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Home My WebLink About02-5049DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee AND NOW, this __ : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND, PENNSYLVANIA : No. : LICENSE SUSPENSION APPEAL _. : : _. : ORDER OF COURT day of ,2002, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is Ordered that a hearing on the matter shall be held on the at o'clock .__ m. in Courtroom No. __ Courthouse. day of ., of the Cumberland County A Supersedeas is granted pursuant to the Vehicle Code until such time that this Honorable Court resolves this appeal. Pending appeal thc Department of Transportation is to restore Appellant's driving privileges and upon Appcllant's request issue Appellant a drivers license on or after November 8, 2002. By the Court: Rominger & Bayley Law Offices, 155 South Hanover Street, Carlisle, PA 17013 Karl E. Rominger, Esquire Distribution: PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-1254 CRIMINAL LICENSE SUSPENSION APPEAL AND NOW comes the Appellant, Daryl Strick, by and through his attorney, Karl E. Rominger, Esquire, at the Law Offices of Rominger & Bayley Law Offices, respectfully avers the following: 1. Appellant resides at 313 South Arch Street, Meehanicsburg, Pennsylvania, 17055. 2. Appellant received Notice dated October 7, 2002, stating that as a result of his serving his one year suspension of his drivers license, pursuant to his conviction for DUI, his driving license is to be restored on November 8, 2002, so long as he complies with the Restoration Requirements Letter. A copy is attached hereto as Exhibit "A". 3. In its pertinent parts, the letter states Defendant must make arrangements to have the Guardian Interlock installed at least thirty (30) days before November 8, 2002, and until such is done, he will be ineligible for restoration. 4. The letter also states that if he does not apply for or receive a Guardian Interlock License, he will receive an additional one (1) years license suspension. 5. The Pennsylvania Department of Transportation is acting under Chapter 70 of the Judicial Code including, Section 7003 and the related statutes, which were made law by Act 63 of 2000. 6. Appellant asserts that the Pennsylvania Department of Transportation is violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 26 of the Pennsylvania Constitution. 7. The actions of the Commonwealth, and the application of the statute also violates the Due Process Clause of the United States Constitution. 8. Appellant's constitutional challenges have been previously decided by this Court. In Commonwealth v. Mockaitis, 54 Pa. D.C. 4th 115, (Court of Common Pleas, Cumberland County, 2001) Defendant's identical challenges were found to be meritorious, and it is the law of this County that enforcement of this act is unconstitutional. Exhibit "B' 9. in Commonwealth v. McManus, 2002 Pa. Super 271; 2002 Pa. Super. LEXIS 2536, filed on August 23, 2002 this year, the Superior Court made it clear that the time of restoration is the appropriate time to raise issues involving the constitutionality of Act 63 of 2000. Exhibit "C' 10. Since, according to current case law, this matter is ripe for review, and it is filed at a time when departmental action, being the thirty (30) day requirement prior to restoration, has been taken, this Court has the power to act and review the Department's actions. 11. The enforcement of Act 63 of 2000 being unconstitutional in Cumberland County, Appellant requests that this Honorable Court direct the Department of Transportation issue him a license forthwith, without any special requirements. 12. Appellant requests that this directive be enforced pending the outcome of this Appear. WHEREFORE, Defendant respectfully requests this Honorable Court find that the Department of Transporthtion has violated the Due Process Clause of the United States Constitution,/krticle I, Section 26 of the Pennsylvania Constitution, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitutio., and direct that the Department of Transportation issue a standard drivers license on or after November 8, 2002, the date of Appellant's restoration, and that the Department of Transportation be enjoined from enforcing Act 63 of 2000 in Cumberland County. Date: October 17, 2002 Respectfully submitted, Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant DARYL STRIC'K, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. : LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I. Karl E. Rominger· Esquire, attorney for Defendant, do hereby certify that I this day served a copy of the Appeal from Suspension of Operator's Privilege upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 Dated: October 17, 2002 Karl E. Rominger, Esquire Attorney for Defendant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17123 10/07/02 DARYL DOUGLAS STRICK 313 S ARCH STREET MECHANICSBURG PA 17055 DRIVER'S LICENSE NUMBER: 22180347 BIRTH DATE: 11/23/69 ELIGIBILITY DATE: 11/08/02 Dear MR. STRICK : This is a RESTORATION REQUIREMENTS LETTER. It lists what you must do to restore your driving privilege. PLEASE BE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You will be notified by the Department of Transportation (PennDOT) that your driving privilege has been restored. Only after that may you drive. An ELIGIBILITY DATE is listed above. This is the date you are eligible to have your driving privilege restored, provided no other violations are processed against your driving record. This date is effective regardless of any other dates listed within this letter. Please read the following information carefully and be sure to complete all requirements to have your driving privilege restored. Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS listed at the end of this letter. RESTORATION FEE -You must pay a $25.00 restoration fee to PENNDOT. Write your driver's license number (listed above) on the check or money order to ensure proper credit. Your check or money order should be made payable to PENNDOT. PROOF OF INSURANCE -Within 30 days of your ELIGIBILITY DATE, provide a copy of one of the following to PENNDOT to show that all motor vehicles currently registered in Pennsylvania in your name are insured: *Insurance ID card *Declaration page of your insurance policy *Insurance Binder *An application of insurance to the PA Auto Insurance Plan If you do not own a motor vehicle currently registered in Pennsylvania, send a signed statement of this fact to PENNDOT which reads "I do not own any motor vehicles currently registered in Pennsylvania',. Please include your name, address, driver's license number and date of birth on the statement. LICENSE NO. : 22180347 PAGE 2 TERM SUSPENSION/REVOCATION -YOU have a 1 YEAR(S) suspension/revocation that began (or will begin) on 10/10/01. Credit for serving this suspension/revoca- tion began (or will begin) on 11/08/01 and will end on 11/08/02. The suspension/revocation resulted from a violation on 03/04/01 of Section 3731, DRIVING UNDER INFLUENCE IGNITION INTERLOCK You are required to have an approved Ignition Interlock System installed in all of your vehicle(s). Approximately 30 days before your ELIGIBILITY DATE, you should contact one of the following approved vendors listed below to make arrangements to have the System installed. -Interlock Installation Services 1-800-452-1739 -Consumer Safety Technology, Inc. - 1-877-777-5020 -National Interlock, Inc. (serving Eastern PA) - 1-866-342-4984 -American Court Services (serving Central/Western PA) - 1-888-565-6227 -Guardian Interlock Systems - 1-800-499-0994 -Draeger Interlock, Inc. - 1-800-332-6858 You will need to provide the vendor the following court information before the System can be installed. COUNTY COURT NUMBER COURT TERM CUMBERLAND CTY 01254 2001 Please retain a copy of this letter to assist you in this process. If you choose not to install the Ignition Interlock System in your vehicle(s), your driving privilege will remain suspended for an additional year. IGNITION INTERLOCK LICENSE -In order to have your driving privilege restored you must apply for an Ignition Interlock license. An Ignition Interlock license entitles you to drive only vehicles equipped with an Ignition Interlock System. You may make application 30 days BEFORE your eligibility date. An application is enclosed for your convenience. LICENSE NO. : 22180347 PAGE 3 This letter identified the requirements necessary to restore your driving privilege and we are looking forward to working with you to do this. Unless another address was indicated, return any documents and/or fees to the MAILING ADDRESS listed below. Phone numbers are provided for your use. To ensure prompt customer service, please write your driver's license number, listed at the beginning of this letter, on all documents you send to PENNDOT. Thank you. P.S. REMEMBER, your ELIGIBILITY DATE is 11/08/02. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7:00 AM to 9:00 PM) IN STATE 1-800-932-4600 OUT-OF-STATE 717-391-6190 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-391-6191 LICENSE NO. : 22180347 PAGE 4 IGNITION INTERLOCK LICENSE APPLICATION TO apply for an Ignition Interlock license, please sign below and submit this page with a check or money order to the address listed below. Our records indicate that your driver's license will expire within the next 6 months. If you would like to renew at this time, make your check or money order payable to PENNDOT in the amount of $25.00. If you do not wish to renew at this time submit a check or money order in the amount of $10.00 to receive your Ignition Interlock License. You will receive an invitation to renew at a later date. DRIVER'S LICESNE NUMBER - 22180347 DARYL DOUGLAS STRICK 313 S ARCH STREET MECHANICSBURG PA 17055 SIGNATURE TELEPHONE NO: If your address has changed, please print the correct address here: If you choose not to install an Ignition Interlock System, not have to apply for an Ignition Interlock License. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 you do COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DAVID MATTHEW MOCKAITIS · 00-1692 CRIMINAL TERM IN RE: MOTION OF DEFENDANT FOR PARTIAL POST-SENTENCE RELIEF BEFORE BAYLEY, J., OLER, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., February 12, 2001:-- On October 10, 2000, defendant, David Matthew Mockaitis, entered a plea of guilty to a count of driving under the influence in violation of the Vehicle Code at 75 Pa.C.S. Section 3731(a)(1)(4)(ii). It was defendant's second offense. On November '13, 2000, defendant was sentenced to pay the costs of prosecution, a fine of $300, and undergo imprisonment in the Cumberland County Prison for a term of not less than thirty days nor more than twenty-three months.~ As required by Act 63 of 2000, the sentencing order contained the following provision: [a]n approved ignition interlock device shall be installed on each motor vehicle owned by defendant prior to restoration of the defendant's operating privileges by the Department of Transportation. On November 16, 2000, pursuant to Pa.R.Crim. P. 1410(B)(1)(a)(v), defendant filed a timely optional post-sentence motion to modify his sentence by deleting this The minimum term of thirty days imprisonment was mandated by the Vehicle Code at 75 Pa.C.S. Section 3731(e)(1)(ii). 00-1692 CRIMINAL TERM provision? He maintains that Act 63 of 2000 is unconstitutional. The issues have beeri briefed and argued and are ready for decision? Act 63 of 2000 was enacted on June 27, 2000. The Act is titled, "AN ACT Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, providing for th,, use of ignition interlock systems and for restitution or identity theft." The Act establishes Chapter 70 of the Judicial Code titled "Ignition Interlock Devices," and provides in pertinent part: § 7002. Ignition interlock systems for driving under the influence. (b) Second or subsequent offense -- In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. § 3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (Emphasis added.) § 7003. Additional driver's license restoration requirements. In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. §1548 2 Defendant does not challenge the other provisions in the sentencing order. 3 Under Rule 1410(B)(3)(a), the motion must be decided within 120 days of the date of filing unless an extension of thirty days is granted under subparagraph (3)(b). -2- 00-1692 CRIMINAL TERM (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. §3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of- State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock s;,stem. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. §1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicle equipped with an approved interlock ignition system. (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. §1951(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. §3731 or a similar out- of-State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1). Section 3. The provisions of 42 Pa.C.S. Ch. 70 shall apply to all persons convicted of a second or subsequent violation of 75 Pa.C.S. §3731 on or after the effective date of this section... (Emphasis added.) Section 4 of the Act provides that these provisions take effect on September 30, 2000. Initially, the Commonwealth maintains that defendant lacks standing to challenge the constitutionality of Act 63 of 2000. A statute may not be challenged in the abstract. Commonwealth v. Bell, 512 Pa. 334 (1986). The Commonwealth suggests that it is -3- 00-1692 CRIMINAL TERM speculative as to what prejudice defendant will suffer, if any, from an application of Act 63. We disagree. The restriction imposed by the sentencing order prohibits defendant from having his operating privilege restored for two years unless, after completing a first year of suspension, he obtains a restrictive license for a second year. There is nothing abstract about the prohibition contained in the sentencing order. Defendant has standing to challenge the statute. Defendant maintains that Act 63 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Article 1, Section 26 of the Pennsylvania Constitution. Equal protection claims under the United States and Pennsylvania constitutions are analyzed using the same standards. Commonwealth v. Albert, 758 A.2d 1149 (Pa. 2000). Legislation must be examined according to one of three tests: strict scrutiny, intermediate scrutiny, or, the most deferential, rational basis. Smith v. Coyne, 722 A.2d 1022 (Pa. 1999). In Smith, the Supreme Court of Pennsylvania stated: Strict scrutiny is applied to classifications affecting a suspect class or fundamental right. Intermediate scrutiny is applied to important rights and "sensitive" classifications. In all other cases, the challenged legislation will be upheld unless there is no rational basis for its enactment. The privilege to operate a motor vehicle is not a fundamental right. Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321, (1979). Nor is it an important right that triggers the application of the heightened intermediate scrutiny test. Commonwealth v. McMullen, 756 A.2d 58 (Pa. Super. 2000). Statutes dealing with -4- 00-1692 CRIMINAL TERM the suspension or prohibition of operating privileges are analyzed under the rational basis standard. Frantz v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 168 Pa. Commw. 35, (1994). Act 63 creates a classification based upon ownership of a motor vehicle? We are satisfied that this is neither a suspect nor sensitive classification requiring heightened scrutiny? Therefore, we will examine the statute using the rational basis standard. In Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995) the Pennsylvania Supreme Court stated: In applying the rational basis test, we have adopted a two-step analysis. First, we must determine whether the challenged statute seeks to promote any legitimate state interest or public value. If so, we must next determine whether the classification adopted in the legislation is reasonably related to accomplishing that articulated state interest or interests. (Citations omitted.) The first prong of the analysis is clearly met. Suspending the licenses of persons convicted of driving under the influence is a legitimate state interest. A classification which treats persons differently based upon their ownership of motor vehicles is another ~ An offender convicted of a second or subsequent driving under the influence offense may obtain a restricted license after a one year suspension if he or she owns a motor vehicle and it is equipped with an ignition interlock device. If the offender does not own a motor vehicle, or leases a motor vehicle, he or she must wait two years before driving privileges are restored. If the offender owns two or more vehicles, he or she must have an ignition interlock installed on all of the vehicles. s Suspect classes are limited to race, national origin, and for purposes of state, as opposed to federal law, alienage. Small v. Horn, 722 A.2d 664, 672 (Pa. 1998). Sensitive classes are limited to gender and legitimacy. Id. -5- 00-1692 CRIMINAL TERM matter. The Supreme Court of Pennsylvania stated in Curtis v. Kline, supra: The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly. However, it does not require that all persons under all cimumstances enjoy identical protection under the law. The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment, and does require equal treatment of people having different needs. The prohibition against treating people differently under the law does not preclude the Commonwealth from restoring to legislative classifications, provided that those classifications are reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation. In other words, a classification must rest upon some ground of difference which justifies the classification and have a fair and substantial relationship to the object of the legislation. Judicial review must determine whether any classification is founded on a real and genuine distinction rather than an artificial one. A classification, though discriminatory, is not arbitrary or in violation of the equal protection clause if any state of facts reasonably can be conceived to sustain that classification. In undertaking its analysis, the reviewing court is free to hypothesize reasons the legislature might have had for the classification. If the court determines that the classifications are genuine, it cannot declare the classification void even if it might question the soundness or wisdom ofthe distinction. (Citations omitted.) (Emphasis added.) Applying the above analysis to Act 63, we are satisfied that to treat offenders differently based upon the number of vehicles owned by each creates an arbitrary classification which does not bear a fair and substantial relationship to the object of the legislation. Legislation that prohibits a multiple DUI offender from operating a vehicle that is not equipped with an ignition interlock device would be reasonable. Legislation -6- 00-1692 CRIMINAL TERM that prohibits the offender from operating a vehicle equipped with the ignition interlock device unless every vehicle the offender owns is also equipped with such a device is neither reasonable nor does it bear a rational relationship to the ultimate goal of limiting the driving privilege of the offender. Likewise, to require the offender to actually own a vehicle that is equipped with the device in order to secure a restricted license bears no reasonable relationship to the object of the legislation. It does not take long to come up with numerous examples of just how arbitrary and unreasonable the classification in Act 63 is when applied to owners of multiple vehicles. It makes no sense, nor does it serve any legitimate purpose, to require an offender's spouse or other person the offender owns a vehicle with to operate that vehicle equipped with an ignition interlock device so that offender can operate a similarly equipped separate automobile? Nor is it rational to have the offender's child, attending college, equip a vehicle being used at school with such a device, simply because it is titled in the parent's name. Perhaps the most absurd result occurs in situations where the offender owns several vehicles which are operated solely by employees. A plumber with multiple service vehicles comes to mind. It serves no rational purpose to have all of those vehicles equipped with an ignition interlock 6 We are not aware if it is even possible for an ignition interlock device to be programmed to operate using the breath samples of more than one person. -7- 00-1692 CRIMINAL TERM device.7 The classification is no less arbitrary or unreasonable when applied to non- owners. An offender who is a member of a household in which all of the vehicles are leased, rather than owned, is prohibited from obtaining a restricted license. An offender who drives a vehicle title¢ in the name of a spouse, the student who drives a vehicle titled in his parent's name, and the employee using a company owned vehicle, are all prohibited from obtaining a restricted license, even if the owner of the vehicle is willing to allow it to be equipped with an ignition interlock device. Again, it serves no rational purpose to require that the vehicle actually equipped with the device be owned by the offender. In summary, limiting multiple DUI offenders following a one year license suspension to a restricted license during a second year that prohibits them from operating a motor vehicle unless it is equipped with an ignition interlock device would be sufficient to accomplish the goal of the legislation. Adding the requirement that the offender actually own a vehicle, and that every vehicle owned by the offender be equipped with the device, is arbitrary, unreasonable, and therefore, unconstitutional. 7 We have cOnsidered the possibility that an offender might be more likely to drive his or her unequipped vehicle in violation of a restricted license. However, this does not provide a rational basis for the classification. Ownership of the vehicles will not make the offender more or less likely to violate the law. If the offender cannot obtain a restricted license because of the inability to afford an ignition interlock device on all of his or her vehicles, is that person any less likely to violate the law by driving without a license? -8- 00-1692 CRIMINAL TERM Defendant further maintains that Act 63 violates the Due Process Clause of the United States Constitution. Defendant's conviction for driving under the influence will result in a one-year suspension of his operating privilege under the Vehicle Code at 75 Pa.C.S. Section 1532(b)(3). Act 63 adds a second year to the suspension unless the Department of Transportation receives a certification from the sentencing court that an ignition interlock system has been installed on each motor vehicle owned by a defendant. In Commonwealth v. Duffey, 536 Pa. 436 (1994), the Supreme Court of Pennsylvania stated that a license suspension is a collateral civil consequence and not a criminal penalty even when the suspension is triggered by a criminal conviction. See also Commonwealth, Department of Transportation v. McCafferty,.758 A.2d 1155 (Pa. 2000). By amending the Judicial Code, the legislature in Act 63 has turned the courts of common pleas into an agent for the Department of Transportation in determining eligibility for the reinstatement of an operating privilege. The court is not merely notifying the Department of a defendant's conviction as it does to trigger a one- year suspension under 75 Pa.C.S. Section 1542(b)(3). Rather, the court determines eligibility for a restricted license, which the Department must issue if the court determines that defendant is eligible, but cannot issue absent that determination. In Sweeney v. Tucker, 473 Pa. 493 (1977), the Supreme Court of Pennsylvania stated: The basic precept of our form of government is that the executive, the legislature and the judiciary are independent, co-equal branches of government. The dividing lines among the three branches "are sometime -9- 00-1692 CRIMINAL TERM indistinct and are probably incapable of any precise definition." Under the principle of separation of the powers of government, however, no branch should exercise the functions exclusively committed to the other branch. (Citations omitted.) (Emphasis added.) Unlike the preparation of a presentence report when court personnel compile information for the court to use in exemising sentencing authority, and which is subject to challenge for accuracy by the defendant and the Commonwealth in the framework of an adversarial criminal case, Act 63 requires that the court exemise an executive function in furtherance of the collateral civil consequence to defendant of a license suspension for a conviction for driving under the influence. There is no mechanism for a defendant to seek a certification from the court that an ignition interlock system has been installed on each motor vehicle owned. Nor is there a mechanism for a defendant to challenge entitlement to a certification. If, as the agent for the Department of Transportation, the court makes an improper certification, the Department is without recourse. The function of the judicial branch is to apply and interpret the law in an adversarial framework. In Commonwealth of Pennsylvania, Department of Transportation v. McCafferty, supra, the Supreme Court of Pennsylvania stated that the suspension of an operating privilege, even though driving is a privilege and not a right, requires adherence to procedural due process under the Fourteenth Amendment to the United States Constitution. Thus, defendant's interest in the operation of a motor vehicle is a protected one. That requires procedures that constitute due process of law. -10- 00-1692 CRIMINAL TERM Ingraham v. Wright, 430 U.S. 651 (1977). The executive function engrafted upon the court by Act 63 of 2000 does not provide procedures that satisfy due process of law. For the foregoing reasons, we conclude that Act 63 of 2000 does not meet constitutional requirements. Accordingly, the following order is entered? ORDER OF COURT AND NOW, this day of February, 2001, IT IS ORDERED: (1) The motion of defendant for partial post-sentence relief, IS GRANTED. (2) The provision in the sentence of November 13, 2000, providing that "[a]n approved ignition interlock device shall be installed on each motor vehicle owned by defendant prior to restoration of defendant's operating privileges by the Department of Transportation, IS VACATED. (3) All other provisions in the sentence of November 13, 2000, shall remain in full force and effect. By the Court, Edgar B. Bayley, J. e This resolution makes it unnecessary to address defendant's further claim that Act 63 of 2000 violates Article Ill, Section 3 of the Pennsylvania Constitution by containing more than one subject. -11- 00-1692 CRIMINAL TERM M.L. Ebert, Jr., Esquire District Attorney Timothy L. Clawges, Esquire For Defendant Probation :saa -12- Page 1 3 of 4 DOCL~'MENTS COMMONWEALTlt OF PENNSYLVANIA, Appellee v. BRIAN ANTHONY McMANUS, Appellant; COMMONWEALTH OF PENNSYLVANIA, Appellee v. TIMOTHY HARRIS, Appellant; COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM JESSE RANDAL, Appellant No. 479 WDA 2001, No. 521 WDA 2001, No. 523 WDA 2001 SUPERIOR COURT OF PEN.~SYLVANIA 2002 PA Super 271; 2002 Pa. Super. LEXIS 2536 January 28, 2002, Submitted August 23, 2002, Filed SUBSEQUENT HISTORY: [**1] Application for Rea~gument/Reconsideration Filed September 6, 2002~ PRIOR HISTORY: Appeal fi-om the Judgment of Sentence December 4, 2000, In the Corox of Common Pleas of Allegheny County, Criminal Division at No. CC 200007927. Appeal fi-om the Judgment of Sentence October 2, 2000, In the Court of Common Pleas of Al/egheny County, Criminal Division at No. CC 200003285. Appeal from the Judgment of Sentence October 4-, 2000, In lhe Coull of Common Pleas of Allegheny County, Criminal Division at No. CC 199908779. Before O'BRIEN, J. DISPOSITION: Docket Number 479 WDA 2001 affirmed. Docket Number 521 WDA 2001 affim~ed. Docket Number 523 WDA 200l affim~ed. Interlock Device Law, which requh-ed the u'ial court to order the installation of an approved ignition inteHock device on each motor vehicle owned by a person who had been convicted of a second or subsequent violation of 75 Pa. Con& Stat, Ann. § 3731. The reviewing com~. concluded the ordem directing the installation of ignition interlock devices were collateral civil consequences of defendants' criminal convictions, not properly subject to appeal in a criminal matter. Furthan even if the reviewing com~. considered the appeals to be from the ignition inter- lock ordm~ themselves, rather than fi-om the judgments of sentence, the reviewing court found the orders to be nonappeal~ble, interlocutory orders. Accordingly, since the ignition interlock orders in question were not final, appealable orders, the reviewing court detemfined defen- danls could not challenge the constitutionality of those orders. In other words, even if defendants had actually perfected their appeal fi-om the ignition interlock orders, the reviewing court indicated it would have quashed the appeal. CASE SUMMARY OUTCOME: The reviewing court affim~ed the judg- PROCEDURAL POSTURE: In a consolidated appeal, defendants appealed the judgments of sentence, entered in the Comet of Conmmn Pleas of Allegheny County (Pennsylvania), following defendants' second convictions for driving under the influence of alcohol, in violation of 75 Pa. Cons. Stat. A~m. § 3731. OVERVIEW: Defendm]ta attacked the constitutionality of 42 Pa. Cot~s. Stat. Amt. §§ 700l - 7003, the Ignition CORE CONCEPTS Criminal Law & Procedure > Criminal Offenses · Vehicular Crimes · Driving Utglerthe Influence Criminal Law & Procedure · Sentencing · Multiple Con~icMons See 42 Pa. Cons. Stat. Atm. § 7002(b). Criminal Law & Procedure · Criminal Offenses · Vehicular Ct~mes · Driving Utlder thc Influence Transportation Law · Pri~ate Motor Vehicles · Licensing & Registration Page 2 2002 PA Super 27l, *; 2002 Pa. Super. LEXIS 2536, ** / See 42 Pa. Con$~ Stat. Ann. § 7003. Constitutional l~tw > Equal Protecffon > Level of Review In applying the rational basis test, Pennsylvania courts have adopted a two-stap analysis. First, the cout~t must de- temline whether the challenged statute seeks to promote a legitimate state inmrest or public value. If so, the court must next detemfine whether the classification adopted in the legislation is reasonably related to accomplishing that m~inuiated state interest or interests. Criminal Law & Procedure > Counsel > Effective Assistance > Tests The standard for determining whether counsel was in- effective is well-settled. The law presumes that counsel was not ineffective, and an appellant bea~s the bm-den of proving otherwise. To establish an ineffective assistance of counsel claim, the appellant is required to satisfy a three-prong inquiry: (1) whether the underlying claim is of m'guable merit: (2) whether or not counsel's acts or omissions had any ~easonable su-ategic basis designed to advance the interests of appellant; and (3) whether there is a reasonable probability that the outcome of the pro- ceedings would have been different, but for the eh'ors and omissions of counsel. Criminal Law & Procedure · Criminal Offenses > Vehicular Crimes > Driving Under the Influence Transportation Law > Private Motor Vehicles · Operator Licenses The loss of d~Sving privileges pursuant to 18 Pa. Cons. Stat. Ann. § 6310.4, is a civil collateral consequence of and not a part of the criminal sentence for a conviction for possession and consumption of an alcohohc beverage by a pe~on under 21 years of age. Transportation Law > Prieate Motor Vehicles > Operator Licenses License suspension is properly considered a collateral consequence t~ther than a criminal penalty. Criminal Law & Procedure > Guilty Pl~as · Knowing & Intelligent Requirement Transportation Law · Private Motor Vehicles · operator Licenses Suspension of driving p~Svileges is a collateral civil con- sequence of a conviction; there is no requirement that a defendant know of this consequence at the time of his guilty plea. Criminal Law & Procedure · Guilty_ Pleas · Valuntarh~ess Transportation Law · Pri~ate ~Iotor Vehicles · operator Licenses A loss of driving privileges is in-ciera m to the determina- tion of whether a guilty plea was entered voluntarily and knowingly. Governments · Legislation · Interpretation Under the roles of statutory construction the title of the statute may be used in the construction tbereof. I Pa. Co.s. Stat. An.. § 1924. However, the title ora statute shall not be considered to conU:ol. Criminal Law & Procedure · Sentencing · Imposition A consequence is civil in nature where imposition has been vested in an administrative agency over which the criminal judge had no conf,-al and for which he had no responsibility. Transportation La}~ · Pri~ate Motor Vehicles · Operator Licenses 18 Pa. Cons, Stat. Ann, § 6310,4(a) mandates that the judge "shall" order the suspension of the operation privi- lege. Criminal Law & Procedure · Appeals · Standards of Review · Standards Generally Transportation Law · Pri~ate Motor Vehicles · operator Licenses The suspension of operating privileges pursuant to 18 Pa. Cons. Stat. Ann. § 6310.4 is a collateral civil con- sequence of a criminal conviction and is not part of the criminal sentence. It is not pmptn- for a defendant to at- tack the validity of the criminal conviction upon which Deparm~ent of Transpo~xation based the suspension in a civil p~-oceeding. A licensee may not coilaterally attack an underlying criminal conviction in a civil license sus- pension proceeding, The scope of review of an operating privilege suspension which resulted from a criminal con- viction does not include the authority to attack the validity of the underlying criminal conviction. Criminal Law & Procedure · Appeals · Standards of Re~iew · Standards G~nerally Transportation Law · Pri~ate Motor Vehicles · Operator Licenses Operating p~ivilege suspensions inaposed by the Depmm~ent of Transportation under 18 Pa. Cons. Stat. Amt. § 6310.4 are within the scope of 75 Pa. Co.x. Stat. Amt, § 1550, relating to statutory appeals, and are prop- erly appealable to the Commonwealth Court under 42 Pa. Cons. Stat. Ann. § 762(a)(3). Criminal Law & Procedure · Appeals · Re~iewability An order directing a defendant to install an ignition inler- lock device is a collateral civil consequence of a defen- dam's criminal conviction, not properly subject to appeal in a criminal matter. Civil Procedure · Appeals · Appellate Jurisdiction · Final Judgment Rule Civil Procedure · Appeals · Appellate Jurisdiction · Page 3 2002_ PA Super 271, *; 2002 Pa Super. LEXIS 2536, * * I Interlocutor_ Orders Ct¥1l Procedure > Appeals > Appellate Jurisdiction > Collateral Order Doctrine Appeals may b~ take fi~om interlocutox~, ordals as of right, final orders, collateral orders, or interlocutol? ordar by permission. Pa. R. App. E 31 I, 341. A final older is one that disposes of all claims or all parties. Transportation Law > Pri~ate Motor Vehicles · Operator Licenses The ignition interlock order ora second offender only be comes ripe for review when one of two events occur: First. when a second-time offender seeks restoration of his op- elating privileges and it is denied by the Pennsylvania Department of Transpmnation (Pen. DOT) because of his failure to comply with the ignition interlock order; and second, when a second offender does not apply for an igni- tion !nterlock restaScted license and his license suspension continues for an additional year pmsuam to 42 Pa. Star A*m. § 7003(5). In both of those cases, failure to comply with the ignition interlock device order results in an additional one year of license suspensure. 42 Pa. Con& Stat. Ann. § 7003. Once a defendant has been denied an ignition interlock restricted license by PennDOT, he can appeal to the Court of Common Pleas for review of that decision under 75 Pa. Con& Stat. Atm. § 1550(a). COUNSEL: M. Susan Ruffner, Public Defender, Pittsburgh, for appel- lants. Michael W. Streily, Assls~ant District Attorney, Pittsburgh, for Commonwealth, appellee. JUDGES: Before FORD ELLIOTF, BOWES and POPOVICH, JJ. OPINION BY POPOVICH, J. BOWES, J. filed a ConcunSng and Dissenting Opinion. OPINIONBY: POPOVICH OPINION: OPINION BY POPOVICH, J.: [*PI] Today, we review these consolidated appeals from the judgments of sentence entered in the Comn. of Common Pleas of Allegheny County, following ap- pellants' second convictions for driving under the influ- ence of alcohoI in violation of 75 Pa. C.S.A. § 3731. Appellants challenge the constitutionality of Chapter 70 of the Judicial Code, ,12 Pa. C.S.A. §§ 7001 - 7003, [**2] which requires the taSal court to order the installation of an approved ignition interlock device on each motor vehicle owned by a person who has been convictod of a second or subsequent violation of 75 Pa. C&A. § 373l. Upon review, we do not reach the merits of appellants' consti- tutional claims since we are convinced that the ignition interlock o~ders in question impose a civil penaky, not properly subject to attack in these criminal proceedings. In addition, the ignition thtedock device orders, indepen- dent of the ctiminal judgment of sentences, are not final, appealable orders. Accordingly, we affirm the appellants' judgments of senlence. Superior Court Docket Number 479 WDA 2001 [*P2] Appellant Brian Anthony McManus was charged with two counts of driving under the influence of alcohol, 75 Pa. CKA. §§ 3731(a}(1), (a)(4)(i). McManus pleaded guilty to both counts on December 4, 2000, and waived a pmsemence investigation. That same day, the com~. sentenced McManus m three to six momhs of im- prisonment, to be followed by two years of probation. Since this was McManus' second DUI [*a3] conviction, the Commonwealth requested the thai corox to order him to comply with the ignition interlock device requirements of 42 Pa. CS.A. § 7002(b). McManus' counsel objected on the ~ounds that the ignition interlock device law was unconstitutional. The ttial court rejected McManus' con- stimtional objection and entered the following order: AND NOW, to wit, this 4th day of December, 2000, Pmsuant to the Court's authority as provided in Section 7002(b) of Title 42, the defendant is hereby ORDERED to have installed an approved ignition interlock device on each and eve~ vehicle owned or registered in defendant's name. This portion of the sentencing order is to take ef- fect upon restoration of Defendant's operating privileges by the Depmmaent of Transpm~ation. It is FURTHER ORDERED that, upon having an approved ignition in- terlock device installed on each and evet3~ vehicle owned or registered in his name pursuant to this ORDER, the DEFENDANT shall promptly provide to this Court a written certification that such approved ignition interlock device has been installed on each and eve~3' vehicle owned or registered in Defendant's name. [*P3] [**4] McManus then filed a timely post-ttial motion in which he again asserted that the ignition inter- lock device law was unconstitutional on the grounds that: 1) It is impemfissibly vague; and 2) It violates duc pro- cess rights by considering a defendant's prior acceptance of Accelerated Rehabilitative Disposition, an adjudication of delinquency or a consent decree as a first conviction. He iequested that the com~. vacate the order directing him to install ignition interlock devices on all vehicles whicfi he owned. The uSal com~. denied his motion on Febma~3~ 12, 2001. Page 2002 PA Super 271, *P4; 2002 Pa Super. LEXIS 2536, [*P4] On March i3, 2001, McManus filed the present appeal fi'om the judgntent of sentence entered on December 4, 2000. In this appeal, he raises two issues I. Does the DUI interlock statute violate equal protection provisions of both the federal and state constitutions and was h-iai counsel ineffective for failure to preserve the issue for appeal? II. Does Chapter 70 of tho Judicial Code requiring an igni- tion interlock violate the due process protections of both the federal and state constitutions and was trial counsel ineffective for failing to preserve the issue for appeal? McManus' [**5] Brief, p. 5. Superior Court Docket Number 523 WDA 2001 [*PSI Appellant Wilfiam Jesse Rondel was chla-ged with two counts of driving under the influence of alcohol, 75Pa. C.&A. §§ 3731(a)(1), (a)(4)(i), one count of receiv- ing stolen property. 18 Pa. C.S.A. § 3925, and one count of windshield obstructions and wipers, 75Pa. C.S.A. § 4524. On October 4-, 20(10, Randal pleaded guilty to ail charges. The court sentenced him to thirty days to two yem-s less one day for one of his DUI corrvictions and two years of consecutive probation for his receiving stolen propeixy conviction. Also that same day, since this was Randal's second DUI conviction, the Commonwealth requested the tout2 order Randai to comply with the ignition interlock device law. Randal's counsel did not object, and the coral entered the following order: AND NOW, to wit, this 4th day of October, 21X~0, Pursuant to the Court's authority as provided in Section 7002(b) of Title 42, the defendant is hereby ORDERED to have installed an approved ignition interlock device on each and evel3, vehicle owned or registered in defen- dant's name. [**6] This portion oftbe sentencing order is to take effect upon restoration of Defendant's operat- ing privileges by the Deparmtent of Transportation. It is t~U. RTHER ORDERED that, upon having an approved ig- nltmn interlock device installed on each and every vehicle owned or registered iii his name pursuant to this ORDER, the DEFENDANT shall promptly provide to this Courl a written certification that such approved ignition inter- lock device has been installed on each and every vehicle owned or registered in Defendant's name. [*P6] On October I 1, 2000, Randal filed a motion for modification of sentence in which he alleged that the igni- tion interlock device taw is unconstitutional because: 1) It is impernfissibly vague; and 2) It violates due process by defining a defendant's previous acceptance of ARD, juvenile adjudication or consent decree as a fit-st DU7 conviction. On February 12, 200I. the ri'iai court denied Randal's motion. ['I>7] On March 14, 2001, Randal appealed from the judgment of sentence entered on October 4, 2000. Herein, Randal raises the following claims for our review: L Does the DUI interlock statute violate equal protection provisions of both the federaI [* *7] and state constitutions and was trial counsel ineffective for failure to preserve the issue for appeal? II. Does Chapter 70 of the Judicial Code requiring an igni- tion interlock violate the due process protections of both the federal and state constitutions and was ,xial counsel ineffective for failing to presetwe the issue for appeal? Randal's Brief, p. 5. Superior Court Docket Number 521 WDA 2001 [*PSI Appellant Timothy HanSs was charged with two counts of duSving under the influence of alcohol, 75 Po. C.S.A. §§ 3731(o)(l), (a)(4)(i), one count of ch-ivel~ required to be licensed, 75 Pa. C.S.A. § 1501, and one count of period for requiting lighted tamps, 75 Pa. C.S.A. § 4302. On October 2, 2000, Harris pleaded guilty to the charges. Following his guilty plea, Harris waived his pre- sentence investigation and was sentenced to thil~y days to two yem's less one day for one of hls DUI convictions. The Commonwealth noted that Hmafs was eligible for the installation of a DUI ignition interlock device, because, by his own admission, this was his second DUI convic- tion. The Commonwealth [**8] indicated that it would prepare an order for the court. To date, however, no order, pursuant to 42 Pa. C.S.A. § 7002(b), directing Hauls to in- stall an approved interlock ignition system on each motor vehicle owned by him has been enteled. Nevertheless, on October 11, 2000, HmTis filed a motion for modification of sentence in which he alleged that the ignition interlock device law is unconstitutional because: 1) It is impermis- sibly vague; and 2) It violates due process by defining a defendant's previous acceptance of ARD, juvenile adju- dication or consent decree a~ a first DUI conviction. On February 12, 2001, the Uial court denied Harris' motion. [*Pg] On March 14, 2001, Hah-is appealed from the judgment of sentence entered on October 2, 2000. Presently, Hm~:is raises the following questions for our review: L Is the DUI interlock statute unconstitutional where it violates the equal protection provisions of both the federal and stale constitutions? 11. Is Chapter 70 oftha Judicial Code requiring an igni- tion interlock device unconstitutional where it is vague and does it violate the due process protections of both the Page 5 2002 PA Super 271, *ix); 2002 Pa Super. LEXIS 2536, ~'8 federal and state [**9] constitutions'? Ill. Did the u-iai court improperly impose the interlock device pregnant to the plovision pertaining to second and subsequent offenders when there was vli~aafiy no evidence to support that Timothy Harris was a second offender and was u-iai counsel ineffective for failure to preserve the issue? HmTis' Brief, p. 6. [*P10] All thi'ee of the appellants attack tbe constitu- tionality of the Ignition Interlock De'vice Law as it applies to a defendant with a second or subsequent conviction for driving under the influence of alcohol or a conu-olled sub- stance. Specifically, the Ignition interlock Device Law, 42 Pa. C.S.A. § 7002(b) provides: In addition to any other requirements imposed by the court, where a pensen has been convicted of a second or subsequent violation of 7_7 Pa. C.S. § 3731, the court shall order the installation of an approved ignition interlock device on each ntoter vehicle owned by thc pel~on to be effective upon the xestoration of operating privileges by the depmmment. A record shall be submitted to the de- pertment when the court has ordered the installation of an approved interlock [*'10] ignition device. Before the deparm~ent may restore such person's operating privilege, the depa~mlent nmst receive a certification from the court that the ignition interlock system has been installed. [*Pll] In addition, 42 Pa. C.&A. § 7003 sets forththe requirements for restoration of pe~on's operating privi- leges following a second DUI conviction, providing: In addition to any other requirements established for the restoration of a persen's operating privileges under 75 Pa. CS. § 1548 (relating to requh-ements for driving under influence offenders): (l) Where a person's operating ptqvileges are sus- pended for a second ca' subsequent violation of 75 Po. C.& § 3731 0-elating to ddriving under influence of alcohol or conu-oIled substance), or a similar out-of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the repro-intent that each motor vehicle owned by the pe~'son has been equipped with an approved ignition interlock system. (2) A person seeking restoration of operating privi- leges shall apply to the depax'tment for an ignition inter- lock [**11] restricted license under 75 Pa. C& § 1951(d) (relating to driveffs license and learner's permi0 which will be clem-ly marked to resufct the pe~-son to operating only motor vehicles equipped with an approved interlock ignition system. (3) During the yem- immediately following restoration of tile person's operating privilege and thereafver until the pm~on obtains an unrestricted license, the person shall not operate any motur vehicle on a highway within this Conmaonweallh unless the motor vehicle is equipped with an approved ignition interlock system. (4-) One yea- from the date of issuance of an ignition interlock res~fcted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa. C.S. § 1951(d) that does not contain the ignition hiterlock system resn'iction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa. CS. § 3731 or a similar out-of-State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply fox' the restoration of operating p~ivileges [*'12] for an additional year after otherwise being eligible for restoration under para~'aph (1). [*P12] We note that appellants' present constitulional m~,~uments differ sigdificantly from those which they pre- sented to the court below. Appellant~ now rogue that the Ignition Interlock Device Law is not reasonably related to the accomplishment of the state's objective of promot- ing public safety by preventing intoxicated difve~ fi-om operating their ntotor vehicles, n 1 Appellants cite several "problems" with the ignition interlock device law. First, they note that the statute requires a second offender to install ignition interlock devices on every car they own, even though he may not &five them all. Second, they point out that a second offender who does not own an antonio- bile or who cannot afford to install interlock devices on evet3~ vehicle that he owns is not eligible for the restricted driver's license, and consequently, auffe?s a more severe licensing penalty than more economically fortunate sec- ond offenders. Third, appellants suggest that a second offender who leases a vehicle is not entitled to apply for a restricted license under the law. Consequently, appellants argue that [*'13] pairing the opportunity to obtain a stricted license with ownet~ltip of a vehicle and financial ability to pay for the devices violates the equal protec- tion provisions of the United States and Pennsylvania Constitutions. They also ~u'gne that the requirement that a second offender install an interlock device on every car that he owns is not rationally related to the intended goal of keeping drank d~fvet~ off of the road. nl It is clear that driving an automobile is a privilege in Pennsylvania. Plowman ~. Dept. of Trat~portalion~ Bureau o.f Driver Licenaing, 535 Pa. 314, 318, 635 A.2d 124, 126 (1993). Consequently, the constitutionality of the ignition interlock device law is reviewed using the rational Page 6 ' 2002 PA Super 271, *PI2; 2002 Pa Super. LEXIS 2536, ** 13 basis test. Commonwealth v. Etheredge, 2002 PA Super58, 794 A.2d 391 (Pa. Supe~ 2002). Our Supreme Coutx has stated: In applying the rational basis test, we have adopted a two-step analysis. First, we must determine whether the challenged statute seeks to promote a legitimate state interest or public value, ff so, we must next detemtine whether lhe classification adopted in the legisiafion is reasonably related to accomplishing that articulated state intel-est or in- terests. Curtis ~. Kllne, 542 Pa. 249, 257, 666 A.2d 265, 269 (1995) (citations onfitted). See also Commonwealth v. Albert, 563 Pa. 133, 758 A.2d 1149, 1151-1152 (2000). Presently, it is undisputed that preventing in- toxicated drlve~ fi-om operating motor vehicles is a legitimate state interest, and that the ignition inter- lock device [aw is intended to further that interest. [*'14] [*P13I In a related argument, appellants contend that the Ignition Interlock Device Law violates the due process clauses of the United States and Pennsylvania Constitutions. Appellants cite that the statute requires that the second offender install an approved ignition interlock device in event vehicle owned by him and the u-ial court to cetlify to the Deparm~ent of Transpo~.ation that an ap- proved device has been installed in every vehicle. 42 Pa. CS.A. §§ 7002, 7003(l). However; as noted by appellants, the statute provides no procedure for a second offender to offer evidence of his installation of the devices, for obtaining the necessm3~ certification from the trial court, for challenging denial of certification or for insuring that certification is properly forwarded to DOT. Consequently, they claim that the Ignition Interlock Device Law violates the due process protections of our state and federal, con- stitutions. [*PI4] As previously stated, appellants present these constitutional claims for the first time on appeal. These new claims are the same constimfional claims upon which David Mockaltis prevailed in the Corox [**151 of Common Pleas of Cumberland County en banc. Commonwealth ~,. Moekaitis, 54 Pa. D. & C.4th ll5, 2001 Pa. D. & C. LEXIS 135. (Com~. of Common Pleas, Ctm~berland County, 2001) n2 See also, Commonwealth ~. Riggs, 53 D & C 4th 309, 2001 Pa. D. & C LEXIS 123 (Court of Common Pleas, Lebanon County, 2001) (finding the ignition interlock device law unconstitutional). Since these claims are being raised for the In~t time on appeal, they ate clearly waived. Pa. R. Cfim. P 14100t)([)(c); n3 Pa. R.A.I~ 302(a): Commonwealth v. Lawson, 2000 PA Super 336, 762 A.2d 755, 758 (Pa. Super 2001), appeal denied, 566 Pa. 638, 781 A.2d 141 (2001). n4 n2 Commonwealth v. Mockaitis, 32 MA P 2001 (Pa. 2001), is cun'ently pending decision before our Supreme Court. It has been briefed and was argued on November 14, 2001. n3 Pa. R. Crim. P. 1,~10 was renumbered Rule 720~ effective April [, 200I. n4 Although appellants did challenge the con- stitutionality of the Ignition Interlock Device Law during sentencing and/or in post-sentence motions, they do not herein pursue any of those constitutional c[aims but, rather, raise these additional, new ones for dre first time [*'16] [*PIS] Nevertheless, we may review the consti- tufional claims of Appellant McManus and Appellant Randal via their assertion that their prior counsel were ineffective for failing to raise them properly before the trial court. Commonwealth ~. ltenry, 341 Pa. Supe}: 146, 491 A.2d 193 (Pa. Super. 1985) n5 However, with re- gard to Appellant HanSs, the constitutional claims which he raises herein remain waived as he has not asset~ted that prior counsel was ineffective for failing to raise them before the trial court, n6 n5 We note that appellants are, in effect, not rep- resented by new counsel on apgmal since both prior and present counsel for all t tn-ce appellants are em- ployees of the Public Defend~"s Office. However, as our analysis will reveal, the meritlessness of the current attacks on counsels' stewardship is appar- ent on the face of the records. Accordingly, we need not remand for appoinm~ents of new count, el. See Commonwealth ~,. McBee, 513 Pa. 255, 520 A.2d 10 (1986)(court may review counsel's allegations of own ineffectiveness where it is clear from the record that the ineffectiveness claim lacks merit). [*'17] n6 We recognize that Appellant Hmxi~' failure to raise these consfitufional claims via an ineffec- live assistance of counsel asse~Xlon is likely based upon the fact that the trial court has not to-dare entered an orde~ pm-suant to the Ignition Interlock Device Law, and consequently, counsel could not be ineffective for failing to raise theses constitu- tional challenges to a nonexistent order. Page 7 2002 PA Super 271, *PI6; 2002 Pa. Super. LEXIS 2536, *'17 [*PI6] Accordingly, we turn to analysis of Appellam McManus' and Appellant Randal's ineffectiveness clalms. In Commonwealth v. Da~is, 1999 PA Super 289, 743 A.2d 946, 949-50(Pa. Super 1999), we stated: The standard fox' determining whether counsel was inef- fective is well-settled. The law presumes that counsel was not ineffective, and appellant bears the burden of proving otherwise. Commonwealth ~. Hall, 549 Pa. 269, 290, 70l A.2d 190, 200 (1997), cert. denied, 523 U.S. 1082, 140 L Ed. 2d684, 118S. Ct. 1534(1998). To establish an ineffective assistance of counsel claim, Commonwealth ~. Pierce, 515Pa. 153, 527 A,2d 973 (1987) [*'18] and its progeny require appellant to satisfy a ttnee-prong in- qui~3~: (1) whether the underlying claim is of arguable merit; (2) wbetber or not counsel's acts or omissions had any reasonable strate~c basis designed to advance the in- terests of appellant; and (3) whether there ia a reasonable probability that the outcome of the proceedings would have been different, but for the et'rom and omissions of counsel. Coramonwealth ~. Kimball. 555 Pa. 299~ 312, 724 A.2d 326, 333 (1999). [*P17] Thus, it would appear that the first issue for our consideration is whether Appellant McManus' and Appebkant Randal's underlying constimrional claims are meritorious. Howevm; that is not the case as the Commonwealth argues that the trial coral lacks juris- diction at this time to entertain appellants' constitutional challenges to the Ignition Interlock Device Law because the ordel~ directing McManus and Randal to install the devices are merely collateral civil consequence of their criminal conviction fi-om which appeais do not lie in these criminal matters, n7 n7 We note that this calm has ah-eady rejected constitutional challenges to the Ignition Interlock Device Law similar to those raised herein in the case of Comraonwealth ~. Etheredge, 2002 Pa. Super58, 794 A.2d 391 (Pa. Supe~ 2002). However, the question of whether an ignition interlock device order is reviewable in an appeal fi-om the judgmeut of sentence was neither raised not- adch'essed. [*'19] [*PIS] In Common~,ealth v. Ouffey, 536Pa. 436, 639 A.2d l 174 (1994), our Supreme Court determined that the loss of driving privileges pursuant to 18 Pa. C.S.A. § 6310.4, is a civil collateral consequence of and not a pmk. of the criminal sentence for a conviction for possession and consumption of an alcoholic beverage by a person under 21 yem~ of age. In so raling, our Supreme Court stated: Today, we hold that loss of chiving privileges is a civil col- lateral consequence ora conviction for underage drinking under 18 Pa. C S.A. § 6308~ Courts of this Commonwealth have consistently recognized that a license suspension is a collateral civil consequence of a criminal conviction. See Commonwealth ~. Engler~, 3ll Pa, Super. 78, 457 A.2d 121 (1983) (suspension intposed following a conviction for failing to stop at the scene of an accident constituted a civil collateral consequence); Brophy ~. Department of Transportation, 94 Pa. Co,~nw. 310, 503 A.2d 1010 (1986) (operating privilege suspension as a habitual of- fender constitutes a collateral civil consequence [**20] of acceptance of ARD on the underlying offense). See also Commonwealth ~, Burxick. 526 Pa. 6, 584 A.2d 291(1990); Bre~ster v. Department of Transportation, 94 Pa. Cotronw. 277, 503 A. 2d 497 (1986); Zanotto ~. Department of Transportation, 83 Pa. Commw. 69, 475 ~4~2d 1375 (1984). We recognize that these cases involved offenses other than underage drinking. HoweYm-, we find that these cases establish that license suspension is prop- erly considered a collateral consequence rather than a criminal penalty. As we hold that appellee's suspension is a collateral civil consequence of his conviction, there is no reqtti~- Blent that he know of this consequence at the time of his =,guilty plea. Appellee's loss of drlving privileges is "irrel- evant to the determination of whether a guilty plea was emro-ed voluntarily and knowingly." Froraeta, 520 Pa. 552, 555, 555 A.2d 92, 93. Appellee contends that the suspension of his driv- ing privilege is not a civil co[lateral consequence, but a criminal penaky. We find these argoments unpersuasive. Appellee fit~t argues that his suspension is a criminal penalty because the 1"21] statute rain, dating the suspen- sion, 18 Pa. C.S.A. § 6310.4(a), is found in Title 18, the criminal code. We recognize that under the tales of statu- tory construction the title of the statute may be used in the construction tbemof. See 1 Pa. CS.A. § 1924. However, the title of a statute "shall not be considered to cont~-ol..~. ' Id. We conclude that placement of § 6310.4(a) in the crim- inal code does nut render it a criminal penalty. Nowhere in the sentencing statutes, 42 Pa. C.S.A. §§ 9701 - 9781, is suspension of the operating privilege authorized as a penalty which a criminal court may impose for a crimi- nal conviction. Suspension of operating privileges is not one of the six authorized sentences enumerated in 42 Pa. C.&A. § 9721 that may be imposed, for conviction of a criminal offense such as a violation of 18 Pa. CS.A. § 6308. Nor is it a mandatory penalty under Chapter B of the Sentencing Code, 42 Pa. CS.A. §§ 9711 - 9719, or included as a sentencing alternative in [**22] Chapter C of the Sentencing Code, 42 Pa. C.&A. §§ 9721 - 9729. Also, we note that the mandatory fines and imprisonment Page 8 2002 PA Super 271, *PI8; 2002 Pa. Super. LEXIS 2536, **22 sanction tBr drivit~g under the influence or conviction for homicide by vehicla are found not in Title 18, but in Title 75, the Vehicles Code The placement of these penalties in the Vehicles Code does not render them civil sanctions Our examination of these t-elated statutes leads us to the conclusion that our legislature did not intend to rigidly classify them as civil or criminal according to where they are located in the code. Thus, we conclude that the place- mom of the operating p~Svilege suspension in Title 1 $ does not render it a criminal sanction. Appellee next argues th at the operating privilege sanc- tion cannot be a collateral civil consequence because it is ordered by the com~.. A consequence is civil in na- ture where, "imposition has been vested in an admin- isu-ative agency over which the criminal judge had no control and for which he had no responsibility." Brewster v. Department of Transportation, 94 Pa. Cotmnw. 277, 280, 503 A.2d 497, 498 (1986). See also Michel ~. United States. 507 E2d 461, 464 (2d Cir. 1974); [**23[ Commonwealth v. Welh'ngton. 305 Pa. Super: 24, 451 A.2d 223, 224 (1982). Under this test, we find that the ap- police's suspension was a collateral civil consequence. We recognize that § 6310A(a) is different fi-om other sections of the Vehicle Code in that it mandates that the judge or- der a license suspension and transmit this order to DOT n 5 However, we find that the act of the judge is more ministerial in nature than one involving "con~:ol" or "re- sponsibility." Section 6310?*(a) mandates that the judge "shall" order the suspension of the operation privilege. Thus, the judge has no conuol over whether the sentence will be imposed In addition, DOT calculates the pm-iod of the suspension based upon any prior incidents, and then imposes the sentence on the driven The judge does no more than guarantee that DOT receives timely notice of the conviction requiring license suspension as a collateral consequence. n 5 For example, see 75 Pa. C.$.A. § 1542 which mandates a license suspension for habitual offenders, but does not require that the court oi-der the suspension nor transmit notice to DOT As we hold that the suspension [**24] of operating privileges pm'suant to 18 Pa. C.S.A. § 6310.4 is a collat- eral civil consequence ora criminal conviction and is not part of the criminal sentence, we must also hold that it is not proper for the appellee to attack the validity of the c~Sminal conviction upon which DOT based the suspen- sion in this civil proceeding. We have established that a licensee may not collaterally attack an underlying crim- inal conviction in a civil license suspension proceeding. In Commonwealth v. Bursick, 526 Pa. 6, 584 A.2d 291 (1990), this court held that the scope of review of an op- erating privilege suspension which resulted from a crim- ina[ conviction does not include the authmSty to attack the validity of the underlying crintinal convimion. See also Commonwealth v. Wolf, 534 Pa. 283, 632 A.2d 864 (1993). Numerous Commonwealth Cout~ decisions have adhered to this principle. See, E.g., Commonwealth, Dep't of Transp., Bureau of Driver Licensing ~. Heeler, 128 Pa. Commw. 480, 563 A. 2d 993 (1989); Radt'ce v. Commonwealth, Dep't of Transp., Bureau of Traffic Safety, 118 Pa. Co~r~n*~ 627. 545 A.2d 1005 (1988). [**25] Under these principles of law, appellee cannot at- tempt to withdraw his guilty plea in this civil proceeding. When a licensee becomes aware that he is going to lose his th-lying privilege as a consequence of paying a fine on a sunm~ary offense, his only remedy is to seek allowance of appeal nunc pro tunc from the summary conviction. Heeler, 128 Pa. Cotnmw. at 483, 563 A.2d at 994. We would suggest to our legislature that it should be clearly stated on the citation, if it is not ah-early, that a guilty plea to the offense of underage drinking will resuh in a license suspension. While we hold today that a licensee does not have to be warned of the collateral consequences of li- cense suspension, we believe it would be more equitable and Ilo great burden on the Conm~onweaIth to provide such a w~rnlng In view of our holding, it is clear that operat- ing privilege~suspensions imposed by the Depm'm~ent of Transportation under 18 Pa. CS.A. § 6310.4 are within the scope of 75 Pa. C&A. § 1550, relating to statutoD' appeals, and ate properly appealable to the Commonwealth Com~. under 42 Pa. C.S.A. § 762(a)(3) [**26] . Accordingly, we reverse the order of the Conm~onwealth Coral and reinstale the 90 day suspen- sion of operating privileges issued by the Department of Transportarion. Duffey, 639 A.2d at 1176-1177. See also Commonwealth, Department of Transportation McCafferty, 563 Pa. 146, 158, 758 A.2d 1155, 1161-1162 (2000) (mandatory driver's license suspension imposed by PennDOT pm'suant to the Driver's License Compact constitutes a collateral civil consequence of an out-of- state DLrI conviction); Plowman v. Commonweath, Department of Transportation, 535 Pa. 314, 321, 635 A.2d 124, 128 (1993) (mandatory suspension of one's driver's license following a drag conviction is a civil con- sequence of a criminal violation); Commonwealth ~. Wolfe, 454 Pa. Super: 93, 684 A.2d 642 (Pa. Super: 1996) (suspension of driver's license for refusal to submit to chemical testing was not a "punishment" barring subse- quent ctiminal prosecution for ch-lying under the influ- ence, since such suspension is a civil sanction designed to protect the public, not punish the defendan0. [*PIg] Applying the analysis [**271 set forth in Page 9 2002 PA Super 271, *PI9; 2002 Pa. Supen LEXIS 2536, **27 Duffey, to the appeals before us, we similarly conclude that the orde~-~ directing Appellants McManus and Raudal to install ignition interlock devices are collateral civil con- sequences oftbeir criminal convictions, not properly sub- ject to appeal in these criminal matters. We recognize that the ignition interlock ordet~ in the present cases, like the suspension order in Duffey, were entered by the lrial court, not an administrative agency, and consequently, the orders appear more like criminal sanctions. However, in om- cases, as in Duffey, the trial com't was without dis- cretion in these matters as the stat, ate mandates that the "court shall order the installation of an approved ignition interlock device[.]" 42 Pa. C.&A. § 7002(b). n8 Thus, the trial court's imposition of the interlock device orders was ntlnistefial in nature. The trial judge had no control over whethe~ to order the installation of ignition interlock devices. Rather, the court simply directed installation of the ignition interlock devices and forwarded a copy of the order to the Deparm~ent of Transportation. It is the Department of Transportation [*'28] which then deter- mines when appellants are entitled to ignition interlock resu-icted licenses and, ultimately, ura-estricted licenses. ~-2 Pa. C.S. A §§ 7003(2),(,g). n9 n8 We note that pursuant to 42 Pa. C.S.A. § 7002(a)[effective September 30, 2001 ), a ~al com't "may order the installation of an approved igni- tion interlock system" when a pexson has been con- victed of a first offense under 75 Pa. C.S~A. § 3731 (relsting to driving under the influence). Whether vesting the trial court with discretion to order in- s}aC!atlon of an ignition interlock device by a first- ume offender renders the penalty chminal in na- ture is a question not presented by the case before us. Neve~lbeless, we acknowledge that such discre- tion would appear to alter significantly the nature of the trial court's involvement under the Ignition Interlock Device Law, flora "ministerial" to discre- tionm3', where first-time offenders are concerned. n9 We recognize that the uSal court also has the duty under the Ignition Interlock Device Law to certify m Penn DOT that the defendant has installed ignition interlock devices in compliance with the court's orden This, obviously, would require the court to act as a fact-finder. We do not believe that this fact-finding function, which has not yet oc- curred in this matter, alters the minismfial nature of the events which have thus far transpired. [**29] [*P2,0] Having detemdned that the court's orde~ di- recting appellants to install ignition interlock devices on their vehicle are collateral civil consequences of thelr sec- ond driving under the influence convictions, we conclude that Appellants McManus and Randal may not appeal the civil ignition interlock orders in these cximinal matters. Accordingly, we affirm their judgmenm of sentence. [*P21] Further; even if we consider the present appeals to be from the ignition interlock orders them- selves, rather than fi-om the judgments of sentence, we find the orders to be nonappealable, interlocutory or- dex-s. It is abundantly clear that appeals may be take fi-om interlocuto~Bt orders as of right, final orders, col- lateral ordcn-s or interlocutory order by pemtlssion. See Pa. R.A.R 311(lmeriocutm3, Appeals as of Right); Pa. R.A.R 3~-1 (Final Oxders); Smitley v. Holiday Rambler Corp., 707 A.2d 520 (Pa. Super: 1998). A finn[ o~er is one that disposes of all claims or all pa~n. ies. Commonwealth v. Sartin, 708 A.2d 121 (Pa. Super 1998). lh-esently, the orders in question axe not final orders, collateral orders ox- interlocutory ordex's [**30] appealable as of fight. Appellants McManus and Randel suffer no penalty fox' falling to comply with the o~dera until such time as they either apply to PennDOT for an ignition interlock re- stficted chSver's license or do not apply after they have become eligible. 42 Pa. C.S.A. § 7003(5). Upon appel- lants' convictions for d flying under the influence of alco- hol and notification of PennDOT, their driver's licenses were suspended for one year pursuant to 75 Pa. CS.A. § 1532(b)(3), regardless of their compliance with the igni- tion interlock order during that year. In other words, the ignition interlock device order has no impect upon the ini- tial one-year suspension of appellants' licenses pursuant to § 1532(b)(3). [*P22] The ignition interlock order of a second of- fender only becomes ripe for review when one of two events occur: Fi~t, when a second-time offender seeks restoration of his operating pfivileges and it is denied by PennDOT because of his failure to comply with the ignition interlock order; and Second, when a second of- fender does not apply for an ignition interlock restricted license and his license suspension continues [*'31] for an additional year pursuant to 42 Pa. C.S.A. § 7003(5). In both of those cases, failure to comply with the igni- tion intel'lock device order results in an additional one year of license suspensut~e. See 42 Pa. C.&A. § 7003. Once a defendant has been denied an ignition interlock rest~Scted license by PennDOT, he can appeal to the Court of Common Pleas for review of that decision under 75 Pa. CS.A. § 1550(u)(governing judicial review of driver's li- cense suspensions), and daen review of that decision by the Commonwealth Court under 42 Pa. C$.A. § 762(a)(3). See Schneider v. Commonwealth, Department of Transportation, 790 A.2d 363, 200l WL 1692244. *2 n. 7 (Pa. Cmwlth. 2002) {failure to comply with the ignition interlock device requirements is a continuation of asus- Page 10 2002 PA Super 271, *P22; 2002 Pa. Super. LEXIS 2.536, *'31 pension of dxSving privileges because the failure to install the ignition interlock devices will result in the driver's license suspension for an additional year under 42 Pa. CS.A. § 7003(5); therefore, defendant properly appealed PennDOTs refusal to issue unrestricted [**32] license to Court of Common Pleas). [*P23] Since the ignition interlock orders in ques- tion are not final, appealable o~ders, Appellants McManus and Randal cannot challenge the constitutionality of those orders in this appeal. In other words, even if they had ac- tually perfected their appeal from the ignition interlock orders, we would quash their appeal. [*P24] We comment further jn order to discuss Appellant Hah-is' claim that prior counsel was ineffec- tive in failhig to object to the determination that this was his second DU1 offense for the purposes of the Ignition Interlock Device Law. Appellant Harris has challenged the constitutionality of the Ignition Interlock Device Law and his counsel's effectiveness with regard to the finding that this was his second DUI conviction, despite the fact that he has yet to be ordexed to install ignition interlock devices by the trial court. Since AppeLlant Harris does not challenge his criminal sentence of thirty days to two years minus one day, plus $300 fine, safe di-iving school and al- cohol evaluation and costs, his judgment of sentence is affirmed. [*P25] Any issue regarding whether he was a second offendea' for the purposes [*'33J of the Ignition Interlock Device Law is not ripe for review since the laial coral has not even entered an order pursuant to the law. n l 0 As we have already decided, a ignition interlock order is not a final order. Accordingly, even if the u-iai court had di- rected Appellant Hm'~s to comply with the requirements or' the Ignition Interlock Device Law, he could not appeal counsel's ineffectiveness with regard to application of the law to him until such time as he was denied an ignition interlock resu5cted license or an unresu5cted license. rtl0 Even though the lrial court has not ot~ dered AppeLlant HanSs to comply with the Ignition Interlock Device Law, it nevertheless appears that the trial court possibly could still so do. Compare Frantz ~. Commonwealth, Department of Transportation, 168 Pa. Commw. 35. 649 A.2d 148, 150 (Pa. Cmwlth. 1994) (la'ial judge's order to PennDOT directing suspension of defendant's chSv- lng p~Svileges due to underage drinking conviction was not modification of criminal sentence after 30- day time limit, but rather was mci'ely court's ful- fillment of statutory obligation to direct such a sus- pension after a conviction for underage drinking). Since the Ignition Interlock Device Law does not state when during the one-year pelSod following a defendant's DUI conviction the court must order installation of interlock devices, it is possible that the trial court still has the authority so to do. [**34] [*P26] In sum, we affit-m all three appellants'judg- ments of sentence. As for Appellants MeManus and Randall, the ignition interlock device orders imposed in their cases are collateral civil consequences to their inal convictions and are not properly appealable in these criminal matters. As for Appellant Hairls, no interlock device order has been imposed, and a constitutional chal- lenge to a non-existent order is not reviewable, even if the order was properly appealable in this matter. As for ali thi'ee appellants, the constitutionality of the Ignition Interlock Device Law will only be challangable in civil appeals once they have suffered civil sanctions based upon the law. [*P27] At Docket Number 479 WDA 2001, judg- ment of sentence affirmed. [*P28] At Docket Nunther 521 WDA 2001, judg- ment of sentence alfa-meal [*P29] At Docket Number 523 WDA 2001, judg- ntent of sentence affu'med. [*P30] BOWES, J. files a Concurring and Dissenting Opinion. CONCURBY: BOWES DISSENTBY: BOWES DISSENT: CONCURRING AND DISSE:¥1'ING OPINION BY BOWES, J.: [*PI] I dissent from the majority's disposition of this appeal in two respects. I believe that we can review the propriety [**35] of the interlock orders even though the ordet's impose a civil penalty, and I do not a~ee that the interlock orders are interlocutory. [*P2] Clearly, the majority's position that ignition interlock orders ate civil in natm-e is a sound one, and the cases cited by the majority uphold this proposition. However, none of the cases relied upon by the majority holds that a civil sanction that is imposed as part of ajudg- mere of sentence is "not properly subject to appeal in la] criminal matter" Indeed, the appellate courts do review 2002. PA Super 271, '~P2; 2002 Pa~ Supel~ LEXIS 25315, **35 Page ll the constitutionality of sanctions that arc civil in nature when those sanctions are imposed as part ora jodgn~ent of sentence. Commonwealth ~. Oaffney, 557Pa. 327, 733 A.2d 616 (1999) (regista'ation requirements of Megan's Law were reviewed on appeal from judgment of sentence and detelmined not to be punishn~enO; Commonwealth v. Etheredge, 2002 PA Super 58, 794 A.2d 391 (Pa. Super, 2002) (constitutionality of interlock law reviewed on ap- peal from judgmem of sentence). [*P3] In addition, a defendant is permitted to appeal following conviction and entry ora judgment of sentence even if no penalty [**36] is imposed on the conviction. Commonwealth v. Clark, 2000 PA Super 14, 746 A.2d 1128 (Pa. Supez 2000) (eh bane). These interlock ordexs unquestionably were entered after conviction and as part o£ the judgments of sentences and are not interlocutory. Hence, I believe that the constitutionality oftbe interlock law should be addressed. DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE ORDER OF COURT AND NOW, this 29th day of October, 2002, upon consideration of Appellant's "Appeal from Suspension of Operator's Privilege," a Rule is hereby issued upon Appellee to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant George Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Attorney for Appellee BY THE COURT, jj~OVesl~y Oler/4-r.,-PJ. DARYL D. STRICK, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION'S RESPONSE TO RULE TO SHOW CAUSE The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department), by and through its attorney, George H. Kabusk, Esquire, respectfully represents as follows: A. MOTION TO QUASH APPEAL AS UNTIMELY FILED 1. By official notice dated October 30, 2001, the Depm:tment of Transportation, Bureau of Driver Licensing, notified Daryl Douglas Strick, O.L.N. 22180347, that as a result of his conviction on September 4, 2001, of a violation on March 4, 2001, of Section 3731 of the Vehicle Code, relating to Driving Under the Influence of Alcohol or Drags, his driving privilege was being suspended for a period of one year. See exhibit number 1. 2. The notice dated October 30, 2001, additionally notified the petitioner that as a result of his conviction of driving under the influence, he was required by law to have all vehicle(s) owned by him equipped with an approved ignition interlock system before his driving privilege can be restored and that if he flailed to comply with this requirement, his driving privilege would remain suspended for an additional one year. See exhibit number 1. 3. The petitioner filed an appeal of the above-mentioned suspension on or about October 17, 2002, in the Court of Common Pleas of Cumberland County. 4. The petitioner filed the appeal more than 30 days after the mailing date of the Department's Notice of Suspension. 5. The petitioner's appeal is untimely. 6. The petitioner relies upon Commonwealth v. McManus, 2002 Pa. Super. LEXIS 2536 (Pa. Super. 2002), to argue that his appeal is timely. 7. On October 29, 2002, the Superior Court withdrew its decision in McManus and granted reargument. See attached Department's exhibit number 2. 8. An appeal of a license suspension must be filed wittfin 30 days of the mailing date of the Department's Notice of Suspension. See 75 Pa.C.S. § 1550 and 42 Pa.C.S. §§ 5571, 5572; Bye v. Department of Transportation, .Bureau of Driver Licensing, 147 Pa. Commw. 205, 607 A.2d 325 (1992). 9. Failure to file the appeal within the thirty-day appeal period deprives the court of jurisdiction to entertain the merits of the case. See Department of Transportation, Bureau of Motor Vehicles v. Shemer, 157 Pa. Commw. 380, 629 A.2d 1063 (1993), appeal denied, 536 Pa. 635, 637 A.2d 294 (1993) (appeal quashed when filed one day after the expiration of the 30 day appeal period.). 10. The imposition of the ignition interlock is a matter appealable to the Court of Untimely Filed be granted and that the aforesaid appeal be Quashed and Dismissed. Date: November 15, 2002 Respectfully submitted, Assistant Counsel Office of Chief Counsel Riverfront Office Center-3rd Floor 1101 South Front Street. Harrisburg, PA 17104-2516 (717) 787-:2830 DL-326 (9/95) DATE: November 5, 2002 CERTIFICATION I hereby certify that Rebecca L. Bickley, Director of the Bureau of Ddver Licensing of the Pennsylvania Department of Transportation, is the legal custodian of the Ddver License records of the Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal custody of the original or microfilm records which are reproduced in the attached certification. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID,. BRADLEY L. MALLOP, Y, SECRETARY OF TRANSPORTATION I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND CORRECT CERTIFIED PHOTOSTATIC COPY OF: 1 ) Official Notice of suspension dated & mailed 10/30/01, effective 10/10/01; 2) Report of the Clerk of Court of CUMBERLAND County, convicted 09/04/01, seal attached to original; 3) Official Notice of suspension dated & mailed 06/28/99, effective 08/02/99; 4) Citation No. C8111817, filed in the District Court Division County of FORSYTH, which was received by the Department of Transportation from the licensing authority in the State of NORTH CAROLINA, for an operating under the influence of liquor or drugs offense, date of violation 08/30/98 and date of conviction 05/10/99, and' 5) Driving Record, which appears in the file of the defendant DARYL DOUGLAS STRICK, operator's no. 22180347, date of birth 11/23/69, in the Bureau of Driver Licensing, Harrisburg, Pennsylvania. CERTIFIED TO as prescribed by Sections 6103 and 610!) of the Judicial Code, Act of July 9, 1976, P.L. 586, as amended, 42 Pa.C.S. §§6103 and 6109. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR SEAL L. BIC DIRECTOR ......................... R_EBECCA Y, BUREAU OF DRIVER LICENSING COHHONMEALTH OF PENNSYLVANIA DEPARTHENT OF TRANSPORTATZON Bureau of Dr/var L/cans/nc Hail Date= OCTOBER $0, 2001 DARYL DOU&LA$ $TRICK ~qO5 FLORIDA AVE JOHNSTOYN PA ~SqDq WZD ! O~ERkb~?O3~qb2? DOb PROC£$SING DATE DR~VER LICENSE ~ DATE OF BIRTH LICENSE ~N BUREAU Dear HR. STRZCKz This is an O~Ftotal Notice ~f tho Suspension of your Drivtng Privilege as authorized by Section 1552B of the Pennsylvania Vehicle Code. As a result of your B9/0~/2~01 conviction of violet/nc Sect/on $751 of the VehicZe Code DRLVZNG UNDER ZNFLUENCE on · Your driving privilege ts SUSPENDED YEAR(S) e~fecttve 10/10/2001 #ARN[NG; Zf you are convicted of driving ~hile your I license ~s suspended/revoked the penalties ~/11 be a I NiNe#UN of 9~ days ~mpr/s°nment AND a $1,0~0 fine AND I your drlvtng privilege ~ill be suspended/revoked for I a N~N~NUN ! year per~iod ! Before PennDOT can restore your drtviing privilege, you must follo~ the Instructions in this 'letter for COMPLYING HITH TH~S SUSPENSZON, PAYING THE RESTORATION FEE and PROVIDING PROOF OF ~NSURANCE. You sho.14 follo~ ALL lnat.uctl~ns very care?ully. Even 1~ you h~ve aeeved all the time on the suapenelon/rev~atXon, w cannot reatore your drXvXng priv- Ilege until all the requtrmmeflta ere se/lofted. 0129&&1?O$19&27 PRZSON RELEASE REQUIREHEHT (ACT~51) UHBERLAHD CTY, Court Humber 0125q, Court Term The Court of C .... e-on term for this 200 ,.s s.nt.nced t?. ,,e ve,ic o Code. olation. Pursuant to Sec~".~"~' suspension/revocation ou ~ill not receive crea~ ~-- -"~- , .... ~ u u complete Y ........ ~catlo. ~ ...... o or any additional suspen=~---- · term. The Court must court,fY your your prison ._ .,-~ ~- -o~tact your probation officer to PennDOT. you may_~=- -- --~_. ..... ~ make sure that and/or the Court a?ter your r=~===,= PennDOT is properly notified. EATHENT PROGRAH (ACT ~DURT ORDER ~R .. a V_.htcle Code, the Court Pursu,,t to .ct,on Court ,r, 200' has of CUHBERLAHD CT¥ , c~ur; ~umu~w'_~*_,....=m for alcohol or ou to atten= a trea;me-~ ~,,----- . _ ordered Y .... ult of the court oroer~ 'ction. As a drug addz .... ~-1~ --math in effect until the De- suspens~on/revocatzon ="~* 'T ..... . *k.* uOU have suc- t is notified by ~no aoove ~.t.r~ partmen - ~ ~ ----~---* =nd you are otherwise eligible cessfully comple;e- ~r==~- ..... ~vtlega. for restoratioh of your dr~vtng P G THE ESTORATXON FEE pA¥IN . R .... ~---*ion fee to PennDOT to be restored S~ pay a ~-~ You mu sion/revocation of your driving privilege. ~o ~:~my:u~U~::;oration fee. complete the follo.ing steps: Return the enclosed ApplLcation for Restoration. The amount due is listed on the application. 2. Nrite your driver's Z~cense number (listed on the first page) on the check or money order to ensure proper credit. 3. Follov the payment and mailing ~nstructions on the back of the application- IGHITIOH INTERLOCK Before your driving privilege can be restored you are re- Suited by la~ to have all vehicle(s) o~ned by you to be equipped ~ith an [gnition Znterlock System. This is a result of your conviction for Drivlng Under' the Znfluence. Zf you fail to comply vith this requirement, your driving privilege rill remain suspended for an additional year. You vi1! re- ceive more information regarding thais requirement approxi- mately ~0 days before your eligibility date. O~29&&I76519&Z7 PROVIDING PROOF OF INSURANCE days of your suspension/revocation' we H/thin the last _$~ .... --- *kat yOU provide proof of ~- will send you a_l~ter a=%~,,,~ '~etter will list acceptaDxe sur.nce at tho? .t~: ~_'~.~ ~ you do not own a vehicle documents and what wzzi .u .=-- ..... . registered in Pennsylvania. Zepo~tant: Please make sure that PennDO? is notified if ~ou move from your current address. You may notify PennDOT of change by calllng any of the phone numbers your address listed at the end of this letter. APPEA - -~;- -ct'ion to the Court of APP~ ' t 0 aP ea& ~n~a ~ . You have the ~h.. Common pleas tczvz~ u---~-~7: ...... Z~ you ~tle on ap- da~, OCTOBER 30, 2OOl, ~f ~!s~_T~u'~ZZ RiVe you a t,me- pea2 in the County CouPt~ o~ the appeai, in order for your ~tamped cePt~f~ed copy appea~ to be valid, you must send this time-stamped certi- ' copy of the appea! bY certified mat! tot lied Pennsylvania Department of Transportation Office of Chief Counse! Third Fioor, Riverfront Office Center Harrisburg, PA 1710~-2~1& Remember, this is an OFFZCZAL NOTZCE OF: SUSPENSZON- SincerelY, Rebecca L. Bickley, Director Bureau of Driver Licensing iNFORMATION 7:00 a.m. to 9:00.p.m. IN STATE 1-800-952-q&00 TDD IH STATE OUT-OF-STATE 717-$91-&190 TDD OUT-OF-STATE WEB SITE ADDRESS www.dot.state.pa.us 1-800-228-O&T& 717-391-6191. REPORT OF THE CLERK OF COURTS 1 _~.SI.~IIMARY Al,PEAt ~HOWING THE CONVI~ OR ' ~;~D ~T ACQU~AL OF ~Y ~O~ON ' '.~~ RE~ES~ OF ~E VEHICLE ~DE BUll, DING 610 WXLLOW ~i APART~ D HAP~T SBU~(] .80347 I IE 3 4 2001 2001 COURT OF C0~N pLEAS 01254 E9361601 ,~ #,.,.m,,,~moc~ REmmo ,, Yes H IAb"T IS1SEIlTEICE CORHONNEALTH OF PENNSYLVAN]A DEPARTRENT OF TRAN~.POkTATXON Bureau of Driver Licensing Harrisburg, PA 171ZS JUNE ?8, 1999 DARYL ~OUGLAS STRZCK lqOS FLORIDA AVE JOHNSTOWN PA 1S904 99],726101141670 001 O6/2t/1999 223680347 11/23/1969 Dear Hotortst: Section 1581 of the Vehicle Code reauires the Department to treat certa/n out of state convictions as though they had occurred tn Pennsylvanta. Therefore, as a result of the Department receiving notification from NORTH CAROLINA of your convtctton on 05/10/1999 of an offense which occurred on 08/$0/1998, which ts e;utvale'nt to a violation of Section $751 of the Pa. Vehicle Code, DRiViNG UNDER iNFLUENCE, your driving privilege ~s being SUSPENDED for a period of 1 YEAR(S), as mandated by Section ~552B of the Vehicle Code. The effective date of suspension t8 08/02/1999, 12:01 a.m. in order to comply wtth this sanction you are requtred to return any current drtver's ~tcense, 1marner~s permit and/or temporary drtver's ltcense (camera card) tn your possesston no later than the effectJve date l~sted, if you cannot comply vtth the requirements stated above~ you are required to submit a DLI&LC Form or a sworn afftdavtt stating that you are a~are or'the sanction against your drtvtng lege. Fatlure to comply with this notice shell result tn this Bureau referring this matter to the Pennsylvania State Pollce for prosecution under SECTION lLS71(a)(q) of the Ve- hicle Code. A~though the la~ mandates that your dr]vtng prtvtlege under suspension even if you do not surrender your license, Credit ~ill not begin untJ! all current driver's l/cease product(s), the DLI&LC Form, or a letter acknowledging your sanction ts recelved tn this Bureau. HHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, ~E MiLL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE TH[S RECEIPT ~]THIN 15 DAYS CONTACT THE DEPARTMEHT ]MMED]ATELY. OTHERWISE, YOU ~]LL NOT BE GIVEN CRED]:T TOHARD SERVING THiS SANCTION. 9917261011~1670 Please see the enclosed application for restoration fee in- formation. You will be notified of any outstanding restoration re- quirements approximately 30 days before the eligibility date of the restoration of your driving p~rivilege. You must follow those instructions very carefully in order to have your driving privilege restored. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within :$0 days of the mail date of this letter, JUNE 28, 1999. I'r yOU flle an appea! in the County CouPt, the Coupt w111 glve you a t~ie-atamped certi~ted coPY o~ the appeal. Send this time-stamped cer- tified copy of the appeal by certified mail to: PENNSYLVANZA DEPARTMENT OF TRANSPORTATION OFFXCE OF CHXEF COUNSEL THIRD FLOOR, RXVERFEONT OFFXCE CENTER HARRZSBURG, PA. 17104-2516 Sincerely, Rebecca L. Btckle¥, D/rector Bureau of Driver Licensing SEND FEE/LICENSE/DL-I&LC/TO: Department of Transportation Bureau of Driver Licensing P,O. Box &B&9$ Harrisburg, PA 1710&-869~ INFORNATZON (7;00 AN TO 9~00 PN) ZNi STATE 1-800-952-4600 OUT-OF-STATE 717-391-6190 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-$91-6191 XN THE DISIRICT COURT DIVISION COUNTY OF FORSYTH STATE OF NORTH CAROLINA V$ · · · · · · FILE NO. 98CR 037474 HO.CHARGES 2 COURT LDCATION NINSTON-S 05]099 ARRESTIHG AGENCY CPO CITATION C8111017 DEFEHDAH1 STRICK,DARYL,DOUGLAS . .............. ..126 RILl;MOOD AVE ..................... JOHNSTOi'~ PA 15904 THE CHARGING OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT ON OR ABOUT 0211A.M. THE 30 DAY OF AUGUST 1998 IN THE HAMED CbUNTY, 'THE NAMED DEFENDANT DID UNLANFULLY AND NILLFULLY OPERATE A MOTOR VEHICLE ON A STREET, HIGHHAY OR PUBLIC VEHICULAR AREA SPEED - CHARGE DRIVING MHILE IMPAIRED VERDICT GUILTY AOC CODE 5405 PLEA GUILTY METHOD OF DISPOSITION TRIAL BY JUDGE OR GUILTY PLEA BEFORE JUDGE SPEED - DISPOS/TION DH! - LEVEL 4 AOC CODE 551~ ~ cQDE DL PTS FINE/PENALI~ 00ZOO0 COSTS 0086 AND O# OR ABOUT 0211A.M. THE 30 DAY OF AUGUST i[99B IN THE NAMED COUNTY, THE NA~ED DEFENDANT DID UNLAHFULLY AND NILLFULLY OPERATE A MOTOR VEHICLE ON A STREET, RIGHi4AY OR PUBLIC VEHICULAR AREA CHARGE EXCEEDING SAFE SPEED VERDICT AOC CODE ~467 PLEA HETHOD.DF DISPOSITION VOLUNTARILY DISHISSED (BY DA) DISPOSITION AOC CODE DMV CODE DL PTS OFFICER HATSON,D ON HIOHNAY ACCIDENT DRIVER LICENSE NO. 22180347 FINE/PENALTY O0000 NO. TROOP/DISTRICT STATE PA DATE OF BIRTH 112369 RACE H SEX M VEHICLE TYPE TZA VEHICLE PLATE NO. ZF29897 STATE PA CDt-HO COP~ERCIAL VEHICLE-NO HAZARDOUS HATERIAL-NO SPEED SPEED COSTS 0000 AREA ALIAS NAMES I FTA/FTP G.S.20-Z4.L - DATE CASH BOND FORFEITURE - VOLUNTARILY OISMISSEO - ORDERED DISMTSSED:- RECORD TYPE GIG HOOD,KATHY,L juDGE/~AGI~TRATE/DEPUTY ASSISTANT CLERK OF COURT 05~099 DATE RECEIVED 0519q9 PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING CERTIFIED DRIVING HISTORY OCT 25 2002 PAGE 1 DRIVER: DARYL DOUGLAS STRICK 313 S ARCH STREET MECHANICSBURG, PA 17055 DRIVER LICENSE (DL) LICENSE CLASS : C LICENSE ISSUE DATE: FEB 09 1999 LICENSE EXPIRES : NOV 30 2002 ORIG ISSUE DATE : DEC 10 1986 MED RESTRICTIONS : NONE LEARNER PERMITS : LICENSE STATUS : SUSPENDED DRIVER LICENSE NO DATE OF BIRTH SEX RECORD TYPE : 22180347 : NOV 23 1969 : MALE : REG LIC/ID CO~4ERCIAL DRIVER LICENSE (CDL) CDL LICENSE CLASS : CDL LICENSE ISSUED : CDL LICENSE EXPIRES: CDL ENDORSEMENTS : NONE CDL RESTRICTIONS : NONE CDL LEARNER PERMITS: CDL LICENSE STATUS : SUSPENDED SB ENDORSEMENT : PROBATIONARY LICENSE (PL) PL LICENSE CLASS : PL ]LICENSE ORIG ISS: PL LICENSE ISSUED : PL LICENSE EXPIRES : PL LICENSE STATUS : OCCUPATIONAL LIMITED LICENSE (OLL) OLL LICENSE CLASS : OLL LICENSE ISSUED : OLL LICENSE EXPIRES: OLL LICENSE STATUS : *** CONTINUED *** PAGE 2 CERTIFIED DRIVING HISTORY - OCT 25 2002 - LICENSE NUMBER 22180347 CONTINUED REPORT OF VIOLATIONS AND DEPARTmeNTAL ACTIONS VIOLATION DATE: APR 24 1995 VIOLATION: VEHICLE CODE: 3112A3I DESCRIPTION: RED LIGHT VIOLATION CONVICTION DATE: MAY 01 1995 ACTION: ASSIGNED POINTS VIOLATION DATE: VIOLATION: DESCRIPTION: ACTION: APR 08 1995 VEHICLE CODE: A3731 MAJOR VIOLATION ARD-DUI ARD-NO ACTION OFFICIAL NOTICE MAILED MAR 28 1!)96 VIOLATION DATE: VIOLATION: DESCRIPTION: ACTION: APR 08 1995 VEHICLE CODE: ARD-DUI SUSPENSION FOR A3731 MAJOR VIOLATION 1 MONTH(S) EFFECTIVE APR 13 1996 ACTION: RESTORATION OF OPERATING PRIVILEGES MAY 13 1996 VIOLATION DATE: MAR 21 1997 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 074 MPH IN A 065 MPH ZONE CONVICTION DATE: APR 01 1997 ACTION: ASSIGNED POINTS *** CONTINUED *** PAGE 3 CERTIFIED DRIVING HISTORY - OCT 25 2002 - LICENSE NUMBER 22180347 CONTINUED VIOLATION DATE: AUG 30 1998 VIOLATION: VEHICLE CODE: 3731 MAJOR VIOLatION DESCRIPTION: DRIVING UNDER INFLUENCE CONVICTION DATE: MAY 10 1999 ACTION: SUSP DRVR LIC COMPACT FOR 1 YEAR(S) EFFECTIVE AUG 02 1999 OFFICIAL NOTICE MAILED JUN 28 1999 ACTION: RESTORATION OF OPERATING PRIVILEGES SEP 07 2000 VIOLATION DATE: MAR 04 2001 VIOLATION: VEHICLE CODE: 3731 MAJOR VIO~%TION DESCRIPTION: DRIVING UNDER INFLUENCE CONVICTION DATE: SEP 04 2001 ACTION: SUSPENSION FOR 1 YEAR(S) EFFECTIVE OCT 10 2001 OFFICIAL NOTICE MAILED OCT 30 2001 LICENSE RECEIVED OCT 10 2001 REPORT OF MEDICALS AND DEPART~ZNTAL ACTIONS NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD *** CONTINUED *** PAGE 4 CERTIFIED DRIVING HISTORY - OCT 25 2002 - LICENSE NUMBER 22180347 CONTINUED REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS MOTOR VEHICLE ACCIDENT RECORDS LISTED ON THIS OPERATING REPORT DO NOT INDICATE FAULT FOR THE ACCIDENT. THE RECORD ONLY INDICATES THAT THIS INDIVIDUAL OR THE INDIVIDUAL'S VEHICLE WAS INVOLVED IN AN ACCIDENT ON THE DATE LISTED. ACCIDENT DATE: LOCATION: VEHICLE TYPE: APR 08 1995 CAMBRIA COUNTY PASSENGER *** END OF RECORD *~* PAGE 5 CERTIFIED DRIVING HISTORY - OCT 25 2002 - LIC~:NSE NUMBER 22180347 CONTINUED IN COMPLIANCE WITH YOUR REQUEST, I HEREBY CERTIFY THAT I HAVE CAUSED A SEARCH TO BE MADE OF THE FILES OF THE DEPART- MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED. SINCERELY, SEAL DIRECTOR, BURI~U OF DRIVER LICENSING FOR SECRETARY OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA SS: DATE:OCT 25 2002 I HEREBY CERTIFY THAT REBECCA L. BICKLEY, DIRECTOR OF THE BUREAU OF DRIVER LICENSING, OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION IS THE LEGAL CUSTODIAN OF THE DRIVER LICENSING RECORDS OF THE DEPARTMENT OF TRANSPORTATION. AS THE DIRECTOR OF THE AFORESAID BUREAU, SHE HAS LEGAL CUSTODY OF THE ORIGINAL OR MICROFILM RECORDS ~{ICH ARE THE SUBJECT OF THE ABOVE CERTIFICATION. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID. SINCERELY, SECRETARY OF TRANSPORTATION SEAL 8:48 A.M. Appeal Docket Sheet Docket Number: 479 WDA 2001 Page I of ? November 13, 2002 Superior Court of Pennsylvania Commonwealth of Pennsylvania V. Brian Anthony McManus, Appellant Initiating Document: Notice of Appeal IFP Case Status: Active Case Processing Status: October 29, 2002 Journal Number: J-S15027-02 Case Category: Criminal Awaiting Consideration CaseType: Driving Under the Influence Consolidated Docket Nos.: Related Docket Nos.: 521 WDA 200'1 523 WDA 2001 Same Issue(s) Same Issue(s) Next Event Type: Record Remitted Next Event Type: Consideration Type Set Next Event Type: Consideration Type Set Next Event Type: Consideration Type Set Next Event Type: Receive Appellant Paperbooks Next Event Type: Receive Appellant Paperbooks SCHEDULED EVENT Next Event Due Date: Next Event Due Date: Next Event Due Date: Next Event Due Date: Next Event Due Date: Next Event Due Date: November 19, 2002 PACMS Web Docket Sheet Recent entries made in the appellate court filing offices may not be immediately reflected 3n web generated docket sheets, '4ei!her the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or de ayed data, errors or omissions on these web docket sheets 11/13/02 3051 8:48 A.M. Appeal Docket Sheet Docket Number: 479 WDA 2001 Page 2 of 7 November 13, 2002 Superior Court of Pennsylvania Appellant Pro Se: IFP Status: COUNSEL INFORMATION McManus, Brian Anthony Appoint Counsel Status: Yes Appellant Attorney Information: Cain, Candace Attorney: Law Firm: Address: OFFICE OF THE PUBLIC DEFENDER 400 COUNTY OFFICE BUILDING PITTSBURGH, PA 15219 Phone No.: (412)350-2379 Attorney: Law Firm: Address: Swan, Suzanne M. Allegheny Pub Defenders Off 542 Forbes Avenue Pittsburgh, PA 15219-2904 Phone No.: (412)350-2403 Attorney: Law Firm: Address: Ruffner, M. Susan Office of the Public Defender 400 County Office Building Pittsburgh, PA 15219 Phone No.: (412)350-2403 Appellee Pro Se: IFP Status: Commonwealth of Pennsylvania Appoint Counsel Status: Appellee Attorney Information: Streily, Michael Wayne Attorney: Law Firm: Address: 401 Courthouse Office Of Alleghey District Attorney Pittsburgh, PA 15219 Phone No.: (412)350-4377 PACMS Web Docket Sheet Recent entries made in the appellate cour[ filing offices may not be immediately reflected on web generated docket sheets. Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on these web docket sheets 11/13/02 3051 8:48 A.M. Appeal Docket Sheet Docket Number: 479 WDA 2001 Page 3 of 7 November 13, 2002 Superior Court of Pennsylvania Attorney: Gilmore, James Robert Law Firm: Address: 401 Allegheny County Courthouse Pittsburgh, PA 15219 Phone No.: (412)350-4377 TRIAL COURT/AGENCY INFORMATION Court Below: Allegheny County Court of Common Pleas County: Allegheny Date of Order Appealed From: December 4, 2000 Date Documents Received: March 19, 2001 Order Type: Judgment of Sentence Judge: O'Brien, W. Terrence Judge Division: Criminal Judicial District: 5 Date Notice of Appeal Filed: March 13, 2001 OTN: H 1206601 Lower Court Docket No.: CC200007927 Original Record Item RECORD TRANSCRIPT Date of Remand of Record: ORIGINAL RECORD CONTENTS Filed Date July 11, 2001 July 11, 2001 Content/Description I PART 1 Appellant Brief McManus, Brian Anthony BRIEFS Appellee Brief Commonwealth of Pennsylvania Due: November 26, 2001 Filed: December 21,2001 PACMS Web Docket Sheet Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets. N+.~ither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on these web docket sheets 11/13/02 30Sl 8:48 A.M. Appeal Docket Sheet Docket Number: 479 WDA 2001 Page 4 of 7 November 13, 2002 Superior Court of Pennsylvania Filed Date DOCKET ENTRIES Docket Entry/Document Name Party Type Filed By March 13, 2001 Notice of Appeal IFP Appellant McManus, Brian Anthony March 19, 2001 Order Granting Application to Proceed In Forma Pauperis Lower Court or Agency March 19, 2001 Docketing Statement Exited (Criminal) Western District Filing Office March 21,2001 Docketing Statement Received Appellant McManus, Brian Anthony May 29, 2001 Letter to Trial Judge Regarding Delinquent Record Western District Filing Office June 12, 2001 Order Per Curiam 479, 521,523 WDA 2001 are to be listed consecutively before a singel panel of this court. July 11, 2001 Trial Court Record Received Lower Court or Agency August 20, 2001 Application for Extension of Time to File Brief - First Request Appellant McManus, Brian Anthony August 23, 2001 Order Granting Application for Extension of Time to File Brief Per Curiam September 19, 2001 Application for Extension of Time to File Brief - Second Request Appellant McManus, Brian Anthony PACMS Web Docket Sheet Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets, Nr-ither the Appellate Courts nor tile Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on these web docket sheets 11/13/02 3051 8:48 A.M. Appeal Docket Sheet Docket Number: 479 WDA 2001 Page 5 of 7 November 13, 2002 Superior Court of Pennsylvania September 24, 2001 Order Granting Application for Extension of Time to File Brief Per Curiam October 19, 2001 Application for Extension of Time to File Brief - Third Request Appellant McManus, Brian Anthony October 24, 2001 Order Granting Application for Extension of Time to File Brief Per Curiam October 24, 2001 Appellant°s Brief Filed Appellant McManus, Brian Anthony October 24, 2001 Reply Letter(s) Printed Western District Filing Office November 13, 2001 Praecipe for Appearance Praecipe for Appearance Gilmore, James Robert Appellee Commonwealth of Pennsylvania November 26, 2001 Reply Received (Submission) Appellant McManus, Brian Anthony November 26, 2001 Application for Extension of Time to File Brief- First Request Appellee Commonwealth of Pennsylvania November 28, 2001 Order Granting Application for Extension of Time to File 8riel Per Curiam December 13, 2001 Application for Extension of Time to File Brief - Second Request Appellee Commonwealth of Pennsylvania PACMS Web Docket Sheet Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets, N+-;ither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on these web docket sheets 11/13/02 305t 8:48 A.M. Appeal Docket Sheet Docket Number: 479 WDA 2001 Page 6 of ? November 13, 2002 Superior Court of Pennsylvania December 18, 2001 Order Denying Application for Extension of Time to File Brief Per Curiam (Application For Suspension of Briefing Schedules) December 21, 2001 Appellee's Brief Filed Appellee Commonwealth of Pennsylvania August 23, 2002 Affirmed Popovich, Zoran September 6, 2002 Application for Reargument Appellant McManus, Brian Anthony October 29, 2002 Order Granting Application for Reargument Per Curiam Decision filed on 8-23-2002, is hereby Withdrawn. Case be listed for the presentation or oral argument before the next available en banc panel. Parties shall file (22) additional copies of all briefs and Reproduced Record in accordance with Pa.R.A.P. 2140. Each party shall, within the time period specified, either reflle the brief previously filed together with a supplemental brief or prepare a substitute brief. PC" Journal Number: Consideration Type: Date Listed/Submitted: Panel Composition: SESSION INFORMATION J-S15027-02 Submit Panel 1/28/02 The Honorable Kate Ford Elliott, Judge The Honorable Mary Jane Bowes, Judge The Honorable Zoran Popovich, Judge PACMS Web Docket Sheet Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets. Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on these web docket sheets 11/13102 305~ 8:47 A.M. Appeal Docket Sheet Docket Number: 479 WDA 2001 Page 7 of 7 November 13, 2002 Superior Court of Pennsylvania Related Journal Number: Disposition Category: Disposition Dispositional Comments: Dispositional Filing: Filed Date: J-S15027-02 Decided Affirmed (Decided) Majority Opinion 8/23~02 DISPOSITION INFORMATION Judgment Date: ,Disposition Author: Disposition Date: Author: 8/23/02 Popovich, Zoran 8/23/02 Popovich, Zoran Dispositional Filing: Concurring/Dissenting Opinion Filed Date: 8/23/02 Judge: Vote: Author: Bowes, Mary Jane REARGUMENT/RECONSIDERATIONIREMITTAL ReargumentJReconsideration Filed Date: September 6, 2002 Reargument Disposition: Order Granting Application for Reargument Date: Record Remitted: October 29, 2002 PACMS Web Docket Sheet Recent entries made in the appellate court filing offices may not be immediately reflected on web generated docket sheets, kh~ither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes ar~y iiability for inaccurate or delayed data, errors or omissions on these web docket sheets 11/13/02 3051 DARYL STRICK, · Appellant · V. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMMONWEALTH OF : PENNSYLVANIA, : DEPARTMENT OF : TRANSPORTATION, BUREAU: OF DRIVER LICENSING, : Appellee : NO. 02-5049 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE ORDER OF COURT AND NOW, this 21 st day of November, 2002, upon consideration of Appellant's "Appeal from Suspension of Operator's Privilege," and the Appellee's "Motion To Quash Appeal as Untimely Filed," included in the "Department of Transportation's Response to Rule To Show Cause," oral argument on the motion to quash is scheduled for Wednesday, December 11, 2002, at 3:00 p.m. in Courtroom No. I in the Court of Common Pleas of Cumberland County in Carlisle, Pennsylvania. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant George Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Attorney for Appellee BY THE COURT, ey Ole~13., J. V1NYA!/,gNN3d DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM IN RE: APPELLEE'S MOTION TO QUASH APPEAL AS UNTIMELY BEFORE OLER, J. ORDER OF COURT AND NOW, this 12th day of December, 2002, upon consideration of Appellee's "Motion To Quash Appeal As Untimely Filed," and following a hearing held on December 11, 2002, on that motion and on an oral motion of Appellee to quash the appeal on other jurisdictional grounds, the motion to quash the appeal as untimely filed is granted and Appellant's "Appeal from Suspension of Operator's Privilege" is accordingly quashed.* BY THE COURT, J..:Wesley Older., J. * Because of the disposition of the matter on this ground, it is unnecessary to consider the alternative ground for quashal advanced by Appellee. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant Elaine Blass, Esq. ~ Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Attorney for Appellee :rc DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL PETITION FOR RECONSIDERATION AND NOW, comes Daryl Strick by and through his privately retained counsel Karl E. Rominger, Esquire and in support of his Petition for Reconsideration avers as follows: 1. On December 12, 2002, this Court entered an Order quashing Appellant's appeal as untimely filed. 2. No Opinion was issued by the Court in support of its" Order. 3. On the 19th day December, 2002, the Cumberland County Court of Common Pleas issued an Opinion in an identical matter which is inconsistent with the result reached by this Honorable Court in the above captioned case. 4. Appellant specifically asks for reconsideration of this Court's quash given the Opinion in Herberlig (see attached). 5. In the alternative, the Court erred in quashing the appeal as untimely, as the appeal was filed while Commonwealth v. McManus, 2002 PA Super 271 (2002) was still good law and had not yet been withdrawn by the Superior Court. 6. It has long been the law of this Commonwealth that even if an appellate decision is later overturned, vacated or withdrawn, it is in full force and effect until such takes place. 7. Since the appeal was timely filed pursuant to that case, and that case had not yet been withdrawn at the time, this Court does not have the power to subsequently quash the Petition as untimely. WHEREFORE, for the foregoing two reasons, Defendant respectfully requests that this Honorable Court grant reconsideration and reverse itself. Respectfully submitted, ROMINGER & BAYLEY Date: December 27, 2002 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Appellant DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this day served a copy of the Petition for Reconsideration upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center', Harrisburg, PA 17104-2516 Dated: December 27, 2002 Karl E. Rominger, Esquire Attorney for Appellant BECKY L. HEBERLIG, APPELLANT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4874 CIVIL TERM IN RE: APPEAL REGARDING IGNITION INTERLOCK REQUIREMENT ORDER OF COURT AND NOW, this [~,~"t day of December, 20132, the refusal by the Department of Transportation to restore appellant's driving privilege following the completion of her one Year suspension for a conviction of driving under the influence, IS REVERSED. Terrance M. Edwards, Esquire For the Department of Transportation Paul Bradford Orr, Esquire For Appellant :sal BECKY L. HEBERLIG, APPELLANT Vo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 02-4874 CIVIL TERM IN RE: APPEAL REGARDING IGNITION INTERLOCK REQUIREMENT OPINION AND ORDER OF COURT Bayley, J., December 19, 2002:-- On October 24, 2001, the Department of Transportation sent appellant, Becky L. Heberlig, the following notice: As a result of your 07/24/2001 conviction of violating Section 3731 of the Vehicle Code DRIVING UNDER INFLUENCE on 03/07/2001: Your driving privilege is SUSPENDEr) for a period of 1 YEAR(S) effective 09/25/2001 at 12:01 a.m. (Emphasis added.) The notice also stated: IGNITION INTERLOCK Before your driving privilege can be restored you are required by law to have all vehicle(s) owned by you to be equipped with an Ignition Interlock System. This is a result of your conviction for Driving Under the Influence. If you fail to comply with this requirement, your driving privilege will remain suspended for an additional year. You will receive more information regarding this requirement approximately 30 days before your eligibility date. (Emphasis added.) On October 8, 2002, appellant filed an "APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS." The ignition interlock requirement is 02-4874 CIVIL.TERM contained in Act 63 of 2000. September 30, 2002. { 7002. influence. The following provisions of the Act took effect on Ignition interlock systems for driving under the (b) Second or subsequent offense -- In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 7'5 Pa.C.S. { 3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock igniition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installled. (Emphasis added.) { 7003. Additional driver's license: restoration requirements. In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. {1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privilleges are suspended for a second or subsequent violation of 75 Pa.C.S. {3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of- State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department 'that each motor vehicle owned by the person has been equipped with an apprOved ignition interlock system. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. {1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. -2- 02-4874 CIVIL TERM (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shalll not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. {}1951(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. §3731 or a similar out- of-State offense who does not apply for .an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1). Section 3. The provisions of 42 Pa.C,,S. Ch. 70 shall apply to all persons convicted of a second or subsequent violation of 75 Pa.C.S. §3731 on or after the effectiVe date of this section... (Emphasis added .) In Commonwealth v. Mockaitis, 50 Cumberland L.J. 184 (2001), decided on February 12, 2001, this court found that the authorization to PennDOT to withhold restoration of a driving privilege under Sections 7002 and 7003 of Act 63 of 2000, following the completion of a one year suspension, was unconstitutional., In Schneider v. Commonwealth of Pennsylvania, 790 A.2d 363 (Pa. Commw. 2002), the Commonwealth Court of Pennsylvania held that: "PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so.''2 The certified record of PennDOT does not reflect that its action imposing an ignition Mockaitis is on appeal to the Supreme Court of Pennsylvania. Schneider is on appeal to the Supreme Court of Pennsylvania. -3- 02-4874 CIVIL TERM interlock requirement at the end of the one year suspension of appellant's driving privilege resulted from an order of the trial court that sentenced her for driving under the influence. This court has consistently reversed that part of the orders of PennDOT imposing an ignition interlock requirement under Sections 7002 and 7003 of Act 63 of 2000.3 However, before we can provide appellant_relief on the merits we must resolve a motion by PennDOT to quash this appeal as untimely. The Judicial Code. at 42 Pa.C.S. Section 5571(b) provides: Except as otherwise provided in subsections (a) & (c), an appeal from a tribunal or other government unit to a court.., must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order. The timeliness of an appeal is a jurisdictional issue. Department of Transportation, Bureau of Driver Licensing v. Shemer, 157 Pa. Commw. 380 (1993). PennDOT notes that a final order requiring instalIlation of an ignition interlock system for appellant to restore her driving privilege after the completion of the one year suspension was contained in the notice it sent to her dated October 24, 2001. Because this appeal was filed on October 8, 2002, PennDOT maintains that this court has no jurisdiction and the appeal must be quashed. While facially appealing, the motion to quash is without merit. The license suspension in PennDOT's notice to appellant dated October 24, 2001, was for one year. As set forth by the Commonwealth Court in 3 See, Shannon v. Commonwealth of Pennsylvania, 01-0131 Civil, (order and supporting opinion filed October 24, 2002). -4- 02-4874 CIVIL TERM Schneider v. Commonwealth of Pennsylvania, supra, PennDOT has no statutory authorization to direct an ignition interlock requirement absent an order of a trial court. Yet that is exactly what PennDOT did in imposing an ignition interlock requirement on appellant. Now, a year after appellant served her one year suspension, PennDOT still resists restoring her driving privilege. This is not a situation where PennDOT issued a lawful order that appellant believed was wrong for which an appeal lies under Section 5571(b) of the Judicial Code. Rather, PennDOT's action, taken without statutory authorization, was null and void at its inception even if the Supreme Court of Pennsylvania should determine that Act 63 of 2000 is not unconstitutional. Given these facts, appellant can now challenge PennDOT's current refusal to restore her driving privilege until all vehicles owned by her are equipped with an ignition interlock system, and it has received a certification from the trial court that such interlock systems have been installed. ORDER OF COURT AND NOW, this day of December, 2002, the refusal by the Department of Transportation to restore appellant's driving privilege following the completion of her one year suspension for a conviction of ,driving under the influence, IS REVERSED. -5- j 02-4874 CIVIL TERM Terrance M. Edwards, Esquire For the Department of Transportation Paul Bradford Orr, Esquire For Appellant :sal -6- DARYL STRICK, Appellant V. COMMONWEALTH OF : PENNSYLVANIA, : PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, : BUREAU OF DRIVER : LICENSING, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL NOTICE OF APPEAl, NOTICE IS HEREBY given that Daryl Strick, Defendan~t above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Quashal of Appeal entered on December 17, 2002, in the above-captioned criminal matter. This Quashal of Appeal has been entered in the docket as evidence by the attached copy of the docket entry. Respectfully submil:ted, ROMINGER & BAYLEY Karl E. Rominger, Esquire Supreme Court ID # 81924 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Dated: January 15, 2003 DARYL STRICK, Appellant We COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE L Karl E. Rominger, Esquire, attorney for Defendant, dc, hereby certify that a tree and correct copy of the within NOTICE OF APPEAL was served upon the following individuals on the below date, by hand delivery, addressed as follows: The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Clerk of Courts Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 District Attorney Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 BY: Karl E. Rominger, Esquire Date: January 15, 2003 DARYL STRICK, Appellant We COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND, PENNSYLVANIA : : No. 02-5049 : : LICENSE SUSPENSION APPEAL REQUEST FOR TRANSCRIPT A Notice of an Appeal having been filed in this matter, the Official Court Reporter is hereby Ordered to produce, certify, and file the transcript in this matter conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Dated: January 15, 2003 Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241--6070 Supreme Court ID # 81924 Attorney tbr Defendant PYS510 Cumberland County Prothonotary's office Page 1 Civil Case Inquiry 2002-05049 STRICK DARYL (rs) COMMONWEALTH OF PA DEPT OF TRA Filed ........ : 10/17/2002 Reference No..: Time ......... : 2:25 Case Type ..... : APPEAL - LICENSE SUSP Execution Date 0/00/0000 JudgmehZ ..... ~ .00 Jury Trial .... Judge Assigned: DisDosed Date. 0/00/0000 Disposed Desc.: _ Higher Crt 1.: ............ Case Comments ............ Higher Crt 2.: *************************~************************~********~******************** General Index Attorney Info STRICK DARYL APPELLANT ROMINGER KARL E 313 SOUTH ARCH STREET MECHANICSBURG PA 17055 PENNSYVANIA COMMONWEALTH OF APPELLEE DEPT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL 3RD FL RIVERFRONT OFFICE HARRISBURG PA 17104 * * Date Entries *~*******~**********~*******~***~************~***~*******~************~***~*** .... FIRST ENTRY .... - ..... FROM SUSPENSION O~ DRIVERS LICENSE 10/17/2002 APPEA~6 1o/2 /2oo2 OPERATOR'S PRIVILEGE - A RULE IS HEREBY ISSUED UPON APPELLEE TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 20 DAYS SERVICE - BY THE COURT J WESLEY OLER JR J COPIES MAILED .................. 11/25/2002 ~RDER OF C~0~-Z-~-{{~~{2$~-Z-~-~-~PEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE - NAD MOTINO TO QUASH APPEAL AS UNTIMLEY ED INCLUDED IN THE DEPT OF TRANS RESPONSE ~_~T~^~HOW FIL - E ORAL ARGUMENT ON THE MOTION TO QUAS URTHOUSE CAUS RLAND COUNTY CO · NCR 1 IN THE CUMBE 12 11/02 AT 3.90 PM I LER JR J COPIES MAILED CA~LISLE PA - BY THE COURT J WESLEY 0 11/26/o2 ............ 12/16/2002 ORDER OF COU - ER JR J COPIES MAILED UNTIMELY - BY THE COURT J WESLEY OL APPEAL AS .................................... 12/27/2002 PETITION FOR RECONSIDERATION - BY KARL E ROMINGER ESQ FOR APPELLANT LAST ENTRY .............. ****~**~*****~*****~**~***********************~**~******~******~**************** Escrow Information * * Fees & Debits Beg Bal Pymts/Adj End Bal *~********~**~*****~************~**~*****~******~*****************************~* APPEAL LIC SUSP 35.00 35.00 .00 .50 .50 .00 TAX ON APPEAL 5.00 5.00 .00 SETTLEMENT 00 AUTOMATION FEE 5.00 5.00 · 5.00 5.00 .00 JCP FEE .......... .... 50.5o .... ........ .oo ***~***********~*****~*****~****************************~**~*******~*********** * End of Case Information ****~*********~**~****~****************~******************~******************~** TRUE COPY FROM RECORD In Testimony whereof, i here unto set my hand --7-' ....... ' --'prdthonotmy ' , DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT oF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 02-5049 CIVIL TERM IN RE: APpELLEE'S MOTION TO -~UASH APPEAL AS UNTiM~'LY BEFORE OLER, J. ORDER OF COURT AND NOW, this 12t~ day of December, 2002, upon consideration of Appellee's "Motion To Quash Appeal As Untimely Filed," and following a hearing held on December 11, 2002, on that motion and on an oral motion of Appellee to quash the appeal on other jurisdictional grounds, the motion to quash the appeal as untimely filed is granted and Appellant's "Appeal fxom Suspension of Operator's Privilege" is accordingly quashed.* BY THE COURT, j.." esley Ol r., ' ' Because of the disposition of the matter on this ground, it is unnecessary to conside.r the alternative ground for quashal advanced by Appellee. DARYL STRICK, Appellant We COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, : BUREAU OF DRIVER : LICENSING, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL AMENDED NOTICE OF APPEAI~ NOTICE IS HEREBY given that Daryl Strick, Defen&mt above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order quashing his Appeal entered on December 17, 2002, in the above-captioned civil matter. This quashing of his Appeal has been entered in the docket as evidence by the attached copy of the docket entry. Respectfully submitted, ROMINGER & iBAYLEY Karl E. Rominger, Esquire Supreme Court ID # 81924 155 South Hanover Street Carlisle, PA 170113 (717) 241-6070 Dated: January 16, 2003 DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Appellant, do hereby certify that I this day served a copy of the Amended Notice of Appeal and a Notice of Appea! upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Dated: January 16, 2003 Karl E. Rominger, Esquire Attorney fi)r Appellant DARYL STRICK, Appellant Mo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5049 CIVIL TERM ORDER OF COURT AND NOW, this 16th day of January, 2003, upon consideration of the Notice of Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this Court and to serve, upon the undersigned judge a concise Statement of Matters Complained of on Appeal no later than 14 days after entry of this Order. ,//George Kabusk, Esq. Assistant Counsel Department of Transportation Commonwealth of Pennsylvania 3ra ~, _ moor, Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee -,'~arl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant BY THE COURT,. ....... Ld J.' Wesley O[er;:Jr~, J.~ , OD DARYL STRI~CK, Appellant COMMONWi PENNSYLV3 PENNSYLV3 OF TRANSP~ BUREAU OF LICENSING. Ve ]ALTH OF NIA, ~IIA DEPARTMENT 'RTATION, ~)RIVER Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL AND N OW, comes Daryl Strick by and through his privately retained counsel, Karl E. · Romingcr, Esqu irc and raises the following issues on appeal: 1. Dcf~jndant appeals the quash of his appeal, as the trial court erred when it was found that it was not timely t~led. 2. Furtl' er, the trial court erred, because at the time Defendant filed his request for an appeal, when Commonv~ealth v. McManus, 2002 Pa. Super 271 was still good law and said Superior Court case, even if withdrau n, was in full force and effect and mandated that the Court consider the appeal as timely filed. 3. Defefldant challenges the subject matter jurisdiction of the Department of Transportation over him in the abov~ captioned matter where no Order of Court ever existed mandating the Guardian Interlock Syste~r~ apply to Defendant, and where the Department of Transportation is taking or withholding his [river's license without any Order of Court creating the statutory authority for it to do so. Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Appellant DARYL STRgCK, Appellant ;ALTH OF NIA, ~IA DEPARTMENT ~RTATION, DRIVER i Appellee COMMONWI PENNSYLVA PENNSYLVA OF TRANSP£ BUREAU OF LICENSING, 1N THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Karl iE. Rominger, Esquire, attomey for Appellant, do hereby certify that I this day served a copy of the Concise Statement of Matters Complained of on Appeal upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Sqaure Carlisle, PA 170113 George Kabusk, Esquire PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office 'Center, Harrisburg, PA 17104-2516 Dated: January 23, 2003 Karl E. Rominger, Esquire Attorney for Appellant DARYL STRICK, : Appellant : : V. : : COMMONWEALTH OF : PENNSYLVANIA, : PENNSYLVANIA : DEPARTMENT OF : TRANSPORTATION, BUREAU OF: DRIVER LICENSING, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL No. 02-5049 CIVIL TERM IN RE: APPELLANT'S APPEAL FROM SUSPENSION OF OPERATOR' S PRIVILEGE AND APPELLEE'S MOTION TO QUASH APPEAL AS UNTIMELY FILED Proceedings held before the Honorable J. WESLEY OLER, JR., Judge, Cumberland County Courthouse, Carlisle, Pennsylvania, on December 11, 2002, commencing at in Courtroom No. 1 APPEARANCES: Elaine Blass, Esquire For the Appellee Karl E. Rominger, Esquire For the Appellant INDEX TO EXHIBITS EXHIBIT Commonwealth's Exhibit No. 1 - packet of certified documents Joi~t Exhibit No. 2 - restoration letter Appellant's Exhibit 1 - sentencing order MARKED 3 3 12 ADMITTED 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 December 11, 2002 Courtroom No. 1 3:15 p.m. (Whereupon, Commonwealth's Exhibit 1 and Joint Exhibit 2 were marked for identification.) THE COURT: This is the time and place for an argument on the Appellee's Motion To Quash the Appeal as Untimely in the case of Strick v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensinq, at No. 02-5049 CIVIL TERM. We will let the record indicate that counsel for the Appellant is present in the person of Karl E. Rominger, Esquire, and counsel for the Appellee is present in the person of-- MS. BLASS: Elaine Blass, B-l-a-s-s. And I am here on behalf of George Kabusk. THE COURT: Let me just finish my opening statement. --in the person of Elaine Blass, Esquire. The Court has met in chambers with counsel, and understands that counsel wish to place certain matters into evidence for purposes of a record in the case. Presumably, those items have been marked as exhibits, and I would propose admitting them in the first instance before counsel proceed with their arguments. Mr. Rominger and Ms. Blass, how have 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BLASS: Your Honor, I do have a packet of certified documents certified by the Department of Transportation and the Director of the Bureau of Licensing. They include a notice of sus-- they have been marked as Department's Exhibit No. 1, and they include-- THE COURT: MS. BLASS: THE COURT: MS. BLASS: They're called Department? Department's Exhibit No. 1. Not Appellee? If you would prefer it, Your Honor, is that the correct-- THE COURT: How did the stenographer mark them? MS. BLASS: I have them marked with a tab that says Commonwealth exhibit. THE COURT: Oh, Commonwealth exhibit. All right. And the stenographer has her initials on them? MS. BLASS: THE COURT: MS. BLASS: Appellee's exhibits. THE COURT: Yes. All right. I'll refer to these as No, that's all right. Commonwealth's exhibit is all right. Commonwealth's Exhibit 1 is what? MS. BLASS: documents. It's comprised of a number of One is the official notice of suspension dated 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 October 30th, 2001, a suspension imposed of one year for a DUI violation, and including the notice of ignition interlock requirement. At 1-B is the DL-21 report of the Clerk of Courts reporting the DUI conw[ction on September 4th, 2001, to the Department. At i-C, an official notice of suspension dated June 28, 1999, indicating that a one-year suspension is being imposed on Mr. Strick's operating privilege based on a DUI conviction on May 10th, 1999. THE COURT: That's a prior suspension that we are talking about? MS. BLASS: Yes, this is a prior DUI conviction that gave rise to the-- another prior suspension. THE COURT: MS. BLASS: Ail right. I believe it is then i-D, which is the report of the District Court Division of the County of Forsyth, North Carolina, of a violation of a charge of driving while impaired, which the Department determined in that prior notice was substantially similar to the DUI violation of 3731, and at which the Department imposed a one-year suspension heretofore referred to. And finally, the official driving record, I believe, at 1-D. We would offer those as a packet of certified exhibits of the Department. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. Well, I have Commonwealth's Exhibit 1, which contains A, B, C, and D. Is there a Commonwealth's Exhibit 2 then? MS. BLASS: There is a Joint Exhibit No. 2. THE COURT: Oh, all right. MR. ROMINGER: Your Honor, Joint Exhibit No. 2 is a copy of the restoration letter dated 10/7/02, and Ms. Blass and I have discussed, it is not a certified copy. We have agreed that this would be, for the record, considered true and correct, except that Ms. Blass has reserved the right to compare it to the official PennDOT records, and if there was a difference, would timely notify the Court. THE COURT: I've got to close the hearing today. I'm going to assume it's an accurate record. MS. BLASS: That's sufficient, Your Honor. THE COURT: All right. MR. ROMINGER: And that's the entire content of that letter, Joint Exhibit 2. THE COURT: Ail right. And is there a stipulation that the notice-- the notices were sent out and received by the Appellant about the time that they were dated, and that the restoration letter was also sent out and received by the Appellant at approximately the time it was dated? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROMINGER: Correct, Your Honor. MS. BLASS: Yes, Your Honor. THE COURT: Okay. Ms. Blass, do you want to proceed with your argument? I will admit Commonwealth's Exhibit 1 and Joint Exhibit 2. (Whereupon, Commonwealth Exhibit 1 and Joint Exhibit 2 were admitted into evidence.) MS. BLASS: Thank you, Your Honor. I am here presenting a motion that'was drafted and submitted to the Court by George Kabusk, an attorney in the Department's Office of Chief Counsel, and he has filed a Motion To Quash the Appeal as Untimely Filed. I would also like to raise that as-- I would like to raise that as an initial argument as a basis of q~ the appeal, and would like to discuss that. And in addition, I'd like to make a motion to quash this filing of a nunc pro tunc appeal as on the basis that the Court of Common Pleas does not have jurisdiction over an appeal of an interlock requirement, as there is no specific jurisdiction in Section 933 of the Judicial Code. THE COURT: I don't think this was a nunc pro tunc appeal, was it, Mr. Rominger? MR. ROMINGER: It was not. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BLASS: I believe it was untimely filed, and our motion is to quash the appeal as untimely filed. THE COURT: Yes. And is there a second motion you're making at this time? MS. BLASS: Yes, I am making a second motion to quash the appeal based on the fact that, there is not a specific grant of jurisdiction in the Judicial Code at Section 933 for the Court to hear an appeal of the ignition interlock requirement. If the Court permits, I would like to address Mr. Kabusk's motion first. THE COURT: I don't know if Mr. Rominger is prepared to deal with a motion to quaslh on the second basis. MR. ROMINGER: I believe I am, Your Honor. Are you? And you have no I do not. THE COURT: objection to that motion? MR. ROMINGER: THE COURT: All right. Blass, what that motion is. MS. BLASS: Tell me again, Ms. The second motion, Your Honor, the motion being made orally today, Your Honor, the Judicial Code at Section 933 vests into the Court of Common Pleas jurisdiction over final orders of government agencies including determinations of the Department under various chapters of the Vehicle Code. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Department submits today that, the ignition interlock requirement is the requirement imposed by an Order of Court under the ignition interlock law which is that Chapter 70 of the Judicial Code, and that particular order imposing the interlock requirement is not one of those orders that is enumerated under Section 933 of the Judicial Code. It is beyond dispute that the Court of Common Pleas has jurisdiction under Section 933 to hear an appeal of a suspension, a revocation, or cancellation of an operating privilege, but the ignition interlock requirement, we would argue, is not that. It is a separate and distinct order that is for whose authority the Court is granted authority to impose and not the Department. So our oral motion today, which is the second motion presented, is that the Court, with all due respect, does not have a specific jurisdiction to hear an appeal of the ignition interlock requirement as it is not enumerated in Section 933. THE COURT: How would Mir. Rominger challenge this imposition of a requirement that the motorist install interlock devices on all vehicles, if it were not through an appeal to this Court from the action of the Department in a case where the Court did not impose the requirement in a sentencing order or otherwise? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BLASS: In a case wb. ere the Department did not impose the requirement? THE COURT: No, where the Court did not impose the requirement. MS. BLASS: Well, Your Honor, we do not have any action by the Department yet which, I think, goes to the fact that the matter perhaps is not ripe for appeal. The Department has initiated no action as to the interlock requirement. It has simply notified the licensee in a suspension letter that, this is a requirement that follows the suspension that was imposed as the result of a DUI. In Section 933 specifically, the language of Section 933 specifically talks about appeals from final orders of government agencies in the following cases. And then at one, two, it talks about determinations of the Department of Transportation relating to various chapters of the Vehicle Code. Well, there is no final order here imposing the interlock, and there has been no Department action. And it appears in this case, there has been no order from the Court imposing the interlock. THE COURT: Is that actually of record in the case, that the sentencing order does not include a requirement that the interlock system be installed and that no other Order of Court has imposed such a requirement so 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 far? MS. BLASS: I'm not aware that-- I'd have to confer with counsel. I'm not aware if there is a sentencing order here imposing-- THE COURT: Perhaps a sentencing order should be made part of the record as well. MS. BLASS: This is an Order of Court in the case of Commonwealth v. Daryl Douqlas Strick in the Court of Common Pleas of Cumberland County, sentencing, parole, and license surrender. Part of that order. It doesn't appear to impose the interlock requirement. THE COURT: Okay. Can we make that an exhibit? Exhibit 3. Exhibit 2. there? Exhibit 17 MR. ROMINGER: I guess we'll make this Joint THE COURT: I think that would be Joint I'm sorry. There is no Joint Exhibit 1, is MR. ROMINGER: No. THE COURT: Why don't we make it Joint MS. BLASS: I'd prefer to have it as a Defendant's exhibit. MR. ROMINGER: THE COURT: Appellant's exhibit then. Ail right. We'll have that 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 marked as Appellant's Exhibit 1. (Whereupon, Appellant's Exhibit 1 was marked for identification.) THE COURT: I believe that item has now been marked, and it is a sentencing order. Does either counsel have any objection to the admission of Appellant's Exhibit 17 1 is admitted. MS. BLASS: MR. ROMINGER: None. THE COURT: Ail right. No, Your Honor. Appellant's Exhibit (Whereupon, Appellant's Exhibit 1 was admitted into evidence.) THE COURT: Go ahead, Ms. Blass. MS. BLASS: Really, to sum the argument up as to the-- to this part of the argument, because there has not been a specific band of jurisdiction under the Judicial Code, the Court would also be deprived of the jurisdiction to hear the attempt to file the appeal as untimely as well and to determine the merits of whether the appeal is or is not untimely, because there is a basic lack of jurisdiction, and we would respectfully submit, in the court itself. In the alternative, I would like to argue on behalf of the motion to quash. THE COURT: Let me just ask one question. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If the appeal is untimely, wouldn't that also go to the Court's jurisdiction? MS. BLASS: Yes, Your Honor, that's what I'm saying. If the Court does not have the basic jurisdiction to hear the case, then it would, therefore, not have the jurisdiction to determine the untimeliness of the appeal. THE COURT: Well, they are both jurisdictional issues. It seems to me,~ I would have jurisdiction to decide that it was untimely just as I would have jurisdiction to decide that I did not have jurisdiction on the merits. issues. MS. BLASS: THE COURT: They're both jurisdiction Yes, they are. Ail right. And as to the timeliness, what is the Commonwealth's position? MS. BLASS: The Commonwealth's position is that, the appeal is untimely by one year, and that there has not been an-- a showing of extraordinary circumstances amounting to fraud or breakdown of the Court's operation or administrative operation sufficient to warrant the granting of the untimely appeal. The Department further argues that the appeal in this matter is taken from the notice of suspension which constitutes a final order of the Department of Transportation. The notice of suspension is 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dated October 30th, 2001, and the time has long passed for a timely filing of that appeal. The Department disagrees that a restoration requirements letter-- we absolutely deny that, that is a final order of suspension, and it is not an order of the Department. In fact, the restoration requirements letter states in the final paragraph of the letter that, this letter identifies the requirements necessary to restore your driving privilege, and we are looking forward to working with you to do this. So it is simply not an order from which an appeal can be taken, in other words, to render this action timely. THE COURT: In your view, when should the appeal have been taken? MS. BLASS: Within 30 days from the date of the official notice of suspension of October 30th, 2001; therefore, November 29th, 2001. THE COURT: All right. MS. BLASS: I would also like to submit that, there has been no evidence offered of extraordinary circumstances, but what seems to be offered here simply is the fact that it is the interlock requirement is the continuation of the suspension and, therefore, it entitles the Appellant to come forward and to request an appeal long 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 after the official notice imposing the DUI suspension. THE COURT: What do you feel your strongest case is on the issue of timeliness? MS. BLASS: I believe Schneider. THE COURT: Can you give the cite for that case? MS. BLASS: Yes, I can, Your Honor. That's Albert Schneider v. Department of Transportation, Bureau of Driver Licensinq, 790 A.2d 363. It's a Commonwealth Court decision that was decided on January llth, 2002. THE COURT: And what, in that opinion, do you feel supports your position as to when an appeal has to be taken? MS. BLASS: Well, there is language in this decision that appears in footnote 7 in which the Commonwealth Court finds agreement witlh the trial court in determining that the interlock requirement is not, as the Department had argued, was not a restoration requirement, but the Court in this case found that the interlock requirement was a continuation of a suspension. It didn't find it was a separate suspension, but it found as it were that it was part of a-- as it were, a seamless suspension. Based on that concept and that footnote, we would argue that, if that. is so, then the suspension, in its entirety, namely the DUI suspension and 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the interlock component, should have been appealed timely from October 30th-- I believe it's October 31st-- excuse me, Your Honor. THE COURT: MS. BLASS: Certainly. From October 30th, 2001, 30 days from that date. Although the Department would like to add for the record that, the Schneider case is on appeal to the Supreme Court, and that the Department submits that, in not every instance is an interlock requirement which is a requirement of continuation of suspension, because there is a choice that a licensee has when the one-year DUI suspension is done, and that choice goes in either direction. Either the licensee can comply with the interlock requirement and then be allowed to drive the vehicle with the interlock device imposed, thus enabling the person to drive and ending any further suspension. The alternate choice the licensee has is to decline to do so, for whatever reason, and not have that interlock device imposed on the car, and have to, under' the terms of 7003 of the Judicial Code, has to incur a further suspension. So really, not in every case, as the Commonwealth Court indicates, is an interlock requirement a continuation of suspension. Thank you, Your Honor. THE COURT: Thank you. Just one question. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What is the issue on appeal in Schneider to the Supreme Court? Do you know? MS. BLASS: I am not sure. The Department has filed that appeal, and I can file a short letter memorandum. THE COURT: That's not necessary. I just thought you might know off the top of your head what it was. MS. BLASS: accurately express it here. THE COURT: Rominger. MR. ROMINGER: I'm sorry, [[ cannot with Thank you. Ail right. Thank you. Mr. Your Honor, in Commonwealth v. Mockaitis, yourself, Judge Guido, and Judge Bayley presided, an opinion by Bayley, who found Act 63 of 2000 here which is unconstitutional. THE COURT: Do you have a cite for that case? MR. ROMINGER: It was 00-1692 CRIMINAL TERM. I do not have any other citation other than, this is a copy actually from the file itself. THE COURT: I believe that has been published, but I can look it up. And that was a decision by Judge Bayley? MR. ROMINGER: Written by Judge Bayley, but 17 1 2 3 4 5 6 7 8 9 10 11. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it was in front of yourself, Judge Guido, and Judge Bayley. THE COURT: And Ms. Blass, do you happen to have a Cumberland Law Journal cite? MS. BLASS: the motion, Your Honor. THE COURT: MS. BLASS: THE COURT: MR. ROMINGER: & C. 4th 115, 2001. THE COURT: believe, is on appeal also. MR. ROMINGER: I was looking quickly through I'm afraid I dion't. All right. Thank you. Thank you. Mr. Rominger. I do have it. It's 54 Pa. D. Thank you. That case, I It is on direct appeal to the Supreme Court, although it would be my impression that, it's binding on Cumberland County at tlhis time. Now with all of that said, the Schneider case, I'd also ask the Court to look at, because I believe it suggests that the Department sort of-- the Department is taking two tacks here at the same time. On one hand, they want to tell you, well, it might not be ripe yet, but it's also untimely. And I find that disconcerting, because if it's not ripe, how can the appeal be untimely? We didn't appeal until we felt it was ripe. And we did that partly based on a-- partly based on a Superior Court case which was handed down which was then 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 withdrawn, and I'll give you the cite just because I believe it's instructive to look at. That was in the Superior Court of Pennsylvania, Commonwealth v. McManus, and that is 2002 Pa. Super. 271. And I didn't have an Atlantic cite. THE COURT: Is that-- that's a 2002 case? MR. ROMINGER: That's correct. THE COURT: Okay. MR. ROMINGER: It's been withdrawn now, the opinion has, for reasons that aren't known, at least to me or my colleague. We believe that we were timely, because PennDOT sent us a restoration letter that told us what we needed to do, and we really appealed from that action more so than we did from the actual original suspension letter. But if Your Honor studies the record, you're going to notice something interesting. In the Government's exhibit, the original suspension letter, it does talk about the ignition interlock system, and it says, you will receive more information regarding this requirement approximately 30 days before your eligibility date. So if Your Honor finds that we couldn't appeal, I think we could appeal this restoration issue, interlock at the time that we did, but if Your Honor were to find that we had[ to appeal from the suspension notice, then I'd submit, the record also shows 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we didn't receive the entire suspension notice until the second portion which was referenced in the original letter was transmitted to my client. So I believe, we're timely either way you look at it. If you look at it singley, if Your Honor finds, and I'm going to argue that more in-depth, but for a moment, assume I had to appeal from the original suspension letter. The original suspension letter isn't complete until you receive the second notice that tells you more about that section. And that may seem a little crazy, except that, if you read the rest of the exhibit, the Department is very specific about everything else. They even tell you what to do to get your license restored later on, and they send you, according to the letter, everything you need to get your license restored later on, except this guardian interlock issue. Now my client also was not ordered to participate in the guardian interlock program by the Order of Court, and I think that's also relevant, because now PennDOT has on its own decided that he is subject to that. So we couldn't have appealed it from the sentencing order. And in terms of the Joint Exhibit, the letter, it tells my client what he has to do, and that includes actually going to a center, getting the car pre-approved. He actually has to go and install the device 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before he can get his license. So there's an onerous issue that happens here. It not the proforma letter that says, congratulations, your license is coming. And like PennDOT has said today, he has a choice to make. He can follow through with this installation, the expense, the cost, and the hoops, or he can just endure an additional year suspension. So we feel it's ripe once that choice was put in front of him. It says, you got to do this now and have it done before your eligibility date or else you're not going to be able to get your license. So we believe we were timely in filing this. And it's-- since we were timely in filing this, and since Your Honor has to dismiss the motion to quash and decide this on its merits is quite simple, because this county has already determined that Act 63 of 2000 is unconstitutional, and you should forthwith order the Department to return my client's driver license, because he is eligible for restoration. He doesn't have a license right now, because they-- the guardian interlock hasn't been decided yet, so we don't know whether-- he hasn't gone through and had that installed in his vehicle yet, so he is apparently now under that second year of suspension at this time. THE COURT: The only issue before me at this 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time is whether the appeal should be quashed. I would have to schedule a hearing on the other issues raised to build the record applicable to the Appellant in this particular case. What do you feel is your strongest case, Mr. Rominger? MR. ROMINGER: I believe my strongest case was withdrawn by the Superior Court which I cited, but I do believe that the Schneider case suggests that this is a live issue at this time. And in neither Schneider nor Turner, and Turner is 805 A.2d 671, 2002, Pennsylvania Commonwealth Court, in neither case is it clear to say, you have jurisdiction over an appeal on guardian interlock. Both of these cases say, you have jurisdiction over that. Neither one of them says, you have to file within 30 days of the suspension letter. And in neither case can you discern from the record that the appellate court left whether or not that was done. It's clear, I think, that neither one of those cases waited for the restoration letter. But I don't think that's clear from the record that the appellate court sent down. For some reason, the appellate court in both cases, it's the same appellate court, didn't think it was important enough to tell us when the petition was filed in relation to the notice of suspension from PennDOT. That could be judicial 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 oversight. But when it happens more than once, I think you can infer that it's not relevant to the inquiry of jurisdiction. THE COURT: Can it not be inferred at least from the Schneider case that the appeal was taken from the initial notice of suspension rather than from any restoration letter? MR. ROMINGER: It could be inferred, but it can't be inferred that it was filed within 30 days of that letter. It could have been filed within 38 days of that letter. It could have been filed within 42 days of that letter, I believe, if you calculate it. All we know is, there was a letter sent, and a hearing de novo, I think, between 40 and 60 days later. Now presumably, it was filed within the 30 days, but again, neither in Turner nor in the Schneider case does the Court feel it to be important to say when it was filed, and they do go through an elaborate-- I mean, they go through, Your Honor, when the DUI occurred, when the sentencing occurred, when all these things occurred, but this is left out in both cases. I think that suggests to you, and you may infer from that, that's not important when the Appellant raises the issue, because I don't think he has to raise it. I don't think he can raise it until it becomes ripe. I 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think the only-- THE COURT: ripe? When do you feel it becomes MR. ROMINGER: It becomes ripe when PennDOT sends you this second-- the second letter that they reference in their original letter that tells you, because-- and this is important, Your Honor, the PennDOT letter does not tell you what you're going to have to do in order to be suspended or not suspended until you get the second half of it about 30 days before, which is the notice we went from. It just tells you, if you fail to comply-- this is in the fist letter. If you fail to comply with this requirement, your driving privilege will remain suspended for an additional year. It :says, you are required by law to have all vehicles owned by you to be equipped with the ignition interlock. It gives a brief statement, but then says, if you really want to know how you get the suspension or not get the suspension, you have to wait until this letter appears almost a year later. And I think that's important, because PennDOT itself has not given you everything you need to know how this is going to effect you or when it's going to effect you, if it's going to effect you at all. And then in this case, PennDOT has sort of uni].aterally thrown this 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at the fella. What if this second letter had said, what's the second letter-- it doesn't say it, but what if it said in this last paragraph, furthermore, if your county had not imposed this requirement, then it's waived, and you need not-- you need not worry about this. But it doesn't say that. It could have said that. So he needs to wait and see. THE COURT: In Schneide~2, there is no suggestion, I assume, that the restoration letter had been received by the Appellant prior to the appeal? MR. ROMINGER: That's correct. THE COURT: It would be almost impossible for that to have occurred, I would think, given the time periods involved. MR. ROMINGER: Although we don't know the exact content. That's another problem. We don't know if-- we don't know what the letter from PennDOT said in that case, whether or not it said, you're going to get another letter later on or not. Maybe that was a different letter from PennDOT that included all this information. And that's not clear from the record either. THE COURT: All right. And what was the cite for the Turner opinion? MR. ROMINGER: Turner was 805 A.2d 671, 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2002, PA Commonwealth Court. THE COURT: Thank you. MR. ROMINGER: I would just ask, I cited that Superior Court opinion that was withdrawn. I think the Superior Court had it right. That's the-- this issue doesn't arise until the person makes a choice about what they're going to do or how it's going to be imposed. THE COURT: Thank you. MR. ROMINGER: One additional fact, just as a hypothetical. THE COURT: Sure. MR. ROMINGER: My client's driver's license in this case, for instance, could be a motorcycle driver's license. And I know this isn't of record, so I don't have-- maybe you can't-- but this interlock device is kind of a big device, and you can't install it on all vehicles. So an Appellant may not know whether or not he can comply with the licensing requirements until hypothetically, until he knows whether or not this guardian-- this interlock can be installed on all the vehicles, because unless it's on all the motor vehicles he owns, he doesn't get his license back. When he gets this letter, he may not know that the electric Jujitsu car that he bought, because he wanted to be environmentally conscious, won't interface 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with this device, and he'll then have to give up ownership, so it becomes an issue, I mean, maybe not in this case, maybe in this case, but hypothetically, it could become an issue in this case how this effects your ownership of a vehicle or what vehicles you own. You may actually have to dispossess yourself of a motor vehicle if it won't work with this guardian interlock or take the suspension, and you won't know until they tell you where to report and how to get this set up, which is what the second letter does. It sends you to a processing station. So that's another reason, at least hypothetically, as to why ripeness can't be determined until this point. THE COURT: All right. Thank you. Ms. Blass, was there anything further you wanted to add? MS. BLASS: Your Honor, I have two quick points regarding a third brief. THE COURT: Certainly. MS. BLASS: Again, I want to re-emphasize, the restoration requirements letter is that. It is a letter not a notice, not an order, informing the licensee of requirements for restoration. It does not inform the licensee of the imposition of a collateral sanction to a criminal conviction such as a notice of suspension does. A notice of suspension, and our notice of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 suspension fully and clearly informs the licensee that as a result of a DUI conviction, there is going to be a civil consequence. That civil consequence is under 3731 and 1532 of the Vehicle Code, a suspension. Moreover, I would ask the Court, in the letter itself, the letter itself points, out the fact clearly that the licensee has the right to appeal this action to the Court of Common Pleas within 30 days. It's crystal clear. I mean, action is the word that's large enough to encompass all the information that is in this letter, including what Mr. Rominger is referring to, the ignition interlock requirement. That word action is commonly understood to include the acts that the Department takes. So it would put the licensee on fair and ample notice that the appeal should be taken 30 days from this letter. I think finally-- the final point, when you look to the language of 933, which is what vests jurisdiction for these appeals in the Courts of Common Please, it talks about appeals from final orders of government agencies and determinations of the Department of Transportation. I'd submit to the Court that, a restoration requirements letter is neither a final action of the Department or a determination of the Department. Thank you. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Ail right. I can see Mr. Rominger would argue that it is a determination by the Department if the trial court has not imposed that requirement, but that leaves open the q~estion as to when the determination was made. And I think, Ms. Blass, you are arguing that it was made at the time that the initial notice was sent out. MS. BLASS: THE COURT: Yes, I am, Your Honor. Ail right. Mr. Rominger, anything further you want to argue? MR. ROMINGER: Your Honor, I have no further oral argument. I do have one request for relief, and that just is as follows: If Your Honor decides that this may go forward on the merits, I'd ask that any order doing so grant a supersedeas, as my client is now withoUt a driver's license pending resolution of this matter. I suspect, if he went and applied for the guardian interlock license, the next thing I'd get is some kind of mootness argument. The younH man needs to drive. He's a member of the National Guard. He may be called up for duty. And right now, he's not even licensed to run a vehicle on the runways to help in our war effort. So I'd ask just that, if you decide it's not timely filed to quash, obviously, my request would be moot, but if you do allow us to proceed, that you grant a supersedeas in the 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 meantime. THE COURT: Ms. Blass, do you have a response to that request? MS. BLASS: I think that the filing of a timely petition for appeal under Section 1550 of the Vehicle Code allows the Court to grant a supersedeas as a matter of order. But I think there should be a separate hearing on the motion for granting of supersedeas so that various arguments can be made to the Court as to whether the Court should or should not grant the supersedeas, because a supersedeas is a matter of right, as if it were under Section 1550 with the timely filing of a petition for appeal, and the Department argues that., there was no timely filing here. THE COURT: Well, I'll worry about that issue after I made a ruling on the motion to quash. We'll enter this order: (Whereupon, the followilng Order of Court was entered:) ORDER OF COURT AND NOW, this llth day of December, 2002, upon consideration of Appellee's "Motion To Quash Appeal as Untimely Filed" and of an oral motion of the Appellee made on today's date to quash the appeal as being outside the jurisdiction of this Court under Section 933 of the 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judicial Code, and following a proceeding at which counsel submitted various items for purposes of the record, and argued their respective positions on the motions, the record is declared closed, and the matter is taken under advisement. By the Court, /s/ J. WeSley Oler, Jr. J. THE COURT: Thank you very much. It was very well argued. Court is adjourned (Whereupon, the proceeding concluded at 3:56 p.m.) 31 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Y C//%inge~ \ ~ Offic~~urt R~po~ter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date esley O~Fr, Jr., U.' 32 DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. O -50 c/ : LICENSE SUSPENSION APPEAL PETITION FOR GRANT OF SUPERSEDEAS AND NOW, comes Daryl Strick by and through his privately retained counsel, Karl E. Rominger, Esquire and in support of his Petition for Grant of Supersedeas avers as follows: 1. Your Petitioner filed an appeal from a December 17, 2002, Order quashing his appeal in thc above captioned matter. 2. Thc Honorable Wesley J. Olcr produced a Rule 1925 (b) Opinion explaining why the Court granted the quash. 3. On February 7, 2003, the Commonwealth Court issued an Opinion in Waterson v. Commonwealth of Pennsylvania Department of Transportation, 1055 CD 2002, a copy of which is attached as Exhibit "A". 4. This authority of the Commonwealth Court is in direct opposition to the Trial Judge's Opinion and reasoning for the quash. 5. It is now extremely likely that Petitioner will win his appeal in the Commonwealth Court. 6. Your Petitioner continues to be without a driver's license because of the conditions imposed by Penn DOT and previously complained of. 7. Equity requires that this Court grant a Supersedeas which it is empowered to do, by the Pennsylvania Rules of Appellate Procedure, pursuant to Rule 1701 (1). WHEREFORE, Defendant respectfully requests that this Hor~orable Court grant a supersedeas and order that Penn DOT provide Defendant with a Pennsylvania driver's license without the guardian interlock requirements pending disposition of his the appeal on the above captioned matter now pending in front of the Commonwealth Court. Respectful[ly submitted, ROMINGER & BAYLEY Date: 3/12/03 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Petitioner IN THE COMMONWEALTH COURT OF PENNSYLVANIA Keith R. Watterson Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant · No. 1055 C.D. 2002 · Submitted: September 13, 2002 BEFORE: HONORABLE JAMES GARDNER COLINS, Presidem Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE REN~E L. COHN, Judge OPINION BY PRESIDENT JUDGE COLINS~ FILED: February 7, 2003 The Department of Transportation, Bureau of Driver Licensing appeals from an order of the Court of Common Pleas of Chester County that denied the Bureau's motion to quash the statutory appeal of Keith R. Watterson and sustained Watterson's appeal from the Bureau's requirement that he place an ignition interlock on all vehicles he owns before it will restore his license· We affirm the trial court. Watterson's operating privilege was suspended for three months on July 23, 1991, as a condition of his acceptance of accelerated rehabilitative disposition after he was charged with driving under the influence on March 12, 1991. Watterson's license was subsequently suspended for one year after he was This case was assigned to this author on October 4, 2002. convicted of driving under the influence on January 2:3, 2001. The trial court did not order Watterson to install an ignition interlock device as required by Section 7002(b) of the Judicial Code, 42 Pa. C.S. §7002(b).2 The Department, however, in a notice dated April 13, 2001, notified Watterson that,, in addition to the one-year suspension of his operating privileges, he was required to install ignition interlock devices on all vehicles he owned before the Department would restore his operating privileges. On February 28, 2002, Watterson filed an appeal from the Department's refusal to restore his license until he had complied with the Department's ignition interlock requirement. At the hearing before the trial court, the Department moved to quash the appeal on the grounds that it was untimely because, according to the Department, Watterson shoulld have appealed as soon as he received the notice of suspension sent on April 13., 2001. Watterson claimed that he did not receive that notice because he had moved before he was sentenced for the January 23, 2001 conviction. The Department countered that it had processed a change of address for Watterson on January 11, 2001. The trial court did not decide the issue of timeliness, but instead denied the motion to quash on the grounds that only the trial court has the authority to impose the ignition interlock requirement and that the Department cannot impose it absent a court Section 7002(b) provides: Second or subsequent offense.--In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa. C.S. §3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoJ~tion of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. 2 order. Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002). The Department brought this appeal. The questions the Department presents for our review are whether the trial court erred when it denied the Department's motion to quash the appeal as untimely and whether the Department has an independent mandate to impose the ignition interlock requirement where it is not ordered by a court of common pleas.3 We find no error in the trial court's nuncpro tunc consideration of the merits of Watterson's appeal, even though it may have,' been untimely, because, as we explain below, the requirement imposed on Watterson was imposed without the authority of the law and was void ab initio; equitable relief, if necessary, is appropriate in such an extraordinary circumstance. CriSS v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001). We fred that the trial court acted correctly in relying on Schneider to strike the ignition interlock requirement imposed on Watterson by the Department. In Schneider, we considered the case of a motorist wlho had been convicted of a second DUI offense where the court did not impose an ignition interlock requirement, but the where the Department had attempted to impose it independently. The facts are the same in the case before us. In deciding Schneider we said Although Schneider had two DUI offenses and pursuant to Section 7002(b), the trial court was required to order installation of an ignition interlock device, that failure does not mean that PennDOT 3 Our standard of review is limited to determining whether the necessary findings are supported by the evidence or whether the trial court committed an error of law or abused its discretion. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 723 A.2d 655 (1999). 3 has been given authority to override the trial court's order and require installation. Section 7002 provides that only "the court shall order the installation of an approved ignition interlock device .... "42 Pa.C.S. § 7002(b). Because this provision gives a court the sole authority, PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do se,. 790 A.2d at 366 (footnote and emphasis omitted). The Department argues that 42 Pa. C.S. §7003 independent authority to impose the ignition interlock :requirement. gives it the We disagree. The ignition interlock requirement may only be imposed by an order of the court of common pleas, Schneider. The Department lacks the: power to act pursuant to Section 70034 absent a court order issued pursuant to Section 7002. The 4 §7003. Additional driver's license restoration requirements In addition to any other requirements established for' the restoration of a person's operating privileges under 75 Pa.C.S. § 1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 (relating to driving under inflaence of alcohol or controlled substance), or a similar out-of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. § 1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year t~om the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. § 195 l(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 or a similar out-of-State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating 4 Department lacked the power to impose the interlock: requirement in this matter because the court of common pleas never entered an order that would allow it to act. The Department's requirement is void ab initio. Accordingly, the order of the Court of Common Pleas of Chester County in this matter is affirmed. JAMES GARDNER COLINS, President Judge privileges for an additional year after otherwise being eligible for restoration under paragraph (1). IN THE COMMONWEALTH COURT OF PENNSYLVANIA Keith R. Watterson Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant · No. 1055 C.D. 2002 ORDER AND NOW, this 7th day of February 20013, the order of the Court of Common Pleas of Chester County in this matter is afl'tuned. JAMES GARDNER COLINS, President Judge DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURI~ OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-1254 LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this day served a copy of the Petition for Grant of Supersedeas upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire PA Department of' Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 Dated: 3/12/03 Karl E. Rominger, Esquire Attorney fG~r Petitioner DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM PETITION FOR GRANT OF SUPERSEDEAS ORDER OF COURT AND NOW, this 25th day of March, 2003, upon consideration of the Petition for Grant of Supersedeas, a Rule is hereby issued upon the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant BY THE COURT, George Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Attorney for Appellee :rc DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 0-1~-1-2f0 ~- LICENSE SUSPENSION APPEAL RULE TO MAKE ABSOLUTE AND NOW, comes Daryl Strick, by and through his privately retained counsel, Karl E. Rominger, Esquire and asks that this Court make the Rule previously requested Absolute and in support thereof avers as follows: 1. A Petition for Supersedeas was filed on March 12, 2003. (Exhibit "A") 2. The same was served on the Pennsylvania Department of Transportation on March 12, 2003. 3. No answer has been received as of the date of this filing. WHEREFORE, Petitioner respectfully requests this Honorable Court make said Rule Absolute. Respectfully submitted, ROMINGER & BAYLEY '"~arl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Petitioner DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Petitioner, do hereby certify that I this day served a copy of the Rule to Make Absolute upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 Dated: Karl E. Rominger, Esquire Attorney for Petitioner DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 0-1M-2~4 C:~..~. - .~-~t,/~ LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this ~ day of ,2003, the Supersedeas is granted pending disposition of the Commonwealth Court appeal in the above captioned matter, and the Pennsylvania Department of Transportation is ordered and directed to restore Appellant's operator privileges and reissue his driver's license without the guardian imerlock requirement. Distribution: Karl E. Rominger, Esquire George Kabusk, Esquire Jo DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 0~-~2-5q C~ZL~ LICENSE SUSPENSION APPEAL PETITION FOR GRANT OF SUPERSEDEA~ AN D NOW, comes Daryl Strick by and through his privately retained counsel, Karl E. Rominger. Esquire and in support of his Petition for Grant of Supersedeas avers as follows: 1. Your Petitioner filed an appeal from a December 17, 2002, Order quashing his appeal in the above captioned matter. 2. The Honorable Wesley J. Oler produced a Rule 1925 (b) Opinion explaining why the Court granted the quash. 3. On February 7, 2003, the Commonwealth Court issued an Opinion in Waterson v. Commonwealth of Pennsylvania Department of Transportation, 1055 CD 2002, a copy of which is attached as Exhibit "A". 4. This authority of the Commonwealth Court is in direct opposition to the Trial Judge's Opinion and reasoning for the quash. 5. It is now extremely likely that Petitioner will win his appeal in the Commonwealth Cout2. 6. Your Petitioner continues to be without a driver's license because of the conditions imposed by Penn DOT and previously complained of. 7. Equity requires that this Court grant a Supersedeas which it is empowered to do, by the Pennsylvania Rules of Appellate Procedure, pursuant to Rule 1701 (1). WHEREFORE, Defendant respectfully requests that this Hor~.orable Court grant a supersedeas and order that Penn DOT provide Defendant with a Pennsylvania driver's license without the guardian interlock requirements pending disposition of his the appeal on the above captioned matter now pending in front of the Commonwealth Court. Respectfully submitted, ROMINGER & BAYLEY Date: 3/12/03 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Petitioner IN THE COMMONWEALTH COURT OF PENNSYLVANIA Keith R. Watterson Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant · No. 1055 C.D. 2002 · Submitted: September 13, 2002 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENI~E L. COHN, Judge OPINION BY PRESIDENT JUDGE COLINS~ FILED: February 7, 2003 The Department of Transportation, Bureau of Driver Licensing appeals from an order of the Court of Common Pleas of Chester County that denied the Bureau's motion to quash the statutory appeal of Keith R. Watterson and sustained Watterson's appeal from the Bureau's requirement that he place an ignition interlock on all vehicles he owns before it will restore his license. We affu'm the trial court. Watterson's operating privilege was suspended for three months on July 23, 1991, as a condition of his acceptance of accelerated rehabilitative disposition after he was charged with driving under the influence on March 12, 1991. Watterson's license was subsequently suspended for one year after he was This case was assigned to this author on October 4, 2002. convicted of driving under the influence on January 23, 2001. The thai court did not order Watterson to install an ignition interlock device as required by Section 7002(b) of the Judicial Code, 42 Pa. C.S. §7002(b)? The Department, however, in a notice dated April 13, 2001, notified Watterson that, in addition to the one-year suspension of his operating privileges, he was required to install ignition interlock devices on all vehicles he owned before the Department would restore his operating privileges. On February 28, 2002, Watterson filed an appeal from the Department's refusal to restore his license until he had complied with the Department's ignition interlock requirement. At the hearing before the trial court, the Department moved to quash the appeal on the grounds that it was untimely because, according to the Department, Watterson should have appealed as soon as he received the notice of suspension sent on April 13, 2001. Watterson claimed that he did not receive that notice because he had moved before he was sentenced for the January 23, 2001 conviction. The Department countered that it had processed a change of address for Watterson on January 11, 2001. The trial court did not decide the issue of timeliness, but instead denied the motion to quash on the grounds that only the trial court has the authority to impose the ignition interlock requirement and that the Department cannot impose it absent a court 2 Section 7002(b) provides: Second or subsequent offense.-In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa. C.S. {}3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. 2 order. Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002). The Department brought this appeal. The questions the Department presents for our review are whether the trial court erred when it denied the Department's motion to quash the appeal as untimely and whether the Department has an independent mandate to impose the ignition interlock requirement where it is not ordered by a court of common pleas.3 We find no error in the trial court's nuncpro tunc consideration of the merits of Watterson's appeal, even though it may have been untimely, because, as we explain below, the requirement imposed on Watterson was imposed without the authority of the law and was void ab initio; equitable relief, if necessary, is appropriate in such an extraordinary circumstance. Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001). We fred that the trial court acted correctly in relying on Schneider to strike the ignition interlock requirement imposed on Watterson by the Department. In Schneider, we considered the case of a motorist who had been convicted of a second DUI offense where the court did not impose an ignition interlock requirement, but the where the Department had attempted to impose it independently. The facts are the same in the case before us. In deciding Schneider we said Although Schneider had two DUI offenses and pursuant to Section 7002Co), the thai court was required to order installation of an ignition interlock device, that failure does not mean that PennDOT 3 Our standard of review is limited to determining whether the necessary findings are supported by the evidence or whether the trial court committed an error of law or abused its discretion. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 723 A.2d 655 (1999). 3 has been given authority to override the trial court's order and require installation. Section 7002 provides that only "the court shall order the installation of an approved i~enition interlock device .... "42 Pa.C.S. § 7002(b). Because this provision gives a court the sole authority, PermDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so. 790 A.2d at 366 (footnote and emphasis omitted). The Department argues that 42 Pa. C.S. §7003 independent authority to impose the ignition interlock requirement. gives it the We disagree. The ignition interlock requirement may only be imposed by an order of the court of common pleas, Schneider. The Department lacks the power to act pursuant to Section 70034 absent a court order issued pursuant to Section 7002. The 4 §7003. Additional driver's license restoration requirements In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. § 1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. § 1951(d) (relating to driver's license and learner's permit) which will be clearly .marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. § 195 l(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 or a similar out-of-State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating 4 Department lacked the power to impose the interlock requirement in this matter because the court of common pleas never entered an order that would allow it to act. The Department's requirement is void ab initio. Accordingly, the order of the Court of Common Pleas of Chester County in this matter is affu'med. JAMES GARDNER COLINS, President Judge privileges for an additional year after otherwise being eligible for restoration under paragraph (1). 5 IN THE COMMONWEALTH COURT OF PENNSYLVANI3 Keith R. Watterson Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant · No. 1055 C.D. 2002 ORDER AND NOW, this 7th day of February 2003, the order of the Court of Common Pleas of Chester County in this matter is affh'med. JAMES GARDNER COLINS, President Judge DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 01-1254 LICENSE SUSPENSION APPEAL _CERTIFICATE OF SERVICE I. Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this day served a copy of the Petition for Grant of Supersedeas upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 171. 04-25 ! 6 Dated: 3/12/03 Karl E. Rominger, Esquire Attorney for Petitioner DARYL STRICK, Appellant VS. COMMONWEALTH OF PA., PA. DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5049 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this ~ -, ~ day of April, 2003, upon consideration of Appellant's motion to make rule absolute, the motion is granted, the rule issued on March 25, 2003, is made absolute, and a supersedeas is granted pending disposition of Appellant's appeal to the Commonwealth Court from the quashal ordered by this court to the extent that the effect of the quashal was to leave in force a requirement that Appellant install ignition interlock systems on all of his vehicles as a prerequisite to restoration of his driver's license. BY THE COURT, Karl Rominger, Esquire For the Appellant George Kabusk, Esquire For the Appellee :rlm DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM ORDER OF COURT' AND NOW, this 30th day of April, 2003, upon consideration of Appellant's Petition for Contempt, a Rule is issued upon the Secretary of Transportation to show cause why a citation for contempt should not issue. RULE RETURNABLE at a hearing scheduled for Monday, June 30, 2003, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, .~arl E. Rominger, Esq. 155 South Hanover Street carlisle, PA 17013 Attomey for Appellant J~esley Ole~ll:., J. ~George Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Attorney for Appellee :rc DARYL D. STRICK, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-50,49 LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION'S RESPONSE TO THE PETITION FOR CONTEMPT The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department), by and through its attorney, George H. Kabusk, Esquire, respectfully represents as follows: PROCEDURAL BACKGROUND By official notice dated October 30, 2001, the Depm~maent of Transportation, Bureau of Driver Licensing, notified Daryl Douglas Strick, O.L.N. 22180347, that as a result of his conviction on September 4, 2001, of a violation on March 4, 2001, of Section 3731 of the Vehicle Code, relating to Driving Under the Influence of Alcohol or Drugs, his driving privilege was being suspended for a period of one year, suspension effective October 10, 2001. 2. The notice dated October 30, 2001, additionally notified the petitioner that as a result of his conviction of driving under the influence, he was required by law to have all vehicle(s) owned by him equipped with an approved ignition interlock system before his driving privilege can be restored and that if he failed 1:o comply with this requirement, his driving privilege would remain suspended for an additional one year. 3. The Department by a restoration requirements letter dated October 7, 2002, informed the petitioner that the one year suspension as a result of his conviction of Section 3731 of the Vehicle Code, relating to Driving Under the Influence of Alcohol or Drags, began on October 10, 2001, and that credit for serving that suspension began on November 8, 2001, and ended on November 8, 2002. 4. The restoration requirements letter dated October 7, 2002, additionally informed the petitioner that he was eligible to obtain a Ignition Interlock Restricted License on November 8, 2002, provided that he comply with the requirements. 5. The petitioner filed a petition titled APPEAL FROM ',SUSPENSION OF OPERATOR'S PRIVILEGE on or about October 17, 2002, in l~he Court of Common Pleas of Cumberland County. 6. This Honorable Court on October 29, 2002 issued a Rule upon the Department to show cause why the relief requested by the petitioner should not be granted. 7. The Department on November 15, 2002, filed a Response to Rule to Show Cause. 8. The Department in its November 15, 2002, Response to Rule to Show Cause included a Motion to Quash Appeal as Untimely Filed. Additionally, the Department responded to the petitioner's arguments regarding Equal Protection and Due Process. 9. This Honorable Court on November 21, 2002, issued an Order for oral argument on the Department's Motion to Quash. 10. A hearing in this matter was held on December 11, 12002. 11. This Honorable Court on December 12, 2002, issued an Order granting the Department's Motion to Quash as untimely filed. 12. The petitioner on December 23, 2002, obtained an Ignition Interlock Restricted License. 13. The petitioner on December 27, 2002, filed a Petition for Reconsideration. 14. The petitioner's Petition for Reconsideration was not granted. 15. The petitioner on January 15, 2003, filed a Notice of Appeal. 16. The petitioner on January 16, 2003, filed an Amended Notice of Appeal. 17. The Commonwealth Court docket number is 143 CD 2003. 18. The petitioner on or about March 12, 2003, filed with the Court of Common Pleas a Petition for Grant of Supersedeas. 19. This Honorable Court on March 25, 2003, issued an order to show cause why the relief requested by the petitioner in his Petition for Grant of'Supersedeas should not be granted. 20. This Honorable Court on April 22, 2003, issued an C~'der granting a supersedeas which stated: AND NOW, this 22nd day of April, 2003, upon consideration of Appellant's motion to make role absolute, the motion is granted, the role issued on March 25, 2003 is made absolute, and a supersedeas is gl:anted pending the disposition of Appellant's appeal to the Commonwealth Court from the quashal ordered by this court to the extent that the effect of the quashal was to leave in force a requirement that Appellant install ignition interlock systems on all of his vehicles as a prerequisite to restoration of his driver's license. IGNITION INTERLOCK REQUIREMENTS 21. The Ignition Interlock requirements consists of two separate parts: (1) the trial court ordering the installation of the ignition interlock syst,~nn as per 42 Pa. C.S. § 7002 and (2) the Department's issuance of an Ignition Interlock Restricted License as per 42 Pa. C.S. § 7003. IGNITION INTERLOCK REQUIREMENT PART (1): TRIAL COURT ORDER OF INSTALLATION OF THE IGNITION INTERLOCK SYSTEM 22. Section 7002(b) of the Judicial Code, 42 Pa.C.S. § 7002Co) (Ignition Interlock Law), provides that in addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. § 3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. 23. Section 7003(1) of the Ignition Interlock Law, 42 Pa.C.S. § 7003(1), provides that where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system. 24. The Court of Common Pleas certified to the Department on or about December 23, 2002, that the petitioner complied with Act 63 and had the ignition interlock installed. IGNITION INTERLOCK REQUIREMENT PART (2): THE DEPARTMENT'S ISSUANCE OF AN IGNITION INTERLOCK RESTRICTED LICENSE 25. Section 7003(2) of the Ignition Interlock Law, 42 Pa.C.S. § 7003(2), provides that a person seeking restoration of operating privileges shall apply to the Department for an ignition interlock restricted license under 75 Pa.C.S. § 1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. 26. The Department may issue to the petitioner, who has had has been suspended for subsequent violations of Section 3731 of the Vehicle Code, relating to Driving Under the Influence of Alcohol or Drags, an Ignition Interlock Restricted License if the petitioner applies for an Ignition Interlock Restricted License and if he does not apply for an Ignition Interlock Restricted License he is ineligible for restoration for one additional year. See 42 Pa. C.S. § 7003(5). 27. A person with an Ignition Interlock Restricted License may only drive a vehicle that is equipped with an approved ignition interlock system. 28. The petitioner applied for an Ignition Interlock Restricted License. 29. The Department on December 23, 2002, issued the petitioner an Ignition Interlock Restricted License. 30. The petitioner's operating privilege has been restored,, and the petitioner has been issued an Ignition Interlock Restricted License. TERMS OF THE SUPERSEDEAS 31. The Supersedeas Order entered by the Court on April 22, 2003, addresses only the first part of the Ignition Interlock Requirements, namely, the installation of the device. 32. The Supersedeas Order entered by the Court on April 22, 2003, does not address the second part of the Ignition Interlock Requirements, namely, the issuance of an Ignition Interlock Restricted License rather than an unrestricted driver's license. 33. On or about April 28, 2003, the petitioner appeared at the Department's Customer Service Counter and requested that the Department issue him an unrestricted driver's license based upon the Order of Supersedeas of April 22, 2003. 34. The Department on or about April 28, 2003, did not issue the petitioner an unrestricted driver's license because Order of Supersedeas addresses only the first part of the Ignition Interlock Requirements, namely, the installation of the device, and it does not addresses the second part of the Ignition Interlock Requirements, namely, the issuance of an Ignition Interlock Restricted License rather than an unrestricted driver's license. 35. The Order of Supersedeas of April 22, 2003, relieves the petitioner fi.om the requirement of the first part of the Ignition Interlock Requirements; that is, the petitioner is not required to install an ignition interlock system on all of his vehicles as a prerequisite to restoration of his driver's license. 36. In accordance with the terms of the Order of Supersedeas of April 22, 2003, the Department is not required to issue the petitioner an unrestricted driver's license. 37. The Department is not in contempt nor in noncompliance with the Order of Supersedeas of April 22, 2003. 38. The Order of Supersedeas of April 22, 2003, is unambiguous in that supersedeas addresses only the first part of the Ignition Interlock Requirements, namely, the installation of the device and that the Department is not required to issue an unrestricted driver's license; however, if there is any ambiguity o. fthe Order of Supersedeas of April 22, 2003, the Department can not be held in contempt. See Carborundum Co. v. Combustion Engineering, Inc. 396 A.2d 1346, (Pa. Super 1979); C.R. by Dunn v. The Travelers, 626 A.2d 588 (Pa. Super. 1993). WHEREFORE, the Department respectfully requests that the Petitioner's Petition for Contempt be denied. Date: May 5, 2003 Respectfully submitted, George H. Kabusk, Esquire Assistant Counsel Office of Chief Counsel Riverfront ()ffice Center-3rd Floor 1101 South Front Street. Harrisburg, PA 17104-2516 (717) 787-2830 DARYL D. STRICK, PETITIONER COMMONWEALTH OF PENNSYLVANIA, · DEPARTMENT OF TRANSPORTATION, · BUREAU OF DRIVER LICENSING, · RESPONDENT · IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL VERIFICATION DATE: May 5, 2003 I verify that the statements made in the Department's Response to Petition for Contempt are tree and correct. I understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Geo'-ge 1~ ~]~abusk - Assistant Counsel Department: of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM ORDER OF COURT AND NOW, this 26t~ day of June, 2003, upon agreement of counsel, the hearing previously scheduled for June 30, 2003, on Appellant's Petition for Contempt, is hereby continued generally. COUNSEL ARE directed to the contact the Court if they desire a hearing in this matter or ifa settlement is reached. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant George Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Offi Harrisburg, PA 17104-2516 Attorney for Appellee :rc 7 BY THE COURT, Center DARYL STRICK, PETITIONER · .. _. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : RESPONDENT · IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049, CIVIL LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION'S RESPONSE TO PETITIONER'S SECOND PETITION FOR GRANT OF SUPERSEDEAS AND NOW comes the Department of Transportation (hereinafter referred to as "Department") by and through its attorney, George H. Kabusk, Assistant Counsel, and hereby responds as follows: By official notice dated October 30, 2001, the Department of Transportation, Bureau of Driver Licensing, notified Daryl Douglas Strick, O.L.N. 22180347, that as a result of his conviction on September 4, 2001, of a violation on March 4, 2001, of Section 3731 of the Vehicle Code, relating to Driving Under the Influence of Alcohol or Drags, his driving privilege was being suspended for a period of one year, suspension effective October 10, 2001. The notice dated October 30, 2001, additionally notified the petitioner that as a result of his conviction of driving under the influence, he was required by law to have all vehicle(s) 10. owned by him equipped with an approved ignition interlock system before his driving privilege can be restored and that if he failed to comply with this requirement, his driving privilege would remain suspended for an additional one year. The Department by a restoration requirements letter dated October 7, 2002, informed the petitioner that the one year suspension as a result of his conviction of Section 3731 of the Vehicle Code, relating to Driving Under the Influence of Alcohol or Drags, began on October 10, 2001, and that credit for serving that suspension began on November 8, 2001, and ended on November 8, 2002. The restoration requirements letter dated October 7, 2002, additionally informed the petitioner that he was eligible to obtain a Ignition Interlock Restricted License on November 8, 2002, provided that he comply with the requirements. The p~titioner filed a petition titled APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE on or about October 17, 2002, in the Court of Common Pleas of Cumberland County. This Honorable Court on October 29, 2002, issued a Rule upon the Department to show cause why the relief requested by the petitioner should not be granted. The Department on November 15, 2002, filed a Response to Rule to Show Cause. The Department in its November 15, 2002, Response to Rule to Show Cause included a Motion to Quash Appeal as Untimely Filed. Additionally, the Depamnent responded to the petitioner's arguments regarding Equal Protection and Due Process. This Honorable Court on November 21, 2002, issued an Order for oral argument on the Department's Motion to Quash. A hearing in this matter was held on December 11, 2002. 11. This Honorable Court on December 12, 2002, issued an Order granting the Department's Motion to Quash as untimely filed. 12. The petitioner on December 23, 2002, obtained an Ignition Interlock Restricted License. 13. The petitioner on December 27, 2002, filed a Petition for Reconsideration. 14. The petitioner's Petition for Reconsideration was not granted. 15. The petitioner on January 15, 2003, filed a Notice of Appeai. 16. The petitioner on January 16, 2003, filed an Amended Notice of Appeal. 17. The Commonwealth Court docket number is 143 CD 2003. 18. The petitioner on or about March 12, 2003, filed with the Court of Common Pleas a Petition for Grant of Supersedeas. 19. This Honorable Court on March 25, 2003, issued an order to show cause why the relief requested by the petitioner in his Petition for Grant of Supersedeas should not be granted. 20. This Honorable Court on April 22, 2003, issued an Order granting a supersedeas which stated: 21. 22. 23. AND NOW, this 22nd day of April, 2003, upon consideration of Appellant's motion to make rule absolute, the motion is granted, the role issued on March 25, 2003 is made absolute, and a supersedeas is granted pending the disposition of Appellant's appeal to the Commonwealth Court from the quashal ordered by this court to the extent that the effect of the quashal was to leave in force a requirement that Appellant install ignition interlock systems on ail of his vehicles as a prerequisite to restoration of his driver's license. The petitioner then filed a Petition for Contempt and a hearing was scheduled for June 30, 2003. The heating on June 30, 2003, for the Petition for Contempt was continued generally. The Petitioner filed a Second Petition for Grant of Supersedeas on June 26, 2003. 24. The Department neither concurs or objects to the Petitioner's request for Supersedeas pending the Commonwealth Court Appeal. WHEREFORE, the Department of Transportation respectfully files the above response to the Petitioner's request. Dated: July 2, 2003 Respectfully submitted, Assistant Counsel Department Of Transportation Riverfront Office C, enter 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DARYL D. STRICK, : PETITIONER : V. : COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : RESPONDENT : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL VERIFICATION I verify that the statements made in the Department's Response to Petitioner's Second Petition for Grant of Supersedeas are true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unswom falsification to authorities. Assistant Counsel Department of Transportation Riverfi'ont Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: July 2, 2003 DARYL D. STRICK, PETITIONER COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : RESPONDENT : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Department's Response to Petitioner's Second Petition for Grant of Supersedeas upon the person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania Rules of Civil Procedure: By first class mail: Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17103 George H.~abusk Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: July 2, 2003 DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL PETITION TO MAKE RULE ABSOLUTE AND NOW, comes Daryl Strick by and through his privately retained counsel, Karl E. Rominger, Esquire and asks that this Court grant a Second Petition for a Grant of Supersedeas and avers as follows: 1. On July 2, 2003, this Court entered a Rule returnable within twenty (20) days of service. 2. The Commonwealth has filed an Answer and has stated that they have no position as to Appellant's request for a grant ofsupersedeas. 3. Appellant now asks that this Honorable Court grant ~a Order in the form attached. WHEREFORE, Appellant respectfully this Honorable Court grant an Order in the form attached directing the Department of Transportation to restore l~[is driver's license pending the outcome of his appeal. Respectful][y submitted, ROMINGER & BAYLEY Date: July 7, 2003 Karl E. Rominger, Esquire 155 South :Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Appellant DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Appellant, do hereby certify that I this day served a copy of the Petition to Make Rule Absolute upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire Department of Transportation Chief Counsel's Office, Third Floor Riverfront Office Center Harrisburg, PA 17104-2516 Dated: July 7, 2003 Karl E. Rominger, Esquire Attorney for Appellant DARYL STRICK, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM ORDER OF COURT AND NOW, this 2nd day of July, 2003, upon consideration of Appellant's Second Petition for Grant of Supersedeas, a Rule is hereby issued upon Appellee to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant George Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Attorney for Appellee BY THE COURT, ( ..7 /Wesley Oler,t-lr~ J. irc DARYL STRICK, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Mo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM ORDER OF COURT AND NOW, this 14th day of July, 2003, upon consideration of Appellant's Petition To Make Rule Absolute, and it appearing that the relief'requested would be duplicative of the relief requested in an earlier request for a supersedeas, upon which this court has already ruled favorable to Appellant, the Petition is denied. BY THE COURT, J.~esley O l~o~r., /--"4. Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant George Kabusk, Esq. Pennsylvania Department ~ of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center 1101 S. Front Street Harrisburg, PA 17104-2516 Attorney for Appellee :rc DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02-5049 LICENSE SUSPENSION APPEAL PETITION TO PLACE CONTEMPT HEARING BACK ON COURT CALENDAI~ AND NOW, comes Daryl Strick by and through his privately retained counsel, Karl E. Rominger, Esquire and in support of his Petition to Place Contempt Hearing Back On Court Calendar avers as follows: 1. There was a Petition for Grant of Supersedeas filed in the above captioned matter on March 12, 2003. 2. The Honorable J. Wesley Oler, Jr. entered an Order granting a supersedeas on the Petition flied on March 25, 2003. 3. The Commonwealth did not comply with the Order granting supersedeas in that they would not issue Petitioner a Pennsylvania driver's license without the ignition interlock requirements. 4. There was a Motion for Contempt filed against the Commonwealth and a hearing was scheduled for June 30, 2003. 5. Upon agreement of counsel, the aforementioned hearing was continued generally by an Order of Court dated June 26, 2003. 6. There was a Second Petition for Grant of Supersedes filed on June 26, 2003, asking the Court to direct the Pennsylvania Department of Transportation to issue a regular Pennsylvania driver's license to Petitioner. 7. The Commonwealth responded to the Second Petition for Grant of Supersedeas on July 2, 2003 whereby they indicated they were neither opposed to nor concurred with the request for supersedeas pending an appeal by Petitioner to the Commonwealth Court of Pennsylvania. 8. On July 7, 2003, your Petitioner filed a Petition to Make Rule Absolute with an Order directing the Pennsylvania Department of Transportation issue a regular driver's license to Petitioner without the ignition interlock requirements. 9. On July 14, 2003, the Honorable J. Wesly Oler, Jr., entered an Order of Court denying the Petition as he had previously granted a supersedeas and Judge Oler indicated that he felt it would be duplicative of him to grant another supersedeas. 10. Your Petitioner is still unable to obtain a Pennsylvania driver's license without the ignition interlock requirements. WHEREFORE, your Petitioner respectfully requests that this Honorable Court place his previously filed Motion for Contempt back on the Court calendar and set a date and time for the hearing. Date: 7/22/03 Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Petitioner DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURI OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 02-5049 : : LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attomey for Appellant, do hereby certify that I this day served a copy of the Motion to Place Contempt Hearing Back on Court Calendar upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: George Kabusk, Esquire Department of Transportation Chief Counsel's Office, Third Floor Riverfront Office Center Harrisburg, PA 17104-2516 Dated: 7/22/03 Karl/LC. Rominger, Esquire Att0mey for Appellant DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLV iN0. 02-5049 ,JUI~ 4 2003 : LICENSE SUSPENSION APPEAL ORDER OF COURT , 00 , ncons d r t ono h attached Motion to Place Contempt Hearing Back on Court Calendar a hearing is now scheduled for the ~'b~ day of ~~..t~t ~ 2003, in Courtroom #1 of the Cumberland County at~?,¥.fi' o'clock ~. m. in Carlisle, Pennsylvania. Courthouse Y ~], '" ~.~ --- -j~ Distribution: ~arl E. Rominger, Esquire oGeorge Kabusk, Esquire Chief Counsel Pennsylvania Department of Transportation 07-18-cc3 DARYL STRICK, Appellant COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5049 CIVIL TERM ORDER OF COURT AND NOW, this 12th day of August, 2003, upon relation of Michael Whare, Esq., attorney for Appellant, that the Petition To Place Contempt Hearing back on Court Calendar should be deemed withdrawn, the petition is deemed withdrawn and the hearing previously scheduled for September 29, 2003, is cancelled. BY THE COURT, ~lichael Whare, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Appellant ~eorge Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center 1101 S. Front Street Harrisburg, PA 17104-2516 Attorney for Appellee ~(Vesley Oler, ~;~ J. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daryl Strick V. No. 143 C.D. 2003 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant Argued: March 31, 2004 BEFORE: HONORABLE JAMES GARDNER COLiNS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN,PELLEGRINI, Judge HONORABLE RENEE L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION BY JUDGE SIMPSON FILED: May 17, 2004 Daryl Strick appeals from an order of the Court of Common Pleas of Cumberland County that quashed his untimely appeal from the Department of Transportation, Bureau of Driver Licensing's (PennDOT) requirement that he install ignition interlock devices on all his vehicleS before restoration of his operating privilege. PennDOT required installation of the interlock devices pursuant to what is commonly referred to as the Ignition Interlock Device Act (Act), 42 Pa. C.S. §§7001-03. Because we agree Stn~k s appeal was ufftimely, we affirm. : Strick was accepted into an Accelerated Rehabilitative Disposition (ARD) program with respect to an April 1995 arrest for ~riving under the influence (DUI). In May 1999, Strick was convicted of a second DUI offense. In September 2001, Strick pled guilty to his third DUI offense. The court did not sentence Strick to install ignition interlock devices under Section 7002(b) of the Act.~ In October 2001, PennDOT sent Strick an Official Notice of Suspension, stating his operating privilege was suspended for one year and, as a condition of restoration of his operating privilege, he would be required to install interlock devices on all his vehicles. Supplemental Reproduced Record (S.R.R.) at 2b-4b. Strick did not appeal from this notice within the required 30-day period. A year later, Strick appealed from PennDOT's requirement that he install ignition interlock devices on all his vehicles. Reproduced Record (R.R.) at 59-61. Strick's appeal referenced a Restoration Requirements Letter from PennDOT received October 7, 2002, which required interlock installation as a condition of license restoration. Strick argued the Act was unconstitutional and sought full restoration of his operating privilege without restrictions. untimely. Upon motion by PennDOT, the trial court quashed Strick's appeal as 1 At the time of sentencing, Section 7002(b) of the Act prowded., for a second or subsequent offense of DUI, the trial court "shall" order installation of ignition interlock devices on all vehicles owned by the defendant. 42 Pa. C.S. §7002(b). That provision was later deemed unconstitutional by our Supreme Court in Commonwealth v. Mockaitis, Pa. , 834 A.2d 488 (2003). 2 Strick appealed to this Court,2 seeking reversal based on our decision in Watterson v. Dep't of Transp., Bureau of Driver L:icensinp.~ 816 A.2d 1225 (Pa. Cmwlth. 2003). In response, PennDOT argued: l) It did not apply the Act retroactively to Strick, because his third DUI conviction occurred after the effective date of the Act; 2) this Court's decision in Alexander v. Dep't of Transp., Bureau of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003), addressing improper retroactive application of the Act, was incorrectly decided and should be reversed; and, 3) the trial court was correct in finding Strick's.appeal untimely. ~ As to the first two issues, the thai court did not address whether PennDOT's imposition of the ignition interlock requirement ~vas impermissibly retroactive. Because neither party raised retroactivity before the trial court, it is not at issue before this Court. Goppelt v. City of Phila. Revenue Dep't. 841 A.2d 599 (Pa. Cmwlth. 2004); Pa. R.A.P. 302(a). Therefore, we decline to address Alexander. With respect to the timeliness of Strick's appeal, it is well settled that a licensee is required to file his appeal within 30 days of the notice of suspension. 2 This Court's review is limited to determining whether the trial court's findings of fact were supported by competent evidence, whether legal errors were committed, or whether the trial court committed an abuse of discretion. Schneider v. Dep't of Transp., Bu[eau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002). ~ Also, PennDOT initially asserted independent authority to order installation of interlock devices even in the absence of a sentencing court order. We need not reach the independent authority issue because the timeliness issue is dispositive, and PennDOT abandoned this argument. 3 See, e.g., Hess v. Dep't of Transp., Bureau of Driver Licensing, 821 A.2d 663,665 (Pa. Cmwlth. 2003); Dep't of Transp., Bureau of Driver Licensing v. Stollsteimer, 626 A.2d 1255, 1256 n.3 (Pa. Cmwlth. 1993). That did not happen here. In Watterson, we permitted a "now for then" appeal based on the rationale that PermDOT's interlock requirement was void without court sanction. 816 A.2d at 1227. However, the Watterson rationale for permitting an untimely appeal is no longer valid. More specifically, in Commonwealth v. Mockaitis, __ Pa. __., 834 A.2d 488 (2003), our Supreme Court held that PennDOT enjoys statutory authority to restrict license restoration of repeat DUI offenders that does not depend on a sentencing court order. We recently held that an untimely appeal was not warranted under circumstances materially identical to those here. In Freedman v. Dep't of Transp., Bureau of Driver Licensing, 842 A.2d 494 (Pa. Cmwlth. 2004), we vacated a trial court order granting an untimely appeal in an interlock case, and we remanded with instructions to quash the appeal. Strick does not articulate any other circumstances warranting allowance of a "now for then" appeal. Thus, Freedman controls here. In summary, the trial court did not err in quashing Strick's appeal as untimely, and we affirm. See Dwyer v. Dep't of Transp., Bureau of Driver ,, Licensing, A.2d__ (Pa. Cmwlth., 492 C.D. 2003, filed May 17, 2004). ROBERT SII President Judge Colins concurs in the result only. ~ON, Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daryl Strick v. No. 143 C.D. 2003 Commonwealth of. Pennsylvania, Department of' Transportation, Bureau of' Driver Licensing, Appellant ORDER AND NOW, this 17th day of May, 2004, the order of' the Court of Common Pleas of Cumberland County is affirmed. ROBERT SI/V ON, Judge Cetlffied from the Record ~/AY 1 7 2004 and Order Exit IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daryl Strick, Appellant Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing No. 143 C.D. 2003 Argued: March 31, 2004 BEFORE: HONORABLE JAMES GARDNER COLLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN,PELLEGR1NI, Judge HONORABLE RENEE L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: ~lay 17, 2004 I dissent from the majority's decision to al?firm the order of the Court of Common Pleas of Cumberland County, which quashed Daryl Strick's appeal, as untimely filed, from a requirement imposed by the Department of Transportation (DOT) that Strick install ignition interlock devices on all of his vehicles before restoration of his operating privileges. The majority relies upon Freedman v. Department of Transportation, Bureau of Driver Licensing, 842 A.2d 494 (Pa. Cmwlth. 2004), which dismissed as untimely filed the driver's appeal from DOT's · refusal to restore operating privileges until after the driver had ~nstalled the ignition ? interlock device on all of the vehicles that he owned· In Freedman the Court determined that the driver's appeal was untimely flied based on its interpretation of the rationale articulated by the Pennsylvania Supreme: .Court for its decision in Commonwealth v. Mockaitis, 575 Pa. 5,834 A.2d 488 (2;003). As noted in the Freedman dissent, the Court should have followed its own precedents established in PVatterson v. Department of Transportation, Bureau of Driver Licensing, 816 A.2d 1225 (Pa. Cmwlth. 2003), and in Schneider v. Department of Transl~ortation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), algl~eal discontinued (No. 20 MAP 2004, filed March 31, 2004), and upheld the driver's right to appeal nunc 19to tunc from DOT's action. Both FYatterson and Schneider held that DOT had no independent authority to impose ignition interlock requirements upon drivers convicted of DUI, and FYatterson expressly stated that such action was void ab initio. Because DOT's action was void ab initio, this Court held that the trial courts were correct in granting the drivers' appeals nunc pro tunc and in sustaining the appeals. The majority has concluded, however, that untimely appeals in the ignition interlock cases are no longer viable now that the Supreme Court has decided Mockaitis even though the court never addressed the issue of nunc pro tunc appeals in such cases nor expressly overruled V~atterson and the cases that followed it. Just as important, the majority has declined to take the opportunity to rule on whether DOT's action, likewise, was void ab initio when it imposed the ignition interlock requirement on Strick who had only one DUI conviction after the effective date of the act known as the Ignition Interlock Act (Act), 42 Pa. C.S. §§7001 - 7003. The majority also declined to take the opportunity to heed DOT's request to overrule Alexander v. Department of Transl~ortation, Bure, a~ of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003), at¥~eal grante~t, Pa.__., A.2d (No. 51 MAP 2004, filed April 7, 2004). The Court in Alexander conditioned the application of the Act on repeat DUI convictions after the September 30, 2000 effective date of the Act. DAS-R - 2 Inasmuch as DOT raised the applicability of Alexander, the Court should have decided the issue on the merits and concluded that DOT's action was void ab initio because Strick had only one DUI conviction after the effective date of the Act and that the trial court thus erred in quashing Strick's appeal as untimely filed. Because of its error, I would reverse the order of the trial court. DAS-R - 3