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Home My WebLink About12-2423A ROBERT F. PARKS, III, Appellant V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. LICENSE SUSPENSION APPEAL APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE rn = ro r a ° -:z r •-ra S -) : Z --z iz - C) > a t AND NOW comes the Appellant, Robert F. Parks, III, by and through his attorney, Robert A. Kulling, Esquire, and avers the following: 1. Appellant resides at 582 W. Louther Street, Carlisle, Pennsylvania 17013. 2. Appellant received Notice dated March 29, 2012, stating that as authorized by Section 1538 of the Pennsylvania Vehicle Code, as a result of his Departmental Hearing, his driving privilege was being suspended for a period of fifteen (15), effective May 3, 2012, at 12:01 a.m. A copy is attached hereto as Exhibit "A". 3. The administrative order of the Pennsylvania Department of Transportation suspending his license is improper. 4. Appellant's last speeding citation was in 2009, in which he pled guilty to Section 3362 of the Vehicle Code for driving 74 miles per hour in a 40 mile per hour zone. 5. However, the Pennsylvania Department of Transportation did not conduct a departmental hearing until May 22, 2012, approximately two and one-half years after the citation. 6. Section 1538(d) of the Pennsylvania Vehicle Code requires a departmental hearing after a 9 /v 3. )'? g aff! cep fg3t conviction of 31 or more miles per hour in excess of the speed limit, however the hearing examiner has discretion to recommend any one or more of the following; (1) driver improvement school, (2) an examination provided for in Section 1508, or (3) 15 day license suspension. 7. Appellant avers that the hearing officer's reason for the 15 day suspension was because it was "mandatory." 8. "The statutory grant of discretion to DOT and the hearing examiners carries with it an obligation to exercise that discretion based upon the individual facts of the case," Commonwealth, Dep't of Transp., Bureau of Driver Licensing v. Bankston, 156 Pa. Commw. 127,133 (Pa. Commw. Ct. 1993). 9. "If the trial court, upon consideration of all the facts of the case, determines that DOT has abused its discretion, it can modify the sanction imposed," Id. 10. Because the hearing examiner did not the view the case by its individual facts, and stated that the suspension was "mandatory," the Department abused it's discretion in issuing a suspension. 11. Given the circumstances surrounding the delay in a hearing and the individual facts of the case, driver improvement school would have been a more appropriate recommendation. WHEREFORE, your Appellant respectfully requests this Honorable Court schedule an evidentiary hearing on the matter and in the meantime to grant a Supersedeas pursuant to the Vehicle Code. NEW MATTER 12. All previous paragraphs are incorporated herein by reference. 13. As stated earlier, Appellant pled guilty in 2009 to Section 3362 of the Vehicle Code for driving 74 miles per hour in a 40 mile per hour zone. 14. Because of this conviction, Section 1538 of the Vehicle Code requires the Department to conduct a hearing and impose a recommendation. 15. Appellant did not receive notice of any hearing until 2012, approximately two and one- half years later, whereby it was indicated to him that he would be required to appear for a departmental hearing on March 22, 2012. 16. As mentioned earlier, the recommendation by the Department was to suspend Appellant's license for 15 days. 17. Appellant argues that the suspension should be dismissed by the equitable doctrine of laches. 18. "Laches is an equitable doctrine that bars relief when a complaining parry is guilty of want to due diligence in failing to promptly institute an action to the prejudice of another," Stilp v. Hafer, 553 Pa. 128, 132 (Pa. 1998). 19. For laches to apply, the two elements that must be established are "(1) a delay arising from Appellee's failure to exercise due diligence and (2) prejudice to the Appellant resulting from the delay," Id. at 134. 20. Appellee in this case failed to exercise due diligence in this case because they had the information to conduct a departmental hearing in 2009, but waited almost 3 years to conduct the departmental hearing. Appellee knew about the conviction in June of 2009 but failed to act in a reasonable amount of time. 21. Appellee also failed to inform Appellant of the need for a Departmental Hearing until 2012. 22. Because of this delay, Appellant has been prejudiced because he has not had a traffic violation since 2009, he is a full time student at Indiana University of Pennsylvania and he is to begin a Summer Job in May 2012 that he now may not be able to. 23. Appellant is also seeking future employment as a police officer and believes this suspension may have serious negative implications of that pursuit. WHEREFORE, Appellant respectfully requests this Honorable Court dismiss the suspension due to the equitable doctrine of laches. Respectfully submitted, Rominger & Associates Date: April 19, 2012 2D4? R ert A. Kulling, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 308874 Attorney for Appellant ROBERT F. PARKS, III, Appellant V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Robert A. Kulling, Esquire, Esquire, attorney for Appellant, do hereby certify that I this day served a copy of the Appeal From Suspension Of Operator's Privilege upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Date: H C1 - I?' Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 Respectfully submitted, Rominger & Associates -OeyeD Robert A. Kulling, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 308874 Attorney for Appellant ATTORNEY VERIFICATION Robert A. Kulling, states that he is the attorney for Robert F. Parks, III, Appellant in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unsworn falsification to authorities. ?1? 1 2 Dated: Robert A. Kulling, Esquire COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: MARCH 29, 2012 ROBERT FRANKLIN PARKS III WID # 120827634042015 001 582 W LOUTHER ST PROCESSING DATE 0312212012 DRIVER LICENSE # 29243994 CARLISLE PA 17013 DATE OF BIRTH 02/19/1991 Dear MR. PARKS: This is an official Notice of the Suspension of Your Driving Privilege as authorized by Section 1538 of the Pennsylvania Vehicle Code. As a result of your departmental hearing: ¦ Your driving privilege is SUSPENDED for a period of 15 DAY(S) effective 05/03/2012 at 12:01 a.m. Before PennDOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION and PAYING THE RESTORATION FEE. 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 are satisfied. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 05/03/2012. You may surrender these items before, 05/03/2012, 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 $13.50. You must present two (2) forms of proper iden- 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 120827634042015 you do not have any of these items, send a sworn nota- rized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the-end of this letter. 3. If you do not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application.. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. Please note: Paying the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation. If you have not acknowledged your suspension/revocation, please follow the instructions listed under "Complying with this Suspension/Revocation". 120827634042015 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, MARCH 29, 2012, 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 ////Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 05/03/2012. ,r Sincerely, 9?-u ?-- - Z g lz? Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 5:00 p.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us 4 I 1 ROBERT F. PARKS, III, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee No. : LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this day of , 2012, upon consideration of this Appeal From Suspension Of Operator's Privilege, it is Ordered that a hearing on the matter shall be held on the Ste'` day of ;D , at g? o'clock 4- m. in Courtroom No. Of the Cumberland County Courthouse. A Supersedeas is granted pursuant to Vehicle Code Section 1550 (b) (1) until such time that this Honorable Court resolves this appeal. By the Courti? 1000 Distribution: c .. . C i i Office of Chief Counsel mw m = -n rn-- PA DEPARTMENT OF TRANSPORTATION :e Third Floor, Riverfront Office Center N , Harrisburg, Pennsylvania 17104-2516 c j9 ZC? s ? Robert A. Kulling, Esquire D= C? G _ dn7 ROMINGER & ASSOCIATES 155 South Hanover Street Carlisle, Pennsylvania 17013 ?L ROBERT F. PARKS, III, Petitioner . V. . IN THE COURT OF COMMON PLEAS ~F CUMBERLAND COUNTY, PENNSYLVAN A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, Respondent NO. 12-2423 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of August, 2012, the appeal filed in the above matter is remanded to the Department of Transportation for an additional hearing at which the Departm may impose various sanctions except for the suspension of the petitioner's operating privilege. By the Court, Albert H. Masla d, J. ,/ Robert A. Kulling, Esquire For Petitioner i~ r"`.'f ~,.. / Philip M. Bricknell, Esquire -~a~ "' For the Department of Transportation ~~ c ~~ - c~ n I p rs C.6 p; eS /N ~~d ~~/li~~ Gt cn r ~ rn , . /`7 ~ .n... ~`: `~, ~..,".` CJ.~ ~i t c~ °r; ~~ f` j may..