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Home My WebLink About02-5246GEORGIANNA B. SWANK Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O2- 0U.L I .Q-n? LICENSE SUSPENSION APPEAL (FROM IMPOSITION OF THE INTERLOCK REQUIREMENT AND THE IMPOSITION OF AN ADDITIONAL YEAR OF SUSPENSION FOR FAILURE TO COMPLY) LICENSE SUSPENSION APPEAL AND NOW, comes Petitioner, Georgianna B. Swank, by and through her attorneys, Mancke, Wagner & Tully, and makes the following averments in support of this License Suspension Appeal: 1. Petitioner, Georgianna B. Swank, is a Pennsylvania licensed driver with a residence address of 13 Marshall Drive, Camp Hill, Cumberland County, Pennsylvania. 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address at Riverfront Office Center, Third Floor, 1101 South Front Street, Harrisburg, Dauphin County, Pennsylvania 171042516. 3. Petitioner received a notice of license suspension by way of letter dated October 8, 2002 from the Department of Transportation indicating, in pertinent part, "Before your driving privilege can be restored you are required bylaw to have all vehick(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 hail 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.0 Said notice is attached hereto as Exhibit OX and incorporated herein by reference. the ignition interlock systems have been installed before PennDOT will reinstate the operating privilege which necessarily requires the court to investigate whether or not the devices have been installed without procedural due process. 5-u Commonwealth v Mockaitis 54 D&C 4V' 155 (Cumb. 2001). (g) The provisions of Act 63 violate due process because PennDOT has no authority or jurisdiction over vehicles owned by a motorist but not registered and not operated on a public highway. (h) The provisions of Act 63 violate due process because the statute is vague in failing to define ownership and is overbroad because, by its reach, it punishes constitutionally protected activity, i.e. ownership of a non-registered vehicle maintained and/or used solely on private property in violation of Petitioner's rights under Article, 1, §9 of the Pennsylvania Constitution and the 5th Amendment of the Unites States Constitution. (i) PennDOT has waived any perceived authorization to have the ignition interlock requirements and/or extend the license suspension by its failure to file an appeal, within 30 days of notice of the courts failure to impose such requirements on the Petitioner. 5. Petitioner requests the court take judicial notice of Senate Bill 849 and all of its prior forms prior to becoming Act 63 of 2000 including the legislative summary obtained from the Pennsylvania State website, www.legis.state.pa.us, in chronological order beginning with the summary and printer numbers 952, 1225, 1814,1918, 2038, and 2059. WHEREFORE, Petitioner prays that this Court declare that the portion of the Departments notice of October 8, 2002 which reads: "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 hail to comply with this requirement, your driving privilege will remain suspended for an addfional year. You will receive more information regarding this requirement approximately 30 days before your eligibility date' be declared illegal, unconstitutional, and stricken as part of the Departments notice and direct that the Department reinstate the Petitioner's driving privileges after the one (1) year suspension for the conviction for driving under the influence, subject to the payment of the restoration fee and providing proof of insurance. )Resectfully submitted, Mancke, Esq., ID No. 07212 , Wagner & Tully 2233 N. Front Street, Harrisburg, PA 17110 Dated: 10 A-6A 717-234-7051, Attorney for Petitioner 4 VERIFICATION I hereby verify that the statements made in this document are true and correct I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date Georgia B. Swank 10/08/2002 15:24 FAX 717 541 6175 CBI INC COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 08, 2002 GEORGIANNA B SWANK 13 MARSHALL DR CAMP HILL :PA 17011 Dear MS. SWANK: Z002 WID # 022746102394420 D01 PROCESSING DATE 1010112002 DRIVER LICENSE # 1928SO74 DATE OF BIRTH 07/07/1960 LICENSE IN BUREAU This is an Official Notice of the Suspension of Your Driving Privilege as authorized by Section 1532B of the Pennsylvania Vehicle Code. As a result of your 07/03/2002 conviction of violating Section 3731 of the Vehicle Code DRIVING UNDER INFLUENCE on 1211812001: • Your driving privilege is SUSPENDED for a Period of 1 YEAR(S) effective 09/24/2002 at 12:01 a.m. v*a?*e?***??**?*a*?*e***ae****?te****e*e*???******e**?****?* I WARNING: If you are convicted of driving while your I license is suspended/revoked the penalties will be a I MINIMUM of 90 days imprisonment AND a $1,000 fine AND I I your driving privilege will be suspended/revoked for I _ a-MINI-MUM 1 year period *??e*?e?*eee?***?x***?***?*?e** Before PennDOT can restore your driving Privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefully. Even if you have served all the time on the suspension/revocation, we cannot restore your driving privilege until all the requirements are satisfied. EXHIBIT a /_y a 10/08/2002 15:25 FAX 717 541 6175 CBI INC ID003 022746102394420 PRISON RELEASE REQUIREMENT (ACTis>) The Court of CUMBERLAND CTY, 2002 has sentenced you to servetaNumber 645, Court Term violation. Pursuant to Section 1541(all)nef V ehi c le Code, you will not receive creditoftfoher this suspension/revocation r any additional suspension/revocation until oyou complte Your Prson rm. The Court roust certify your completion to PennDOT. Youemay wish to contact your probation officer and/or the Court after your release to. make sure that PennDOT is properly notified. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. 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. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. IGNIT_ ICON INTERLOCK Before your driving privilege can be restored required by law to have all vehicle(s) owned b y you are equipped with an Ignition Interlock System. This is au result yo to be of your conviction for Driving Under the Influence. If you fail-to comply wi.th__this requirement,_.Y-o-ur 4.1-vi- g "i-l-e-ge 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 INSURANCE Within 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. Important: 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. 10/08/2002 15:25 FAX 717 541 6175 CBI INC R004 0227461027,594420 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 08, 2002, of this letter. If you file an appeal in the county court, the Court will give you a time-stamped certified copy of the appeal. In order for your appeal to be valid, 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 Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing INFORMATION 7:00 a.m. to 9:00 M. IN STATE 1-800-932-4600 TOD IN STATE OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 1 717-398-6191 WEB SITE ADDRESS www.dot.state.pa.us N? W `T f.? a { T> OCT 31 ZOZ GEORGIANNA B. SWANK Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Da - S'aq6 LICENSE SUSPENSION APPEAL (FROM IMPOSITION OF THE INTERLOCK REQUIREMENT AND THE IMPOSITION OF AN ADDITIONAL YEAR OF SUSPENSION FOR FAILURE TO COMPLY) ORDER OF COURT AND NOW, this Atl-?h day of 1,417NAI, 2002, upon Petition of Georgianna B. Swank, a hearing is set on the License Suspension Appeal for the lJ-6f day of 2002 at 3 G m. in courtroom No. Y Cumberland County Courthouse, Carlisle, Pennsylvania. Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least sixty (60) days prior to the date of said hearing. BY THE COURT: J. Distribution: Prothonotary's Office Office of Chief Counsel, PennDOT 1101 S. Front St, Harrisburg, PA 171042516 John B. Mancke, Esquire 2233 N. Front St, Harrisburg, PA 17110 ( ?„_ 4" r?ii?ir'(?,?f?i?rl??it '1 {wir, J t r rt?7"&{? Vii: GEORGIANNA BRAUND (formerly SWANK), Petitioner vs. COM. OF PA., DEPT. OF TRANS. BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5246 CIVIL CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL ORDER AND NOW, this /0 day of February, 2003, the appeal of Georgianna Braund is SUSTAINED with respect to that portion of her driver's license suspension which reads as follows: 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. Said provision of appellant's suspension is VACATED. See Albert Schneider v. Com. of PA, Dept. of Transp., Bureau of driver licensing, 11513 C.D. 2001 (Pa.Cmwlth. 2002). The appeal with regard to the remaining provisions of the driver's license suspension is DENIED and said suspension is reinstated. BY THE COURT, Ke A. Hess, J. zl,? r '? Cj 1 333 ' John B. Mancke, Esquire For the Petitioner George Kabusk, Esquire For PennDOT Am 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 GEORGIANNA BRAUND, } IN THE COURT OF COMMON PLEAS Appellee OF CUMBERLAND COUNTY, PA VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO. 02-5246 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 10, 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. '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: TERR.ANCE 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 GEORGLA NNA BRAUND, } Appellee ; } vs. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-5246 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. I k -44;;0- 1 T'ERRANCE M. EDWA.RDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 PYS510 Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry 2002-05246 SWANK GEORGIANNA B (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: 10/29/2002 Case Type ..... : APPEAL - LICENSE SUSP Jud 00 ment Time.........: 3:25 g ..... . Judge Assigned: Execution Date Jury Trial.... 0/00/0000 Disposed Desc.: ------------ Case Comm t - Disposed Date. 0/00/0000 en s ------------ Higher Crt 1.: Higher Crt 2.: General Index Attorney Info SWANK GEORGIANNA B APPELLANT MANCKE JOHN B 13 MARSHALL DRIVE CAMP HILL PA PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION RIVERFRONT OFFICE CT 3RD FLOOR 1101 SOUTH FRONT STREET HARRISBURG PA 17104 * Date Entries ?C**?C 7t***?C***7k 7k 7?C 7rC 7k**]C 7k*?f iC**!f 7C*?C '?C 7t*?C *7C***7?C ?C 7f '?f 7C ?C '?C iC 7?*?f ?'**'A"A'?C 7k *'k ?C 7k 'A'*'jC 7k *'A'*7?f 7k ?C*?C*?C '?C***7f FIRST ENTRY - - - - - - - - - - - - - 10/29/2002 APPEAL FROM SUSPENSION OF DRIVERS LICENSE -------------------------------------------------------------------- 11/04/2002 ORDER OF COURT - DATED 11/4/02 - IN RE LICENSE SUSPENSION APPEAL HEARING IS SET FOR 2/10/02 AT 9:30 AM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED -------------------------------------------------------------------- 2/10/2003 ORDER - DATED 2/10/03 - IN RE LICENSE SUSPENSION APPEAL - BY THE COURT KEVIN A HESS J COPIES MAILED - - - - - - - - - - - - - - LAST ENTRY- - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beq Bal P*ymts/Ad? 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 ******************************************************************************** TRUE 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 GEORGIANNA BRAUND, } IN THE COURT OF COMMON PLEAS Appellee OF CUMBERLAND COUNTY, PA } VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO. 02-5246 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 Kevin A. Hess Court Reporter John B. Mancke, Esquire Cumberland County Courthouse Cumberland County Courthouse Att. for Appellee Braund 1 Courthouse Square 1 Courthouse Square 2233 N. Front Street Carlisle, PA 17013 Carlisle, PA 17013 Harrisburg, PA 17110 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic :Law Division Date: February 21, 2003 w ? C r. rc w ? `-`= Lx= T. ""T"1 71 GEORGIANNA BRAUND, IN THE COURT OF COMMON PLEAS OF (formerly SWANK), Appellee CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF NO. 02-5246 CIVIL TERM PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU: LICENSE SUSPENSION APPEAL OF DRIVER LICENSING, Appellant IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, February 10, 2003, in Courtroom Number 4. APPEARANCES: GEORGE KABUSK, Esquire For the Commonwealth JOHN B. MANCKE, Esquire For the Appellee/Defendant VINVAIASNNIIJI !IU :; c 4 u ij FOR THE PETITIONER Georgianna Braund INDEX TO WITNESSES DIRECT 8 INDEX TO EXHIBITS FOR PENNDOT MARKED Ex. No. 1 - certified driving record 3 FOR THE PETITIONER Ex. No. 1 - court orders 7 Ex. No. 2 - letter dated 11/08/02 9 ADMITTED 4 10 10 2 1 (Whereupon, Commonwealth's Exhibit No. 1 2 was marked for identification.) 3 THE COURT: Good morning. 4 MR. KABUSK: Good morning. This is the case 5 of Georgianna B. Swank versus Commonwealth of Pennsylvania, 6 Department of Transportation, Bureau of Driver License, 7 Case No. 02-5246. This is a license suspension appeal. 8 What's been marked as Commonwealth's Exhibit 9 No. 1 is a packet of documents under seal and 10 certification. I have provided a copy to the petitioner. 11 Sub-Exhibit No. 1 is the notice of 12 suspension at issue. That's official notice of suspension 13 dated and mailed 10/8/02, effective 9/24/02. In that 14 notice dated October 8, 2002, the Department notified the 15 petitioner that as a result of her 7/3/2002 conviction of 16 violating Section 3731 of the Vehicle Code relating to 17 Driving Under the Influence on 12/18/2001 her driving 18 privilege was suspended for a period of one year, effective 19 9/24/2002. Additionally, in that notice the Department 20 informed the petitioner of the requirement for the Ignition 21 Interlock. 22 Sub-Exhibit No. 2 is Report of Clerk of 23 Court of Cumberland convicted 7/3/02. Seal attached to the 24 original. I would direct the Court's attention to 25 sub-Exhibit No. 2, the DL-21 and specifically to box G, 3 1 relating to Act 63, Ignition Interlock required. That box 2 is no has been checked. 3 Additionally, sub-Exhibit No. 3 is driving 4 record which appears in the file of the defendant, 5 Georgianna B. Swank, operators number 19285074, date of 6 birth 7/7/60, in the Bureau of Driver Licensing, 7 Harrisburg, Pennsylvania. 8 I move for the admission of what's been 9 marked Commonwealth's Exhibit No. 1. 10 THE COURT: I assume there is no objection? 11 MR. MANCKE: No objection, Your Honor. 12 MR. KABUSK: And, Your Honor, additionally, 13 as a result of this appeal the Department restored the 14 petitioner pending appeal. Therefore, she is now restored 15 pending on the one year as a result of the conviction for 16 the DUI as well as restored from the Ignition Interlock. 17 THE COURT: That's interesting. I faced 18 that situation before but I never thought to ask about it. 19 That means that she is not, as you just said, she is not 20, serving a suspension for the DUI, the underlying DUI. Is 21 that because it simply becomes administratively impossible 22 for your Department -- 23 MR. KABUSK: No, Your Honor. The Department 24 took the appeal as a license suspension appeal and 25 therefore restored on the one-year suspension. 4 1 THE COURT: Okay. All right. If I enter an 2 order though sustaining the appeal but only with respect to 3 the language that is objected to, what then will the 4 Department do? 5 MR. KABUSK: I think that is what we would 6 want, is in the order that you specifically state that the 7 one year license suspension -- 8 THE COURT: Well, let me interrupt you for a 9 second. What I do in my order is say that the appeal is 10 sustained only insofar as it relates to that language, and 11 then I set it out of the order. 12 MR. KABUSK: Yes. 13 THE COURT: And those orders work for you? 14 MR. KABUSK: I would expect so. I can't 15 guarantee that. 16 THE COURT: Because I am just wondering 17 whether -- because there are many, many of these cases on 18 appeal too. I am assuming they might not even suspend the 19 licenses until this is all sorted out in the appellate 20 courts. Mr. Mancke, do you have anything? 21 MR. MANCKE: Your Honor, here is the 22 difficulty. We have had a court order in a case in Dauphin 23 County where -- and that was specifically directed not to 24 reinstate the client's license pending the appeal because 25 the only issue was the Interlock. And PennDOT would not 5 1 take the license back. Instead returned it to the 2 defendant and said they didn't care what the Court did. 3 We are hopeful in this case, quite frankly, 4 my client wants to put this behind her and would like to 5 get the license back to the Department. 6 THE COURT: At least serve her DUI 7 suspension? 8 MR. MANCKE: And serve the underlying 9 suspension, of which she has already served at least a 10 month of that suspension. So while there are many 11 motorists that are very happy with PennDOT, my client in 12 this particular case would like to serve the remaining part 13 of that suspension. 14 THE COURT: Well, what I would do then at 15 the end of this order is say that the underlying suspension 16 for Driving Under the Influence is reinstated. Okay. We 17 will try that. All right. Very well. Anything else you 18 want to say? 19 MR. MANCKE: Your Honor, just for purposes 20 of utmost clarification, we have a copy of the original 21 sentencing order of court dated September 24th, 2002, as 22 well as another copy of the DL-21, and the order of court 23 dated September 24, 2002, indicating that my client had 24 surrendered her operating license to the Clerk of Courts. 25 THE COURT: Do you want to just maybe staple 6 1 those together and then make them a combined Appellate 2 Exhibit No. 1. 3 MR. MANCKE: The Clerk of Courts had also 4 certified a document dealing with parole, but I am not 5 making that part of the record. And I had shown the 6 certification of these documents that made up Defendant's 7 Exhibit No. 1. And you have those? 8 MR. KABUSK: Yes. 9 THE COURT: I assume there is no objection? 10 (Whereupon, Defendant's Exhibit No. 1 11 was marked for identification.) 12 MR. KABUSK: No objection, Your Honor. 13 MR. MANCKE: And then, Your Honor, just to 14 put my client on to establish the time that she was in 15 prison in case there is any question about credit that 16 PennDOT should give her. Just to establish the dates that 17 she was there and when she got out. 18 THE COURT: Okay. Unless there is 19 agreement? Unless you can do that by stipulation? 20 MR. KABUSK: Your Honor, really, the Court 21 has no jurisdiction in the credit arena, so I would find 22 that that's not relevant to today's proceedings. 23 THE COURT: I don't know whether we do or 24 not. I will take the testimony subject to your objection 25 and certainly without prejudice to the Commonwealth to 7 1 maintain that position. 2 Whereupon, GEORGIANNA B. BRAUND, having 3 been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. MANCKE : 6 Q Will you state your full name, please? 7 A Georgianna B. Braund, B-r-a-u-n-d. 8 Q And your address? 9 A 13 Marshall Drive, Camp Hill, 17011. 10 Q Now, in some of the documents you are 11 referred to as Georgianna Swank and some as Georgianna 12 Braund. Do yo u want to explain that just for the purposes 13 of the record? 14 A I am divorced. I went back to my maiden 15 name. 16 Q And your maiden name is? 17 A Braund. 18 Q And that's what you are currently using, is 19 that correct? 20 A Yes. 21 Q And you have notified PennDOT of that change 22 of name? 23 A Yes, I have. 24 Q We have introduced some documents that 25 indicate the or der of court in Cumberland County dated 8 1 September 24th, 2002, at which time you were sentenced for 2 a DUI, is that correct? 3 A Correct. 4 Q And you were sentenced to begin your jail 5 sentence on September 27th, 2002, is that correct? 6 A Correct. 7 Q And how long were you in prison until you 8 were released? 9 A Forty-eight hours. 10 Q So you were released on September 29th, 11 2002? 12 A Correct. 13 (Whereupon, Defendant's Exhibit No. 2 14 was marked for identification.) 15 Q I am going to show you what has been marked 16 as Defendant's Exhibit No. 2 and ask you whether you can 17 identify that document? 18 A That was the letter that I received 19 restoring my license. 20 Q And that was after you filed the appeal 21 which is the subject of the hearing today? 22 A Correct. 23 MR. MANCKE: That's all I have. 24 THE COURT: Any questions? 25 MR. KABUSK: No, Your Honor. 9 1 THE COURT: Thank you. You can step down. 2 MR. MANCKE: Your Honor, we would move for 3 the admission of our Exhibit No. 1 and Exhibit No. 2. 4 THE COURT: Again, I assume there is no 5 objection, and we will make them part of the record. 6 MR. MANCKE: That's all. we have. 7 THE COURT: Unless there is anything 8 further, we can be adjourned. 9 MR. KABUSK: If I may, Your Honor... 10 THE COURT: Certainly. 11 MR. KABUSK: The Department does not 12 acknowledge the case of Schneider versus Commonwealth at 13 790 A.2d 363. I am sure the Court is very aware of that. 14 THE COURT: Yes. You mean you don't agree 15 with it? You acknowledge it. It is there. 16 MR. KABUSK: Yes. We acknowledge it, Your 17 Honor. 18 THE COURT: Okay. Good enough. Thank you. 19 (End of proceedings.) 20 21 22 23 24 25 10 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. &"VI 44? Barbara E. Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date Kev Nia A. Hess, J. Judicial District 11 GEORGIANNA BRAUND, (formerly SWANK), Appellee V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU: OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5246 CIVIL TERM LICENSE SUSPENSION APPEAL IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, February 10, 2003, in Courtroom Number 4. APPEARANCES: GEORGE KABUSK, Esquire For the Commonwealth JOHN B. MANCKE, Esquire For the Appellee/Defendant . r..,-, ?'1'It'1 .,? ?; ??`ti? ?: ?: ?? )?; ._ ?. FOR THE PETITIONER Georgianna Braund INDEX TO WITNESSES DIRECT 8 INDEX TO EXHIBITS FOR PENNDOT MARKED Ex. No. 1 - certified driving record 3 FOR THE PETITIONER Ex. No. 1 - court orders 7 Ex. No. 2 - letter dated 11/08/02 9 ADMITTED 4 10 10 2 1 (Whereupon, Commonwealth's Exhibit No. 1 2 was marked for identification.) 3 THE COURT: Good morning. 4 MR. KABUSK: Good morning. This is the case 5 of Georgianna B. Swank versus Commonwealth of Pennsylvania, 6 Department of Transportation, Bureau of Driver License, 7 Case No. 02-5246. This is a license suspension appeal. 8 What's been marked as Commonwealth's Exhibit 9 No. 1 is a packet of documents under seal and 10 certification. I have provided a copy to the petitioner. 11 Sub-Exhibit No. 1 is the notice of 12 suspension at issue. That's official notice of suspension 13 dated and mailed 10/8/02, effective 9/24/02. In that 14 notice dated October 8, 2002, the Department notified the 15 petitioner that as a result of her 7/3/2002 conviction of 16 violating Section 3731 of the Vehicle Code relating to 17 Driving Under the Influence on 12/18/2001 her driving 18 privilege was suspended for a period of one year, effective 19 9/24/2002. Additionally, in that notice the Department 20 informed the petitioner of the requirement for the Ignition 21 Interlock. 22 Sub-Exhibit No. 2 is Report of Clerk of 23 Court of Cumberland convicted 7/3/02. Seal attached to the 24 original. I would direct the Court's attention to 25 sub-Exhibit No. 2, the DL-21 and specifically to box G, 3 1 relating to Act 63, Ignition Interlock required. That box 2 is no has been checked. 3 Additionally, sub-Exhibit No. 3 is driving 4 record which appears in the file of the defendant, 5 Georgianna B. Swank, operators number 19285074, date of 6 birth 7/7/60, in the Bureau of Driver Licensing, 7 Harrisburg, Pennsylvania. 8 I move for the admission of what's been 9 marked Commonwealth's Exhibit No. 1. 10 THE COURT: I assume there is no objection? 11 MR. MANCKE: No objection, Your Honor. 12 MR. KABUSK: And, Your Honor, additionally, 13 as a result of this appeal the Department restored the 14 petitioner pending appeal. Therefore, she is now restored 15 pending on the one year as a result of the conviction for 16 the DUI as well as restored from the Ignition Interlock. 17 THE COURT: That's interesting. I faced 18 that situation before but I never thought to ask about it. 19 That means that she is not, as you just said, she is not 20 serving a suspension for the DUI, the underlying DUI. Is 21 that because it simply becomes administratively impossible 22 for your Department -- 23 MR. KABUSK: No, Your Honor. The Department 24 took the appeal as a license suspension appeal and 25 therefore restored on the one-year suspension. 4 1 THE COURT: Okay. All right. If I enter an 2 order though sustaining the appeal but only with respect to 3 the language that is objected to, what then will the 4 Department do? 5 MR. KABUSK: I think that is what we would 6 want, is in the order that you specifically state that the 7 one year license suspension -- 8 THE COURT: Well, let me interrupt you for a 9 second. What I do in my order is say that the appeal is 10 sustained only insofar as it relates to that language, and 11 then I set it out of the order. 12 MR. KABUSK: Yes. 13 THE COURT: And those orders work for you? 14 MR. KABUSK: I would expect so. I can't 15 guarantee that. 16 THE COURT: Because I am just wondering 17 whether -- because there are many, many of these cases on 18 appeal too. I am assuming they might not even suspend the 19 licenses until this is all sorted out in the appellate 20 courts. Mr. Mancke, do you have anything? 21 MR. MANCKE: Your Honor, here is the 22 difficulty. We have had a court order in a case in Dauphin 23 County where -- and that was specifically directed not to 24 reinstate the client's license pending the appeal because 25 the only issue was the Interlock. And PennDOT would not 5 1 take the license back. Instead returned it to the 2 defendant and said they didn't care what the Court did. 3 We are hopeful in this case, quite frankly, 4 my client wants to put this behind her and would like to 5 get the license back to the Department. 6 THE COURT: At least serve her DUI 7 suspension? 8 MR. MANCKE: And serve the underlying 9 suspension, of which she has already served at least a 10 month of that suspension. So while there are many 11 motorists that are very happy with PennDOT, my client in 12 this particular case would like to serve the remaining part 13 of that suspension. 14 THE COURT: Well, what I would do then at 15 the end of this order is say that the underlying suspension 16 for Driving Under the Influence is reinstated. Okay. We 17 will try that. All right. Very well. Anything else you 18 want to say? 19 MR. MANCKE: Your Honor, just for purposes 20 of utmost clarification, we have a copy of the original 21 sentencing order of court dated September 24th, 2002, as 22 well as another copy of the DL-21, and the order of court 23 dated September 24, 2002, indicating that my client had 24 surrendered her operating license to the Clerk of Courts. 25 THE COURT: Do you want to just maybe staple 6 1 those together and then make them a combined Appellate 2 Exhibit No. 1. 3 MR. MANCKE: The Clerk of Courts had also 4 certified a document dealing with parole, but I am not 5 making that part of the record. And I had shown the 6 certification of these documents that made up Defendant's 7 Exhibit No. 1. And you have those? 8 MR. KABUSK: Yes. 9 THE COURT: I assume there is no objection? 10 (Whereupon, Defendant's Exhibit No. 1 11 was marked for identification.) 12 MR. KABUSK: No objection, Your Honor. 13 MR. MANCKE: And then, Your Honor, just to 14 put my client on to establish the time that she was in 15 prison in case there is any question about credit that 16 PennDOT should give her. Just to establish the dates that 17 she was there and when she got out. 18 THE COURT: Okay. Unless there is 19 agreement? Unless you can do that by stipulation? 20 MR. KABUSK: Your Honor, really, the Court 21 has no jurisdiction in the credit arena, so I would find 22 that that's not relevant to today's proceedings. 23 THE COURT: I don't know whether we do or 24 not. I will take the testimony subject to your objection 25 and certainly without prejudice to the Commonwealth to 7 1 maintain that position. 2 Whereupon, GEORGIANNA B. BRAUND, having 3 been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. MANCKE: 6 Q Will you state your full name, please? 7 A Georgianna B. Braund, B-r-a-u-n-d. 8 Q And your address? 9 A 13 Marshall Drive, Camp Hill, 17011. 10 Q Now, in some of the documents you are 11 referred to as Georgianna Swank and some as Georgianna 12 Braund. Do yo u want to explain that just for the purposes 13 of the record? 14 A I am divorced. I went back to my maiden 15 name. 16 Q And your maiden name is? 17 A Braund. 18 Q And that's what you are currently using, is 19 that correct? 20 A Yes. 21 Q And you have notified PennDOT of that change 22 of name? 23 A Yes, I have. 24 Q We have introduced some documents that 25 indicate the order of court in Cumberland County dated 8 1 September 24th, 2002, at which time you were sentenced for 2 a DUI, is that correct? 3 A Correct. 4 Q And you were sentenced to begin your jail 5 sentence on September 27th, 2002, is that correct? 6 A Correct. 7 Q And how long were you in prison until you 8 were released? 9 A Forty-eight hours. 10 Q So you were released on September 29th, 11 2002? 12 A Correct. 13 (Whereupon, Defendant's Exhibit No. 2 14 was marked for identification.) 15 Q I am going t o show you what has been marked 16 as Defendant's Exhibit No. 2 and ask you whether you can 17 identify that document? 18 A That was the letter that I received 19 restoring my license. 20 Q And that was after you filed the appeal 21 which is the subject of the hearing today? 22 A Correct. 23 MR. MANCKE: That's all I have. 24 THE COURT: Any questions? 25 MR. KABUSK: No, Your Honor. 9 1 THE COURT: Thank you. You can step down. 2 MR. MANCKE: Your Honor, we would move for 3 the admission of our Exhibit No. 1 and Exhibit No. 2. 4 THE COURT: Again, I assume there is no 5 objection, and we will make them part of the record. 6 MR. MANCKE: That's all we have. 7 THE COURT: Unless there is anything 8 further, we can be adjourned. 9 MR. KABUSK: If I may, Your Honor... 10 THE COURT: Certainly. 11 MR. KABUSK: The Department does not 12 acknowledge the case of Schneider versus Commonwealth at 13 790 A.2d 363. I am sure the Court is very aware of that. 14 THE COURT: Yes. You mean you don't agree 15 with it? You acknowledge it. It is there. 16 MR. KABUSK: Yes. We acknowledge it, Your 17 Honor. 18 THE COURT: Okay. Good enough. Thank you. 19 (End of proceedings.) 20 21 22 23 24 25 10 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. r-- Barbara E. Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. IBNs ) 7 Zoo .7 Daee Kev?ft A. Hess, J. Ni th Judicial District 11 b7?,???,y7 ,, 1 ?1? '! ???, "a „ti, ??I ??,? : df ,?;.. A.. __. tg ,fl its ? _ ?_ CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER - - . _- w? . r.. rrTi1T, 1 n21 !I To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: GEORGIANNA B. SWANK VS. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 02-5246 CIVIL TERM 451 CD 2003 The documents comprising the record have been numbered from No. 1 to a3 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4/7/03. Curtis Long, Prot notary i, t, Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed Please sign and date copy, thereby acknowledging receipt of this record. v! 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Q U ?,. w 0 s a a` 71 t Commonwealth Court of Pennsylvania Michael Krimmel Deputy Prothonotary/Chief Clerk TO: RE: Braund v. DOT No.451 CD 2003 May 23, 2007 Trial Court/Agency Dkt. Number: 02-5246 Trial Court/Agency Nam File Copy Irvis Office Building, Room 624 Hanisbure. PA 17120 717-255-1650 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Trial Court Record April 8, 2003 1 Date of Remand of Record: Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed copy to the Prothonotary Office or the Chief Clerk's office. Commo ea Court Filin Office Siqnature Date Printed Name . eJ ?. d IN THE COMMONWEALTH COURT OF PENNSYLVANIA Georgianna Braund V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 451 C.D. 2003 Submitted: July 3, 2003 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE MIRARCHI FILED: January 30, 2004 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Cumberland County that sustained the appeal of Georgianna Braund (Braund)' from the ignition interlock installation requirement imposed by the Department under 42 Pa. C.S. §§7001 - 7003, commonly known as the Ignition Interlock Law (Law), as a condition to restoration of her operating privilege. We affirm. Braund was charged with violating Section 3731 of the Motor Vehicle Code, as amended, 75 Pa. C.S. §3731 (driving under the influence of alcohol or controlled substance (DUI)) on July 4, 1991 and was placed into an Accelerated ' Braund's last name is listed as "Swank" in the Department's records and in her appeal to the trial court. At the hearing before the trial court, Braund stated that her last name had recently been changed from "Swank" due to a divorce. Rehabilitative Disposition (ARD) program on February 14, 1992. On July 3, 2002, Braund was again convicted of committing a DUI offense on December 18, 2001. The sentencing judge did not order Braund to install an approved ignition interlock device under Section 7002(b) of the Law, 42 Pa. C.S. §7002(b).2 On October 8, 2002, the Department notified Braund that as a result of her July 3, 2002 conviction, her operating privilege was suspended for one year effective September 24, 2002, that she must install approved ignition interlock devices on all vehicles she owned to restore her operating privilege after serving the suspension period, and that upon her failure to do so, her operating privilege would remain suspended for an additional year. Braund then filed a timely appeal, contending, inter alia, that the court had the sole authority to impose the ignition interlock requirement under Section 7002(b) of the Law; because the trial court did not impose such requirement in the 2 Sections 7002(b) of the Law provided as follows in relevant part: 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 ignition interlock 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. A licensee's acceptance of ARD is considered a first conviction under Section 7002(b). Section 7002(c). In addition, Section 7003(5), 42 Pa. C.S. §7003(5), provided: "A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 ... 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 ...." 2 4 sentencing order, the Department had no authority to do so in the suspension notice; the Law is unconstitutional because it violates the right to equal protection and procedural due process, and the separation of powers doctrine. After a de novo hearing, at which the Department presented a packet of certified documents showing Braund's DUI convictions and driving record, the trial court denied Braund's appeal from the one-year suspension. The court then sustained her appeal from the ignition interlock installation requirement imposed in the suspension notice, relying on Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002). In Schneider, this Court held that the courts have the sole authority under Section 7002(b) of the Law to impose the ignition interlock requirement, rejecting the Department's contention that it has independent authority to impose the requirement, regardless of whether the sentencing court complied with Section 7002(b) of the Law. The Department's appeal to this Court followed.3 On appeal, the Department reiterates its previous contention rejected in Schneider and contends that Schneider was wrongly decided and should be overruled.4 The Department further contends that although Braund's first conviction of the DUI offense occurred before the effective date of Section 7002(b), September 30, 2000, Section 7002(b) should be still applied to require her 3 This Court's review is limited to determining whether the trial court's findings of fact are supported by competent evidence, or whether the trial court committed an error of law or an abuse of discretion. Frederick v. Department of Transportation, Bureau of Driver Licensing, 802 A.2d 701 (Pa. Cmwlth. 2002). 4 Schneider has been consistently followed in subsequent decisions of this Court. See, e.g., McCrory v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d 506 (Pa. Cmwlth. 2003); Turner v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d 671 (Pa. Cmwlth. 2002). 3 to comply with the ignition interlock requirement.5 In Commonwealth v. Mockaitis, Pa. , 834 A.2d 488 (2003), the Pennsylvania Supreme Court has recently invalidated Sections 7002(b), 7003(1) and 7003(5) of the Law, finding that those sections violated the constitutional doctrine of separation of powers by delegating to the courts the executive responsibility of regulating whether and when repeat DUI offenders are entitled to conditional restoration of their operating privileges. The Court further held that the remaining sections of the Law are severable from the invalidated sections, and that the Law "still requires recidivist DUI offenders seeking restoration of driving privileges to apply to the Department for an ignition interlock restricted license" and "still authorizes the Department to impose an ignition interlock restriction ... at the expiration of one-year mandatory suspension." Id. at , 834 A.2d at 502-3.6 In invalidating those three sections of the Law, however, the Supreme Court in Mockaitis did not directly overrule our holding in Schneider.' In any event, it is unnecessary to consider the Department's first contention regarding its authority under the Law because the instant appeal may be disposed of based on the second issue raised by the Department, i.e., whether the Law may be retroactively applied to Braund to require her to comply with the ignition interlock 5 Section 7002(a) of the Law applicable to a licensee with one DUI conviction became effective on September 30, 2001, and the remaining provisions of the Law became effective on September 30, 2000. 6 Before the Supreme Court's decision in Mockaitis, the Legislature amended the Law, effective September 30, 2003, deleting Section 7003(5) and adding a sentence to Section 7002(b), which provides that the courts' failure to impose the ignition interlock installation requirement "shall not prevent the department from requiring, and the department shall require" installation of such device. 7 The Supreme Court previously issued an order reserving its ruling on the petition for allowance of appeal filed in Schneider pending its disposition of Mockaitis. 4 I requirement.8 A retroactive law is one which relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired. Department of Labor & Industry, Bureau of Employment Security v. Pennsylvania Engineering Corp., 421 A2d. 521 (Pa. Cmwlth. 1980). Section 1926 of the Statutory Construction Act of 1972, 1 Pa. C. S. § 1926, provides that "[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." Under such presumption against a retroactive effect, a statute must be given a prospective effect only unless the statute includes clear language to the contrary. Keystone Coal Mining Corp. v. Workmen's Compensation Appeal Board (Wolfe), 673 A.2d 418 (Pa. Cmwlth. 1996). In Alexander v. Department of Transportation, Bureau of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003), this Court considered the issue of whether the ignition interlock installation requirement under the Law may be applied to the licensee, whose first conviction occurred prior to the effective date of that provision. In rejecting the Department's contention that the Law was still applicable to the licensee, this Court held: The effective date of the provision of the Ignition Interlock Law imposed on Alexander was September 30, 2000, and his conviction on September 5, 2001 was the first conviction recorded after the effective date. If we were to allow the Department to impose the provisions of 8 Due to its reliance on Schneider, the trial court did not consider the Department's contention that the Law may be retroactively applied in this matter. However, we may still affirm the decision of the trial court if the court reached the correct result although it relied on a different ground in reaching the same result. Moorhead v. Crozer Chester Medical Center, 564 Pa. 156, 765 A.2d 786 (2001); Bensing v. Workers' Compensation Appeal Board (James D. Morrissey, Inc. ), 830 A.2d 1075 (Pa. Cmwlth. 2003). 5 Section 7002(b) on Alexander in this case that conviction would clearly have a legal effect different from that which it had under the law in effect when he was convicted. For purposes of the Ignition Interlock Law, Alexander had been convicted of only one offense as of September 5, 2001, and the provisions of Section 7002(b) are inapplicable to him. Id. at 94. As in Alexander, Braund's July 3, 2002 conviction of the DUI offense was her first conviction after the effective date of Section 7002(b). Under Alexander, therefore, the Law may not be retroactively applied to Braund's February 14, 1992 conviction to impose the ignition interlock requirement upon her. The Department nonetheless insists that Alexander was wrongly decided and should be overruled. It is true that a license suspension is not a criminal penalty, but a collateral civil consequence of an underlying criminal conviction. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994), cert. denied, 513 U.S. 884 (1994). Further, driving is characterized as a privilege, not a right. Commonwealth v. Zimmick, 539 Pa. 548, 653 A.2d 1217 (1995). However, such characterizations do not support the retroactive application of the Law. It is well established that a statute, whether criminal or civil, may be retroactively applied if the statute is merely procedural and does not alter any substantive rights. Page's Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975). A substantive right is implicated where the retroactive application of a statute imposes new legal burdens on past transactions or occurrences. Keystone Coal Mining. The retroactive application of the Law would impose upon Braund a new legal burden of compliance with the ignition interlock requirement, which did not exist under the law in effect when she was convicted of the first DUI offense in h T 1992. Where, as here, the Legislature did not so declare, a substantive law should not be construed to be retroactively applicable. Morabito's Auto Sales v. Department of Transportation, 552 Pa. 291, 715 A.2d 384 (1998). Further, the retroactive application of the Law would also implicate due process right concerns. As the United States Supreme Court held: Once licenses are issued, ... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.... This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a `right' or a `privilege.' Bell v. Burson, 402 U.S. 535, 540 (1971) (citations omitted). In Department of Transportation v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000), the Pennsylvania Supreme Court held, relying on Bell, that a person's interest in his or her driver's license is `property,' which a state may not revoke or suspend without satisfying the due process guarantee of the Fourteenth Amendment. Accord Pennsylvania Game Commission v. Marich, 542 Pa. 226, 666 A.2d 253 (1995). Hence, the characterization of driving as a privilege does not permit the retroactive application of the Law. Accordingly, the order of the trial court is affirmed. R -G; CHARLES P. MIRARCHI, JR., Seni Ju ge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Georgianna Braund V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 451 C.D. 2003 ORDER AND NOW, this 30th day of January, 2004, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is affirmed. CHARLES P. MIRARCHI, JR., Seni Ju ge - t "T7 N) '1 ) r r" fJ-I .7 Co '< oz SzUb e Supreme Court of Pennsylvania Irene M. Bizzoso Middle District DeputyProthonotuy May 1, 2007 Norina K. Blynn y Chief Clerk Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Georgianna Braund, Respondent P.O. Box 624 Harrisbure. PA 17108 717-787-6181 www.aopc.org v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Petitioner Commonwealth Docket Number - 451 CD 2003 Trial Court/Agency Dkt. Number: 02-5246 No. 162 MAL 2004 Appeal Docket No.: Date Petition for Allowance of Appeal Filed: February 26, 2004 Disposition: PAA Granted - Summary Disposition Date: May 1, 2007 Rea rg u ment/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /eez A -. IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT Respondent GEORGIANNA BRAUND, : No. 162 MAL 2004 Petition for Allowance of Appeal from the Order of the Commonwealth Court entered January 30, 2004 at No. 451 CD 2003, affirming the Order of the Court of Common Pleas of Cumberland County entered February 10, 2003 at No. 02- 5246. V. COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Petitioner PER CURIAM DECIDED: May 1, 2007 The Petition for Allowance of Appeal is GRANTED, and the order of the Commonwealth Court is REVERSED pursuant to Alexander v. PennDOT, 880 A.2d 552 (Pa. 2005). Jurisdiction relinquished. JUDGMENT ENTERED: May 1 & ? ?! ??C' ? , 20p7 L vL-~ Nori K. Blynn, Chie -Clerk ORDER t--.) co