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Home My WebLink About02-5840RANDY L. ROSENBERRY, Plaintiff COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002- ~'~',//2 CIVIL TERM IGNITION INTERLOCK APPEAL APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS AND NOW, comes the Petitioner, Randy L. Rosenberry, and respectfully represents as follows: 1. The Petitioner, Randy Lee Rosenberry (hereinafter "Rosenberry"), is an adult individual who resides SME Lot # 102, Shippensburg, Cumberland County, Pennsylvania. 2. The Respondent is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, with a mailing address of Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office, Harrisburg, Dauphin County, Pennsylvania. 3. On November 20, 2001, Rosenberry was sentenced by the Honorable Edgar B. Bayley of the Court of Common Pleas of Cumberland relative to a plea of guilty to driving under the influence. A copy of the November 20, 2001 Sentencing Order is attached hereto as "Exhibit A." 4. The November 20, 2001, Sentencing Order does not contain any reference to the installation of an Ignition Interlock system. 5. As a result of Rosenberry's conviction for Driving Under The Influence, he served a one year license suspension beginning November 20, 2001, and ending November 20, 2002. 6. Rosenberry has received a restoration requirements letter directing him to install an Ignition Interlock system on his vehicle prior to being eligible to have his license restored. 7. Were it not for the Department of Transportation demanding that an Ignition Interlock system be installed on Rosenberry's vehicles, Rosenberry's driving privileges would be restored. 8. The Department of Transportation has no authority to order the installation of an Ignition Interlock System in the absence of a court order imposing such a requirement. Schneider v. Commonwealth, Department of Transportation, Bureau of Driver Licensinq, 790 A.2d 363 Cmlth. Ct. (2002). WHEREFORE, Rosenberry respectfully requests that this Honorable Court declare the Department Of Transportation's requirement for the installation of an Ignition Interlock System invalid as it relates to Rosenberry, and Order that Rosenberry's driving privileges be restored immediately. Respectfully submitted, O'BRIEN, BARIC & SCHERER Michael A. Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dir/criminal/rosen berry.apl VERIFICATION The statements in the foregoing Appeal From Imposition Of Ignition Interlock Requirements are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. DATE: '''~'-/~- 0 ~'~ ~~' COMMONWEALTH V. RANDY LEE ROSENBERRY OTN: H227095-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0933 CRIMINAL TERM : : CHARGE : D.U.I. : AFFIANT: CPL. SCOTT WOLFE IN RE: SENTENCE ORDER OF COURT AND NOW, this 20th day of November, that you pay the costs of prosecution, a $300.00 2001, sentence is fine, undergo imprisonment in the Cumberland County Prison for a term of not less than 48 hours nor more than 23 months. You are to report directly to the Cumberland County Prison, without further appearance or Order of Court, on Friday, November 30, 2001, at 9:00 a.m. As long as you are in compliance with all rules and regulations of the Cumberland County Prison, you are to be released at the expiration of your minimum term, without further appearance or Order of Court, on parole, on supervision, on condition that you be and remain on good behavior and comply with all written instructions of your probation officer. By the Court, Ed~, j. / Jonathan R. Birbeck, Esquire Chief Deputy District Attorney Probation Sheriff ~Michael A. Scherer, Esquire IPO For the Defendant CCP it EXHIBIT "A" LICENSE NO. : 17&q2515 -You have a 1 YEAR(S) suspension/revocation that began (or will begin) on 11/20/01. Credit for serving this suspension/revoca- tion began (or will begin) on 11/20/01 and will end on 11/20/02. The suspension/revocation resulted from a violation on 05/2q/01 of Section 5751, DRIVING UNDER INFLUENCE IGNITION INTERLOCK You are required to have an approved Ignition Interlock System installed in all of your vehicle(s). Approximately $0 days before your ELIGIBILITY DATE, you should contact one of the following approved vendors listed below to make arrangements to have the System installed. -Interlock Installation Services 1-800-~52-1759 -Consumer Safety Technology, Inc. - 1-877-777-5020 -National Interlock, Inc. (serving Eastern PA) 1-866-3q2-q98q -American Court Services (serving Central/Western PA) 1-888-565-6227 -Guardian Interlock Systems 1-800-~99-099~ -Draeger Interlock, Inc. - 1-800-$$2-6858 You will need to provide the vendor the following court information before the System can be installed, COUNTY CUMBERLAND CTY COURT NUMBER 0009~5 COURT TERM 2001 Please retain a copy of this letter to assist you in this process, If you choose not to install the Ignition Interlock System in your vehicle(s), your driving privilege will remain suspended for an additional year. IGNITION INTERLOCK LICENSE -In order to have your driving privilege restored you must apply for an Ignition Interlock iicense. An Ignition Interiock license entitles you to drive only vehicles equipped with an Ignition Interlock System. You may make application 30 days BEFORE your eiigibility date. An application is enciosed for your convenience. LICENSE NO. ~ 17&q2515 This letter identified the requirements necessary to restore your driving privilege and we are looking forward to working with you to do this. Unless another address was indicated, return any documents and/or fees to the MAILING ADDRESS listed below. Phone numbers are provided for your use. To ensure prompt customer service, please write your driver's license number, listed at the beginning of this letter, on all documents you send to PENNDOT. Thank you. P.S. REMEMBER, your ELIGIBILITY DATE is 11/20/05. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 68695 Harrisburg, PA 17106-8&95 INFORMATION (7:00 IN STATE OUT-OF-STATE TDD IN STATE TDD OUT-OF-STATE AM to 9:00 PM) 1-800-952-q600 717-591-6190 1-800-228-0676 717-391-6191 LICENSE NO. : 176fi2515 IGNITION INTERLOCK LICENSE APPLICATION To apply for an Ignition Interlock license, and submit this page with a check or money listed below. please sign below order to the address Our records indicate that your driver's license will expire within the next 6 months. If you would like to renew at this time, make your check or money order payable to PENNDOT in the amount of $25.00. If you do not wish to renew at this time submit a check or money order in the amount of $I0.00 to receive your Ignition Interlock License. You will receive an invitation to renew at a later date. DRIVER'S LICESNE NUMBER 176~2515 RANDY L ROSENBERRY SME LOT 102 SHIPPENSBURG PA 17257 SIGNATURE TELEPHONE NO: If your address has changed, please print the correct address here: If you choose not to install an Ignition Interlock System, you do not have to apply for an Ignition Interlock License. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 68695 Harrisburg, PA 17106-8695 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17125 11/1~/02 RANDY L ROSENBERRY SNE LOT 102 SHIPPENSBURG PA 17257 DRIVER'S LICENSE NUMBER: BIRTH DATE: ELIGIBILITY DATE: 176~2315 11/15/56 11/20/03 Dear MR. ROSENBERRY : This is a RESTORATION REQUIREMENTS LETTER. It lists what you must do to restore your driving privilege. PLEASE BE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You will be notified by the Department of Transportation (PennDOT) that your driving privilege has been restored. Only after that may you drive. An ELIGIBILITY DATE is listed above, This is the date you are eligible to have your driving privilege restored, provided no other violations are processed against your driving record, This date is effective regardless of any other dates listed within this letter. Please read the following information carefully and be sure to complete all requirements to have your driving privilege restored, Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS listed at the end of this letter. RESTORATION FEE -You must pay a $25.00 restoration fee to PENNDOT. Write your driver's license number (listed above) on the check or money order to ensure proper credit. Your check or money order should be made payable to PENNDOT. PROOF OF INSURANCE -Within 30 days of Your ELIGIBILITY DATEr provide a copy of one of the following to PENNDOT to show that all motor vehicles currently registered in Pennsylvania in your name are insured: ~Insurance ID card mDeclaration page of your insurance policy ~Insurance Binder ~An application of insurance to the PA Auto Insurance Plan If you do not own a motor vehicle currently registered in Pennsylvania, send a signed statement of this fact to PENNDOT which reads "I do not own any motor vehicles currently registered in Pennsylvania". Please include your name~ address~ driver's license number and date of birth on the statement. TERM SUSPENSION/REVOCATION EXHIBIT "B" RANDY L. ROSENBERRY, Plaintiff COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 2002- CIVIL TERM 'IGNITION INTERLOCK APPEAL ORDER AND NOW, this )(~ day of ~~ _, 2002, upon consideration of the within Appeal From Imposition Of Ignition Interlock Requirements, it is hereby and decreed that a hearing be held on the ~>~'- day of &~C~ ' ordered 200,~. , in Courtroom No. ~ , in the Cumberland County Courthouse at 5' '~ a.mdp.m, to determine the validity of the suspension outlined in the Restoration Requirements Letter attached hereto as Exhibit "B". Notice of said hearing shall be given to the Department of Transportation by Petitioner's attorney by certified mail at least thirty (30) days prior to the date of the scheduled hearing. Pursuant to Section 75 Pa.C.S. Section 1550(b), Petitioner's Appeal shall act as an automatic supersedeas, and Petitioner's operating prMleges shall be restored pending a final determination of this matter. ,'/'Michael A. Scherer, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, Pennsylvania 17013 y/Pennsylvania Department of Transportation Office of Chief Counsel Third Floor Riverfront Office Center Harrisburg, Pennsylvania 17104-2516 RANDY L. ROSENBERRY, Plaintiff Vo COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-5840 CIVIL TERM · IGNITION INTERLOCK APPEAL MOTION FOR CONTINUANCF AND NOW, comes the Petitioner, Randy L. Rosenberry, by and through his attorney, Michael A. Scherer, Esquire and respectfully represents as follows: 1. The Petitioner, Randy L. Rosenberry, previously filed an Ignition Interlock Appeal and the court set a hearing on this matter for Monday, February 3, 2003 at 2:30 p.m. 2. On January 28, 2003, undersigned counsel :spoke with George Kabusk, Esquire, attorney for the Department of Transportation and undersigned counsel and Attorney Kabusk agreed to continue this matter for a period of approximately six months in order to give the Supreme Court an opportunity to render a decision on the constitutionality of relevant legislation and in order for other appellate issues to be resolved. WHEREFORE, Petitioner respectfully requests that this Honorable Court reschedule the hearing previously set in this matter August, 2003. Respectfully submitted, O'BRIEN, BARIC & SCHERER Michael A. Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dir/criminallrosenberry.mot CERTIFICATE OF SERVICE I hereby certify that on January ..~ ,2003, I, Jennifer S. Lindsay, secretary to Michael A. Scherer, Esquire, did serve a copy of the Motion For Continuance, by first class U.S. mail, postage prepaid, to the party listed below, as follows: George Kabusk, Esquire Office Of Chief Counsel PA Department of Transportation Riverfront Office Center Legal: Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2512 RANDY L. ROSENBERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-5840 CIVIL TERM COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant · IGNITION INTERLOCK APPEAL ORDER OF COURT AND NOW, this ['{ day of ~¢,C~ _, 2003, upon consideration of the within Motion of the Petitioner, Randy L. Rosenberry, and noting the concurrence of George Kabusk, Esquire counsel for the Respondent, the hearing set in this matter for Monday, Februa~. ~,.2003 at 2:30 p.m. is continued until ~~'~ ' the"~-'~, day of ~1~ 2003 at I. ~ a.m/p.m, in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT,/~,/~ Edgar B. Bayley, J. ~ c/Michael A. Scherer, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, Pennsylvania 17013 v/George Kabusk, Esquire Office Of Chief Counsel PA Department of Transportation Riverfront Office Center Legal: Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2512 RANDY L. ROSENBERRY, Plaintiff COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 2002-5840 CIVIL TERM · IGNITION INTERLOCK APPEAL ORDER OF COURT AND NOW, this ""~ay of~,~]~__, 20O3, upon consideration of the within Motion of the Petitioner, Randy L. Rosenberr¥, and noting the concurrence of George Kabusk, Esquire counsel for the Respondent, the hearing set in this matter Monday, July 28, 2003 at 1:30 p.m. is continued generaliy,,?~ ~ for Edgar B. Bayley, J. ~"~ael A. Scherer, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, Pennsylvania 17013 ~orge Kabusk, Esquire Office Of Chief Counsel PA Department of Transportation Riverfront Office Center Legal: Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2512 RANDY L. ROSENBERRY, PETITIONER COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-584.0 LICENSE :SUSPENSION APPEAL ORDER AND NOW, this ~.~ day of C~_/~..~_ , 2003, the appeal filed in the above referenced matter is REMANDED to the Department and the Department shall CORRECT TIlE RECORD AND RESCIND TIlE REQUIREMENT TIlAT TIlE PETITIONER COMPLY WITIl TIlE REQUIREMENTS OF TIlE IGNITION INTERLOCK LAW, 42 Pa. C.S. 7001-7003, that the Department imposed without a court order as a condition to the restoration of the petitioner's driving privilege as a result of the petitioner's violation of Section 3731 of the Vehicle Code, violation date March 24, 2001. BUTION: H. Kabusk, Esquire, PennDOT, Riverfront Office Center, 1101 South Front Street, Harrisburg, PA 17104-2516 Michael A. Scherer, Esquire, 17 West South Street, Carlisle, Pennsylvania 17013 OFFICE OF CHIEF COUNSEL - Vehicle & Traffic Law Division Riverfront Office Center I101 Soutfi Front Street Harrisburg PA 17104-2516 October 20, 2003 The Honorable Edgar B. Bayley The Court of Common Pleas of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17013 Re: Randy L. Rosenberry v. Cmwlth. of Pennsylvania, Dept. of Trans., Court of Common Pleas of Cumberland County, 2002-5840, License Suspension Appeal Dear Judge Bayley: The above-referenced matter is an appeal of the imposition of the ignition interlock which the Department imposed without a court order. The petitioner challenged the authority of the Department of Transportation to require the installation of an ignition interlock system in the absence of a court order directing such installation. See 42 Pa.C.S. §7002. The matter was continued generally. Based on the provisions of the recently-enacted law addressing driving under the influence and ignition interlock requirements, the Department adopted a policy in which it revised its position with respect to the imposition of the ignition interlock system and agreed to remove the ignition interlock requirement in those cases where it had not been ordered by the court. I made representations of such policy to Attorney Scherer regarding this case which had been continued and I feel ethically bound to follow through witla my representations. Since that policy was adopted the Supreme Court issued Commonwealth cf Pennsylvania v. Mockaitis, _ A.2d _ (Pa. 2003), posted on October 17, 2003, which uphohts several of the Department's positions regarding the issues concerning the ignition interlock. Please find enclosed a proposed Order for the above-mentioned matter. The proposed Order remands the appeal to the Department to update its records and remove the ignition interlock requirement which was imposed by the Department without a court order. I spoke to Mr. Scherer attomey for the petitioner, and he concurs with such a disposition and the proposed order. GOVERNOR'S OFFICE OF GENERAL COUNSEL TELEPHONE: 117.787.2830 FAX: 717.705.1122 www.dot.state.pa, us Very truly yours, George~q. Kabusk Cc: Michael A. Scherer, Esquire, 17 West South Street, Carlisle, Pennsylvania 17013 Enclosure