HomeMy WebLinkAbout02-5150JOHN ARTHUR FINNEGAN, JR.,
Petitioner
Vo
COMMONWEALTH OF PA
DEPARTMENT OF TRANSPORTATION,:
Respondem :
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: DRIVERS LICENSE APPEAL
MOTION FOR HEARING
AND NOW, this ~ ~,/¢4L day of October 2002, the Petitioner, John Arhtur Finnegan,
Jr., by and through his attorney, Austin F. Grogan, Esq., avers the following:
1. The Petitioner was served with a Notice of License Suspension dated October 18,
2002 (copy of notice attached);
2. The Petitioner disputes the requirement to honor the Notice of Suspension;
WHEREFORE, the Petitioner respectfully requests this Honorable Court to schedule a
De Novo Hearing and sustain the Petitioners objection to the official Notice of Suspension.
Respectfully submitted,
Date itO/~4/az-
Austin F. Grogan, E~quire~)
24 North 32nd Street
Camp Hill, PA 17011
(717) 737-1956
Attorney for Petitioner
I.D. #59020
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: OCTOBER 18, 2002
JOHN ARTHUR FINNEGAN JR
420 PAWNEE DRIVE
MECHANICSBURG PA 17055
WID # 022846112341663 001
PROCESSING DATE 10/11/2002
DRIVER LICENSE ~ 16634970
DATE OF BIRTH 02/05/1950
Dear MR. FINNEGAN:
LICENSE IN BUREAU
This is an Official Notice of the Suspension of your Driving
Privilege as authorized by Section 1552B of the Pennsylvania
Vehicle Code. As a result of your 07/02/2002 conviction of
violating Section 3751 of the Vehicle Code DRIVING UNDER
INFLUENCE on 01/29/2002:
Your driving Privilege is SUSPENDED fop a perlod of 1
YEAR(S) effective 10/01/2002 at 12:01 a.m.
WARNING: If you are convicted of driving while your
license is suspended/revoked the penalties will be a
MINIMUM of 90 days imprisonment AND a 91,000 fine AND
your driving Privilege will be suspended/revoked for
a MINIMUM 1 Year period
Before PennDOT can restore your driving privilege, you must
follo~ the instructions in this letter for CONPLYING WITH
THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING
PROOF OF INSURANCE. You should follow ALL instructions vepy
carefully. Even if You have served all the time on the
suspension/revocation, ~e cannot restore your driving
privilege until all the Pequtrements are satisfied.
0228~1125~1663
PRISON RELEASE REQUIREMENT (ACT151)
The Court of CUMBERLAND CTY, Court Number 803, Court Term
2002 has sentenced you to serve a prison term for this
violation. Pursuant to Section 15ql(a.1) of the Vehicle
Code, you will not receive credit for this
suspension/revocation or any additional
suspension/revocation until you complete your prison term.
The Court must certify your completion to PennDOT. You may
wish to contact your probation officer and/or the Court
after your release to make sure that PennDOT is properly
notified.
pAYING THE RESTORATION FEF
You must pay a restoration fee to PennDOT to be restored
from a suspension/revocation of your driving privilegeo To
pay your restoration fee, complete the following steps=
1. Return the enclosed ApPlication for Restoration. The
amount due is listed on the application.
2. Nrite your driver's license number (listed on the first
page) on the check or money order to ensure proper
credit.
3. Follow the Payment and mailing instructions on the back
of the application.
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 Infiuence. 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.
pROVIDING PROOF OF INSURANCF
Nithin the last 30 days of your suspension/revocation, we
will send you a letter asking that you provide proof of
insurance at that time. This letter will list acceptable
documents and what will be needed if you do not own a vehicle
registered in Pennsylvania.
ZmDontant: Please make sure that PennDOT is notified if you
move from your current address. You may notify PennDOT of
your address change by calling any of the phone numbers
listed at the end of this letter.
0228~61123~1&63
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, OCTOBER 18, 2002, of this letter Zf you flle an
appeal In the County Cou~t, the CouPt' wtl! glve you a
time-stamped certified copy of the ap e
your appeal to be vali- -- . P al. In order for
~, you must send this time-stamped
certified copy of the appeal by certified mail to:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Off/ce Center
Harrisburg, PA 17104-2516
Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZONo
Sincerely,
Rebecca L. Bickley, D/rector
Bureau of Driver Licensing
XNFORNATION 7=00 a.m. to 9:00 p.m.
IN STATE 1'800-952-4600 TDD IN STATE
OUT-OF-STATE 717-$91-6190 TDD OUT-OF-STATE
WEB SITE ADDRESS www.dot.state.pa.us
1-800-228-0676
717-591-6191
JOHN ARTHUR
FINNEGAN, JR.,
Petitioner
V.
COMMONWEALTH OF :
PENNSYLVANIA, :
DEPARTMENT OF :
TRANSPORTATION, :
Respondent :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, pENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-5150 CIVIL TERM
ORDER OF COURT
AND NOW, this 30th day of October, 2002, upon consideration of Petitioner's
Motion for Hearing, a hearing is scheduled for Thursday, February 20, 2003, at 10:45
a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
PETITIONER IS DIRECTED to file a supplement to the petition within 20 days
of the date of this order specifying in what respect the suspension is illegal. BY THE COURT,
Austin F. Grogan, Esq.
24 N. 32nd Street
Camp Hill, PA 17011
Attorney for Petitioner
George Kabusk, Esq.
Pennsylvania Department
of Transportation
Office of Chief Counsel
Riverfront Office Center - 3rd Floor
1101South Front Street
Harrisburg, PA 17104-2516
Attorney for Respondent
J.ffvesley Oler, J~/, J.
:rc
JOHN ARTHUR FINNEGAN, JR.,
Petitioner
Vo
COMMONWEALTH OF PA
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02-5150 CIVIL
:
: CIVIL ACTION - LAW
DEPARTMENT OF TRANSPORTATION,:
Respondent :
SUPPLEMENTAL MOTION
AND NOW, this '2-~'n4~ day of November 2002, the Petitioner, John Arthur
Finnegan, Jr., by and through his attorney, Austin F. Grogan, Esq., avers the following:
1. The Notice received by the Petitioner required the Petitioner to install a
guardian interlock on his vehicle following the year suspension of his driving privileges
due to the DUI;
2. The Honorable Kevin A. Hess did not require that, nor did the Sentencing
Order impose such a requirement upon the Petitioner to regain his drivers license;
3. Furthermore, the Commonwealth Court, in recent holdings, has held that
it is inappropriate for the Department of Transportation to direct the Defendant to install a
guarding interlock on his vehicle.
WHEREFORE, the Petitioner files a Supplemental Motion indicating that the
requirement to install a guardian interlock system on his vehicle without a Court Order is illegal.
Date
Respectfully submitted,
Austin F. Grogan,fiEsqu~r~
24 North32nd SCeet /]
Camp Hill, PA 17011 ~/
(717) 737-1956
Attorney for Petitioner
I.D. #59020
AFFIDAVIT OF SERVICE
I, Austin F. Grogan, Esquire, hereby certify that on November 27, 2002, I served a copy
of the Petitioner's Supplemental Motion by first class mail, postage prepaid addressed as follows:
George Kabusk
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor - Riverfront Office Center
Harrisburg, PA 17104-2516
Date
A ' . ogan,,4esqufl'e
24 North 32nd Street
Camp Hill, PA 17011
(717) 737-1956
Attorney for Petitioner
ID//59020
JOHN ARTHUR
FINNEGAN, JR.,
Petitioner
Vo
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-5150 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL FROM IMPOSITION OF IGNITION
INI'ERLOCK SYSTEM REQUIREMENT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 25th day of February, 2003, UPon consideration of Petitioner's
license suspension appeal from imposition of an ignition interlock system requirement,
following a hearing, and for the reasons stated in the accompanying opinion, the appeal is
sustained to the extent that the portion of the Department of Transportation's October 18,
2002, notice requiring Petitioner to equip his vehicles with ignition interlock systems, as
a prerequisite to scheduled restoration of his driving privilege, is rescinded.
Austin F. Grogan, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorney for Petitioner
BY THE COURT,
esley Ol~r~., J.- ,
George Kabusk, Esq.
Pennsylvania Department of Transportation
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Appellee
JOHN ARTHUR
FINNEGAN, JR.,
Petitioner
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU:
OF DRIVER LICENSING, :
Respondent :
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-5150 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL FROM IMPOSITION OF IGNITION
INTERLOCK SYSTEM REQUIREMENT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., February 25, 2002.
In this appeal of an action taken by Respondent, Commonwealth of Pennsylvania,
Department of Transportation, Bureau of Driver Licensing (hereinai~er Department of
Transportation or Respondent), Petitioner requests that this court rescind that part of a
license suspension appeal notice that required, as a prerequisite to scheduled restoration
of Petitioner's driving privilege, that Petitioner equip each of the vehicles owned by him
with an ignition interlock system.
For the reasons stated in this opinion, Petitioner's appeal will be sustained.
DISCUSSION
The facts in the present case are not in dispute. In an underlying criminal case,
Petitioner, having pled guilty on July 2, 2002, to driving under the influence,~ was
sentenced to pay the costs of prosecution and a fine, and to undergo a term of
~ Commonwealth's Ex. 1, Hr'g. Feb. 20, 2003; see Pet's. Ex] 1, Hr'g., Feb. 20, 2003 (Order of
Ct. Oct. 1, 2002, Commonwealth v. Finnegan, No. 02-0803 Criminal Term (Pa. Ct. Com. Pl.
Cumberland Oct. 1, 2002 (Hess, J.)).
imprisonment of two days to twenty-three months in the county prison.2 The sentencing
court did not include a requirement that Petitioner install ignition interlock systems in his
vehicles.3
Subsequent to this sentencing order, the Department of Transportation sent
Petitioner a restoration requirements notice dated October 18, 2002, that detailed
prerequisites to restoration of his driving privilege. The Department of Transportation
required, as a prerequisite to scheduled restoration, that Petitioner install an approved
ignition interlock system in each vehicle that he owned.4 The notice stated, in relevant
part, as follows:
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.5
On October 24, 2002, Petitioner filed a license suspension appeal from imposition
of the ignition interlock system requirement.6 A hearing was held on Petitioner's appeal
on February 20, 2003.
In Schneider v. Pennsylvania Department of Transportation, 790 A.2d 363 (Pa.
Commw. Ct. 2002), the Commonwealth Court stated:
Although [the petitioner] had two DUI offenses and pursuant to
Section 7002(b), the trial court was required to order installation of an
2 Pet'r. Ex. 1, Hr'g. Feb. 20, 2003, (Order of Ct., Oct. 1, 2002, Commonwealth v. Finnegan, No.
02-0803 Criminal Term (Pa. Ct. Com. Pl. Cumberland Oct. 1, 2002 (Hess, J.)).
3 Id. In Commonwealth v. Mockaitis, 50 Cumberland L.J. 184 (2001), a challenge to the
constitutionality of the statutory ignition interlock system requirement was upheld by the
Honorable Edgar B. Bayley of this court.
4 Commonwealth's Ex. 1, Hr'g. Feb. 20, 2003 (notice from Department of Transportation to
Appellant, dated Oct. 18, 2002).
5 Id. (notice from Department of Transportation to Appellant, dated Oct. 18, 2002).
6 Petitioner's appeal from imposition of ignition interlock system requirement, filed Oct. 24,
2002, titled Motion for Heating and supplemented by Supplemental Motion, filed Dec. 3, 2002.
2
ignition interlock device, that failure does not mean that PennDOT 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 on an
approved ignition interlock device .... "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 so.
Id. at 366 (footnotes and citations omitted) (emphasis omitted).
Accordingly, the Commonwealth Court affirmed the trial court's order rescinding
the ignition interlock system pro0vision in the suspension notice issued to the petitioner
by the Department of Transportation. Id.
On this issue, Schneider is indistinguishable fi.om the present case and,
accordingly, the same result must obtain herein. Petitioner's appeal will be sustained,
without prejudice to Respondent's right to pursue a challenge to this holding, as
prescribed by Schneider, on appeal.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 25th day of February, 2003, upon consideration of Petitioner's
license suspension appeal fi.om imposition of an ignition interlock system requirement,
following a hearing, and for the reasons stated in the accompanying opinion, the appeal is
sustained to the extent that the portion of the Department of Transportation's October 18,
2002, notice requiring Petitioner to equip his vehicles with ignition interlock systems, as
a prerequisite to scheduled restoration of his driving privilege, is rescinded.
BY THE COURT,
Austin F. Grogan, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorney for Petitioner
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
3
George Kabusk, Esq.
Pennsylvania Department of Transportation
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Respondent
4
JOHN ARTHUR FINNEGAN, JR.:
Appe 11 ant :
:
V. :
:
COMMOI~EALTH OF :
PENNSYLVANIA, DEPARTMENT :
OF TRANSPORTATION, :
Appellee :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-5150 CIVIL TERM
ORDER OF COURT
AND NOW, this 20th day of February, 2003,
upon consideration of Appellant's appeal from the official
notice of suspension dated October 18, 2002, in the
above-captioned case, and following a hearing held on this
date, it is ordered and directed as follows:
1. Pursuant to an agreement of counsel, the
aforesaid official notice of suspension is affirmed, to the
extent that it imposes a suspension of the Appellant's
driving privilege; and
2. The issue of the propriety of the
Department's imposition of an ignition interlock systems
requirement upon the Appellant as a prerequisite to
restoration of his driving privilege is taken under
advisement.
Austin F. Grogan, Esquire
24 N. 32nd Street
Camp Hill, PA 17011
For the Appellant
By the Court,
%Wesley O19~-~ j~., ~.
kal, NA'l,kq~NN!d
George Kabusk, Esquire
Pennsylvania Department of Transportation
Office of Chief Counsel
Riverfront Office Center - 3rd Floor
1101 South Front Street
Harrisburg, PA 17104-2516
For the Appellee
wcy
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
JOHN ARTHUR FINNEGAN, JR.,
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 02-5150 Civil Term
Notice of Appeal
Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that
was filed in this matter on February 20, 2003. This order is from a statutory appeal and cannot be reduced to
judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P.
236. A copy of the docket entries are attached hereto.
EDWARDS
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
JOHN ARTHUR FINNEGAN, JR.,
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, }
BUREAU OF DRIVER LICENSING, :
Appellant }
IN THE COURT OF COMMON PLEAS
O17 CUMBERLAND COUNTY, PA
NO. 02.-5150 Civil Term
Request for Transcript
A notice of appeal having been filed in this matter, the official court reporter is hereby
requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922.
Prepare only the original for inclusion in the record, as the Appellant, Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the
transcript.
TERRANCE M. EDWARDS
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
E[arrisburg, Pennsylvania 17104-2516
(:717) 787-2830
PYS510
2b02-05150
Reference No..:
Case Type ..... : APPEAL - LICENSE SUSP
Judgmeh% ...... 00
Judge Assigned: '
Disposed Desc.:
............ Case Comments .............
Cumberland gounty Prothonotary,s Office Civil Case Inquiry
FINNEGAN JOHN ARTHUR JR (rs) PENNSYLAVANIA COMMONWEALTH OF
Filed ........ :
Time ......... :
Execution Date
Jury Trial ....
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
Page 1
10/24/2002
2:37
o/oo/oooo
0/00/0000
General Index Attorney Info
FINNEGAN JOHN ARTHUR JR APPELLANT GROGAZq AUSTIN F
420 PAWNEE DRIVE
MECHANICSBURG PA 17055
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
RIVERFRONT OFFICE CENTER
HARRISBURG PA 17104 2516
APPELLEE
* Date Entries
*
*******~******~**********************************~*~*********~**********~***~*~*
10/24/2002
10/30/2002
12/03/2002
............. FIRST ENTRY .............
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
.....
HEARING IS SCHEDULED FOR 2~20~03 AT ~q:45 AM IN CR 1 CUMBERLAND
COUNTY COURHTOUSE CALISLE PA PA - - %. THE COURT J WELSEY OELR JR
J COPIES MAILED
SUPPLEMENTAL MOTION - BY AUSTIN F GROGAN ESQ FOR PETITIONER
2/25/2003
2/28/2003
OPINION AND ORDER OF COURT - DATED 2/25/03 - IN RE LICENSE
SUSPENSION APPEAL FROM IMPSITION OF IGNITION INTERLOCK SYSTEM
REQUIREMENT - FOLLOWING A HEARING AND FOR THE REASONS STATED IN
ACCOMPANYING OPINION THE APPEAL IS SUSTAINED TO THE EXTENT THAT
THE PORTION OF DEPT OF TRANSPORTATION'S OCTOBER 18 2002 NOTICE
REQUIRING PETITIONER TO EQUIP HIS VEHICLES WITH IGNITION INTERLOCK
~Z~S_~ ~EQUISITE TO SCHEDULD RESORATION OF HIS DRIVING
zv±m~E ±S ~SSCINDED - BY THE COURT J WESLEY OLER JR J COPIES
MAILED
ORDER OF COURT - DATED 2/20/03 - IN RE APPEAL FROM THE OFFICIAL
NOTICE OF SUSPENSION - BY THE COURT J WESLEY OLER JR J COPIES
MAILED 2/28/03
.............. LAST ENTRY ..............
*
Escrow Information .
* Fees & Debits Beg Bal Pymts/Adj End Bal .
**~******~*~**~****************~********~****~*~**~******~*~*~************~****
APPEAL LIC SUSP 35.00 35.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
50.50 50.50 .00
** ~******* ~***** ~****** ~** ~*********************** ~**********************~**** ~.
* End of Case Information
*
TRUF COPY FROM RECORD
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
JOHN ARTHUR FINNEGAN, JR.,
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 02.-5150 Civil Term
Proof of Service
I hereby certify that I have on this day and date duly served a true and correct copy of the
foregoing documents upon the persons and in the manner indica'ted below, which service satisfies the
requirements of Pa. R.A.P. 121:
Judge J. Wesley Oler, Jr.
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
First Class Mail; Postage Pre-Paid;
Addressed as Follows::
Court Reporter
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Austin F. Grogan, Esquire
Att. for Appellee Finnegan
24 N. 32nd Street
Camp Hill, PA 17011
DANA M. BRESSLER
Appellate Paralegal for Vehicle & Traffic ]Law Division
Date: March 14, 2003
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
JOHN ARTHUR FINNEGAN, JR.,
Appellee.
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF coMMoN PLEAS
OF CUMBERLAND COUNTY, PA
NO. 02.-5150 Civil Term
Amended Notice of Apoeal
Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that
was filed in this matter on February 25, 2003. This order is from a statutory appeal and cannot be reduced to
judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P.
236. A copy of the docket entries are attached hereto. ~ ~
~ I
e'TERRANCE M. EDWARDS
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
JOHN ARTHUR FINNEGAN, JR.,
Appellee
VS.
COMMONWEALTH OF pENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 02-5150 Civil Term
Request for Transcript
A notice of appeal having been filed in this matter, the official court reporter is hereby
requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922.
Prepare only the original for inclusion in the record as the Appellant, Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the
transcript. ~
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
PYS510
~0'02-05150
Reference No..:
Case TvDe ..... : APPEAL - LICENSE SUSP
Ju~gmeh~ ..... ~ .00
Judge A~signed:
Disposed Desc.:
............ Case Comments
Prothonotary's Office
Cumberland County
Civil Case Inquiry
FINNEGAN JOHN ARTHUR JR (rs) PENNSYLAV~IA COMMONWEALTH OF
Filed ........ :
Time ......... :
Execution Date
Jury Trial ....
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
Page 1
10/24/2002
2:37
0/0o/00o0
0/00/0000
General Index Attorney Info
FINNEGAN JOHN ARTHUR JR APPELLANT GROGAN AUSTIN F
420 PAWNEE DRIVE
MECHANICSBURG PA 17055
PENNSYLVANIA COMMONWEALTH OF APPELLEE
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
RIVERFRONT OFFICE CENTER
HARRISBURG PA 17104 2516
**************************************************************************~*~**~
* Date Entries
FIRST ENTRY .....
10/24/2002 APPEAL FROM SUSPENSION OF DRIVERS LICENSE
10/30/2002 ORDER OF COURT - DATED 10/~0/Q2 - IN RE PETITION FOR HEARING -
HEARING IS SCHEDULED FOR 2/20/03 AT 10:45 AM IN CR 1 CUMBERLAND
COUNTY COURHTOUSE CALISLE PA PA - - BY THE COURT J WELSEY OELR JR
J COPIES MAILED
12/03/2002 SUPPLEMENTAL MOTION - BY AUSTIN F GROGAN ESQ FOR PETITIONER
2/25/2003 6~6~-~D ORDER OF COURT - DATEp_2/25/03 - IN RE LICENSE
SUSPENSION APPEAL FROM IMPSITION O~ IGNITION INTERLOCK SYSTEM
UIREMENT - FOLLOWING A HEARING AND FOR THE REASON~_~E~..~
~OMPANYING OPINION THE APPEAL IS SUSTAINED TO THE EXTENT T~l~I
THE PORTION OF DEPT OF TRANSPORTATION'S OCTOBER 18 2002 NOTICE
REQUIRING PETITIONER TO EQUIP HIS VEHICLES WITH IGNITION INTERLOCK
SYSTEMS AS A PREREQUISITE TO SCHEDULD RESORATION OF HIS DRIVING
PRIVILEGE IS RESCINDED - BY THE COURT J WESLEY OLER JR J COPIES
MAILED ........................
2/28/2oo3 FROM THE OFFICIAL
NOTICE OF SUSPENSION - BY THE COURT J WESLEY OLER JR J COPIES
MAILED 2/28/03
.... LAST ENTRY .....
*
. Escrow Information .
* Fees & Debits Beg Bal Pymts/Adj End Bal
APPEAL LIC SUSP 35.00 35.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
*
* End of Case Information
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
JOHN ARTHUR FINNEGAN, JR.,
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 02-5150 Civil Term
Proof of Service
I hereby certify that I have on this day and date duly served a true and correct copy of the
foregoing documents upon the persons and in the manner indicated below, which service satisfies the
requirements of Pa. R.A.P. 121'
First Class Mail; Postage Pre-Paid;
Addressed as Follows:
Judge J. Wesley Oler, Jr.
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Court Reporter
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Austin F. Grogan, Esquire
Att. for Appellee Finnegan
24 N. 32nd Street
Camp Hill, PA 17011
DANA M. BRESSLER
Appellate Paralegal for Vehicle & Traffic Law Division
Date: March 18, 2003
JOHN ARTHUR FINNEGAN, JR.:
Appe 11 ant :
:
V. :
:
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT :
OF TRANSPORTATION, :
Appellee :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-5150 CIVIL TERM
IN RE:
LICENSE SUSPENSION APPEAL FROM IMPOSITION OF
IGNITION INTERLOCK SYSTEM REQUIREMENT
Proceedings held before the Honorable
J. WESLEY OLER, JR., Judge,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on February 20, 2003, commencing at 10:45 a.m.
in Courtroom No. 1.
APPEARANCES:
Austin F. Grogan, Esquire
For the Appellant
George Kabusk, Esquire
Pennsylvania Department of Transportation
Office of Chief Counsel
For the Appellee
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February 20, 2003
Courtroom No. 1
10:45 a.m.
(Whereupon, Commonwealth's Exhibit 1 was
marked for identification.)
THE COURT: This is the time and place for a
hearing on Appellant's appeal from official notice of
suspension by the Pennsylvania Department of
Transportation. We will let the record indicate that the
Appellant's counsel, Austin F. Grogan, Esquire, is present
in court, as is the representative for the Appellee,
Commonwealth of Pennsylvania, Department of Transportation,
George Kabusk, Esquire.
Mr. Grogan, first, I would note that you
have supplemented your appeal notice with more specific
ground for the appeal.
MR. GROGAN:
THE COURT:
appear?
MR. GROGAN:
Right.
Do you expect your client to
I expect him to appear, Your
Honor. I haven't spoken to him this week.
message for him to be here at 10:30.
THE COURT:
minutes for him to appear?
MR. GROGAN:
I did leave a
Do you want me to wait a few
Well, Your' Honor, his
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testimony-- he was not going to testify per se. We were
just going to submit, as indicated, the amended
supplemental motion. The issue before the Court is the
guardian interlock requirement, and I believe that the
Commonwealth would submit evidence to show that the
guardian interlock was not required at the time of
sentencing, and so I don't think the Appellant needs to
testify to this, if the Commonwealth agrees to that.
THE COURT: All right.
MR. GROGAN: I'm sorry, the Department of
Transportation.
THE COURT: And are you then waiving your
client's presence at the hearing?
MR. GROGAN:
THE COURT: Ail right.
the sentencing Order of Court?
Yes, I am, Your Honor.
Do we have a copy of
MR. GROGAN: I was his attorney at the
criminal charge, Your Honor, and Judge Hess normally does
send them out. So if I could have a moment--
THE COURT: If you do not, we could take a
brief recess and obtain that from the Clerk of Courts so we
have that as an exhibit also.
MR. GROGAN: I could make that request. I
can go down right now and get it, Judge. I have a
pre-sentence report, but I do not have the sentencing order
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from Judge Hess.
THE COURT: That will give us a few more
minutes to allow your client to appear, if he might be
delayed by the weather.
MR. GROGAN:
recess.
THE COURT:
Thank you, Your Honor.
Ail right. We'll take a brief
(Whereupon, a recess was taken at 10:48 a.m.
and proceedings reconvened at 10:59 a.m.)
(Whereupon, Appellant's Exhibit 1 was
marked for identification.)
THE COURT: We will let the record indicate
that the Court has reconvened in the case of Finnegan v.
Commonwealth of Pennsylvania, Department of Transportation
Mr. Grogan, I see that your client still has not appeared.
Do you wish to proceed without him?
MR. GROGAN:
THE COURT:
MR. GROGAN:
Yes, Your Honor.
All right.
Appellant's No. 1 is the
sentencing order from Judge Hess date October 1st, 2002.
And without going through all the details, it does not
impose the requirement of the guardian interlock installed
in the car.
THE COURT: All right. And this was a case
in which it would be otherwise applicable? In other words,
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it's a second or subsequent offense?
MR. GROGAN: It was a second or subsequent
offense DUI, yes, Your Honor.
THE COURT: All right. Mr. Kabusk, do you
have any objection to the admission of Appellant's Exhibit
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1 is admitted.
MR. KABUSK:
THE COURT:
No, Your Honor.
All right. Appellant's Exhibit
(Whereupon, Appellant's Exhibit 1 was
admitted into evidence.)
THE COURT: Mr. Kabusk.
MR. KABUSK: If I may proceed, Your Honor,
what's been marked as Department's Exhibit No. 1 is a
packet of documents under seal and certification consisting
of three subexhibits. Subexhibit No. i is official notice
of suspension dated and mailed 10/18/2002, in which the--
that notice informs the Petitioner that, as a result of his
7/2/2002 conviction of violating Section 3731 of the
Vehicle Code, Driving under the Influence, on 1/29/2002,
his driving privilege was being suspended for a period of
one year, effective 10/1/2002. Additionally, that notice
of suspension included the requirement for the ignition
interlock.
Subexhibit 2 is report of the Clerk of
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Courts of Cumberland County, convicted 7/2/02, seal
attached to the original. I would direct the Court's
attention to box G, titled Act 63 Ignition Interlock
Required, and box no has been checked.
Subexhibit 3 is driving record which appears
in the file of the Defendant, operator's number 16634970,
date of birth, 2/5/50.
I move for the admission of what's been
marked Department's Exhibit 1.
THE COURT:
Commonwealth's exhibit?
MR. KABUSK:
Commonwealth's exhibit.
THE COURT:
have any objection?
MR. GROGAN:
THE COURT:
admitted.
Is it Department's exhibit or
Actually, it may be
Ail right. Mr. Grogan, do you
No objection, Your Honor.
Commonwealth's Exhibit 1 is
(Whereupon, Commonwealth's Exhibit 1 was
admitted into evidence.)
THE COURT: Is there any other evidence that
counsel want to present at this time?
MR. GROGAN: Not for the Appellant, Your
Honor.
MR. KABUSK: No other evidence, Your Honor.
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THE COURT: Ail right. And during the
pendency of this appeal so far, has the Department restored
the Defendant's license?
MR. GROGAN: Yeah. That was my fault. I
think it was probably my improperly crafted motion, because
based on my motion, I think the Department gave him back
his license, so I would ask the Court to sustain his
request to prohibit the guardian interlock, but require him
to turn in his license to start his year suspension. And I
think that was just the way I crafted my appeal.
THE COURT: All right. Well, this is
happening in all of these appeals. I think the Department
sends back the license, because it is an appeal from the
notice of suspension. I would propose to affirm the notice
to the extent that it imposes the suspension, and take
under advisement the ignition interlock system's
requirement, so I can write an opinion on that. I'm sure
the matter would be appealed by the Commonwealth.
MR. GROGAN: Oh, okay.
THE COURT: If that's agreeable to counsel,
we will enter this order.
(Whereupon, the following Order of Court was
entered:)
ORDER OF COURT
AND NOW, this 20th day of February, 2003,
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upon consideration of Appellant's appeal from the official
notice of suspension dated October 18, 2002, in the
above-captioned case, and following a hearing held on this
date, it is ordered and directed as follows:
1. Pursuant to an agreement of counsel, the
aforesaid official notice of suspension is affirmed, to the
extent that it imposes a suspension of the Appellant's
driving privilege; and
2. The issue of the propriety of the
Department's imposition of an ignition interlock systems
requirement upon the Appellant as a prerequisite to
restoration of his driving privilege is taken under
advisement.
By the Court,
/s/ J. Wesley Oler, Jr. J.
THE COURT: And I will have an order and
opinion entered within a couple of days on that point.
right. Thank you. Court is adjourned.
(Whereupon, the proceeding concluded at
11:05 a.m.)
Ail
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.
~ndy C./~n~er~ 0 -
Officia~urt ~porter
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and
directed to be filed.
Date J~esley O~1~ Jr.~J& '
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Arthur Finnegan, Jr.
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 621 C.D. 2003
Submitted: August 22, 2003
:
.
BEFORE:
HONORABLE ROC,HELLE S. FRIEDMAN, Judge
HONORABLE RENEE L. COHN, Judge
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE McCLOSKEY
FILED: October 17, 2003
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (DOT), appeals from an order of the Court of Common
Pleas of Cumberland County (trial court), dated February 25, 2003, sustaining the
appeal of John Arthur Finnegan, Jr. (Licensee) to the extent that it challenged
DOT's requirement that he install an ignition interlock system on all vehicles
owned by him as a condition to having his operating privileges restored. We
affirm the order of the trial court.
The underlying facts of this case are not in dispute. Licensee was
originally arrested for driving under the influence (DUI), in violation of Section
3731(a) of the Vehicle Code, 75 Pa. C.S. § 3731. (R.R. at 26a). Licensee was
arrested for DUI a second time on August 9, 1986. (R.R. at 26a). Licensee was
convicted of both of these DUI offenses on November 20, 1986. (R.R. at 26a). As
a result of these convictions, Licensee's operating privilege was suspended for two
consecutive one-year periods. (R.R. at 26a). Licensee's operating privilege was
restored by DOT in May, 1992. (R.R. at 27a).
On January 29, 2002, Licensee was arrested for his third DUI offense.
(R.R. at 24a, 27a). Consistent with his plea of guilty, Licensee was convicted on
July 2, 2002. (R.R. at 18a, 24a, 27a). The criminal division of the trial court
sentenced Licensee to forty-eight hours to twenty-three months of confinement; a
$300.00 fine; an EMS assessment orS10.00; a CAT Fund surcharge of $50.00; and
costs of prosecution. (R.R. at 18a). The trial court did not impose upon Licensee
the ignition interlock requirement found at Section 7002(b) of the Ignition
Interlock Device Act (Act).~ (R.R. at 18a, 24a). Additionally, it does not apPear
from the record that the local district attorney appealed the trial court's failure to
impose such a requirement.
By notice dated October 18, 2002, DOT notified Licensee that, as a
consequence of his conviction on July 2, 2002, his operating privilege was being
suspended for a one-year period pursuant to Section 1532Co)(3) of the Vehicle
Code, 75 Pa. C.S. § 1532(b)(3). (R.R. at 21a-23a). That notice also advised
Licensee that he was required by law to have all vehicles owned by him to be
equipped with an ignition interlock system in order for his operating privilege to be
restored at the end of that-period and, if he failed to comply with this requirement,
his operating privilege would remain suspended for an additional year. (R.R. at
21a-23a). Licensee filed a statutory appeal from that suspension notice with the
trial court.
~ 42 Pa. C.S. § 70020>). This section provides that upon a person's second or subsequent
violation of Section 3731 of the Vehicle Code, the court "shall order the installation of an
approved ignition interlock device on each motor vehicle owned by the person to be effective
upo~n the restoration of operating privileges by [DOT]."
2
A de novo hearing was conducted by the trial court on February 20,
2003. The trial court upheld the imposition of the one-year suspension pursuant to
Section 1532(b)(3) of the Vehicle Code, but relieved Licensee fi:om the
requirement that he equip his vehicles with ignition interlock systems as a
prerequisite to restoration of his driving privilege. (R.R. at 15a-16a, 3la). DOT
filed a notice of appeal fi:om that order.
On appeal to this Court,2 DOT argues that the trial court erred as a
matter of law by striking DOT's imposition of the ignition interlock requirement.
To the contrary, DOT avers that it has an independent mandate under Section 7003
of the Act,3 42 Pa.C.S. § 7003, to enforce the requirements of the Act upon repeat
2 In reviewing a driver's license suspension ease, otrr standard of review is limited to
determining whether the trial court's findings of fact were supported by substantial evidence,
whether errors of law had been committed or whether the trial court's determination
demonstrated a manifest abuse of discretion. Mazza v. Department of Transportation, Bureau of
Driver Licensing, 692 A.2d 251 (Pa. Cmwlth. 1997), petition for allowance of appeal denied,
551 Pa. 172, 709 A.2d 887 (1998). The scope of review is plenary, however, when the matter
involves no disputed facts, and nothing but a question of law is considered. Department of
Transportation, Bureau of Driver's Licensing v. McCaffert¥, 563 Pa. 146, 758 A.2d 1155 (2000).
Section 7003 of the Act provides as follows:
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 [DOT] 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 [DOT] for an ignition interlock restricted hcense under 75 Pa.
C.S. §1951(d)...which will be clearly marked to restrict the person
(Footnote continued on next page...)
3
DUI offenders, even if the trial court fails or refuses to comply with its statutory
duty under Section 7002(b) of the Act. We disagree.4
This issue has been squarely addressed by our decisions in Schneider
v. Deparlxnent of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa.
Cmwlth. 2002), and Watterson v. Department of Transportation, Bureau of Driver
Licensing, 816 A.2d 1225 (Pa. Cmwlth. 2003).5 In Schneider, we specifically
(continued...)
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.
§ 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 ).
42 Pa. C.S. §7003.
4 We acknowledge that Section 7002Co) of the the Ignition Interlock Device Act was
amended by the Act of September 30, 2003, P.L. , (Act 24 of 2003). However, the
amendment applies only to second or subsequent violations of 75 Pa. C.S. § 3731 that occur after
September 30, 2003. Given that Finnegan's violations occurred prior to said date, the
amendement has no effect on the case before us.
5 See als___9.o Turner v. Depar~nent of Transportation, Bureau 0f Driver Licensing, 805 A.2d
671 (Pa. Cmwlth. 2002).
4
rejected an argument by DOT that it has an independ{mt mandate under the Act to
impose ignition interlock requirements upon repeat DUI offenders regardless of
whether the trial court ordered the installation of the same. To the contrary, we
held that DOT lacked any "unilateral authority to impose ignition interlock device
requirements if the trial court fails to do so.''6 Schneider, 790 A.2d at 366.
Moreover, in Watterson we reiterated that DOT "lack,'; the power to act pursuant to
Section 7003 [of the Act] absent a court order pursuant to Section 7002 [of the
Act.]" Watterson, 816 A.2d at 1228.?
DOT also argues that although Licensee's first and second DUI
convictions occurred prior to the effective date of the Act, because Licensee's third
DUI conviction occurred after the Act had become effective, applying it to
Licensee does not violate the general rule against applying a new statute
retroactively. We note that this issue was not raised before the trial court, and the
trial court did not address this issue in its order and opinion. Hence, this matter is
not properly before us. Regardless, we note that this Court in Alexander v.
Department of Transportation, Bureau of Driver Licensing, 822 A.2d 92 (Pa.
Cmwlth. 2003), under facts similar to those at hand, clearly rejected the argument
now set forth by DOT.
6 In Schneider, we cited to the specific language of Section 7002(b) of the Act providing
that only "the court shall order the installation of an approved ignition interlock device" upon a
second or subsequent DUI conviction. 42 Pa. C.S. §7002(b).
7 Additionally, we noted in Schneider that in criminal, proceedings where the trial court
fails to impose this requirement, the local district attorney has the fight to appeal "as it would if
the trial court failed to impose any other mandatory sentence." Schneider, 790 A.2d at 367.
Accordingly, thc order of the trial court is affirmed.*
a In its brief m this Court, DOT essentially concexlcs the! Schneid,r and its progeny are
controlling as to the issue of DOT's ability to impose thc requircmcnts of thc Act on a licensee.
However, DOT makes the argument before this Court solely lbr the purpose of preserving the
issue for further appeal to the Pennsylvania Supreme Court. Additionally, DOT also appears to
concede the! Alexander is controlling with regard to the issue of the retroactive application of the
Act. Pzesumably, DOT is raising this issue on appeal to preserve it in the event that it is
determined that DOT has the abilHy to impose the requirements of the Act when a ~entencing
court fails [o flo so.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Arthur Finnegan, Jr.
Vo
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 621 C.D. 2003
ORDER
AND NOW, this 171;h day of Ocl:ober, 2003, the order of
the Court of Common Pleas of Cumberland County, dated February 25, 2003, is
hereby affirmed.
ce~rmd from the Record
OCT 1 ? Z003
and Order Exit
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Arthur Finnegan, Jr.
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 621 C.D. 2003
Submitted: January 30, 2004
BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION
BY SENIOR JUDGE McCLOSKEY
FILED: March 16, 2004
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (DOT), appeals from an order of the Court of Common
Pleas of Cumberland County (trial court), dated February 25, 2003, sustaining the
appeal of John Arthur Finnegan, Jr. (Licensee) to tlhe extent that it challenged
DOT's requirement that he install an ignition interlock system on all vehicles
owned by him as a condition to having his operating privileges restored.~ We
affirmed the order of the trial court on October 177, 2003, and, thereafter, on
December 4, 2003, we granted DOT's application for reconsideration to address
~ DOT imposed the requirement under the Ignition Interlock Device Act (Interlock Act),
formerly 42 Pa. C.S. §§7001-7003. We note that the original Interlock Act was repealed by
Section 4 of the Act of September 30, 2003, P.L. , No. 2002;-24 (Act 24). Provisions relating
to ignition interlock are now found, as revised by Section 18 of Act 24, at Section 3805 of the
Vehicle Code, 75 Pa. C.S. §3805.
the applicability of our ruling in light of the Permsylvania Supreme Court's
decision in Commonwealth v. Mockaitis, __ Pa. , 834 A.2d 488 (2003). We
affirm.
The underlying facts of this case are not in dispute. Licensee was
originally arrested on February 6, 1986, for driving under the influence (DUI), in
violation of Section 3731(a) of the Vehicle Code, 75 Pa. C.S. § 3731. (R.R. at 26a).
Licensee was arrested for DUI a second time on August 9, 1986. (R.R. at 26a).
Licensee was convicted of both of these DUI offenses on November 20, 1986.
(R.R. at 26a). As a result of these convictions, Licensee's operating privilege was
suspended for two consecutive one-year periods. (R.R. at 26a). Licensee's
operating privilege was restored by DOT in May, 1992. (R.R. at 27a).
On January 29, 2002, Licensee was arrested for his third DUI offense.
(R.R. at 24a, 27a). Consistent with his plea of guilty, Licensee was convicted on
July 2, 2002. (R.R. at 18a, 24a, 27a). The criminal division of the trial court
sentenced Licensee to forty-eight hours to twenty-three months of confinement; a
$300.00 fine; an EMS assessment of $10.00; a CAT Fund surcharge of $50.00; and
costs of prosecution. (R.R. at 18a). The trial court did not impose upon Licensee
the ignition interlock requirement found at Section 7002(b) of the Ignition
Interlock Device Act (Act).2 (R.R. at 18a, 24a). Additionally, it does not appear
from the record that the local district attorney appealed the trial court's failure to
impose such a requirement.
2 42 Pa. C.S. § 7002(b). This section provides that upon a person's second or subsequent
violation of Section 3731 of the Vehicle Code, 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 [DOT].'
2
By notice dated October 18, 2002, DOT notified Licensee that, as a
consequence of his conviction on July 2, 2002, his operating privilege was being
suspended for a one-year period pursuant to Section 1532(b)(3) of the Vehicle
Code, 75 Pa. C.S. § 1532(b)(3). (R.R. at 21a-23a). That notice also advised
Licensee that he was required by law to have all vehicles owned by him to be
equipped with an ignition interlock system in order for his operating privilege to be
restored at the end of that period and, if he failed to comply with this requirement,
his operating privilege would remain suspended for an additional year. (R.R. at
21a-23a). Licensee filed a timely statutory appeal from that suspension notice with
the thai court.
A de novo hearing was conducted by the trial court on February 20,
2003. The trial court upheld the imposition of the one-year suspension pursuant to
Section 1532(b)(3) of the Vehicle Code, but relieved Licensee from the
requirement that he equip his vehicles with ignition interlock systems as a
prerequisite to restoration of his driving privilege. (R.R. at 15a- 16a, 31 a). DOT
filed a notice of appeal from that order and we affirmed.
On reconsideration to this Court,3 DOT now argues that the ruling in
Mockaitis establishes that the requirement of the installation of an ignition
interlock device is a license restoration requirement. Therefore, DOT argues that
3 In reviewing a driver's license suspension case, om: standard of review is limited to
determining whether the thai court's findings of fact were supported by substantial evidence,
whether errors of law had been committed or whether the thai court's determination
demonstrated a manifest abuse of discretion. Mazza v. Departzrnent of Transportation, Bureau of
Driver Licensing, 692 A.2d 251 (Pa. Cmwlth. 1997), petition for allowance of appeal denied,
551 Pa. 172, 709 A.2d 887 (1998). The scope of review is plenary, however, when the matter
involves no disputed facts, and nothing but a question of law is considered. Department of
Transportation, Bureau of Driver's Licensing v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000).
3
its requirement that a licensee install ignition interlock devices as a condition of
restoration of an operating privilege is not merely a continuation of the suspension
imposed by DOT. Accordingly, DOT takes the position that any appeal therefi:om
must be taken through DOT's administrative process because the imposition of a
restoration requirement is not properly a subject for review by a court of common
pleas. Next, DOT argues that it has the independent and primary authority to
enforce the provisions of the Act that have not been held by the Pennsylvania
Supreme Court to be unconstitutional. Therefore, DOT takes the position that it
has the authority to require that a repeat DUI offender comply with the Act as a
condition of license restoration even in the absence of a court order mandating
installation of an ignition interlock device. Finally, DOT contends that the newly
added Section 3805(g) of the Vehicle Code, 75 Pa. C.S. §3805(g), has no impact
on this case.
First, we will address DOT's argument that the trial court lacks
subject matter jurisdiction to consider Licensee's appeal. The thrust of DOT's
argument is that this is an appeal concerning a restoration of privileges, and that,
as such, the trial court lacks jurisdiction. DOT points to Section 933 of the Judicial
Code, 42 Pa. C.S. §933, and Section 1550 of the Vehicle Code, 75 Pa. C.S. §1550,
in support of its position.4
4 Section 933 of the Judicial Code provides, in relevant par~c, as follows:
§933. Appeals from government agencies.
(a) General rule. - Except as otherwise prescribed by any
general rule adopted pursuant to section 503 (relating to
reassignment of matters), each court of common pleas shall have
(Footnote continued on next page...)
4
(continued...)
jurisdiction of appeals from final orders of government agencies in
the following cases:
(1) Appeals from Commonwealth agencies in the following cases:
(ii) Determinations of the Department of Transportation
appealable under the following provision of Title 75 (relating to
vehicles):
Section 1377 (relating to judicial review).
Section 1550 (relating to judicial review).
Section 4724(b) (relating to judicial review).
Section 7303(b) (relating to judicial review).
Section 7503(b) (relating to judicial review) ....
42 Pa. C.S. §933 (emphasis added).
Section 1550 of the Vehicle Code, explains, in relevant
part, as follows:
§1550. Judicial Review
(a) General rule. - Any person who )bas been denied a
driver's license, whose driver's license has been canceled or
whose operating privilege has been recalled, suspended, revoked
or disqualified by the department shall have the right o appeal to
the court vested with jurisdiction of such appeals by or pursuant to
Title 42 (relating to judiciary and judicial procedure). The
appellant shall serve a copy of the appeal, together with a copy of
(Footnote continued on next page...)
5
We note that DOT conveniently ignores the fact that this matter is
before this Court as a result of a notice of suspension that DOT issued. As part of
that notice of suspension, DOT attempted to impose ignition interlock device
requirements that it simply does not have the power to impose, as we will discuss
below. We further emphasize that this is not a case where a licensee's operating
privilege was suspended and the individual later souglht restoration of his operating
privilege only to be denied by DOT on the basis of the individual's failure to install
ignition interlock devices or otherwise? Were such the case, DOT's argument may
be more persuasive. However, we carmot ignore the fact that this matter was
initiated in response to DOT's notice of suspension. Courts of common pleas have
jurisdiction to hear matters relating to the suspension of operating privileges. See
Section 933 of the Judicial Code knd Section 11550 of the Vehicle Code.
Therefore, we conclude that because Licensee's appeal was before the trial court as
a result of DOT's notice of suspension, the trial court had jurisdiction to consider
(continued...)
the notice of the action from which the appeal has been taken,
upon the department's legal office.
75 Pa. C.S. §1550(a)(emphasis added).
5 We decline to opine as to whether the trial court would have subject matter jurisdiction
to hear a denial of a request for restoration based upon the Act under such a situation, as those
facts are not before the Court at this time.
6
the case pursuant to Section 933 of the Judicial Code and Section 1550 of the
Vehicle Code.6
Next, we will address DOT's assertion that our Supreme Court's
ruling in Mockaitis establishes DOT's authority to require repeat DUI offenders to
comply with the Interlock Act, as a condition of license restoration.
Prior to the Pennsylvania Supreme Court's ruling in Mockaitis, this
Court, following its ruling first set forth in Schneider, concluded that DOT did not
have an independent mandate under the Interlock Act to require installation of an
ignition interlock device prior to restoring a licensee's driving privilege. We
specifically noted that the Act provided that only "the court shall order the
installation of an approved ignition interlock device .... "Schneider, 790 A.2d at
366, 42 Pa. C.S. §7002(b). As such, we determined that DOT had no independent
statutory authority to impose installation of an ignition interlock device under the
Interlock Act.
In Mockaitis, the Pennsylvania Supreme Court determined that the
portions of the Interlock Act which required a trial court to order and certify
installation were unconstitutional. However, the Court concluded that "[w]ith
these provisions severed, the legislation still requires recidivist DUI offenders
seeking restoration of driving privileges to apply to [DOT] for an ignition interlock
restricted licensee. 42 Pa. C.S. § 7003(2)." Mockaitis, 834 A.2d at 502.
DOT argues that Mockaitis grants it the authority to order an ignition
interlock device. However,.in Cinquina v. Department of Transportation, Bureau
6 We emphasize that this Court rejected this very argument in Schneider and any
assertions by DOT that Mockaitis somehow "implicitly overruled" Schneider with regard to this
issue are unfounded.
7
of Driver Licensing, __ A.2d __ (Pa. Cmwlth. 2004), (Nos. 1640, 1641 C.D.
2003, filed January 9, 2004, slip op. at 4), this Court discussed the holding in
Mockaitis and noted as follows:
Thus, after Mockaitis, the only portion of the Act under
which [DOT] has authority with respect to second or
subsequent offenses is Section 7003(2), and the only
authority contained within that section is to issue
interlock restricted licenses. Nowhere does the
remaining Act grant [DOT] the independent authority to
require installation of interlock devices. The thai court
was correct in finding [DOT] exceeded its statutory
authority when it purported to require [licensee] to install
ignition interlock devices on all vehicles he owns.
As such, we reject DOT's allegation that it had any authority to order the
installation of an interlock device. 7
Accordingly, the order of the trial court is affirmed.
~~'iVlcCLOS r Judge
7 As we find that DOT is without authority to order the installation of an interlock device,
we need not consider the remaining issue raised in DOT's motion for reconsideration, i.e., that
the newly added Section 3805(g) of the Vehicle Code, 75 Pa.. C.S. §3805(g) has no impact on
this case.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Arthur Finnegan, Jr.
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 621 C.D. 2003
ORDER
AND NOW, this 16th. day of March , 2004, the order of the
Court of Common Pleas of Cumberland County, dated February 25, 2003, is
hereby affirmed.
JOS~tEPH F. IVlcC~Se~i~J~g~