Loading...
HomeMy WebLinkAbout00-05599 f ... COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CffiEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER-THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104.2516 TELEPHONE: (717) 787-2830 FAX: (717)705-1122 September 5, 2000 Honorable Kevin A. Hess, Judge Court of Common Pleas, Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Re: Harold Prowell v. Commw. ofPa., DOT, BDL, 2000-5599 Civil, License Recall Appeal Dear Judge Hess: The above mentioned licensee filed a License Recall Appeal from a notice sent by the Department of Transportation informing the licensee that the licensee's operating privilege was recalled, The Department of Transportation, by notice dated July 13, 2000, informed the licensee that the Department had received medical information indicating that the licensee has a General Medical condition which prevents the licensee from safely operating a motor vehicle and as a result the Department recalled indefinitely the licensee's operating privilege as mandated by Section 1519( c) of the Vehicle Code effective August 17, 2000, The petitioner attached to the petitioner's License Recall Appeal an Order that you signed, That ordered, in part, stated: "ALL PROCEEDINGS TO STAY PENDING HEARING DE NOVO." Generally, the filing of a Petition for Appeal acts as an automatic supersedeas in most license suspension and revocation appeals, If! may direct your attention to Section 1550 of the Vehicle Code, specifically to subsection (b), which was amended Act 118 of 1996 and by Act 23 of 1999, Section 1550 of the Vehicle Code now states, in part: 1550, Judicial review (a) General rule, Any person who has been denied a driver's license, whose driver's license has been canceled or whose operating privilege has been recalled, suspended, revoked or disqualified by the department shall have the right to appeal to the court vested with jurisdiction of such .- .. "~ , ~~~ . " appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure): The appellant shall serve a copy of the petition for appeal, together with a copy of the notice of the action from which the appeal has been taken, upon the department's legal office, (b) Supersedeas, (1) (i) Except as provided in subparagraphs (ii) and (iii), filing and service of a petition for appeal from a suspension or revocation shall operate as a supersedeas until fmal determination of the matter by the court vested with the jurisdiction of such appeals. (ii) The filinl! and service of a petition for appeal from a denial, recall, suspension or cancellation of a driver's license under section 1503 (relating to persons ineligible for licensing; license issuance to minors; junior driver's license), 1504 (relating to classes oflicenses), 1509 (relating to qualifications for school bus driver endorsement), 1514 (relating to expiration and renewal of drivers' licenses), 1519 (relatinl! to determination of incompetency) or 1572 (relating to cancellation of driver's license) shall not act as a supersedeas unless ordered bv the court after a hearinl! attended bv the petitioner. 75 Pa, C,S, S 1550, (Emphasis added,) As you can see, pursuant to Section 1550 of the Vehicle Code the filing of a License Recall Appeal in a medical recall pursuant to Section 1519 of the Vehicle Code does not act as an automatic supersedeas, Section 1550(b) ofthe Vehicle Code provides for a supersedeas only upon an Order by the Court after there has been a hearing specifically addressing the issuance of the supersedeas that the petitioner has attended, The Department in a Section 1519 of the Vehicle Code medical recall appeal may only restore the petitioner's operating privilege upon an Order for supersedeas based upon a supersedeas hearing which the petitioner attended, The Order issued August 16, 2000, does not indicate that a supersedeas hearing was held that was attended by the petitioner, Based upon the aforementioned, the Department may not restore the petitioner's operating privilege. I respectfully request that based upon Section 1550(b)(ii) of the Vehicle Code the Order of August 16, 2000, in regard to the issuance of the supersedeas, be vacated. Sincerely, -"=>1<=.". ~~ '" , "~ c George H. Kabusk Assistant Counsel cc: Phillip L. Zulli, Esquire, 1501 North Front Street, Harrisburg, P A 17102 Francis p, Bach, Assistant Counsel in Charge, Vehicle and Traffic Law Division '-,,~ ~- ~.~ ... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Plaintiff No,:()()-F1Yl1~ vs, APPEAL FROM RECALL OF LICENSE HAROLD PROWELL Defendant ORDER AND NOW this I CLI:J day of AUGUST, 2000 , upon reviewing the Petition ofthe Petitioner, HAROLD PROWELL" a hearing de novo is scheduled for fflf~ f ~ ~aoo L/ dQ , ~ -' at Cf';3dJL, M., in Courtroom No---+-, CUMBERLAND COUNTY COURT OF COMMON PLEAS, 1 Court House Square, High and Hanover Streets, Carlisle, Pennsylvania 17013,. ALL PROCEEDINGS TO STAY PENDING HEARING DE NOVO, WHEREFORE, it is so ORDERED BY THE COURT 1. '~"",.~ ~ -- E i. 1~ '-I , <1fll! >- ~ "" UJO (;)cZ ,,~ ~) rz: ::r.~ Ob J l; ~f.L ~~L ~: u. o ~ .o_"'~'~",Q co (') >- E:; "'- :::J p~ ,,-lZ ':'<: O.:::=-~ Z:;....1 :-~C0 612 cuifi COo.. ~'$ ;S o C\J Q: \..0 <:!J :::0 "" o o ~--;; ." ,,- , ~~j~-- , "" ~, ... ",Jlil!f_lB.cli1_illJ!JJi': J!I-rlil ._~~ " ,>,_,._.1. ,c-_,,0'~_"' ,IT IlJ-'UTI,. " lP!5\'l " lTr , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Plaintiff No, /IV-Ss'C}9 ~ I~ vs. HAROLD PROWELL Defendant APPEAL FROM RECALL OF LICENSE SUSPENSION NOW COMES, HAROLD PROWELL" by and through his Attorney, Philip L. Zulli, Esquire, and hereby files this APPEAL FROM RECALL OF LICENSE SUSPENSION, for the following reasons: 1. Petitioner is Harold Prowell is a citizen of the Commonwealth residing at 3000 Mayfred Lane, Camp Hill, Pennsylvania 17011. 2. Petitioner was issued and possesses a valid Pennsylvania Driver's License, No. 0008571. 3. By Official Notice dated July 13, 2000, the Department recalled Petitioner's Driver's license, without providing a basis therefore. Exhibit A. 4, The Department refused Petitioner's request for information explaining the basis for the recall; therefore Petitioner invokes his right of statutory appeal pursuant to Section 1550 of the Vehicle Code, -'PI ~ . ~,",J'F' WHEREFORE, Petitioner requests that his appeal be granted the recall set aside, R<~~b~:rt PhmPL~~~' Atty, ill, No.: 47,499 1501 North Front Street, Harrisburg, Pennsylvania 17102 Phone: (717) 238-9004 Fax: (717) 238-3230 Dated: August 11, 2000 ,~~, ,. ~ recallns COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: July 13, 2000 HAROLD PROWELL 3000 MA YFRED LN CAMP HILL PA 17011 Dear Mr. HAROLD PROWELL: We have received medical information indicating that you have a General Medical condition which prevents you from safely operating a motor vehicle. As of 08/1712000, you may no longer drive. Your driving privilege is hereby recalled indefinitely as mandated by Section 1519(c) ofthe Vehicle Code, This decision has been made by comparing your medical condition with the standards recommended by our Medical Advisory Board and adopted by this Department. This action will remain in effect until we receive medical information that your condition has improved and you are able to safely operate a motor vehicle, In order to comply with this action, you must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before the effective date listed above. If you cannot comply with the requirements stated above, a sworn affidavit stating that you are aware of the sanction against your driving privilege must be submitted, When the Department receives your license or affidavit, we will send you a receipt. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc,) in order to ohtain. your photo identification card, You have the right to appeal to the Court of Common Pleas (Civil Division) within thirty (30) days of the mail date of this notice, If you file an appeal in the County Court, the Court will give you a time-stamped certified copy of the appeal, In order for your appeal to be valid, you must send this time.stamped copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 A Ii " I, b"" -, - ~ - . -~ -~-- C~",J",c,' ;",~" ''',,', ,,,;;,;,';,,;~,,,;,,",,;;;,,i';;;c.;;'h' i"";"";";,,';;;:c",,,';";'k ';"",,,,,;, " ,"0 ;C',' ;';' "', ';C,""""",',,- HAROLD PROWELL 3000 MA YFRED LN CAMP HilL PA 17011 _" ,0 ~, ~ ll! " VERIFICATION The undersigned having read the forgoing Appeal from Recall of Driver's License states that the language within is based on information furnished to counsel, or such information has been gathered by counsel in the course of preparing this Appeal from recall of license suspension, and that it is true and correct to the best of the undersigned signer's knowledge, information and belief. To the extent that the contents of the fortigoing,Answerarethat of counsel, the undersigned verifies that he has relied upon counsel and information provided to him in the taking of this Verification, This Verification is made subject to the penalties of 18 Pa, C.S.A. S 4904 of the Crimes Code (relating to unsworn falsification to authorities), #~?~ Har61d Prowell August 11, 2000 ""'il'f . - , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Plaintiff No, vs. APPEAL FROM RECALL OF LICENSE SUSPENSION HAROLD PROWELL Defendant CERTIFICATE OF SERVICE I, PHILIP L. ZULLI, ESQUIRE, certify that I have served a copy of the APPEAL FROM RECALL OF LICENSE SUSPENSION, on this date by first class U.S, mail to the following parties: Rebecca L. Bickley, Director Bureau of Driver Licensing c/o Office of Chief Counsel Third Floor Riverfront Office Center 1101 S, Front Street Harrisburg, P A 17104 /% DATED: AUGUST 14 2000 , Philip L. Zulli, Esquire 1501 North Front Street Harrisburg, Pennsylvania 17102 Attorney ill: PA #47499 (717) 238-9004 -,r.:_~ I I. - ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION - LAW I COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATIC"j, BUREAU OF DRIVER LICENSING Plaintiff No.: 00-5599 vs, APPEAL FROM RECALL OF LICENSE HAROLD PROWELL Defendant ORDER AND NOW, this I <J r- day of OCTOBER, 2000, Petitioner having received copies of the documents supporting the Department's action to recall Petitioner's driver's license, the Parties agree that the reeall of Petitioner's driver's license was due to the Department's reeeipt of a General Medieal form from a licensed physician of the Commonwealth. Although the physician did not call into question Petitioner's mental competency, the physician established that Petitioner is no longer physically competent to operate a motor vehicle. The recall herein was also due to Petitioner's failure to pass that portion ofa driver's examination relating to Petitioner's physical ability to operate a motor vehicle, notwithstanding that Petitioner passed the written test regarding his knowledge of the rules of the road, The Parties agree that Petitioner's Appeal from License Recall be DENIED, Petitioner's license, which was voluntarily surrendered to the Department on August 16, 2000, shall be retained by the department. Should Petitioner regain physical competency to oper",e a motor vehicle, he may apply to the Department at sueh time, in accordance with the applicable provisions of the Vehicle Code and departmental regulations. WHEREFORE, IT IS SO ORDERED, BY THE COURT: ~~"'~' /.L~~c;; c.~ \O.?J~ . ....1 .,. ~ ~~ ;!11 ;1\' """. ~J".. "'.",..,'" " ~~~ -"",,,., I' \iINVi\1ASi\\N3d ,\lNry::(.I c:\r,.,n,u=:,'~j\I\:r() 0\ :\3 n1\J1C I!\I \,1"- "'i"'j 1 I'.n r,\"'" tlG 1.Ju u',,) ~~--- "" ",,,,,,,,,,,",.,.,,,,.,,..,. .~" ,J~~r~~~"'" , ,~L _,~lIl'~ij~:rr1 ,"1"1'- ,. - - ~-.