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HomeMy WebLinkAbout01-062434( ry 9t r p. ((""TTYYII""UU..PaY CERTIFICATE 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: COMMONEALTH 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: CHRISTIAN N. MCADOO V. COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING NO 01-6243 CIVIL TERM 1200 CD 2002 The documents comprising the record have been numbered from No. 1 to 62 , 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 7/16/02. C is R. Lo , rot on ary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please sien and date copy, thereby acknowledeing receipt of this record. hE :z d $1 IN 7110t Date Signature & Title 1l14vh1ASNN3d A0 in03 HIIvi3MttOk 0" CD Among the Records and Proceedings enrolled in the court of Common Pleas in and for the count of CUMBERLAND in the Commonwealth of Pennsylvania y 200 CD 002 to No. 01-6243 CIVIL Term, 19 is contained the following: COPY OF COMPLETE CHRISTIAN N. MCADOO V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING DOCKET ENTRY SEE ATTACHED CERTIFIED DOCKET ENTRIES Commonwealth of Pennsylvania County of Cumberland ss: I Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case thgrein stated wherein Christian 1I. McAdoo Plaintiff, and Comm. of PA., Dept o Trans. Bur of Dr Licensing Defendant , as the same remains of record before the said Court at No. 01-6243 of Civil Term, A.D. 19- In TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 24th day o June A. D., X02 Prothonotary 1, George E. Hoffer President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common PI?, pftCWBty, was, at the time of so doing, and now is Prothonotary in and for said County of in the Commonwealth 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 as elsewhere, and that the said record, certificate and attestation are in due form of law and made by y41JrgQerr*fl*er. resident Judge Commonwealth of Pennsylvania County of Cumberland ss: I Curtis R. Long , Prot notar of he o of Co m n Pleas in and for the said County, do certify that the Honorable ?eore E1. io er, ?. g. by whom the foregoing attestation was made, and who has thereunto subscribed his name, 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, I have hereunto set my hand and affixed the seal of said Court this 24th day of Ju A. D. Nq2 . Prothonotary 0 S S 0 c d a '17 a i n 0 N o ? o n i e m x m b Tl t? v A O v z 0 y G H 1 z 0 3 M+??ra? ???^?o-:.?tks ?CC?3wePre ?dl?ii{eie .. „? PYS510 nberland County Protho .ta'g's Office Page s? CivilCase Inquir Y 2001-06243 MCADOO CHRISTIAN N (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Case Type.....: APPEAL - LICENSE SUSP Judgment..... 00 - Judge Assigned: HESS KEVIN A Disposed Desc.: ------------ Case Comments ------------- Filed........ : Time.........: Execution Date Jury Trial.... Disposed Date. Higher Crt 1.: Higher Crt 2.: 10/31/2001 3:3` 0/00/000( 0/00/000C 1200 CD 20C General Index Attorney Info MCAD00 CHRISTIAN N 1538 HOLLY PIKE CARLISLE PA 17013 APPELLANT HERSHEY DAVID E PENNSYLVANIA COMMONWWEALTH OF APPELLEE DEPT OF TRANSPORTATION 1101 SOUTH FRONT STREET HARRISBURG PA 17011 ******************************************************************************* * Date Entries ******************************************************************************* 'PAGE NO. FIRST ENTRY - - - - - - - - - - - - - 11-10 10/31/2001 APPEAL FROM SUSPENSION OF DRIVERS LICENSE `11-15 5/03/2002 5/16/2002 16-19 `20-21 5/20/2002 22 7/11/2002 `23-62/ --------------------------- -------------------------------- OPINION AND ORDER - DATED 5/3/02 - IN RE LICENSE SUSPENSION APPEAL - THE APPEAL OF THE PLAINTIFF FROM THE ORDER SUSPENDING HIS DRIVER'S LICENSE IS SUSTAINED - BY KEVIN A HESS J - COPIES MAILED 5/6/02 ------------------------------------------------------------------- NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA - ORDER DATED 5/3/02 - BY TERRANCE M EDWARDS ATTY FOR APPELANT ------------------------------------------------------------------- COMMONggWIIIPE?AATLTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1200 CD 2002 TRCR BRIEFS------------------------------------------------- FILED BY KEVIN A HESS J - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************* * Escrow Information * Fees & Debits Bed*Bal***Py*mts/Adj 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 TRUE GOPY FROM RECORD in Tummy whereof, I two unto set my herd and the seal of said Court at Carlisle, P& rhls._ A --Zt day of 002 Prothonotary CHRISTIAN N. MCADOO V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01- ( ') l.lu?C LICENSE SUSPENSION APPEAL r7 ORD R OF COURT AND NOW, this 1+? day of d k2001 upon Petition of Christian N. McAdoo, a hearing is set on the License Suspension Appeal for the ? day of el 001, at Aaa- o'clock _j.m. in Courtroom Number Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania, all proceedings 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. Pursuant to Section 1550(b) of the Pennsylvania Motor Vehicle Code, Petitioner's appeal shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended pending a final determination in this matter. BY THE COURT: /S J. Distribution: Prothonotary's Office Office of Chief Counsel, PennDOT 1101 S. Front St., Harrisburg, PA 17104-2516 David E. Hershey, Esquire 2233 N. Front St., Harrisburg, PA 17110 Commonwealth of Pennsylvania Department of Transportation NOV 0 9 2001 OFFICE OF CHIEF COUNSEL Vehicle & Traffic Law Division NOV 0 2 2001 ? CHRISTIAN N. MCADOO V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. QI - 4oaZq2 6,,v,L`7Et_.,rt LICENSE SUSPENSION APPEAL LICENSE SUSPENSION APPEAL TO THE JUDGES OF THE ABOVE-SAID COURT: AND NOW, comes Petitioner, Christian N. McAdoo, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this License Suspension Appeal: 1. Petitioner, Christian N. McAdoo, is a Pennsylvania licensed driver with a residence address of 1538 Holly Pike, Carlisle, 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 license suspension by way of letter dated October 9, 2001 from the Department of Transportation indicating that his Pennsylvania driving privileges are to be suspended on November 13, 2001, at 12:01 a.m. for a period of one (1) year for a violation which is equivalent to Section 3731 of the Vehicle Code. See Exhibit "A" attached hereto and incorporated herein by reference. 4. Petitioner believes that said license suspension is illegal and improper for reasons which include but are not limited to the following: 0z r9N a. The action violates principles of double jeopardy and collateral estoppel and are in violation of the Pennsylvania Constitution, the West Virginia Constitution, the Federal Constitution, and all related and applicable state Rules of Criminal Procedure; b. Petitioner is being penalized a second time for actions for which he had previously been penalized. See Notice to the Public as contained in Article 4 of the Interstate Violator Compact as set forth at 75 Pa. C.S. §1581 at seq. which indicates only charges of driving motor vehicle while under the influence of intoxicating liquor which renders the driver incapable of safely driving a motor vehicle and the charges against the Petitioner did not constitute operating a motor vehicle under the influence of intoxicating liquor which rendered him incapable of safely driving a motor vehicle; C. Notice to the Public originally contained in Pennsylvania Bulletin, Vol. 24, No. 45, November 5, 1994, p. 5609 indicated that only charges of drunk driving are reciprocal and the charges against Petitioner did not constitute drunk driving; d. Notification to the public concerning reciprocity as well as the driver license compact at 75 Pa. C.S. §1581 at Mg. and the Administrative Procedures Manual clearly indicate that driving a motor vehicle under the influence is limited to those charges which specifically are "driving a motor vehicle while under the influence of alcoholic beverages or a narcotic to a degree which renders the driver incapable of safely driving a motor vehicle" of which conduct Petitioner was not guilty; a. The Pennsylvania Bulletin, as well as the drivers license compact at 75 Pa. C.S. §1581 et seq. and the Administrative Procedures Manual dearly indicates that the licensing authority in the home state shall give "such effect to the conduct as is provided by laws of the home state". And, under the laws of the home state, Petitioner would be eligible for a one month suspension of his driving privileges; Action of the Department of Transportation violates the full faith and credit clause of the Federal Constitution; g. The one year suspension is in violation of the Drivers License Compact and Administrative Procedures Manual in that Petitioner will not be restored in Pennsylvania at the expiration of any suspension which may be imposed by West Virginia; h. Pennsylvania lacks jurisdiction over acts occurring in West Virginia; The alleged conviction is not for a similar charge; 3 The proposed action is unreasonably delayed and prejudicial to Petitioner; k. The alleged conviction is not for a similar charge or equivalent charge or violation of §3731; Petitioner was never convicted of §3731 or an equivalent violation; and m. Section 1586 of the Compact is inherently contradictory and cannot be read in pari mathria with Article IV of the Driver License Compact (Article IV, 75 Pa.C.S. §1581) and therefore is null and void under principles of statutory construction and the Statutory Construction Act and violates Petitioner's due process rights under the Pennsylvania and Federal Constitutions as it fails to give adequate notice regarding what conduct will result in a loss of driving privileges. n. Petitioner did not enter a guilty plea to any charge which would trigger the provisions of the Driver License Compact. WHEREFORE, Petitioner respectfully requests that this Court schedule a hearing to determine the validity of the suspension proposed by the Department in Exhibit "A". Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY Date:la-261`e-1 gy ?. David E. Hershey, Esquire I.D. #43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 4 -1 1? . COMMONWEALTH OF PENNSYLVANIA ) S. S. COUNTY OF CUMBERLAND ) VERIFICATION I 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 unswom falsification to authorities. Date: / l III AtAJvow? Christian N McAdoo CERTIFICATE OF SERVICE I, David E. Hershey, Esquire, 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, certified mail, postage prepaid, at Harrisburg, Pennsylvania, on the_ day of October, 2001, at the address listed below: Geprge Kabusk, Esquire Office of Chief Counsel PA Department of Transportation 1101 South Front Street Harrisburg, PA 17104-2518 By: David E. Hershey, Esquire MANCKE WAGNER HERSHEY & TULLY tP COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 09, 2001 _ CHRISTIAN N MCAD00 WID # 012756102164706 001 739 SHERWOOD DRIVE PROCESSING DATE 10/02/2001 DRIVER LICENSE * 24773918 CARLISLE PA 17013 DATE OF BIRTH 11/13/1978 Dear MR. MCADOO: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1532B the Pennsylvania Vehicle Code. As a result of your 03/02/2001 conviction in WEST VIRGINIA: Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 11/13/2001 at 12:01 a.m. Your driving record reflects a violation an 03/02/2001 that is similar to violating Section 3731 of the Pennsylvania Vehicle Code, DRIVING UNDER INFLUENCE. Your conviction in WEST VIRGINIA is listed in Article IV of Section 1581 of the Pennsylvania Vehicle Code which mandates that PennDOT process specific out-of-state convictions as though they had occurred in Pennsylvania. Before PennDOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefully. Even if you have served all the time on the suspension/revocation, we cannot restore Your driving priv- ilege until all the requirements are satisfied. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 11/13/2001. You may surrender these items before, 11/13/2001, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of 9.00. You must present two (2) forms of proper iden- 7 012756102164706 tification (e.g., birth certificate, valid U.S. Passport, marriage certificate, etc.) in order to obtain your photo identification card. You will not receive credit toward serving any suspension until we receive Your license(s). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's Permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn nota- rized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 .Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. T 012756102164706 PROVIDING PROOF OF INSURANCE Within the last 30 days of your suspension/revocation, we will send you a letter asking that you provide proof of in- surance at that time. This letter will list acceptable documents and what will be needed if you do not own a vehicle registered in Pennsylvania. Important: Please make sure that PennDOT is notified if you move from your current address. You may notify PennDOT of your address change by calling any of the phone numbers listed at the end of this letter. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, OCTOBER 09, 2001, of this letter. it you file an ap- peal in the County Court, the Court will give you a time- stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied copy of the appeal by certified mail to: Pennsylvania Department of Transportation .Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 11/13/2001. Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing INFORMATION 7:00 a.m. to 9:00 p.m. IN STATE 1-800-932-4600 TOD IN STATE 1-800-228-0676 OUT-OF-STATE 717-391-6190 TOO OUT-OF-STATE 717-391-6191 WEB SITE ADDRESS www.dot.state.pa.us N Pz r? ^ V c Q < ") 7 nrl 0 C-> 1 "n 3E co Z fV v t? CHRISTIAN N. MCADOO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. 01-6243 CIVIL CIVIL ACTION - LAW COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING: Defendant : LICENSE SUSPENSION APPEAL IN RE: LICENSE SUSPENSION APPEAL ORDER ftta AND NOW, this 3 1:0 day of 2002, the appeal of the plaintiff from the order suspending his driver's license is SUSTAINED. David E. Hershey, Esquire evi Hess, J. the Plaintiff - , A /e i .g,-R George Kabusk, Esquire For PennDOT BY THE COURT, 4 K .. :rhn tvccx?bssrmim.3rn•k?ass??nw"'s a -??"#s?i?xn.e??s3,?.r ?sr ' r??? - $ - iAA" - M1 n. ? Q C JV J;_,• ,?j5 CHRISTIAN N. MCADOO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. 01-6243 CIVIL CIVIL ACTION - LAW COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING: Defendant : LICENSE SUSPENSION APPEAL OPINION AND ORDER On March 2, 2001, the petitioner, Christian N. McAdoo, a resident of Pennsylvania, was a college student. He was stopped in Star City, West Virginia, and charged with driving under the influence. The same day, he entered a no contest plea. He was not advised by anyone that his plea would result in any action by the Pennsylvania Department of Transportation pertaining to his Pennsylvania driving privileges. Following his graduation from college, Mr. McAdoo returned to Carlisle, Pennsylvania. He accepted a job on June 10, 2001, with the offices of M & T Bank at their regional headquarters in Carlisle. As part of his employment, it was anticipated that he would have the ability to call on various clients by driving his own vehicle. By notice dated October 9, 2001, the petitioner's driver's license was suspended, effective November 13, 2001, as a result of the Star City conviction. He has filed the instant appeal from his license suspension. Were Mr. McAdoo's conviction to have occurred in Pennsylvania, he would have had available to him the various permutations of ARD which include, in this county, a one-month suspension and the subsequent installation of a guardian interlock device. He would, thereby, be able to retain his employment. We note, however, the holdings of the Commonwealth Court in Sutherland v. Com., 45 Pa.Cmwlth. 490, 407 A.2d 1364 (1979) and its several progeny to the GI-6243 CIVIL effect that no equal protection rights are violated just because ARD would have been available to alicensee in Pennsylvania. In this case, Mr. McAdoo entered his nolo contendre plea on March 2, 2001. He received a notice of suspension a little more than seven months later. In the meantime, he had obtained employment which requires the operation of an automobile. He contends that he is entitled to relief because of the delay of his suspension. In order to sustain an appeal of a license suspension based on delay, the licensee must prove that: (1) an unreasonable delay chargeable to PennDOT led the licensee to believe that his operating privileges would not be impaired; and (2) prejudice would result by having the operating privileges suspended after such delay. Terraciano v. Com., Dept. of Transp., 562 Pa. 60, 66, 753 A.2d 233, 236 (Pa. 2000). In Grover v. Com.. Dept. of Transp.. Bureau of Driver Licensing, 734 A.2d 941 (Pa.Cmwlth. 1999), the court discussed the matter of attributing delay to PennDOT. The court noted: When a licensee challenges such a suspension by offering the defense of delay, we conclude that DOT must then prove that the delay was caused not by administrative inaction but by some other factor not chargeable to DOT. Clearly, it would be illogical to force a licensee to prove at what time DOT received the notice of conviction. Because DOT has more ready access to the resources necessary to prove this crucial point, and has attempted to present such evidence in this and other suspension hearings, we do not believe that we are articulating a new rule of law. Id at 943. 13 W-6243 CIVIL k In this case, the Department has offered the so-called WID date as at least circumstantial evidence of when it received paperwork from West Virginia. This is the date on which paperwork was processed by the Pennsylvania authorities. It is, however, by no means conclusive as to when record of the suspension was received. As part of routine processing procedures, the material from West Virginia was microfilmed. Clearly, the best evidence of the receipt of the material from West Virginia would be the postmark on the envelope. While postmarks are routinely microfilmed, no postmark appears in this case. This is because the processing clerk was, in the words of the Department's witness, "not careful." We have considered at length the testimony proffered by the Department mindful of the disastrous consequences for Mr. McAdoo if he loses his driver's license. We conclude that, in this particular case, the receipt date by the Department has not been established by a preponderance of the evidence. Thus, we will treat this case as one involving a delay of at least seven months. Having reached this conclusion, we are satisfied that the case of Bennett v. Com.. Dent. of Transp., Bureaur of Driver Licensing, 163 Pa.Cmwlth. 664, 642 A.2d 1139 (Pa.Cmwlth. 1994) is analogous. In that case, the appellant was convicted of driving under suspension. His employment as a tractor-trailer operator was terminated as a result of the conviction. Later, Bennett secured new employment as a truck driver only to learn that his driver's license was again subject to suspension as a result of the driving under suspension conviction. He appealed, alleging that the delay of over eight months between his conviction and his suspension was prejudicial. The Commonwealth Court agreed that the loss of employment requiring an operator's license is prejudicial. Id. at 1141. The court went on to opine: While the eight-month delay in the present case is less than those experienced by licensees in either W-6243 CIVIL l Rea or Walsh, we conclude that Bennett's detrimental reliance on the delay is equally prejudicial. Although a change from unemployment compensation recipient to truck driver is not a change in employment status in the same manner as addressed in Walsh or Rea, the resulting detriment is the same. Moreover, we view the change in status from unemployment compensation recipient to gainfully employed truck driver as the most substantial change in employment status one may contemplate. In this case, Mr. McAdoo not only changed his status from that of a student to that of a full-time bank employee, but has, in fact, embarked on his first career. This essentially ministerial act would end that career only months after it had begun. ORDER AND NOW, this day of A "A, 2002, the appeal of the plaintiff from the order suspending his driver's license is SUSTAINED. David E. Hershey, Esquire For the Plaintiff George Kabusk, Esquire For PennDOT Am 4 1 1' BY THE COURT, i COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 CHRISTIAN MCADOO, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant NO. 01-6243Civil Term 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 docketed in this matter on May 3, 2002. 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. TERRANCCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 1(0 -"'? ems,, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 CHRISTIAN MCADOO, } IN THE COURT OF COMMON PLEAS Appellee OF CUMBERLAND COUNTY, PA } VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO.01-6243 Civil Term 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. R.A.P. 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. TERRANCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 t/ PYS510 Cumbo% land County Prothonotary', Office Page 1 Civil Case Inquiry 2001-p06243 MCADOO CHRISTIAN N (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: 10/31/2001 Case Type.....: APPEAL - LICENSE SUSP Time.........: 3:32 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 - ---------- Case Comments ------------- Higher Crt 1.: Higher Crt 2.: General Index Attorney Info MCADOO CHRISTIAN N APPELLANT HERSHEY DAVID E 1538 HOLLY PIKE CARLISLE PA 17013 PENNSYLVANIA COMMONWWEALTH OF APPELLEE DEPT OF TRANSPORTATION 1101 SOUTH FRONT STREET HARRISBURG PA 17011 ******************************************************************************** * Date Entries ******************************************************************************** 10/31/2001 APPEAL FROM SUSPENS ------------------- 5/03/2002 OPINION AND ORDER - - THE APPEAL OF THE DRIVER'S LICENSE IS 5/6/02 - - - FIRST ENTRY - - - - - - - - - - - - - ION OF DRIVERS LICENSE ----------------------------------------------- DATED 5/3/02 - IN RE LICENSE SUSPENSION APPEAL PLAINTIFF FROM THE ORDER SUSPENDING HIS SUSTAINED - BY KEVIN A HESS J - COPIES MAILED - - - - LAST ENTRY - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq Bal Pymts/Ad 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 --------------- 45.50 - ------- --- 45.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 CHRISTIAN MCADOO, } IN THE COURT OF COMMON PLEAS Appellee OF CUMBERLAND COUNTY, PA } VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO. 01-6243 Civil Term 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 of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Kevin A. Hess Court Reporter David E. Hershey, Esquire Cumberland County Courthouse Cumberland County Courthouse Att. for Appellee McAdoo 1 Courthouse Square 1 Courthouse Square 2233 North Front Street Carlisle, PA 17013 Carlisle, PA 17013 Harrisburg, PA 17110 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: May 16, 2002 l? -acv = ':";'n mrri - r ?1 y. LTA v1 r C-) VJ 3/ .. i? (L$i'?j`a, Wi?!a' d'Afe?S^.E£'33'?? # f =p-.eme Tke'w `k`K'n`^1;? $ N ..:?x?'i;'r#ss}S6F?",b'A?I :' llfflft? ?fd e ( -L?,U4 Commonwealth Court of Pennsylvania May 17, 2002 RE: McAdoo v. Bur Driver Licensing No.: 1200 CD 2002 Agency Docket Number: 01-6243 CIV Term Filed Date: May 16, 2002 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.R.A.P. 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. R.A.P. 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. Terrance M. Edwards, Esq David E. Hershey, Esq. Party Name Bureau of Driver Licensing Bureau of Driver Licensing Christian McAdoo Party Type Appellant Appellant Appellee *7 A OW s Z - 7 e.ti ? 1 iT1 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION C OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 7874830 J CHRISTIAN MCADOO, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA - C ? sv =, o tz ' G a T 0 v w f NO. 01-6243Civil Term , 3 t t Notice of Anneal 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 docketed in this matter on May 3, 2002. 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. TERRANCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 This ...&......... day of...?!r? a TRUE COPY FROtyi Rg-CC-' ^ ` In Testimony whereof, i !a re: unio set my hard and tfie seal of said Court at arise, ?a. .............:..?...df Prothonotary f'°Jjv?$S AWN rll r,? .'x; 'i5 T' ra CD `_;c ?^ c ;. il T -_ °" lCJ .nx °'!°.s zvxy.buw S^-m'.a°?R`?"1"hk1°.F4' ?43FTA?'M'S-'9F"-s'F; Nis 5`*. WIRM R CHRISTIAN N. MCADOO V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING NO. 01-6243 CIVIL TERM LICENSE SUSPENSION APPEAL IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, February 4, 2002, in Courtroom Number 4. APPEARANCES: GEORGE KABUSK, Esquire Assistant Counsel Department of Transportation Office of Chief Counsel For the Commonwealth DAVID E. HERSHEY, Esquire For the Petitioner a3 ??. -'???R '.?3 ? ra?isJins sr'mv+x?t9M?x?3wEi . , •-•?? --'? ? A F'UD-l"IFFIGE _ ,, 02 JUL I I PH I` cu?? I I?u.,u c - UNT , PENNSYLVANA rl? 1 ; INDEX TO WITNESSES FOR THE COMMONWEALTH DIRECT CROSS REDIRECT Brenda Collins 7 14 FOR THE PETITIONER Christian N. McAdoo 18 23 24 Charles Robinson 25 27 28 REBUTTAL Brenda Collins 30 INDEX TO EXHIBITS FOR THE COMMONWEALTH ADMITTED Ex. No. 1 - Certification under seal - official notice of suspension, uniform traffic ticket and complaint & driving record 18 Ex. No. 2 - Certification under seal - cover sheet with WID number, copy of envelope & uniform traffic ticket 18 Ex. No. 3 - West Virginia law 17B-1A-1 Driver License Compact 18 Ex. No. 4 - West Virginia law 17B-1A-2 Driver License Compact 18 Ex. No. 5 - statute from Star City in West Virginia 18 Ex. No. 6 - West Virginia statute 17C-5 -2 18 Ex. No. 7 - envelope 18 2 Q? 1 MR. KABUSK: Good morning, Your Honor. 2 MR. HERSHEY: Good morning, Your Honor. 3 THE COURT: Good morning. 4 MR. KABUSK: This is the case of Christian 5 N. McAdoo versus Commonwealth of Pennsylvania, Department 6 of Transportation, Bureau of Driver Licensing, Case No. 7 01-6243. 8 What has been marked as Commonwealth's 9 Exhibit No. 1 consists of three sub-exhibits. Sub-exhibit 10 No. 1 is Official. Notice of Suspension, dated and mailed 11 10/9/01, effective 11/13/01. That notice informs Mr. 12 McAdoo that this is an official notice ofsuspension of his 13 driving privileges authorized by Section 1532(b) of the 14- Pennsylvania Vehicle Code. As a result of his 3/2/02 15- conviction in West Virginia, his driving privilege was 16 being suspended for a period ofone year effective 17- 11/13/2001. 18 And additionally his driving privilege 19 reflects a violation on 3/2/2002 that is similar to 20 violating Section 3731 of the Pennsylvania Vehicle Code, 21 Driving Under the Influence. That conviction in West 22 Virginia is listed in Article IV of Section 1581 of the 23 Pennsylvania Vehicle Code, which mandates that PennDOT 24 process specific out-of=state convictions as though they 25 had occurred in Pennsylvania. 3 ,;? S ??. 1 THE COURT: And I think you meant to say 2 3/2/2001. 3 MR. KABUSK: I am sorry. That's correct. 4 Therefore, Your Honor, this is a one-year suspension being 5 imposed as a result of the petitioner's conviction in West 6 Virginia. And the suspension is being imposed pursuant to 7 the Driver License Compact. 8 Sub-exhibit 2 is Uniform Traffic Ticket and 9 Complaint, No. 7266, with Abstract of Judgment as it 10 appears on the reverse side of the complaint, which was 11 received by the Department of Transportation from the 12 licensing authority in the State of West Virginia for 13 operating under the influence of liquor or drugs. Date of 14 violation 3/2/01, date of conviction 3/2/01. 15 And Sub-exhibit 3, driving record, which 16 appears in the file of the defendant, Christian N. McAdoo, 17 operator's number 24773918, date of birth 11/13/78, in the 18 Bureau of Driver Licensing, Harrisburg, Pennsylvania. 19 I move for the admission of what's been 20 marked as Commonwealth's Exhibit No. 1. 21 MR. HERSHEY: Your Honor, we would simply 22 ask for a continuing objection pending questioning of the 23 Department 's witness, Ms. Collins, who is present today, on 24 the issue of whether in fact the certification has been 25 prepared i n accordance with the business records and 4 ',? . E9TA46k'S:4riffi.SPt SS}td,"iYi ".Y .? 1 official records of Title 42. 2 THE COURT: Okay. 3 MR. KABUSK: What has been marked as 4 Sub-exhibit No. 2 is a Certification under seal and 5 certification, which consists of three sub-exhibits. The 6 first sub-exhibit is listed as cover sheet with WID number 7 as listed. Two is copy of envelope. And three is uniform 8 traffic ticket. I will save the Court the time of reading 9 the descriptions. Once again, I move for the admission of 10 what's been marked as Commonwealth's Exhibit No. 2. 11 MR. HERSHEY: Your Honor, we would ask for 12 the same continuing objection that we placed on the record 13 with respect to Exhibit No. 1. 14 THE COURT: Okay. Presumably then I will be 15 receiving these documents but subject to your objection, 16 and then I would have to decide whether they should be 17 considered or not. Is that where we are? 18 MR. HERSHEY: Correct, Your Honor. 19 THE COURT: Fine. 20 MR. KABUSK: Additionally, Your Honor, I 21 would ask you to take judicial notice of West Virginia law 22 17B-1A-1. And I have provided the Court a copy of that. 23 That is marked as Department's Exhibit No. 3. And that is 24 West Virginia's -- the Driver License Compact. In other 25 words, the authorization for and parts of the Driver 5 a7 ;,, .. l PYk%YWk.., x:!V-"Y ?h'Re a1:4'AMTj4V5 ? }r',. 1 License Compact. I ask the Court to take judicial notice 2 of that. 3 THE COURT: And did you say you had marked 4 that as a numbered exhibit? 5 MR. KABUSK: That's marked as Commonwealth's 6 Exhibit No. 3. 7 THE COURT: No. 3, okay. 8 MR. KABUSK: Additionally, what's been 9 marked as Commonwealth's Exhibit No. 4 is a portion of West 10 Virginia law, West Virginia 17B-1A-2. The definition 11 portion of the Driver License Compact. And I am offering 12 that so that it is clear who the licensing authority is in 13 West Virginia for terms of the Driver License Compact. I 14 ask the Court to take judicial notice of that provision of 15 West Virginia statute that's been provided to the Court as 16 Commonwealth's Exhibit No. 4. 17 THE COURT: Okay. 18 MR. KABUSK: Additionally, Your Honor, I ask 19 you to take judicial notice of a statute from Star City in 20 West Virginia. I have provided a copy of that to the 21 Court. That is marked as Commonwealth's Exhibit No. 5. I 22 ask you to take judicial notice of that. 23 And, additionally, I ask you to take 24 judicial notice of a portion of West Virginia statute, 25 17C-5-2, which is West Virginia driving under the influence 6 ?? 1 statute. I have provided that to the Court as marked as 2 Commonwealth's Exhibit No. 6. 3 Additionally, Your Honor, I would call a 4 witness Brenda Collins. 5 Whereupon, BRENDA COLLINS, having been 6 duly sworn, testified as follows: 7 MR. KABUSK: I offer Ms. Collins' testimony 8 in regards to the Tripson issue to indicate the Department 9 does indeed receive reports of convictions from the 10 licensing authority of West Virginia. 11 THE COURT: And how are you spelling the 12 name of that issue? 13 MR. KABUSK: Tripson, T-r-i-p-s-o-n. And 14 the cite for that case, Your Honor, is 773 A.2d 195. 15 DIRECT EXAMINATION 16 BY MR. KABUSK: 17 Q Ms. Collins, please state your name and 18 spell your name for the record? 19 A Brenda Collins, B-r-e-n-d-a, C-o-1-1-i-n-s. 20 Q And where are you employed? 21 A The Department of Transportation, Bureau of 22 Driver Licensing, Court Services Section. 23 Q And how long have you been employed at the 24 Department? 25 A Twenty years. 7 aq Ira 1 Q What is your title? 2 A Manager, court services. 3 Q And what are your duties? 4 A My duties is to manage and overlook the 5 conviction area that processes incoming violations for 6 Pennsylvania residents. 7 Q Does your unit receive out-of-state reports 8 of convictions? 9 A Yes. 10 Q How does the Department receive reports of 11 conviction from the State of West Virginia? 12 A The DMV's forward the reports of conviction, 13 either by citation or court document to us, for processing. 14 Q How does the Department receive the report 15 from West Virginia? 16 A From the DMV in an envelope. 17 Q How does the Department process those 18 reports? 19 A They are opened by a clerk who then makes a 20 copy of the envelope that the citations come in. The 21 envelope is placed in front of the pack of the citations 22 which were in those envelopes -- in an envelope. 23 Q Does the Department keep a record of the 24 reports? 25 A Yes. 8 30 R I'M KRR WORKM NOW VP ft Paw I Q Does the Department keep a record of the 2 envelopes? 3 A Yes. 4 Q How does the Department keep a record? 5 A Microfilm. 6 Q Additionally, does the Department stamp 7 items with an identifying number? 8 A When we process it, we stamp it with the WID 9 identification number, yes. 10 MR. KABUSK: May I approach the witness, 11 Your Honor? 12 THE COURT: Certainly. 13 BY MR. KABUSK: 14 Q I am going to show you what's been marked as 15 Commonwealth's Exhibit No. 2, or at least a copy of that. 16 Would you please identify what's been marked as Sub-exhibit 17 Exhibit No. 1? 18 A That's what we call our bud sheet. That's 19 the beginning sheet of our processing which locates it for 20 microfilm purposes. And has the WID number, the year, the 21 day, the operator, and the sequence number of processing 22 on it to identify the documents behind it. 23 Q What day would that have been? 24 A I believe it is October the 2nd. 25 Q If I showed you a Julian calendar date 9 31 1 chart, would that help you? 2 A Yes. 3 MR. KABUSK: May I approach the witness, 4 Your Honor? 5 THE COURT: Go ahead. 6 BY MR. KABUSK: 7 Q Looking at a Julian calendar date, could you 8 tell me the date? 9 A October the 2nd. 10 Q And how did you determine that from the WID 11 number? 12 A Day 275 equals October the 2nd in the 13 regular calendar. 14 Q Now, on the WID number, how did you 15 determine what day it was? 16 A On the WID number? 17 Q Yes. 18 A By the day 275? 19 Q Would that be the -- 20 A That would be the 2nd of October -- the 2nd. 21 Q The third, fourth and fifth entry? 22 A Right. 23 Q What would be the first and second entry of 19µw{ _'Wrom wpm 1 Q Okay. Thank you. I turn your attention to 2 Sub-exhibit 2. Would you identify that? 3 A This is a microfilm copy of the envelope in 4 which the citations are enclosed that the DMV sends to us. 5 Q I turn your attention to Sub-exhibit 3. 6 What is that? 7 A That's a copy of the traffic ticket from 8 West Virginia. 9 Q Now, can you determine if that envelope was 10 the one, Sub-e xhibit 2, was the envelope that the 11 Department rec eived that report of conviction, which is 12 marked as Sub- exhibit 3? 13 A Yes. It is filmed with the actual document. 14 Q So that is the envelope that the Department 15 received that report of conviction in? 16 A It is. 17 Q Where did that envelope originate? Who was 18 the sender? 19 A The Division of Motor Vehicles in 20 Charleston, We st Virginia. 21 Q Do you know approximately on what date the 22 Department did receive that envelope? 23 A We processed it on October the 2nd, so I am 24 saying that it came into the Department the end of 25 September. C) ?_? m sue:=: ,,, . r 1 MR. KABUSK: May I approach the witness, 2 Your Honor? 3 THE COURT: Go ahead. 4 BY MR. KABUSK: 5 Q I am going to show you what's marked as 6 Commonwealth's Exhibit No. 1. I turn your attention to 7 Sub-exhibit 1. What date does that indicate the matter was 8 processed? 9 A On October the 2nd, 2001. 10 Q Is that how you are determining which date 11 the Department processed that matter on? 12 A Yes. The WID number also agrees with the 13 date. 14 Q Additionally, did you bring any other 15 documents with you? 16 A I brought another copy of the envelope that 17 we do receive from West Virginia. 18 Q And would you describe that envelope, 19 please? 20 A It is an eight by eleven and a half manila 21 envelope with a white legal envelope attached to it with 22 the DMV's address addressed to my office at 1101 South 23 Front Street. 24 Q Now, this envelope that you are just 25 describing, this manila envelope that was in your hand, is 12 -3 ?? ,, -? Rim 1 ? l i 1 this the envelope that the Department received the 2 certification -- or the conviction which is the subject of 3 this appeal? 4 A No. This isn't the envelope. 5 Q However, did the Department receive that 6 report of conviction in an envelope similar to this? 7 A Yes. 8 Q I didn't note that on here there was any 9 indication of a postmark. Is there an explanation for 10 that? 11 A Yes. When the clerk microfilmed it, she 12 wasn't very careful, and she only got part of it. So she 13 should have had it moved down a little bit. She just 14 captured the very end of it. 15 Q But it is your testimony that the Department 16 received Sub-exhibit 2 in Exhibit No. 2 in an envelope 17 which is Sub-exhibit No. 1 in Exhibit No. 2? 18 A That's correct. 19 Q May I have this envelope marked as 20 Commonwealth's Exhibit No. 7? 21 (Whereupon, Commonwealth's Exhibit No. 7 22 was marked for identification.) 23 MR. KABUSK: I move for the admission of 24 Commonwealth's Exhibit No. 7. 25 THE COURT: Is there any objection? 13 35- 0 1 MR. HERSHEY: Not to the admissibility. 2 Only so long as the record is clear that the witness has 3 indicated that that particular envelope was not the 4 envelope in question in this case. 5 THE COURT: Okay. 6 MR. KABUSK: No further questions. 7 CROSS-EXAMINATION 8 BY MR. HERSHEY: 9 Q Ms. Collins, do you have Exhibits 1 and 2 10 before you? 11 A Yes. 12 Q Beginning with Exhibit 2, and I guess it 13 would be Sub-exhibit 2, which is what appears to be the 14 microfilm of an envelope from the Division of Motor 15 Vehicles in West Virginia. Do you see that? 16 A Yes. 17 Q Are we in agreement that the postmark on 18 that envelope has not been reproduced for purposes of this 19 exhibit? 20 A That's correct. 21 Q Okay. And can you tell me where there is 22 any authority within the exhibit to indicate when this 23 envelope was received from the Division of Motor Vehicles? 24 A No more than the WID date on when it was ¦ 1 Q Okay. I just want to make sure that we are 2 clarifying what the WID date means. The WID, as you have 3 described it in your testimony, is the date that someone 4 from your unit would work on the product? 5 A Yes. 6 Q Is that accurate? 7 A That's correct. 8 Q And likewise, the WID number would be akin 9 to the processing number that appears on Exhibit 1, is that 10 correct? 11 A That's correct. 12 Q And although you are in charge of the Court 13 Certifications Unit, you are not indicating to this Court 14 that you actually processed this particular conviction, is 15 that correct? 16 A I did not process this conviction, that's 17 correct. 18 Q Okay. You had made a reference in your 19 testimony something to the effect that the clerk made a 20 mistake with respect to Sub-exhibit 2 of Exhibit 2, is that 21 your testimony? 22 A I said she was not careful. 23 Q Okay. Your duties as manager of the Court 24 Services Section means that you are an employee within the 1 A Yes. 2 Q And it is your testimony here today that you 3 are familiar with the exhibits that have been marked as 4 Department's Exhibit No. 1 and No. 2, is that correct? 5 A That's correct. 6 Q Do you know who prepared the certification 7 page of those two exhibits? 8 MR. KABUSK: Objection, Your Honor. It is 9 out of the sc ope of the Department's exam. 10 THE COURT: I am sorry. Could you repeat 11 yourself? I didn't hear what you said. 12 MR. KABUSK: It is out of the scope of the 13 Department's cross-examination of the witness. 14 THE COURT: He is going beyond the scope of 15 your direct? 16 MR. KABUSK: He is beyond the scope of my 17 direct, yes, Your Honor. 18 THE COURT: Do you want to respond to that, 19 Mr. Hershey? 20 MR. HERSHEY: Your Honor, had she not 21 testified to the preparation of the certifications, I would 22 think that that would be a reasonable objection. But on 23 the contrary, she has testified in detail as to how 24 these -- 25 THE COURT: We will permit it. Go ahead. 16 38 ?oiY' 1 MR. KABUSK: Your Honor, for the record, I 2 don't believe she did testify in any regard to how they 3 were prepared. 4 THE COURT: Your objection is overruled. Go 5 ahead. 6 BY MR. HERSHEY: 7 Q Ms. Collins, directing your attention first 8 to Department's Exhibit No. 2, specifically the 9 certification page. Did you or anyone in your unit prepare 10 that certification? 11 A No. 12 Q Do you know who did prepare that 13 certification? 14 MR. KABUSK: Your Honor, for the record, I 15 make a continuing objection to the line of testimony 16 regarding who prepared the certification. 17 THE COURT: Well, my understanding is that 18 the certifications under seal stand on their own. And 19 that's my understanding of it, but apparently Mr. Hershey 20 is attempting to disabuse me of that notion. And so I will 21 at least hear him out on the issue. Go ahead. 22 MR. HERSHEY: I am sorry. Could you read 23 back that last question? 24 (The court reporter read as requested.) 25 THE WITNESS: No, I don't. 17 39 _u RUM I MR ... ?mPVpet 3+@'..#i""?'£RRgYya wv'4?.1'WpS" Y •'• 1 BY MR. HERSHEY: 2 Q With respect to DOT's Exhibit 1, Ms. 3 Collins, and specifically to the certification page, did 4 you or anyone within your unit prepare that certification? 5 A No. 6 Q Do you know who did? 7 A No, I don't. 8 MR. HERSHEY: Thank you. I have no further 9 questions. 10 THE COURT: Anything else? 11 MR. KABUSK: I move for the admission of 12 what's been marked as Commonwealth's Exhibit No. 1 through 13 7. 14 THE COURT: Very well. We will admit them 15 subject to your objection. 16 Thank you, ma'am. You can step down. 17 Anything else? 18 MR. KABUSK: That is the Department's case, 19 Your Honor. 20 MR. HERSHEY: Your Honor, we will call 21 Christian McAdoo to the stand. 22 Whereupon, CHRISTIAN N. MCADOO, having 23 been duly sworn, testified as follows: 24 DIRECT EXAMINATION 25 BY MR. HERSHEY: 18 40 1 Q State your name and your residence address 2 for the record, please? 3 A Christian McAdoo, 1538 Holly Pike, Carlisle. 4 Q Are you employed, Mr. McAdoo? 5 A Yes, I am. 6 Q Where are you employed? 7 A For M & T Bank in Carlisle also. 8 Q How long have you been employed there? 9 A Since June 18th, 2001. 10 Q Prior to June 18th were you employed? 11 A No. 12 Q What were you doing before June 18th? 13 A I was in school. 14 Q Where? 15 A Washington & Jefferson College in 16 Washington, Pa . 17 Q Have you since graduated from that school? 18 A Yes. 19 Q Were you involved in a traffic stop in Star 20 City, West Virginia? 21 A Yes. 22 Q And do you recall the date of that traffic 23 stop? 24 A March 2nd. 25 Q Of what year? 19 441 '??, t ??? ::i 1 A 2001. 2 Q As a result of that traffic stop were you 3 cited for an offense? 4 A Yes. 5 Q Was it an offense of a DUI nature? 6 A Yes, it was. 7 Q Okay. And as a result of that citation did 8 you retain counsel? 9 A No. 10 Q Were you required to appear in court in West 11 Virginia? 12 A Yes, I was. 13 Q How many court appearances did you have in 14 West Virginia? 15 A Just one. 16 Q At the time of your court appearance did you 17 enter an official plea? 18 A Yes. It was a no contest plea. 19 Q At the time of your no contest plea or 20 before then were you advised by anyone as to the 21 consequences of your nolo plea in Pennsylvania? 22 A No. 23 Q Was there any discussion between you and the 24 judge regarding any notification to Pennsylvania as a 25 result of this nolo plea? 20 4 ;? .???. _ ,. _ ..s 1 A No. 2 Q When did you interview with M & T Bank? 3 A The first week of June of 2001. 4 Q Okay. What position did you interview for? 5 A They were hiring in a sales development 6 program. 7 MR. KABUSK: Objection to the relevance of 8 this, Your Honor. 9 MR. HERSHEY: Judge, I briefed the issue. 10 The issue has to do with a combination of what I believe is 11 delay in the Department's action in this case. My client's 12 reasonable reliance on the fact that there would be no 13 license suspension imposed, coupled with prejudice of his 14 employment. And there is case law that indicates that that 15 is in fact a relevant inquiry. 16 THE COURT: Go ahead. 17 BY MR. HERSHEY: 18 Q I am sorry. What position did you interview 19 for? 20 A Sales development. 21 Q Did you have a valid Pennsylvania driver's 22 license when you interviewed for that position in June? 23 A Yes, I did. 24 Q What were the requirements of that position 25 when you were hired? 21 tf 3 1 A To complete a training program. And upon 2 completion of that training program to call on customer 3 prospects, int erview them as far as loan approval. 4 Q When you talk about calling on customers, 5 can you be more specific than that? 6 A Physically visiting the customer's business 7 location. 8 Q In what area are we talking about 9 geographically? 10 A In the Harrisburg area as well as the 11 Carlisle area, the whole Central Pennsylvania region. 12 Q How were you expected to make those calls? 13 A To drive my own vehicle. 14 Q Okay. Who is your supervisor at M & T Bank? 15 A Charles Robinson. 16 Q When was the first time that you received 17 notification that this West Virginia incident would affect 18 your Pennsylvania driving privileges? 19 A The middle of October I received a letter 20 from PennDOT. 21 Q What did the letter indicate? 22 A That my driving privileges would be 23 suspended for one year? 24 Q As a result of that did you notify your 25 employer? 22 kf ,.,' .. Y' ?TSae WH.ro,Frr:E=F%i9`35nm? : cG:R AE? . ?'<?? D D 1 A Yes, I did. 2 MR. HERSHEY: Thank you. I have no further 3 questions. 4 CROSS-EXAMINATION 5 BY MR. KABUSK: 6 Q If someone drove you from location to 7 location, could you perform your duties? 8 A If I had a full-time taxi driver or 9 something? 10 Q Yes. 11 A Yes. 12 Q Okay. And on March the 2nd of 2001 you were 13 cited for Star City Ordinance 333.01, is that correct? 14 A Yes. 15 Q And that was a DUI violation, correct? 16 A Yes. 17 Q And on that same date you entered into a 18 nolo contender e plea, is that correct? 19 A That's correct. 20 Q And then you received a notice dated October 21 9th, 2002, cor rect, from the Department of Transportation? 22 A That's correct. 23 Q And that informed you that your operating 24 privilege was being suspended for a period of one year, 25 correct? 23 4,5- '' 1 A That's right. 2 Q After you received that citation in West 3 Virginia did you contact the Department of Transportation 4 in regard to any consequences from that? 5 A After I received the citation from West 6 Virginia? 7 Q Yes. Did you contact the Pennsylvania 8 Department of Transportation in regard to any consequences? 9 A No. 10 MR. KABUSK: No further questions. it THE COURT: Very well. 12 MR. HERSHEY: One, Your Honor. 13 REDIRECT EXAMINATION 14 BY MR. HERSHEY: 15 Q Mr. McAdoo, what's the likelihood of you 16 hiring a full-time taxi driver to allow you to do your job 17 as a sales development officer? 18 A Highly unlikely. 19 MR. HERSHEY: I have no further questions. 20 THE COURT: Anything else? 21 MR. KABUSK: Nothing further. 22 THE COURT: Mr. McAdoo, in the interest of 23 full disclosure, you graduated from high school I believe 24 with one of my daughters? 25 THE WITNESS: Yes. 24 46 ?? .?4 ?.?-w. ?±t? 6RR'Po?k'_22dY4sA'SP!°Sk^l?pd rY£tlY ?..... _.>? D 1 2 3 4 5 6 7 THE COURT: Was that Emily? THE WITNESS: Yes. THE COURT: And it is true then that we have had no contact though I think in probably several years, have we? 8 9 Honor. THE WITNESS: Several years. THE COURT: Okay. Anything further? MR. HERSHEY: One further witness, Your 10 THE COURT: Thank you. You can step down. 11 MR. HERSHEY: I call Charles Robinson to the 12 stand. 13 Whereupon, CHARLES ROBINSON, having been 14 duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MR. HERSHEY: 17 Q Would you state your name, please, sir? 18 A Charles Robinson. 19 Q And your occupation? 20 A I work for M & T Bank. 21 Q In what capacity? 22 A I manage the entire Central 23 Pennsylvania /Maryland region business development and 24 business customers. 25 Q What's your professional address? 25 47 M1.. -'n Nf; .. agWm+xrv-n^?,x+-?a9?e?ri9kM]?*clS-r? .-. _. ' :?' _ 1 A 2 Carlisle. 3 Q 4 A 5 6 7 8 9 10 Q A Q A Q hired to do? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ritner Highway, 415 Ritner Highway in Are you familiar with Christian McAdoo? Yes. Did you participate in his hiring? Yes. Do you recall when he was hired? Roughly in June. Okay. And what job was he specifically A He was hired to become part of our SDP candidate program, which is the sales development program. Q Can you explain a little bit about that? A Yes. He was hired to come in, and for a period of four to six months he would be developed through our program in Syracuse, New York. He would be taught credit training, sales calls, prospecting techniques, and various other sundry items. MR. KABUSK: Once again, objection to the relevance of this testimony, Your Honor. THE COURT: I am the last to know. I am told there is a line of cases in which prejudice is relevant. Whether that's the case or not, frankly I haven't done the research. So I am going to let it in subject to your objection. 26 L?R' :.?4Rg?wAa&&Rg:;. D D 1 BY MR. HERSHEY: 2 Q Mr. Robinson, to what extent is client or 3 customer development a part of Mr. McAdoo's job 4 responsibilities? 5 A A hundred percent. 6 Q Did you know at the time that he was hired 7 that, he would be facing a driver license suspension in 8 Pennsylvania? 9 A No. 10 Q Can he fulfill the requirements of the SDP 11 position without a driver's license? 12 A Not to my knowledge. 13 Q Is his continued employment as an SDP 14 associate conditioned upon him maintaining a valid driver's 15 license? 16 A Could you rephrase that again? 17 Q Is his continued employment as an SDP 18 representative conditioned upon him maintaining a valid 19 driver's license? 20 A Yes. 21 MR. HERSHEY: No further questions. 22 CROSS-EXAMINATION 23 BY MR. KABUSK: 24 Q Mr. Robinson, did you say you hired Mr. 25 McAdoo? 27 %q ?n3 q^39i? V eM?' Q O 1 A That is correct. 2 Q Did he disclose to you the West Virginia 3 DUI? 4 A No. He did not. 5 Q If he has a driver and is able to maintain 6 his mobility, would he be able to retain his position? 7 A Yes. 8 MR. KABUSK: No further questions. 9 REDIRECT EXAMINATION 10 $Y MR. HERSHEY: 11 Q Mr. Robinson, in terms of calling on clients 12 or business prospects what geographical area is Mr. McAdoo 13 responsible for? 14 A My geographic region runs from basically 15 Hagerstown, Maryland, up through all of Pennsylvania, in 16 terms of back down into York, encompassing the capital 17 district. 18 Q Okay. And how would that relate to Mr. 19 McAdoo calling on clients? 20 A He has recently been assigned for the 21 Carlisle/West Shore/Harrisburg markets, to focus in that 22 arena. 23 Q Okay. And on average, since: you hired him, 24 how many customer calls does Mr. McAdoo make in a week's 25 time? 28 .rb .- . ?'iY<4aa'3. s6Zr "a?CyySyf M :r'FV?" iiab'?d?l?&?&4TAi Ftf??i$.. ? .? _ D 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 A per week. Q described? He is required to make eight to ten calls Within that geographical location you just A Correct. Q So in some cases that would be more than one call per day, is that correct? A That is correct. MR. HERSHEY: No further questions. MR. KABUSK: No further questions. THE COURT: Tell me again what the acronym SDP stands for? THE WITNESS: Sales development program. THE COURT: Sales development program. Okay. Thank you. You can step down. THE WITNESS: Thank you. MR. HERSHEY: Your Honor, we have no further witnesses to present. THE COURT: Okay. MR. KABUSK: Your Honor, I wish to recall the Department's witness. THE COURT: Certainly. MR. KABUSK: The Department recalls Brenda Collins. 29 51 01 1 REBUTTAL 2 (Whereupon, Brenda Collins was recalled.) 3 DIRECT EXAMINATION 4 BY MR. KABUSK: 5 Q Ms. Collins, you have heard testimony 6 regarding delay. Earlier in your testimony you did testify 7 as to approximately when the Department received that 8 envelope which contained the certification, is that 9 correct? 10 A That's correct. 11 Q What date did you testify to? 12 A The end of September. 13 Q Which would have been what date? What 14 happened at the end of September? 15 A What happened at the end of September? 16 Q I mean, why is that date relevant? 17 A Because it takes about a week to get the 18 mail, and then to open it, to review. It goes on my desk. 19 I have to review that. I have a process in place if 20 anything is less than -- greater than six months that we 21 have to time stamp that in. If it is not time stamped in, 22 I am saying that the envelope had to have been photocopied 23 correctly. It would show that we received that timely, 24 because my staff is instructed. And I would have picked 25 that up when I reviewed that pack of work. 30 ?r ,? °, ?, y?„n?s ?$]el't3r+?r _ ?ta3?e.se? ?, - .: 0 S 1 Q So the Department received that envelope 2 which contai ned the citation sometime about the end of 3 September? 4 A Right. 5 Q And then the Department processed that, 6 what, at the beginning of October? 7 A October. 8 Q And do you recall what the date of 9 suspension notice was? May I refresh your memory if I show 10 you Commonwe alth's Exhibit No. 1? 11 A We processed it on the 2nd. And the mail 12 date is the 9th. 13 Q So once the Department received that, how 14 long did it approximately take for the Department to get 15 this notice of suspension out? 16 A Say in two weeks. 17 Q Now, you stated other citations came in that 18 envelope? 19 A Yes. 20 Q Would you be able to obtain possibly that 21 envelope through any means? 22 A The envelope that Mr. McAdoo's citation came 23 in? 24 Q Or the microfilm of that? 25 A The microfilm but you won't get the 31 53 0 1 2 postmark. Q You won't get the postmark. A But there is other envelopes in there with 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 postmarks on them. Q From that same batch? A Yes. From that same processing date, yes, in that same pack of work. Q So that envelope came in with you are saying numerous citations? A Yes. Along with other states, along with another one from West Virginia if my memory serves me correctly. There was two envelopes from West Virginia that processing day. Q And you state that you possibly could obtain microfilm copies of that same envelope but showing a postmark date? A Not with Mr. McAdoo's citation in it. There would be other citations along. There is two envelopes in that pack. Q Okay. A The one that contained Mr. McAdoo's citation is the one where we don't have the postmark. Q But there were two packs, and there was another envelope? A Yes. 32 5 . ,,:' a 1 Q And possibly that envelope? 2 A Has the post date on it, yes. 3 MR. KABUSK: Your Honor, I ask the record to 4 be left open for the Depart ment to obtain that envelope and 5 submit that under seal and certification. 6 MR. HERSHEY: Judge, we are going to object 7 to that because this delay issue is properly raised in my 8 appeal. Ms. Collins, the D epartment's witness, was here to 9 testify today and -- 10 THE COURT: Well, she would have to come 11 back again and identify the other envelope, right? 12 MR. KABUSK: Yes. 13 THE COURT: You are asking for a continued 14 hearing is what you are asking for? 15 MR. KABUSK: Or just accept it under seal 16 and certification. 17 THE COURT: Although the whole thing rests 18 on her testimony that this envelope came the same day as 19 his? 20 MR. KABUSK: Yes. 21 THE COURT: We agree it is not the same 22 envelope? 23 MR. KABUSK: Yes, Your Honor. 24 THE COURT: So she is going to have to say 25 that that's the envelope. Okay. I will give you a week. 33 SS .«. .. 1 D C? 1 MR. KABUSK: Yes, Your Honor. 2 THE COURT: We will have to get with my 3 secretary and reconvene a hearing I guess on that issue. I 4 do that very relunctantly. We all sort of knew what the 5 issue was today, didn't we? 6 MR. KABUSK: Well, then, Your Honor, I 7 strike my request for a continuance. I will just base the 8 Department's case upon her testimony regarding receipt. 9 THE COURT: Fair enough. Anything else? 10 MR. HERSHEY: I have no questions for Ms. 11 Collins, Your Honor. 12 THE COURT: Thank you, ma'am. 13 MR. HERSHEY: Judge, I have briefed the 14 issue of the delay and prejudice. And I know the Court has 15 received all the testimony. With respect to Ms. Collins' 16 testimony, she has indicated that, number one, she didn't 17 process Mr. McAdoo's conviction. Number two, the clerk who 18 microfilmed his paperwork, from her testimony, made an 19 error because the postage mark was not reproduced in the 20 microfilm. That would be Exhibit 2, DOT's Exhibit 2. 21 And number three, there is nothing of record 22 that would support the bare assertion that this stuff was 23 probably received at the end of September. The WID number 24 and the process number means that that is the date that the 25 Department processed the request. It doesn't mean that's 34 51( PX r C11 1 the date that the Department received the documentation 2 from the licensing authority of West Virginia. 3 I have also cited the Bennett case in my 4 brief which deals with delay and prejudice as a result of 5 the delay, which I will hand up to the court. 6 With respect to the other issue, Judge, 7 which was the admissibility of the certification, although 8 Ms. Collins did not identify -- I should say did not 9 testify that she prepared the sub-exhibits in DOT's Exhibit 10 No. 1, she did testify that it was her section that was 11 responsible for the sub-exhibits in DOT's Exhibit No. 2. 12 She also testified that although she is the 13 manager of the section she did not prepare the 14 certification page. And my argument would be that under 15 the Business Records Act the Department's designee would be 16 the appropriate person to certify the records that are 17 maintained in a particular section. In order words, this 18 is a case where the witness has specifically said these 19 records are from my section. I am the manager. But she is 20 not able to indicate who prepared the certification. So it 21 becomes a question mark as to whether it was done by the 22 appropriate authority within DOT. 23 Your Honor is correct that DOT is entitled 24 to a presumption that the certification was properly 25 prepared. I am simply indicating that based on her 35 57 1 testimony we are arguing that that becomes relevant in 2 terms of whether we can overcome the presumption and 3 certification. 4 THE COURT: On the question of delay, let's 5 assume that Pennsylvania DOT acted promptly when it got the 6 paperwork, are you conceding that the delay that occurred 7 in another state is of no moment? 8 MR. HERSHEY: That's correct. 9 THE COURT: You are satisfied that's the 10 law. What if West Virginia had waited a year and a half 11 and sent it and then they processed it the same day they 12 got it? 13 MR. HERSHEY: If the evidence of record 14 proves to your satisfaction that DOT acted promptly, then 15 DOT is not chargeable with the delay. That's the law. 16 THE COURT: Okay. Mr. Kabusk. 17 MR. KABUSK: Your Honor, in a delay matter 18 the licensing challenging the action on the basis of delay 19 bears the burden of proving, one, that there has been an 20 unreasonable delay. And, two, that the delay caused the 21 licensee to change his or her circumstances in reliance on 22 that belief. And I would cite to you the case Grover. 23 And I believe Mr. Hershey cited that, 734 A.2d 941. 24 THE COURT: Well, I have no trouble with the 25 second prong of it. Mr. McAdoo got a job that required a 36 53, ?:? .: i i y 1 lot of driving on the assumption that his license wasn't 2 going to be suspended. I have no trouble finding that he 3 is credible when he says that. We all know what the dates 4 are, right? He was convicted in April. 5 MR. KABUSK: Any delay that is not 6 attributable to the Department cannot be charged to the 7 Department. I would cite to you Fordham, 663 A.2d 868,. 8 THE COURT: So under the Interstate Compact 9 the sending state can delay all they want? If that's what 10 the cases say, that's what the cases say, but that doesn't 11 make any sense to me at all. 12 MR. KABUSK: Your Honor, you will see this 13 scenario mostly from the Clerk of Courts in Pennsylvania. 14 They somehow sit on a citation. And if the Department acts 15 promptly once it receives it, that delay cannot be charged 16 to the Department. 17 THE COURT: Okay. And are there any 18 out-of-state cases? 19 MR. KABUSK: To my knowledge, no, Your 20 Honor. 21 THE COURT: The story of my life. 22 MR. KABUSK: Once again, the Department must 23 process it within a reasonable time. That's Fordham, 663 24 A.2d 868. And the Department is chargeable with the delay 2S only after it receives it, Tower, 654 A.2d 60. And the 37 ?r ,r??? ' . 1. ? a 1 Department must act within a reasonable time, that's 2 Turner, 624 A.2d 759. What is reasonable is determined 3 upon a case-by-case basis. And courts have found six 4 months to be reasonable. That's the Fordham case. 5 Certainly the Department argues that the 6 Department acted very promptly in this matter, within two 7 weeks, after the date of receipt. That's regarding the 8 delay. Regarding the admissibility, the Department's 9 documents are under seal and certification. And I argue 10 that the Department's witness was competent to testify as 11 to what she was offered to testify. 12 I respectfully request that the appeal be 13 dismissed and the suspension reinstated. 14 THE COURT: We will look at it. I want to 15 study Mr. Hershey's brief carefully. And if you feel you 16 need to respond in writing, just let my office know. 17 MR. KABUSK: Thank you. 18 MR. HERSHEY: Judge, I would just like to 19 put something on the record about Fordham since the 20 Department has raised it. 21 THE COURT: Go ahead. 22 MR. HERSHEY: The Fordham case does talk 23 about -- under the facts of Fordham, that six months is not 24 an unreasonable delay. However, there was specific witness 25 testimony in that case regarding the type of convictions at 38 60 ?rc? r r? 1 issue. In other words, as I recall Fordham, a 2 Department's witness testified we processed 5,000 summary 3 traffic citations in a particular period of time. The 4 Fordham case in that instance said we don't find six months 5 to be unreasonable because of that particular amount of 6 citations that were being processed. So Fordham is fact 7 specific. And we would argue, because this is a compact 8 case, there has been no testimony that indicates that the 9 Department processes 5,000 West Virginia convictions in a 10 specific period of time. That as Mr. Kabusk did point out, 11 each case has to be looked at on its individual merits on 12 that issue. 13 THE COURT: Okay. We will look at it 14 closely. Thank you. 15 (End of proceedings) 16 17 18 19 20 21 22 23 24 25 39 61 e a 1 a Yi • d mA • 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 same. t A Barbara E. Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. ,7;w' 7 too z Date A. Hess, J. Judicial District 40 4,P- t.. 9 Wn 3/I CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE4931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONEALTH 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: CHRISTIAN N. MCADOO V. COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING NO 01-6243 CIVIL TERM 1200 CD 2002 The documents comprising the record have been numbered from No. 1 to 22 , 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 6-24-02. Curtis R. Long, Prothonotary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title ?..: -? _ _ _ _. ?-? ?b« Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND in the Commonwealth of Pennsylvania 20 CD 002 to No. 01-6243 CIVIL Term, 19 is contained the following: COMPLETE COPY OF DOCKET ENTRY CHRISTIAN N. MCADOO V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING SEE ATTACHED CERTIFIED DOCKET ENTRIES PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2001-06243 MCADOO CHRISTIAN N (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: Case Type.....: APPEAL - LICENSE SUSP Time.........: Judgment..... 00 Execution Date Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: Ply ND. 1 - 10 11 - 15 16 - 19 20 - 21 22 Page 10/31/2001 0/00/0000 0/00/0000 1200 CD 2002 ******************************************************************************** General Index Attorney Info MCADOO CHRISTIAN N 1538 HOLLY PIKE CARLISLE PA 17013 APPELLANT HERSHEY DAVID E PENNSYLVANIA COMMONWWEALTH OF APPELLEE DEPT OF TRANSPORTATION 1101 SOUTH FRONT STREET HARRISBURG PA 17011 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 10/31/2001 APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- 5/03/2002 OPINION AND ORDER - DATED 5/3/02 - IN RE LICENSE SUSPENSION APPEAL - THE APPEAL OF THE PLAINTIFF FROM THE ORDER SUSPENDING HIS DRIVER'S LICENSE IS SUSTAINED - BY KEVIN A HESS J - COPIES MAILED 5/6/02 ------------------------------------------------------------------- 5/16/2002 NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA - ORDER DATED 5/3/02 - BY TERRANCE M EDWARDS ATTY FOR APPELANT ------------------------------------------------------------------- 5/20/2002 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1200 CD 2002 - - - - - - LAST ENTRY - - - - - - - - - - - - - - exhibts and briefs ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal***Py*mts/Adj 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 ******************************************************************************** Commonwealth of Pennsylvania County of Cumberland ss: ,,Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case thgrein stated wherein Christian 1I. McAdoo Plaintiff, and Comm. of PA., Dept o Trans. Bur of Dr Licensing Defendant , as the same remains of record before the said Court at No. 01-6243 of Civil Term, A.D. 19-. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 24th day of June A. D., X02 Prothonotary 1, George E. Hoffer President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common PCUMBEIZLWy, was, at the time of so doing, and now is Prothonotary in and for said County of in the Commonwealth 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 ofjudicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by nether A/resident .l udge Commonwealth of Pennsylvania County of Cumberland ss: Curtis R. Long Protonotary oflhe o t of Co?m n Pleas in and for the said County, do certify that the Honorable eort e E, HCo err . g . by whom the foregoing attestation was made, and who has thereunto subscribed his name, 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, I have hereunto 2s4thy hand and affixJuneseal of said Court this day of A.D. N Prothonotary CHRISTIAN N. MCADOO V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O!- (po24? rvcC? LICENSE SUSPENSION APPEAL r? I- ORD R OF COURT AND NOW, this '( day of d X2001 upon Petition of Christian N. McAdoo, a hearing is set on the License Suspension Appeal for the ?':, day of Ell 001, at JUL- o'clock A.m. in Courtroom Number -, Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania, all proceedings 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. S' Pursuant to Section 1550(b) of the Pennsylvania. Motor Vehicle Code, Petitioner's appeal shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended pending a final determination in this matter. Distribution: Prothonotary's Office Office of Chief Counsel, PennDOT 1101 S. Front St., Harrisburg, PA 17104-2516 David E. Hershey, Esquire 2233 N. Front St., Harrisburg, PA 17110 NOV 0 9 2001 OFFICE OF CHIEF COUNSEL Vehicle & Traffic Law Division NOV 0 2 Z0?1' Commonwealth of Pennsylvania Department of Transportation 0 CERTIFICATE 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: COMMONEALTH 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: MCADOO CHRISTIAN N C rev r„ . COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING rc NO 01-6243 CIVIL TERM 1200 CD 2002 The documents comprising the record have been numbered from No. 1 to 62 , 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 7/16/02. Curfis R. LoDgrP Jane H. Sparling, An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. 09 -Z d B i li)t l#?t Date v If1VA-1>;SNN3d aQ t ?IftOQ NllV3?"NOI?'rdt':? Signature & Title .. CHRISTIAN A. MCADOO IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY VS NO: 01-6243 COMMONWEALTH OF PENNSYLVANIA : LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING PRAECIPE FOR STATEMENT OF INTENTION TO PROCEED TO THE PROTHONOTARY: Petitioner, Christian A. McAdoo, by and through his counsel, David E. Hershey, Esquire, of Wiley, Lenox, Colgan & Marzzacco, P.C., hereby indicates his intent to proceed in the above-captioned matter. Respectfully Submitted, by: E. Hershey, , Esq. 1 South Baltimore Street Dillsburg, PA 17019 (717) 432-9666 ID No.: 43092 CHRISTIAN A. MCADOO : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY VS NO: 01-6243 COMMONWEALTH OF PENNSYLVANIA : LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING CERTIFICATE OF SERVICE On the 22nd day of September, 2005, 1 certify that a copy of the foregoing petition was served upon the following attorney for the Commonwealth of Pennsylvania by First Class Mail, address as follows: George Kabusk, Esquire PA Department of Transportation Office of Chief Counsel 1101 South Front Street Harrisburg, PA 17104-2516 Respectfully submitted, WILEY, LENOX, COLGAN & MARZZACCO, P.C. by' vid E. Hershey, Esquire 130 West Church Street Suite 100 Dillsburg, PA 17019 (717) 432-9666 ID No.: 43092 1* P1? V? -- t`J IY ? r C J C"} CJ?' P 'o r CHRISTIAN McADOO vs Case No. 01- 6 2 4 3 COMM. OF PENNSYLVANIA, DEPT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Statement of Intention to Proceed To the Court: DAVID E. HERSHEY, ESO, intends to proceed with the above captioned matter. Print Name DAVID E. HERSHEY, ES ¢3gnName'f Date: 10/0808 Attorneyfor r-HRTSTTAN MCADOO Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. v? CERTIFICATE OF SERVICE On the J!_ day of October, 2008, I certify that a copy of the foregoing Statement of Intention to Proceed was served upon the following attorney for the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing by regular U.S. mail, first class, as follows: Philip Bricknell, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 1101 S. Front St. Harrisburg, PA 17104 Date: Respectfully submitted, David E. Hershey, Esquire COLGAN MARZZACCO, LLC ID No.: 43092 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 ?:? ?:? _r ?9 - _;., ..y-- , .? _F - David D. BueCf ,Prothonotary KirkS. Sohonage, E,SQQ Soricitor ='„'r CU?e< Renee X. Simpson Ft Deputy Prothonotary Irene E. 9Lorrow 2' Deputy Prothonotary Office of the Prothonotary CumberfandCounty, Pennsy(vania 0/ - &27a CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 25TH DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square* Suite 100 • Car(isle, PA 17013 • (717)240-6195 0 Fax, (717) 240-6573