, you must sendathis ItimQ~-stamped
certified copy of the appeal by certified mail to:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floar, Riverfront Office Center
Harrisburg, PA 17104-2516
Remember, this is an OFFYC=AL NOTICE OF SUSPENSION.
must return all current Pennsylvania driver license You
to PennDOT by 12/13/2006. Products
Sincerel3/,,
M `~
~"V
Janet L. Dolan, Director
Hureau of Driver Licensing
00
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4b00 TDD IN STATE ~~~ 1-800-228-0676
OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380
WEB SITE ADDRESS wy~-~dmv.state ae us
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NOV t7 i0D6 a~
JONATHAN J. IRWIN
~v.
:x .
CO EALTH OF PENNSYLVANIA,
DEPA NT OF TRANSPORTATION,
BUREAU bF DRIVER LICENSING
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
N0. ~ , CP7~~ C~
RDER
AND NOW, this day of ~ , 2006, upon consideration of the within Petition,
it is hereby ordered and decreed that a hearing be held on the ~~ y of ( , 200_7,
P.~t
at ~•b~ o'clock in Courtroom / ,Cumberland County Courthouse, Carlisle, Pennsylvania.
Notice of said hearing shall be sent by certified mail to the Department of Transportation by Petitioner's
attorney at least sixty days prior to the date of the
J.
Distribution:
Prothonotary's Office
John B. Mandce, Esq., 2233 N. Front Street, Harrisburg, PA 17110 ~~
PA Dept. of Transportation, Office of Chief Counse1,1101 S. Front Street, Harrisburg, PA 17104 ~ ~ ~ ~
C
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f~S ~~~~
v~ ~~ ~~
~;~dl~~
JONATHAN J. IRWIN,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,:
BUREAU OF DRIVER LICENSING,
Appellee
IN RE: LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this 21st day of February, 2007, after
hearing, we find credible the testimony of the officer wherein
he indicated that he noticed a strong odor of alcohol coming
from Appellant's vehicle, Appellant's face was flushed and red,
he had bloodshot, glassy eyes, his speech was slow and sluggish,
his movements walking to the parking lot to perform the
standardized field sobriety tests were slow, and he admitted to
having consumed five beers, and in addition he failed the
standard field sobriety tests. Under all of those
circumstances, vie find that the officer had reasonable grounds
to request Appellant to submit to chemical testing. The other
issues raised in the appeal are preserved. However, the
Commonwealth Court has decided those issues adversely to
Appellant, and we are bound thereby. In view of the above, the
action of the Department in suspending Appellant's operating
privileges is sustained, and
orge Kabusk, Esquire
For the Appellee
srs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
N0. 06-6712 CIVIL TERM
CIVIL ACTION - LAW
the Court,
is DISMISSED.
Edward E. Guido, J. ~
~hn B. Mancke, Esquire
For the Appellant
a~
~~1~~~~~~~~
JONATHAN J. IRWIN
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
N0.06-6712 CIVIL
Judge Edward E. Guido
PETITION FOR SUPERSEDERS
1. Petitioner Jonathan J. Irwin, is an adult individual residing at 132 Lefever Road, Newville,
Cumberland County, Pennsylvania and is a licensed Pennsylvania motor vehicle operator.
2. The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing,
suspended the Petitioner's driving privileges for one year by official notice mailed on November 8, 2006 for an
alleged failure to submit to a chemical test on September 16, 2006 (75 Pa.C.S.A. §1547611).
3. Your Petitioner filed a timely license suspension appeal with the Court of Common Pleas of
Cumberland County docketed to 06-6712 Civil.
4. The issues raised by the Petitioner on appeal and at the time of the hearing held on February 21,
2007 included, but were not limited to, the constitutionality of Act 24 of 2003 (the new DUI law) and the issue
of the Petitioner's right to an attomey at the time he was requested to take a chemical test of his breath.
5. A hearing on the appeal was held before the Honorable Edward E. Guido on February 21, 2007
which denied the Petitioner's appeal.
6. Your Petitioner intends to file a timely appeal with the Commonwealth Court of the court's ruling
7. Although George Kabusk, Esq., attomey for the Department of Transportation, has indicated that
2
ti
the Department's policy is to oppose the supersedeas in cases where the constitutionality of Act 24 of 2003
is being raised, it should be noted that at the time of the license suspension appeal hearing, the Honorable
Court indicated if Your Petitioner intended to file an appeal, Your Petitioner could request a supersedeas from
this court which the court would sign.
8. Your Petitioner believes he will be ultimately successful in his appeal concerning the right to an
attorney since a refusal now results in criminal sanctions.
9. Although the Commonwealth Court has ruled on this issue, the issue remains to be decided by the
Supreme Court of Pennsylvania.
10. The Commonwealth Court has issued a supersedeas where the issue of a right to an attorney was
raised in a license suspension refusal case see Witmer v. Commonwealth, Dept. of Transportation, 889 A.2d
638 (Pa.Cmwlth. 2005)) and Your Petitioner is similarly requesting a supersedeas as for the reasons indicated
in Witmer.
11. Your Petitioner has also raised the issue of the constitutionality of Act 24 of 2003 and the
Supreme Court has a case pending involving the issue of the constitutionality of Act 24 of 2003 in
Commonwealth v. Duda, 24 WAP 2005, and has reserved the Petition for Allowance of Appeal in
Commonwealth v. McCoy, Jr., 202 MAL 2006, which also raised the issue of the right to an attorney before
submitting to chemical testing.
12. Your Petitioner desires a supersedeas be granted until such time as the Commonwealth Court
enters a final order in the appeal.
13. On March 6, 2007, undersigned counsel John B. Mancke, Esq. contacted George Kabusk, Esq.,
Counsel for the Department of Transportation, who indicated he would not concur to the granting of the
supersedeas.
3
14. Unless this Court grants this Petition, Petitioner Irwin will suffer irreparable injury while waiting for
the Supreme Court to rule on the appeal since:
a. Petitioner is a sole proprietor of a business, Chimney Sweep Systems,
Inc.;
b. Petitioner's business requires Petitioner to answer calls including
emergency calls at any time during the day or night;
c. Petitioner's business covers the area of Central Pennsylvania including
Dauphin, Cumberland, Franklin, Fulton, York, Adams and Perry
Counties;
d. As sole proprietor, Petitioner has been in this business for 20 years;
e. His operating privileges would be suspended;
f. Petitioner needs his driver's license to fulfill his business obligations;
g. Alternate transportation such as bus transportation does not exist in the
overwhelming majority of his business area which includes rural areas
of the counties mentioned above;
h. Taxi service would not be feasible since he needs his service vehicle to
fulfill his job responsibilities;
i. Your Petitioner's business is the source of income to Your Petitioner and
his wife.
15. Unless the Court grants this application, Petitioner {Twin will suffer irreparable injury while waiting
for the Commonwealth Court to rule on the appeal since his driving privileges to operate a motor vehicle would
be suspended and he needs his driving privileges to maintain his employment and the loss of license would
cause him substantial and irreparable harm as outlined above, which harm could not be remedied if his appeal
succeeds.
16. The issuance of a Supersedeas will not adversely affect the public interest since the Department
of Transportation can reimpose the license suspension if the appeal is denied.
4
WHEREFORE, Petitioner Jonathan J. Irwin prays the Court enter a Supersedeas of the Order of the
Court of Common Pleas dated February 21, 2007 which upheld the license suspension and for such other
relief as the Court deems appropriate.
su
John B.~lancke, Esq., ID No. 07212
Mancke, agner & Spreha
2233 N, Front Street, Harrisburg, PA 17110
717-234-7051, Attorney for Petitioner
Dated: r""~, (J^= ~~~'~%
5
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.
~t~
.~ ~ ~~-(
Date Jo at n J. Irwin ~.--°~
f~
iJ
MAR 0 8 2001 p °
JONATHAN J. IRWIN
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
N0.06-6712 CIVIL
Judge Edward E. Guido
ORDER
AND NOW, this ~- day of ~~~ , 2007, upon consideration of the within
Petition, a Supersedeas if granted during the pendency of the Petitioner's appeal to the Commonwealth Court.
0
o"~~
Judge Edward E. Guido
41
i. , ~ 'r~
.~1. ~ ~ ~ ~r"~~~
a.
JONATHAN J. IRWIN : IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF MOTOR VEHICLES
N0.06-6712 CIVIL
NOTICE t)F APPEAL
Notice is hereby given that Jonathan J. Irwin hereby appeals to the Commonwealth Court of
Pennsylvania from the Omer dated February 21, 2007 entered in this matter. This Omer has been entened
in the docket as evidenced by the attached copy of the~docket entry.
John B. ke, Esq., ID No. 07212
Mancke, ner, Spreha & McQuillan
2233 N. Front Street, Harrisburg, PA 17110
717-234-7051, Attorney for Jonathan J. Irwin
Da#ed: 3-' r - Q~1
JONATHAN J. IRWIN : IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
N0.06-6712 CIVIL
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF MOTOR VEHICLES
REQUEST FOR TRANSCRIPT
A notice of appeal having been filed in this matter, the official court reporter is hereby requested to
produce, certify and file the transcript in this matter in conformity with Pa.R.A.P.1922.
A copy of the transcript is also being requested to be sent to the undersigned counsel for Jonathan
J. Irwin.
John B. ancke, Esq., ID No. 07212
Mancke, agner, Spreha & McQuillan
2233 N. F nt Street, Harrisburg, PA 17110
717-234-7051, Attorney for Jonathan J. Irwin
Dated: 3- a~ -o~
JONATHAN J. IRWIN : IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
N0.06-fi712 CIVIL
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF MOTOR VEHICLES
PROOF OF SERVICE
I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing
document upon the persons and in the manner indicated below, which service satisfies the requirements of
Pa.R.A.P.121:
HAND-DELIVERY
Judge Edward E. Guido
Susan Stoner, Court Reporter
Taryn N. Dixon, Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
PA Department of Transportation
Office of Chief Counsel
1101 S. Front Street
Harrisbu~, PA 17104
Dated: ~.a~- 0'~
John ~ Mancke, Esq., ID No. 07212
Manck ,Wagner, Spreha & McQuillan
2233 N. Front Street, Harrisburg, PA 17110
717-234-7051, Attorney for Jonathan J. Irwin
PYS511 Cumberland County Prothonotary's Office
_,. Civil Case Print
Page
2066-06712 IRWIN JONATHAN J (vs) PENNSYLVANIA COMMONWEALTH OF
Reference No..: Filed......... 11/21/2006
Case Ty e.....: APPEAL - LICENSE SUSP Time...... ..: 2:03
Judgmen~......: 00 Execution Date 0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
IRWIN JONATHAN J
132 LEFEVER ROAD
NEWVILLE PA
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
RIVERFRONT OFFICE CENTER
HARRISBURG PA 17104
APPELLANT MANCKE JOHN B
APPELLEE
********************************************************************************
* Date Entries
********************************************************************************
FIRST ENTRY - - - - - - - - - - - - -
11/21/2006 APPEAL FROM SUSPENSION OF DRIVERS LICENSE
11/29/2006 ORDER - 11-29-06 - IN RE: LICENSE SUSPENSION APPEAL - HEARING
02-21-07 AT 1 PM IN CR 3 CUMB CO COURTHOUSE - NOTICE OF HEARING
SHALL BE SENT BY CERT MAIL TO DEPT OF TRANS BY PETITIONER'S ATTY
AT LEAST 60 DAYS PRIOR TO DATE OF HEARING - BY EDWARD E GUIDO J -
COPIES MAILED 12-O1-06
-------------------------------------------------------------------
2/22/2007 ORDER OF COURT - 02-21-07 - IN RE: LICENSE SUSPENSION APPEAL -
APPEAL DISMISSED - BY EDWARD E GUIDO J - COPIES MAILED 02-22-07
-------------------------------------------------------------------
3/08/2007 PETITION FOR SUPERSEDEAS - BY JOHN B MANCKE ATTY FOR PLFF
-------------------------------------------------------------------
3/12/2007 ORDER - 03-09-07 - IN RE: A SUPERSEDEAS IS GRANTED DURING THE
PENDENCY OF THE PETITIONER'S APPEAL TO THE COMMONWEALTH COURT - BY
EDWARD E GUIDO J - COPIES MAILED 03-12-07
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Beq Bal P*ymts/Add End Bal
APPEAL LIC SUSP 35.00 35.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP FEE 10.00
---
-- 10.00 .00
-
---------
55.50 --------- ---
55.50 ---------
.00
********************************************************************************
* End of Case Information
********************************************************************************
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JONATHAN J. IRWIN
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTAITON,
BUREAU OF MOTOR VEHICLES
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
N0. 2006 - 6712 CIVIL TERM
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 22ND day of MARCH, 2007, Plaintiff's
counsel is directed to file a concise statement of matters
complained of on appeal within fourteen (14) days of today's date
in accordance with Rule of Appellate Procedure 1925(b).
ohn B. Mancke, Esquire
2233 North Front Street
Harrisburg, Pa. 17110
Court Administrator
:sld
Edward E. Guido, J.
d\,1,i'v4 `fi'r, ,~~. r ~'(F~L!
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JONATHAN J. IRWIN : IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
N0.2006-6712 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
CONCISE STATEMENT OF MATTERS COMPLAINED OF QN APPEAL
To the Honorable Edward E. Guido:
AND NOW comes Jonathan J. Irwin, by and through his attorney, John B. Mandce, Esq. and, in
compliance with the requirements of Pa.R.A.P.1925, hereby sets forth the matters about which he complains
with respect to his appeal of this Courts Order dated and entered February 21,2007;
1. The lower taut erned in denying the license suspension appeal since the motorist,
Jonathan J. Irwin had the right to counsel at the time when he was arrested for DUI and
was requested to take a cthemical test, which right was denied. See Pa. Constitution,
Articcle I, §9 and U.S. Constihition, Amendment 6.
2. The bwer court erred in denying the license suspension appeal since Chapter 38 of Act
24 of 2003, including specifically §?~3802 and 3804, is unconstitutional, generally and as
applied to the PetitionedAppellant, §3802(a)(1), because it is vague and overbroad and
allows forarbitrary enforcement in violation of substantiredue process guaranteed bythe
5th Amendment of the U.S. Constitution and Article I, §9 of the Pa. Constitution.
Commonwealth v. Noel and Travis. 857 A.2d 1283 (Pa. 2004); Commonwealth v. Barud.
545 Pa. 297, 681 A.2d 162 (1996).
3. The lower court erred in denying the license suspension appeal since Chapter 38 of Act
24 of 2003, including specifically §3802, prevents a licensed operator from driving after
one inadent of imbibing ak~hol above a prohibited level (see, e.g., 75 Pa.C.S.A.
§§3802(a)(1); (b); (c)) and violates pnxedur~ due process protections of the State and
Federal Constitutions generally and as applied to the PetitionedAppellant. Ss.,_ee,
Commonwealth. Dent. of Transoortation v. Clayton, 684 A.2d 1060 (Pa.1996).
submitted,
John ~. Mancke, Esq., ID No. 07212
Ma ,Wagner, Spreha & McQuillan
2233 N. Front Street, Harrisburg, PA 17110
717-234-7051, Attorney for Jonathan J. Irwin
Dated: ~ -,~- d
JONATHAN J. IRWIN : IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
N0.2006-6712 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
PROOF OF SERVICE
I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing
document upon the persons and in the manner indicated below, which service satisfies the requirements of
Pa.R.A.P.121:
HAND-0ELIVERY
Judge Edward E. Guido
Office of the Prothonotary
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Timothy P. Wile, Esq.
PA Department of Transportation
Office of Chief Counsel
1101 S. F~°nt Street
Harrisburg] PA 17104
Dated: ~- ~- (~'~
Jo BTiilancke, Esq., ID No. 07212
Ma e, Wagner, Spreha & McQuillan
22 .Front Street, Harrisburg, PA 17110
717-234-7051, Attorney for Jonathan J. Irwin
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Commonwealth Court of Pennsylvania
Michael Krimmel
Deputy Prothonotary/Chief Clerk
May 4, 2007
Notice of Discontinuance of Action
RE: Irwin v. DOT
Appeal of: Jonathan J. Irwin
Type of Action: Notice of Appeal
No. 569 CD 2007
Cumberland County Court of Common Pleas
Agency Docket Number: 06-6712 Civil
Irvis Office Buildine. Room 624
Harrisbure. PA 17120
717-255-1650
The above-captioned matter has been marked "Discontinued" with this court.
Certification is being sent to the lower court.
Attorney Name
Party Name
Party Type
John B. Mancke, Esq.
Timothy Peter Wile, Esq
Jonathan J. Irwin
Bureau of Driver Licensing
Appellant
Appellee
Certified from the Record
MAY - `~ 2007
and Order Exit
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Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Garlisle, PA 17013
A
1014 - 10/99 10/1/99