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Home My WebLink About02-6162KENNETH E. ROSS, Appellant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : Appellee PETITION FOR APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS AND NOW, comes the Appellant, Kenneth E. Ross, by and through his Attorney, John A. Abom, ofAbom & Kutulakis, L.L.P., who files this within Petition for Appeal from Imposition of Ignition Interlock Requirements and in support thereof, avers as follows: 1. Appellant, Kenneth Eugene Ross, resides at 417 Hummel Avenue, Lemoyne, Cumberland County, Pennsylvania 17043. 2. Appellee is the Department of Transportation of the Commonwealth of Pennsylvania, having a mailing address of: Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, Pennsylvania 17104-2516. 3. On December 11,2001, Appellant was sentenced in this Court for violating, 75 Pa.C.S. §3731(a) Driving Under the Influence. 4. This Court did not impose the installation of ignition interlock devices on vehicles owned by the Appellant as part of Appellant's sentence. 5. Appellee suspended Appellant's driving privileges for a period of one year pursuant to 75 Pa.C.S. §1532(b)(3). 6. By letter dated December 3, 2002, the Appellee advised the Appellant that in order to obtain driving privileges, he was required to meet a set of restoration requirements v. ' No.: ~J2_ -(.~, ! (',"4 Civil Term : including the requirement to install an ignition interlock device on all of his vehicles. A copy said letter is attached as Exhibit A. 7. On January 11, 2002, the Commonwealth Court of Pennsylvania held that "the trial court has jurisdiction over driver license suspension appeals and ... the plain language of the Act does not permit Penn DOT to have independent authority to impose installation of an ignition interlock device." Schneider v. Commonwealth, 790 A.2d 363 (Pa. Cmwlth. 2002). 8. On December 19, 2002, this Court followed the reasoning in Schneider and held that Penn DOT has no statutory authorization to direct an ignition interlock requirement, absent an order of a trial Court. Hebefling v. Comm. of Pennsylvania, Dept. of Trans., (Opinion, December 19, 2002, Judge Bayley). Judge Bayley's Opinion is'. attached as Appendix B. The imposition by Appellee of an ignition interlock requirement upon Appellant o i.s unlawful. WHEREFORE, Appellant respectfully requests this mat-ter be set down for a hearing, Appellee restore Appellant's driving privileges supersedeas pm:suant to 75 Pa.C.S. §1532(b) pending said heating, and Appellee's imposition of ignition interlock devices on Appellant's vehicles be set aside. Date: Respectfully submitted, ABOM & KUTULAKIS, L.L.P. // John~c/-~bom, Esquire '~ :~ k~A4't6mey for Appellant 8 South Hanover Street, Suite 204 Carlisle, PA 17013 (717) 249-0900 KENNETH E. ROSS, Appellant COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No.: Civil Term CERTIFICATE OF SERVICE I hereby certify that on this date, I mailed a tree copy of' Petition for Appeal from Imposition of Ignition Interlock Requirements to the following person at the following address by U.S. Mail, Certified mail, postage prepaid, return receipt requested, delivered to addressee only: Date: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor Riverfront Office Center Harrisburg, PA 17104-2516 ABOM, E S~UIR:E~ EXHIBIT A COMMONWEALTH OF PENNSYLVANIA ~.DEPARTMENT OF TRANSPORTATION ~~'~BUREAU OF DRIVER LICENSING HARRISBURG, PA' 17123 12/03/02 KENNETH EUGENE ROSS q17 HUMMEL AVE LEMOYNE PA 17045 DRIVER'S LICENSE NUMBER: 19985q60 BIRTH DATE~ 09/05/65 ELIGIBILITY DATE= 12/15/02 This is a RESTORATION REOUIREMENTS LETTER!. It ].ists what you must do to restore your driving privilege, PLEASE SE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE, You will be notifAed by the Department of TransportatAon (PennDOT) that your drivAng prAvAlege has been restored, Only after that may you drAve. An ELIGIBILITY DATE is lasted above. This is the date you are eligible to have your drAvAng prAvAlege restored, provAded no other violations are processed agaAnst your' drAvAng record. Thi:s date As effective regardless of any other dates lasted wAth. An thA:s letter. Please read the following AnformatAon carefully and be sure to complete all requirements to have your drAvAng privilege restored. Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS lasted at the end of this letter. RESTORATION FEE -You must pay a $25.00 restoration fee to PENNDOT. Write your driver's 1Acense number (listed above) on the check or money order to ensure proper credit. Your check or money order should be made ............... oa ya.kl~__t.E., p E_~DO'T. PROOF OF INSURANCE -Within 50 days of your ELIGISILITY DATE, provide a copy of one of the following to PENNDDT to sho~ that all motor vehicles currently regAstered An PennsylvanAa An your name are Ansured: ~Insurance ID card ~Declaration page of your insurance polAcy ~Insurance BAnder ~An appl~catAon of insurance to the PA Auto Insurance Plan If you do not own a motor vehAcle currently registered An Pennsylvania~ send a signed statement of thAs fact to PENNDOT which reads "! do not own any motor vehAcIes currently registered An Pennsylvania". Please ~nclude your name, address, dr~ver's license number and date of birth on the statement. TERM SUSPENSION/REVOCATION -You will tion LICENSE NO. : 19985~&0 ave a 1 YEAR(S) suspension/revocation that began (or begin) on 12/11/D1. Credit for serving this suspension/revoca- began (or will begin) on 12/15/01 and will end on 12/1BZ02. The suspension/revocation resulted from a violation on 06/21/01 of Section 3751, DRIVING UNDER INFLUENCE IGNITION INTERLOCK You are required to have an approved Ignition Interlock System installed in all of your vehicle(s). Approximately 30 days before ~A,,rJ~L.IGIRILITY DATE, y_pu should contact one of the following approved vendors listed below to make arrangements to have'~:~e ...... System installed. -Interlock Installation Services - 1-800-q52-1759 -Consumer Safety Technology, Inc. - 1-877-777-5020 -National Interlock, Inc. (serving Eastern PA) - -American Court Services (serving Central/Western PA) - 1-888-565-6227 -Guardian InterlOck Systems - 1-8~0-~99-099~ -Draeger Interlock, Inc. - 1-8~0-5S2-6858 You will need to provide the vendor the following court information before the System can be installed. COUNTY COURT NUMBER COURT TERM CUMBERLAND CTY 01898 2001 Please retain a copy of this letter to assist ~'ou in this process. If you choose not to install the Ignition Interlock System in your vehicleCs), 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 license. An Ignit:ion Interlock license entitles you to drive only vehicles equipped with an Ignition Interlock System. You may make application $0 days BEFORE 3/our el .... An application is enclosed for your conveniencei.~_~_~ j_~L .~/~ LICENSE NO. : 19985460 Th~s letter identified the requirements necessary to restore your driving privilege and we are looking foreword to working with you to do this. Unless another address was ~nd~cated, return any documents and/or fees to the MAZL[NG ADDRESS listed be[ow.. Phone numbers are provided for your use. To ensure prompt customer service., please write your dr~ver's l~cense number, l~sted at the beginning of this letter, on all documents you send to PENNDOT. Thank you. P.S. REMEMBER, your ELIGIBILITY DATE is 12/15/02. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 6869~ Harrisburg, PA 17106-8695 INFORMATION (7:00 AM to 9:00 PM) IN STATE 1-800-952-~600 OUT-OF-STATE 717-~91-&190 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-$91-6191 3 LICENSE NO. : 19985~60 I~NITION INTERLOCK LICENSE,.' APPLICATION To apply for an Ignition Interlock license, please sign below and submit this page with a check or money order' in the amount of $10.00 to the mailing 'address listed at the bottom of this letter. Your check or money order should be made payable to PENNDOT. DRIVER'S LICENSE NUMBER - 19985q60 KENNETH EUGENE ROS~ LEHOYNE PA 170~$ 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 ~o apply for an Ignition Interlock license. PENNDOT P.O. Box 68695 Harrisburg, PA ~7106-8695 APPENDIX A BECKY L. HEBERLIG, APPELLANT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4874 CIVIL TERM IN RE: APPEAL REGARDING IGNITION INTERLOCK REQUIREMENT OPINION AND ORDER OF COURT Bayley, J., December 19, 2002:-- On October 24, ;2001, the Department of Transportation sent appellant, Becky L. Heberlig, the following notice: As a result of your 07/24/2001 conviction of violating Section 3731 of the Vehicle Code DRIVING UNDER INFLUENCE on 03/07/2001: Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 09/25/2001 at 12:01 a.m. (Emphasis added.) The notice also stated: 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. (Emphasis added.) On October 8, 2002, appellant filed an "APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS." The ignition interlock requirement is 02-4874 CIVIL TERM contained in Act 63 of 2000. The following provisions of the Act took effect on September 30, 2002. § 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 pemon 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. (Emphasis added.) § 7003. Additional driver's license restoration requirements. 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. §37'31 (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. -2, 02-4874 OWl L TEEM (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 privilege is 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 yea[r after otherwise being eligible for restoration under paragraph (1). Section 3. The provisions of 42 Pa.C.S. Ch. 70 shall apply to all persons convicted of a second or subsequent violation of 75 Pa.C.S. §3731 on or after the effective date of this section... (Emphasis added.) In Commonwealth v. Mockaitis, 50 Cumberland L.J. 184 (2001), decided on February 12, 2001, this court found that the authorization to PennDOT to withhold restoration of a driving privilege under Sections 7002 and 7003 of Act 63 of 2000, following the completion of a one year suspension, was unconstitutional.~ In Schneider v, Commonwealth of Pennsylvania, 790 A.2d 363 (Pa. Commw. 2002), the Commonwealth Court of Pennsylvania held that: "PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so.''2 The certified record of PennDOT does not reflect that its action imposing an ignition Mockaitis is on appeal to the Supreme Court of Pennsylvania. Schneider is on appeal to the Supreme Court of Pennsyl!vania. -3- 02-4874 CIVIL TERM interlock requirement at the end of the one year suspension of appellant's driving privilege resulted from an order of the trial court that sentenced her for driving under the influence. This court has consistently reversed that part of the orders of PennDOT imposing an ignition interlock requirement under Sections. 7002 and 7003 of Act 63 of 2000? However, before we can provide appellant relief on the merits we must resolve a motion by PennDOT to quash this appeal as untimely. The Judicial Code at 42 Pa.C.S. Section 5571(b) provides: Except as otherwise provided in subsections (a) & (c), an appeal from a tribunal or other government unit to a court.., must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order. The timeliness of an appeal is a jurisdictional issue.. Department of Transportation, Bureau of Driver Licensing v. Shemer, 157 Pa. Commw. 380 (1993). PennDOT notes that a final order requiring installation of an ignition interlock system for appellant to restore her driving privilege after the completion of the one year suspension was contained in the notice it sent to her dated October 24, 2001. Because this appeal was filed on October 8, 2002, PennDOT maintains that this court has no jurisdiction and the appeal must be quashed. While faciall'y appealing, the motion to quash is without merit. The license suspension in PennDOT's notice to appellant dated October 24, 2001, was for one year. As set forth by the Commonwealth Court in ' See, Shannon v. Commonwealth of Pennsylvania, 01-0131 Civil, (order and supporting opinion filed October 24, 2002). 02-4874 CIVIL TERM Schneider v. Commonwealth of Pennsylvania, supra, PennDOT has no statutory authorization to direct an ignition interlock requirement absent an order ol' a trial court. Yet that is exactly what PennDOT did in imposing an ignition interlock requirement on appellant. Now, a year after appellant served her one year suspension, PennDOT still resists restoring her driving privilege. This is not a situation where PennDOT issued a lawful order that appellant believed was wrong for which an appeal lies under Section 5571(b) of the Judicial Code. Rather, PennDOT's action, ~aken without statutory authorJ:~ation, was null and void at its inception even if the Supreme Court of Pennsylvania shouJd determine that Act 63 of 2000 is not unconstitutional. Given these facts, appellant can now challenge PennDOT's current refusal to restore her driving privilege until all vehicles owned by her are equipped with an ignition interlock system, and it has received a certification from the triaJ court that such interlock systems have been installed. ORDER OF COURT day of December, 2002, the refusal by the AND NOW, this Department of Transportation to restore appeilant's driving privilege following the completion of her one year suspension for a conviction of driving under the influence, I$ REVERSED. B. Bilyleyi J. KENNETH E. ROSS, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 02-6163.CIVIL TERM AND NOW, this ORDER OF COURT day of December, 2002, upon consideration of appellant's petition for appeal from imposition of ignition interlock requirements, IT IS ORDERED that a hearing shall commence at 2:30 p.m., Monday, March 31, 2003, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. This order shall act as a supersedeas, pursuant to 75 Pa.C.S. Section 1550(b), Pending said hearing. John A. Aborn, Esquire For Appellant George Kabusk, Esquire For the Department of Transportation Edgar B. :sal KENNETH E. ROSS, Appellant COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-6161 CIVIL TERM ORDER OF COU~T AND NOW, this 31st day of March, 2003, this matter having been called on an appeal challenging the imposition of the ignition interlock requirement, which the parties agree the legality of which will be determined by the Supreme Court of Pennsylvania when it decides the similar issue that is currently pending before it, the matter is continued generally to the call of the parties following that litigation. By the Court, Edgar George H. Kabusk, Esquire For the Department of Transportation John A. Abom, Esquire For Defendant prs KENNETH E. ROSS, PETITIONER COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVAN/A No. 02-6161 LICENSE SUSPENSION APPEAL AND NOW, this ~ day of._~~:x~_~, 2003, the appeal filed in the above referenced matter is REMANDED to the Department and the Department shall CORRECT THE RECORD AND RESCIND THE REQUIREMENT THAT THE PETITIONER COMPLY WITH ]?HE REQUIREMENTS OF THE IGNITION INTERLOCK LAW, 42 Pa. C.S. 7001-7003, that the Departtnnnt imposed without a court order as a condition to the restoration of the petitioner's driving privilege as a result o£the petitioner's violation o£Section 3731 &the Vehicle Code, violation date June 21, 2001. DY T~E~COU'[~T DISTRIBUTION: - ~ ~,l~eorge H. Kabusk, Esquire, PennDOT, Riverfront Office Center, 1101 South Front Street, Harrisburg, PA 17104-2516 ~ohn A. Aborn, Esquire, 36 South Hanover Street, Carlisle, Pennsylvania 17()13 v' OFFICE OF CHIEF COUNSEL - Vehicle & Traffic Law I)i¥ision lliverfront Office Center I IDI South Front Slreer Harrisburg PA 17104-2516 The Honorable Edgar B. Bayley The Court of Common Pleas of Cumberland County Cumberland County Courthouse I Courthouse Square Carlisle, Pennsylvania 17013 November 18, 2003 Re: Kenneth E. Ross v. Cmwlth. of Pennsylvania., Dept. of Trans., Court of Common Pleas of Cumberland County, 02-6161, License Suspension Appeal Dear Judge Bayley: This above-referenced matter is an appeal of the imposition of the ignition interlock which the Department imposed without a court order. The potitioner challenged the authority of the Deparhaent of Transportation (the "Department") to require the installation of an ignition interlock system in the absence of a court order directing such installation. See 42 Pa.C.S. §§ 7001-7003. The matter was continued generally. Based on the provisions of the recently-enacted law aCldressing driving under the influence and ignition interlock, the Department had adopted a policy in which it revised its position with respect to the imposition of the ignition interlock 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 Aborn regarding this case which had been continued and I feel ethically hound to follow through with my representations. Since that policy was adopted the Supreme Court issued Commonwealth of Pennsylvania v. Mockaitis, A.2d (Pa. 2003), posted on October 17, 2003, which upholds several &the Department's poSitions- regarding the issues concerrdng the ignition interlock. Please find enclosed a proposed Order for the above-mentioned matter. The proposed Order remands the appeal to the Depam,ent to update its records and remove the ignition interlock requirement which was imposed by the Department without a court order. GOYERNOR'S OFFICE OF GENERAL COUNSEL TELEPHONE: 717.787.2830 FAX: 717.705.1122 wmv.dot.state.pa, us I spoke to Mr. Abom, attorney for the petitioner, and he concurs with such a disposition and the proposed order. Ver~,, truly yours,. Cc: John A. Aborn, Esquire, 36 South Hanover Street, Carlisle, Pennsylvania 17013 Enclosure CUMBERLAND COUNTY ADULT PROBATION Plaintiff : VS. : IN THE COURT OF COMMON PLEAS OF CUN[BERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW Zane A Clair : NO. 18 N Front St : 01-6162 Wormleysburg, PA 17043 : : : : De~ndanffAddress : RE: N'O. 01-875 CIVIL TERM CRIMINAL TERM PRAECIPE TO SATISFY J-U'39GMENT TO THE PROTHONOTARY: Please mark satisfied the judgmem, in favor of plaintiff Cumberland County Adult Probation and against the above-named defendant, previously entered pursuant to 42 Pa. C.S.A. Section 9728. Also, please prepare a Certificate of Satisfaction. Da~: December 10, 2002 Dennis E. Lebo, Clerk of Court Charles R~ Gerow, L~quire Solicitor for flae Clerk of Court of Cumberland County, Pennsylvania cc: Defendant Probation Clerk of Court