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Home My WebLink About97-06061 u- o , ~ d ~ ,:r ~ ~ J - ~ o ~ ~ 0- JAMES BRIAN MARKS, Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 97.6061 CIViL TERM LICENSE RECALL APPEAL V. COMMONWEALTH OF PA, DEPT, OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent 1M RE: t.f]:ARING DATE QBQER OF COURt AND NOW, November 6, 1997, hearing In the Petitioner's LIcense Recall Appeal Is fixed for Monday, February 9, 1998, at 2:30 P.M. Pending that hearing, the November 3, 1997, Order of Court Issued by President Judge Harold E, Sheely, which granted a supersedeas to the recall notice Issued by the Commonwealth, shall remain In effect, By the Court, David E. Hershey, Esquire Mancke, Wagner, Hershey & Tully 2233 North Front Street Harrisburg, PA 17110 J. _ e~... /It......c....C /lllc~f~ George H. Kabusk, Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104.2516 I . .. " pOi I,' .; " I", '. Ii. ~.....~ '" i .. I ~.., " *' JAMES BRIAN MARKS, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent NO. 97-6Q61 CIVIL TERM IN RE: LICENSE RECALL APPEAL ORDER OF COURT AND NOW, this 3rd day of November, 1997, a hearing was scheduled on the petition of James Brian Marks for the Court to issue a supersedeae on a recall of the operating license of James Brian Marks allegedly because of a seizure disorder. Mr. Marks appeared today with his counsel, David Hershey, Esquire. No representative from the Commonwealth appeared even though they were given proper notice of this hearing; therefore, pursuant to 75 Pa.C.S.A. 1550(b)(ii), the Court grants a supersedeas on the recall of the operating license of James Brian Marks and the Court will set a hearing to determine whether the Petitioner's driver's license ~hould be denied or cancelled or whether his operating privileges should be suspeneded, revoked, or recalled. Pending that hearing, as indicated, the Court grants a supersedeas to the recall notice issued by the Commonwealth of Pennsylvania. Counsel for the Petitioner presented a letter from Albert W. Heck, M.D., indicating that since Petitioner has started to take medication and is not having any reccurence of a seizure, that his seizures are therefore controlled. By the court, David E. Hershey, Esquire For the Petitioner :1th " c Ii>- W:l~~ z:J . Cl.... .. i~~I~ ni ~di U CIl ft Z II: ft <( W ~ ~J: " ~ , . . WI DO H'~"Y crATI"" THAT lHI WitHIN II A l~U' ANO CO"- "-lOT CO"... 0" THI! O"IQINAL ftUD .. '"" AC110N I. ........ ""., I', j&!.......,.,__nr IllII 7~ ifi.~J!L'P ,'" ....-. . MANCKE. WAGNER. HERSHEY & TULLY I.' I' ATT()NoIEV . JAMES BRIAN MARKS, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. Q1- \..9(X.o I (\'~,-.Q \ e" I"l LICENSE RECALL APPEAL COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent AND NOW, ORDER 01' COURT this j/ STday of ()(/Ujj'i/L , 199~ upon Petition of James Brian Marks, a hearing is set on the License Recall Appeal for the3ti.c1 day of IVO ~/, , 199/ at I,' u J o'clock t.m. in Courtroom Number..:i- Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, pennsylvania, all proceedings to stay meanwhile. Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least thirty (30) days prior to the date of said hearing. Pursuant to Section 1550 (b) (i) (ii) of the pennsylvania Motor Vehicle Code, petitioner having reported with his counsel to this Court and noting that the Department of Transportation waives its presence at this proceeding, said supersedeas is hereby granted. BY THE COURT: ~t.. /I /) ("... /' j..{a/..ltI r. J~ t J. / / ,. ~~)\lcn:l\uot~ ~)\Q&d Nut.u 10 \)~ .l>\ \tm.,\Xr\(\.\~ JAMES BRIAN MARKS, petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. Q'1- loO(o\ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent LICENSE RECALL APPEAL LICKNSB aBCALL APPBAL AND NOW, comes Petitioner, James Brian Marks, by and through his at torneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this License Recall Appeal: 1. Petitioner, James Brian Marks, is an adult individual with a valid Pennsylvania license with a residence address of 436 Herman Avenue, Lemoyne, Cumberland County, Pennsylvania 17043. 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-~516. 3. petitioner received a notice of license recall by way of letter dated October 02, 1997 from the Department of Transportation indicating that, as a result of medical records submitted to the Department, he allegedly does not meet the Department's standards. See Exhibit "A" attached hereto and incorporated herein by reference. 4. The Department's recall is improper, illegal, and unlawful for some or all of the following reasons: a. The Department did not have reason to believe, either based on knowledge of petitioner or on statistical inference, that he may be a traffic safety hazard in violation of 51514 (b) of the Vehicle Code. b. The proposed action violates Petitioner's procedural and substantive due process rights under the pennsylvania and Federal Constitut:lons as do the regulations relied upon by the Department of Transportation and the procedures adopted for the action by the Department of Transportation. c. Said procedures and action by the Department of Transportation violates the Pennsylvania Human Relations Act, 43 Pa. C.S. 5941 et. sea., the Federal Rehabilitation Act, 29 U.S.C.S. 55795 ~ ~., and the Americans with Disabilities Act, 42 U.S.C.S. 512111. d. Said recall is unwarranted under the facts of this case and under the medical condition of the Petitioner. e. Said recall is not regulations of Transportation at 67 in conformity with the Department Pa, Code 583.5. the of f, The Department's regulation at 67 Pa. Code 583.5 creates an irrebuttable presumption that a person is incompetent to operate a motor vehicle which is in violation of the Pennsylvania and Federal Constitutions. 5. A supersedeas is being requested based upon the medical opinion of Petitioner's treating physician. WHEREFORE, Petitione~ respectfully requests that this Court schedule a hearing to determine the validity of tha recall proposed by the Department in Exhibit "A" and to schedule a hearing on the supersedeas request prior to November 6, 1997. Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY Date: ~ ~y By , Dav! E. Hershey, Esquire I.D. 1143092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 3 CBRTlrICATB or SBRVICB I, David E, Hershey, Esquire, 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 attorneys 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, via certified mail, postage prepaid, at Harrisburg, pennsylvania, on the ____ day of October, 1997, at the address listed below: George Kabusk, Esquire Office of Chief Counsel PA Department of Transportation Riverfront Office Center, Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 ~ By: David E. Hershey, Esquire MANCKE WAGNER HERSHEY & TULLY 2233 North Front Street (717) 234-7051 4 ( , COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 UCTOBER 02. 1997 JAM(S BRIAN MARKS 43b fl(RMAN AV( ~72~8bS883bb725 001 0~/25/1~'l7 20~210H 03/03/1%b L(MOYN( PA 17043 Dear Motorist I We have received medical information indicating that 1I0U have a medical condition which prevents yoU from safely operating a motor vehicle. As of 11/06/1997 you may no longer drive. Your driving 'privilege is hereby recalled indefinitely as mandated by Section 15191c) of the Vehicle Code, This decision has been made hy comparing your medical condition with the standards rf!comn,pnded by our Medical Advisory Board and adopted by this Department. This action will remain in effect until we receive medical irifoi"lII<ltlon ~ that your ClImf1tion ~-lIas improved an~i--'you--;;-r--;;a-bliit:-o-SiiTelY oflerate a-rnlITor vehicf';-;--'-- ........... Since you have a seizure disorder. free for a six month period. with before you will be el tyible for driving privilege. you must remain seizure or without medication, reinstatement of your In ~rder to comply with this sanction you ore required tu return any current driver's license. learner's permit and lor temporary driver's license lcam"ra 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 DLl6LC Form or a sworn affidavit slating that you are aware of the sanction against your driving privilege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 15711a)(4) of the Vehicle Code. WHEN THE DEPARTMENT RECEIVES ACKNOWLEDGEMENT. WE WILL SENO YOU A RECEIVE THIS RECEIPT WITHIN 15 DAYS YOUR LICENSE OR RECEIPT, IF YOU DO NOT CONTACT THE DEPARTMENT I IXtIIIT JAMES BRIAN MARKS, Petitioner I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA V. I 1 COMMONWEALTH OF PENNSYLVANIA I DEPARTMENT OF TRANSPORTATION, I BUREAU OF DRIVER LICENSING, Respondent NO. 97-6061 CIVIL TERM IN REI LICENSE RECALL APPEAL ! I !, i I I ! , I ! I I I i i f , I I I I ; ORDER OF COURT AND NOW, this Jrd day of November, 1997, a hearing was scheduled on the petition of James Brian Marks for the Court to issue a supersedeas on a recall of the operating license of James Brian Harke allegedly because of a seizure disorder. Hr. Harks appeared today with his counsel, David Hershey, Esquire. No representative from the Commonwealth appeared even though they were given proper notice of this hearing; therefore, pursuant to 75 Pa.C.S.A. 1550(b) (ii), the Court grants a supersedeas on the recall of the operating license of James Brian Marks and the Court will set a hearing to determine whether the Petitioner's driver's license should be i I t I i denied or cancelled or whether his operating privileges should be suspeneded, revoked, or recalled. Pending that hearing, as indicated, the Court grants a supersedeas to the recall notice issued by the Commonwealth of Pennsylvania. Counsel for the Petitioner presented a letter from j I Albert W. Heck, H.D., indicating that since Petitioner has started to take medication and is not having any reccurence of a 1- .eizure, that hie seizure. are therefore controlled. By the Court, !- iL.. Har P.J. David E. Hershey, Esquire , For the Petitioner -\U""'",..I.Ly~u....-\o~t1..~ IUh .. JAMES BRIAN MARKS, Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERlAND COUNTY, PENNSYLVANIA NO, 97.6061 CIVIL TERM LICENSE RECALL APPEAL V. COMMONWEALTH OF PA. DEPT. OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent ~ AND NOW, January 12, 1998, hearing In the Petitioner's License Recall Appeal Is rescheduled from Monday, February 9, 1998, at 2:30 p.m. to FRIDAY, FEBRUARY 20, 1998, at 10:00 A.M. Pending that hearing, the November 3, 1997, Order of Court Issued by President Judge Harold E. Sheely, which granted a supersedeas to the recall notice Issued by the Commonwealth, shall remain In effect. By the Court, J. David E, Hershey, Esquire Mancke, Wagner, Hershey & Tully 2233 North Front Street Harrisburg, PA 17110 c.~ (l~.t I/I'IIJ.~ . George H. Kabusk, Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 ""' .~" ..', ;,....~:'-"l}_~d"r"l . -.11l ;:J "'1' ....- f).] 'oJ , ~ I C' I ",. . '. '~ II rI (;5 .,. 1.1'; :~ _. . J. . . , :, ", ,:,- ... ,., L <J :;'.,;:vQjl:.:J - JAMES BRIAN MARKS, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. No, 97.6061 Civil COMMONWEALTH OF PENNSYL VANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL AND NOW, this ...Ii ORon 0,1----= j), day of ~ .1998, upon representations of George H. Kabusk, Assistant Counsel for the Department of Transportation, that the motorist, James Brian Marks, provided a convulsive disorder reporting form from his physician, Dr. Heck, indicating that Mr. Marks has been seizure free for six months from June 1997, which was the date of the episode which was the basis of the recall, the appeal in the above referenced matter is REMANDED to the Department of Transportalion to update its records in accordance with the convulsive disorder fonn submitted by Mr. Mark's physician, Dr. Heck, and to RESCIND the recall which is the subject of this appeal. BY THE COURT J. DISTRIBUTION: George Kabusk, Esquire, Pa. DOT, Office of Chief Counsel, Riverfront Office Center, hird Floor. 1101 South Front Street, Harrisburg, PA 17120.2516. David E. Hershey, Esquire, 2233 North Front Street, Harrisburg, P A 17110 ~~ .l/~'th8. .s.il. .. '. ('" .( ga F~f' ? J :: '1 ;~i: .~'O CL"", lJ~.:I\;\.'.'j I \ ".. "I .,'.;1 " 4 COMMONWEALTH OF PENNSYI.\'A:'liIA DEPARTMENT m' TRANSPORT A TlON OfFICE Of CHiEf ('OlJNSEI. VEI\ICU Ie TR.~HIC I.AW DIVISION RI\'ERFRONT Offl('E ('ENTER.THIRD fl.OOR 1101 SOUTII .'RllNT STREET IIARRtSBt.:RG, PENNSHV'MilA 17104-1516 nUPIIONE: (717) 787-Z830 fAX: (717,705.IUZ February 19, 1998 President Judge George E. Hoffer Court of Common Pleas, Cumberland County 1 Courthouse Square Carlisle, PA 17013.3387 Re: James Brian Marks v. Cornrow. ofPa., DOT, BDL. 97.6061. License Suspension Appeal Dear Judge Hoffer: A hearing in the above mentioned mailer is scheduled for hearing on February 23, 1998, at 10:00 a.m. Mr. Marks has provided documentation from his physician indicating that he has been seizure. free for six months from the date of the episode which was the basis of the Department's recall of his operating privilege and accordingly he has satisfied the Department's physical requirements and as a result it is unnecessary to have a hcaring in this matter, For your convenience, I have prepared a proposed Ordcr remanding the matter back to the Department to update its records and rescind the suspension which is the basis of this appeal. Mr. Hershey concurs with the proposed Order. Please find enclosed two self addressed stamped envelopes for the signed orders. Thank you for your cooperation. If yo II have any questions, please do not hesitate to contact me. Sincerely, i::;f..~ Assistant Counsel Enc: I cc: David E, Hershey. Esquire, 2233 North Front Street, Harrisburg, PA 17110 . JAMES BRIAN MARKS, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. No. 97.6061 Civil COMMONWEALTH OF PENNSYL VANIA, : DEPARTMENT OF TRANSPORT A TION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL ORDER AND NOW, this day of .1998, upon representations of George H. Kabusk, Assistant Counsel for the Department of Transportation, that the motorist, James Brian Marks, providcd a convulsive disorder reporting form from his physician, Dr, Heck, indicating that Mr. Marks has been Geizure free for six months from June 1997, which was the date of the episode which was the basis of the recall, the appeal in the above referenced matter is REMANDED to the Depanment of Transponation to update its records in aecordance with the convulsive disorder form submitted by Mr. Mark's physician, Dr. Heck, and to RESCIND the recall whieh is the subject of this appeal. BV THE COURT J. DISTRIBUTION: George Kabusk, Esquire, Pa, DOT, Office of Chief Counsel, Riverfront Office Center, Third Floor, 1101 South Front Street, Harrisburg, PA 17120-2516. David E. Hershey, Esquire, 2233 North Front Street, Harrisburg, PA 17110