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Home My WebLink About00-02142 ( IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Andrew Vogelsang, Appellant v. , No. 2019 C.D. 2000 Subrrritted:January 12,2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: July 31, 2001 Appellant, John Andrew Vogelsang, was convicted of Driving While Ability Impaired (DWAIY in New York on January 14,2000. The Pennsylvania Department of Transportation (Department) suspended his operating privilege for a period of one year pursuant to the Driver's License Compact (Compact), 75 Pa. C.S. 9 1581, Article IV(a)(2). Vogelsang filed a statutory appeal which, following a hearing, was disrrrissed by the Court of Common Pleas of Cumberland County. This appeal followed. On appeal, Vogelsang argues that the New York report of his DWAI conviction failed to comply with the technical reporting requirements of Article m2 1 N,y' Veh. & Traf. Law S 1192. 275 Pa. C.S. S 1581, Art. III. .-- - 1-' 'I of the Compact because it described the conviction simply as "DRVG WHILE IMP AIRED" but did not include a statutory citation for the offense. This argument has been rejected by our Supreme Court in a series of recent cases. See Crooks v. Department of Transp., Bureau of Driver Licensing, _ Pa. _, 768 A.2d 1106 (2001); Harrington v. Department of Transp., Bureau of Driver Licensing, 563 Pa. 565, 763 A.2d 386 (2000); Department of Transp. v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000). Vogelsang further asserts that the trial court improperly admitted the New York report of his DWAI conviction into evidence because the report was submitted to the Department electronically, and was not certified by New York's Department of Motor Vehicles. We disagree. Section 1550(d)(1) of the Vehicle Code, 75 Pa. C.S. S 1550(d)(1), relaxed the certification requirements imposed by Section 5328(a) of the Uniform Interstate and International Procedure Act, 42 Pa. C.S. S 5328(a), so that the Department can treat out-of-state conviction reports as its own documents in accordance with 42 Pa. C.S. S 6103. See Koterba v. Department of Transp., Bureau of Driver Licensing, 736 A.2d 761 (Pa. Cmwlth. 1999); Mackall v. Department of Transp., Bureau of Driver Licensing, 680 A.2d 31 (Pa. Cmwlth. 1996). Thus, the trial court properly admitted the New York report of Vogelsang's DWAI conviction. Vogelsang also argues that New York's DWAI offense is not substantially similar to Article IV(a)(2) of the Compact. This argument was recently rejected by this court in Squire v. Department of Transportation, Bureau of Driver Licensing, 769 A.2d 1224 (Pa. Cmwlth. 2001). Vogelsang next contends that the amendments to Sections 1584 and 1586, 75 Pa. C.S. SS 1584 and 1586, respectively, are unlawful unilateral 2 =.~_~_ ~. ,.."J _, _~ "1o_,..~,,~_,.J!I!l~~lliI!" ~--- 1Mn~~~~~">Ii-P~jl'li,;:'''"''l''fBimWI@ffiH1~!I1-'":II~0r!'W';l;~''\(~1i"~WR!~1j:j!l''m:1W~>;~nl" < '~l " amendments to the Compact. This argument has been repeatedly rejected. See, e.g., Crytzer v. Department afTransp., Bureau af Driver Licensing, 770 A.2d 820, 823-24 (Pa. Cmwlth. 2001); Harvath v. Department af Transp., Bureau af Driver Licensing, _A.2d_ (Pa. Cmwlth., No. 1808 C.D. 2000, filed April 4, 2001); Zalewski v. Department af Transp., Bureau af Driver Licensing, 767 A.2d 19, 24- 25 (Pa. Cmwlth. 2001); Renna v. Department af Transp., Bureau af Driver Licensing, 762 A.2d 785, 788 n.12 (Pa. Cmwlth. 2000). Vogelsang also asserts that Sections 1584 and 1586, as amended, violate his due process rights under both the United States and Pennsylvania Constitutions. These constitutional issues were not raised before common pleas and, therefore, are waived.3 See Halland v. Department af Transp., Bureau af Driver Licensing, 656 A.2d 178 (Pa. Cmwlth. 1995); Pa. RAP. 302(a). Finally, Vogelsang argues that the Department's record must show that the New York report of Vogelsang's DWAI conviction originated from the New York Department of Motor Vehicles in order to be admissible. This issue was also not raised before common pleas, and as a result, it is waived. Id. Accordingly, we affirm the court of common pleas. BONNIE BRIGANCE LEADBETTER, Judge 3 We note that even if Vogelsang had preserved his due process arguments, this court has recently rejected them in Horvath v. Department of Transportation, Bureau of Driver Licensing, _A.2d_ (Pa. Cmwlth., No. 1808 C.D. 2000, filed April 4, 2001). 3 c:__~ ,~~,~ ~ I' *1 ," "* "". -~, . ;." 1,~" -,' 0'" ,~ L I~lljli ! ~T~IIIi"' IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Andrew Vogelsang, Appellant J/ DO-2-l!t-{p ~ v. No. 2019 C.D. 2000 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this 31st day of July, 2001, the order of the Court of Common Pleas of Cumberland County in the above captioned matter is hereby AFFIRMED. ~.>d.~Dd- BONNIE BRIGANCE LEADBETTER, Judge C) q c~ ? ri?l ~~ -?'--, . zt_., U) "_' -------- ~-- h~:~ ~~ ? :':-1 -< ,n rn "V \',,) _1 :~:: "-;('; 7;1 -. \ (.....'"' .:.:::; '~r-::.. :~~~! """-. 11_", . -, ".~-,_.~ . ,'~"_'7'" _.,_F ....T I" ~""_,,m~~:r.J:~m,w<i"'l'j~-'W!lmrm;;~~!l!t!~liii!~N$JWO!~f!Vi'!!iM!ili~fI!lI~fl!~l1iJWlWt,-J.) .'" '-1 ~, -~"""""''''''.' --', . ,<'-*~~~ - !' -- r-'" I . COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 VOICE: (717)787-2830 TELEFAX: (717) 705-1122 TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section December 6, 2000 Mr. C.R. Hostutler, Chief Clerk Commonwealth Court of Penn sylvania Sixth Floor, South Office Building Harrisburg, Pennsylvania 1 71 08 J-,c ("-.) ~'\':J ',0'" ',. ."."\ t!~ "':.' ,(,,,. 0.') Re: John Vogelsang v. Department of Transportation, Bureau of Driver Licensing Commonwealth Court Docket Number 2019 C.D. 2000 Dear Mr. Hostutler: Please find enclosed the original record in the above-entitled appeal that the Department of Transportation, Vehicle & Traffic Law Division is returning to the Court. Please time-stamp a copy of this transmittal letter to indicate the Court's receipt of this original record. Thank you for your courtesy and consideration in this matter. f)y{.& TIMOTHYP. WILE Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division TPW/dmb Encl: Original Record PennDOT People. . . We Are Making A Difference! < , ~:10 P.M. Commonwealth Docket Sheet Docket Number: 2019 CD 2000 Page 1 of 3 October 4, 2000 Commonwealth Court of Pennsylvania - John Andrew Vogelsang, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: Journal Number: Case Category: August31,2000 Awaiting Original Record Civil CaseType: Driver's License Suspension Related Docket Nos.: Consolidated Docket Nos.: SCHEDULED EVENT Next Event Due Date: October 10, 2000 Next Event Type: Original Record Received Next Event Type: Original Record Received Next Event Due Date: October 10, 2000 Appellant Pro Se: IFP Status: Attorney: BarNo.: Address: COUNSEL INFORMATION Vogelsang, John Andrew Appoint Counsel Status: Orr, Paul Bradford 71786 50 E High Street Carlisle, PA 17013 Phone No,: (717)258-8558 Receive Mail: Yes Law Firm: Orr, Paul, Law Offices of Fax No.: (717)243-0061 Appellee Pro Se: IFP Status: Attorney: Bar No.: Address: 01/10/00 " ~- Bureau of Driver Licensing Appoint Counsel Status: Cramer, Harold 04390 Riverfront Office Center 1101 S. Front Street 3rd Floor Harrisburg, PA 17104-2515 Phone No.: (717)787-2830 Law Firm: Fax No.: 5001/4040 , . 1 '~ , , bOP.M, Commonwealth Docket Sheet Docket Number: 2019 CD 2000 Page 2 of 3 October 4, 2000 Commonwealth Court of Pennsylvania - Receive Mail: Yes FEE INFORMATION Receipt No.: TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: August 3, 2000 Date Documents Received: September 5, 2000 Division: Civil Judicial District: 9 Date Notice of Appeal Flied: August 31,2000 Order Type: Order Judgec Oler, J. Wesley Judge Lower Court Docket No.: 00-2146 ORIGINAL RECORD CONTENTS Original Record Item Flied Date Content/Description Date of Remand of Record: BRIEFING SCHEDULE Flied Date Docket Entry/Document Name DOCKET ENTRIES Party Type Flied By August 31 , 2000 Notice of Appeal Filed Notice of Appeal September 7, 2000 Notice of Docketing Appeal Exited Commonwealth Court Filing Office September 15, 2000 Docketing Statement Filed Appellant Vogelsang, John Andrew 01/10/00 5001/4040 i-. ~" - bo P.M~ Commonwealth Docket Sheet Docket Number: 2019 CD 2000 Page 3 of 3 October 4, 2000 Commonwealth Court of Pennsylvania '* SESSION INFORMATION Journal Number: Consideration Type: Date listed/Submitted: REARGUMENT/RECONSIDERA TION/REMITT AL Reargument/Reconsideration Filed Date: Reargument Disposition: Record Remitted: Date: 01/10/00 5001/4040 -, I' - i ',~a" ........ J) ;;,' ,~. CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYL VANIA RULE OF APPELLATE PROCEDURE 1931 (C) 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 RAP. 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: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION (") r'jO ::;.,:'(;:0 . I-till .'~~,:;Mn ~'\,']:~~ I .:':~ ;'~'rt...c: ".,.,,.,, r ~~;:;p.o .-;:::r-!"\'o x t,,'.""f:i'i .Y :.:;::t:-., ,,;:~ 0;::: TY :i--om The documents comprising the record have been numbered from No. 1 t05~ ' ~d6o attached hereto, as Exhibit A is a list of the documents correspondingly numb'ered and'" identified with reasonable defmiteness, including with respect to each document, the number of pages comprising the document. VB ~ <::) ...., -; JOHN ANDREW VOGELSANG 2000-2146 CIVIL TERM 2019 CD 2000 The date on which the record has been transmitted to the Appellate Court is 9-28-00 An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowled2in2 receipt of this record. Received in Superior Court Date Signature & Title SEP 2 9 2000 MIDDLE ~~ ~ . I, o iD CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) 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 RAP. 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: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION vs JOHN ANDREW VOGELSANG 2000-2146 CIVIL TERM 2019 CD 2000 The documents comprising the record have been numbered from No.1 t059 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable defmiteness, 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 9-28-00 " " , ';' I ::i "I i j i I j i , i --,. An additional copy ohms certificate is enclosed. Please si2n and date copy, thereby acknowleds;n2 receipt of this record. Date Signature & Title o I II C) Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND 2019 CD 2000 2000-2146 Civil Term Term 19 to No. COpy OF COMPLETE APPEARANCE , COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION vs JOHN ANDREW VOGELSANG SEE ATTACHED CERTIFIED DOCKET ENTRIES. in the Commonwealth of Pennsylvania is contained the following: DOCKET ENTRY , j i I i , 1 I i 1 , i I l I I I , , I I I 2 - 9 1 10 o 0 PYS510 Cumberland County Prothonotary's office Civil Case Inquiry 200002146 PENNSYLVANIA COMMONWEALTH OF (vs) VOGELSANG JOHN ANDREW Page 1 Reference No..: Case Type.....: APPEAL - LICENSE SUSP Judgment.. ....: .00 Judge Assigned: Disposed Desc.: .------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial.... Disposed Date. Higher Crt 1.; Higher Crt 2.: 4/07/2000 3:59 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION RIVERTFRONT OFFICE CENTER HARRISBURG PA 17104 2516 VOGELSANG JOHN ANDREW 44 WINCHESTER GARDENS CARLISLE PA 17013 APPELLEE APPELLANT ORR PAUL BRADFORD ******************************************************************************** * Date Entries * ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 4/07/2000 PETITION APPEAL FROM SUSPENSION OF DRIVERS LICENSE --~-------~-------------------------------------------------------- 4/12/2000 ORDER OF COURT - DATED 4/11/00 - IN RE PETITION FOR APPEAL FROM ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATOR'S LICENSE - HEARING ON 6/26/00 AT 2:45 PM CR 1 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA BY J WESLEY OLER JR J COPIES MAILED 4/12/00 ------------------------------------------------------------------- 6/27/2000 ORDER OF COURT - DATED 6/26/00 - IN RE MATTER TAKEN UNDER ADVISMENT - STENOGRAPHER IS REOUESTED TO PREPARE AND FILE A TRANSCRIPT OF TESTIMONY OF TODAYS PROCEEDING - BY THE COURT J WESLEY OLER JR J COPIES MAILED 6/27/00 11- 23 6/29/2000 24 8/04/2000 25 - 27 8131/2000 29 - 37 9/01/2000 38 - 39 9/07/2000 28 9/08/2000 I Ii Ii I' 1 I! ~ I I c- " i I I I I I " I I !i II I " i! I I , I' Ii Ii , I, _ 40 - 41 42 43 - 55 56 - 59 ~ " 9/08/2000 9/13/2000 9/21/2000 9/25/2000 TRANSCRIPT FILED ------------------------------------------------------------------- ORDER OF COURT - DATED 8/3/00 - IN RE APPELLANTS PETITION FOR APPEAL FROM ORDER OF DEPARTMENT OF TRANSOPORTATION SUSPENDING OPERATORS LICENSE - HEARING HELD ON 6/26/00 PETITION DENIED- BY J WESLEY OLER JR J COPIES MAILED 8/4/00 ------------------------------------------------------------------- NOTICE OF APPEAL TO THE COMMONWEALTH COURT - BY PAUL BRADFORDORR ESQ ------------------------------------------------------------------- PETITION TO STAY SUSPENSION OF OPERATOR'S LICENSE PENDING APPEAL ------------------------------------------------------------------- SUPPLEMENT TO PETITION TO STAY SUSPENSION OF OPERATOR'S LICENSE PENDING APPEAL ORDER OF COURT - DATED 9/7/00 - IN RE PETITION FOR STAY OF SUSPENSION - SUSPENSION OF PETITIONERS OPERATINT PRIVILEGES IS STAYED PENDING REVIEW IN THE COMMONWEALTH COURT AND SUPREME COURT OF PENNSYLVANIA - BY THE COURT J WESLEY OLER JR J COPIES MAILED 9/8/00 ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING * 2019 CD 2000 ------------------------------------------------------------------- ORDER OF COURT - DATED 9/11/00 - IN RE NOTICE OF APPEAL - APPELLANT IS DIRECTED PURSUANT TO PA RAP 1925 B TO FILE A CONCISE STATEMENT OF MATTERS COMPLAINTED OF ON APPEAL NO LATER THAN 14 DAYS AFTER THIS ORDER - J WESLEY OLER JR J COPIES MAILED 9-13-00 ------------------------------------------------------------------- OPINION AND ORDER - DATED 9/21/00 - IN RE IPINION PURSUANT TO PA RAP 1925 STATEMENT OF MATTERS COMPLAINNED OF ON APPEAL - - - - - - - - - - - - - - LAST ENTRY - - - - - - ******************************************************************************** * Escrow Information * ~J r / / 0',., ' . ~ Cumberland County Prothonotary's Office Civil Case Inquiry 2000~02146 PENNSYLVANIA COMMONWEALTH OF (vs) VOGELSANG JOHN ANDREW PYS510 Page Reference No..: Filed...... ..: Case Type.....: APPEAL ~ LICENSE SUSP Time..:......: Judgment.:....: .00 Execut19n Date Judge Asslgned: Jury Trlal.... Disposed Desc.: Disposed Date. --~~~~~~~-~~ Case Comments ~~~~~~~~~~~~- Higher Crt 1.: Hiqher Crt 2.: * Fees & Debits Beq Bal Pvmts/Adi End Bal ******************************************************************************~ 4/07/200( 3: 5' O/OO/OOO( O/OO/OOO( PETITION TAX ON PETITION SETTLEMENT ,rcp FEE APPEAL 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 30.00 30.00 .00 ------------------------ ------------ 75.50 75.50 .00 ******************************************************************************~ * End of Case Information ****************************************************************'*************** TRUE COPY FROM RECORD In Testimony Whereof. I here unto set my hand and t &aI of said Cou at CarliSle 'Pa rh' ~ . ' clH-D ~ ~- ry I -...,.,., ..., o Q) Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis R. Lonq , Prothonotary of the Court of Common Pleas in and for said County; do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Commonwealth of Pennsvlvania Department of Transportation Plaintiff, and In TESTIMONY WHEREOF, I have this ?Ri'h John AnnrRW VogRlRang Defendant _, as the same remains of record before the said Court at No. 7000-::11 4fi of Ci vi 1 Term, A.D. 19_. hereunto set my hand and affixed the seal of said Court day of . D" 0000 , rothonotary I, George E. Hoffer President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Lonq , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was,atthetime of so doing, and now is Prothonotary in and for said County dfumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by t ic . } ss' County of Cumberland ' I Curtis R. Long P h 'f heC ,(C I' , . rot 0 tar 0 LE 0 rt f om n eas 10 and for the said County, do certify that the Honorable ~eo~ge . /l:of er. lUfJ. Y. by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is PresidentJudge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. esident Judge Commonwealth of Pennsylvania IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 28th a of Se er ,D, ~~OO , tho,notary , ,~" ~- '~-"I "'- ~ r -e(, lO ell m t'"l :;" 0 ." Z Z " 0 0 " .., ? ? ~ ~ 3 )a' 0 " ~ 3 .., ~ " 0- r'" '" ~ " r'" - , 0- ::!1 ::: -= r; - 0- - "l <: '" - " r'" .., ~ 0 " ~ ::c r<l ." t'"l -I -I a 0 " " S' ::c .., .., 0 0 3 3 0 '" t'"l 0 ;; I 0 '" '" ,;;l " I I " " ,... Q ~" . ~~ ,IW _~_ _~~a'll.'!~~~~~_!Jl!iI:tiull!jm!",,~~~! o n COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, : CUMBERLAND COUNTY, PENNSYLVANIA Respondent : CIVIL DIVISION v. : STATUTORY APPEALS QOOO - d I Lf(P cw.JI Te(P1 : No. SA JOHN ANDREW VOGELSANG, Petitioner. ORDER OF COURT AND NOW, this JJii day of Jr I' ~ ( ,2000, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S LICENSE, it is hereby ORDERED and DECREED that a hearing be held on the eX"~ day of ~ ' 2000 at ,2: Lib o'clock -f2..m. in Courtroom No. I of the Cumberland County Courthouse. A Supersedeas is granted pUf!luant to Vehicle Code Section 1550 (b) (1) until such time that this Honorable Court resolves this appeal. BY THE COURT: J. Distribution: Chief Counsel Appeal from License Suspension Division P A Department of Transportation Bureau of Motor Vehicle and Licensing Room 103 Tr~sportation and Safety Building; Harrisburg, P A 17120 The Law Offices of Paul Bradford Orr, 50 East High Street, Carlisle, PA 17013 Paul Bradford Orr, Esquire ~~~ 'f... /:). -() () ~ V ,\~,OO 4 .1 't-S I I I !'i\, _", <",_, ,.~" ~.,_,,__ "q , /; re~ (~ , \ ViN,j,\lASNN3d 'l~tI0rn (;\!',(1:-p::Jif,in,..... /\.. I~ ._._. __,." ....f _n" ,J SZ : II ';-j':1 Z \ Ud~ 00 I U\il ('",': , I\U ,~L,... ,....-. ]:)I~~:::.O-' :~j, . ""I' , U: :1':1 -]0 ,..", " I,"<,'~' ,-' ~__~ I~'''I ~~l\'!I!flr <,_~, ,,,. " ___rl~"~'I""""""'___'" ~_. ._!"""hr"""..."._~",I....,."lMmllllJlii o n COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, : CUMBERLAND COUNTY, PENNSYLVANIA Respondent : CIVIL DMSION v. : STATUTORY APPEALS ;;2000- ;)/1../.& G.w:Q Ten>! : No. SA JOHN ANDREW VOGELSANG, Petitioner. PETITION FOR APPEAL FROM ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATOR'S LICENSE TO THE HONORABLE JUDGES OF SAID COURT: 1. Your Petition, John Andrew Vogelsang, is an individual residing at 44 Winchester Gardens, Carlisle, Cumberland County, Pennsylvania 17013. 2. On or about March 13, 2000, Petitioner allegedly received a Notice from the Pennsylvania Department of Transportation notifYing him that his present operator's license, bearing card number 21025805, was being suspended for a period of one year effective April 14, 2000. A true and correct copy of said notice is attached hereto, made a part hereof and marked as Exhibit "A" 3. Said suspension arises out of the Petitioner's alleged conviction of Driving While Ability Impaired, a New York motor vehicle violation, to which Petitioner pleaded guilty on January 14, 2000 in Elmira, New York. A true and correct copy ofPetitioner's New York disposition is attached hereto, made a part hereof and marked as Exhibit "B." 4. The Notice ofSuspen!lion dated March 10,2000, is insufficient as a matter oflaw and violates due process under the Pennsylvania and the United States Constitutions. 5. Said suspension is not supported by evidence and is erroneous as a matter oflaw. 6. Said suspension is unconstitutional in that it violates due process and equal oZ. ,~ - "''''-~- . ~ ~ j o o protection under both the Pennsylvania and the United States Constitutions. 7. Said suspension is contrary to law in that it is in direct contradiction with Pennsylvania Supreme Court precedent. See Petrovick v Com, DllPt of Trans , 741 A.2d 1264 (pa. 1999). This case holds that New York's Drivmg While Ability Impaired (DWAI) statute does not provide a basis for reciprocal suspension under the Driver License Compact. 75 Pa.C.S.A. Sections 1581, Art. IV (a) (2); N.Y. McKinney's Vehicle and Traffic Law Section 1192 (1-3). ld.. at 1268-1269. 8. Said suspension should be automatically stayed upon the filing of this petition and upon timely notice to the Department of Transportation. WHEREFORE, your Petitioner respectfu11y requests that this appeal be granted and, in the interim, that this Honorable Court enter a stay of Petitioner's operating privileges pending this appeal. Respectfully Submitted, ~ 0loo DATE ~ Paul Bradford Orr, Esquire Attorney for Petitioner The Law Offices of Paul Bradford Orr 50 East High Street Carlisle, PA 17013 (717) 258-8558 Supreme Court I.D, # 71786 3. ',e~e',~ ",,,7'<' -__. """_0 ,"n~ _C> '. - - - - - , '.,p, - - - - ... "-,~ '^ o n Attorney Verification i : I I verify that the statements made in the foregoing document are true and crect. ! Some of the information may be known to me, but not to my client. I understand , , that false statements herein are made subject to the penalties of Pa. C.S. S 4904, relating to unsworn falsification to authorities. DATE 41h (dJ I 4. iL . o n CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofPetitioner's PETITION FOR APPEAL FROM ORDER OF SECRETARY OF TRANSPORTATION SUSPENDING OPERATOR'S LICENSE was served via first class mail upon the following: P A Department of Transportation Bureau of Motor Vehicle and Licensing Room 103 Transportation and Safety Building Harrisburg, PA 17120 DATE: b 06 0: ~ ~~,~~~.,-, ,~_.. . o () COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 MARCH 10, 2000 CARLISLE PA 17013 000636102812913 001 03/03/2000 21025805 10/27/1965 JOHN ANDREW VOGELSANG 44 WINCHESTER GARDENS Dear Motorist: Section 1581 of the Vehicle Code requires the Department to treat certain out of state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the Department rece~v~ng notification from NEW YORK of your conviction on 01/14/2000. of an offense which occurred on 01/02/2000, 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 mandated by Section 1532B of the Vehicle Code. The effective date of suspension is 04/14/2000, 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 temporary driver's license (camera card) in your possession 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 stating that you are aware of the sanction aga~nst 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 your license, Credit will not begin until all current driver's license product(s), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. c., EXHIBIT A f Irfe t .. ~-. " ~-, - "-,--. "...., 1 \,,,; m . 000636102812913 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. ^ ..You must follow those instructions very carefully in order to have your driving privilege restored. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date of this letter, MARCH 10, 2000. If you file an appeal in the County Court, the Court will give yOU a time-stamped certified COpy of the appeal. Send this time-stamped cer- tified COpy of the appeal. by certified mail to: PENNSYLVAN,IA 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 717-391-6190 1-800-228-0676 717-391-6191 '1, EXHIBIT A rq~2 - I i I I i I , l' i, I: I: 1 I I I I II I I II 1 I' II I, I I'" ._ o m STATE OF NEW YORK COUNTY OF CHEMUNG : CITY COURT CITY OF ELMIRA THE PEOPLE OF THE STATE OF NEW YORK, VS. CERTIFICATE OF CONVICTION JOHN A. VOGELSANG dJo/b: 10/27/65 Docket.Nl!..2000-31892 DEFENDANT THIS IS TO CERTIFY that the undersigned has examined the files of the ELMIRA CITY COURT concerning the above entitled matter against JOHN A. VOGELSANG and finds the following: That on the 14th day of January, 2000, appeared betore the Hon. Steven W. Forrest on a charge of two counts of Driving While Intoxicated, in violation of Section 1192, subd. 2 and 3, of the Vehicle and Traffic Law of the State of New York.. That on the 14th day of January, 2000, defendant pled guilty to the reduced charge of Driving While Ability Impaired, in violation of Section 1192, subd. I, of the Vehicle and Traffic Law of the State ofNewY ork, and was sentenced to one year Conditional Discharge, fined $400.00 and assessed the mandatory surcharge of $25.00. Dated: April 4, 2000 k07~~ CHIEF CLERK /DEPUTY CHIEF CLERK EXHIBIT B 'Er ~ ' ,~U~,,~-"._,,_, '. ,'~__ _,.,~ " ~" __ __ ,. ,= ~ ,,~~"~,~ ~~ - (~i . ,~" ,~ .F.~ _~ ~,~;.. ,.' ".10 "NH"""~"""riIiIDniji~1Ii1ll1_ilIl1lilr [, "n''!', o r~ ~f~~ ~~g ~8 )>C~ z -, -< C-~ o c; -ri """ -V ;J.'J ::::J :'1~ .._~t-n -"0 :~ ~~ l.~) , ._l -;..J :::;.1: ~~'} ;q (~~}f'n -~ ~ t..--? :)1 \0 '~_. ,r~l~llI!lItI'".",..,,~~~, "~~~INI!!J~~JW -. ~ East Pennsboro Township Supervisors East Pennsboro Township ATTN: Township Secretary Township Office 98 South Enola Drive Enola, P A 17025 By the Court: I " i.1 I I ,1 , .( I I , ,j I ! j :'1 :j .:' ., .,! ~. J .y L . (\ 60 ~O,\Y \~ ."",,-- , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORFOLK SOUTHERN CORPORATION, ITS AFFILIATES AND SUBSIDIARIES AND CONSOLIDATED RAIL CORPORATION, ITS AFFILIATES AND SUBSIDIARIES, Appellants APPEAL FROM THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS NO, 2000-2135 CIVIL TERM v, DAVID R, KRAUS, ESQ JOHN E. VAN ALLEN, ESQ, COUNSEL FOR APPELLANTS I i :1 I il f, CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Respondent STEPHEN D, TILEY, ESQ. COUNSEL FOR RESPONDENT JOINT MOTION TO APPROVE SETTLEMENT ;~ if " " II i I 11 iJ,', t:1 ';'1 n j 11 [j ij ::j II .'j NOW, this /~day of October, 2000, Norfolk Southern Corporation, its affiliates and subsidi<tries and Consolidated Rail Corporation, its affiliates and subsidiaries ("Appellants"), by and through their attorneys, Dechert, and the Cumberland County Board of Assessment Appeals, by and through its attorneys, Frey & Tiley, jointly motion this Honorable Court to approve the parties' stipulation for settlement attached as Exhibit A ("Stipulation") In support of this motion, the parties represent the following information: 1, On April 7, 2000, Appellant filed a petition for review and an appeal of decisions by L; ~~ i] !,i~ ;~ il '~ i:~j ;"i ::l Respondents. 2. On April 13, 2000, The Honorable Kevin H Hess issued a rule to show cause why Appellants' requested relief should not be granted. ;',:1 ~l :;~ "I" M K', ~\.' ." . ~-, '," ". "{<f"',":,~..<;r~'"",~~",_;,___ ,,~- .,.- .". -- ~",--. '" '" __ _'T_ _. o~ . _, -r--"C, ,~"'" __''''''__~~' ,-^ ,,',,'" - " -, ., '-~1":''''1'':''''\'_,",'_.':'::',. 0 --, .",' - ""'!-'",-,-,r~''-'7-__''''> 3, On April 21, 2000, Respondent filed an answer to Appellants' petition in response to this Honorable Court's rule to show cause. 4, On August 15, 2000, the parties viewed the property and agreed to certain settlement terms which became the basis of the Stipulation which is incorporated by reference, 5, Pursuant to C.C,R,P. Rule 206-2(c), both parties concur to the requested relief in this joint motion, WHEREFORE, the parties jointly request this Honorable Court to approve the settlement of the appeals and issue an Order in accordance with the Stipulation r: u::~?- Dated Vdpi.r ( ,JUJrfD , id R. Kraus, Esq, ohn E. Van Allen, Esq, Dechert Thirty North Third Street Harrisburg, PA 17101-1603 717.237,2000 Counsel for Appellants Dated c9~~ 9; .;UJtJf) , _~ ';;J -7A Stephe ,Tiley, Esq, Solicitor Cumberland County Board of Assessment Appeals 5 South Hanover Street Carlisle, PA 17013 717,243,5838 Counsel for Respondent " I I i i I I , ; I j "~-.h~ "",,,''''' ," _', '__'__~'_O"'_'''-c"",,'~_ ", ''',''',' ""~_'__r '0__' 1'_ >-',. y, ',' ,,~~-,,-,", :""-.w' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NORFOLK SOUTHERN CORPORATION, ITS AFFILIATES AND SUBSIDIARIES AND CONSOLIDATED RAIL CORPORATION, ITS AFFILIATES AND SUBSIDIARIES, Appellants APPEAL FROM THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS NO, 2000-2135 CIVIL TERM v, DAVID R. KRAUS, ESQ, JOHN E. VAN ALLEN, ESQ, COUNSEL FOR APPELLANTS CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Respondent STEPHEN D, TILEY, ESQ, COUNSEL FOR RESPONDENT STIPULATION FOR SETTLEMENT NOW, this /-::L day of October, 2000, it is stipulated and agreed by and between John E. Van Allen, counsel for Appellants and Stephen D, Tiley, counsel for Respondent, that for the purpose of resolving through settlement Appellants' Cumberland County appeals from assessments regarding the PURT A Tax that the following facts may be accepted as true and correct and the facts are admitted into evidence. :1 I ;1 j 1, Petitioners have taken appeals from the decisions of the Cumberland County Board of Assessment Appeals in denying Petitioner's appeals from assessments regarding the Public Utility ;'1 , , I I , :! i I I i :1 I I Realty Tax Act ("PURTA Tax"), 2, Petitioners contend in the appeals that the action of the Board was improper and illegal for the reasons provided in their April 7, 2000 petition for review which is incorporated by reference. ,1 :1 I ti "", ~-",,' ,~ Y' -~__,,'F~" ~"" - .,.,-. '~,-, "'---,~-.,~ -,,- .' 3, The Board has thorougWy reconsidered the taxable valuations, giving due regard to the objections specified by Petitioners. 4, After review of the pertinent facts and principles of law, consultations with experts and a viewing of the Property, it is agreed effective January 1, 1998 and all subsequent tax years unless changed by law subsequent to this stipulation that: (a) the Cumberland County common-level ratio factors for 1998, 1999 and 2000 are 14,71, 15,15 and 15.63, respectively (b) parcel number 09-15-1293-001 PU shall have a taxable fair market value of $1,103,695 ($766,195 of buildings and $437,500 of land) including an assessed I , , , I I , I I J I value of $81,828, $79,452 and $77,012 for 1998, 1999 and 2000, respectively, based on the common-level ratios in paragraph (a). (c) Cumberland County is currently undergoing a countywide reassessment effective for years beginning January 1, 2001. In addition, the Cumberland County predetermined ratio has been changed to 100% of the year 2000 market D il i --'I ~i .'11 value, The fair market value of this property in the year 2000 is $1,203,695 and the assessment of this property beginning January I, 200 I, and continuing :J ~I thereafter until changed by law shall be $1,203,695, , j ! ':1 I , ~1 -j " I ::1 ? ,I '~ ';'''-'~- . "'!', . - ('''-~ ,., '~-.,-~ ',."'."-"C ""." _. -,.~,.<.,""'.,,_ ,.-- -~ -, _ ..-k"!f,>=- _'~.,-.,- - - '_""'",I r. C.",_ This stipulation represents full settlement and an accord and satisfaction in this matter. The parties, as a part of this stipulation, waive any and all rights to fees and! or costs, including attorneys fees, not specifically stated herein, tf){~ Dated: (jc~tv.,)/ ;?d<Y<J vid R. Kraus, Esq, ohn E. Van Allen, Esq, Dechert Thirty North Third Street Harrisburg, P A 17101-1603 717.237,2000 Counsel for Appellants , , , I 1 1 I j 'i , i 1 1 , ! -~ i' , Dated IJ~ r ,,;uL.O ~ j)..2~ S ep n D, Tiley, Esq. Solicitor Cumberland County Board of Assessment Appeals 5 South Hanover Street Carlisle, PA 17013 717.243,5838 Counsel for Respondent ~ ;i " it \1 ~i :i I , '~ i ! '1", ,~,~ , -'"'=-',~-' ",' ,~ .~." ,r-."" .--"."-', . .' ' . ,- ~- -- " ' -"-<'-~,"f " ,'''-, .",,-~. " "_n_, [_., " CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the attached Stipulation for Settlement, Joint Motion to Approve Settlement and proposed Order upon the persons and in the manner indicated below, which service satisfies the requirements ofPa,KC,P, 440: Service bv first-class certified mail: 'i ! II ~ l I David R, Kraus, Esq, Dechert Thirty North Third Street Harrisburg, PA 17101 Cumberland County Commissioners Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 :~ i East Pennsboro Area School Board East Pennsboro Area School District ATTN: School Secretary 891 Valley Road Enola, P A 17025 j 'j :1 ',I "11 ) ;~ il .~ ~ East Pennsboro Township Supervisors East Pennsboro Township ATTN: Township Secretary Township Office 98 South Enola Drive Enola, P A 17025 ;i ')1 '-ijl , 11 ,i,',',l' " i'l' it:: Dated p~ /11 02#~ , #rC- 4 ~," 7--0 Stephen D, Tiley, Esq, Solicitor Cumberland County Board of Assessment Appeals 5 South Hanover Street Carlisle, P A 17013 Counsel for Respondent ',I .1! 128334,1 ,49 'h ;i j{. ti i :&- _t~ i~ -_ii";t>.,,~_ -". ..-,,"=="-- - ~~ ~ , ,,-~- "---~~,,~--''''~-~-~-'- , , __" '.'~_ . ''". __+ _,'_C,' "" I ~. ,-~ '. , NORFOLK SOUTHERN CORPORATION: ITS AFFILIATES AND SUBSIDIARIES AND, CONSOLIDATED RAIL CORP. ITS AFFILIATES AND SUBSIDIARIES, Appellants v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA PURTA TAX ASSESSMENT APPEAL NO, 2000-2135 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Respondent ANSWER AND NOW, comes the Respondent, Cumberland County Board of Assessment Appeals, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor, and files this Answer to the Petition for Review of Appeal from Decisions of the Cumberland County Board of Assessment Appeals, of which the following is a statement: 1. Admitted. 2, Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part denied in pm-t. It is admitted that the property is located in East Pennsboro Township and is Cumberland County tax parcel number 09-15-1293-001 PU. It is denied that the diagram set forth as Exhibit "B" of the Petition is a true and accurate diagram of the property as the Respondent is without information sufficient to confIrm or deny the depiction set forth on the attached Exhibit "B" and therefore strict proof at trial is demanded. 8. Admitted. 9, Admitted in part denied in part. The existence of Pa Const. Art. VIII, ~4, is admitted. Its applicability of that provision to this property owner or this site, or any portion of this site, is a conclusion of law to which no responsive pleading is required. 10. Admitted. 11. Admitted. 12. Denied. The avennents set forth in paragraph 12 of the Petition contain conclusions of law to which no responsive pleading is required. ':.. 13. Denied. The averments of this paragraph set forth conclusion of law to which no responsive pleading is required. 14. Admitted. 15. Admitted. By way of further Answer the Board's decision was that the Appellants failed to meet their burden of proof to overcome the presumptive validity of the property record card. 16. Denied. The averments of this paragraph 16 are a conclusion of law to which no responsive pleading is required. 17. Denied. The averments of this paragraph 17 are a conclusion of law to which no responsive pleading is required. 18. Denied. Paragraph 18 of the Petition contains averments of fact which the Respondent can neither confirm or deny, strict proof at trial is demanded. 19. Denied. Paragraph 19 of the Petition contains averments of fact which the Respondent can neither confirm or deny, strict proof at trial is demanded. 20. Denied. The averments of this paragraph set forth conclusion of law to which on responsive pleading is required. 21. Denied. Respondent's math indicates a fair market value of $23,178,143 effective January I, 1998, using the then applicable 7,0 % common level ratio; a value of $23,859,853 effective January 1, 1999 using the then applicable common level ratio of 6.8 %; and a value of $24,582,879 effective January 1, 2000 by lIse of the CUlTent common level ratio of 6.6%. 22. Denied. The averments of this paragraph set forth conclusions of law to which no responsive pleading is required. 23. Denied. The averments of this paragraph set forth conclusions of law to which no responsive pleading is required. 24. Admitted. 25. Denied. The averments of this paragraph and each of its sub-lettered paragraphs set for conclusions of law to which no responsive pleading is required. 26. Admitted. Counsel for Respondent concurs that Appellant has the right to appeal its assessment however does not concur in Appellant's conclusions of law and fact. WHEREFORE, Respondent, Cumberland County Board of Assessment Appeals, prays your Honorable Court for an Order denying Petitioner's Appeal or setting the value of the property, " and the taxable and non-taxable portion of it, in such amounts and proportions as, to the Court may seem just and proper. Respectfully submitted, Dated: ~;R/';I ~1 ~fJ[)cJ ~~ 1), ( 74; Stephen . TIley, EsqUIre Assistant Cumberland County Solicitor Attorney for Respondent 5 South Hanover Street Carlisle, Pennsylvania 17013 717-243-5838 Attorney LD. No. 32318 " ! -~ P"- - ; I .1 I :i I i : i I I I "-''''''^-''._~~ NORFOLK SOUTHERN CORPORATION: ITS AFFILIATES AND SUBSIDIARIES AND, CONSOLIDATED RAil- CORP. ITS AFFil-IATES AND SUBSIDIARIES, Appellants v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Respondent \ " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PURTA TAX ASSESSMENT APPEAL NO. 2000-2135 VERIFICATION I verify that the statements made herein are true and correct and understand that false statements herein are made subject to the penalties of 18 Pac C.S.A. ~4904 relating to unsworn falsification to authorities. Date: , ,