HomeMy WebLinkAbout03-3140KELLEN ANDREW McELROY, Appellant
V.
COMMONWEALTH OF PENNSYLVANIA: NO. 2003- ~'~ ~ ''~
Iqo
DEPARTMENT OF TRANSPORTATION :
BUREAU OF DRIVER LICENSING, :
Appellee : CIVIL ACTION - LAW
: IN THE COURT OF COMMON PLEAS FOR
: CUMBERLAND COUNTY, PENNSYLVANIA
PETITION FOR APPEAL OF LICENSE SUSPENSION
AND NOW, comes Kellen Andrew McElroy, Appellant, by and through his Counsel of
Record, Gregory H. Knight, Esquire, and Hanft & Knight, P.C., to file a Petition for Appeal of
License Suspension in support of which the following statements are made:
1. Kellen Andrew McElroy is an adult male (Date of Birth - April 14, 1983) residing
at 167 Grims Mill Road, Boyertown, Pennsylvania 19512.
2. On or about May 2, 2003, Mr. McElroy was cited by Officer Robert Shumaker of the
Middlesex Township Police Department for a violation of 18 Pa. C.S. §6308 for which violation Mr.
McElroy was mistakenly told by or he misunderstood another Middlesex officer to say that there
would be no driver's license consequences.
3. Mr. McElroy pled guilty to the Section 6308 citation by paying all costs and fines to
Magisterial District 09-3-03 by a check dated May 21, 2003.
4. By letter dated June 16, 2003, PENNDOT notified Mr. McElroy, pursuant to 75 Pa.
C.S. Section 1532D, that his driver's license would be suspended, because of the May 21, 2003
payment, for a period of 90 days beginning July 21, 2003 at 12:01 a.m. See Exhibit A.
5. On June 11,2003 and after his first consultation with legal counsel about the driver's
license consequences of a Section 6308 violation, Mr. McElroy filed a timely Notice of Appeal
from the May 21,2003 conviction which is docketed to No. 03-1257 CR, Cumberland County Court
of Common Pleas. See Exhibit B.
6. On June 3, 2003, Counsel for Mr. McElroy contacted the citing Officer who stated
that he would agree to and support a plea on appeal by which the May 2, 2003 citation would be
amended to a summary disorderly conduct violation, 18 Pa. C.S. §5503(a)(2).
7. Mr. McElroy believes that he will prevail in the Notice of Appeal (see Exhibit B) he
filed to his May 21, 2003 conviction.
8. Should Mr. McElroy be successful in his appeal as stated in Paragraph 7, this Civil
Action appeal will be moot and there will be no basis for the Department to suspend his driver's
license.
9. The best use ofjudicial resources would be to schedule a hearing on this Petition only
after the Appeal of his summary conviction is decided.
WHEREFORE, Mr. McElroy requests that this Court stay the imposition of the driver's
license suspension noted in Exhibit A and all further proceedings on this appeal until a decision is
reached on the Appeal from Summary Conviction noted in Exhibit B.
Respectfully submitted,
HANFT & KNIGHT, P.C.
Gregory H. Knight, Esquire
Supreme Court I.D. #30622
Attorney for Appellant
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
KELLEN ANDREW McELROY,
Appellant
: 1N THE COURT OF COMMON PLEAS FOR
: CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA: NO. 2003-
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Appellee CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a tree and correct copy of the foregoing Petition
for Appeal from License Suspension was sent to the following address below:
Service by United States Mail, certified, return receipt requested, upon:
DEPARTMENT OF TRANSPORTATION
Office of Chief Counsel
ATTN: George Kabusk
Third Floor, River Front Office Center
Harrisburg, PA 17104
Date:
Respectfully submitted,
HANFT & KNIGHT, P.C.
Gregory H. Knight, Esquire
Supreme Court I.D. #30622
Attomey for Appellant
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
KELLEN ANDREW McELROY,
Appellant
IN THE COURT OF COMMON PLEAS FOR
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA: NO. 2003-
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Appellee CIVIL ACTION - LAW
VERIFICATION
I, Kellen Andrew McElroy, hereby verify that the facts set forth in the foregoing Petition
for Appeal from License Suspension are tree and correct to the best of my knowledge, information
and belief, and I understand that false statements herein are made subject to the penalties of 18
Pa. C.S. §4904 relating to unswom falsifications to authorities.
Date:
Kellen Andrew McElroy /
EXHIBIT A
CONNONNEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Hail Date= JUNE 26, 2005
KELL£N ANDREW MCELROY
167 GRIMS MILL RD
BOYERTOWN PA 19512
WID ~ 031607195104~31 001
PROCESSING DATE 06/09/2003
DRIVER LICENSE ~ 2~,440775
DATE OF BIRTH 04/14/1983
Dear MR. HCELROY:
As a result of your v/clarion on 05/02/2003 of violating
Section 6308 (offenses related to alcohol), your drivJng
privilege is being SUSPENDED for a period of 90 DAY(S) as
mandated by section 1552D of the vehicle code·
The e~fectlve date o~ suspension ts 07/21/2003, 12:0!
Before PennDOT can restore your driving privilege, you must
follow the instructions in this letter for COHPLYING WITH
THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING
PROOF OF INSURANCE. You should ~ollow ALL instructions very
carefully. Even 1~ you have served all the tlme on the
suspension/revocation, we cannot restore your driving priv-
ilege until all the requirements are satisfied.
COHPLYING NITH THIS SUSPENSION
You must return all current Pennsylvania driver's licenses,
learneres permits, temporary driver's licenses (camera
cards) in your possession on or before' 07/21/2003. You may
surrender these items before, 07/21/2003, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU HAY NOT RETAIN YOUR DRZVER"S LICENSE FOR ZDENTZFZCATION
PURPOSES. However, you may apply, for and obtain a photo
identification card at any Driver 'License Center for a cost
of $10.00. You must present two ¢2) forms of proper iden-
tification Ce.g., birth certificate, valid U.S. passport,
marriage certificate, etc.) in order to obtain your photo
identification card.
You wt1! not recelve credit toward serving any suspension
untll we recelve your license(s), complete the following
steps to acknowledge this suspension.
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 nora-
05160719510483!
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 17106-6693
Upon receiPt, review and acceptance of your Pennsylvania
driver's license(s), [earner'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.
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
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.
$. Follow the payment and mailing instructions on the back
of the application.
PROVIDING PROOF OF INSURANCE
Within the last $0 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.
Z~DOP~ant: 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.
0 '~'~,,)719510~831
APPEAL
YOU have the right to appeal this action to the Court of
Common Pleas (C/vi! Division) ~ithin 30 days of the mail
date, JUNE 16, 2003, of this /etter. I~ you ~11e an appeal
tn the county Court, the court wtll glve you a time-stamped
certt~ted cody of the appeal. In order for your appeal to
be valid, you must send this time-stamped certified copy of
the appeal by certified mail to:
Pennsylvania Department of Transportation
Off/ce of Chief Counsel
Third Floor, Riverfront Off/ce Center
Harrisburg~ PA 1710~-2516
Remember, this is an OFFZCZAL NOTZCE OF SUSPENSION. You
must return all current Pennsylvania driver license products
to PennDOT by 07/21/2003.
Sincerely,
Rebecca L. 8ickley, D/rector
Bureau of Driver Licensing
INFORMATION 7:00 a.m. to 9:00 p.m.
IN STATE 1-800-932-~600 TDD IN STATE
OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE
WEB SITE ADDRESS www.dot.state.pa.us
1-800-228-0676
717-391-6191
EXHIBIT B
IN THE C(;URT OF COME .... ~'LEAS, COUNTY OF .... ~ -i.~-N~... ............. ; ....................
Noiice of Appeal fr.~,.'P Summary Criminal Co~,.;ctlo. '
ar~ Addr~'ol Defendant:
tlen A. _M~-~lroy
7 Gr/ms Mill Road
yertown, PA 19512
Da,e:.--6./..4./..g.~. ........... i ......
,ss,,ng ~t~,,ty ~ke, ,o.......~=9..0...0.9!.6.l.r.9..3. ..........
cit,ti~ ~o.....~.2..~.~..°.~..°..~.-..~. ...............................................
Magisterial District N0.,.....0..9...-...3.~...0...3. .....................................
n- ceo License Sus~ion * '
5/21/03 Pa. C.S. §6308: Purchase, consumption,
Sentence: ............................................ ~tense(s) ot w~ich con~cted ..............................................................................................
,.~.~.e..~.~.?..n...o..~. ~.~..r.~..t.~..o...n..oZ .~.~..o..r..,er. ~tt.....o...r., .~.r.~ ~v.~.,.~es ......................................................................
%e end mailing address of affiant es shown on citation
Officer Robert Shumaker
:omplaint .......................................................................................
~ddlesex T~wnship Police Department
]0 N. MJ~]esex Road, Carlisle, PA 17013
ne and address o! issuing authority:
~san K. Day
29 Mill Street, Box 167
t. H~lly Springs 17065
486-7672
If sentence includes fine and costs, amount o'! wflich paid:
$417.00
Type or amount of bail lurni:~hed to issuing authority, if any:
Attorney for DJHel~ant: .--.
.... Gregory H. Knight
_ 19 Brookwood Avenue - 249-5373
street) ................................................................... ~none ..................................
Suite 106
(,~ ess)._....c~...%i..s..1..e..,... ,P.A. ........ Z,,..!7.Q!3 .....................
IOTICE TO DEFENDANT:
! your apl:~al is from a motor vehicle conviction other than parking, have the clerk of courts certify this copy and
nail t0 the followin9 address:
Penn. Dept. of Transportation
PO Box 60037
Harrisburg, PA 17106
: hereby certify that an appeal has been filed in the above captioned matter.
KELLEN ANDREW MCELROY, :
Appellant :
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
03-3140 CIVIL
VS. ~
COMMONWEALTH OF PA, :
DEPT. OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING:
Appellee :
IN RE: PETITION FOR APPEAL FROM LICENSE SUSPENSION
ORDER
AND NOW, this /6' r day of July, 2003, a hearing in the above captioned matter is
set for Friday, October 3, 2003, at 2:30 p.m. in Courtroom Number 4, Cumberland County
Courthouse, Carlisle, PA.
The motor vehicle license suspension in this case is stayed pending the disposition of this
appeal.
BY THE COURT,
Gregory H. Knight, Esquire
For the Appellant
George H. Kabusk, Esquire
For PennDOT
:rim
TARA RENEE FREEMAN,
DOUGLAS R. FREEMAN,
Plaintiff
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01 - 3140 CIVIL TERM
iN DIVORCE
AFFIDAVIT OF CONSENT
1. A complaint in divome under section 3301(c) of the Divorce Code was filed on May 23, 2001.
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the
date of the filing and service of the Complaint.
3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of
the decree.
I verify that the statements made in this affidavit are true and correct. 1 also understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification to
authorities.
Date: ~r ~/ 'O 3 Douglas~ Freeman, Defendant
WAIVER OF NOTICE OF INTENTION
TO REQUEST ENTRY OF A DIVORCE DECREE
UNDER ~3301(c) OF THE DIVORCE CODE
1. I consent to entry of a final decree of divorce without notice.
2. I undemtand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses
if I do not claim them before a divorce is granted.
3. I understand that 1 will not be divomed until a divorce decree is entered by the Court and that a copy of
the decree will be sent to me immediately after it is filed with the Prothonotary.
I verify that the statements made in this affidavit are tree and correct. 1 understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities.
Date: 5' ~/- ~ 3 Dou"'gl~s~ Fr[an~~, D~feridant
KELLEN ANDREW McELROY,
Appellant
: IN THE COURT OF COMMON PLEAS FOR
: CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA: NO. 03-3140
DEPARTMENT OF TRANSPORTATION :
BUREAU OF DRIVER LICENSING, :
Appellee : CIVIL ACTION - LAW
PETITION FOR WITHDRAWAL OF APPEAL
AND NOW, comes the Appellant, by and through his Counsel of record, Gregory H. Knight,
Esquire, to file a Petition for Withdrawal of Appeal, in support of which the following statements
are made:
1. On August 12, 2003, the Appellant was found not guilty of the 18 Pa. C.S. 6308
violation docketed at 03-1257 Criminal. A copy of the Order signed by the Honorable Edgar B.
Bayley is attached as Exhibit A.
2. On August 27, 2003, George H. Kabusk, Esquire.., Assistant Counsel, Pennsylvania
Department of Transportation sent a letter to Appellant's Counsel advising that the Department had
rescinded and deleted the Section 6308 violation and associated suspension, and that the hearing
scheduled on October 3, 2003 at 2:30 p.m. on the on the license appeal would not be necessary. A
copy of said letter is attached as Exhibit B.
3. George H. Kabusk, Esquire, Assistant Counsel fi>r the Pennsylvania Department of
Transportation, concurs in this Petition.
WHEREFORE, pursuant to Paragraphs 7 and 8 of the Petition for Appeal from License
Suspension filed by Appellant on July 31, 2003, the Appellant :respectfully requests that the Court
issue the proposed Order attached to this Petition to withdraw the appeal and cancel the hearing
scheduled for October 3, 2003.
HANFT & KNIGHT, P.C.
Gregory bl. Knight, Esquire
Attorney I.D. No. 30622
19 Brookwood Awmue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorney for Appellant
CCi
George H. Kabusk, Esquire
Attorney for Commonwealth
EXHIBIT A
COMMONWEALTH :
:
:
V. :
:
:
KELLEN ANDREW MCELROY :
IN THE CO~T OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03-1257 CRIMINAL TERM
CHARGES: .APPEAL FROM SUMMARY
DISORDERLY CONDUCT
AFFIANT: !PTL. ROBERT SHUMAKER
IN RE: DEFENDANT PLEADS GUILTY AND SENTENCED
ORDER OF qQURT
AND NOW, this 12th day of Aug'ust, 2003,'defendant
having appeared on an appeal on Citation P2650506-5 and tendered
a plea of guilty to a count of disorderly conduct in violation
of Section 5503 of the Crimes Code, that plea being entered in
full satisfaction of 'the charge at this term and number, the
plea is accepted and recorded. I find defendant not guilty of
violating Section 6308 of the Crimes Code.
Sentence is that you pay the .costs of prOsecution and
a fine of $3OO..OO.By t ~~~.~o~
Edgar . Bayley, ~ J.
Jaime M. Keating, Esquire
Chief Deputy District Attorney
Gregory H. Knight, Esquire
For Defendant
Probation
District Justice Day
Sheriff
prs
EXHIBIT B
Z[I I'~OL'LIL
O[8['LgL'LIL :3NOHd]3]J.
'I3~NQ03 3~3N3D t0 ])lJJO ~,llON~l]A09
Gregory H. Knight, Esquire
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013 -9142
05
Re: Kellen Andrew McElroy v. Commw. of Pa., DOT, BDL, Cumberland County,
2003-3140, Civil, License Suspension Appeal
Dear Mr. Knight:
The Department is in receipt of information that indicates that upon appeal of the
violation of Section 6308 of the Crimes Code, violation date May 2, 2003, thc charge was
amended to Disorderly Conduct.
Please be advised that the Depa~hnent corrected its records and rescinded and deleted the
6308 and the associated one year suspension. See attached print-outs confirming the same.
A hearing is scheduled for October 3, 2003, at 2:30 p.m. in Courtroom No. 4,
Cumberland County Courthouse, Carlisle. As a result of the motorist's record being corrected, a
hearing is not necessary. The matter could be disposed of by you withdrawing the appeal or by
having a hearing and having the matter dismissed of as moot. If you choose to file a praecipe to
withdraw, kindly provide me a copy of the praecipe so that I may close-out my file.
If you have any questions, please feel free to call me.
Enc.: 1
Sincerely,
Assistant Counsel
915[-I,01LI Vd aJnqs!,'eH
sa~JlS lu0q qln0S 1011
u0!s!A!(l M~1 ~eJl ~ ap!q~A - l]~NI103 JIlH3 J0131110
KELLEN ANDREW McELROY,
Appellant
: 1N THE COURT OF COMMON PLEAS FOR
: CUMBERLAND COUNTY, PENNSYLVANIA
:
COMMONWEALTH OF pENNSYLVANIA: NO. 2003-3140
DEPARTMENT OF TRANSPORTATION :
BUREAU OF DRIVER LICENSING, :
Appellee : CIVIL ACTION .- LAW
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a true and correct copy of the foregoing Petition
to the following person at the address below:
Service by United States Mail:
DEPARTMENT OF TRANSPORTATION
Office of Chief Counsel
ATTN: George Kabusk
Third Floor, River Front Office Center
Harrisburg, PA 17104
Date:
Respectfully submitted,
HANFT & KNIGttT, P.C.
Gregory H./Knight, Esquire
Supreme Court 1.1-). #30622
Attorney for Appellant
19 Brookwood Avenue, Suite 106
Carlisle, PA 1701:3-9142
(717) 249-5373
KELLEN ANDREW McELROY,
Appellant
: 1N THE COURT OF COMMON PLEAS FOR
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA: NO. 03-3140
DEPARTMENT OF TRANSPORTATION :
BUREAU OF DRIVER LICENSING, :
Appellee : CIVIL ACTION - LAW
ORDER OF COURT
ANDNOW, this /?' day of September, upon consideration of Appellant's Petition for
Withdrawal of Appeal, it is hereby ORDERED that the above referenced appeal shall be marked
withdrawn and the hearing scheduled on October 3, 2003 at 2:30 p.m. is cancelled.
BY THE COURT,
Distribution:
Gregory H. Knight, Esquire
Attorney for Appellant
George H. Kabusk, Esquire
Attorney for Appellee