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Home My WebLink About03-0059Frederick R. Henry, Appellant Commonwealth of PA, Department of Transportation, Bureau of Driver Licensing, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 0 3 -5'9 Civil Term PETITION FOR APPEAL FROM IMPOSITION OF IGNITION INTERLOCb; REOUIREMENTS l. Appellant herein is Frederick Ralph Henry, residing at and having a mailing address ot~ 1330 Goodyear Road, Gardners, PA 17324. 2. Appellee herein is the Department of Transportation of the Commonwealth of Pennsylvania (PennDOT), having a mailing address o~ Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, Pennsylvania 17104-2516. 3. On November 20, 2001, appellant was convicted in this Honorable Court for violating 75 Pa.C.S. §3731(a), Driving Under the Influence. 4. The Honorable Court's sentence for these violations included a prison term and a fine, but did not include a requirement to install ignition interlock devices on vehicles owned by Appellant. 5. PennDOT suspended Appellant's driving privileges for a period of 1 year pursuant to 75 Pa.C.S. §1532{b) for the DUI conviction. 6. By letter or notice dated October 21, 2002, approximately 30 days before the Appellant's 1 year suspension was due to expire, PennDOT notified Appellant that his operator's license would be suspended for an additional year if Appellant did not install an ~gnmon interlock device on all vehicles owned by him. (A copy of the letter is attached hereto and marked as Appellant's Exhibit "A"). 7. Appellant only appeals the ignition interlock requirement that PennDOT imposed unilaterally without an order to do so from this Honorable Court. Appellant complied, or will comply, with all other requirements imposed by PennDOT in order to restore his driving privileges as well as with all requirements ordered by this Honorable Court as pan of his sentence. 8. 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 PennDOT to have independent authority to impose installation of an ignition interlock device." Schneider v. Commonwealth, 790 A.2d 363 (Pa. Cmwlth. 2002). 9. Following the holding of Schneider, Appellant asserts that PennDOT's imposition of ignition interlock requirements is unlawful in that it was done unilaterally without legal authority and in the absence of the imposition of those requirements by this Honorable Court. 10. On December 19, 2002, The Honorable Edgar B. Bayley issued an opinion stating that PennDOT's actions are null and void when it orders the imposition of an ignition interlock device in the absence of a trial corot order, For this reason, appeals from PennDOT's unilateral ordering of ignition interlock devices cannot be quashed as untimely. Iteberlig v. Commonwealth, ~ Cumberland L.J.. (December 19, 2002). 11. On December 30, 2002, the Commonwealth Court issued an unreported opinion similar to Judge Bayley's in Heberlig. Ceykovsky v. Commonwealth, No. 1501 C.D. 2002 (December 30, 2002). The Commonwealth Court held that PennDOT cannot quash as untimely an appeal challenging its unilateral imposition of ignition interlock devices because such a requirement by PennDOT is void ab ##rio. The Commonwealth Court also held that in such circumstances, nunc pro tunc appeals are appropriate. 12. Following the holdings and reasoning of Schneider, Heberlig, and Ceykovsky, appellant asserts that PennDOT's imposition of ignition interlock devices is unlawful in that it was done unilaterally without legal authority because such a requirement was never ordered by this Court. WHEREFORE, Appellant respectfully requests this matter be set down for a hearing, PennDOT restore Appellant's driving privileges supersedeas pursuant to 75 Pa.C.S. §1550(b) pending said hearing, and PennDOT's imposition of ignition interlock devices on Appellant's vehicles be set aside. Date: Respectfully Submitted, By: ~ ~ Paul Bradfo~ ~l~)~ Attorney for Apl , Esquire ;llant 50 East High Street Carlisle, PA 17013 (717) 258-8558 Frederick R. Henry, Appellant Commonwealth of PA, : Department of Transportation, : Bureau of Driver Licensing, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.~ Civil Term C~ERTIFICATE OF SERVICE I hereby certify that on this date, I mailed a true copy of a Petition for Appeal from Imposition of Ignition Interlock Requirements by the Department 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 Attorney for Appellant Frederick R. Henry, Appellant Commonwealth of PA, Dept. of Transportation, : Bureau of Driver Licensing, : Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. ___ Civil Term ATTORNEY VERIFICATIOI~I The undersigned, Paul Bradford Orr, hereby verifies and states that: He is the attorney for the Defendant; He is authorized to make this verification on his behalf; The facts set forth in the foregoing Petition for Appeal from Imposition of Ignition Interlock Requirements are known to him and not necessarily to his client; The facts set forth in the foregoing Motion are true and correct to the best of his knowledge, information and belief; and He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: [_~0~5_ _ Respectfully submitted, LA~W"~F~s OF PAU~DFORD 50 East High Street Carlisle, PA 17013 (717) 258-8558 Attorney for Appellant Superior Court ID//71786 ORR COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17123 10/21/02 FREDERICK R HENRY 133o GOODYEAR RD GARDNERS PA 1732q DRIVER'S LICENSE NUMBER: BIRTH DATE: 12/27/§2 Dear MR. HENRY 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 wili be notified by the Department of Transportation CPENNDOT) that Your driving privilege has been restored. 0nly after that may You drive° The date when You are eligible to have Your driving Privilege restored has not been determined. To determine this ELIGIBILITY DATE~ You must resolve any issues listed in this letter as DRIVER,S LICENSE RETURN, INDEFINITE SUSPENSION~ INDEFINITE and/or PRISON RELEASE REQUIREMENT. CANCEL~ INDEFINITE RECALL, Please read the following information carefully and be sure to complete all requirements to have your driving Privilege restored. Uniess 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 P~-yable lo PENNDOT. PRISON RELEASE REQUIREMENT (ACT 151) -The Court has sentenced You to serve a Prison term Section 15ql of the Vehicle Code, You Will not rec Pursuant to~ this SUspension/revocatio ' ~t~l You Serve _ . n or any additi ezve Credit f [nat o ...... Your prison term ona~ sUSpenslon/r ~r ~n,,~.~_"' prison term i ...... '. The Court mu Your PROBATION ete"' PENNDOT to PENNDOT m · s Properly notified. ~SUre that PENND ~c~ and/or the Court to ~os that You PROOF OF INSURANCE -W~th~n $0 days of Your ELIGIBIL)TY DATE, Provide a copy of one of the following to PENNDOT to show that currently LICENSE NO. : 15955376 registered in Pennsylvania in YOur name are insured: ~Insurance ID Card ~Declaration Page of Your insurance POlicy ~Insurance Binder ~An'applicatJon of insurance to the PA Auto Insurance Pian If you do not own a motor vehicle currently registered in Pennsylvania, send a Signed statement of this fact to PENNDOT which reads ,,! 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.· In order to have Your driving Privilege restored You must apply for an Ignition Interiock license. An Ignition InterIock iicense entities You to drive only vehicles equipped With an Ignition Interlock SYstem. You may make apPiication 30 days BEFORE Your eligibility date. An application is enclosed for YOur COnvenience. 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 Iisted beiow. Phone numbers are Provided for Your use. To ensure prompt customer service, Please write Your driver,s iicense number, listed at the beginning of this letter, on documents You send to PENNDOT. Thank You. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Bo× 68693 Harrisburg~ PA 17106-8693 INFORMATION (7:00 AM to 9:00 PM) IN STATE OUT-OF-STATE 1-800-932-q600 TDD IN STATE 717-391-6190 TDD OUT-OF-STATE 1-800-228-0676 717-$91-6191 LICENSE NO. : 1§955576 IGNITION 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 ~12.00 to the maiIing address listed at the bottom of this ietter. Your check or money Order should be made Payable to PENNDOT. DRIVER,S LICENSE NUMBER - 15955376 FREDERICK R HENRy ............. i~3-~O_GOOI]¥E~R_RD ...... GARDNERS PA 1732q 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 MA-tLING ADDRESS: · PENNDOT P.O. Box 68693 Harrisburg, PA 17106-8693 Frederick R. Henry, Appellant Commonwealth of PA, Department of Transportation, Bureau of Driver Licensing, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: 03 ~ $-c) Civil Term JAN 07 ORDER AND NOW, this I0~h day of~~.... 2003, upon consideration of Appellant's appeal, a hearing shall be held on the_ ~l _day or~0~h _, 2003, at 5:~6 o'clook __~__M in Courtroom Number ~ , Cumberland County Courthouse, Carlisle, Pennsylvania. AND NOW, Appellee is hereby ordered to reinstate Appellant's driving privilege supersedeas pursuant to 75 Pa.C.S. §1550(b) pending said hearing. Paul Bradford Orr, Esquire Law Offices of Paul Bradford Orr 50 East High Street Carlisle, PA 17013 BYT Pennsylvania Department of Transportation Office of Chief Counsel Third Floor Riverfront Office Center Harrisburg, PA 17104-2516 FREDERICK R. HENRY, Appellant Vo : · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : COMMONWEALTH OF pENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, : Appellee : NO. 03-0059 CIVIL TERM QRDER.OF COURT 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, George H. Kabusk, Esquire For the Department of Transportation Paul B. Orr, Esquire For Defendant prs Frederick R. Henry, PETITIONER v. 1 COMMONWEALTH 0F PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, pENNSYLVANIA No. 03-59 LICENSE SUSPENSION APPEAL AND NOW, th filed in the above refer CORRECT THE RE PETITIONER COM INTERLOCK LAW order as a condition tt petitioner's violation ORDER ~-'f) day of ~ ,2003, the appeal ~nced matter is REMANDED to the Department and the Depath~ent shall IORD AND RESCIND THE REQUIREMENT THAT THE 'LY WITH THE REQUIREMENTS OF THE IGNITION ~2 Pa. C.S. 7001-7003, that the Department imposed without a court the restoration of the petitioner's driving privilege as a result of the f Section 3731 of the Vehicle Code, violation date March 17, 2001 DISTRIBUTION: ( /~Seorge H. Kabusk, E4quire, PannDOT, Riverfront Office Center, 1101 SoutKFront Street, / Harrisburg, P4 17104-2516 . ~aul B. Orr, Esquire,~0 East High Street, Carlisle, Pennsylvama, 17013 OFFICE OF C~IIEF COUNSEL - Vehide & Traffic Law Divisioo Riverfront Office Center I101 South Froot Street Harrisburg PA 17104-2516 October 24, 2003 The Honorable Edgar B. Bayley The Court of CommonlPleas of Cumberland County Cumberland County COurthouse 1 Courthouse Square Carlisle, Pennsylvania 17013 Re: Frederkk R. Henry v. Cmwith. of Pennsylvania., Dept. of Trans., Court of CommOn Pleas of Cumberland County, 03-59, License Suspension Appeal Dear Judge Bayley: The above-referenced matter is an appeal of the imposition of the ignition interlock which the Depamnent 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 ord6r directing such installation. See 42 Pa.C.S. §7002. The matter waS continued generally. Based on the p?ovisions 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 wilh 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 represegtatlons of such pol cy to Attorney Orr regarding this case which had been continued and I feel ethically bound to follow through with my representations. Since that policy was adopted the Supr0me Court issued Commonwealth of Pennsylvania v. Mockaitis, _ A.2d _ (Pa. 2003), posted on October 17, 2003, which upholds several of the Department's positions regarding the issues c0nceming the ignition interlock. Please find enclosed a proposed Order for the above-mentioned matter. The proposed Order remands the appeal to the Depm'tment to update its records and remove the ignition interlock requirement which was imposed by the Department without a court order. I spoke to Mr. iOrr, attorney for the petitioner, and he concurs with such a disposition and the proposed order. GOVERNOR'S OFFICE OF GENERAL COUN EL TELEPHONE: 717.787.2830 FAX: 717.705.1122 www.dot.state.pa.us Very truly yours, George H. Kabusk Cc: Paul B. Orr, Esquire, 50 East High Street, Carlisle, Pennsylvania 17013 Enclosure