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Home My WebLink About00-03016 ,I ,~~ - , .- !r'- MELVILLE E FLENNIKEN v, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 06 -c .201l.. C'ULL '-r-~ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING LICENSE RECALL APPEAL ORDER OF COURT AND NOW, this .:J3~y of May, 2000 upon Petitioner's request for a supersedeas, a hearing on the supersedeas only is set for the .J.AJ~ay of L.iUAlL ,2000, at 9: o() o'clockA..m, in Courtroom Number i, Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania. Notice of said supersedeas hearing shall be given by Petitioner's counsel to the Department of Transportation, The hearing on the merits of the appeal will be scheduled at a later date, I::.(/WIIM.I L. J. c~z:~ .5 -Jzj-OO ~K3 Distribution: Prothonotary's Office Office of Chief Counsel, PennDOT, 1101 S, Front St, Harrisburg, PA 17104-2516 David E, Hershey, Esquire, 2233 N, Front St, Harrisburg, PA 17110 ~tJ.~-dO Cd~.U.L NO'/' .,r;. t.~ . i' ~~~ ,~ MELVILLE E. FLENNIKEN v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 0-0 - 30 II, C!.v.;J " e.v.- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING : LICENSE RECALL APPEAL LICENSE RECALL APPEAL AND NOW, comes Petitioner, Melville E, Flenniken, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this License Recall: 1, Petitioner, Melville E. Flenniken, is an adult individual and a Pennsylvania licensed driver with a residence address of 191 Candelite Drive, Carlisle, Cumberland County, Pennsylvania 17013, 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 17104-2516. 3. Petitioner received a notice of license suspension by way of letter dated April 14" 2000 from the Department of Transportation indicating that his Pennsylvania driving privileges are to be recalled on May 19, 2000, See Exhibit "A" attached hereto and incorporated herein by reference. 4, The specific issue complained of by the Department of Transportation was that Petitioner has a seizure disorder condition which prevents him from safely operating a motor vehicle, '" - " -. 5, The Department's notice of April 14, 2000 indicates that Petitioner must remain seizure-free for a six month period, with or without medication, before he will be eligible for reinstatement of his driving privileges, 6, The Department's recall action is illegal, improper, and invalid for some or all of the following reasons: a. The continued recall is not justified, b. The only department regulation which mandates a six month waiting period pertains to diabetes and/or hypoglycemia and the medical cause of Petitioner's new onset seizure of March 1, 2000 qualifies as neither of the above from both a legal and a medical standpoint. c. The Department's action is in violation of Petitioner's rights under the Americans with Disabilities Act, the Federal Rehabilitation Act of 1973, and the Pennsylvania Human RelatiOns Act because Petitioner is an otherwise qualified individual affected with a disability and the Department of Transportation, as an entity receiving government funding, is therefore subject to the provisions of the above three mentioned Acts; d, The Department's action, as applied to Petitioner providing for the recall of his operating privileges for a period of six months upon the occurrence of a single seizure without the licensee having an opportunity to present medical evidence in an effort to establish his/her competency to drive, and further, without considering that Petitioner's treating physician has determined that the licensee is competent to drive a vehicle, violates Petitioner's rights to procedural due process as this policy creates an impermissible, irrebuttable '" ~ " ,-. C~'i ! , II ,I ;1 'I " i! iJ I :1 " i , I :1 ij ! I i I I . presumption in violation of the 14th Amendment of the United States Constitution and his rights under the Pennsylvania Constitution, WHEREFORE, Petitioner respectfully requests that this Court schedule a supersedeas hearing on the Department of Transportation's proposed action recalling his license effective May 19, 2000 and schedule a hearing to determine the validity of the suspension proposed by the Department at a later date, Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY Date: 05/15/00 By David E. Hershey, 1.0.#43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 3 '.~ '_"~ '" "_, ^ ,u~_ ~ CERTIFICATE OF SERVICE I, Tammy L Kelly, an employee of the law firm of MANCKE WAGNER HERSHEY & TULLY, hereby certify that I am this day serving a copy of the foregoing document to the attomeys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Criminal Procedure, by depositing a copy of same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the 15'h day of May, 2000, at the address listed below: George Kabusk, Esquire Office of Chief Counsel PA Department of Transportation Riverfront Office Center, Third Floor 11 01 South Front Street Harrisburg, PA 17104.2516 BY~ Li\ ~ Tammy L, Kelly MANCKE WAGNER HERSHEY & TUL . L _.' -~ '< ~---, - ,; ".. -~ VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject 0 the penalties of 18 Pa.C.S, ~4904 relating to unswom falsification to authorities, 1". i Date: 05/15/00 ~L4r.d~ MELVILLE E FLENNIKEN ~" ~~ J" recalszr -""-,, "'- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: April 14, 2000 MELVILLE FLENNIKEN 191 CANDELITE DR CARLISLE PA 17013 Dear Mr. MEL VULE FLENNIKEN: We have received medical information indicating that you have a Seizure Disorder condition which prevents you from safely operating a motor vehicle. As of 05/19/2000, you may no longer drive. Your driving privilege is hereby recalled i~d~finitely' as mandated by Section 1519(c) of the VehicleCode. ,..._,,~, ""j . This decision has been made by comparing your medical condition with the standards recommended by our Medical Advisory Board and adopted by this Department. This action will remain in effect until we receive medical information that your condition has improved and you are able to safely operate a motor vehicle. ,\ Since you have a seizure disorder, you must remain seizure free for a six month period, with or without medication, before you will be eligible for reinstatement of your driving privilege. Our records indicate that your seizure occurred on ,3/1/00. In order to comply with this action, you must retum aU current Pennsylvania driver's licenses, leamer's permits, temporary driver's licenses (camera cards) in your possession, on or before (he effective date listed above. If you cannot comply with the requirements stated above, a sworn affidavit stating that you are aware of the sanction against your driving privilege must be submitted. When the Department receives your license or affidavit, we will send you a receipt. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. You have the right to appeal to the Court of Common Pleas (Civil Division) within thirty (30) days of the mail date of this notice. 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: EXHIBrt . ':.:. < ffi ~ w ~ "I ~ < ~ ., . , ~ .0. . j ~ .'. .._,,-,. ' '--:'t! I 'I I, I I 'I Pennsylvania Department of Transportation Office of Chief Counsel Third Roor, Riverfront Office Center Harrisburg, PA 17104 You still must send in your license before the effective date of recall unless you appear in person before a judge and receive an order permitting you to continue driving. If you have any questions or need further information, please contact the Medical Unit, P.O. Box 68682, Harrisburg, PA 17106-8682 or call (717) 787-9662 between the hours of 8:00 a.m. and 4:30 p.m. Sincerely, ~~,'~ '! j II 1:1 i II li I! 'J :i II , ! 'I :1 i Rebecca L. Bickley, Director Bureau of Driver Licensing Driver License #: 13869056 , Wl/~ .~ ~~--~ .. MELVILLE E, FLENNIKEN v, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING \ ~~\ TO THE PROTHONOTARY: .... , - ~~ ~ - ~ "-oM'-.. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 00-3016 CIVIL TERM LICENSE RECALL APPEAL PRAECIPE Please withdraw the license recall appeal filed in the above-captioned matter as Petitioner's driving privileges have been reinstated. Therefore, the appeal is now moot. Date: June 1, 2000 Respectfully submitted, Mancke Wagner Hershey & Tully David E. Hershey, E 10# 43092 2233 North Front Street Harrisburg, PA 17110 717/234-7051 - II:....~. . . -~- ". ,- - '~-fi-: ,~ CERTIFICATE OF SERVICE I, Tammy L Kelly, an employee of the law firm of Mancke Wagner Hershey & Tully, hereby certify that I am this day serving a copy of the foregoing document to the attomeys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, on the 1st day of June, 2000. George Kabusk, Esquire PA Department of Transportation 1101 South Front Street Harrisburg, PA 17104-2516 BY'~'-h kD~ D Li . Tammy L. Kel ~ Mancke Wagner Hershey & Tully , " , ~ <, FROM: MRNCKE WRGNER HERSHEY FRX; 2347880 Jun-01-00 Thu 11=21 PAGE; 01 00-3011., FJ)~ LI\WOFF"ICl:Ei MANCKe:. WAGNER. HERsHEY 6< TULLY JOI-U" ~. MAN(~K,F. P. HIGHAnD VvA~Nr.R D~VID c. HI;-"RSH(Y WILLIAM T, TULL Y 22~1:~ "'ORTH F'Rt,lNT SntC;l:.T HAIH(ISBURn, PA 1711(1 AFo''':.o. t;ODe: 717 2.34-'J051 June 1, 2000 VIA FACSIMILE 240-6462 The Honorable Edward E, GUido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: MelVille E. Flenniken v, Commonwealth Transportation, Bureau of Driver licensing License Suspension Appeal of Pennsylvania, Department of Docket # 00-3016 Dear Judge Guido: Please be advised that counsel for the DepsII"tment of Transportation confirmed with me on May 31. 2000 that Mr. Fler'll1iken's medical recall suspension has been rescinded by the Department and his driving privileges have been fully reinstated. This is as a result of updated medical information forwarded to the Medical Recall Unit by Mr. Flenniken's treating physician, Based upon the above, it is nalonger necessary to proceed with either thl! supersedeas hearing or the hearing on the melits, Accordingly, I will be forwarding a praecipe to withdrawn the appeal as being moot Penn DOT's counsel is aware of my communication with your Chambers. If you have <lny questions or comments, please feel free to contact me, Thank you for your consideration, SJd~/j4 . David E Hershey r- DEH:tlk cc: George Kabusk, Esq., via facsimile FiLED-{)FFlCE 0,.. - ,.- -'v',,, 'N 'O"ARY r [tel.. IA''')I "t ('-' 1 [ : -~_ ' . !'-_, f; ..Jl -j 00 JUH -5 AM 10: 29 CUMBERU;NO COUt\l1Y PENNSYLVAN!J\ _ _"T,,": '=""'!'"_""'_~rT;'-~~"""_, ~"_ "'_.""-~'''"' """""" .....T:'.u__,_ .. r~",."o.~,."~.4.. M.Il~~,.".~~ -~~~l""~P