HomeMy WebLinkAbout01-6025GREGG R. CARIGNAN
COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS OF
DEPARTMENT OF TRANSPORTATION : CLrMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
PETITION FOR NUNC PRO TUNC APPEAL FROM ORDER
OF DEPARTMENT OF TRANSPORTATION
SUSPENDING OPERATOR'S LICENSE
TO THE HONORABLE, THE JUDGES OF SAID COURT:
The Petitioner, GREGG R. ~R.IGNAN respectfully represents as follows:
1. The Petitioner is GREGG R. ~ARIGNAN, an adult individual who resides at 649~"
Carlisle Pike, Mechanicsburg, PA. 17055.
2. That by a Notice dated June 28,2001, Petitioner was advised by the Pennsylvania
Department of Transportation that his operating pr/vileges were being suspended for a period of
twelve (12) months effective August 2, 2001. A copy of this suspension notice is attached to this
Petition as Exhibit 1.
3. That your Petitioner appealed the underlying violation referenced in the Notice from
PennDOT and the District Justice conviction referenced in the PennDOT Notice is not final. A
copy of the summary appeal is attached to this Petition as Exhibit 2.
4. That as a result of said appeal, there is no final conviction of Section 1543A of the
Pennsylvania Vehicle Code and, therefore, said suspension is improper and an abuse of
discretion on the part of the Department of Transportation.
5. That Petitioner believed that the appeal from the underlying traffic citation served as
an appeal from the notice of suspension from PennDOT and that his suspension would stayed
during his appeal and would be vacated if his appeal was susta'med.
6. That Petitioner filed a pro se motion for an emergency stay or supersedeas with this
Court at 01-1535 [the docket number of the appeal fi:om the summary conviction]further
manifesting Petitioner's confusion about the interrelationship between his summary appeal and
the Department's action to suspend Petitioner's license to drive. A copy of the motion and
resulting order of supersedeas is attached hereto as Exhibit 3.
7. That Petitioner did not learn that this petition was necessary to appeal the license
suspension until October 4th, 2001 when Petitioner consulted with a lawyer to provide
representation at the summary appeal scheduled for a hearing on October 9, 2001 in the Court of
Common Pleas of Cumberland County.
8. That, after a de novo hearing on October 9,2001, Petitioner was found Not Guilty of
the underlying offense of Driving Under Suspension by the Hon. J. Wesley Oler, Jr.
9. That the Pennsylvania Department of Transportation does not concur with this
petition.
WItEREFORE, Petitioner respectfully prays that this appeal be allowed; that a hearing
de novo be granted to determine whether Petitioner is subject to suspension of his operator's
license; that this appeal act as a supersedeas pending said hearing; and that upon conclusion
thereof Petitioner's operating privileges be restored to him.
Respectfully submitted,
By (~v~ (~ ("P~-.~
Gre~ Ca~i~nan ?etifloner
3507 Margo Road
Camp Hill, PA 1701 1~
(717) 796-6648
I verify that the statements made in the foregoing Petition are tree and correct. I
understand that false statements herein are made subject to the penalties of Pa. C.S. § 4904,
relating to unsworn falsification to authorities.
~z ~Grel~g'R~Zari~ -
COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS OF
DEPARTMENT OF TRANSPORTATION
V.
GREGG R. CARIGNAN
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO.
CERTIFICATE OF SERVICE
I hereby certify that on this date, October~_~, 2001 I mailed a copy of Petitioners Petition
for Nunc Pro Tunc Appeal From Order of Department of Transportation Suspending Operator's
License and Preliminary Court Order to the following person at the following address by U.S.
Mail, Certified, postage prepaid, return receipt requested:
Office of Chief Counsel
Pennsylvania Department of Transportation
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: JUNE 28, 2001
GREGG R CARIGNAN
6495 CARLISLE PK
MECHANICSBURG PA 17055
WID # 011729283621043 001
PROCESSING DATE 06/21/2001
DRIVER LICENSE t 18732374
DATE OF BIRTH 01/22/1960
Dear MR. CARIGNAN:
This is an Officia! Notice of the Suspension' of your Driving
Privilege as authorized by Section 1543 of the Pennsylvania
Vehicle Code. As a result of your 06/20/200! conviction of
violating Section 1545A of the Vehicle Code DRIVING WHILE
SUSP/REVOKE on
Your driving privilege is SUSPENDED fop a period of
YEAR(S) effective 08/02/2001 at 12:01 a.m.
Before PennDOT can restore your driving privilege, YOU must
follow the instructions in this letter for CONPLYING NITH
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
privilege until all the requirements ape satisfied.
COMPLYING WITH THIS SUSPENSION
You must return all current Pennsylvania driver's licen=es,
learner's permits, temporary driver's licenses (camera
card=) in your possession on or before 08/02/2001. You ~ay
surrender these items before, 08/02/2001, for earlier
credit; however, You may not drive after these items are
surrendered,
YOU MAY NOT RETAZN YOUR DRZVERmS LZCENSE FOR ZDENTZFZCAT%ON
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
identification (e.g., ' birth certificate, valid U.S.
passport, marriage certificate, etc.) in order to obtain
Your photo identification card.
You will
until we
steps to
not receive credit toward serving any suspension
receive your license(s). Complete the following
acknowledge this suspension.
011729283621043
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
notarized letter stating You are aware of the suspension
of your driving privilege· You must specify in your
Ietter 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 o~ Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8695
2. Upon receipt, review and acceptance of your Pennsylvania
driverms license(s), learner's Permit(s), and/or a sworn
notarized letter, PennDOT will send you a receipt
confirming the date that credit began. If you do not
receive a receipt from us within $ 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
products, 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 fi?st
page) on the check or money order to ensure proper
credit.
3. Follow the Payment and mailing instructions on the back
of the application.
0117292836210q3
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
insurance at that time. This ietter will list acceptable
documents and what will be needed if you do not own a vehicle
registered in Pennsylvania.
Zmpoptant: Please make sure that
move from your current address.
your address change by calling
listed at the end of this letter.
PennDOT is notified if you
You may notify PennDQT of
any of the phone numbers
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within $0 days of the mail
date~ JUNE 28, 2001, of this letter. Zf You file an appeal
tn the County Court, the Coupt w111 glve you a time-stamped
certified copy of. the appeal. In order ~or your appeal to
be valid, you must send this time-stamped certified copy of
the appeal by certified mail
Pennsylvania ~epartment of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516
Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZON. You
must return al/ current Pennsylvania driver license products
to PennDOT by 08/02/2001.
Sincerely,
Rebecca L. Bickley, Director
Bureau of Driver Licensin.q
SEND FEE/LICENSE/DL-16LC/TO:
Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8695
INFORMATION (7:00 AN TO 9:00 PM)
IN STATE 1-800-932-4600
OUT-OF-STATE 717-$91-6190
TDD IN STATE 1-800-228-0676
TOD OUT-OF-STATE 717-591-6191
Name ar~ mailing address of affiant as shown on citation
If senle~ce i~=k.x~es lee and co~s, amount o~ whk~ paid:
Ty~e or amount of ball furnishnd~ to)ssuing authority, if any:.
Name and adclress ~ J
Atlomey for
NOTICE TO DEFENDANT: ~ j"~
If your appeal is from a motor vehicle conviction other than p~rking, have the clerk of courts cml, i~ thi¢'~,?py and '
mail to the following address:
Penn. Dept. of Trcmsportotlea
PO Box 60037
Harrisburg, PA 17106
I hereby certify that an appeal has been filed in the above captioned~
SEP ~ ?
IN THE COURT Of COMMON PLEAS
OF CUMBERLAND COUNTY
PENNSYLVANIA
COMMONWEALTH
GREGG CARIGNAN
SUMMARY CRIMINAL
01-1535
ORDER OF THE COURT
AND NOW, this__~_~_?___day of September, 2001, i t i s the
order of this court, upon consideration of the petition of the defendant,
that the action of the Department of Transportation, in regards to the
suspension of his driving privileges, is hereby stayed and the defendant,
Gregg Carignan, is permitted to resume his driving privileges.
BY THE COURT,
, Jbdge
Office of District Attorney
Gregg Carignan
3507 Margo Road
Camp Hill, PA 17Oll
PA Dept. of Transportation
Bureau of Driver Licensing
Harrisburg, PA 17104-2516
A TRUE COPY FROM RECORD
In Testimony whereof, I here unto set my hand
and the seal of said Court at Carlisle, PA.
This/~'-day of~ .~'~<.~-/' ,20_.~'
/" ,~'3~ Clerk of the Co-~
~]"'~_~r' d Cumber,and County
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
PENNSYLVANIA
COMMONWEALTH
GREGG CARIGNAN
SUMMARY CRIMINAL
O1-1535
EMERGENCY PETITION FOR A STAY OR SUPERSEDEAS
The defendant, Gregg Carignan, residing at 6495 Carlisle Pike
Cumberland County seeks relief from the sanctions placed upon him by the
Department of Transportation which revoked / suspended the defendant's
operating privileges on August 2, 2001 based solely on a citation
A5491067-1 which is under appeal in the Court of Common Pleas of this
county,
1. The defendant i s a resident of 6495 Carlisle Pike, Mechanicsburg
PA, Cumberland County, for the more than twenty years, is a father of
three children and spouse to his handicapped wife.
Z. Gregg's only current source of income is raising money by selling
personal items at flee markets and works at Root's Auction., in Lancaster
County, without his drivers license these income sources ~ire u~vailable
robbing him of his ability to earn the meager moneys thes~Ebur~s
provide to survive, pay bills, and support his family.
3. Gregg's wife is handicapped is unable to drive.
4. On or about March 23, 2001 Officer Miller, of Upper Allen Township
police department, stopped Gregg in the 1 O0 block of Gettysburg Pike, a
Pennsylvania Department of Motor Vehicles check reviled that Gregg's
license was suspended, to which Officer Miller seized Gregg's Drivers
License, (receipt of which is attached hereto as exhibit (A)), told him not
to drive and issued citation # A5491067-1 charging that he violated 75
subsection 1543 subsection (a).
5. On or about March 26, 2001 Gregg went to Penn Dot to inquire as to
the reason for the suspension at which time Gregg requested a letter
attached as exhibit (B) which confirms that the suspension notice was
returned to the Department.
6. Gregg never received the notice of suspension and was unaware that
the Department had taken such an action.
7. On June 28, 2001 before D.J. Elder Gregg was found guilty of
violating 75 subsection 1543 subsection (a) Citation # A5491067-1,
Gregg apprised the DJ of the Commonwealth v. Kane, 460 PA 582, 333 Ad
925 (1975) findings and president, which she ignored, due to what can
only be described as a personal dislike of the Defendant as supported by
her conduct and remarks toward and about the Defendant at the hearing.
8. July 19, 2001 Gregg filed an appeal to the DJ verdict with ~he Clerk
of Courts of Cumberland County as per Exhibit (C) .
9. On September 7, 2001 Gregg was at Penn D.O.T., to renew a trailer
registration, and had a search of his license done which revealed he was
under suspension due to his conviction of Citation # A5491067-1 the
same one appealed as per exhibit (C).
10. Gregg conversed with legal staff from the Department that the DJ
verdict had been appealed, staff said "...nothing stops the Department from
imposing sections until the appeal is overturned".
11. It is unfair to impose sanction upon Gregg until final disposition of
the underlying citation has been finally adjudicated.
1Z. The department has turned justice upon its head and violated
Gregg's due process rights to notice, hearing on the merits and ~
sanctions before final adjudication of the underlying citation
13. The departments actions are detrimental to the Defendant's
livelihood and his ability to operate independently in a society which
demands mobility and speed in which to survive and prosper.
14. The Defendant does not poses a danger to the safe operation of motor
vehicles in this Commonwealth as this suspension was not due to a
moving violation, D.U.I., or any other violation which would give rise to the
petitioners ability to safely interact with other motorist upon the roads
of this state.
15. The granting of this stay will not adversely affect the health,
safety, or welfare of the state but re-establishes the status quo.
Black's Law Dictionary delineates as:
Actual notice has been defined as notice expressly and actually
given, and brought home to the party directly. The term "actual
notice, "however, i s generally given a wider meaning as embracing
two classes, express and implied; the former includes all
knowledge of a degree above that which depends upon collateral
inference, or which imposes upon the party the further duty of
inquiry; the latter imputes knowledge to the party because he i s
shown to be conscious of having the means of knowledge. In this
sense actual notice i s such notice as i s positively proved to have
been given to a party directly and personally, or such as he i s
presumed to have received personally because the evidence within
his knowledge was sufficient to put him upon inquiry.
Id. at 1061-1062 (6th ed. 1990).
Still, our supreme court has plainly held that proof of actual notice
of suspension remains a necessary element of 75 PA C.S.A. subsection
1543. See Commonwealth v. McDonough, 533 PA 283, 621 A.2d 569
(1993). See also Commonwealth V. Homey, 365 PA Super. 152, 529 A.2d
18 (1987); Commonwealth v. 8urkett, 300 PA Super. 72, 445.2d 1304
(1982). Notice is, therefore, a judicially created element, designed to
protect a defendant's due process rights.
In Dietz, Commonwealth v. Dietz, 423 PA Super. 366, 621 A.Zd 160
(1993), the court held that in order to invoke the ~no notice" defense, it is
a necessary condition that the defendant establish at trial that a current
driver's license was produced at the time of the offense or within 15 days
thereafter as provided by subsection 1511 (b).
Id. 600 A.2d 1326, 443 Pa. Super. 23, Com. v. Crockford, (Pa. Super.
1995)
The defendant in this action presented his drivers license to the
officer as per Exhibit (A) and the letter from the Department of
Transportation, Exhibit (B) confirms that the defendant did not receive
notice of this suspension thus logically the defendant can not be held in
violation of the citation #A 5491067-1. It is not the intent of the
petitioner to argue the merits of his defenses but to put forth a showing
that on the merits the defendant should prevail in his appeal.
Upon consideration of the petition herein the defendant prays for the stay
requested until finial adjudication of the underlying citation is heard.
Respectfully submitted,
Gregg ~.~rignan -
3507 Margo Road
Camp Hill, PA 17011
(717) 796-6648
Date; September 17, 2001
OCT 1 9
COMMONWEALTH OF BENNSYLYANIA: IN THE COURT OF COMMON BLEAS OF
DEPARTMENT OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA
GREGG R. CARIGNAN
: CIVIL ACTION - LAW
NARY C. OURT ORDER
dayof October, 2001, upon consideration of the within
AND NOW, this
Petition for Appeal Nunc Pro Tunc, and on motion of Gregg R. (~grignan, the Petitioner, a Rule
is hereby issued upon the Pennsylvania Department of Transportation to show cause why this
Petition for Appeal Nunc Pro Tune should not be granted and why a hearing should not be
scheduled to determine whether the action of the Department of Transportation in suspending
Petitioner's operating privileges should be set aside.
TI-IlS RULE IS RETURNABLE at a heating which is fixed for the (7/ ]'~day of
(~,t~f ,2001, at ~'9-~c~ o clock ,/°Alvl., in Courtroom Number
~ /~, and the Pe/(tioner shall give the Department of Transportation thirty (30)days' not,ce
forthwith.
This appeal shall act as a supersedeas to the Department of Transportation's suspension of
the Petitioner's operating privileges until further Order of this Court.
BY THE COURT.:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
GREGG R. CARIGNAN
IN THE COURT OF COMMON PLEAS OF
CUMBERLAIqD COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO. 01-6025 CIVIL TERM
ORDER OF COURT
AND NOW, this 4th day of January, 2002, the matter
having been called for hearing, and the defendant, Gregg R.
Carignan, having won his initial hearing wherein he was charged
with a violation of Section 1543 of the Vehicle Code, and having
been found guilty by the District Justice on 6/20/01, defendant's
appeal of the department's suspension is sustained. However, the
appeal is moot in that the department has already corrected their
records, eliminating any suspension, and the defendant's operating
privileges have been restored as of October 18, 2001.
By the Court,
~George H. Kabusk, Esquire
For the Commonwealth
~/Gregg Carignan, Defendant Pro Se
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