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Home My WebLink About00-06624 ,.~ - "[ , II , '''0...0'' ';1, ',i_: ... i CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary ofthe Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ROBERT C. FITZSIMMONS VS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 00-6624 CIVIL TERM 369 CD 2001 The documents comprising the record have been numbered from No. 1 to 27 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable defmiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 3-26-01 ? -" Curtis R. Long, P othonotary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please si2n and date copy, thereby acknowled2ID2 receipt of this record. Date Signature & Title . . Among the Records and Proceedings enrolled in the court of Cornmon Pleas in and for the to No. CUMBERLAND 369 CD 2001 00-6624 Civil in the Commonwealth of Pennsylvania county of Term. 19 is contained the following: COpy OF COMPLETE APPEARANCE DOCKET ENTRY ROBERT C. FITZSIMMONS vs COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING SEE ATTACHED CERTIFIED DOCKET ENTRIES. ~ . " "" ,j - ., '-c--"" ^" PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2000-06624 FITZSIMMONS ROBERT C (vs) PENNSYLVANIA COMMONWEALTH Page 1 Reference No. . : Case Type.. .. .: APPEAL - LICENSE SUSP Judgment. . . . . . : .00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Filed... .. ... : Time......... : Execution Date Jury Trial. . . . Disposed Date. Hlgher Crt 1.: Higher Crt 2.: 9/29/2000 2:21 0/00/0000 0/00/0000 369 CD 2001 ************************************************************************:~******* General Index Attorney Info FITZSIMMONS ROBERT C 330 REGENT STREET CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT ESPOSITO PAUL J APPELLEE ************************************************************************~~******* * Date Entries * ************************************************************************~,******* 2/12/2001 NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM THE ORDER THAT WAS FILED ON 01-23-01 - REQUEST FOR TRANSCRIPT - TIMOTHY P WILE ATTY FOR PLFF -------------.------------------------------------------------------ COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 369 -------------------------------------------------------------.------ STATEMENT OF MATTERS COMPLAIND OF AN APPEAL - BY TIMOTHY P WILE FOR APPELLANT - - - - - - - - - - - - - - LAST ENTRY aHDNWEM.TH4'S EXHIBIT 1 ************************************************************************j'******* * Escrow Information * * Fees & Debits Beo Bal Pvmts/Ad"i End Bal * ********************************~********~******************************~.******* PAGE 00. 2 - 8 9/29/2000 1 10/03/2000 9 - 10 10/12/2000 11 - 14 1/23/2001 15 - 19 20 - 21 22 26 2/20/2001 2/22/2001 27 - 35 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - PETITION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORATION SUSPENDING OPERATING PRIVILEGE -------------------------------------------------------------.------ ORDER - DATED 10/3/00 - IN RE PETTION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE -. HEARING ON 12/7/00 AT 10:00 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES ~~ILED 10/3/00 -------------------------------------------------------------.------ AFFIDAVIT OF SERVICE FOR PETITION FOR APPEAL OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING PETITIONERS OPERATING PRIVILEGE - BY PAUL J ESPOSITO ESQ -------------------------------------------------------------.------ ORDER - DATED 1/23/01 - IN RE APPEAL OF LICENSE SUSPENSION - SUSTAINDED AND THE ACTION OF THE DEFT SUSPENDING HIS OPERATING PRIVILEGES IN REVERSED - BY THE COURT KEVIN A HESS J COPIES MAILED 1/24/01 APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 .50 5.00 5.00 30.00 35.00 .50 5.00 5.00 30.00 .00 .00 .00 .00 .00 75.50 75.50 .00 ************************************************************************~:******* * End of Case Information * ************************************************************************~r******* TRtJE (.,()PY FROM ReCORD In T8!IIImonywhelllOf. I here unto set my"" ... the 01 d Court at Carll. PI. _ fklUz ~J.(J--o ( tVlL.~ .. .2J'othon v - G ~I i, -""~.- 0"" PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2000-06624 FITZSIMMONS ROBERT C (vs) PENNSYLVANIA COMMONWEALTH Page 1 Reference No. . : Case Type.. . ..: APPEAL - LICENSE SUSP Judgment......: .00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 9/29/2000 2:21 0/00/0000 0/00/0000 369 CD 2001 ************************************************************************,******** General Index Attorney Info FITZSIMMONS ROBERT C 330 REGENT STREET CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT ESPOSITO PAUL J APPELLEE r!orrev-/-c#- {1p y ******************************************************************************** * Date Entries * ************************************************************************~r******* PAGE 00. 2 - 8 9/29/2000 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - .. - .. - PETITION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORATION SUSPENDING OPERATING PRIVILEGE --------------------------------------------------------------- ORDER - DATED 10/3/00 - IN RE PETTION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE -. HEARING ON 12/7/00 AT 10:00 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 10/3/00 1 10/03/2000 9 - 10 11 - 14 15 - 19 20 - 21 22 - 26 36 - 56 27 - 35 10/12/2000 AFFIDAVIT OF SERVICE FOR PETITION FOR APPEAL OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING PETITIONERS OPERATING PRIVILEGE - BY PAUL J ESPOSITO ESQ -------------------------------------------------------------.------ 1/23/2001 ORDER - DATED 1/23/01 - IN RE APPEAL OF LICENSE SUSPENSION - SUSTAINDED AND THE ACTION OF THE DEFT SUSPENDING HIS OPERATI~~ PRIVILEGES IN REVERSED - BY THE COURT KEVIN A HESS J COPIES ~~ILED 1/24/01 -------------------------------------------------------------,------ 2/12/2001 NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM THE ORDER THAT WAS FILED ON 01-23-01 - REQUEST FOR TRANSCRIPT - TIMOTHY P WILE ATTY FOR PLFF ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 369 ------------------------------------------------------------------- STATEMENT OF MATTERS COMPLAIND OF AN APPEAL - BY TIMOTHY P WILE FOR APPELLANT ------------------------------------------------------------------- 3/26/2001 TRANSCRIPT FILED - PROCEEDINGS HELD ON 12/7/01 IN CR 4 - BY THE THE COURT KEVIN A HESS J - - - - - - - - - - - - - - LAST ENTRY <DMJNWEALTH'S EXHIffiT I ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Ad"i End Bal * *****************************************~************************************** 2/20/2001 2/22/2001 APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 30.00 30.00 .00 ------------------------ ------------ 75.50 75.50 .00' ******************************************************************************** * End of Case Information * ******************************************************************************** , _. ~~'" .. .,.,..1 , . .J!t:._ ~~" .- .'-"~\-,- !'; I I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert C. Fitzsimmons v. No. 369 C.D. 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant J:L 00- &(P:z4 ~ ORDER AND NOW, this 16th day of Auqust , 2001, the order of the Court of Common Pleas of Cumberland County, dated January 23, 2001, is hereby reversed. ~ 4. 2}1-,-/ ~'- _ ~ ROCHELLE S. FRIEDMAN, Judge CerlIIIed ffomthe Record AUG 1 6 ZOOl and Older Exit ~~ii&lu' ~1MM~~II~,L_Jj'~:.kJ~m~~,j,~.,,\!,i~MiI"'~""-'""~";IMn).-j>J~,.lj(f~'.,,--', '", "'W"-""~tllillrQF"v-.!aiiS!i'.'Y.!lUlW'~. "" _0 l-' '<-,,, I ,",.", .oj DOT argues that the trial court erred in concluding that NJ.S. g39:4- 50(a) is not substantially similar to Article IV(a)(2) of the Driver's License Compact.3 We agree. In Riebort v. Department of Transportation. Bureau of Driver Licensing, _ A.2d _, (Pa. Cmwlth. No. 3472 CD. 1997, filed June 11,2001), this court addressed this very issue and held that NJ.S. g39:4-50(a) is substantially similar to Article IV(a)(2) of the Driver's License Compact.4 Therefore, here, the trial court erred in reaching the opposite conclusion. Accordingly, we reverse. ,1 , / ~ /.{?~~n ROCHELLE S. FRIEDMAN, Judge o c:: (continued...) "'Offi D.lrn Z::n ZC influence of intoxicating liquor ... to a degree which renders ~ driver incapabk of safely driving a motor vehicle.... ~;~ zC) Pc': :z 75 Pac C.S. 91581. ~ ".. ~ ~ w _J ""D A ~" :..:> o ~ c, C) 11' ~_] L~9 0", ) ~j~;J t'~', :t] ~~(") orn, ~ :0 -< 3 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent e.vidence and whether the trial court committed an error of law or abuse of discretion in reaching its decision. Carlin v. Department of Transportation. Bureau of Driver Licensimr. 739 A.2d 656 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 678, 759 A.2d 924 (2000). 4 Article IV(c) of the Driver's License Compact states that, if the laws of a party state do not provide for offenses or violations described in precisely the words employed in Article IV(a), the party state shall construe the description as applying to offenses or violations of a substantially similar nature. 75 Pac C.S. 91581. 3 ^"'~_= l~."~ I, .1. 11:IL" Iliiijl...r " Licensee was convicted in the state of New Jersey for driving under the influence of liquor or drugs, a violation of NJ.S. S39:4-50(a). When DOT received notification of the out-of-state conviction, DOT suspended Licensee's operating privileges for one year. Licensee filed an appeal with the trial court, arguing, inter alia, that DOT improperly suspended his operating privileges because N.J.S. S39:4-50(a) is not substantially similar to Article IV(a)(2) of the Driver's License Compact.2 (R.R. at 26a.) The trial court agreed and sustained the appeal. DOT now appeals to this court. (continued...) 75 Pa. C.S. 91532(b)(3). Section 1581 of the Vehicle Code enacts into law the Driver's License: Compact. Article III of the Driver's License Compact states: The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered or the conviction was a result of the forfeiture of bail, bond or other security and shall include any special findings made in connection therewith. 75 Pa. C.S. 91581. 2 Article IV(a)(2) of the Driver's License Compact states, in pertinent part: [DOT], for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this, compact, as it would if such conduct had occurred in [Pennsylvania] ... in the case of convictions for ... driving a motor vehicle while under the (Footnote continued on next page...) 2 ill _~_~~Hj~,~,,",'\~.;~l'iO.l~~,1!l~>Ii!;#.M.a!Ajl3ltliUfr~1ili..,<iI"ljJ,~';\i"';';%~1'i!:{ill~i:,~,,~1iM,~.itil~.'lli(~~~iiiAt0-'" u~if-~--' ' ~' j,;;'" ....... =il .1.", ~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert C. Fitzsimmons v. No. 369 C.D. 2001 Submitted: July 6, 200 I Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge 0 0 0 c <" on <165 l:P mrn ,- Z:x:.; G) ;~' ze +i-tD (.-.l,)_l> --.1 -<2": ", i ~C-:) -0 g~ .->-'">C> 2i: ~'C) .l>c':: ~ 7 --1 ~ (...) )> ,;:) :D -< OPINION NOT REPORTEQ MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: August 16, 2001 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the January 23, 2001 order of the Court of Common Pleas of Cumberland County (trial court), which sustained the statutory appeal of Robert C. Fitzsimmons (Licensee) from the one-year driver's license suspension imposed on Licensee by DOT pursuant to section l532(b) of the Vehicle Code, 75 Pa. C.S. S1532(b).\ We reverse. ] Section 1532(b)(3) of the Vehicle Code states: [DOT] shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver's conviction of section 3731 (relating to driving under influence of alcohol or controlled substance) '" or substantially similar offenses reported to [DOT] under Article III of section 1581 .... (Footnote continued on next page...) [11 Il1!! File Copy Commonwealth Court of Pennsylvania Charles R. Hostutler Deputy Prothonotary IChief Clerk October 11, 2001 P.O. Box 11730 Harrisbure. PA 17108 717~255-16S0 TO: RE: Fitzsimmons v. DOT No.369 CD 2001 Trial Court/Agency Dkt. Number: 00-6624 Trial Court/Agency Nam~~f~h'B"edafi'fY~6'UtEt\f'Q.aIjfffi6JjEleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Trial Court Record Date of Remand of Record: October 11, 2001 Filed Date April 1 0, 2001 Description 1 Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed coP~~thop~ C?,ffice, 0 0.. the Chief Clerk's office. V/C.~~~~ Commonwealth Court Filing Office Date ( ) '-::J l__J c: ;:'.:;>- .. ~J , = -J t!.:l L..~ ,;-) ; ;-=; ::? -n (0 r,c> no'", -, -' , ~ :-E r-:s. ,-, c "~ Cl .::;> c: - '"-,,,," 7 .. ;~:;::1 -' ,:.,) :;::;::; j '0 ~ -< 1- , . ~ , ~' 1 ~."'l!iif,j IN THE COMMONWEALTH COURT OF PENNSYL VANIA Robert C. Fitzsimmons v. No. 369 C.D. 2001 Submitted: July 6, 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: August 16, 2001 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the January 23,2001 order of the Court of Common Pleas of Cumberland County (trial court), which sustained the statutory appeal of Robert C. Fitzsimmons (Licensee) from the one-year driver's license suspension imposed on Licensee by DOT pursuant to section 1532(b) of the Vehicle Code, 75 Pa. C.S. g1532(b).1 We reverse. 1 Section 1532(b)(3) of the Vehicle Code states: [DOT] shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver's conviction of section 3731 (relating to driving under influence of alcohol or controlled substance) ... or substantially similar offenses reported to [DOT] under Article III of section 1581 .... (Footnote continued on next page...) "~ -, ~;~i:l~c'""~_IU:::jf,h~\2?tm~I'''J~'1f!'''''!mi~l~~~~'!tlii",.~ofii;;.jli",i!l;li"i~;"H",;!,"j","1M.!il,'iilt;~mil'ilij - ......~.bilr'" ~1l3i\l_iIiil I' I: I, i I i; Licensee was convicted in the state of New Jersey for driving under the influence of liquor or drugs, a violation of NJ.S. 939:4-50(a). When DOT received notification of the out-of-state conviction, DOT suspended Licensee's operating privileges for one year. Licensee filed an appeal with the trial court, arguing, inter alia, that DOT improperly suspended his operating privileges because N.J.S. 939:4-50(a) is not substantially similar to Article IV(a)(2) of the Driver's License Compact,2 (R.R. at 26a.) The trial court agreed and sustained the appeal. DOT now appeals to this court. i' ji r Ii 'I: ,. (continued... ) 75 Pac C.S. gI532(b)(3). Section 1581 of the Vehicle Code enacts into law the Driver's License Compact. Article III of the Driver's License Compact states: The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to l!he licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered or the conviction was a result of the forfeiture of bail, bond or other security and shall include any special findings made in connection therewith. 75 Pac C.S. g1581. 2 Article IV(a)(2) of the Driver's License Compact states, in pertinent part: [DOT], for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such c:onduct had occurred in [Pennsylvania] ... in the case of convictions for ... driving a motor vehicle while under the (Footnote continued on next page...) 2 ,;J J ".I 1'" " . -~ _~ill:rc' DOT argues that the trial court erred in concluding that NJ.S. S39:4- 50(a) is not substantially similar to Article IV(a)(2) of the Driver's License Compact.3 We agree. In Kiebort v. Department of Transportation. Bureau of Driver Licensing, _ A.2d _, (Pa. Cmwlth. No. 3472 C.D. 1997, filed June 11,2001), this court addressed this very issue and held that N.J.S. S39:4-50(a) is substantially similar to Article IV(a)(2) of the Driver's License Compact.4 Therefore, here, the trial court erred in reaching the opposite conclusion. Accordingly, we reverse. ) I ~ ;/. aA<-~'( - ~ ROCHELLE S. FRIEDMAN, Judge - (continued...) influence of intoxicating liquor ... to a degree which renders the driver incapable of safely driving a motor vehicle.... 75 Pac C.S. S 1581. 3 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the trial court committed an error of law or abuse of discretion in reaching its decision. Carlin v. Deoartrnent of Transoortation. Bureau of Driver Licensing. 739 A.2d 656 (Pa. Cmwlth. 1999), aopeal denied, 563 Pa. 678, 759 A.2d 924 (2000). 4 Article IV (c) of the Driver's License Compact states that, if the laws of a party state do not provide for offenses or violations described in precisely the words employed in Article IV(a), the party state shall construe the description as applying to offenses or violations of a substantially similar nature. 75 Pa. C.S. S 1581. 3 :. "" -W~~jj~~Mi~~-ci;if.,.~~t'';;'!'~,~~,:,~-:'*'<;,hi.,;'';,'H.W~,~i~lI:iIIi~~~ TI - l!illlI:l!Iilm lBlIiiIi"' .'." ~,--'" IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert C. Fitzsimmons v. No. 369 C.D. 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 16th day of Auqust , 2001, the order of the Court of Common Pleas of Cumberland County, dated January 23, 2001, is hereby reversed. ~ 4. :!7.-.J ~~ : ROCHELLE S. FRIEDMAN, Judge - f~~:-~' CJ (] <;:; , -Ci([J ~!] ~~~, :2:~f'- UJ.~~: ~ }~(-:- ~(-': >..~; C) -;-:1 -J f".) ..:) =2 ~" \0 '-' -'-".; :=D --< i,'~;_"--",,,,,,J\Jl,,, ,c, ,,_"~_ ,.e. ,".-,,",,' ,~'~__~,,_ .'" ,. ,",~ ~,/___ .~ ",_ -,.",I .L,,,,, , , _" ". , ,~ ~ lW!. ilH!li=-~ II ~~l 'i_ ,.do I' """""~-~ ",' ~,;,Ii_;''''; "~" '-'\4',,;;:', ,'i-..,~,-,~l{1"\'J:i!l!!,' '0 "'''', (~ CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required l- by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the P:5 J?ro~dings, if any, and the docket entries in the following matter: ~"'...;''::::>,-.. .. :-::::{.);."Jr - t,i~""".'< ~>;..> Q ") ~-, ,-' ",-."".",,>... t"':J,'.'~{I? 0- S:;,,:;':: I ~~fE ~ ~',':;;L~ ,,( ':;:, fi: ,.:)' - Co) N ROBERT C. FITZSIMMONS VS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 00-6624 CIVIL TERM 369 CD 2001 f" The documents comprising the record have been numbered from No. 1 to~, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. 3 2€ 01 '1- (p .-() I The date on which the record has been transmitted to the Appellate Court is C rtis R. Long, P othonotary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please si2Jl and date copy, thereby acknowledaina receipt of this record. Sl :ZI d E-lIdY IIlIlI Signature & Title VUrvA1A",SIU,i,:::,.,d.:lO,.... nmo:) HI.T1:1i1;I-!OWWO.. fI?f1:.:.J "h' :"";:::;'l333H Date .J "It'_ o t) CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ROBERT C. FITZSIMMONS VS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 00-6624 CIVIL TERM 369 CD 2001 S{, The documents comprising the record have been numbered from No. 1 to~ , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is ] 26 91 4--~-OI p Crtrtis R. Long;!> othonotary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please si2n and date copy, thereby acknowled~2 receipt ofthis record. Date Signature & Title <', l:i:_ i 1'- I' , I i i i~ !i' !'-'- !: Ii i , . ~~- ~-- ~" PAGE NJ 2 - 8 1 9 - 10 11 - 14 15 - 19 20 - 21 22 - 26 36 - 56 27 - 35 "'I' 'i ". ~ ~' '~ :wjlj:jfrb'1- PYS510 o Cumberland County Civil Case 1 o Prothonotary's Office Inquiry Page 2000-06624 FITZSIMMONS ROBERT C (vs) PENNSYLVANIA COMMONWEALTH Reference No. . : Case Type.. ...: APPEAL LICENSE SUSP Judgment......: .00 Judge Assigned: Dlsposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Dtsposed Date. Hlgher Crt 1.: Higher Crt 2.: 9/29/2000 2:21 0/00/0000 0/00/0000 369 CD 2001 ******************************************************************************** General Index Attorney Info FITZSIMMONS ROBERT C 330 REGENT STREET CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT ESPOSITO PAUL J APPELLEE (! or-r-ed~ c.oPy ********************************,************************************************ * Date Entries * ******************************************************************************** 9/29/2000 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - PETITION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORATION SUSPENDING OPERATING PRIVILEGE ------------------------------------------------------------------- ORDER - DATED 10/3/00 - IN RE PETTION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE - HEARING ON 12/7/00 AT 10:00 AM IN CR 4 OF THE CUMBERLAND COUNTY COUR~HOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES M~ILED 10/3/00 ------------------------------------------------------------------- AFFIDAVIT OF SERVICE FOR PETITION FOR APPEAL OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING PETITIONERS OPERATING PRIVILEGE - BY PAUL J ESPOSITO ESQ ------------------------------------------------------------------- ORDER - DATED 1/23/01 - IN RE APPEAL OF LICENSE SUSPENSION - SUSTAINDED AND THE ACTION OF THE DEFT SUSPENDING HIS OPERATING PRIVILEGES IN REVERSED - BY THE COURT KEVIN A HESS J COPIES M~ILED 1/24/01 10/03/2000 10/12/2000 1/23/2001 2/12/2001 NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM THE ORDER THAT WAS FILED ON 01-23-01 - REQUEST FOR TRANSCRIPT - TIMOTHY P WILE ATTY FOR PLFF ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 369 ------------------------------------------------------------------- STATEMENT OF MATTERS COMPLAIND OF AN APPEAL - BY TIMOTHY P WILE FOR APPELLANT 2/20/2001 2/22/2001 3/26/2001 TRANSCRIPT FILED - PROCEEDINGS HELD ON 12/7/01 IN CR 4 - BY THE THE COURT KEVIN A HESS J - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - <nMJNWFALTH'5 EXHIBIT I *************************************************************************,******* * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adl End Bal * ********************************~********~*******************************,******* ;' APPEAL LIC SUSP 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 ------------------------ ------------ 75.50 75.50 .00 ******************************************************************************** * End of Case Information ' " , * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * f~ue 0011\'* "PROM fitecoR~-,* * * * * In TestImOny wller8of. I here unto set my hind aIId t of atGarJlsIed PI. I r DOl... - otary" " _H - -~ c~erland County prothonotarY'~ffiCe Civil Case Inquiry FITZSIMMONS ROBERT C (vs) PENNSYLVANIA COMMONWEALTH PYS510 2000-06624 Reference No..: Case Type.. .. .: APPEAL - LICENSE SUSP Judgment......: .00 Jl,ldge Assigned: Dlsposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: "~ ~ -~ ~ lillli..-, Page 1 9/29/2000 2:21 0/00/0000 0/00/0000 369 CD 2001 ************************************************************************~~******* General Index Attorney Info FITZSIMMONS ROBERT C 330 REGENT STREET CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT APPELLEE ESPOSITO PAUL J ************************************************************************~"******* * Date Entries * ************************************************************************~,******* PAGE 1\1). 2 - 8 9/29/2000 1 10/03/2000 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - PETITION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORATION SUSPENDING OPERATING PRIVILEGE --------------------------------------~---------------------------~ ORDER - DATED 10/3/00 - IN RE PETTION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE - HEARING ON 12/7/00 AT 10:00 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES ~~ILED 10/3/00 ---------------------------------------------~-~------------------- AFFIDAVIT OF SERVICE FOR PETITION FOR APPEAL OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING PETITIONERS OPERATING PRIVILEGE - BY PAUL J ESPOSITO ESQ ------------------------------------------------------------------- ORDER - DATED 1/23/01 - IN RE APPEAL OF LICENSE SUSPENSION - SUSTAINDED AND THE ACTION OF THE DEFT SUSPENDING HIS OPERATING PRIVILEGES IN REVERSED - BY THE COURT KEVIN A HESS J COPIES ~~ILED 1/24/01 ------------------------------------------------------------------- NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM THE ORDER THAT WAS FILED ON 01-23-01 - REQUEST FOR TRANSCRIPT - TIMOTHY P WILE ATTY FOR PLFF -------------"------------------------------------------------------ COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 369 ------------------------------------------------------------------- STATEMENT OF MATTERS COMPLAIND OF AN APPEAL - BY TIMOTHY P WILE FOR APPELLANT -CXMIJNIimALfH'-S E:xHIBIT f - - LAST ENTRY 9 - 10 10/12/2000 11-14 1/23/2001 15 - 19 2/12/2001 20 - 21 2/20/2001 22 26 2/22/2001 27 35 ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Ad"i End Bal * *****************************************~************************************** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 .50 5.00 5.00 30.00 35.00 .50 5.00 5.00 30.00 75.50 75.50 .00 .00 .00 .00 .00 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** tn~~ FROM RecoRD and tfIe . , hett -.,...,,. fft d. t:1 01 ' at CartlJlit PI. , fet"n:..-h,'~Ov I .~,.........,,; , . _",", ()r~lIthtJ. " o Cornrnonwealth of Pennsylvania County of Curnberland - ;"11 -',~; o } ss: I, Curtis R. Long . Prothonotary of the Court of Cornmon Pleas in and for said County. do hereby certify that the foregoing is a full. true and correct copy of the whole record ofthe casebtherein stated. .wherein Ro ert C. Fltzslmmons Plaintiff. and Comm. of PA.. Dept. of Transportation, Bureau of Driver Licensing Defendant _. as the same remains of record before the said Court at No. 00- 6 624 of Civil Term. A.D. 19_. have hereunto set my hand and affixed the seal of said Court day of A. D.. 19_. 2001 In TESTIMONY WHEREOF. I this :'>hth Prothonotary George E. Hoffer Ninth I, Presideut Judge of the Judicial District. c.Qmposed of the foun!)' of Cumberland. do certify that ,Curtls R. ong b h h d d 'fi d . y w om t e annexe reeor. certI lcate an attestation were made and given. and who. in his own proper handwriting, thereunto subscribed his name and affixed the seal of the C?urt of Cornrnon Pleas Q(sAid C.QlIllty. was, at the tirne of so doiug, and now is Prothonotary m and for saId County of CuMBEl:<LAND m the Cornmonwealth of Pennsylvania. duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature a lsewher. a d that the said record. certificate and attestation are in due form of law and made by t i Cornrnonwealth of Pennsylvania County of Curnberland } ss: P sident Judge I, Curtis R. Lonq . Prothonotary of the Court of Common Pleas in and for the said County. do certify that the Honorable Georqe E. Hoffer , P. J . by whorn the foregoing attestation was rnade. and who has thereunto subscribed his narne. was, at the time of making thereof. and still is President Judge of the Court of Common Pleas. Orphan' Court and Court of Quarter Sessions of the Peace in and for said County. duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given. as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. 1 have hereunto set rny hand and affixed the seal of said Court this 26th of March .D.2AOL-. rothonotary . ~~~~Jilj~.~lt~ti~.~ltb"It'l;W;;'II<li"< r&lJ;'1!iUilf:L' ~'I '-~'~-iU -'JH' l~-'" ~ LJ -I i . . '" (") ~ ~ 'T1 Z Z ~ ;:l 0 0 ~ ? ? ~ ;!; 3 ;;r 0 '" 3 ~ ~ '" 0- ~ ., ~ ;:l ~ 0- ~ !! "CI 1D ~ 0- - < "'l '" - '" ~ ~ ~ 0 " ~ " ~ '0 I"l -I -I a 0 '" '" 5' " ~ ~ 0 0 3 3 0 '" n 0 e: I 0 '" '" " I I ':' ~ ;:l q ..... lUll -" ,,I 'Ai , ~;" '0"'" i:--1:>;"'tl~,fj_d1J"' ,.'- lIMn' '-r' 0.... ',,> o Among the Records and Proceedings enrolled In the court of Common Pleas in and for the county of CUMBERLAND 369 CD 2001 00-6624 Civil Term, 19 is contained the following: in the Commonwealth of Pennsylvania to No, COpy OF COMPLETE APPEARANCE DOCKET ENTRY ROBERT C. FITZSIMMONS vs COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING SEE ATTACHED CERTIFIED DOCKET ENTRIES. L ___ I i r I! l --;;;,,>-> _ "" ~', _ . __ ., , ~ __" 0_' ^ ". _ ,_ ~ ",.__ " 'I'''' - --';:,,-.-' '~'-'-."- ','__',_-C -e_'_ _,~_~_"~_... :,-'<F:-"",-n;"-',c."",~~,,=-,Z-"'" """:;'-~:: o o GOLDBERG, KATZMAN & SHIPMAN, P.C. Pl:Iul J. Esposito, Esquire Supreme Court ID #25454 320 Ml:Irket Street, P.O. Box 1268 Hl:Irrisburg, PA ]7108-1268 Attorneys for Petitioner ROBERT C. FITZSIMMONS, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNlY, PENNSYLVANIA v. , NO. (JO-foC2()Lf ~ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING ORDER AND NOW, this ~ day of ~/v, 2000, upon consideration of the Petition for Appeal of Order of Department of Transportation Suspending Petitioner's Operating Privilege, it is hereby ORDERED AND DECREED that a hearing shall be held to determine whether the action of the Department of Transportation suspending Petitioner's operating privilege should be set aside. Hearing on the above-captioned matter is set for the 7~ day of tic l/YJdlP./L 200Q" at 10 :1fI) o'c1ock,fr-.M., in Courtroom No. t..f of the Cumberland County Courthouse, Carlisle, Pennsylvania. Petitioner is directed forthwith to serve the Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, Pennsylvania 17104-2516, with a time-stamped, certified copy of his Petition and this Order. ~ \- BYTHECCURT, ~~D /./1 G \()'~ J. }. " ,,,[" ',-, ". >~1-::i)fi\HY "", ,,.-.'r - ;:"\' l.: ? (, UU \51...1, .>oJ :-" "". c:u~r,',i-" i.,ji'j CC>iJhrrY u 1,1;),::-' ::~; ~ '~\'nl\1!r\ i'i::r-iNSYL-'" "r . G ~ -~ -,~ . " ~ ,J'1~II\'!~h":"-.__',;_:__ '-,.. .~,~;, " "'.'0" .. ",.. " - -- 0"1 ... _~__, .-,,^.-".X'''''.-~~, "-,'V ,._~",,---.. --'---~.-~-;,;-.;,.,---,_~-,.,.~" ,. o o "'I i I I I I I I I I I I I ; i i ! I GOLDBERG, KAtZMAN & SHIPMAN, P.C. Pl:Iul J. EsposIto, ~squire Supreme Court ID #25454 320 Market Street, P.O. Box 1268 Hl:Irrisburg, PA 17108-1268 Attorneys for Petitioner ROBERT C. FITZSIMMONS, Petitioner v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNlY, PENNSYLVANIA . NO. txJ - t. (, 2. 'I (!.U;.p lJUA- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING PETITION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE AND NOW, this ;;rrt day of rrlemlrr r ,2000, comes the Petitioner, ROBERT C. FITZSIMMONS, by and through his counsel, Goldberg, Katzman &Shipman, P. C. and Paul J. Esposito, Esquire, and files this Petition for Appeal from the Order of the Department of Transportation suspending Petitioner's operating privilege, and in support thereof, represents as follows: 1. Petitioner, Robert C. Fitzsimmons, is an adult individual residing at 330 Regent Street, Camp Hill, Cumberland County, Pennsylvania. 2. Petitioner currently possesses a valid Pennsylvania driver's license. 3, By letter dated September 4, 2000, Petitioner was notified in writing by the Department of Transportation that his operating privilege was being suspended for a period of one (1) year. A copy of the notice is attached hereto, made a part hereof and marked as Exhibit "A". 2.. - 0'- "_ , "'"iii" '"-I' -' '" ,~-~~,..,<---'<,' ~7'":'''~-''''' ,C,"'-'." ~ ,f.,'i '_-.--c ,. _ ,;~_ ~;/< ;"_ ;",'-:,,;~".~';',,.,.,,;;'~ :""c"^,r" ,i ! o o 4. The reason for the suspension as set forth in the notice was the Department's receipt of notification from the state of New Jersey that Petitioner had been convicted on November 3, 1999, of an offense which is equivalent to a violation of Section 3731 of the Pennsylvania Vehicle Code, driving under the influence. 5. Petitioner believes and therefore avers that the suspension is improper for the following reasons: A. As a result of the New Jersey conviction, Petitioner's operating privilege was suspended by the New Jersey authorities for a period of six (6) months, Petitioner has fully served this suspension. B. Had this offense occurred in Pennsylvania, and more particularly in Cumberland County, Petitioner would have been eligible for the ARD program. C. The period of suspension of his operating privilege would have been substantially less than the one year set forth in the instant notice and the six months already served. D, Petitioner plead guilty to the substantive driving under the influence charge in New Jersey on the advice of his New Jersey counsel. E. In response to his direct questions, Petitioner was informed by his New Jersey counsel that the conviction in New Jersey would result in no ramifications regarding his operating privilege in Pennsylvania, F. Petitioner entered his guilty plea in strict reliance upon his 3, t' . ~ -~~ , , ~-. ' "'n--"' =~,~;..-~,'_',--. ,^",.-,,- '"",,,<.,..;,',,0, .-",- o o counsel's incorrect advice. G. Petitioner subsequently learned of a pre-trial diversion program for DUI offenders in New Jersey; however, his counsel failed to inform him of the availability of this option. H. Petitioner's entry into a pre-trial diversion program in New Jersey may have precluded a conviction on the DUI charge and consequently, there would be no basis for the instant suspension. l. The imposition of a one year suspension of Petitioner's operating privilege will cause a great hardship in both his professional and person life. WHEREFORE, Petitioner respectfully requests that this Honorable Court schedule a hearing in this matter pursuant to 75 Pa.C.S. ~1550 and that the order of the Department of Transportation be set aside. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, p,c. By P~ESQU1RE 320 Market Street Post Office Box 1268 Harrisburg, P A 17108-1268 Supreme Court ID #25454 Attorneys for Petitioner ~ ~ -" ">~ ,~"~ '"<-~on- ~.=,,,,..=,,,__.~.,_," c_ ',' 'xi ] j I i I , i o o VERIFICATION I verify that the statements contained in the foregoing PETlTION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE are true and correct to the best of my knowledge, information and belief I understand that false statements contained herein are made subject to the penalties of 18 Pa,C.S, Section 4904 relating to unsworn falsification to authorities. Date: 9/71100 ~C~e' _ _~ ROBERT C. FITZS ONS - 5. , ,> ~" ' M '''','', ''-'1 o o CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Code, by delivering a copy, via United States mail, first class, as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 GOLDBERG, KATZMAN & SHIPMAN, P.c. By ~ FJ3Q{jIRE 320 Market Street Post Office Box 1268 Harrisburg, PA 17108-1268 Supreme Court ID #25454 Attorneys for Petitioner Date: &. --,- .-.e.;,,- ~ ~~1iIiMilW1I;\:\1"~t:,,_ o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 SEPTEMBER 04, 2000 ROBERT ( FITZSIMMONS 330 REGENT ST (AMP HILL PA 17011 002416101387600 001 08/28/2000 22174279 07/22/1953 Dear Motorist: Section 1561 of the Vehicle Code requires the Department to treat certa1n out of state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the Department receiving notification from NEW JERSEY of your conviction on 11/03/1999 of an offense which occurred on 05/12/1999, which is equivalent to a violation of Section 3731 of the Pa. Vehicle Code, DRIVING UNDER INFLUENCE, your driving privilege is being SUSPENDED for a period of 1 YEAR(S), as mandated by Section 1532B of the Vehicle Code. The effective date of suspension is 10/09/2000, 12:01 a.m. In order to comply with this sanction yOU are required to return any current driver's license, learner's permit and/or temporary driver's license (camera 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 DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Ve- hicle Code. Although the law mandates that your driving privilege is under suspension even if you do not surrender your license, credit will not begin until all current driver's license product(s), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau. . .,. "WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. 7. - . -'~~ ~ 1- '''~'ii.W!'' o o 002416101387600 . Please see the enclosed application for restoration fee in- formation. You will be ndtified of any outstanding restoration re- quirements approximately 30 days before the eligibility date of the restoration of your driving privilege. You must follow those instructions very carefully in order to have your driving privilege restored. APPEAL You have the right to appeal this action to the Court of Common Pleas (qivil Division) within 30 days of the mail date of this l~tter, SEPTEMBER 04, 2000. If you file an appeal in the County Court, the Court will give yOU a time- stamped certifi'ed COpy of the appeal. Send this time- stamped certified copy of the appeal by certified mail to: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL THIRD FLOOR, RIVERFRONT OFFICE CENTER HARRISBU~G, PA. 17104-2516 Sincerely, ~~.~ Rebecca L. Bickley, Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/TO: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7:00 IN STATE OUT-OF-STATE TDD IN STATE TDD OUT-OF-STATE AM TO 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 j .. 0: C,. ';~"'-"IIf._L~-. l'M:mIr~~,~f.f~~~1iW;f11\if"!N10!iliitm,;:,!!illtM.,IHlii.i;;I,;;t,:Q@;l;ll~~~'" ~~ . '^' '- ..... ~ -0 \' ." C " "._ _,H' .- \~; . .~". ~ ~,' .~ -" .--- ~"^ ~O .~'~~__ _, '" ~""'"- o ~~ "'- (') C) 0 C C) ii $:: (,/) ~:.::! ""0(;:-) ('"1'1 ~ ~ "~l n-jr,-i -0 "P Z:J:c' N ---.I-n ~~~ 10 :~'~CJ ,--, I "':~() r:::: ,--~ ~~5 _'_J -0 ~~ ,_.._J., N (sfn '- --I z; ,,,,, ?O :::: -< ~ 11 Ie- '-<: ~ ~ ~ ~ '^ 1:\ ~ d Ii - , . ,.- ". ,"..-,- -~. -~-, .. " o Goldberg, Katzman & Shipman, P.c. Paul J. Esposito, EsqUire - 1.0. #25454 320 Market Street, Pm.t Office Box 1268 Harrisburg, PA 17108-1268 Attorneys for Petitioner . _'0 ~'" ~.>~~ U" "',' _"",,"'&' ~ " .. ._,,,r;_. .-_F, '. "" ,-'" '",-~" -- <' -- 1 '- ,;~ ,iL, .. . 't IN THE COURT OF COMMON PLEAS CUMBERLAND COUNlY, PENNSYLVANIA ",; " ;1: !!! ROBERT C. FITZSIMMONS, Plaintiff v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING " 11' NO. 00-6624 Civil ,;1' AFFIDAVIT OF SERVICE fl' t, ~:: , COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNlY OF DAUPHIN ) Personally appeared before me, a Notary Public, in and for said COIlimonweaIth and County, PAULJ. ESPOSITO, ESQUIRE, who being duly sworn according to law deposes and says that on October 3, 2000, a certified copy of a Petition for Appeal of Order of Department of Transportation Suspending Petitioner's Operating Privilege was sent by certified mail, return receipt requested, to PA Department of Transportation, Office of Chief Counsel, 3cd Floor, Riverfront Office Center, Harrisburg, PA 17104-2516, and the return receipt card showing a date of delivery as October 5, 2000, is attached hereto and made a part hereof. Sworn to and subscribed before me this 11th d . I otary P Iic My Commission Expires: t' ~: ,. " ,,' ii' H I~, 1\ 11 F !:' m !~ Jt, ~; 'I: 'I' ;; " I" I, f,; I' ~; ~' ~ Notarial Seal, . Victoria Y. ChambalS. Notary Public Harrisburg, DEau~~~ ~po~~ty 2003 My CommiSSion xp . q, CO' j- ,', ~ . ",".- l~-_,,;;'" ;1"..,,' < - "' ~ ;~~- -- '''''.',;< ,~;,- '_Ii" ;i ''';, ~ " <"- 'e->', '"---~'" --..'. ", ~'. ":i! : o . . . , 'Com~plete"itertl5: i ,,2, and 3. Also camp et'e' item 4 if Restricted Delivery is desired. t-., Print your hame and address on the reverse so that we ca n the card to you. . Attach this - e back of the mailpiece, or on the fro , p'ace permits. ,~~ ; C. Signature 1. Article Address - ,to: ,11'\ ~ of \r6J'tSfO~CY" ~ro"~~ ~~. fl'-\ 11104 _;;;u-J l.. x OCT 0 5 2000 OFFICE OF 3 Service ype 'Fi' ~ertified Mall 0 Express Mail ~egistered 0 Return Receipt for Merchanc;lise o Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) DYes 1ms6-99-'rii!-1789 [D. ill iilluilillC" --/.';'Ii'r~' . o o . o ~; ~~F ~5' " ~, ;~C) :;;: ;~.., ~ :;::" ,.J~ -< .' . C:) C:~) C) ) ,-, ~ 1'_' :;'? ~, c~') . ,~ ~"""~ .1 . "'1 ~... I.' ~~- 'k-' , o o ROBERT C. FlTZSIMMONS Appellant vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA 00-6624 COM. OF PA., DEPT. OF TRANSPORTATION, BUREAU OF DRIVERS LICENSING CIVIL ACTION - LAW APPEAL OF LICENSE SUSPENSION IN RE: APPEAL OF LICENSE SUSPENSION ORDER AND NOW, this Z :S" day of January, 2001, the appeal of Robert C. Fitzsimmons is SUSTAINED and the action of the Department suspending his operating privileges is REVERSED. BY THE COURT, .//J Paul Esposito, Esquire For the appellant c) . ~ 0\ l~ D\'~~ George Kabusk, Esquire For PennDOT :rlm II. ~ o ~._"_~.~,' ~. ",__1 !'IfiIIlII'~44.1.._, rl I"~ ,L ,~, ,'I r~r-. -,-~...,_ , hV,:U-'lkdCF ~i ':;': .1~~(\;;"!~);"J(JTA.RY 01 JM/23 !:Jill: Idol CUlv18Er:lj\NJ COUNTY PENNSYLVANIA (1l~, \oJ o. "~,=, ~ v' ~, -. -, 'e<,' ~.~ffl'fl!?'I~'_I!r.nilfflJ!"''-Jll'.jWj~T'!-'{'Ii:!l1q~~Il~~~iiIIi~~.., "IJlIr:i~~.lJR''''''~''''',,;Q>,,:'''i L~ ,- ,1'< ,,' ~ '"&lJai:&i", 0, , , o ROBERT C. FITZSIMMONS Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. 00-6624 COM. OF PA., DEPT. OF TRANSPORTATION, BUREAU OF DRIVERS LlCENSING CIVIL ACTION - LAW APPEAL OF LlCENSE SUSPENSION IN RE: APPEAL OF LlCENSE SUSPENSION MEMORANDUM OPINION AND ORDER In this case, the movant has filed an appeal from the suspension of his Pennsylvania driver's license. The suspension, in turn, resulted from his guilty plea, in the state of New Jersey, to a count of operating under the influence of liquor. He raises three issues, one of which, under the current state of the law, causes us to sustain his appeal. First, the appellant contends that he received bad advice from his New Jersey lawyer. He was told, incorrectly, that his guilty plea in New Jersey would have no impact on his Pennsylvania operator's license. He further contends that, had he known his license would be suspended in Pennsylvania, he would not have pled guilty in New Jersey. We know of no authority for the proposition that a driver's license suspension may be vacated on account of bad advice from counsel. In any event, such a contention would entail a collateral attack on the underlying criminal conviction which is clearly impermissible. See Omdorffv. Com.. Dept. of Transp., 654 A.2d 1 (Pa.Cmwlth. 1994). Second, Mr. Fitzsimmons contends that his New Jersey violation was not adequately described in the extract of the New Jersey traffic record. The defendant, however, took the stand at the hearing of this case and admitted that he had pled guilty to driving under the influence. In Geesaman v. Com.. Dept. of Transp., 762 A.2d 1142 (Pa.Crnwlth, 2000), the court held that /~ ~ "~ -----;1" ,-, , I,"" ~~ L- ''*!ijm.ll; 1, 00-6624 CIVIL o o recent amendments to the Vehicle Code give the Department of Transportation the authority to suspend a license even though the information received from a compact state is incomplete. In Geesaman the license suspension was upheld where, in addition to docwnentation supporting the conviction, there was testimony from the appellant that he did, indeed, plead guilty to driving under the influence of alcohol. Finally, the appellant contends that the New Jersey DUI law is not "substantially similar" to Pennsylvania's driving under the influence statute so as to warrant a license suspension pursuant to the interstate compact, 75 Pa.C.S.A. 1581. The recent Supreme Court case of Com. v. McCafferty: 758 A.2d 1155 (pa. 2000) included a remand to the trial court of the question of whether N.J.S., Section 39:4-50(a) is substantially similar to 75 Pa.C.S.A. 3731 (driving under the influence) for the purpose of the compact.' The question would, therefore, appear to be open in the Supreme Court. The Commonwealth Court, in the meantime, has made it clear that it considers the New Jersey law to be, indeed, substantially similar to the Pennsylvania enactment. In Seibert v. Com.. Dept. ofTransP., 715 A.2d 517 (Pa.Cmwlth. 1998) the court affIrmed a ruling of the Bucks County Court of Common Pleas to that effect, by simply incorporating the lower court's opinionby reference. In Kiebort v. Com., Dept. of Transp., 719 A.2d 1139 I (Pa.Cmwlth, 1998) the court adopted the reasoning of the Superior Court in Com. v. Whisnant, 390 Pa.Super. 192, 56ll A.2d 259 (1990) to the effect that the Pennsylvania and New Jersey DUI , statutes were "substantially identical." Weare, of course, bound by the holdings of our intermediate appellate courts. On January 5, 2001, however, the Kiebort case was remanded "for proceedings consistent with Com. ofPa.. Dept. of Transp.. Bureau of Driver Licensing v. 1 The Supreme Court remanded on this issue because the trial court had not addressed it in any way. 2 / ~. ".",=~ , "'"-'l-. " , ,~. ' ...~ :::u""" ~- ",,"I- ii . " 00-6624 CIVIL o o McCafferty, 758 A.2d 1155 (Pa. 2000)." Kiebort v. Com., 2001 W.L. 10605 (Pa.), _ A.2d _ (2001). The import of this remand from the Supreme Court is not entirely clear to us. We note, however, that the remand in Com. v. McCafferty, was to the trial court, As applied to this case, we understand that as a direction to us to address the question of whether the New Jersey statute has the requisite substantial similarity. This court has recently spoken to that issue. In Mease v. DeDt, of TransD., No, 99-5259 Civil Term, in an opinion and order dated November 15, 2000, the Honorable Edward E. Guido held that the New Jersey DUI law did not have the requisite similarity to the definition in Article IV of the Compact, 75 Pa.C.S.A. 1581. Accordingly, we will enter the following order. ORDER AND NOW, this z. '1"' day of January, 2001, the appeal of Robert C. Ftizsimmons is SUSTAINED and the action of the Department suspending his operating privileges is REVERSED BY THE COURT, :j:;;{!+ Paul Esposito, Esquire F or the appellant George Kabusk, Esquire For PennDOT :rlm 3 14- "~_I!N' ...l" ~-.~.",,,,,.~ I ".ioli ' - *~~1c~-" -" , o COMMONWEALTH OFIPENNSYL VANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SEcmON ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 ROBERT C. FITZSIMMONS Appellee o } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA vs. } } } } NO. 00-6624 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BuREAU OF DRIVER LICENSING, Appellant Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court ofPennsylvlmia from the order that was filed in this matter on January 23, 2001. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. ~ f. ;"a TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 11 0 1 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 11-- :) . -.-;!~ =-.,~~~~,~'"~~_.. ~-'" ~ o COMMONWEALTH OF PENNSYL VANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DMSION BY: TIMOTHYP. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 . ROBERT C. FITZSIMMONS Appellee vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant .'" " '~"'~~~"'~- <~'~"-"'ilIt.!~ o } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA } } } } NO. 00-6624 Request for Transcript A notice of appeal having been filed in this matter, the official court reporter is hereby requested to produce, certifY and file the transcript in this matter in conformity with Pa. RAP. 1922. Prepare only the original for inclusion in the record as the Appellant, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the transcript. ~f .Mt TIMOTHYP. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 11 0 1 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 It., 't"~-""'" ~ ..J 0".", . <~" ,~. .........1 ""'I1l_' ""_.....'~~ -'~~'11.~~"": --PYS510 cumber, 1 a" nd County Prothonotary's .Iil.t", fice <:fivil Case Inquiry .., FITZSIMMONS ROBERT C (vs) PENNSYLVANIA COMMONWEALTH Page 1 2000 06624 Filed........ : Time......... : Execution Date Jury Trial. . . . Dtsposed Date. Hl.gher Crt 1.: Higher Crt 2.: k************************************************************************,~****** General Index Attorney Info FITZSIMMONS ROBERT C APPELLANT ESPOSITO PAUL J :no REGENT STREET CAMP HILL PA 17011 H,'f"'rence No..: Cnsn Type.. ...: APPEAL - LICENSE SUSP ,Judgment......: .00 ,Judg(~ ASs igned: DIsposed Desc.: u__________ Case Comments ---__________ 9/29/2000 2:21 0/00/0000 0/00/0000 PENNSYI,VANIA COMMONWEALTH OF DEPARTMENT OF TRANSPOR'rATION BlIHEAU OF DRIVER LICENSING HIVERFRONT OFFICE CENTER HAHRISBURG PA 17104 2516 APPELLEE *-~****************************************************************************** * Dat-e Entries * *************************************************************************,~****** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 9/29/2000 PETITION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORATION SUSPENDING OPERATING PRIVILEGE ------------------------------------------------------------------- lO/03/2000 ORDER - DATED 10/3/00 - IN RE PETTION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE - HEARING ON 12/7/00 AT 10: 00 AM IN CR 4 OF THE CUMBERLAND COUWry COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 10/3/00 10/1214000 1/23/2001 AFFIDAVIT OF SERVICE FOR PETITION FOR APPEAL OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING PETITIONERS OPERATING PRIVILEGE -- BY PAUL J ESPOSITO ESQ - --- --------------------------------------------------------------- ORDER - DATED 1/23/01 - IN RE APPEAL OF LICENSE SUSPENSION - SUSTAINDED AND THE ACTION OF HTE DEFT SUSPENDING HIS OPERATING PRIVILEGES IN REVERSED - BY THE COURT KEVIN A HESS J COPIES MAILED 1/24/01 - -- -- - - - - - - - - - LAST ENTRY *************************************************************************'k****** * Escrow Information, * * "nns & Debits Bea Bal Pvmts/Adi End Bal * ~*******************************~***************~************************'k****** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT .ICP FEE 35.00 '35.00 .50 .50 5.00 5.00 5.00 5.00 ------------------------ 45.50 45.50 .00 .00 .00 .00 ------------ .00, *************************************************************************,******* * End of Case Information * ******************************************************************************** TRUE COpy FROMRECOFtD In r&lltimonywtlereof.l here ulltOset my hiIM' _ tIle~ "saki ~1I8Ie. Pa. '~ TI.;[Z~~~} ~:y,~~ 1/, _. 'w~ , "~, ~,.~~~~ _I , ~ J~ ,'. ~_~ 10li .. -'lJ_I"""'" ""'_lItli1fi~ . -~ ... o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DMSION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 o ROBERT C. FITZSIMMONS Appellee vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION" BUREAU OF DRIVER LICENSING, Appellant NO. 00-6624 Proof of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements ofPa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Court Reporter Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 Paul J. Esposito, Esquire Att. for Appellee Fitzsimmons 320 Market Street Carlisle, PA 17013 ~!~ Attorney for Department of Transportation Date: February 8, 2001 Ii- ~~k..."",";"",~i,i.i "'..:diI1ii!. O'J'._",<. -<-~;;"<<~j",,,;i"MA-~~;2l'i"'1f~~Io\i;;,~:~"~ "~.....~.~~ -~ 1:F".-~~ .' -~-~iii "ii ....~ ~r-",',','\" ~i o ~ ~ ~ (k. () 0 a 0 , c: -'1'; :,-:-- () ;:PCi: ...., '" - l>' I r-; r:v '-' ...... 2::U ,'~'- (). --,,~.. ~!~?t~J 0 L-l_ ~ ~ 0') ,,~., N ~ ..../-,/ "-->,{S ~C. 'i>C'"' -0 ~"-r, t2 """1 L..;/ C) $ 5> c.:,:!. w ;::')!-'1 C,.. :2: ':.11 :::":" =< 55 rl:> -< , ,\} ,;',',., ,\ \ '.',. "i~ 't ""'_\~~ _.It '\"\," (.. .,J ',' ...;,> ," , ,..,..--'"~ :~ >':il.... .".....:~: ' , . . \, ..,,",~-", ~'~-,>~" <'~~. ,J_J,' ~ ,~",.""~L.,,,__. , PYS510 2000-06624 ~".~ ...-J. '~~~IM~r) ~,; II l~-'j,." . . Cumberland County Prothonotary's Office ~ivil Case Inquiry ~ FITZSIMMONS RO~T C (vs) PENNSYLVANIA COM~NWEALTH 1 < , ii PaSje Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment......: .00 JVdge Assigned: Dlsposed Desc. : ------------ Case Comments ------------- Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 9/29/2000 2 :21 0/00/0000 0/00/0000 369 CD 2001 *************************************************************************~~****** General Index Attorney Info FITZSIMMONS ROBERT C 330 REGENT STREET CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT ESPOSITO PAUL J APPELLEE *************************************************************************~~****** * Date Entries * *************************************************************************~~****** 9/29/2000 10/03/2000 10/12/2000 1/23/2001 2/12/2001 2/20/2001 2/22/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PETITION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORATION SUSPENDING OPERATING PRIVILEGE ---------------------------,---------------------------------------- ORDER - DATED 10/3/00 - IN RE PETTION FOR APPEAL OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING PRIVILEGE - HEARING ON 12/7/00 AT 10:00 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MJcILED 10/3/00 AFFIDAVIT OF SERVICE FOR PETITION FOR APPEAL OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING PETITIONERS OPERATING PRIVILEGE - BY PAUL J ESPOSITO ESQ --------------------------------------------------------------.----- ORDER - DATED 1/23/01 - IN RE APPEAL OF LICENSE SUSPENSION - SUSTAINDED AND THE ACTION OF THE DEFT SUSPENDING HIS OPERATING PRIVILEGES IN REVERSED - BY THE COURT KEVIN A HESS J COPIES MJ,ILED 1/24/01 --------------------------------------------------------------.----- NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM THE ORDER TrffiT WAS FILED ON 01-23-01 - REQUEST FOR TRANSCRIPT - TIMOTHY P WILE ATTY FOR PLFF --------------------------------------------------------------.----- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 369 --------------------------------------------------------------.----- STATEMENT OF MATTERS COMPLAIND OF AN APPEAL - BY TIMOTHY P WII,E FOR APPELLANT - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - *************************************************************************~~****** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Ad-i End Bal *< *****************************************~*******************************~~****** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 .50 5.00 5.00 30,00 35.00 .50 5.00 5.00 30.00 .00 .00 .00 .00 .00 75.50 75.50 .00 *************************************************************************~~****** * End of Case Information * *************************************************************************~r****** I tj, ,,-~""""'~ , J I J .~........ -- ,,:,j'-.Q; o Ol.l ~ 3 -2-4--01 o Commonwealth Court of Pennsylvania February 15, 2001 RE: Fitzsimmons v. DOT No.: 369 CD 2001 Agency Docket Number: 00- (pCp)-le- Filed Date: February 12, 2001 Notice of Docketing Appeal A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.RAP. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. RAP. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Harold Cramer, Esq. Paul James Esposito, Esq. Timothy P. Wile, Esq. Party Type Appellant Appellee Appellant Party Name Bureau of Driver Licensing Robert C. Fitzsimmons Bureau of Driver Licensing ;"0. """"'_W_" " ~~ ~ ".I -- .J1 t. 'm( / " COMMONWEALTH OF PENN9YLV ANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DMSION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTrFICATIONNO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (71 7) 787-2830 ROBERTC.FITZS~ONS Appellee . rY 6 CD 9 c:"D ;)()OI } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COtiNT~ P AQ. ::,:" ----r-, WI.;" r"l 9.2 ~\.--" GJ ~...-- L- ,_ ~~~ ,> ~t:' ~ L Z --' -( NO. 00-6624 ['0 C~) ~ ~ ::? ,-" ~ :n "'"...., ~, co ,"" vs. } } } } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant Notice of Appeal . Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on January 23, 2001. This order is from a statutory appeal and < cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy ofthe docket entries are attached hereto. . ~f~ TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third J'loor 11 0 1 South Front Street HarrisburO' Pennsylvania 17104..2516 0' (717) 787~2830 TRUE COpy FROM RECORD tlI T.lri'iiYiry Wl1ar~f, f 1'Nir& untDlI8I: ~ ~ ~~~~~~~ t'"= -'~~J '^' i_~" "A ",,",~'-~.ii''''-;'~~t'-f'rm~li:t~j'rW':.Mif)!iOOlil!.OOili<id~~"'''';'. C' " i -'--':01' ~''-'''''','c'' ". c_"" ,"".,,~. _~,_, "~~ _~, ~~. C_'~"., . ..",....,j,J. ~,~ ",.-tf,_ -" ,-,-:,~ . _1iil6 0, -:,-, n_' '-. ,- <0_' 0 0 Ci C 'T~ ~ ..." -ocu f"1 [!lfT; 0;) , ,2:.:U N Zr-'" ~~~ (::; -:'~i C) !.-.--"-.' ;!;:: ~:; j~c~ ~'~ C) ;Sc..:') ,'- ril Pc~ ~;:i ;z; -::::> :Q =< (::> -<.. ffi; ~~li , ' ~"~ L --~ < " ~- " ~-" "~,c.,-, o o COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHYP. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY LD. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 ROBERT C. FITZSIMMONS, Appellee vs. } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, P A } } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } NO. 00-6624 CIVIL TERM Statement of Matters Complained of on AQPeal TO THE HONORABLE, THE JUDGES OF THE SAID COURT: NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant, that, by and through its attorney, Timothy P. Wile, Esquire, in compliance with the requirements of Pa. R.A.P. 1925, hereby sets forth thl~ matters about which it complains with respect to its appeal of this Court's order of January 23,2001: 1. The trial court committed reversible error of law when it held that the New Jersey Dill offense of which Appellee Fitzsimmons was convicted was not substantially similar to )). ~l ~ .1" ... ~ ~ " ~ .--<" """""""'-... 'Wi"'W~~~iI@;'i o o Article IV(a)(2) of the Driver License Compact, 75 Pa.C.S. ~158l, Article IV(a)(2). This holding directly contradicts a number of holdings to the contrary by the Commonwealth Court that have held that N.J.S.A. ~39:4-50(a) is substantially similar to both 75 Pa.C.S. ~373l(a) and to Article IV(a)(2) of the Driver License Compact. See, e.g., Koterba v. l)epartment of Transportation, Bureau of Driver Licensing, 736 A.2d 761 (Pa. Cmwlth. 1999), appeal denied, 751 A.2d 195 (pa. 2000), cert. denied, 531 U.S. ---> 121 S. Ct. 53, 148 L.Ed.2d 21 (2000); Scott v. Department of Transportation, Bureau of Driver Licensing, 730 A.2d 539 (Pa. Cmwlth. 1999) (en bane), appeal granted, 2001 Pa. LEXIS 42 (Pa. 2001); Kiebort v. Department of Transportation, Bureau of Driver Licensing, 719 A.2d 1139 (Pa. Cmwlth. 1998), rev'd on other grounds, 2001 Pa. LEXIS 59 (Pa. 2001); Seibert v. Department of Transportation, Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998), aff'g, Seibert v. Department of Transportation, 71 Bucks 198 (Pa. C.P. 1997). The trial court's decision also conflicts with the decision of the Pennsylvania Superior Court in Commonwealth v. Whisnant, 568 A.2d 259 (Pa. Super. 1990), which held that N.J.S.A. ~39:4-50(a) is nearly "identical" with 75 Pa.C.S. ~373l(a). The Pennsylvania Supremc~ Court in Petrovick v, Department of Transportation, Bureau of Driver Licensing, 741 A.2d 1264 (Pa. 1999), held that 75 Pa.C.S. ~373l(a) is substantially similar to Article IV(a)(2) of the Compact. Petrovick, 741 A.2d at 1268. 2. The trial court failed to give full force and effect to 75 Pa.C.S. ~1586, which broadened the scope of out-of-state impaired and intoxicated driving offenses that Pennsylvania would consider as being "substantially similar" to Article IV(a)(2) of the ~3. ~ ,_"1 ~ -~~.- ..~-~~" o o Driver License Compact, 75 Pa.C.S. ~158l, Article IV(a)(2), and New Jersey's DUI offense, set forth at NJ.S.A. ~39:4-50(a), clearly comes within Section 1586's broadened scope of "substantially similar" offenses. See Petrovick v. Department of Transportation, Bureau of Driver Licensing, 741 A.2d 1264, 1269 (pa. 1999) (enactment of 75 Pa.C.S. ~1586 changed the substantive law relating to offenses substantially similar to Article IV(a)(2) of the Driver License Compact and would not be applied retroactively); Squire v. Department of Transportation, Bureau of Driver Licensing, 2001 Pa. Commw. LEXIS 107 (Pa. Cwmlth. 2001) (New York's DWAI offense is now considered by Pennsylvania to be substantially similar to Article IV(a)(2) of the Compact since the enactment of 75 Pa.C.S. ~1586); Ester v. Department of Transportation, Bureau of Driver Licensing, 756 A.2d 84 (pa. Cmwlth. 2000) (North Carolina's per se DWI offense, having a threshold BAC level of 0.08%, is now considered by Pennsylvania to be substantially similar to Article IV(a)(2) of the Compact since the enactment of 75 Pa.C.S. ~1586). Since Fitzsimmons' New Jersey DUI conviction occurred in November of 1999, Section 1586, which became effective on December 21, 1998, is applicable to the substantial similarity inquiry with Article IV(a)(2) of the Compact. See Schrankel v. Department of Transportation, Bureau of Driver Licensing, 755 A.2d 690 (Pa. 2000) (date of driver's out-of-state DUI conviction controls over which provisions of the Driver License Compact are applicable to the driver's operating privilege); Touring v. Department of Transportation, Bureau of Driver Licensing, 712 A.2d 349 (Pa. Cmwlth. 1998) (same as Schrankel). ~4- '-~ ~ ~ .1 1- " .__ J '.C~Jk,,: o (I 3. The Bureau reserves the right to argue any additional issues that may be raised by the common pleas court's opinion filed in support of that court's order of January 23,2001. Respectfully submitted, Timothy P Wile Assistant ounse/ In-Charge Appellate Section Vehicle & Traffic Law Division Attorney LD. No. 30397 Attorney for Appellant Jj--: '~.- ~~ 'l ~, '~'-~,- c o COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY LD. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 ROBERT C. FITZSIMMONS, Appellee vs. } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, PA } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO, 00-6624 CIVIL TERM Certificate of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Statement of Matters Complained of on Appeal upon the following persons in the following manner, which service complies with the requirements ofPa, R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: TI Attorney for Date: February 20,2001 Paul J. Esposito, Esquire Attorney for Appellee Fitzsimmons 320 Market Street Carlisle, P A 17013 Judge Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 ;z" i........''''.''''.., '~~t L,:.__.;....."'~'~;;'_''';' .., _ ~,-" ~f~_. - """""~m'&i"'-"'~tlWkw"t~!::M;;WM,;;;l-i'<lf~IIIOiIEIlU~.... jI"", ~'" ~ " ~ ~_, c>~ ~~ ~:..~ _~ I,J. ~ ".>Io.fl'~.~' ~~ "..~,--- " - < o '" ,~~ (') C~C - - ;:~ - ~'j -",.., q ri"'; j ::..D '-:"J .. f'...) -"I ~- " !~ -. ~~..) (/~} " '.. '. --, -, ::~ () !-::. C ~:i ~L =ri ~~ tJ """;". -) (') '-,.... C' ~V 0 ill -- C ~;! z =2 ..,J :D -< " _.c'- ~~~ J~ _1-- " i "~ .l!II ..~" [j~j,.' ;DL-326 (9/95) o o CERTIFICATION DATE: October 20, 2000 I hereby certify that Rebecca L. Bickley, Director of the Bureau of Driver Licensing of the Pennsylvania Department of Transportation, is the legal custodian of the Driver License records of the Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal custody of the original or microfilm records which are reproduced in the attached certification. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID. ~ 7--~ BRADLEY L. LLORY, SECRETARY OF TRANSPORTATION I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND CORRECT CERTIFIED PHOTOSTATIC COPY OF: 1) Official Notice of suspension dated & mailed 09/04/00, effective 10/09/00; 2) Record of Conviction Detail, Out of State Driver Violations Report received from the licensing authority of the State of NEW JERSEY, operating under the influence of liquor or drugs, date of viollation 05/12/99, and date of conviction 11/03/99, and 3) Driving Record, which appears in the file of the defendant ROBERT C. FITZSIMMONS, operator's no. 22174279, date of birth 07/22/53, in the Bureau of Driver Licensing, Harrisburg, Pennsylvania. CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9, 1976, PL 586, as amended, 42 Pa.C.S. ~~6103 and 6109. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR AFORESAID. ' (\ ~ ~ <B...~.(:~(I.. ~. SEAL REBECCA L. BICKLEY, DIR TOR BUREAU OF DRIVER LICENSING ).,7. o o COMMONWEALTH Of PENNSYLVANIA OEPARTMENT OF TRANSPORTATION Bureau of Driver licensing Harrisburg, PA 11123 SEPTEMBER 04, 2000 ROBERT ( FITZSIMMONS 330 REGENT ST 0024]'~10]'387~00 DO]' 08/28/2000 2217427' 0712211'53 (AMP HIll PA 17011 Dear Motorist: Section 1581 of the Vehicle Code requires the Department to treat certain out of state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the Department receiving notification from NEW JERSEV of your conviction on 11/03/1999 of an offen$e wh~ch occurred on 05/12/1999, which is equivalent to a violation of Section 3131 of the Pa. Vehicle Code, DRIVING UNDER INFLUENCE, your driving privilege is being SUSPENDED for a period of 1 YEARlS), as mandated by Section 15328 of the Vehicle Code. The e~~eetive date o~ suspension 18 10'09'2000, 12:01 a... In order to comply with this sanction you are required to return anY current driver's license, learner's permit and/or temporary driver's license lcamera 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 Dl16lC Form or a sworn affidavit stating that you are aware of the sanction against your driving privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 15711a)14) of the Ve- hicle Code. Although the law mandates that your driving privilege is under suspension even if YOU do not surrender your license, Credi1: ..ill not begin until all current driver's license productlS), the DlI6lC Form, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF yOU DO NOT RECEIVE THIS RECEIPT wITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE. YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. ~\ J-r j......',-,',,,.ir/i ,,,-. OI!\i~R',' ~ - .'. ""..~,_~;,.{L ="~. - ,~- ,,- Glliict; o o 0021,16101:\87600 Please see the enclosed application for restoration fee in- formation. You will be notified of any outstanding restoration re- quirements approximately 30 days before the eligibility date of the restoration of vour driving privilege. You ll\UlIt follow those instructions very carefully in order to have your driving privilege restored. !PPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the maU date of this letter, SEPTEMBER 04, 21100. Xi' YOU 1':11.. en appeal in the County Court, the Court will give you. time- stalllPed certi1'ied copy 01' the appeal. Send this time- stamped certified copy of the appeal by certified mail tOI PENNSYLVANIA DIPARTMeNTOF TRANSPORTATION OFFICE OF CHJ:I!F COUNSEL THXRD FLOOR, RXVERFRONT OFFXCE CENTER HARRISBURG, PA. 17104-2516 Sincerelv, ~~.~ Rebecca L. Bickley, Director Bureau of Driver Licensing SEND fEE/LICENSE/DL-16LC/TO: Department of Transportation Bureau of Driver Licensing P.O. 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"'0 m;o m z~ eG) 3:Z Ol m ;0 '0 m Z Z '" -< r- < .. Z ~ .. .. < ." '" U1 ;0 r- .. "'0 ....;0 ~ < m ;0 Z .. 3: m ." ~ ;0 '" .... o e .... o ." o "'~ ....< ..~'" ...."'.... m~.. 0.... ozm ;0 ~oo <."." m r 3: ~ o Ol.. ~.... ;om .... IO ." 'ii Ji. O~");J.I~ r- m "<;0 ....m'" ~Im o~-< ZO ",r- m ;0'" m '0 o ;0 .... '" m X o om r--< Om ;0 '" ze e3: 3:3: 010 mZ ;0'" < ~ 00 ..r- ...... m.... ~ o Z Z ",m ....'" .. ....e:. em ....;0 m", m -< .. oz "'''' o~ o o oz ..< ....~ mO .... '00 <Xl , ) '" "" :~ Ol ,--~ ~~ i ~_........... ~_~j " PENNSYL~IA DEPARTMENT OF TRANSPO~ION BUREAU OF DRIVER LICENSING CERTIFIED DRIVING HISTORY OCT 11 2000 DRIVER: ROBERT C FITZSIMMONS 330 REGENT ST ' CAMP HILL, PA 17011 DRIVER LICENSE NO DATE OF BIRTH SEX RECORD TYPE DRIVER LICENSE (PL) .o.",~1iIllllliIlEl" "FlI/" "~' "-;j'~] PAGE 1 22174279 : JUL 22 1953 MALE : REG LICENSE COMMERCIAL DRIVER LICENSE (CDL) ----------------------------....---- LICENSE CLASS . C . LICENSE ISSUE DATE: MA:Y 18 1998 LICENSE EXPIRES . JqL 31 2002 . ORIG ISSUE DATE . AUG 18 1986 . MED RESTRICTIONS : 1 LEARNER PERMITS . . LICENSE STATUS SUSPENDED CDL LICENSE CLASS CDLLICENSE ISSUED CDL LIC~~SE EXPIRES : CDL ENDORSEMENTS CDL,RESTRICTIONS CDL LEARNER PEaMITS : CDL LICENS$STATUS SB ENDORSEMENT : . . NONE : NONE : SUSPENDED I PROBATIONARY LICENSE (PL) --------------------------------- PL LICENSE CLASS 1>L LICENSE~tG 1SS : PI, LICENSEI$Sf:1ED Pr.. LICENSJ!:~ti?tRES PLLICENSES'1'~TUS . . . . OCCUl>ATIQlIl~LIMITED LICENSE (OLL) . " --------~-~---------------------- OLL LICE~S~ CLASS OLL LICENSE ISSUED OLL LICENSE .EXPIRES : OLL LICENSE STATUS *** CONTINUED *** 1? . . : . . 3 r ~ilO'o- -,' "AI ~I ..~~ "~- '-"'~} o o PAGE 2 .CERTIFIED DRIVING IUSTORY - OCT 11 2000 - LICENSE NUMBER 22174279 CONTINUED --------------------------------------------------------------------------------- REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS --------------------------------------------------------------------------------- VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: ACTION: VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: AC:!,ION: OCT 07 1987 VEHICLE CODE: 3362 EXCEEDING MAXIMUM SPEED 071 MPH IN A 055 MPH ZONE OCT 13 1987 ASSIGNED POINTS MAR 14 1989 VEHICL;ECODE: 3362 EXCE.EOnm~~IM-UM SPEED" 070MPHINA055 MPH ZONE MAR 28;1989 ASSIGNIll,D POINTS MAY 03(1990 VEHICJ:,;E:,nCODE: 3362. EXCE.EDt1,Q~JIAXIMUMSI'EIllD 081MI'HINA 055 MPt{ZONE MAY081990. POIN'r EXAM PASSED EXAM AUG 10 1990 JON 18 1992 VEHICLE CODE: 3362 EXCEEDING MAXIMUM SPEED 061 MPH IN A 045 MPH ZONE JUN 24 1992 ASSIGNED POINTS *** CONTINUED *** 31. ;-~ "';..,.... , --I .~ "u~.:!P"'- ., J ~. c " PAGE 3 .CERTIFIED DRIVING HISTORY - OCT 11 2000 - LICENSE NUMBER 22174279 CONTINUED VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: ACTION: VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: JAN 07 1993 VEHICLE CODE: 3362 EXCEEDING MAXIMUM SPEED 074 MPH IN A 055 MPH ZONE JAN 14 1993 DEPARTMENTAL HEARING NO ACTION AS A RESULT OF A HEARING MAY 12 1999 VEHICLE ,CODE: 3731 MAJOR VIOLATION DRIVINGgN~$R INFLUENCE NOval 1999 SUSPORVRiLICCOMPACTElqR 1 YEAR(S) EFFECTIVE OCT 09 2000 OFFICIAL NOTICE MAILE~SEP 04 2000 ------------------------~-~~~------~---~--~-~~-~~----------~-------------_._----- REPORTClFMEDICALSANDbEPMTMtNTAL At::'l'tONS NO MEDICALS OR DEPAR'l'MENTAL ACTIONS DURING THIS REPORTING PERIOD *** CONTINUED *** ~1. ---;., , ~. ~I 0.. ~ ~ ....1..... ~ -- I"""," ,-1_... I '" '-'" "'~~,k;" o o PAGE 4 .CERTIFIED DRIVING HISTORY - OCT 11 2000 - LICENSE NUMBER 22174279 CONTINUED -------------------------------------------------------------------------------- REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS --------------------------------------------------------------------------~------ NO ACCIDENTS DURING THIS REPORTING PERIOD *** END OF RECORD *** 34- . .~'~. , .J , ~. ~~ ....c"J~~""~"~~. , l~~"-'~ "1 """" -~~,~ " . Q o PAGE 5 . CERTIFIED DRIVING HISTORY ~ OCT 11 2000 - LICENSE NUMBER 22174279 CONTINUED IN COMPLIANCE WITH YOUR REQUEST, I HEREBY CERTIFY THAT I HAVE CAUSED A SEARCH TO BE MADE OF THE FILES OF THE DEPART- MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED. SINCERELY, ~~,~ SEAL DIRECTOR, BUREAU OF DRIVER LICENSING FOR SECRETARY OF TRANSt>ClRTATION COMMONWEALTH OF PENNSYLVANIA $S: DATE:OCT 11 2000 I HEREBY CERT,IFYTHAT REBEC$l~.BICKLEY, DIRECTOR OF THE BUREAU OF DRIiW)RLICENSING ",O*~'l1HE:gENNSYLVANIA,gEPARTMENT OF TRANSPORTATmONIS THE LEG' 'U$fI10D[AN OF TH'EDRIVER LICENSING REdQROeltDF THE l~~ii"~'l'i()J!i,TRANS:PEi~!Jj~:PON. AS THE DIRECTOR OF-''il~E AFOREiS'NI ,)lAU"S,HE HASl!;Ji)'G'JitCUSTODY OF THE ORIGINALORMICROF\i:l:l.l\t>ORDS'wHICH ARE'i'HE S,6BJECT OF THE ABOVECE:RTiF\i:CAiION~ ' '""..,', , " IN TESTIMONY WJ!EiREQF, I HAVE HEREUNTO SETklY~D AND SEAL OF THIS PEPARTMENTTHE DAY AND YEAR AFORESAID. SINCERELY, ~ SECRETARY OF TRANSPORTATION SEAL 1{ ""------------ ~.~ ",I ~. I" ".~ -~-"'" 'jfllilli'~F.{ c o ROBERT C. FITZSIMMONS, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant 00-6624 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Thursday, December 7, 2000, in Courtroom Number Four. APPEARANCES: Paul J. Esposito, Esquire For the Appellee George Kabusk, Esquire For the Appellant 3'-. n~1' o A 'W INDEX TO WITNESSES FOR APPELLEE DIRECT CROSS REDIRECT RECROSS Robert C. Fitzsimmons 5 11 INDEX TO EXHIBITS FOR APPELLANT ADMITTED Ex. No. 1 - packet of documents 5 2 37. .~ ~~ " I .i 'I" ,"- ---,~ '0-'-. ""'''l1>~(''-' o o 1 2 THE COURT: Good morning. MR. KABUSK: Good morning, Your Honor. 3 This is the case of Robert Fitzsimmons versus Commonwealth 4 of Pennsylvania, Department of Transportation, Bureau of 5 Driver Licensing, Number 2000-6624. 6 What's been marked as Commonwealth's Exhibit Number 1 is under seal and certification. I've provided a 7 8 copy of that to Mr. Esposito. Your Honor, if you want to 9 follow along, I'll hand that up. 10 THE COURT: Thank you. 11 MR. KABUSK: The Department's document, 12 which is under seal and certification, indicates that it 13 consists of three subexhibits. Subexhibit Number 1 is 14 official notice of suspension dated and mailed 9/4/2000, 15 effective 10/9/2000. 16 That informs the motorist, Robert C. 17 Fitzsimmons, operator's number 22174274, that Section 1581 18 of the Vehicle Code requires the Department to treat 19 certain out of state convictions as though they had 20 occurred in Pennsylvania. 21 Therefore, as a result of the Department 22 receiving notification from New Jersey of your conviction 23 date on 11/3/99, of an offense which occurred on 5/12/99, 24 which is equivalent to the violation of Section 3731 of the 25 Pennsylvania Vehicle Code, Driving Under the Influence, 3 .a~. ,,'-.,., 1..- i ,~'-IlIh", o " 1 your driving privileges are being suspended for a period of 2 one year as mandated by Section 1532B of the Vehicle Code. 3 Subexhibit Number 2 is a record of 4 conviction detail out of state driver violations report 5 received from the licensing authority of the State of New 6 Jersey, Operating under the Influence of Liquor or Drugs, 7 date of violation, 5/12/99, date of conviction 11/3/99. 8 Your Honor, we would note on that Subexhibit 9 Number 2, the petitioner is the first entry on that page. 10 It would be the top entry. There's his license number, 11 22174279. Driver name; last name Fitzsimmons, first, 12 Robert. Then you would see description, Operating Under 13 the Influence of Liquor/Drugs, and it gives the New Jersey 14 statute data as 39:004-050A, date of violation and date of 15 conviction. 16 And Subexhibit Number 3 is his driving 17 record which appears in the file of the defendant, Robert 18 C. Fitzsimmons, operator's number 22174279. Date of birth, 19 7/22/53, and then Bureau of Driver Licensing, Harrisburg, 20 Pennsylvania. 21 I would move for the admission of what has 22 been marked Commonwealth's Exhibit Number 1. 23 24 THE COURT: I assume there's no objection. MR. ESPOSITO: No objection to the 25 admission of the exhibit, Your Honor. 4 ~l. . 1 " o , ~ " OO~': , o o THE COURT: Very well. It's admitted. 2 (Whereupon, Appellant's Exhibit NO.1 was 3 admitted.) 4 5 case. MR. KABUSK: And that is the Department's 6 THE COURT: Okay. Mr. Esposito. 7 MR. ESPOSITO: Your Honor, I first would 8 call Robert Fitzsimmons to the stand, and reserve argument 9 upon completion of the testimony. 10 Whereupon, 11 ROBERT C. FITZSIMMONS 12 having been duly sworn, testified as follows: 13 DIRECT EXAMINATION 14 BY MR. ESPOSITO: 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q A Q A Q A Q Please state your full name for the record. My name's Robert Charles Fitzsimmons. Where do you reside? 330 Regent Street, Camp Hill. What is your birth date? 7/22/53. Are you married, Mr. Fitzsimmons? Yes, I am. How long? Since '86. Do you have any children? 5 40. c",=<' 1 2 3 4 5 6 ~I' - -, f c ;.-, ~,' "'.:.-" "-, ~:.:,~: ~ . ~, . o CD A Q A Q A Q Yes, two. And how old are they? My daughter's 12. My son's 10. And are you employed? Yes, I am. For whom? 7 A I work for Brother International Corporation 8 headquartered in Bridgewater, New Jersey. 9 10 Q A And what do you do? I'm a -- well, in short I'm a salesman for 11 regional manager. 12 Q How long have you been so employed? 13 A I've been with Brother for ten years. 14 Q Okay. Does this entail driving a motor 15 vehicle? 16 17 18 19 20 21 22 23 24 25 Jersey. A Q Yes, it does. And to what extent? A Quite a bit. I make numerous trips to New I make trips down to Washington D.C. I make And in my travels, when I fly, I trips up to Connecticut. rent cars a lot too. Q Now, Mr. Fitzsimmons, do you acknowledge that you entered a plea of guilty to a charge of driving under the influence under New Jersey law, which is the reason for the suspension? 6 41. ~~ ~, """"",,,,,, 1 A Q that matter? A Q A Q A 2 3 "~ ""--.c. '''''~" , - o . Yes. Were you represented by legal counsel in 9 I looked in the yellow pages of the phone book and saw an 10 attorney advertizing that he specializes in DUI. 11 Q Okay. The term specialized in DUI was set 12 forth in the yellow page ad? 13 A Yes, it was. 14 Q Did you discuss your case with the New 15 Jersey attorney before you entered your plea? 16 A We discussed it during our first and only 17 meeting before trial. We talked about the case, and he 18 asked for a postponement so he could gather some 19 information, and then that was in May of '99, and we didn't 20 go to trial until, I guess it was November. From that 21 first meeting to trial, I hadn't had a chance to talk to 22 him after that. 23 Q Was there -- 24 A And then -- are you saying before the trial 25 itself? 7 42.. ,,' ,I ~, - 'M.M!"'" . I. L, ,; "< , ,,,~"," " '.. __J -'"'~ c o 1 Q Let me make it clear for you. Before the 2 date that you were scheduled to appear for trial on the 3 charge, did you discuss the case with your New Jersey 4 counsel? 5 6 in May. 7 A Just the first and only time that I met him Q Did you attempt to discuss it on subsequent 8 occasions, but also prior to trial? 9 A Oh, yeah. I made repeated phone calls to 10 him because we had a couple dates that were coming up, and 11 the first date was postponed, and then we had another court 12 date, and 13 14 Q A What happened in that court date? Well, I showed up for it, and I had tried to 15 call him a number of times to find out where we were at and 16 discuss it with him, and when I showed up for the appointed 17 court date that everybody agreed on, he never showed. 18 19 Q A And what happened at that proceeding? I sat through the whole -- it was a night 20 court or an evening court, and I sat through the whole -- 21 all the cases, and then the prosecutor came up to me and 22 asked, you know, where my attorney was, and I said, I don't 23 know where he is. 24 The judge made me stand up, asked where my 25 attorney was, and I said I didn't know, and then he turned 8 43. '-"'...; . ,I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -~'i1iilllilllllilaillllllhil!...!lillll;i"I.m''l!'k o o to the clerk or somebody and said, all right, we're going to set a new date, and every party better be there and be ready. Q And did you, in fact, appear on that date with your attorney? A On the last date that the judge declared, yes. Q And was that the date on which you ultimately entered your plea of guilty? A Yes. Q Prior to your plea, did you ask your counsel if the plea of guilty to the New Jersey DUl offense would have any effect on your operating privilege in Pennsylvania? A I hadn't talked to him other than the day of the trial, the last date. Q That's what I'm referring to. On the day of the trial, did you pose that question to him? A He came back to me with -- I guess he went and talked to the prosecutor before the trial date, and he came back, and said, well, we have come to an agreement. You know, if you plead to the DUI -- MR. KABUSK: Objection on the basis of hearsay. THE COURT: Well, actually it's not hearsay. 9 'tlf - 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 =- LI:.u lLlWil -l, - .- ~". " " -~ ~ .', o o 1 I'm sure it's not being offered for the truth of the matter 2 asserted. As a matter of fact to the contrary. You're 3 saying that what his attorney told him was incorrect. 4 MR. ESPOSITO: That is correct, Your Honor. 5 That's where I'm going with it. THE COURT: Okay. Then it isn't hearsay. Go ahead. THE WITNESS: Well, I asked him, I said, how does this affect my -- if I plea to the DUI, how does this affect my Pennsylvania license, and he said he didn't believe it would effect it at all. He said that, you know, he didn't believe there was any communications between the two motor vehicle departments, and he told me that we would hold the DUI classes right here in New Jersey. There in New Jersey, I should say. BY MR. ESPOSITO: Q Did you enter your plea of guilty to the DUI charge at least in part based upon the advise -- or the answer to that question? A Yeah. I was concerned about the status of my license, and I asked him that question. I was specifically concerned about that. And when he told me he didn't think there would be any repercussions, then that's when I decided to go with the plea. Q Mr. Fitzsimmons, if you had known that your 10 w. ~ ~- . h , I' " ,_, ,"'I~ ~->'~", :,,"~";-:~>_.'L,. '.'._ '\3hw.' o o 1 plea of guilty to the DUI in New Jersey would result in the 2 suspension of your Pennsylvania operator's privilege, would 3 you have pled guilty? 4 MR. KABUSK: Objection, Your Honor. 5 That's a hypothetical not at issue today. 6 THE COURT: Well, whether it's an issue on 7 which he can prevail, I agree I have doubts about, but I'll 8 certainly let him answer the question. 9 THE WITNESS: I was prepared that day to go 10 to trial. I had had a witness that was with me that night 11 take time off from work, and he and I were there waiting, 12 and we were prepared to go to trial. 13 BY MR. ESPOSITO: 14 Q I'm not sure that really responded to the 15 question that I posed, Mr. Fitzsimmons. Let me repeat it. 16 If you had known that pleading guilty to the DUI in New 17 Jersey would result in a suspension of your Pennsylvania 18 operator's privileges, would you have pled guilty? 19 A No. 20 MR. ESPOSITO: That's all I have for Mr. 21 Fitzsimmons, Your Honor. 22 CROSS EXAMINATION 23 BY MR. KABUSK: 24 Q Mr. Fitzsimmons, were you charged with a 25 violation of operating under the influence of liquor or 11 4/., 1 drugs in New Jersey? 2 3 4 5 6 7 -_-~--~I- 8 9 10 11 12 13 14 15 I '_J - ~ ">-',~~ '~ ~ ' ""'I.JE':j o o A Yes. Q And was the violation date 5/12 of '99? A Yes. (1) And do you happen to know the New Jersey statute that you were charged with? A I do not. No, I don't. Q A How was it described to you? The statute was never described in detail. Q Was it described to you as driving while under the influence of alcohol? Was it a DUI statute? A That's what I was led to believe it Yes. was, yes. Q A And did you plead guilty to that offense? I did stand in front of the judge and plead 16 guilty based on my attorney's recommendation. 17 18 19 20 21 22 23 Q A And was that on November 3rd of 1999? Yes, it was. Q Then did you subsequently receive a notice from the Department of Transportation dated September 4th of 2000? A Yes. And that was the notice informing you that Q 24 as a result of your New Jersey conviction, you were being 25 suspended in Pennsylvania? 12 ~7. 1 2 3 4 BY THE COURT: 5 - I~ '''''''''''tij i!i~,'" - --' << " '"-~ ,.,,:,,~ ' , o . A Yes. MR. KABUSK: No further questions. MR. ESPOSITO: Nothing further, Your Honor. Q I'm not sure it bears on this matter, Mr. 6 Fitzsimmons, but what was your sentence in New Jersey? 7 8 9 10 11 12 13 14 15 16 17 18 Okay. 19 20 A It was a 6 month probation -- or 6 month not being able to drive in New Jersey. Q But the sentence itself, was there a fine? Was there a prison term? A Oh, yes. No, there was no jail term. I had to pay a fine. I had to pay court fees. My license -- my right to drive in New Jersey was suspended for 6 months, and I had to take some classes. testimony. Q A Okay. And I took those classes. THE COURT: Thank you. You can step down. MR. ESPOSITO: Your Honor, I have no further If I may -- 21 THE COURT: Certainly. 22 MR. ESPOSITO: -- make a few remarks. 23 Your Honor, in the petition that was filed in this matter, 24 I had raised -- in paragraph 5 I had raised the issues 25 wherein we contended that had the offense occurred in 13 't-f. - .,-~~ . l, ~- I.' _,J , " - '1fb~i-! o 0",' " 1 Pennsylvania, Mr. Fitzsimmons would have been at least 2 eligible for the ARD program under our law, and that since 3 he lost his license for 6 months under New Jersey law and 4 now is facing a year's loss of license under Pennsylvania 5 law, that he was actually being treated more harshly than 6 our law would allow. 7 I'm not pursuing that argument today, Your 8 Honor. The Commonwealth versus McCafferty case came down 9 within just a few days after this petition was filed. I 10 wasn't aware of McCafferty on the date that I filed. So I 11 believe the Supreme Court has pretty much disposed of that 12 issue. 13 THE COURT: All right. 14 MR. ESPOSITO: However, I do want to make 15 two points. One is in line with what Mr. Fitzsimmons 16 testified about, and that is it is our contention that he 17 entered the plea in New Jersey with defective, if you will, 18 legal advice. His belief was that if he pled guilty to a 19 -- to the offense with which he was charged in New Jersey, 20 that it would have no effect, that is it would not result 21 in the suspension of his Pennsylvania driver's license. 22 Had he known that that was the case, Mr. 23 Fitzsimmons, as he testified, would have challenged or at 24 least taken a trial in New Jersey, the outcome of which, 25 obviously, is not known to us. So that's the first issue. 14 'ft. -~ J- " ~, ,I _ ,,- '-"" ' ~. ~"-" .,,< o o 1 The second issue, Your Honor, is the 2 requirement in the compact. The interstate compact tells 3 us that the statute -- the New Jersey statute must be 4 substantially similar to the Pennsylvania statute or the 5 suspension cannot be imposed in Pennsylvania. 6 I acknowledge that there have been at least 7 two, I think, cases that I'm aware of in the Commonwealth 8 Court which have addressed this issue, and specifically, 9 with New Jersey, the New Jersey DUI law, and those cases 10 seem to hold that the New Jersey law is substantially 11 similar to ours and would comport with the compact's 12 requirements. 13 However, in the McCafferty case, which was 14 decided by the Supreme Court, and I believe is the latest 15 word in this area, and certainly the most authoritative, 16 the Supreme Court in that case remanded to the Commonwealth 17 Court on the issue of whether New Jersey statute, DUI 18 statute, is in fact substantially similar to its 19 Pennsylvania counterpart, Section 3731. 20 So I would submit to Your Honor that that 21 issue is up in the air by virtue of what the Supreme 22 Court's action was in that case. 23 24 McCafferty? 25 THE COURT: Do you have the cite for MR. ESPOSITO: Yes, sir. It is 15 00. , ,,-,, -__<;; _" ,_-,-,~" '_h~. . .;.,.."", o o 1 Commonwealth Department of Transportation versus 2 McCaffertv, 758 A.2d 1155 (Pa. 2000). 3 I would also submit to Your Honor that in 4 reading the two statutes, that they aren't substantially 5 similar as written. The New Jersey statute, although 6 similar, I will certainly acknowledge that, similar to the 7 pennsylvania DUI statute, does not contain what I consider 8 to be a very important element that our law does. 9 The Pennsylvania -- the New Jersey statute 10 recites that a person who is under the influence of 11 alcohol, and there's a reference to drugs which obviously 12 isn't germane to our case, but that's as far as the 13 14 15 language goes in the New Jersey statute. is under the influence. Our statute has an additional element. That if someone Not 16 only does our statute indicate that the person must be 17 under the influence of alcohol, but that they must be under 18 the influence of alcohol to the extent that it renders the 19 person incapable of safe driving. 20 To me that is an extremely important element 21 which appears in our statute, and which is not required 22 under the New Jersey statute. So I think in Pennsylvania 23 the Commonwealth's burden is to prove both of those 24 elements. In New Jersey it's just the single element, and 25 it doesn't go as far as ours. 16 5'1. ,~ '" -, .--'.'-- :',~,",--',,",- ~," . --'~h__.' o o 1 Also, Your Honor, and this is the last 2 point, the compact, as I read it, Article 3, requires that 3 certain information be set forth in the information as 4 reported by the foreign state, in this case New Jersey. 5 I think there were four essential elements. 6 One is that the defendant, the driver, must be clearly 7 identified. I think that that element has been certainly 8 fulfilled. The violation, the specification of the 9 statute violated certainly appears in the New Jersey 10 record. 11 It does not indicate, I don't believe, and I 12 don't want to misspeak on this. The record itself doesn't 13 indicate how the conviction was obtained, whether it was by 14 a plea of guilty, a verdict by a judge or a jury, or 15 otherwise. The third element is whether the Court in 16 which the action was taken must be identified, and I don't 17 believe that that appears anywhere in the New Jersey 18 record. 19 But for all of those reasons, Your Honor, I 20 would submit that this suspension cannot be sustained. 21 Thank you. 22 MR. KABUSK: Your Honor, in the McCafferty 23 case the Supreme Court held that the license suspension 24 appeals pursuant to the compact were collateral, civil 25 consequences, and the general rule is when a suspension is 17 b).., I" ,1- ,_'_0. ~,;,:<; c o 1 a collateral civil consequence that the licensee need not 2 be informed that the plea of guilty will result in a 3 license suspension. 4 And I would cite to you the McCafferty case 5 and Duffey, and I believe that that is a Supreme Court 6 case, and it's at 639 A.2d 1174. Duffey stands for the 7 provision that the person need not be warned of the 8 collateral civil consequences when they -- 9 10 11 12 13 14 THE COURT: Though not being informed and being misinformed are clearly two different things. MR. KABUSK: Yes, Your Honor. THE COURT: But this was not from the court. This was from apparently an inept attorney. MR. KABUSK: And regarding the 15 substantially similar argument, I would cite to you four 16 cases. They're all dealing with New Jersey, and basically 17 all of those say the New Jersey statute is substantially 18 similar. Koterba, 736 A.2d 761; Scott, 730 A.2d 539; 19 Seibert, 715 A.2d 517, and Kiebort, K-i-e-b-o-r-t, 719 A.2d 20 1139. 21 And the third argument regarding Article 3 22 reporting requirements. Once again in McCafferty the 23 Supreme Court addressed that. They said that the 24 Department can act even upon -- the Department can act upon 25 reports of convictions even if they don't meet all of the 18 fl. Ii ...-. -',-,--- I' i' -'-',- ~li>-);__ ~ V' o 1 technical requirements of Article 3. 2 THE COURT: Well, wasn't Judge Bayley of 3 this Court just recently reversed in a case very similar to 4 this where they said that the notice was sufficient. 5 MR. KABUSK: That is in the Geesaman case, 6 yes, Your Honor. That had to deal with the reporter 7 requirements, and the case that started all of the -- the 8 proposition that the report must strictly comply with 9 Article 3 was reversed and remanded for proceedings 10 consistent with McCafferty. That's the Mazurek case, and 11 that was i~itially reported at 717 A.2d, but then reversed 12 and remanded by McCafferty, and that cite is 760 A.2d. 848. 13 Regarding the hardship. Hardship is no 14 defense, Your Honor, and I would argue that any advice of 15 counsel, the remedy is not in this court -- or inept advise 16 of counsel, the remedy is not in this courtroom today, Your 17 Honor, and I would respectfully request that you dismiss 18 the appeal and reinstate the suspensions. 19 THE COURT: Before I act on it, of course, 20 I will read the various cases and consider the arguments 21 that have just been made, and in doing that in resolving 22 the case I should note for the record that with regard to 23 Mr. Fitzsimmons testimony, that he got erroneous advice 24 from a New Jersey attorney, I find that -- I find the 25 testimony credible, in that regard, and I will assume that 19 6-4-. " ",'_j '- o o 1 to be a fact in the case. 2 Though as I sit here now, I highly doubt 3 that that is a basis for reversing the Department's action 4 in the case. The Pennsylvania Department of Transportation 5 had no idea what advice Mr. Fitzsimmons had been given, or 6 any other motorist for that matter. But we'll look at it. 7 All of the arguments have been raised, and I'll enter an 8 order. 9 Thank you, Your Honor. MR. ESPOSITO: 10 (Whereupon, the proceedings concluded at 11 10:27 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 oft; ""~~ W"ijl'S<*' i' ",,"'-~" " ,~I . - -c..,,_ ,,-, '"C-..;.,;;" '_, .- d~: o o CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of :-1 j,; ,i same. , ~ne II. ~ Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. /'II"eIt ( :1 OQI Date J. District 21 6"' " til k" " ,-'- _ "' -""," , _"f'!i~_': ~~~ o ~,~~_,I ~- . 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