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HomeMy WebLinkAbout01-04338GARY EDWARD LENDERMAN, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O (- 'y~ 3 ~ C.w.-Q `T~~a..- LICENSE DISQUALIFICATION APPEAL ORDER OF COURT AND NOW, this /~`'~ day of July, 2001, upon Petition of Gary Edward Lenderman, and noting the reasons supporting same, this court has made an ex parte showing that the motorist has established a reasonable likelihood that his appeal will be successful. Accordingly, in conjunction with §1550(b)(2) of the Vehicle Code, an ex parte supersedeas is hereby granted. The Department of Transportation is hereby ordered to restore Petitioner's commercial operating privileges until such time as there has been a full and final appeal on the merits. A hearing ~n,~thetm"exits of this License Disqualification Appeal is hereby scheduled for the day of 1~, 2001, at IOv o'clock g~,m. in Courtroom Number Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013, all proceedir5gs to stay meanwhile. Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least sixty (60) days prior to the date of said hearing. Distribution: Prothonotary's Office Office of Chief Counsel, PennDOT 1101 S. Front St., Harrisburg, PA 17104-2516 David E. Hershey, Esq. 2233 N, Front St., Harrisburg, PA 17110 -. BY THE COURT: J. - C~v~y •~~t~~. ~,~ y ~~~ccy~.,~r,._.- ~j?~a~ ~ GARY EDWARD LENDERMAN, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O I- 4 3 8 ~.w._x T.~+ LICENSE DISQUALIFICATION APPEAL LICENSE DISQUALIFICATION APPEAL AND NOW, comes Petitioner, Gary Edward Lenderman, by and through his attorneys, Manske, Wagner, Hershey & Tully, and makes the following averments in support of this License Disqualification Appeal: 1. Gary Edward Lenderman (hereinafter "Petitioner"), is Pennsylvania licensed driver with a commercial drivers license and is an adult individual residing at 1805 Creekview Court, New Cumberland, Cumberland County, Pennsylvania 17013. 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address at Riverfront Office Center, Third Floor, 1101 South Front Street, Harrisburg, Dauphin County, Pennsylvania 17104-2516. 3. Petitioner received a notice of commercial driver disqualification by way of letter dated June 29, 2001 from the Department of Transportation indicating that his Pennsylvania commercial driving privileges are to be suspended on August 3, 2001 at 12:01 a.m. for a period of 60 days for a violation of Section 3309 of the Vehicle Code. See Exhibit "A" attached hereto and incorporated herein by reference. The commercial driver license disqualification, as outlined in Exhibit "A" is illegal, improper, and invalid for some or all of the following reasons: Said notice of disqualification is deficient and violates state and federal constitutional due process in that the notice: 1) Fails to identify any other serious traffic violation which would result in a disqualification since a roadways laned for traffic charge, alone, is insufficient to result in the disqualification; or 2) Contains no facts or allegations which would cause the disqualification. b. If the Commonwealth attempts to use excessive speeding as defined by the United States Secretary of Transportation to justify in part the disqualification, then such violates Article II, §1 of the Pennsylvania Constitution (Unlawful Delegation of Powers); c. If PennDOT is relying upon §1603, Definitions, and'such statutory provisions that leave the discretion to the United States Secretary of Transportation, such statute is unconstitutional under both the Federal and Pennsylvania Constitution as an unlawful delegation of legislative authority in violation of due process and in violation of equal protection; and d. Petitioner has timely appealed his conviction for §3309 in the Mercer County Court of Common Pleas. Atime-stamped copy of said appeal is attached hereto, marked as Exhibit "B", and incorporated herein by reference. A hearing on the underlying summary appeal has not yet been scheduled. e. Petitioner reserves the right to supplement reasons in support of his appeal when provided with PennDOT's documentation at the time scheduled for the hearing on the merits of this appeal. WHEREFORE, Petitioner prays that Your Honorable Court issue an ex pane supersedeas based on the issues presented herein and enter the proposed attached Order prohibiting the Department of Transportation from disqualifying Petitioner's commercial operating privileges until there has been a full and final hearing on the merits, and, further, schedule a hearing to determine the merits of the attached appeal. 2 Respectfully submitted, Date: _~~I MANCKE WAGNER HERSHEY & TULLY By David E. Hershey, E uire I.D. #43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 .VERIFICATION _ '. hereby verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date CERTIFICATE OF SERVICE I, Tammy Kelly, an employee of the law firm of MANCKE WAGNER HERSHEY &TULLY, hereby certify that I am this day serving a copy of the foregoing document to the attorneys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, postage prepaid, at Harcisburg, Pennsylvania, on the ` I v' day of July, 2001, at the address listed below: Office of Chief Counsel PA Department of Transportation Riverfront Office Center, Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 BY~ ~ ~=C~~.k Tammy L. Kelly (~ MANCKE WAGNER HERSHEY &TULLY COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 JUNE 29, 2001 GARY EDWARD LENDERMAN 1805 CREEKVIEW COURT NEW CUMBERLAND PA 17070 - Dear-Motorist: - --- ~~~.~ (mil - ~ ~q 0 .~~--='Q 011739283650431 001 06/22/2001 11105842 05/24/1945 As a result of your conviction on 06/21/2001 of violating Section 3309 of the Vehicle Code, DRIV ON ROAD LANE FOR TRF on 06/13/2001 , your privilege to drive a commercial motor vehicle is being disqualified for a period of 60 DAY(S) .as mandated by Section 16.11G of the Vehicle Code. -_ _ The effective date of disqualification is 08i03i2001, 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/ar temporary driver's license (camera card) in your possessioh 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 privilege. Failure to comply with this notice shall result in this'Bureau referring this "'matter 'to "tEie Pennsylvania State Police for prosecution under SECTION 1571Ca)(4) of the Vehicle Cade. ~ ~ -- 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 DL.16L.C Form, or a letter acknowledging Your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE. OR' ACKNOWLEDGEMENT, WE-WILL SEND YOU A RECEIP.T. 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. EXHIBIT a 011739283650431 Please see the enclosed application for restoration fee information. While your commercial driving Privilege is disqualified, the Vehicle Code permits a driver to obtain a noncommercial Class C or M license, if the driver possesses the motorcycle qualification, to drive noncommercial motor vehicles. If you wish to obtain this license, please complete the enclosed application as instructed and return it to the Department. Please be aware that if you elect to obtain this noncommercial Class C or M license, you are still prohibited from operating a commercial motor vehicle. If you do so, you are sub]ect to additional penalties, including Possible lifetime disqualification of your commercial driving privilege. You have the-right to appeal the Department's action to the Court of Common Pleas (Civil Division) within 30 days of the mail date CJUNE 29, 2001) of this notice. You must still. send in your license before the effective date of disqualification unless you appear in Person before a Judge and receive an order permitting you to continue to drive. PLEASE NOTE that this Civil Appeal is in addition to anY appeal you have to file from the criminal conviction. AFTER THE APPEAL HAS BEEN FILED IN THE COUNTY COURT, A TIME-STAMPED CERTIFIED COPY OF THE APPEAL MUST BE SENT BY CERTIFIED MAIL T0: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL THIRD FLOOR, RZVERFRONT OFFICE CENTER HARRISBURG, PA. 17104 Sincerely, Q..~a~, ~,.~t.~ Rebecca L. Bickley, Director Bureau of Driver Licensing 011739283650431 SEND FEE/LICENSE/DL-16LC/T0: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION C7:00 AM TO 8:00 PM) IN STATE 1-800-932-4600 OUT-OF-STATE 717-391-6190 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-391-6191 S17~. 10.2001 11:35RM MCKRYiFEENEY N0.473 P.S IN THE COURT OF COMMON PLEAS, COSDNTY OF .~G,(.?' `:_~.,L-d'..._ ..............._.._........... , Notice of Appeal from Summary Gfmina/ Conviction Name amt Address dt pelendanl: Issuing AythariEy DOCkeI No....4...(.:a.......~.`_'~..3 ~ ~ ~ ~ . LTtailan No....:_ ..---.. Magisterial Ois[ricl No....~:~.. _'_~...~ O..0........._._..... 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Name arm address t c (a Attorney for Defe not name ._.-_L_ ~ v Y ^ ~ tC a1 c,•= ,p Ott 1..-1 yY.S...... (straeU._._?!~.._1D.o t`t.~.r., t~J.~~~L....,......_.. Fnpne _/. - .. D y (address)...~P.-.!'..',!^...S.l~...._~`.:J......_......_2!P _l.~!?.!...k.~ ............ . A}OTICE TD DEFENDAPlT_ - If your appeal is from a motor vehicle conviction other than parking, have the clerk of courts certify this Dopy and mai3 to the following address: Penn. AepY. of 7ransportat7att PO Box 50037 9-Inrrtsburg, PA 77106 ~; ~v c. _ r: . 1 hereby certify that an appeal has been filed in the above captioned matter- '~~ ..r:+ ~. :l ._, y' _ Ly ':) t1! ///) ,;r' ..~~Am OIBiKC~ . AOPC~i590 ~ 1 0.ERK OF COURT ry -~- EXHIBIT GARY EDWARD LENDERMAN v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4338 LICENSE DISQUALIFICATION APPEAL ORDER OF COURT AND NOW, this ' day of September, 2001, upon consideration of Petitioner's Motion for Continuance, noting the reasons supporting same, and noting further that counsel for the Department of Transportation has no objection, the continuance is hereby granted. This matter is rescheduled for ~, 2002 at 9: 30 o'clock in Courtroom #~. f BY THE COURT: --~ /f The norable Kevin A. Hess Distribution: Prothonotary's Office Office of Chief Counsel, PennDOT 1101 S. Front St., Harrisburg, PA 17104-2516 David E. Hershey, Esq. Q ~f. /7-~/ 2233 N. Front St., Harrisburg, PA 17110 ~itv~n~,sn~~~~ ~~ aty~ `r=~~ i_ 1 u.~a f `t .c~~J ~.. GARY EDWARD LENDERMAN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-4338 COMMONWEALTH OF PENNSYLVANIA LICENSE DISQUALIFICATION APPEAL DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING MOTION FOR CONTINUANCE TO THE HONORABLE KEVIN HESS, JUDGE OF THE ABOVE-SAID COURT: AND NOW, comes Petitioner, Gary Edward Lenderman, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this Motion for Continuance: 1. A timely license disqualification appeal was filed relative to the above-captioned matter on or about July 17, 2001. 2. Your Honorable Court scheduled a hearing on the merits of this case for October 4, 2001 at 9:00 a.m. 3. The basis for the license disqualification appeal in part is that a summary conviction which triggered the license disqualification is pending in Mercer County Court. 4. Petitioner is represented by counsel in Mercer County who advised Petitioner that the underlying summary appeal will not be scheduled before December, 2001 or January, 2002. 5. In light of the above-mentioned scheduling issue, counsel for the Department of Transportation was consulted regarding Petitioner's request for relief herein. 6. Counsel for the Department of Transportation, George Kabusk, Esquire, advised Petitioner's counsel that he has no objection to continuing the case for a date certain in January, 2002. WHEREFORE, Petitioner prays Your Honorable Court enter the proposed Order granting a continuance and rescheduling this matter for January, 2002. Date: / / / jam'/ Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY By Davi .Her ey, Esquire I.D. #43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: 09/10/01 avid E. Hershey, Esquire ,~~ C7 t3 ~-, C_ - ^`7 vc~~ ~~ _ _ U-'=. ~t - ~-' ~~~ c . .. r.-~ cb -~ RY ~ _~4PryF$L4tl-~P4~R. _$~~'' - - W°fiP)f-iF~i^W`+ _e~ 'k lluF'.t'~r-"~L6 #43#~MSR~%~. .. ._ A ~ GARY LENDERMAN IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET # 01-4338 COMMONWEALTH OF PENNSYLVANIA LICENSE DISQUALIFICATION APPEAL DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING PRAECIPE TO THE PROTHONOTARY'S OFFICE: Please withdraw the license disqualification appeal filed in the above-captioned matter as the appeal is now moot. Respectfully submitted MANCKE WAGNER HERSHEY & TULLY .,-~'~~ f David E. Hershey, Esquire ID# 43092 2233 N. Front Street Harrisburg, PA 17110 GARY LENDERMAN' v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET # 01-4338 LICENSE DISQUALIFICATION APPEAL CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the following by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first- class postage, postage prepaid, addressed as follows: George Kabusk, Esquire PA Department of Transportation 1101 South Front Street Harrisburg, PA 17104-2516 ~C-~-rn--t~n~,k `.h Tammy L. Ke y Mancke Wagner Hershey & Tully C7 C~ p tV -~ 1'71 f; ~ _ 1 _ ~'f' i ~__ Cr ~_ ~ ` %- ~ ~ , Q ~• 4 { ~~ . ~ ~~~ "c: ,:gym .._. - . gPA9l~P1~~+ks~t8.a:`a'~,VnF;Yfe: r ~ ;!