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HomeMy WebLinkAbout02-5406JOHN B. RICHWINE, : IN THE COURT OF COMMON PLEAS OF Appellant, : CUMBERLAND COUNTY, PENNSYLVANIA vs. No. 02 - CIVIL TERM COMMONWEALTH OF PENNSYLVANIA rye DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee PETITION FOR APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENT_ 1 Appellant herein is John B. Richwine, residing at and having a mailing address of: 932 Emily Drive, Mechanicsburg, Cumberland County, PA 17055. 2. Appellee herein is the Department of Transportation of the Commonwealth of Pennsylvania, having a mailing address of : Department of Transportation, Bureau of Driver Licensing, Harrisburg, Pennsylvania 17123. 3. By letter or notice dated October 24, 2002, a copy of which is attached hereto as Exhibit A, the Department of Transportation suspended Appellant's operating privileges as a result of his conviction for DUI and sua sponte imposed ignition interlock requirements. 4. Imposition of ignition interlock requirements is unlawful in that it was done by PennDOT without legal authority and in the absence of imposition of those requirements by this Court. VERIFICATION I verify that the statements made in this Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. Date John B. Richwine q:3D COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 24, 2002 JOHN BRADLEY RICHWINE WID # 022906114644702 001 932 EMILY DRIVE PROCESSING DATE 1011712002 DRIVER LICENSE # 19846429 MECHANICSBURG PA 17055 DATE OF BIRTH 11/06/1961 LICENSE IN BUREAU Dear MR. RICHWINE: 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 08/20/20012 conviction of violating Section 3731 of the Vehicle Code DRIVING UNDER INFLUENCE on 02/06/2002: • Your driving privilege is SUSPENDED for a Period of 1 YEAR(S) effective 04/16/2003 at 12:01 a.m. ??e*??***?*e****?*?*****?*?****geeExe?????*??*?**?eE*?ee???eEe¦ I WARNING: If you are convicted of driving while your I I license is suspended/revoked the penalties will be a I I MINIMUM of 90 days imprisonment AND a $1,000 fine AND I I your driving privilege will be suspended/revoked for I I a MINIMUM 1 year period eE??e***??**?*?***??eE?***e???****eE?****?????¦*?eE?**e??*???*? This suspension is in addition to any other suspensions already on your record. PRISON RELEASE REQUIREMENT (ACT151) The Court of CUMBERLAND CTY, Court Number 011040, Court Term 2002 has sentenced you to serve a prison term for this violation. Pursuant to Section 1541(a.l) 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. 022906114644702 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. 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. 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 24, 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. Bic:kley, Director Bureau of Driver Licensing 022906114644702 INFORMATION 7:00 a.m. to 9.00 p.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 717-391-6191 WEB SITE ADDRESS www.dot.state.pa.us JOHN B. RICHWINE, Appellant, vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02 - 5-;O? CIVIL TERM ORDER OF COURT AND NOW, this /0 day of _2 tz& , 2002, based upon Appellant's Appeal, a hearing shall be held on the /0-4 day of °w at /6;& ' m. in Courtroom No. of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, 'or 411 J. 4 '? ^ O `_ V ??i4 L + ?? iJ ?7 ?, :t; ?i 1 ?iV?? t :.? ,, !?._ -', JOHN RICHWINE, Appellant, vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02 -,fg4CIVIL TERM AFFIDAVIT OF SERVICE I hereby certify that I served a true and correct copy of the Petition For Appeal From Imposition of Ignition Interlock Requirements filed in the above captioned case upon Pennsylvania Department of Transportation, by certified mail, return receipt requested on November 7, 2002 addressed to: Pennsylvania Department of Transportation Office Chief of Chief Counsel 3rd Floor Riverfront Office Center Harrisburg, PA 17104-2516 and did thereafter receive same as evidenced by the attached Post Office receipt card dated November 12, 2002. 1 VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING AFFIDAVIT OF SERVICE ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF, I UNDERSTAND THAT FALSE STATEMENTS HEREIN MADE ARE SUBJECT TO THE PENALTIES OF 18 PA.C.S. SECTION 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. TURO LAW OFFICES Date I Ro ert ulderig, Es ire 28 Sou h Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Appellant t71 zr c r- Postage ru CO Certified Fee ru Return Receipt Fee Cr (Endorsement Required) O O Restricted Delivery Fee C3 (Endorsement Required) O Total Postage a Feea .-1 rv J Ln LAP?t?No-; G p -1? i SENDER: • p Dome ee ite@s 1 3rd/or 2 for additional services. Co a ite s 3, 4a, and 4b. 3 Print your rialift and address on the reverse of this form so that we can return this card to you. ` t3 Attach this form to the from of the mailpiece, or on the back it apace does not permit. E3 Write ectum Receipt willlshow to whom the article was delivered and the date I also %. "'Ao rra -*tve the logow- ing services (for an extra fee): 1. ? Addressee's Address 2. ? Restricted Delivery 3. Article Addressed to: 7001 2510 go09 2827 8479 (?? - A 4b. Service Type ifi d 1 e egistered (?ert Express Mail ? Insured JY ?0 iy - -„ Return Receipt for Merchandise ? COD , ry ?JU/1/ U?L?JdililCJ? ono 1 ransportatlon -- 5. Received By: (Print Name) NOV 6. Signature (Addressee or Agent) ?, nFFICE G' PS Form 3x11, December 1994 Vehicle & Y U c`> c__ v ?-A, ?._, J ?.7: ?i'? }- `- r\ LJ ?` ? I. L '. ?' JOHN RICHWINE, Appellant VS. COM. OF PENNSYLVANIA, DEPT. OF TRANS., BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5406 CIVIL CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL ORDER AND NOW, this 1 3 ` day of February, 2003, the ,appeal of John Richwine is SUSTAINED with respect to that portion of his 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. PA, Dept. of Transp., Bureau of Driver Licensing, 11513 C.D. 2.001 (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, Kevi . Hess, J. Ll Nn, nr, , , Robert J. Mulderig, Esquire For the Appellant George Kabusk, Esquire For PennDOT 9-1 :rlm 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 RICHWINE, Appellee : } VS. : } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-5406 Civil Term Notice of Ameal 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 13, 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 r- 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 RICHWINE, Appellee } IN THE COURT OF COMMON PLEAS OF' CUMBERLAND COUNTY, PA } VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO. 02-5406 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 Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 PYS510 Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry 2002-05406 RICHWINE JOHN B (vs) PENNSYLVANIA COMMONWEALT OF Reference No..: Filed........: 11/07/2002 Case Type.....: APPEAL - LICENSE SUSP Time.........: 12:25 Judgment...... .00 Execution Date 0/0070000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info RICHWINE JOHN B APPELLANT MULDERIG ROBERT J 932 EMILY DRIVE MECHANNICSBURG PA 17055 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPT OF TRANS OFFICE OF CHIEF COUNSEL 3RD FL RIVERFRONT OFFICE CT HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY- - - - - - - - - - - - - - - 11/07/2002 APPEAL FROM SUSPENSION OF DRIVERS LICENSE -----------------------------------=------------------------------- 11/14/2002 ORDER OF COURT - DATED 11/14/02 - IN F'E APPEAL - HEARING SHALL BE HELD ON 2/10/03 AT 10:30 AM IN CR 4 OF' THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- 11/18/2002 AFFIDAVIT OF SERVICE FOR PETITION FOR APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS - BY ROBERT J MULDERIG ESQ ------------------------------------------------------------------- 2/13/2003 ORDER - DATED 2/13/03 - THE APPEAL OF JOHN RICHWINE IS SUSTAINED WITH RESPECT TO THAT PORTION OF HIS 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 - THE APPEAL WITH REGARD TO THE REMAINING PROVISIONS OF THE DRIVER'S LICENSE SUSPENSION IS DENIED AND SAID SUSPENSION IS REINSTATED - BY KEVIN A HESS J - COPIES MAILED 2/13/03 - - - - - - - - - - - - - - LAST ENTRY.' - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Be Bal Py*mts/Adl End Bal APPEAL LIC SUSP 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 ----- ------------ -------------- 55.50 ----- 55.50 .00 * End of Case Information 3RD TRUE COPY FROM RE? y ppg y+, '$?,q, y47M '? ' yvr i?'?'j? ,Y 4 9:zmY d.iE 't my R+ ?i B6? d?p 3aft?, s t -a ?„ iS teYs.? ?Vb 3 ! :k1i.? " i ale 6r(Arlta, 6 4. 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 RICHWINE, } IN THE COURT OF COMMON PLEAS Appellee OF CUMBERLAND COUNTY, PA } VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO. 02-5406 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 Robert J. Mulderig, Esquire Cumberland County Courthouse Cumberland County Courthouse Att. for Appellee Richwine 1 Courthouse Square 1 Courthouse Square 28 South Pitt Street Carlisle, PA 17013 Carlisle, PA 17013 Carlisle, PA 17013 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: February 24, 2003 ? w JOHN RICHWINE, Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU: OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-5406 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 PennDOT ROBERT J. MULDERIG, Esquire For the Appellant ?r"I1V41?5??i???'#Iti?? ?1.t?1?1"?? z ,???°., ? ;;?.??? u I ,. ? ?' ?,#.? 4. y,: %;? ?;? INDEX OF EXHIBITS FOR PENNDOT MARKED ADMITTED Ex. No. 1 - certified driving record 1 (Whereupon, Commonwealth's Exhibit No. 1 2 was marked for identification.) 3 THE COURT: Good morning. 4 MR. KABUSK: Good morning, Your Honor. This 5 is the case of John B. Richwine versus Commonwealth of 6 Pennsylvania, Department of Transportation, Case No. 7 02-5406. 8 What has been marked as Commonwealth 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 official notice of 12 suspension dated and mailed 10/24/02, effective 4/16/03. 13 In that notice the Department notified the petitioner that 14 as a result of his 8/20/2002 conviction of violating 15 Section 3731 of the Vehicle Code relating to Driving Under 16 the Influence on 2/6/2002 his driving privilege was 17 suspended for a period of one year. Additionally, that 18 notice informed the petitioner of the requirement for the 19 Ignition Interlock. 20 Sub-Exhibit No. 2 is an acknowledgment of 21 suspension. Sub-Exhibit No. 3 is Report of Clerk of Court 22 of Cumberland County, convicted 8/20/02. Seal attached to 23 the original. I would direct the Court's attention to Box 24 G, and the box no has been checked underneath the heading 25 Act 63 Ignition Interlock required. 3 1 Sub-Exhibit 4 is official notice of 2 suspension dated and mailed 3/12/02, effective 4/16/02. 3 Sub-Exhibit 5 is report of chemical test refusal. 4 And Sub-Exhibit No. 6 is driving record, 5 which appears in the file of the defendant, John Bradley 6 Richwine, operators number 19846429, date of birth 11/6/61, 7 in the Bureau of Driver Licensing, Harrisburg, 8 Pennsylvania. 9 I move for the admission of what's been 10 marked Commonwealth's Exhibit No. 1. 11 MR. MULDERIG: No objection. 12 THE COURT: It is admitted. 13 MR. KABUSK: By way of further information, 14 Your Honor, the petitioner is currently suspended for the 15 one-year suspension as a result of the refusal. The 16 Department did take the petition and has restored the 17 petitioner on the one-year suspension for the Section 3731. 18 I believe, and I don't want to speak out of turn -- 19 MR. MULDERIG: Your Honor, all I appealed 20 was the interlock. And I think that's clear from my 21 petition. And I realize that we are not here to talk about 22 that suspension. 23 THE COURT: But we just had this discussion 24 in another case this morning. And it is interesting that 25 apparently when there is an appeal, even though it is clear 4 1 from the face of it, but it is limited to the interlock 2 language, the Department nonetheless treats it as an appeal 3 of all of the underlying suspension. 4 Now, I normally put that they are authorized 5 to reinstate the existing suspension for DUI. Is that your 6 request? 7 MR. MULDERIG: Yes. Well, it is not my 8 request, but I have no objection to it. 9 THE COURT: We will see what they do about 10 it. Anything you want to add, Mr. Mulderig? 11 MR. MULDERIG: No, Your Honor. I think it 12 is clear. 13 THE COURT: I will enter the usual order. 14 Thank you. 15 (End of proceedings.) 16 17 18 19 20 21 22 23 24 25 5 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. 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. /?'tGA.. G ZWO3 ? f Date Ke n A. Hess, J. nth Judicial District 6 GEORGIANNA BRAUND IN THE COURT OF COMMON PLEAS OF (formerly SWANK), CUMBERLAND COUNTY, PENNSYLVANIA Petitioner 02-5246 CIVIL vs. CIVIL ACTION - LAW COM. OF PA., DEPT. OF TRANS. BUREAU OF DRIVER LICENSING, Respondent LICENSE SUSPENSION APPEAL RANDALL CARL VATHIS, Petitioner vs. COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent JOHN RICHWINE, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 02-5289 CIVIL CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 02-5406 CIVIL V COM. OF PENNSYLVANIA, CIVIL ACTION -LAW DEPT. OF TRANS., BUREAU OF DRIVER LICENSING, Respondent LICENSE SUSPENSION APPEAL MICHAEL J. HEIN, Petitioner vs. COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5000 CIVIL CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL op, a ? c , VI A { s ` f 6 P i ^?t^ Y] 4ti.: IN RE: OPINION PURSUANT TO RULE 1925 An appeal is pending in the Commonwealth Court with respect to all four of the above captioned matters. They are all cases in which the petitioner received a notice that as a result of a conviction for driving under the influence, the petitioner's driving privileges would be suspended for a period of one year. In addition, the notice indicated that, before driving privileges could be restored, there had to be compliance with a requirement that all vehicles owned by the petitioner be equipped with an ignition interlock system. In all of the cases, we entered an order sustaining the petitioner's appeal with respect to that portion of his or 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. Transp., Bureau of Driver Licensing, 790 A.2d 363 (Pa.Cmwlth. 2002). In that case, the Commonwealth Court was presented with the same situation that pertains in the matters sub judice. Namely, though the sentencing court failed to impose an ignition interlock requirement, PennDOT has sought to impose the requirement absent a court order. In Sc`, the court held expressly that PennDOT has no unilateral authority to impose ignition interlock device Our orders were entered in accordance with Albert Schneider v. Com. of Pa.,-Dept. of requirements if the trial court fails to do so. It was because of this express holding that we entered our orders in the above cases. March 28, 2003 John Mancke, Esquire For Petitioner Braund Austin Grogan, Esquire For Petition Vathis Robert Mulderig, Esquire For Petitioners Richwine and Hein Terrance M. Edwards, Esquire For PennDOT Kevin Hess, J. 3--2JI43 Am Commonwealth Court of Pennsylvania Michael Krimmel Deputy Prothonotary/Chief Cleri, May 23, 2007 Certificate of Remittal/Remand of Record TO: RE: Richwine v. DOT No.436 CD 2003 File Copy Irvis Office Building, Room 624 Harrisbure. PA 17120 717-255-1650 Trial Court/Agency Dkt. Number: 02-5406 Trial Court/Agency Name: Intermediate Appellate Court Number: 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 3, 2003 one Date of Remand of Record: 5/23/2007 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Signature Date Printed Name 7 9V Q1 t IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Richwine V. No. 436 C.D. 2003 Submitted: June 6, 2003 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: August 15, 2003 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from a decision of the Court of Common Pleas of Cumberland County (trial court) which removed the provision regarding the ignition interlock system from John B. Richwine's (Licensee) Notice of Suspension.' We affirm. Licensee was convicted of driving under the influence of alcohol (DUI) a total of four times. The most recent conviction occurred on August 20, 2002. At Licensee's criminal proceeding, the trial court apparently did not order that Licensee install the ignition interlock device on the vehicles owned by him upon the restoration of his driving privileges. By notice dated October 24, 2002, ' An "ignition interlock system" is "[a] system approved by the department that prevents a vehicle from being started or operated unless the operator first provides a breath sample indicating that the operator has an alcohol level of less than .025%." 42 Pa. C.S. § 7001. DOT informed Licensee that his driving privileges were being suspended for one year effective April 16, 2003. Additionally, the notice also contained the following information regarding the ignition interlock system: 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. Licensee appealed DOT's action to the trial court, which issued an order dated February 13, 2003 sustaining Licensee's appeal with respect to that portion of his driver's license suspension referencing the ignition interlock device and vacating that provision of Licensee's suspension.2 In support of its decision, the trial court cited our recent decision in Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002). This appeal followed.' Thereafter, pursuant to Pa. R.A.P. 1925(a), the trial court issued an opinion in support of its order explaining that, pursuant to Schneider, 2 The trial court also denied Licensee's appeal with regard to the remaining provisions of his driver's license suspension and reinstated the suspension. 3 Our scope of review is limited to determining whether the trial court's findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court's determinations demonstrate a manifest abuse of discretion. Mazza v. Dgpartment of Transportation Bureau of Driver Licensing, 692 A.2d 251 (Pa. Cmwlth. 1997). 2 DOT has no unilateral authority to impose the ignition interlock device requirement if the trial court fails to do so. On appeal, DOT argues that Section 7003 of the Ignition Interlock Device Act (Act)' vests it with the independent authority to ensure compliance with the Act regardless of the existence of a trial court order mandating the installation of an ignition interlock device. DOT also states that the trial court refused to comply with Section 7002(b) and order that Licensee install an ignition interlock device. In its brief, DOT explains that the criminal trial courts of the Court of Common Pleas of Cumberland County have not been ordering DUI defendants to comply with the Ignition Interlock Law since that court, sitting en Banc, found provisions of the Ignition Interlock Law to be unconstitutional. See Commonwealth v. Mockaitis, 54 Pa. D. & C.4th 115 (2001).5 a 42 Pa. C.S. §§ 7001-7003. 5 Sections 7002 and 7003 of the Act provide, in relevant part, that: § 7002. Ignition interlock systems for driving under the influence (b) Second or subsequent offense.--In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. § 3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. § 7003. Additional driver's license restoration requirements (Footnote continued on next page...) 3 (continued...) In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. § 1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system. (2) A person seeking restoration of operating` privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. § 1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. § 1951(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privileis 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. §§ 7002 and 7003 (emphasis added). 4 In Schneider, this Court held that: "PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so. If the trial court fails to impose this requirement in a criminal proceeding, the district attorney can appeal the trial court's failure to do so as it would if the trial court failed to impose any other mandatory sentence." Id., 790 A.2d at 366- 367 (emphasis added). In its brief, DOT concedes that the Schneider case is controlling here and states that it filed this appeal to preserve this issue for further appeal to the Pennsylvania Supreme Court, which has not yet addressed this issue. In Sloan v. Department of Transportation, Bureau of Driver Licensing, 822 A.2d 105(Pa. Cmwlth. 2003), this Court, sitting en banc, considered and rejected DOT's argument and held that it does not have the power to impose the ignition interlock requirement. Thus, the trial court did not err by ordering that the provision regarding the interlock system be removed as a condition from the restoration of Licensee's license.' Accordingly, the order of the trial court is affirmed. J FLAHERTY, Sene Judge 6 DOT also argues that our decision in Alexander v. Department of Transportation, Bureau of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003) was wrongly decided. In that case, we held that the Ignition Interlock Law, which mandates the installation of the ignition interlock device upon the second or subsequent DUI conviction, did not apply to Alexander because two of his three DUI convictions occurred before effective date of Section 7002(b). DOT argues that the holding in that case should not be applied to the case now before this Court to preclude the Ignition Interlock Law from applying to Licensee, who had three DUI convictions before the effective date of the Ignition Interlock Law. Although there is nothing in the record to indicate that this was the reason why the trial court did not mandate the imposition of the ignition interlock device at Licensee's criminal proceeding, we note that after DOT filed its brief in this case this Court denied its Application for Reconsideration in the Alexander case by order dated May 20, 2003. Accordingly, we will not address this issue further. 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Richwine : V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 436 C.D. 2003 (.il .a ...1-.. !-i CJl .- ORDER Co AND NOW, August 15, 2003 , the order of the Court of Common Pleas of Cumberland County docketed at 02-5406 Civil and dated February 13, 2003 is hereby AFFIRMED. ". ? 2 " - JI LAHE Y, Senior Ju e Irene M. Bizzoso Deputy Prothonotary Norina K. Blynn Chief Clerk Supreme Court of Pennsylvania Middle District May 1, 2007 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: John Richwine, Respondent G2-9406 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 - 436 CD 2003 Trial Court/Agency Dkt. Number: 02-5406 No. 658 MAL 2003 Appeal Docket No.: Date Petition for Allowance of Appeal Filed: September 9, 2003 Disposition: PAA Granted - Summary Disposition Date: May 1, 2007 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /eez • '-* IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT JOHN RICHWINE, Respondent V. COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Petitioner No. 658 MAL 2003 Petition for Allowance of Appeal from the Order of the Commonwealth Court entered August 15, 2003 at No. 436 CD 2003, affirming the Order of the Court of Common Pleas of Cumberland County entered February 13, 2003 at No. 02- 5406. ORDER 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 McGrory v. PennDOT, 915 A.2d 1115 (Pa. 2007). Jurisdiction relinquished. JUDGMENT ENTERED: May 1, 2007 Nori K. Blynn, Chi Clerk r-? ?+ `?•? tom, ??` ???y} ?...? ?? J ?+ ' 1 1? P, ??