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Home My WebLink About01-6243 CHRISTIAN N, MCADOO IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 01 - la,;).4:J c~oJ, 'T~ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING 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: 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, 91581 et sea, 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, 91581 et sea, 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; e, The Pennsylvania Bulletin, as well as the drivers license compact at 75 Pa, C,S, 91581 et sea, and the Administrative Procedures Manual clearly 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; f, 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; i. The alleged conviction is not for a similar charge; j, 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 ; I. 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 materia 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: /=-7.6' -e/ By /d~ David E, Hershey, Esquire 1.0,#43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 3 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 unsworn falsification to authorities, Date: ~N' M~AL. Christian N cAdoo 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~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 17104-2516 " By: /-~k 4- David E, Hershey, Esquire MANCKE WAGNER HERSHEY & TUllY COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 09, 2001 CHRISTIAN N MCADOO 739 SHERWOOD DRIVE CARLISLE PA 17013 WID I 01275bl021b470b 001 PROCESSING DATE 10/02/2001 DRIVER LICENSE I 24773918 DATE OF BIRTH 11/13/1978 Dear MR. MCADOO: This is an O~~icial Notice o~ 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 ~o~ a pe~iod o~ 1 YEARCS) e~~ective 11/13/2001 at 12:01 a.m. . Your driving record reflects a violation on 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 ~ollow ALL inst~uctions ve~y ca~e~ul1y. Even:!. of ~IQU have se!'ved all the time on the suspension/~evocation, we cannot ~esto~e YOu~ d~iving p~iv- ilege until all the ~equi~ements a~e satis~ied. 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 C 2) forms of proper iden- 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 licensees), 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. Oi2756i02164706 PROVIDING PROOF OF INSURANCE Wi thin 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. If 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 IN STATE OUT-OF-STATE WEB SITE ADDRESS INFORMATION 7:00 a.m. to 9:00 p.m. 1-800-932-4600 TDD IN STATE 717-391-6190 TDD OUT-OF-STATE www.dot.state.pa.us 1-800-228-0676 717-391-6191 ?0 fl ~ ~ (:) -4J.. ~ 'i ~ ~ Yi ~ \Y ~ (9 6 ~ ~ I CO '\v U I ~~ '-.....(........... () c: s: Cl n" 0 52 -;j r'J1fil '- J I~ ;:; ,:~1 G ;;,;:., -",. .' ~,) 'b ~8 ~ /~~;~~~:; z " '- ..., . ) "', -< t~ 5; -< CHRISTIAN N. MCADOO, Plaintiff IN THE COURT OF COMMON PLEAS OF 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 AND NOW, this ORDER ~riI. day of . ,2002, the appeal of the plaintiff from the ~r1 order suspending his driver's license is SUSTAINED. BY THE COURT, David E. Hershey, Esquire For the Plaintiff ~ ~ 5/6>/6;),,' A.~ 4J George Kabusk, Esquire For PennDOT :rlm CHRISTIAN N. MCADOO, Plaintiff IN THE COURT OF COMMON PLEAS OF 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 ajob on June 10,2001, with the offices ofM & 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 01-6243 CIVIL effect that no equal protection rights are violated just because ARD would have been available to a licensee 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.. Dent. ofTransn., 562 Pa. 60, 66, 753 A.2d 233, 236 (Pa. 2000). In Grover v, Com.. Dent. of Transn.. 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. 2 01-6243 CIVIL 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 ifhe 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,. Dept. 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 3 01-6243 CIVIL 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. AND NOW, this 3~ ORDER l:~~x day of . ,2002, the appeal of the plaintiff from the order suspending his driver's license is SUSTAINED. BY THE COURT, David E. Hershey, Esquire For the Plaintiff If/.. George Kabusk, Esquire For PennDOT :rlm 4 "" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RNERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 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 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. Aoopyofthedockotenlrie",reattachedhore'o. -: .~. J " - TERRANCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 '- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 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 vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A NO. 01-6243 Civil Term Reauest 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 -. '- Cumberland County Prothonotary's Office Civil Case Inquiry Page 1 PYS510 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 3:32 0/00/0000 0/00/0000 ******************************************************************************** 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 5/03/2002 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- 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 - - - - - - - - - - - - - - LAST ENTRY ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adi End Bal * ******************************************************************************** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 ------------------------ ------------ 45.50 45.50 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** f RUe: copy FROM RECORD '- "0 set my Ilane In Testimony wnereot, I flere unt ' ...4 tloft ~^^I 01 saki C{luft at Carlisle. Pa. ,,~ -- ""~ rhl~ 14> ~"!_ 01 ,e ~k, ~ ~ Prothono ".. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 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 vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A 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 ofPa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter Cumberland County Courthouse I Courthouse Square Carlisle, P A 17013 David E. Hershey, Esquire Att. for Appellee McAdoo 2233 North Front Street Harrisburg, P A 17110 C>~~~.~(~ DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: May 16, 2002 ~ CHRISTIAN N. MCADOO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V 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 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:~, 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, I 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, P by/81fvTd E, Hershey, Esquire 130 West Church Street Suite 100 Dillsburg, PA 17019 (717) 432-9666 ID No,: 43092 C? s" .-,?, ~2~ cJ <./1, f' , "-0 ('0.' 0'" ~\ ::t::<:J f\'C, ""'\C.~ ~..~ 'lb C~~ ~ -'0 -::L u' .' o o 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 . 1 2 3 4 MR. KABUSK: MR. HERSHEY: THE COURT: MR. KABUSK: Good morning, Your Honor. Good morning, Your Honor. Good morning. 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 of suspension 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 of one 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 . 1 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 THE COURT: And I think you meant to say 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 in accordance with the business records and 4 ~ 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 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? S 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 lS 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. S. 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, 2S 17C-S-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-l-l-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 24 25 Q And how long have you been employed at the Department? A Twenty years. 7 1 2 3 4 Q A Q A What is your title? Manager, court services. And what are your duties? 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How does the Department receive reports of conviction from the State of West Virginia? A The DMV's forward the reports of conviction, either by citation or court document to us, for processing. Q How does the Department receive the report from West Virginia? A From the DMV in an envelope. Q How does the Department process those reports? A They are opened by a clerk who then makes a copy of the envelope that the citations corne in. The envelope is placed in front of the pack of the citations which were in those envelopes -- in an envelope. Q Does the Department keep a record of the reports? A Yes. 8 1 2 3 4 5 6 7 8 9 10 Q Does the Department keep a record of the envelopes? A Yes. Q How does the Department keep a record? A Microfilm. Q Additionally, does the Department stamp items with an identifying number? A When we process it, we stamp it with the WID identification number, yes. 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 19 20 21 22 23 24 25 A That's what we call our bud sheet. That's the beginning sheet of our processing which locates it for microfilm purposes. And has the WID number, the year, the day, the operator, and the sequence number of processing on it to identify the documents behind it. Q What day would that have been? A I believe it is October the 2nd. Q If I showed you a Julian calendar date 9 1 chart, would that help you? 2 3 A Yes. MR. KABUSK: May I approach the witness, 4 Your Honor? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Go ahead. BY MR. KABUSK: Q Looking at a Julian calendar date, could you tell me the date? A October the 2nd. Q And how did you determine that from the WID number? A Day 275 equals October the 2nd in the regular calendar. Q Now, on the WID number, how did you determine what day it was? A On the WID number? Q A Q A Q A Yes. By the day 275? Would that be the That would be the 2nd of October -- the 2nd. The third, fourth and fifth entry? Right. Q What would be the first and second entry of the WID number? A That's the year. 10 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 10 11 12 13 14 15 16 17 18 19 20 Q Now, can you determine if that envelope was the one, Sub-exhibit 2, was the envelope that the Department received that report of conviction, which is marked as Sub-exhibit 3? A Yes. It is filmed with the actual document. Q So that is the envelope that the Department received that report of conviction in? A It is. Q Where did that envelope originate? the sender? A The Division of Motor Vehicles in Charleston, West Virginia. Who was 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. 11 1 2 3 MR. KABUSK: May I approach the witness, Your Honor? 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 9 processed? 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 15 16 17 18 19 20 21 22 23 24 25 Q Additionally, did you bring any other documents with you? A I brought another copy of the envelope that we do receive from West Virginia. Q And would you describe that envelope, please? A It is an eight by eleven and a half manila envelope with a white legal envelope attached to it with the DMV's address addressed to my office at 1101 South Front Street. Q Now, this envelope that you are just describing, this manila envelope that was in your hand, is 12 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 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 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Beginning with Exhibit 2, and I guess it would be Sub-exhibit 2, which is what appears to be the microfilm of an envelope from the Division of Motor Vehicles in West Virginia. Do you see that? A Yes. Q Are we in agreement that the postmark on that envelope has not been reproduced for purposes of this exhibit? A That's correct. Q Okay. And can you tell me where there is any authority within the exhibit to indicate when this envelope was received from the Division of Motor Vehicles? A No more than the WID date on when it was processed. 14 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 6 7 A Q A Yes. Is that accurate? 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 11 12 13 14 15 16 17 18 19 20 21 22 correct? A Q That's correct. And although you are in charge of the Court Certifications Unit, you are not indicating to this Court that you actually processed this particular conviction, is that correct? A I did not process this conviction, that's Q Okay. You had made a reference in your testimony something to the effect that the clerk made a mistake with respect to Sub-exhibit 2 of Exhibit 2, is that your testimony? A I said she was not careful. correct. 23 Q Okay. Your duties as manager of the Court 24 Services Section means that you are an employee within the 25 Department of Transportation, is that correct? 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A Yes. Q And it is your testimony here today that you are familiar with the exhibits that have been marked as Department's Exhibit No.1 and No.2, is that correct? A That's correct. Q Do you know who prepared the certification page of those two exhibits? MR. KABUSK: Objection, Your Honor. It is out of the scope of the Department's exam. THE COURT: I am sorry. Could you repeat yourself? I didn't hear what you said. MR. KABUSK: It is out of the scope of the Department's cross-examination of the witness. THE COURT: He is going beyond the scope of your direct? MR. KABUSK: He is beyond the scope of my 17 direct, yes, Your Honor. 18 19 THE COURT: Do you want to respond to that, 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 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 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? THE COURT: Your objection is overruled. Go 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 5 6 7 8 9 10 11 12 13 14 15 16 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? A Q A No. Do you know who did? No, I don't. MR. HERSHEY: Thank you. I have no further questions. THE COURT: MR. KABUSK: Anything else? I move for the admission of what's been marked as Commonwealth's Exhibit No.1 through 7. THE COURT: Very well. We will admit them subject to your objection. 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 25 DIRECT EXAMINATION BY MR. HERSHEY: 18 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 Q State your name and your residence address for the record, please? A Q A Q A Q A Q A Q A Q A Christian McAdoo, 1538 Holly Pike, Carlisle. Are you employed, Mr. McAdoo? Yes, I am. Where are you employed? For M & T Bank in Carlisle also. How long have you been employed there? Since June 18th, 2001. Prior to June 18th were you employed? No. What were you doing before June 18th? I was in school. Where? Washington & Jefferson College in Washington, Pa. Q Have you since graduated from that school? A Yes. Q Were you involved in a traffic stop in Star City, West Virginia? A Yes. Q And do you recall the date of that traffic stop? A Q March 2nd. Of what year? 19 1 2 3 4 5 6 7 8 9 10 11 12 13 A 2001. Q As a result of that traffic stop were you cited for an offense? A Yes. Q Was it an offense of a DUI nature? A Yes, it was. Q Okay. And as a result of that citation did you retain counsel? A No. Q Were you required to appear in court in West Virginia? A Q Yes, I was. 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 1 2 3 4 5 6 program. 7 A Q A Q A No. When did you interview with M & T Bank? The first week of June of 2001. Okay. What position did you interview for? They were hiring in a sales development 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 19 20 21 22 23 for? Q I am sorry. What position did you interview A Sales development. Q Did you have a valid Pennsylvania driver's license when you interviewed for that position in June? A Yes, I did. 24 Q What were the requirements of that position 25 when you were hired? 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A To complete a training program. And upon completion of that training program to call on customer prospects, interview them as far as loan approval. Q When you talk about calling on customers, can you be more specific than that? A Physically visiting the customer's business location. Q In what area are we talking about geographically? A In the Harrisburg area as well as the Carlisle area, the whole Central Pennsylvania region. Q How were you expected to make those calls? A To drive my own vehicle. Q Okay. Who is your supervisor at M & T Bank? A Charles Robinson. Q When was the first time that you received notification that this West Virginia incident would affect your Pennsylvania driving privileges? 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 25 Q As a result of that did you notify your employer? 22 A Yes, I did. MR. HERSHEY: Thank you. I have no further 1 2 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 11 Q A Yes. 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 15 16 17 18 19 20 21 22 A Q A Q Yes. And that was a DUI violation, correct? Yes. And on that same date you entered into a nolo contendere plea, is that correct? A That's correct. Q And then you received a notice dated October 9th, 2002, correct, from the Department of Transportation? 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 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 8 9 10 11 Q Yes. Did you contact the Pennsylvania Department of Transportation in regard to any consequences? A No. MR. KABUSK: No further questions. 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 10 11 1 2 3 THE COURT: Was that Emily? THE WITNESS: Yes. THE COURT: And it is true then that we have 4 had no contact though I think in probably several years, 5 have we? 6 THE WITNESS: Several years. 7 THE COURT: Okay. Anything further? 8 MR. HERSHEY: One further witness, Your 9 Honor. THE COURT: MR. HERSHEY: Thank you. You can step down. 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 21 22 23 24 25 A I work for M & T Bank. Q In what capacity? A I manage the entire Central Pennsylvania IMaryland region business development and business customers. Q What's your professional address? 25 10 14 1 A Carlisle. Q A Q A Q A Q hired to do? A 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 Yes. He was hired to come in, and for a 15 period of four to six months he would be developed through 16 our program in Syracuse, New York. He would be taught 17 credit training, sales calls, prospecting techniques, and 18 various other sundry items. 2 3 4 5 6 7 8 9 A 19 MR. KABUSK: Once again, objection to the 20 relevance of this testimony, Your Honor. 21 THE COURT: I am the last to know. I am 22 told there is a line of cases in which prejudice is 23 relevant. Whether that's the case or not, frankly I 24 haven't done the research. So I am going to let it in 25 subject to your objection. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 BY MR. HERSHEY: Q Mr. Robinson, to what extent is client or customer development a part of Mr. McAdoo's job responsibilities? A Q A hundred percent. Did you know at the time that he was hired that he would be facing a driver license suspension in Pennsylvania? A No. Q Can he fulfill the requirements of the SDP position without a driver's license? A Not to my knowledge. Q Is his continued employment as an SDP associate conditioned upon him maintaining a valid driver's license? A Could you rephrase that again? Q Is his continued employment as an SDP representative conditioned upon him maintaining a valid driver's license? A Yes. 21 MR. HERSHEY: No further questions. 22 CROSS-EXAMINATION 23 BY MR. KABUSK: 24 25 Q Mr. Robinson, did you say you hired Mr. McAdoo? 27 1 2 3 DUI? 4 5 6 That is correct. Did he disclose to you the West Virginia A Q A No. He did not. Q If he has a driver and is able to maintain his mobility, would he be able to retain his position? 7 A Yes. 8 MR. KABUSK: No further questions. 9 REDIRECT EXAMINATION 10 BY MR. HERSHEY: 11 Q Mr. Robinson, in terms of calling on clients 12 13 14 15 16 17 18 19 20 21 22 23 or business prospects what geographical area is Mr. McAdoo responsible for? A My geographic region runs from basically Hagerstown, Maryland, up through all of Pennsylvania, in terms of back down into York, encompassing the capital district. Q Okay. And how would that relate to Mr. McAdoo calling on clients? A He has recently been assigned for the Carlisle/West Shore/Harrisburg markets, to focus in that arena. 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 8 9 10 11 12 1 2 3 A He is required to make eight to ten calls per week. Q Within that geographical location you just 4 described? 5 6 A Q Correct. So in some cases that would be more than one 7 call per day, is that correct? A That is correct. MR. HERSHEY: MR. KABUSK: THE COURT: No further questions. No further questions. Tell me again what the acronym SDP stands for? 13 THE WITNESS: Sales development program. 14 THE COURT: Sales development program. 15 Okay. Thank you. You can step down. 16 THE WITNESS: Thank you. 17 MR. HERSHEY: Your Honor, we have no further 18 19 20 21 22 23 24 Collins. 25 witnesses to present. THE COURT: MR. KABUSK: Okay. Your Honor, I wish to recall the Department's witness. THE COURT: MR. KABUSK: Certainly. The Department recalls Brenda 29 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 REBUTTAL (Whereupon, Brenda Collins was recalled.) DIRECT EXAMINATION BY MR. KABUSK: Q Ms. Collins, you have heard testimony regarding delay. Earlier in your testimony you did testify as to approximately when the Department received that envelope which contained the certification, is that correct? A That's correct. Q What date did you testify to? A The end of September. Q Which would have been what date? What happened at the end of September? A What happened at the end of September? Q I mean, why is that date relevant? A Because it takes about a week to get the mail, and then to open it, to review. It goes on my desk. I have to review that. I have a process in place if anything is less than -- greater than six months that we have to time stamp that in. If it is not time stamped in, I am saying that the envelope had to have been photocopied correctly. It would show that we received that timely, because my staff is instructed. And I would have picked that up when I reviewed that pack of work. 30 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 Q So the Department received that envelope which contained the citation sometime about the end of September? A Right. Q And then the Department processed that, what, at the beginning of October? A October. Q And do you recall what the date of suspension notice was? May I refresh your memory if I show you Commonwealth's Exhibit No. I? A We processed it on the 2nd. And the mail date is the 9th. Q So once the Department received that, how long did it approximately take for the Department to get this notice of suspension out? A Q Say in two weeks. Now, you stated other citations came in that envelope? A Yes. Q Would you be able to obtain possibly that envelope through any means? A The envelope that Mr. McAdoo's citation came in? Q A Or the microfilm of that? The microfilm but you won't get the 31 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 postmark. Q You won't get the postmark. A But there is other envelopes in there with 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 1 2 3 Q A And possibly that envelope? Has the postdate on it, yes. MR. KABUSK: Your Honor, I ask the record to 4 be left open for the Department 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 Department's witness, was here to 9 testify today and -- 10 THE COURT: Well, she would have to corne 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 carne the same day as 19 his? 20 21 22 envelope? 23 MR. KABUSK: Yes, Your Honor. MR. KABUSK: Yes. THE COURT: We agree it is not the same 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 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 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KABUSK: Well, then, Your Honor, I strike my request for a continuance. I will just base the Department's case upon her testimony regarding receipt. THE COURT: MR. HERSHEY: Fair enough. Anything else? I have no questions for Ms. Collins, Your Honor. THE COURT: Thank you, ma'am. MR. HERSHEY: Judge, I have briefed the issue of the delay and prejudice. And I know the Court has received all the testimony. With respect to Ms. Collins' testimony, she has indicated that, number one, she didn't process Mr. McAdoo's conviction. Number two, the clerk who microfilmed his paperwork, from her testimony, made an error because the postage mark was not reproduced in the microfilm. That would be Exhibit 2, DOT's Exhibit 2. And number three, there is nothing of record that would support the bare assertion that this stuff was probably received at the end of September. The WID number and the process number means that that is the date that the Department processed the request. It doesn't mean that's 34 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 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 9 MR. HERSHEY: That's correct. 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 .'> 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 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 25 only after it receives it, Tower, 654 A.2d 60. And the MR. KABUSK: To my knowledge, no, Your 37 ~ 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 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 .. I .- 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. ~L~ 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. ..:T 11M.&. 7 t.oo 'Z- Date ~4 A. Hess, J. Judicial District 40 ,. VINVA1ASNN3d JJ.Nn08 O!\i\fltl38Y'ln:> +j Z : I Wd I I lor 20 'U'rJ10"",J' , "':j' .10 ^O 1,UH.L\,)tKl :JnJ.. :J 381.::l:\O-G311~