HomeMy WebLinkAbout10-7720IN THE CUMBERLAND COUNTY
COURT OF COMMON PLEAS
PETER NIWAGABA
V.
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU
OF DRIVER LICENSING
NO:
APPEAL FROM THE SUSPENSION OF
OPERATING/REGISTRATION PRIVILEGES
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AND NOW COMES, Petitioner Peter Niwagaba, by and through his attorneys,
Gates, Halbruner, Hatch & Guise, P.C. and respectfully files this Appeal from the
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Suspension of Operating/Registration Privileges and, in support thereof, avers as follows:
Petitioner Peter Niwagaba resides at 11-B Richland Lane, Apartment 108,
Camp Hill, Pennsylvania 17011.
2. Petitioner's Pennsylvania Operator's License Number is 29 553 469.
Pennsylvania Department of Transportation ("PennDOT") proposes by
Notice dated November 16, 2010 to suspend Petitioner's operating privileges, pursuant to
section 1772 of the Vehicle Code, and effective December 21, 2010, until Petitioner does
as follows: (i) provides proof that all motor vehicles registered in Petitioner's name are
covered by liability insurance; and, (ii) provides an official certificate of satisfaction from
the Cumberland County Prothonotary for the default judgment enter against Petitioner by
Erie Insurance Company at docket number 2009-8411. (A true and correct copy of
PennDot's November 16, 2010 Notice is attached hereto as Exhibit `A').
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4. The unsatisfied judgment upon which PennDOT justifies its action taken
to suspend Petitioner's driver's license is at docket no. 2009-8411, Erie Insurance
Exchange v. Peter Niwagaba and Richard Byamugisha. The Erie case involved an
automobile accident in Wormleysburg, Pennsylvania in 2008 driven by Isaac Lowendi.
Petitioner Peter Niwagaba was merely a passenger in the vehicle.
5. The West Shore Regional Police pressed charges against Petitioner for
various driving violations, all of which charges were subsequently dismissed by
Magisterial District Judge Robert Manlove.
6. The suspension of Petitioner's operating privileges is unlawful and
Petitioner seeks relief for the following reasons: (i) Simultaneous with this appeal,
Petitioner has filed a Petition to Open Judgment of Non Pros on the case at docket
number 2009-8411; and, (ii) Petitioner was not the driver of the vehicle which caused the
accident at issue in the case at docket number 2009-8411 filed against Petitioner.
7. A Petition to Open Judgment of Non Pros at docket number 2009-8411 is
filed simultaneously with this Appeal, because both are necessary since Petitioner was
hindered from responding to Erie Insurance Company's original Complaint.
8. Petitioner did not respond to the Complaint because he was unable to
understand its content and significance.
9. Petitioner is a Ugandan refugee who fled to the United States in 2006 to
escape politically charged violence in Uganda. Consequently, Petitioner Peter
Niwagaba's native language is Swahili, although he has some ability to speak, write and
read English. He was thus unable to fully comprehend the content and the significance of
Erie Insurance Company's Complaint filed against him.
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10. With the aid of counsel, Petitioner is gaining knowledge of Erie Insurance
Exchanges's default judgment and PennDOT's potential driver's license suspension.
Accordingly, Petitioner is submitting a Petition to Open Judgment of Non Pros-
concurrent with this appeal-in effort to reasonably contest Erie's Complaint.
11. PennDOT's assumption that Petitioner has simply failed to satisfy the
judgment resulting in a closed matter is incorrect. The Petition to Open Judgment of Non
Pros is pending and this Appeal is timely filed with the thirty (30) day time limit.
12. PennDOT should not be permitted to proceed with suspending Petitioner's
Driver's License on December 21, 2010, since the Petition to Open Judgment of Non
Pros is filed and pending during a time when Petitioner still retains full driving privileges.
13. In the recent case of Passel v. Com., Dept, of Transp., Bureau of
Licensing, the Court held that "[d]river was never finally convicted of disregarding
railroad barriers, despite the entry of a certificate of conviction by magisterial district
judge, and thus such conviction could not serve as basis for suspension of driver's
license..." (Emphasis added.) 928 A.2d 381 Pa Cmwlth., 2007.
14. In addition to imposing a suspension of Petitioner's driver's license prior
to a final conviction, PennDOT has actually taken action to suspend the license of the
wrong party who was merely a passenger in the vehicle.
15. PennDOT should not be permitted to suspend Petitioner's driver's license
simply because of Plaintiff Erie Insurance Exchange's wrongful allegations against
Petitioner.
16. Plaintiff Erie Insurance Exchange included in its original Complaint
against Petitioner a litany of allegations relevant to the 2008 motor vehicle accident.
Petitioner did take driver's lessons and did not obtain a driver's license until February 2,
2010. (A true and correct copy of Defendant's driver's license is attached hereto as
Exhibit `B').
17. Therefore, Petitioner did not have the training or a driver's license at the
time of the accident. Plaintiff Erie's list includes a litany of charges, including
necessities that Plaintiff claims Petitioner was driving without-such as insurance.
However, at no point does Plaintiff allege that Petitioner was driving without a license.
Plaintiff does not have record of Petitioner's driver's license status at the time of the
accident because it was irrelevant ... Petitioner was not driving the car.
18. Defendant Richard Byamugisha owned the vehicle that was involved in
the accident described by Plaintiff Erie Insurance. It is also true that Defendant
Byamugisha could not be located at the time Plaintiff s complaint was drafted and filed.
19. PennDOT should not be permitted to proceed with suspending Petitioner's
driver's license based on a judgment entered upon a Complaint with false information-
where Petitioner did not have the means or proficiency to submit a reasonable defense.
Wherefore, Petitioner requests that this Honorable Court allow him to take an
appeal from the suspension of his operating privileges.
Respectfull
December 15, 2010
Lowe R. Gates, Esq.
PA I #46779
Gate, Halbruner, Hatch &Guise, P.C.
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
Phone: 717.731.9600
Fax: 717.731.9627
l.r.gates ,gateslawfirm com
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EXHIBIT
A
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
NOVEMBER 16, 2010
PETER NIWAGABA WID # 103136345552180 001
11B RICHLAND LN APT 108 PROCESSING DATE 11/09/2010
CAMP HILL PA 17011 DRIVER LICENSE # 29553469
DATE OF BIRTH 09/11/1969
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The Court of CUMBERLAND CTY has indicated you have
failed to satisfy a judgement resulting from a motor vehicle
accident on 11/28/2008. Your driving privilege is hereby
suspended as authorized by Section 1772 of the Vehicle Code
until you satisfy the judgement.
Court 4: 8411 Term: 2009
Your driving privilege will not be restored until you
provide proof to the Department that all motor vehicles
registered in your name are covered by a motor vehicle
liability insurance policy or by a program of self-insurance
approved by the Department and an official certificate of
satisfaction from the Prothonotary of CUMBERLAND CTY .
This insurance information will not be accepted more
than one (1) month before the eligibility date of the
restoration of your driving privilege.
In order to comply with this sanction you are required to
return any current driver's license. learner's permit and/or
temporary driver's license (camera card) in your possession
no later, than the effective date listed. If you cannot
comply with the requirements stated above, you are required
to submit a DL16LC Form or a sworn affidavit stating that
You are aware of the sanction against your driving
privilege. Failure to comply with this notice shall result
in this Bureau referring this matter to the Pennsylvania
State Police for prosecution under SECTION 1571(a)(4) of the
Vehicle Code.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR
ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT
RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT
IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD
SERVING THIS SANCTION.
103136345552180
The effective date of suspension is 12/21/2010, 12:01 a.m.
Please see the enclosed application for restoration fee
information.
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, NOVEMBER 16, 2010, of this letter. If you file an
appeal 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
certified 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
Sincerely,
Janet L. Dolan, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/DL-16LC/T0:
Department of Transportation
Bureau of Driver Licensing
P.O. BOX 68695
Harrisburg, PA 17106-8693
INFORMATION (8:00
IN STATE
OUT-OF-STATE
TOO IN STATE
TOD OUT-OF-STATE
AM TO 5:00 PM)
1-800-932-4600
717-412-5300
1-800-228-0676
717-412-5380
EXHIBIT
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Issued: 02102/2010
Expires. 09112/2013
PETER NIWAGABA
116 RICHLAND LN APT 10
CAMP HILL PA 17011
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PETER NIWAGABA,
Appellant
Case No.
V.
COMMONWEALTH OF PENNSYLV,
DEPARTMENT OF
TRANSPORTATION,BUREAU OF
DRIVER LICENSING,
Appellee
Civil Action - Law & Equity
VERIFICATION
The undersigned hereby verifies that the statements made in the foregoing Appeal from
the Suspension of Operating / Registration Privileges is true and correct to the best of my
information, knowledge and belief. I understand that false statements herein are made subject to
the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities.
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Date: December 14, 2010 ?
Peter Niwagaba
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PETER NIWAGABA,
Petitioner
Case No.
V.
Civil Action - Law & Equity
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING,
Respondent
CERTIFICATE OF SERVICE
I, Lowell R. Gates, hereby certify that a true and correct copy of the foregoing
Appeal from the Suspension of Operating/Registration Privileges was served this day by
first class United States postal service, postage pre-paid upon:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 1710104-2516
Dated: December 15, 2010
GATES, HA ER, HATCH & GUISE, P.C.
Lowe R. Gates, Esquire
PA I # 46779
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
Phone: (717) 731-9600
Fax: (717) 731-9627
I.r.gates@gateslawfirrn.com
Attorneys for Petitioner
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IN THE CUMBERLAND COUNTY
COURT OF COMMON PLEAS
PETER NIWAGABA
V.
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU
OF DRIVER LICENSING
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SCHEDULING AND SUPERSEDEAS ORDER
414 AND NOW, this -41 day of December, 2010, upon presentation of the within
Appeal from the Suspension of Operating/Registration Privileges, it is hereby ordered
that a hearing on this matter shall be held on the I 1 bL day of
2011, at 3•30 o'clock -P-m. in Courtroom No. 'S of the Cumberland County
Courthouse, Carlisle, PA. The action of the Pennsylvania Department of Transportation
in suspending the driving privileges of Petitioner Peter Niwagaba is hereby stayed
pending a final decision of this Court to the extent provided under § 1550(b) and § 1377 of
the Motor Vehicle Code. Petitioner must serve a copy of this appeal on the Pennsylvania
Department of Transportation.
BY THE COURT:
JUDGE
, bution List:
owell R. Gates, Esq., Gates, Halbruner, Hatch & Guise, P.C.
1013 Mumma Road, Suite 100, Lemoyne, PA 17043 (for Petitioner)
nnsylvania Department of Transportation, Office of Chief Counsel
Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 (for PennDOT)
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PETER NIWAGABA,
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,:
BUREAU OF DRIVER LICENSING,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 10-7720 CIVIL TERM
ORDER OF COURT
AND NOW, this 11th day of February, 2011, the
petitioner having failed to appear for a hearing in the
above-captioned matter, and evidence having been presented by
the Commonwealth to meet their burden of establishing that the
suspension was proper, the Court concurs with the Department's
position and directs that the petitioner's license suspension
appeal be dismissed and that the supersedeas in this matter be
rescinded.
By the Court,
Albert H. Masland, J.
'Philip M. Bricknell, Esquire
For the Department of Transportation
Lowell R. Gates, Esquire Mme'
For Petitioner eop
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