HomeMy WebLinkAbout03-2358KIMBER~Y A. G/LDEA,
Appellant
V. :
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
Appellee
IN THE COURT OF COMMON PI~F. AS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.:
LICENSE SUSPENSION
APPEAL
PRO TIINC APPF~AI, FliCIM .qlLqPF~N~qlON f~i~ OPERATt'IR'~q PRIVII,EC.E
AND NOW, comes the Appellant, Kimberly A. Gildea, by and through her attomeys, the Law
Offices of Patrick F. Lauer, Jr., L.L.C. respectfully avers the following:
Appellant resides at 2804 Oakwood Drive, Harrisburg, Dauphin County, Pennsylv~a
17110.
2.
The Appellant received a Notice dated June 12, 2002, that as a result of her
04/09/2002 conviction of violating section 3731 in Cumberland County, her license would be
suspended for a period of 1 year beginning 05/21/2002 at 12:01 a.m. and ending 05/21/2003 at 12:01
a.m., and ignition interlock was required to be installed before her license could be restored, or a
second one year suspension would apply. (See Exhibit "A" attached hereto).
3. In that same letter described above, Appellant was given 30 days from June 12, 2002
to appeal "this action." (See Exhibit "A" attached hereto).
4. The Appellant submits that any delay in filing this appeal was caused by fraud or a
breakdown in the administrative process, specifically, that the phrase "this action" is not clear as to
whether the appeal period includes the right to appeal the imposition of the ignition interlock system
requirement.
5. The Appellant submits that she was sentenced to imprisonment for not less than 48
hours, nor more than 28 months, payment of fines and costs, and the trial court used its discretion in
NOT ordering the installation of an ignition interlock device. (See Exhibit "B" attached hereto).
6. Appellant submits that the Commonwealth Department of Transportation has no
independent authority to order the installation of ignition interlock on first offenders of 75 Pa. C.S.A. §
3731.
7. Appellant additionally argues that ignition interlock has been held unconstitutional in
Cumberland County for violating the equal protection clause of the Pennsylvania Constitution.
Wherefore, your Appellant respectfully requests your Honorable Court to schedule an
evidentiary heating on the matter, or to dismiss the unconstitutional and unauthorized ignition interlock
requirement by the Commonwealth Department of Transportation, and to reinstate the Defendants
driving privileges on 05/21/2003 at 12:01 a.m.
Date:
Respectfully submitted,
2108 Market Street, Aztec Building
Camp I-fill, Pennsylv~a 170114706
ID# 46430 Tel. (717) 763-1800
KIMBERLY A~ Gn.DEA,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.:
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
Appellee :
LICENSE SUSPENSION
APPEAL
2.
3.
client;
4.
ATTORNTEV
The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that:
He is the attorney for the Appellant, Kimberly A. Gildea;
He is authorized to make this verification on her behalf,
The facts set forth in the foregoing Appeal are known to him and not necessarily to his
The facts set forth in the foregoing Appeal are tree and correct to the best of his
knowledge, information and belief,
5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S.
4904, relating to unswom falsification to authorities.
Resp~fu~ly submitted,
Date:
2108 Market Street, Aztec Building
Camp I-rill, Pennsylvania 17011--4706
ID# 46430 Td. (717) 763-1800
ExhJibit A
05/09/2003 11:49 7175408795 DEVRY PAC,~ 02
COMMONWEALTH Or PENNSYLVANIA
DEPARTMENT OF TRANSPORTATXON
Bureau of Driver L~cens~ng
Mai! Date= JUNE 12, 2002
K~MBERLY A GILD£A
2&D4 OAKWOOD DR
HARRISBURG PA 17110
MID ~ De~S66~Ol?98D33 001
PROCESSING DATE 06/05/2002
DRIVER LIC£NSE ~ lq3&4890
DATE OF B~RTH 07/22/1961
LICENSE IN BUREAU
Dear NS. glLDEAz
This is an o~1clel Net$ce of the Sus~enelon of your Dr~ving
Privilege as authorized by Section 1552B of the Pennsylvania
Vehicle Code. As a result of your Oq/Og/2002 conv~ction of
violating Section ST~! of the Vehicle Gode DRIVINg UNDER
INFLUENCE on
Your drlving ;rivL~ege ~s SUSPENDED for a Reelod
YEAR(8) e~c~v~ 05/21/200Z at Z~:01 &.m.
WARNINg= If you are convicted of driving while your
license ~s susaen~ed/revokeU the =ena2t~es w~XZ be a
MINIMUM of 90 day3 imprisonment AND a 1,000 fine AND
your driving prjv~egs w~ be suspended/revoked for
..... a N~NINU.~ year ;er~od
Before PennDOT can restore your dr~vJng orivtlege~ you must
follow the instructions in this letter for COMPLYINg WITH
TH~S SUSPENSION, PAYING THE RESTORATION FEE an~ PRO¥~D~N~
PROOF OF INSURANCE. YOU ehould ~ollow ALL lnstruct~one very
carefully. Even Sf you have eerved all the t%me on the
sueeene%on/~evooatlcn, we cannot ~eetore Your d~tvtng ~rlv-
~lege untl~ al~ the eequ~reBent~ ere satlof~ed.
05/09/26~3 11:49 ?1754B8795 DEVRY PAGE
02156&10179803~
~RZSO# R~LEAS~ REQUIRE#ENT tACT151)
The Court of CU#BERLAND CTY, Court Number 242, Court Term
2002 has sentenced you to serve e ptlson term For this vi-
olation0 Pursuant to Section 1541(e.1) of the Vehicle Cede,
you will not Pacltve credit for this suspension/revocation
or any additional suspansion/revocition untiZ you complete
your prison term, The CouPe must certify your comp2ettcn
to PennDOT, You ms¥ wish to contact your probatio~ officer
and/~r ~ha Court sf~lr your releise bo make sure
PeonDOT is Properly ~otified. ' ~ ' ....................
pAYiNG THE ~ESTORATION FEE
You must pay a restoration fee to PennOOT to be teetered
from a Suspension/revOcation of your dr~v~ng o~iv~$ege. To
pay your restoration fee, complete the following stops:
1. Return the enclosed Application for Restoration.. The
meeunt due is listed on the
2. Hrite your dr~ver~S 2~cenes number (~lsted on the f~rst
page) on the check Dr meney order to ensure proper
credit.
5. Follow the osyment and sailing instructions on tho back
of the appZication.
IGNITIDN IHTERLQCK
Before your drlvtng privilege cmn be rostorld you are re-
quired bY law to have ail vehic~(~) owned by you to be
equipped with an %gnttion %fl%irlock System. Thi~ t~ s result
of YOUr convict%eh fer Drivine Under tho Znfluence, %f
fmC1 to ¢omp%¥ Wt~h thls re~ulre~ent~ your dr~vtng privilege
ceive more Information regarding this eequiremont approxi-
mately $0 days before your eligibility date.
PRO¥~DING P~OOF DF INSURA.fl~E
~ithin the last 30 days of your suspens~on/rsvocstion,
w]11 send you m letter askihg that you provide Drool of in-
sure,ce at that time. This letter wtll list acceoteble
documents mod what ¥1]1 be needed if You do not awn a
registered in Penn~ylYanim.
~po~tlnt: P~eese lake sure that PennDOT is notified ~f you
move from your current address. You may notify PennDOT of
your sdd~ess change by cabling any of the phone numbers
~t,ted at the end of th~s %ettlr,
Rebeccs L. RJcklay, Director
Bureau of ~river Licensing
XNFORNATXQN 7;00 m.~, ~p 9;00 n.m.
IN STATE 1-80g-9~2-¢600 TOD IN STATE
OUT-DF-STATE ?17-3g1-&igO TOD OUT-OF-STAT[
~EB $~TE ADDRESS v~.dot.state.pa,us
i-600-228-0&T&
717-$91-619l
Exhibit B
COMMONWEALTH
Vo
KIMBERLY A. GILDEA
OTN: Ll10596-3
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-0242 CRIMINAL TERM
CHARGE: (1) DRIVING UNDER THE
INFLUENCE
AFFIANT: PTL. ROBERT POWERS
IN RE: SENTENCING
ORDER OF COURT
AND NOW, this 21st day of May, 2002, the
Defendant, Kimberly A. Gildea, having appeared for sentence with
private counsel, Patrick Lauer, Esquire, and the Court being in
receipt of a sentencing report, sentence of the Court is that
the Defendant pay the costs of prosecution, plus a fine of
$310.00, including a $10.00 EMS fee, plus a $50.00 CAT fund
surcharge, and that she undergo imprisonment in the Cumberland
County Prison for not less than 48 hours nor more than 23
months.
The Defendant shall surrender herself to the
Cumberland County Prison on Friday, May 24, 2002, not later than
4:00 p.m. for the commencement of this sentence. If she is not
a discipline problem at the prison, she shall be paroled at the
expiration of her minimum sentence without further Order of
Court. Said parole to be with supervision.
The Defendant is also directed to pay a $45.00 per
day incarceration fee.
Michelle Sibert, Esquire
Assistant District Attorney
By the C
D~, J.
P~ick Lauer, Esquire
~/6r the Defendant
Probation Sheriff Victim Witness CCP :mae
KIMBERLY A. Gll Y~EA,
Appellant
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.:
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING,
Appellee :
LICENSE SUSPENSION
APPEAL
CF~RTIi~CATI~ 01~ flERVICE
I hereby certify that I am this day s~rving a copy of the foregoing Appeal upon the person and
in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure, by depositing a copy of the same in the United States Camp Hill~ Pennsylvania,
through first class certified mail, prepaid and addressed as follows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfrom Office Center
Harrisburg, PA 17104
Respectfully submitted,
2108 Market Street, Aztec Building
Camp I-rill, Pennsylvania 17011-4706
II~ 46430 Tel. (717) 763-1800
KIMBERLY A. GILDEA,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. :
COMMONWEALTH OF PENNSYLVANIA:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
Appellee :
NO.: 03-2358
LICENSE SUSPENSION
APPEAL
MOTION FOR CONTINUANCE OF HEARING FOR
APPF, AI, FROM ~IIRPENSION OF OPERATOR~ PRIX/II
AND NOW, comes the Appellant, Kimberly A. Gildea, by and through her attomeys, the
Law Offices of Patrick F. Lauer, Jr., L.L.C. respectfully avers the following:
1. Appellant resides at 2804 Oakwood Drive, Harrisburg, Dauphin County,
Pennsylvania 17110.
2. A Nunc Pro Tunc Appeal fi.om Suspension of Operating Privilege was filed with the
Court on May 19, 2003.
3. A license suspension hearing is now scheduled before the Honorable Edward E.
Guido, Judge on June 30, 2003 at 2:30 pm in Cumberland County Courthouse.
4. Defense Attorney has discussed the issues in this case relative to the appeal with
Attorney for the Commonwealth, Department of Transportation, George Kabusk, Esquire.
5. Attorney Kabusk and Appellant's Counsel have concluded that until legal matters
such as; ignition interlock being required and installed before license could be restored, or a second
one year suspension would apply, and/or that the phrase "this action" is not clear as to whether the
appeal period includes the right to appeal the imposition of the ignition interlock system
requirement and/or dismiss the unconstitutional and unauthorized ignition interlock requirement by
the Commonwealth Department of Transportation.
6. Attorney for the Commonwealth, Department of Transportation, George Kabusk
concurs with Appellant's Counsel on this request for a continuance.
WHEREFORE, your Appellant respectfully requests your Honorable Court continue the
appeal hearing pending resolution of the above relevant issues until resolved by the Supreme Com.
Date:
Respectfully submitted,
l~atrick F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
KIMBERLY A. GILDEA,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO.: 03-2358
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, APPEAL
Appellee
ATTORNF, V V~RII~CATION
The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that:
1. He is the attorney for the Appellant, Kimberly A. Gildea;
2. He is authorized to make this verification on her behalf;
3. The facts set forth in the foregoing Motion for Continuance are k~own to him and not
necessarily to his client;
4. The facts set forth in the foregoing Motion for Continuance are tree and correct to the
best of his knowledge, information and belief;
5. He is aware that false statements herein are made subject to the penalties of 18 Pa.
C.S. 4904, relating to unswom falsification to authorities.
Date: ~_~(_~"~
Respectfully submitted,
Patrick F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
KIMBERLY A. GILDEA,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO.: 03-2358
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, : APPEAL
Appellee
CERTIi~ICATF, Oi~ ,g~RVICIZ
I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of the same in the United States Camp Hill,
Pennsylvania, through first class certified mail, prepaid and addressed as follows:
George Kabusk, Esquire
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104
Date:
Respectfully submitted,
atnck F Lauer, Jr, Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
JUN 38
KIMBERLY A. GILDEA, : IN THE COURT OF COMMON PLEAS OF
Appellant : CUMBERLAND COUNTY, PENNSYLVANIA
V. ~
: NO.: 03-2358
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, APPEAL
Appellee
ORI)[R 01~ COURT
ANDNOW, this /~,r-' dayof ~g~"~ 2003, upon consideration of
this Motion for Continuance of heating scheduled for June 30, 2003 at 2:30 am on APPEAL
FROM SUSPENSION OF OPERATOR'S PRIVILEGE,
· IT IS HEREBY ORDERED that this Heating shall be continued
Distribution:
~-PA Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfi:ont Office Center,
Han:isburg, PA 17104
v/-Patrick F. Lauer, Jr., Esq., 2108 Market St., Camp Hill, Pa 17011
KIMBERLY A. GILDEA.,
PETITIONER
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. 03-2358
LICENSE SUSPENSION APPEAL
ORDER
ANDNOW, this O~f dayof ~)t~ _,2003, theappeal
filed in the above referenced matter is REMANDED to the Department and the Department shall
CORRECT THE RECORD AND RESCIND THE REQUIREMENT TItAT THE
PETITIONER COMPLY WITH THE REQUIREMENTS OF THE IGNITION
INTERLOCK LAW, 42 Pa. C.S. 7001-7003, that the Depa~'tment imposed without a court
order as a condition to the restoration of the petitioner's driving privilege as a result of the
petitioner's violation of Section 3731 of the Vehicle Code, violation date January 6, 2002.
DISTRIBUTION:
~eorge H. Kabusk, Esquire, PennDOT, Riverfront Office Center, 1101 South Front Street,
Harrisburg, PA 17104-2516
~Patrick F. Lauer, Jr., Esquire, 2108 Market Street, Camp Hill, Pennsylvania, 17011
OFFICE OF CHIEF COUNSEL - Vehicle & Traffic Law Division
River~ront Office Center
I101 South Front Street
Harrisburg PA 17104-2516
The Honorable Edward Guido
The Court of Common Pleas of Cumberland County
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013
October 16, 2003
Re:
Kimberly A. Gildea v. Cmwlth. of Pennsylvania., Dept. of Trans., Court of
Common Pleas of Cumberland County, 03-2358, License Suspension Appeal
Dear Judge Guido:
The above-referenced matter is an appeal of the imposition of the ignition interlock which
the Department imposed without a court order. The petitioner challenged the authority of the
Department of Transportation to require the installation of an ignition interlock system in the
absence ora court order directing such installation. See 42 Pa.C.S. §7002.
By Order dated June 18, 2003, the matter was continued generally.
Based on the provisions of the recently-enacted law addressing driving under the
influence and ignition interlock requirements, the Department believes it is appropriate to revise
its position with respect to the imposition of the ignition interlock system.
Please find enclosed a proposed Order for the above-mentioned matter. The proposed
Order remands the appeal to the Department to update its records and remove the ignition
interlock requirement which was imposed by the Department without a court order.
I spoke to Mr. Lauer, attorney for the petitioner, and he concurs with such a disposition
and the proposed order.
Very truly yours,
George H. Kabusk
Paul Patrick F. Lauer, Jr., Esquire, 2108 Market Street, Camp Hill, Pennsylvania, 17011
GOVERN~iC~ GENERAL COUNSEL
TELEPHONE: 717.787.2830
FAX: 717.705.1122
w',vw.dot.state.pa, ns