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Home My WebLink About03-1311Michael L. Smead, Appellant Vo Commonwealth of PA, Department of Transportation, Bureau of Driver Licensing, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY N°':OJ-/$il Civil Term PETITION FOR APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS 1. Appellant herein is Michael L. Smead, residing at and having a mailing address off 109 Bungalow Road, Enola, PA 17025. 2. Appellee herein is the Department of Transportation of the Commonwealth of Pennsylvania (PennDOT), having a mailing address off Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, Pennsylvania 17104-2516. 3. This Honorable Court convicted Appellant on one count of violating 75 Pa.C.S. §3731(a), Driving Under the Influence. 4. This Honorable Court's sentence for this violation did not include a requirement to install ignition interlock devices on vehicles owned by Appellant. 5. Due to Appellant's DUI conviction, 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. Appellant's 1 year suspension pursuant to 75 Pa.C.S. §1532(b) ends on April 9, 2003. 7. PennDOT sent Appellant a Restoration Requirements Letter dated February 18, 2003, whereby PennDOT informed Appellant that his suspension will continue for one additional year if he does not install an ignition interlock device on every vehicle he owns. If Appellant does not comply, PennDOT will not restore Appellant's driving privileges on April 9, 2003, and Appellant will serve another one-year suspension for not installing an ignition interlock device. (A copy of the letter is attached hereto and marked as Appellant's Exhibit "A"). 8. Appellant appeals only 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 this Court in order to restore his driving privileges. 9. 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). 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 an order to do so by a trial court. For this reason, appeals from PennDOT's unilateral ordering of ignition interlock devices cannot be quashed as untimely. Heberlig 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 PeunDOT is void ab initio. 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 this Honorable Court did not include such a requirement as part of Appellant's original semence. WHEREFORE, Appellant respectfully requests this matter be set down for a hearing, Appellee restore Appellant's driving privileges supersedeas pursuant to 75 Pa.C.S. §1550(b) pending said hearing, and Appellee's imposition of ignition interlock devices on Appellant's vehicles be set aside. Respectfully Submitted, Date: THE LAW Paul Bradford !squire ORR Attorney for Appellant 50 East High Street Carlisle, PA 17013 (717) 258-8558 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17123 02/18/03 MICHAEL L SMEAD 109 BUNGALOW RD ENOLA PA 17025 DRIVER'S LICENSE NUMBER: 18285A66 BIRTH DATE: 12/17/57 ELIGIBILITY DATE: 0q/09/03 Dear MR. SMEAD 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 $50.00 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 DATE~ 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 *Declaration 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. IGNITION INTERLOCK LICENSE NO. : 18285~66 You are required to have an approved Ignition Interlock System installed in all of your vehicle(s). Approximately $0 days before your ELIGIBILITY DATE, you should contact one of the following approved vendors listed below to make arrangements to have the System installed. -Interlock Installation Services - 1-800-~52-1759 -Consumer Safety Technology, Inc. - 1-877-777-5020 -National Interlock, Inc. (serving Eastern PA) - 1-8&6-$~2-~98~ -American Court Services (serving Central/Western PA) - 1-888-565-6227 ~'Pennsylvania--i-nter~ock - i-866-718~8606 -Draeger Interlock, Inc. - 1-800-552-6858 You will need to provide the vendor the following court information before the System can be installed. COUNTY COURT NUMBER COURT TERM CUMBERLAND CTY 556 2000 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. TERM SUSPENSION/REVOCATION -You have a I YEAR(S) suspension/revocation that began (or will begin) on 12/21/01, Credit for serving this suspension/revoca- tion began (or will begin) on 0q/09/02 and will end on 04/09/03° The suspension/revocation resulted from a violation on 11/04/99 IGNITION INTERLOCK LICENSE -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 application 30 days BEFORE your eligibiiity date. An application is encIosed for your convenience. LICENSE NO. : 18285466 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 04/09/03. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7:00 AM to 9:00 PM) IN STATE 1-800-932-4600 OUT-OF-STATE 717-391-6190 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-$91-6191 LICENSE NO. : 18285q66 IGNTION 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 ~25.00 to the ma/ling address listed at the bottom of this letter. Your check or money order should be made payable to PENNDOT. DRIVER'S LICENSE NUMBER - 18285~66 MICHAEL L SMEAD 109 BUNGALOW RD ENOLA PA 17025 SIGNATURE TELEPHONE NO: If your address has changed, please print the correct address here: If you choose not to instal! an Ignition Interlock System, you do not have to apply for an Ignition Interlock License. PENNDOT Bureau of Driver Licensing P.O. Box 6869~ Harrisburg, PA 17106-8695 Michael L. Smead, Appellant Vo Commonwealth of PA, Department of Transportation, Bureau of Driver Licensing, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.' Civil Term CERTIFICATE 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 Harrisburg, PA 17104-2516 Paul Bradford 0~, Esquire Attorney for Appellant 50 East High Street Carlisle, PA 17013 (717) 258-8558 VERIFICATION I verify that I am the petitioner and that the statemems made in the foregoing Petition are tree and correct. I understand that false statements herein are made subject to the penalties of Pa. C.S. § 4904, relating to unswom falsification to authorities. MICHAEL L. SMEAD MICHAEL L. SMEAD, Appe 11 ant COMMONWEALTH OF PA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : CIVIL ACTION - LAW : 03-1311 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: HEARING CONTINUED ORDER OF COURT AND NOW, this 2nd day of June, 2003, on motion of the Appellant, hearing herein is continued until Friday, August 29th, 2003, at 3:30 p.m. By the Court, ~aul Bradford Orr, Esquire Law Offices of Paul Bradford Orr 50 East High Street Carlisle, PA 17013 For Appellant rge Kabusk, Esquire nsylvania Department of Transportation Office of Chief Counsel Third Floor Riverfront Office Center Harrisburg, PA 17104-2516 For Appellee n A. Hess, :mae PRAEClPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: PATTI J. GUMBERT, INDIVIDUALLY : AND AS ADMIN. OF THE ESTATE OF : RICHARD K. GUMBERT, DECEASED, : Plaintiff V. HOLY SPIRIT HOSPITAL, PENNSYLVANIA : NEUROLOGICAL ASSOCIATES, LTD., : CHARLES S. YANOFSKY, M.D., ALBERT : W. HECK, M.D., FRANCIS J. JANTON, III, : M.D., and JON L .VlCKERY, M.D.; : INTERNISTS OF CENTRAL : PENNSYLVANIA; MICHAEL L. : GLUCK, M.D.; and PETER M. BRIER, : M.D., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No.. 02-131'1 Civil Term CIVIL ACTION. LAW JURY TRIAL DEMANDED 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Plaintiff to the New Matter of Defendants, Pennsylvania Neurological Associates, Charles S. Yanofsky, M.D., Albert W. Heck, M.D., Francis J. Janton, M.D. and Jon L. Vickery, M.D. 2. Identify counsel who will argue the case: (a) Plaintiff(s): Paul F. D'Emilio, Esquire 660 Sentry Parkway Suite 210 Blue Bell, PA 19422 (b) Defendant(s): Laura Lee Baker, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 3. I will notify all parties that this case has been listed for argument. 4. Argument court Date: ,2003 Attorney for (x) Plaintiff Phone Number ( ) Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT on all counsel of record by placing the same in the United States mail at Blue Bell, Pennsylvania,, first-class postage prepaid, on the 7'~- day of (~/.~.4~ ,2003, and addressed as follows: Paul F. D'Emilio, Esquire 660 Sentry Parkway Suite 210 Blue Bell, PA 19422 Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Steven Barcavage, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGING 4200 Crums Mills Road Suite B Harrisburg, PA 17112 Laura Lee Baker, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 Puleo & [:)'Emilio PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: PATTI J. GUMBERT, INDIVIDUALLY : AND AS ADMIN. OF THE ESTATE OF : RICHARD K. GUMBERT, DECEASED, : Plaintiff : V. : : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02-1311 Civil Term HOLY SPIRIT HOSPITAL, PENNSYLVANIA : NEUROLOGICAL ASSOCIATES, LTD., : CHARLES S. YANOFSKY, M.D., ALBERT : W. HECK, M.D., FRANCIS J. JANTON, III, : M.D., and JON L .VICKERY, M.D.; : INTERNISTS OF CENTRAL : PENNSYLVANIA; MICHAEL L. : GLUCK, M.D.; and PETER M. BRIER, : M.D., : Defendants : CIVIL ACTION - LAW JURY TRIAL DEMANDED 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Plaintiff to the New Matter of Defendant, Holy Spirit Hospital. 2. Identify counsel who will argue the case: (a) Plaintiff(s): Paul F. D'Emilio, Esquire 660 Sentry Parkway Suite 210 Blue Bell, PA 19422 (b) Defendant(s): Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Streel P.O. Box 5950 Harrisburg, PA 17110-0950 3. I will notify all parties that this case has been listed for argument. 4. Argument c~urt Date: Attorney for (x) Plaintiff ( ) Defendant (610) 941-3600 Phone Number Attorney for (x) Plaintiff Phone Number ( ) Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT on all counsel of record by placing the same in the United States r0ail at Blue Bell, Pennsylvania, first-class postage prepaid, on the '~ ~ day of ~L ,2003, and addressed as follows: Paul F. D'Emilio, Esquire 660 Sentry Parkway Suite 210 Blue Bell, PA 19422 Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Steven Barcavage, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGING 4200 Crums Mills Road Suite B Harrisburg, PA 17112 Ms. Laura Lee Baker, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 Puleo & D'Emilio PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: PATTI J. GUMBERT, INDIVIDUALLY AND AS ADMIN. OF THE ESTATE OF RICHARD K. GUMBERT, DECEASED, Plaintiff V, HOLY SPIRIT HOSPITAL, PENNSYLVANIA NEUROLOGICAL ASSOCIATES, LTD., CHARLES S. YANOFSKY, M.D., ALBERT W. HECK, M.D., FRANCIS J. JANTON, III, M.D., and JON L .VlCKERY, M.D.; INTERNISTS OF CENTRAL PENNSYLVANIA; MICHAEL L. GLUCK, M.D.; and PETER M. BRIER, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02-1311 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Plaintiff to the New Matter of Defendants, Internists of Central Pennsylvania, Michael L. Gluck, M.D. and Peter M. Brier, M.D. 2. Identify counsel who will argue the case: (a) Plaintiff(s): Paul F. D'Emilio, Esquire 660 Sentry Parkway Suite 210 Blue Bell, PA 19422 (b) Defendant(s): Steven Barcavage, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGING 4200 Crums Mills Road Suite B Harrisburg, PA 17112 3. I will notify all parties that this case has been listed for argument. 4. Argument court Date: ,2003 ~ lre Attorney for (x) Plaintiff ( ) Defendant (610) 941-3600 Phone Number Attorney for (x) Plaintiff ( ) Defendant ('610) 941-3600 Phone Number CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT on al~ counsel of record by placing the same inj~ United ~tatQs mail at Blue Bell, Pennsylvania, first-class postage prepaid, on the '~day of /.,~ ,2003, and addressed as follows: Uo Paul F. D'Emilio, Esquire 660 Sentry Parkway Suite 210 Blue Bell, PA 19422 Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Steven Barcavage, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGING 4200 Crums Mills Road Suite B Harrisburg, PA 17112 Ms. Laura Lee Baker, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 Puleo & D'Emilio MICHAEL L. SMEAD, Petitioner VS. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLFNTY, PENNSYLVANIA 03-1311 CIVIL CIVIL ACTION - LAW APPEAL FROM LICENSE SUSPENSION ORDER AND NOW, this gl * day of August, 2003, hearing in the above captioned matter set for August 29, 2003, is continued to Wednesday, October 22 2003, at 3:45 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Paul Bradford Orr For the Petitioner SS, J. George Kabusk, Esquire For PennDOT :rim MICHAEL L. SMEAD, : Appellant : V. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION: BUREAU OF DRIVER : LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLANO COUNTY, PENNSYLVANIA CIVIL ACTION LAW 03-1311 C][VIL TERM APPEAL FROM LICENSE SUSPENSION IN RE: APPEAL WITHDRAWN ORDER OF COURT AND NOW, this 22nd day of October, 2003, on motion of counsel for the appellant, the within appeal is withdrawn, the court noting that the requirement for the Ignition Interlock device will be reinstated. By the Court, ~,~eorge H. Kabusk, Esquire For the Department ~l~aul B. Orr, Esquire For the Petitioner :bg Ke~A. Hess,