HomeMy WebLinkAbout00-00145
JUSTIN C. FOX,
PlaintifC
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
COMMONWEALTH OF 0
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
Defendant NO. 2000-0145 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this 27th day of March, 2000, after
hearing, the_factual recDrd having been closed, the Petitioner
is granted 20 days within which to file a brief, and the
Commonwealth 20 days thereafter within which to file a response
brief.
By the Court,
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Samuel Andes, Esquire
For the Plaintiff
George Kabusk, Esquire
For the Defendant
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JUSTIN C. FOX,
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
vs.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Defendant
CIVIL ACTION - LAW
NO. ';WOO - /4S dodY~
ORDER
AND NOW this ! .[3--t:/j day of 9'" h1.ud/7 ~ ' 2000, upon consideration
of the attached Petition, a hearing is hereby scheduled on aid Petition to be held on the
c917.1 day of ")17 d/7 /'P ,,2000, commencing at 7'; 3 0 o'clock
&... .m., in Court Room No. Lf of the Cumberland County Courthouse in Carlisle,
Pennsylvania.
The suspension of Petitioner's drivers license and motor vehicle operating priviledges
is stayed until further order of this Court.
BY THE COURT,
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Distribution: /-/1./-00
R){.3
Samuel L. Andes, Esquire (Attorney for Petitioner)
525 North 12th Street, Lemoyne, Pa 17043
J.
Pennsylvania Department of Transportation
Office of Chief Counsel, 3rd Fl., River Front Off. Ctr., Harrisburg, PA 17104
RLED-OFFlCE
OF THE P~OTHONOTAI'lY
00 JMI13 PH 4: 03
CUMBERLAND COUNTY
PENNSYLVANIA
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JUSTIN C. FOX,
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
vs.
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,
i~i_;~ C) ::(.~9
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APPEAL OF L1CEflISE SUSPENSION :2:c::; ":: '-"~
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AND NOW comes the above-named Petitioner, Justin C. Fox, by hisaiiorn1y, ~muel
L. Andes, and appeals from a Notice of Suspension of his operating priVileg~ iss'ied ~ the
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Defendant
CIVIL ACTION - LAW
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NO. d()-O/J - Nf'
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Respondent, based upon the following:
1. The Petitioner herein is Justin C. Fox, an adult individual who resides at 124
Deerfield Road in Camp Hill, Lower Allen Township, Cumberland County, Pennsylvania, and
is a licensed operator of motor vehicles in the Commonwealth of Pennsylvania.
2. In December of 1999, Petitioner received a notice of the suspension of his
operating privileges, a copy of which is attached hereto and marked as Exhibit A.
3. The suspension of Petitioner's operating license is illegal, improper. and unjust
for reasons which include, but are not limited to, the following:
A. The alleged "conviction" is not for a similar or equivalent charge or
violation of Section 3731 of the Pennsylvania Motor Vehicle Code.
B. Petitioner was never convicted of Section 3731 or an equivalent
violation.
C. The law of New Jersey prohibits the use against Petitioner of the
record of the New Jersey prosecution, or parts of that record, and Pennsylvania
is bound to enforce or recognize those provisions of New Jersey law to give
"full faith and credit" to the laws of a sister sovereign.
D. Notification to the public concerning reciprocity as well as the Driver
License Compact and Administrative Procedures Manual, and the statute clearly
. .
indicate that driving a motor vehicle while under the influence is limited to
those charges with specifically are "driving a motor vehicle while under the
influence of alcoholic beverages or a narcotic to a degree which renders the
driver incapable of safely driving a motor vehicle" of which conduct the
Defendant was not guilty.
E. The Pennsylvania Bulletin, as well as the Driver Licence Compact and
Administrative Procedures Manual, clearly indicates that the licensing authority
in the home state shall give "such effect to the conduct as is provided by the
laws of the home state" and under the laws of the home state your Petitioner
would be a ARD eligible which would not involve a one year loss of license or a
conviction.
F. The Driver Licence Compact is not being enforced in Pennsylvania
except for a few violations and said enforcement therefore denies equal
protection and due process and has resulted in illegal delegation of authority
and violation of law, and discriminatory treatment in violation of the States and
Federal Constitution and of the Driver's License Compact.
G. The action of the Department of Transportation violates the full faith
and credit of the Federal Constitution in that the Department of TranspGrtation
has mandated a one year suspension when New Jersey has made a lesser
suspension for driving while impaired.
H. The one year suspension is in violation of the Driver License
Compact and Administrative Procedures Manual in that your Petitioner's driving
privileges will not be restored at the expiration of the suspension imposed by
New Jersey.
I. Pennsylvania lacks jurisdiction over acts occurring in New Jersey.
J. The action violates the principals of double jeopardy and collateral
estoppel and is in violation of the Pennsylvania Constitution, the New Jersey
" ..,' ~
Constitution and the Federal Constitution and all related and applicable State
Rules of Criminal Procedure.
K. Your Petitioner is being penalized a second time for actions for which
he had previously been penalized.
L. Notice to the public is contained in the Pennsylvania Bulletin Vol.
24, No. 45, Nov. 5, 1994, p. 5609, indicated that only charges of "drunk
driving" are reciprocal and the charges against the Defendant did not constitute
drunk driving and the statutory provisions of the Driver License Compact,
Article III, 9 (a) (2), Act 1996-149 indicates that the provisions apply only to
driving under the influence to a degree which renders someone incapable of
safe driving and the Petitioner has not been convicted of that charge.
M. The appellant was not validly convicted.
N. The Commonwealth is engaged in selective enforcement of the
provisions of the Driver License Company and said enforcement violates the
Compact.
O. The suspension violates Due Process under the Federal and New
Jersey and Pennsylvania State Constitutions.
P. The suspension violates the Equal Protection clauses of the Federal,
Pennsylvania and New Jersey Constitutions.
Q. The suspension violates the terms, conditions, and purpose of the
Driver License Compact and/or The Administrative Procedures Manual of the
Driver's License Compact.
R. The suspension for one year violates uniformity and equity principles
of the Driver's Licence Compact.
S. The suspension violates New Jersey Law and procedures applicable
to the underlying violation.
~ '.
. '.
WHEREFORE, Petitioner prays this Court, after a hearing, to set aside and vacate the
Respondent's suspension of Petitioner's driving privileges and driver's license and to
immediately stay such a suspension pending a hearing.
~~n~
Attorney for Plaintiff
Supreme Court ID # 17225
525 North 12'h Street
Lemoyne, PA 17043
(717) 761-5361
, "
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
)
) SS.:
)
JUSTIN FOX, being duly sworn according to law, deposes and says that the facts
set forth in the foregoing document are true and correct to the best of his knowledge,
information, and belief.
Sworn to and spscribed
beR~ Ime this' rh day
of ~ UAOJl.l ,2000.
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CERTIFICATE OF SERVICE
I hereby certify that I served an original of the foregoing Appeal of License
Suspension upon counsel for Defendant herein by regular mail, postage prepaid:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, River Front Office Center
Harrisburg, PA 17104-2516
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am L. Ande
Attorney for Plaintiff
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EXHIBIT A
..' 41.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver _licensir19
Harrisburg, PA 17123
DECEMBER 14, 1999
CAMP HILL PA
17U11
993416101234850 001
12/07/1999
25213606
04/3U/1980
JUSTIN C FOX
124 DEERFIELD RD
Dear Muto,~lsl:
Section 1581 of the Vehicle Code requires the Depart~ent to
treat certain out of state COflvictions as tll0Ugh they had
occurred in Pennsylvania~ Therefore, as a result of the
Department receiving noti fication from NEW JERSEY of your
conviction on 11/01/1999 of an offense which occurred on
08/17/1999, which is equivalent to a violation of Section
3731 of the Pa. ~ehicle Code, DRIVING UNDER INFLUENCE, your
driving privilege is being SUSPENDED for a period of 1
YEAR(S), as mandated by Section I532B of the Vehicle Code.
The effect~ve date of suspens~on ~s 01/18/2000. 12:01 a.m.
In order to comply with this sanction YOU are required to
_return any current driver's license, learner's permit and/or
~emporary driver's license (camera card) in your pos~ession
no later than the effective date listed. If you cannot
comply with the requirements stated above, you are required
to submit a DL16LC Form or a sworn affidavit statin~ that
you ar~ awar~ o~ the sanct~on against your driVing privi-
lege. Failure to comply with this notice shall result in
this Bureau referring this matter to the Pennsylvania State
Police for prosecution under SECTION 1571(a)(4) of the Ve-
hicle Code.
Although the law mandates that your driving privilege is
under suspension even if you do not surrender v-our license,
cred~t will not begin until all current driver's license
product(s), the DLl6LC Form, or a letter acknowledging your
sanction Js received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE-
MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO HOT RECEIVE THIS
RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY.
OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS
SM1CTlOH.
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99341610123'.850
Please see the enclosed applicatiorl for restoration fee
formation.
in-
You will be notified of any outstanding restoratio_n
quirements approximately 30 days before the eligibility
of the restoration of your driving privilege. You
follow those instructions very carefull_y_ in order to
~pur driving privilege restored.
re-
date
must
have
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date of this letter, DECEMBER 14, 1999. If you file an ap-
peal in the County Court, the Court will give yo'u a time-
stamped certified copy of the appeal. Send th i s
time-stamped certified copy of the appeal by certified mail
to:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR, RIVERFRONT OFFICE CENTER
HARRISBURG, PA. 17104-2516
Sincerely,
~~,~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/DL-16LC/TO:
Department of Transportation
Bureau of Driver licensing
P.O. Box 68693
Harrisburg, PA 17106-8693
INFORMATION (7:00
IN STATE
OUT-OF-STATE
TOO IN STATE
TOO OUT-OF-STATE
AM TO 9:00 PM)
1-800-932-4600
717-391-6J90
1-800-228-0676
717-391-6191
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RECEIVED 8, pi 1='" .".-.,
BOROUGH OF ;'5~
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), HEREBY CERTIFY THAT THE
FORE-GOING IS A TRUE COP
ORIGINAL ON FILe IN THIS OF~C':
DATE /- It -C!Q
SIGNATUR
ROSSI, BARRY, CORRADO, GRASSI & RADELL, P.C.
2700 Pacific Avenue
Wildwood NJ 08260
(609) 729-1333 (609) 522-4927 (fax)
Attorneys for Defendant
II
AVALON MUNICIPAL COURT
STATE OF NEW JERSEY,
CAPE MAY COUNTY
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Plaintiff,
v.
SUMMONS NO. C-001705
JUSTiN C. FOX,
Civil Action
Defendant.
ORDER
THIS MATTER, having come before the Court by way of hearing on November
1, 1999, the defendant, Justin C. Fox, being represented by J. Christopher, Gibson,
Esquire, of the law firm of Rossi, Barry, Corrado, Grassi & Radell, P.C., together with
Michael Donohue, Municipal Prosecutor, representing the State of New Jersey, and
having considered this Order, and for good cause shown;
-f-IJ ! .
IT IS on this .s ! day of /L,fl/":'d7 if ,1999 ORDERED as follows:
The defendant's guilty plea to a violation of N.J.S. ",39:4-50, driving while under
i
the influence, shall not be evidential in any civil procee i09 p. rsuant to R 7:6-2{a)(1).
I
J.M.C.
G:\OATAICGIBSON\FOXJ\ORDER.
DI;.-326 {9/95)
CERTIFICATION
DATE: January 24, 2000
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 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 DE~~IUMENT THE DAY AND YEAR AFORESAID.
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 12/14/99, effective 01/18/2000; 2) Record of
Conviction Detail, Out of State Driver Violations Report received from the licensing authority of
the State of NEW JERSEY, operating under the influence of liquor or drugs, date of violation
08/17/99, and date of conviction 11/01/99, and 3) Driving Record, which appears in the file of the
defendant JUSTIN C. FOX, operator's no. 25213606, date of birth 04/30/80, in the Bureau of
Driver Licensing, Harrisburg, Pennsylvania.
CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9,
1976, P.L. 586,85 amended, 42 Pa.C.S. 996103 and 6109.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR
AFORESAID. <8~ 't.
SEAL
REBECCA L. BICKLEY, DI TOR
BUREAU OF DRIVER LICENSING
COMMONWEALTIi'S
EXmBIT
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
DECEMBER 14, 1999
JUSTIN C FOX
124 DEERFIELD RD
CAIIP HILL PA
17011
~~341bl01234650 001
12/07/1~~"
25213bOb
04/3\l/1~60
Dear Motorist:
Section 1581 of the Vehicle Code requires the Depart.ent to
treat certain out of state convictions as though they had
occurred in Pennsylvania . Therefore, as a result of the
Depart.ent receiving notification fro. NEW JERSEY of your
conviction on 11/01/1999 of an offense which occurred on
08/17/1999, which is equivalent 'to a violation of Section
3731 of the Pa. Vehicle Code, DRIVING UNDER INFLUENCE, your
driving privilege 'is being SUSPENDED for a period of 1
YEAR(S), as .andated by Section 15328 of the Vehicle Code.
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The .t~ective date o~ suspension i. 01/18/2000, 12:01 a...
" .
In order to co.ply with this sanction you are required to
return any current driver's license, learner's per.it and/or
te.porary driver's license (ca.era card) in your possession
no later than the effective date listed. If you cannot
co.ply with the require.ents stated above, you are required
to sub.it a DL16LC For. or a sworn affidavit stating that
yoU are aware of the sanction against your driving priVi-
lege. Failure to co.plY with this notice shall result in
this Bureau referring this .atter to the Pennsylvania State
Police for prosecution under SECTION 157I(a)(4) of the Ve-
hicle Code.
"..':
Although the law ..andates that your driving privilege is
under suspension even if you do not surrender your license,
C,.edit will not begin until all current driver's license
productCs), the DL16lC For., or a letter acknowledging YOUr
sanction 1s received 1n this Bur.au.
WHEN THE DEPARTMENT RECE IVES YOUR LICENSE OR ACKNOWLEDGE-
MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS
RECEIPT WITHIN 15 DAYS CONTACT THE DrPARTMENT IMMEDIATELY.
OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS
SANe TI ON.
'f
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1\
, ,
993416101234850
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 privilege. Vou ..ust
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
Co....on Pleas (Civil Division) within 30 days of the mail
date of this letter, DECEMBER 14, 1999. X~ you ~il. an ap-
peal, in the County Court. the Court will give you a time-
stamped certi'fied COpy of' the appeal. Send this
ti..e-stamped certified copy of the appeal by certified ..ail
to: ' ,
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR. RIVERFRONT OFFICE CENTER
HARRISBURG. PA. 17104-2516
Sincerely,
~~,~
Rebecca l. Bickley, Director
Bureau of Driver licenSing
SEND FEE/L1CENSE/DL-16LC/TO:
Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8693
INFORMATION (7100
IN STATE
OUT-OF-STATE
TOO IN STATE
TOO OUT-OF-STATE
AM TO 9:00 PM)
1-800-932-4600
717-391-6190
1-800-228-0676
717-391-6191
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PAGE 1
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
CERTIFIED DRIVING HISTORY
JAN 20 2000
"
~,
DRIVER: JUSTIN C FOX
124 DEERFIELD RD
CAMP HILL, PA 17011
DRIVER LICENSE NO
DATE OF BIRTH
SEX
RECORD TYPE
25213606
APR 30 1980
: MALE
REG LICENSE
DRIVER LICENSE (DL)
COMMERCIAL DRIVER LICENSE (CDL)
LICENSE CLASS :
LICENSE ISSUE DATE:
LICENSE EXPIRES :
ORIG ISSUE DATE :
MED RESTRICTIONS :
LEARNER PERMITS
LICENSE STATUS
C
JON 13 1996
APR 30 2000
JON 13 1996
NONE
SUSPENDED
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 - JAN 20 2000 - LICENSE NUMBER 25213606 CONTINUED
'"
----------------------------------~---------------------------------------------
VIOLATION DATE:
VIOLATION:
DESCRIPTION:
CONVICTION DATE:
ACTION:
VIOLATION DATE:
VIOLATION:
DESCRIPTION:
CONVICTION DATE:
ACTION:
REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS
DEC 26 1998
VEHICLE CODE: 3362
EXCEEDING MAXIMUM SPEED
052 MPH IN A 035 MPH ZONE
JAN 13 1999
ASSIGNED POINTS
AUG 17 1999
VEHICLE CODE: 3731 MAJOR VIOLATION
DRIVING UNDER INFLUENCE
NOV 01 1999
SUSP DRVR LIC COMPACT FOR 1 YEAR(S) EFFECTIVE JAN 18 2000
OFFICIAL NOTICE MAILED DEC 14 1999
REPORT OF MEDICALS AND DEPARTMENTAL ACTIONS
NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD
~~~-
*** CONTINUED ***
PAGE 3
CERTIFIED DRIVING HISTORY - JAN 20 2000 - LICENSE NUMBER 25213606 CONTINUED
'.>
---------------------------------~~---------------------------------------------
REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS
NO ACCIDENTS DURING THIS REPORTING PERIOD
,~~~-~----
*** END OF RECORD ***
~,~~-
PAGE 4
CERTIFIED DRIVING HISTORY - JAN 20 2000 - LICENSE NUMBER 25213606 CONTINUED
~
IN COMPLIANCE WITH YOBR 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, BUREAU OF DRIVER LICENSING
FOR
SECRETARY OF TRANSPORTATION
COMMONWEALTH OF PENNSYLVANIASS:
DATE:JAN 20 2000
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 walCH 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
<
JUSTIN C. FOX,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
vs.
00-0145 CIVIL
CIVIL ACTION - LAW
COM. OF PA, DEPT. OF TRANS.,
Defendant
LICENSE SUSPENSION APPEAL
IN RE: APPEAL OF LICENSE SUSPENSION
BEFORE HESS. J.
ORDER
AND NOW, this
Z '2- "!' day of May, 2000, the appeal of Justin C. Fox from the
suspension of his operating privileges is DENIED.
BY THE COURT,
Samuel L. Andes, Esquire
For the Appellant
George H. Kabusk, Esquire
For PennDOT
.5 '.;13-00
1\ K ,:)
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.. -' "'1
FILED-ofFlCE
OF Yi-'!, c'GCTllJNOTARY
00 HAY 22 P~lI2: 55
CUMBERLAND COUNlY
PENNSYlVANIA
\. ,~\ ....;:..;..4..."':.;"~
- ~ ~ .
JUSTIN C. FOX,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
00-0145 CIVIL
CIVIL ACTION - LAW
COM. OF PA, DEPT. OF TRANS.,
Defendant
LICENSE SUSPENSION APPEAL
IN RE: APPEAL OF LICENSE SUSPENSION
BEFORE HESS. J.
OPINION AND ORDER
By a notice dated December 14, 1999, the Commonwealth of Pennsylvania, Department
,of Transportation notified Justin C. Fox that his driver's license would be suspended for a period
of one year. The notice was based on Section 1581 of the Motor Vehicle Code which requires
the department to treat certain out-of-state convictions as though they had occurred in
Pennsylvania. PennDOT had purportedly received a notification from the state of New Jersey
that Mr. Fox had been convicted on November I, 1999, of an offense which occurred on August
17, 1999, which offense was equivalent to a violation of Section 3731 of the Pennsylvania
Vehicle Code, Driving under the Influence.
In his appeal, Mr. Fox raises two issues. His first contention is that PennDOT failed to
satisfy the requirements of the Driver's License Compact (in Pennsylvania at 75 Pa.C.S.A. 1581
et seq.). Article III of the Compact requires that the "licensing authority ofa party state shall
report each conviction of a person from another party state occurring within its jurisdiction to the
licensing authority of the home stale of the licensee." 75 Pa.C.s.A. 1581. The Compact further
requires that such reports shall: (1) clearly identify the person convicted; (2) describe the
violation specifying the section of the statute, code or ordinance violated; (3) identify the court in
00-0145 CIVIL
which action was taken; and (4) certify how the conviction was obtained (by trial, guilty plea or
as a result of some kind of forfeiture). In 1998, the Commonwealth Court held that the reporting
requirements of Article III were mandatory and that a failure to fully comply with the reporting
requirements made the suspension of the motorist's operating privileges in:1proper. See Mazurek
v. Com., Dept. ofTransp., 717 A.2d 23 (pa.Cmwlth. 1998). In an apparent response, the
legislature amended the Vehicle Code to provide, at 75 Pa.C.S.A. 1584, that:
The omission from any report received by the
department from a party state of any information
required by Article III ofthe Compact shall not
excuse or prevent the department from complying
with its duties under Article IV and V of the
Compact.
Article IV of the Compact requires the licensing authority of the home state to give the
same effect to out-of-state conduct as it would if such conduct had occurred in the home state.
In this case, the Department of Transportation submitted a New Jersey driving record
which contained Mr. Fox's name and Pennsylvania driver's license nwnber, his date of birth,
gender and eye color, a violation date, conviction date and a description of the offense which
merely read "operate under influence liq.ldrugs." The report from New Jersey clearly failed to
comport with the requirements of Article III ofthe Compact. Under Mazurek, supra, Mr. Fox
would be entitled to relief. The department counters, however, that the strict application of
Article III is no longer necessary because of the 1998 amendment to the Vehicle Code. Mr. Fox
argues, in turn, that the language of Section 1584 relaxing the reporting requirements of Article
III is unconstitutional. There are not yet any appellate decisions on this issue. The lower courts
are split.
2
00-0145 CIVIL
In Com" Department of Transp. v. Anderson, 48 Ches. Co. Rep. 3 (1999) Chester County
Judge James P. MacElree considered the notice requirements of Article III of the Compact to be
of constitutional dimension. Concerning the 1998 amendments to the Vehicle Code relaxing
those requirements, Judge MacElree observed:
The Amendment violates the specific requirements
of Article III of the Compact and it violates due
process requirements under the United States and
Pennsylvania Constitutions. the purpose of due
process notice is founded on the concept of
fundamental fairness. Due process requires that
the defendant have enough information to respond
to the charge. An examination of75 Pa.C.S.A. S
1584 reveals a broad and sweeping provision,
which permits Pennsylvania to suspend a driver's
license where "any information" is omitted from
the report required by Article III of the Company.
Applying S 1584 literally could result in
Pennsylvania suspending the license of a driver
where the report only contained the licensee's
name or operator's license nwnber. Such notice
would be really no notice at all because it would
lack fundamental facts sufficient to advise the
licensee of who, what, where or when an alleged
violation occurred.
While we certainly share Judge MacElree's concerns, nonetheless, we will follow the approach
taken by Bucks County President Judge R. Barry McAndrews. In Com. ofPa" Dept. ofTransp.
v. Wenger, 73 Bucks Co. L. Rep. 54 (2000), he wrote:
This Court agrees with Judge MacElree in part, but
disagrees with [his]conc1usion that the amendment
is per se unconstitutional. First, it is a well-
established principle of statutory construction that
vests all enactments of the legislature with a strong
preswnption of constitutionality. 1 Pa.C.s. S 1922,
Plowman v. Department of Transportation, 535 Pa.
314,635 A.2d 124 (1993). Second, a court
reviewing a statute should interpret the enactment
"
-'
00-0145 CIVIL
of the legislature in a constitutional manner, if
possible. 1 Pa.C.S. 9 1922(3), Commonwealth v.
Hude, 492 Pa. 600, 425 A.2d 313 (1980);
Commonwealth v. McDonald, 464 Pa. 435, 347
A.2d 290 (1975). Article IX of the Compact
clearly sets forth that the provisions of the
Compact should be broadly construed so as to
effectuate the Compact's remedial purpose. 75
Pa.C.S. S 1581, Article IX; See also, 1 Pa.C.S. S
1928(c) (regarding liberal construction of statutes).
Procedural due process simply requires that the
Department of Transportation provide the licensee
with sufficient notice of the conduct that forms the
basis of the Department's action so that the
licensee can prepare a defense. The use of an out-
of-state conviction report that does not fully
comply with all the technical requirements of
Article III does not necessarily impinge on
Petitioner's due process rights. The Department
still has the burden of proof; hence the report must
still be suitably informative so as to allow the
Department to identify the driver and the offense
for which the driver has been convicted. In other
words, the report must still contain the
fundamental facts.
We reach the same conclusion as Judge McAndrews and for the same reasons.
The appellant's second issue arises out of the circwnstances of his plea in New Jersey.
The guilty plea was accompanied by a so-called "civil reservation" preventing the use of the
guilty plea as evidence in a civil proceeding. Since the suspension of his license involves a civil
proceeding, the petitioner argues that evidence of the guilty plea is inadmissible. We agree with
the department that the plea entered is akin to a plea of nolo contendere and that the plea cannot
.serve as an admission of guilt in a civil action related to the defendant's driving on the date in
question. The civil reservation, however, does not alter the fact that the defendant was convicted
and it is the conviction which has triggered the Pennsylvania driver's license suspension.
4
00-0145 CIVIL
The motorist in Hunt v. Com. ofPA. Dept. ofTransp., Cmwlth Ct. No. 2244 C.D. 1999,
filed March 29, 2000, argued that his plea of "nolo contendere" to a charge of driving under the
influence in West Virginia could not be used to suspend his Pennsylvania operating privilege.
The Commonwealth Court noted that it had repeatedly upheld suspensions based upon pleas of
no contest, citing Pepperling v. Dept. ofTransp., 737 A.2d 310 (pa.Cmwlth. 1999); Smega v.
Dept. ofTransp., 727 A.2d 154 (Pa.Cwmlth. 1999); Mackall v. Dept. ofTransP.,680 A.2d 31
(pa.Cmwlth.1996).
For the foregoing reasons we enter the following order.
ORDER
AND NOW, this
2..2'-! day of May, 2000, the appeal of Justin C. Fox from the
suspension of his operating privileges is DENIED.
BY THE COURT,
Samuel L. Andes, Esquire
For the Appellant
.4J
George H. Kabusk, Esquire
For PennDOT
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5