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HomeMy WebLinkAbout12-4450Robert J. Daniels, Esquire Attorney I.D. #83376 Killian & Gephart, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 (717) 238-0592 (fax) THE P T li!YT. ..:' I 2912 JUL 18 AM 8: 10 CUMBERLAND COQNT° PENNSYLVANIA Attorneys For Plaintiff DAVID J. CONAHAN : IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PA V. : DOCKET NO./; , 4WD eiLloZ ' /r?7 COMMONWEALTH OF PENNSYLVANIA: APPEAL - DRIVER'S LICENSE DEPARTMENT OF TRANSPORTATION : SUSPENSION APPEAL PETITION FOR APPEAL FROM ORDER SU5PENDINQ DRIVINQ PRIVILEGE AND NOW, this 17'h day of July, 2012, comes Petitioner/Appellant, David J. Conahan, by and through his attorney, Robert J. Daniels, Esquire, of Killian & Gephart, LLP, who pursuant to 75 Pa.C.S.A. § 1550 files this Petition For Appeal from an Order o the Commonwealth of Pennsylvania, Department of Transportation, suspending Petitioner/Appellant's driving privilege, and in furtherance thereof, avers the following: 1. Petitioner is David J. Conahan, who resides at 8 Adams Street, Enola, Cumberland County, Pennsylvania. 2. Petitioner possesses a currently valid Pennsylvania operator's license number 25904789. ?,1 LZ C# 6o??f 3. By letter dated July 5, 2012, the Pennsylvania Department of Transportati notified Petitioner that as a result of his June 13, 2012, conviction of violating Section 3. Pa.C.S. §780-113(a)(16) of the Controlled Substance, Drug, Device and Cosmetic Act that his driving privileges are being suspended for a period of six (6) months effective August 9, 2012. A copy of the Notice of Suspension is attached hereto as Exhibit "A" and is incorporated herein by reference. 4. Petitioner was not convicted of this enumerated offense. 5. Undersigned counsel attempted to contact PennDOT legal counsel for clarification of this error, but was told they would not investigate the matter. Accordingly, Petitioner is left with no recourse but to file this appeal. WHEREFORE, pursuant to 75 Pa.C.S.A. §1550, Petitioner/Appellant, David J. Conahan, respectfully requests that this Honorable Court grant him an appeal of the Order suspending his driving privilege, and to order that the Pennsylvania Department o? Transportation's Order suspending Petitioner's driving privilege be stayed pending the Hearing in this matter. Respectfully submitted, K L"ANL & GEPHART, LLP Dated: July 17, 2012 Robert J. Daniels, Esquire Attorney I.D. #83376 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: JULY 05, 2012 DAVID J CONAHAN WID * 121806180482802 001 8 ADAMS STREET PROCESSING DATE 06/28/2012 DRIVER LICENSE * 25904789 ENOLA PA 17025 DATE OF BIRTH 01/12/1982 Dear MR. CONAHAN: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1532C of the Pennsylvania Vehicle Code. As a result of your 06/13/2012 conviction of violating Section 13A16 of the Controlled Substance, Drug, Device and Cosmetic Act, on 10/26/2010: ¦ Your driving privilege is SUSPENDED for a period of 6 MONTH(S) effective 08/09/2012 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, 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 priv- ilege 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 08/09/2012. You may surrender these items before, 08/09/2012, 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. EXHIBIT "A' 121806180482802 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 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". 121806180482802 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 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, JULY 05, 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 08/09/2012. Sincerely, Janet L. Dolan, Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/TO: INFORMATION (8:00 AM TO 5:00 P ) Department of Transportation IN STATE 1-800-932-46 0 Bureau of Driver Licensing OUT-OF-STATE 717-412-53 0 P.O. Box 68693 TOD IN STATE 1-800-228-06 6 Harrisburg, PA 17106-8693 TDD OUT-OF-STATE 717-412-53 0 CERTIFICATE OF SERVICE On this 17' day of July, 2012, I hereby certify that I served the foregoing document on the following by depositing a true and correct copy in the United States Mail, postage prepaid, certified mail, addressed to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 KILLIAN & GEPHART, LLP Robert J. Daniels, Esquire Attorney I.D. #83376 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 V Robert J. Daniels, Esquire Attorney I.D. #83376 Killian & Gephart, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 (717) 238-0592 (fax) _ F tL ED Of'Ftt r v t HE P +OD;O,?) :.... VI2j - 23 PM 2:1; CUMBERLA14D COUti PENNSYLVANIA Attorneys For Plaintiff DAVID J. CONAHAN : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. : DOCKET NO. ?a , ?7 ,? C,? UiG ?°!•? COMMONWEALTH OF PENNSYLVANIA: APPEAL - DRIVER'S LICENSE DEPARTMENT OF TRANSPORTATION : SUSPENSION APPEAL ORDER AND NOW, this.-23,4?ay of , 2012, upon consideration of Appellant's Notice of Appeal, a Hearing is set for the-2 Yd(- day of 2012, at 136 t-m., in Courtroom # S--,Cumberland County Courthouse, Carlisle, Pennsylvania. AND NOW, Appellee is hereby ordered to reinstate Appellant's driving privilege supersedeas pursuant to 75 Pa.C.S.A. §1550(b) pending said Hearing. By The Court: Distribution: ? Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 ? Robert J. Daniels, Esquire, 218 Pine Street, P.O. Box 886, Harrisburg, PA 17108-0886 C?ep6 es i1+ . 1,e DAVID ~J. CONAHAN, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent NO. 12-4450 CIVIL TERM APPEAL OF DRIVER LICENSE SUSPENSION ORDER AND NOW, this 24th day of October, 2012, the appeal filed in the above- captionE;d matter is: __ REMANDED to the Department of Transportation for correction of its records. __ DISMISSED and the suspension which is the basis of this / appeal shall be REINSTATED. /_ SUSTAINED and the suspension which is the basis of this appeal shall be RESCINDED. ~_ WITHDRAWN and the suspension which is the basis of this appeal shall be REINSTATED. CONTINUED and RESCHEDULED for the ~ day of 20_, at _ .m., in Cour~orl~; ~~ ; Room No. of the Cumberland County Court~~e o ~ , -`-'+ -~~ Carlisle, Pennsylvania. '~ w ~~,' r-~ -jam BY THE COURT: ~ =~ ~~~ . - ` t ~' c rv ` --3 w'.. ... .. .~- /.l Jd / .~. Attest: ~ Robert ~J. Daniels, Esq., 218 Pine Street, P.O. Box 886, Harrisburg, PA 17108-0886 ~/ Philip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, 3~d Floor; 1101 South Front Street, Harrisburg, PA 17104-2516 ~fl~%~,S Ma-~'I-~~ 1D~~~~~~ ~G •• M DAVID J. CONAHAN, Petitioner v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 12-4450 CIVIL TERM ~ COMMONWEALTH OF PENNSYLVANIA, ; DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent : c -03 CIVIL ACTION -LAW zn°°i LICENSE SUSPENSION AP), G~ za m 0 N z 0 s cP c~a .c- MOTION TO RECONSIDER AND VACATE ORDER FII.ED OCTOBER 31.2012 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (the "Department"), by and through its attorney, Philip M. Bricknell, respectfully represents as follows: -~ r*~ -~ r-n 0 --3 a ~ -r~ o --: ~~ ~F .--c 1. By official notice dated July 5, 2012, the Department notified Petitioner that as a result of his conviction on June 13, 2012 for a violation of Section "13A16" of the Controlled Substance, Drug, Device and Cosmetic Act (the "Drug Act") (relating to prohibited acts; penalties under that Act), 35 Pa.C.S. § 780-113(a)(16), on October 26, 2010, his driving privilege was being suspended for a period of six months. A copy of the Commonwealth's Exhibit 1, including the July 5, 2012 notice is attached as Exhibit A. 2. Petitioner filed an appeal of the six-month suspension on July 18, 2012, in the Court of Common Pleas of Cumberland County asserting that he was not convicted of violating Section 35 Pa.C.S. § 780-113(a)(16) of the Drug Act. 3. On October 24, 2012, this Court heard Petitioner's appeal. 4. At the hearing, the Department produced a certified copy of the notice of conviction it received in regards to Petitioner's conviction and met its burden of showing that its .. suspension of Petitioner's driving privilege was in accord with the Vehicle Code. See 75 Pa.C.S. § 1532(c); see also Exhibit A, at document #2. 5. Petitioner asserted that the criminal count against him for violating Section 13A16 of the Drug Act had been dismissed, and he had been convicted of violating only Section 18 Pa.C.S. § 901(a) (relating to criminal attempt - intentionally possessing controlled substance by person not registered under the Drug Act). Petitioner presented to this Court a document from the Cumberland County Clerk of Courts showing his conviction for violating Section 18 Pa.C.S. § 901(a). 6. This Court found that Petitioner was not convicted of violating Section 13A16 of the Drug Act but was convicted of violating Section 18 Pa.C.S. § 901(x). A copy of the docket sheet for Commonwealth v. David J. Conahan at Docket No. CP-21-CR-0002475-2011 is attached as Exhibit B. 7. This Court reviewed the relevant portion of the text of Section 1532(c) of the Vehicle Code, and found that "attempt" is not one of the enumerated offenses. 8. This Court sustained Petitioner's appeal and filed its order to that effect on October 31, 2012. See Exhibit C. 9. The Department believes the suspension by the Department of Petitioner's driving privilege was correct following his conviction for violating Section 901(a) of the Criminal Code and the reporting of a conviction for violating Section 780-113(a)(16) of the Drug Act. 75 Pa.C.S. § 1532(c); Conchado v. Department of Transportation, Bureau of Driver Licensing, 941 A.2d 792 (Pa. Cmwlth. 2008); Keim v. Department of Transportation, Bureau of Driver Licensing, 887 A.2d 834 (Pa. Cmwlth. 2005). 10. The Vehicle Code states that the Department shall suspend the driving privilege ___ _ __ r _ _ , ._ ~ _ .. of "any person upon receiving a certified record of the person's conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale, or giving away of any controlled substance under the laws of the United States, this Commonwealth or any other state...." 75 Pa.C.S. § 1532(c) (emphasis added). 11. In Keim, a driver was suspended for pleading guilty to one count of manufacturing a controlled substance. Keim, 887 A.2d. at 835. The driver argued that manufacturing a controlled substance is not one of the offenses enumerated in Section 1532(c). Id. at 836. The Commonwealth Court held that because it would be impossible for a person to manufacture a controlled substance without possessing it, such manufacture was an "offense involving possession" of a controlled substance. Id. at 839. 12. The Keim Court concluded that "use of the phrase `any offense involving' enumerated offenses in Section 1532(c) of the Vehicle Code" should be broadly interpreted to include convictions not specifically enumerated in Section 1532(c) as triggers for the mandatory suspension. Id. 13. In Conchado, the Commonwealth Court determined that a conviction for criminal conspiracy triggers a mandatory license suspension under Section 1532(c). Conchado, 941 A.2d at 794. Relying on its holding in Keim, the Court concluded that: conspiracy to commit a crime `involves' that crime. Thus, Section 1532(c) provides for a license suspension following a conviction for Criminal Conspiracy to Possess with Intent to Deliver. Conchado at 795-96 (footnotes omitted). 14. Here, Petitioner testified that he pled guilty to criminal attempt -intentionally possessing controlled substance by a person not registered under the Drug Act. Similar to manufacturing controlled substances and conspiracy, criminal attempt is not enumerated in Section 1532(c), but attempt to commit acrime -like conspiracy to commit acrime -involves J that creme. See Keim. The Department believes that Section 1532(c) provides for a license suspension following a conviction for criminal attempt -intentionally possessing controlled substance by a person not registered under the Drug Act. 15. The issue of whether the Department may suspend a licensee for a conviction for violating 18 Pa.C.S. § 901 has already been litigated before this Court at Joshua M. Culley v. Department of Transportation, Docket No. 11-5015 Civil Term. There, this Court initially sustained the Licensee's appeal, but reversed itself and denied the appeal following reconsideration of its initial order. A copy of the final order in Culley is attached as Exhibit D. 16. Copies of the case law cited above and in this Court's order in Culley is attached as Exhibit E. WHEREFORE, the Department respectfully requests that its motion to reconsider and vacate be granted and that Petitioner's appeal be dismissed. Respectfiilly submitted, ~ ~ "'y Philip M. Bricknell Assistant Counsel Office of Chief Counsel, PennDOT Riverfront Office Center-3rd Floor 1101 South Front Street. Harrisburg, PA 17104-2516 (717) 787-2830 Date: November 9, 2012 DAVID J. CONAHAN, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PENNSYLVANIA ~. No. I2-4450 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, : CIVIL ACTION -LAW DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENSING, Respondent CERTIFICATE OF SERVICE The foregoing motion to reconsider and vacate order filed October 31, 2012 was served via first class mail on November 9, 2012 on the following: Robert J. Daniels, Esq. Killian & Gephart, LLP 218 Pine Street, P.O. Box 886, Harrisburg, PA 17108-0886 ~-^~ • ~ -~~ f Philip M. Bricknell Assistant Counsel Office of Chief Counsel River&ont Office Center-3rd Floor 1101 South Front Street. Harrisburg, PA 17104-2516 (717) 787-2830 •~ J EXHIBIT A _ ,. ,- Pennsylvania ~' DEPARTMENT OF TRANSPORTATION DL-326 (8-08) CERTIFICATION AND ATTESTATION DATE: July 19, 2012 I hereby certify that Janet L. Dolan, Director of the Bureau of Driver Licensing of the Pennsylvania Department of Transportation, is the legal custodian of the Driver License records of the Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal custody of the original or microfilm records which are reproduced in the attached t~rtification. IN TESTIMONY WHEREOF, I ,. HAVE HEREUNTO SE'T`' MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEARr AFOR~AID. SEAL BARRY r I HEREBY ATTEST THAT THE DOCUMENT OR DOCUMENTS` LISTED BELOW AND ATTACHED HERETO ARE FULL, TRUE AND CORRECT PHOTOSTATIC, MICROFICHE, MICROFILM, FACSIMILE, OR PRII~tTED COPIES OF DOCUMENTS AND/OR ELECTRONICALLY STORED INFORMATION OF WHICH l HAVE LEGAL ,CUSTODY; `AND THAT THE COPIES CONFORM TO THE REQUIREMENTS OF SECTION 6109 OFTHE-:JUDICIAL CODE. 1) Official notice of suspension dated & ~;mailed~ 7/05112, effective 8/09/12; 2} Report of the Court showing the conviction of certain'- violations of the Controlled Substance, ,Drug; Device and Cosmetic Act, Cumberland Coupty Number GP=21-CR=0002475,' 201..1., ,date of :violation 10/26/10, date of conviction 6113/12, sell. attached to original; and 3) Partial Driving Rer;ord, seal attached as it appears in the file of the. Petitioner DAVID J. CONAHAN, Opera#or Numbec 25904789, date of birth 1/12182, in the Bureau of Driver Licensing, Harrisburg, Pennsylvania: ` CERTIFIED TO as prescrit~ed by Sectio~IS 6103 and 6'109 of the Judicial Code, Act of July 9, 1976, P.L. 586, as amended, 42 Pa.C.S. §§6103 and 6109: IN TESTIAAONY VYHEREOF, I HAVE HEREUNTO 15 ,- AFORESAID. ET MY'HAND AND SEAL THE DAY AND YEAR SEAL J ET L. DOLAN~ DIRECTOR/ BUREAU OF DRIVER LICENSING N COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: JULY 05, 2012 DAVID J CONAHAN 8 ADAMS STREET SNOLA PA 17025 1PID # 121806180482802 001 PROCESSING DATE 06/28/2012 DRIVER LICENSE # 25904789 DATE OF BIRTB O1/12j1982 Dear MR. CONAHAN: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1532C of the Pennsylvania Vehicle Code. As a result of your 06/13/2012 conviction of violating Section 13A1b of the Controlled Substance, Drug, Device and Cosmetic Act, on 10/2b/2010: ^ Your driving privilege is SUSPENDED for a period of 6 MONTHCS) effective 08/09/2012 at 12:01 a.s. 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 follow ALL instructions very carefully. Even if you have served all the ti^e on the suspension/revocation, we cannot restore your driving priv- ilese until all the requiresents 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 08/09/2012. You may surrender these items before, 08/09/2012, 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 t2) 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 licenseCs). Complete the following steps to acknowledge this suspension. ~~ M V 121806180482802 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 ta: 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 amount 2. Write page) credit 3. Follow of the the enclosed Application for Restoration. The due is listed on the application. your driver's license number (listed on the first on the check or money order to ensure proper the payment and mailing instructions on the back 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°. v 121806180482802 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 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,. JULY 05, 2012, of this letter. If you file an appeal in the County Court, the Court will give you a ties-staaped_ 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 08/09/2012. 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 68693 Harrisburg, PA 17106-8693 INFORMATION (8:00 IN STATE OUT-OF-STATE TDD IN STATE TDD OUT-OF-STATE AM TO 5:00 PM) 1-800-932-4600 717-412-5300 1-800-228-0676 717-412-5380 .~ ^ AMENDED REPORT REPORT OF A COURT SHOIARNG THE CONVICTION OF CERTAIN VKN_ATiONS OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT COURT INFORMATION DIST. N0. MDd-09-1-03 R'1' OF COII~UN PLEAS COUNTY OF 21 NUMBER CP-21-CR-0002475 2011 YEAR 2011 OTN T 079472-2 DEFENDANT ~1FORIIA~4T10N (please prirrtortype) NAME FIRST M LAST SEx OPERATOR N0.23904789 . DAVID J. CONAHAN M ® F ~ FATE PA soCwL SECURtt1t No. 187-62 0799 LICENSE PLATE NO. ADDRESS (P. O. eox Number may be used in add'it+"at do >k~ ac~1 address. but cannot be used as the ony address.) y~ STATE 8 ADAMS ST, CD! HOLDER ^ YES ®NO CITY COUNTY STATE Z~ CODE DATE OF a~t'rH ENOIA PA 17025 MONTH 1 DAY 12 YEAR 1982 OFFENSE OCCURRED WHILE DRNING/TRANSPORTING ^ .Hazardous Material ^ Commercial Vehicle ^ School Vehicle ^ 16 + Passenger Vehicle ^ Other VIOLATION INFORMATION DATE OF VIOLATION DATE OF COtdlllCi'ION DATE LIL~NSE OR ACKNOWt.EDGEMENT SURRENDERED TO COl)Rl' OR DISTRICT MONTH DAY YEAR MONTH DAY YEAR ATTY 10 2s aolo s 13 2012 r DAY YEAR VIOLATION COMMITTED (Please use a separate form for each charge): ^ Misdemeanor ® Febr DATe ~ ACQUrITAtMOLLE PROSEQIA ry AaONTH DAY YEAR (Check one): 35 P.S. § 78D-113 ^ (a) (1) ^ (a) (30) CONTROLLED SUBSTANCE, DRUG, ^ (a) (12) ^ (a) (31) DEVICE AND COSMETIC ACT ® (a) (16) NOTE: This form is onty to be used for reporting the above-listed violations of the Controlled Substance, Drug, Device and Cosmetic Act whether or not a motor vehicle was U SED. _ . ~ 0 a motor vehicle was essentially invohred you must ALSO submit forrrt DL-2iB. ''` na THE UNDERSIGNED CERTIFIES THAT THE FOREI;OING,IS A CERTIFIED RECORD. a SEAL ~r p o~ ~' a~~~-- 06/13/2012 '-` o~ Clerk of Courts Date Certified ~' '= IMPORTANT• Under Section 6323 of the Vehicle Code, it is mandatory that the Clerk of Courts and any District m Justice report to the Bureau of Driver Ucensing the above-listed violatrons of the Gontroled +.~ Substance, Drug, Device and Cosmetic Act. m o -' SEND THIS FORM T0: Bureau of Driver Licensing, PO Box 60037, "' _._.. !rllsTisburg, Pennsyhran'ra 17106-0037 ° .r;.R RDDITIONAL SUPPLIES OF THIS FORM. MAY BE SECURED BY COMPLETING FORM OS-511A. ,IwpPG 21111 - 2012 REV. t)6/13/2Q12 ~ CPCMS Printed: 06J1312012 1:08:38PM cor.~oNwEAUrI oP Pe+N.mvnNw DEPARTMBJT OF 7'W VrSPORTATgN ~ BUREAU OF DRIVER LAG HARRISBURG, PENNSYLVANIA 17123 Date: July 19, 2012 CERTIFICATION ennS LV STATEMENT p y ania DEPARTMENT OF TRANSPORTATION In compNance wffh your request, I hereby certify that I have caused a seam to be made of the files of the Department of Transportation, and herewith is a true record in the name of: DAVID J. CONAHAN, 8 ADAMS STREET, ENOLA, PA 17025 OPERATOR NO.: ZJ~9O'47F39 DATE OF BIRTH: 1112/82 CLASS OF LICENSE: TITLE NO.: PURPOSE OF REQUEST: L I R=INSURANCE CxREDR E=EMPLOYMENT L=LE MOTHER DATE SECTION - ACTION TAI®i BY DEPARTMENT VIOIATIDIJ VK~3LATION (Partial'dritring record for fhe pu~pos~ 0f this`appeel onty (full ~utomatee- cerri~ied record °attachei .. 10/26/10 13A16 Possessiort_of controlled substance 4fl'icia! note of suspAitision dated & mailed 7/Oa/12, e~ctive 8N91'1~, for six months. Appeal pending, m canpBarlce wrm your request': I hereby certrty:that:thlve:Caused asearch t0 be ma '°of les tl~e ~ a is a true n name of the subject listed above. . . SFAL DIRECTOR; BUREAU OF DRNER LICENSING Information requested by: TAV DATE: July 19, 2012 COMMONWEALTH OF PENNSYLVANIA ss: I hereby certHy that,Ja~vanDw Depertr o fh~~ureau of Driver Lkensing of the Pennsylvania Deparment of Trarrapor~atiorr,:is the legal custodian of the Driver License r+ecOrda of the;~eii, nsportation. As the Dinsdor of the aforesaid Bur}bau, she tins IeljBl custody of the original, facsimile, or microfilm records which are reproduced in the attached certificatlon. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS D ARTMEtdT THE DAY AND YEAR AFORESAID .Y SFAL _ _: _ J. H;=P.E.,,SECRETARY OF TRANSPORTATION ~7 PAGE 1 PENNSYLVANIA DEPARTMENT OF TRANSPORTATION .. BUREAU OF DRIVER LICENSING CERTIFIED DRIVING HISTORY JUL 19 2012 DRIVER: DAVID J CONAHAN DRIVER LICENSE NO 25904789 8 ADAMS STREET DATE OF BIRTH JAN 12 1982 ENOLA, PA 17 0 2 5 SEX ; MA T.E RECORD TYFE REG LICENSE DRIVER LICENSE (DL) LICENSE CLASS C LICENSE ISSUE DATE: DEC 08 2009 LICENSE EXPIRES JAN 13 2014 JRIG I55UE DATE MAR 21 1998 HED RESTRICTIONS NONE LEARNER PERMITS LICENSE STATUS PEND SUSPEND COMMERCIAL DRIVER LICENSE (CDL) CDL LICENSE CLASS CDL LICENSE ISSUED CDL LICENSE EXPIRES: CDL ENDORSEMENTS NONE CDL RESTRICTIONS NONE CDL LEARNER PERMITS: CDI; LICENSE STATUS PEND SUSPEND rDL MED SELF CERT MEDICAL CERTIFICATE (MC) -----=---------------------------------- K~ STATUS . CDL LIC DOWNGRADED SB ENDORSEMENT PROBATIONARY LICENSE (PL) PL LICENSE CLASS PL LICENSE.ORIG ISS PL LICENSE ISSUED . PL LICENSE EXPIRES PL LICENSE STATUS OCCUPATIONAL LIMITED LICENSE (OLL) OLL LICENSE CLASS OLL LICENSE ISSUED . OLL LICENSE-EXPIRES OLL LICENSE STATUS *** CONTINUED *** PAGE 2 CERTIFIED DRIVING HISTORY - JUL 19 2012 - LICENSE NUMBER 25904789 CONTINUED ------------------------------------------------------------------------------- REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS -. VIOLATION DATE: APR 19 2001 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM .SPEED 068 MPH IN A 035 MPH ZONE CONVICTION DATE: MAY 01 2001 ACTION: DEPARTMENTAL HEARING ACTION: SUSPENSION AS A RESULT OF HEARING ACTION: SUSPENSION FOR 15 DAY(S) EFFECTIVE NOV 20 2001 OFFICIAL NOTICE MAILED OCT 17 2001 ACTION: RESTORATION OF OPERATING PRIVILEGES DEC 06 2001 VIOLATION DATE: MAR 27 2002 VIOLATION: VEHICLE CODE: 3714 DESCRIPTION: CARELESS DRIVING CONVICTION DATE: APR 19 2002 ACTION: .POINT EXAM ACTION: SUSPENDED - FAILED EXAM ACTION: FAIL TO TARE EXAM SUSPEND EFFECTIVE JUL 25 2002 OFFICIAL NOTICE MAILED-JUN 20 2002 *** CONTINUED *** ' PAGE ~ CERTIFIED DRIVING HISTORY - JUL 19 2012 - LICENSE NUMBER 25904789 CONTINUED VIOLATION DATE: MAY O1 2002 VIOLATION: VEHICLE CODE-: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 088 MPH IN A 065 MPH ZONE CONVICTION DATE: JUN 24 2002 ACTION: SUSPENSION FOR 20 DAY(S) EFFECTIVE JUL 25 2002 OFFICIAL NOTICE MAILED JUL 02 2002 VIOLATION DATE: JUL 03 2002 VIOLATION: CRIMES CODE: 6308 DESCRIPTION: UNDERAGE ALCOHOL OFFENSE CONVICTION DATE: JUL 22 2002 ACTION: SUSPENSION FOR 90 DAY(S) EFFECTIVE AUG 14 2002 OFFICIAL NOTICE MAILED AUG 05 2002 ACTION: RESTORATION OF OPERATING PRIVILEGES NOV 12 2002 a VIOLATION DATE: MAR 18 2005 VIOLATION: VEHICLE CODE: 3362 I'. DESCRIPTION: EXCEEDING MAXIMUM SPEED 081 MPH IN A 065 MPH ZONE CONVICTION DATE: MAR 28 2005 ACTION: ASSIGNED POINTS VIOLATION DATE: JUL 29 2008 VIOLATION: VEHICLE CODE: 3362 ? DESCRIPTION: EXCEEDING MAXIMUM SPEED 070 MPH IN A 055 MPH ZONE COMM VEHICLE: NO' HAZMAT: NO CDL HOLDER: NO CONVICTION DATE: AUG 12 2008 ACTION: ASSIGNED POINTS *** CONTINUED *** PAGE 4 CERTIFIED DRIVING HISTORY - JUL 19 2012 - LICENSE NUMBER 25904789 CONTINUED VIOLATION DATE: DEC 21 2008 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 065 MPH IN A 055 MPH ZONE ~OMM.VEHICLE: NO HAZMAT: NO CONVICTION DATE: JAN 07 2009 ?ACTION: ASSIGNED POINTS JIOLATION DATE; JUL 27 2009 iIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 077 MPH IN A 045 MPH ZONE ~OMM VEHICLE: NO HAZMAT: NO "ONVICTION DATE: AUG 11 2009 4CTION: EXAM/SPEED HEARING CDL HOLDER: NO CDL HOLDER: NO ACTION: PASSED EXAM SEP 01 2009 ?ACTION: SUSPENSION A5 A RESULT OF HEARING !ACTION: SUSPENSION FO.R 15 DAY(S) EFFECTIVE JAN 15 2010 OFFICIAL NOTICE MAILED DEC 18 2009 ~.CTION: RESTORATION OF OPERATING PRIVILEGES JAN 30 2010 JIOLATION DATE: OCT 26 2010 JIOLATION: VEHICLE CODE: 13A16 ?ESCRIFTION: POSSESSION OF CTRL SLJB ~OMM VEHICLE: NO HAZMAT: NO GDL HOLDER: NO CONVICTION DATE: JUN 13 2012 ACTION: SUSPENSION FOR 6 MONTH(S) EFFECTIVE AUG 09 2012 OFFICIAL NOTICE MAILED JUL 05 2012 *** CONTINUED *** ~ PAGE 5 CERTIFIED DRIVING HISTORY - JUL 19 2012 - LICENSE NUMBER 25904789 CONTINUED ------------------------------------------------------------------------------- REPORT OF MEDICALS AND DEPARTMENTAL ACTIONS ----------------------------------------------------------------------------- NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD ------------------------------------------------------------------------------- REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS ------------------------------------------------------------------------------- MOTOR VEHICLE ACCIDENT RECORDS LISTED ON THIS OPERATING REPORT DO NOT INDICATE FAULT FOR THE ACCIDENT. THE RECORD ONLY INDICATES THAT THIS INDIVIDUAL OR THE INDIVIDUAL'S VEHICLE WAS INVOLVED IN AN ACCIDENT ON THE DATE LISTED. ACCIDENT DATE: LOCATION: VEHICLE TYPE: ti SEVERITY: LEC 15 2010 CUMBERLAND CTY PASSENGER INJURY *** END OF RECORD *** PAGE 6 CERTIFIED DRIVING HISTORY - JUL 19 2012 - LICENSE NUMBER 25904789 CONTINUED IN COMPLIANCE WITH YOUR REQUEST, I HEREBY~CERTIFY THAT I HAVE CAUSED A SEARCH TO $E MADE OF THE FILES OF THE DEPART- MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE SUNIlKARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED. SINCERELY, ~~ ~.~~ DIRECTOR, BUREAU OF DRIVER LICENSING SEAL FOR SECRETARY OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA SS: DATE:JUL 19 2012 I HEREBY CERTIFY THAT JANET L. DOLAN, DIRECTOR OF THE BUREAU OF DRIVER LICENSING OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, IS THE LEGAL CUSTODIAN OF THE DRIVER LICENSE RECORDS OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTA'T'ION. AS THE DIRECTOR OF THE AFORESAID BUREAU, SHE HAS LEGAL CUSTODY OF THE ORIGINAL, FACSIMILE, OR MICROFILE RECORDS WHICH ARE REPRODUCED IN THE ATTACHED CERTIFICATION. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID.- SINCERELY, ~~~ ~~ BARRY J. SCHOCH, P.E. SECRETARY OF TRANSPORTATION SEAL EXHIBIT B COURT OF COMMON PLEAS OF CU~ERLAND COUNTY 't ;.~ ,r ~, e .: -~, i ~; ~~~ ,~ r .;~. Commonwealth of Pennsylvania v. David J. Conahan Docket Number: CP-21-CR-00024T5-2011 CRtMiNAL DOCKET Court Case -` Cross Court Docket Nos: MJ-09103-CR-0000195-2011 Judge Assigned: OTN: T0714722 Initial IssuinaAuthority: Richard S. Dougherty Jr. Arrestinsa Agency: Cumberland Cnty, Dist Attorney Case Local Number Tvoe(s) Date Filed: 08/26/2011 Initiation Date: 07/18/2011 Lower Court Docket No: MJ-09103-CR-0000195-2011 Final Issuing Authority: Richard S. Dougherty Jr. Arresting Officer: Mellott, Trenton R. Case Local Number(s) Page 1 of 7 Case Status: Closed Status Date Prot~ssing Status Complaint Date: 07/18/2011 06/13/2012 Sentenced/Penaky Imposed 06/13/2012 Awaiting Sentencing 10/20/2011 Awaiting Pre-Trial Conference 08/26/2011 Awaiting Formal Arraignment 08/26/2011 Awaiting Filing of Information 08/26/2011 Awaiting ARD Hearing T; Case Calendar Event Schedule t rt Room Judge Name Schedule Type art Date Time Status. Formal Arraignment 11/10/2011 9:00 am Jury Assembly Scheduled Room Pre-Trial Conference 01/11/2012 1:30 pm 4th Floor Moved Pre-Trial Conference 01/12/2012 1:30 pm 4th Floor Scheduled Pre-Trial Conference 02/22/2012 9:00 am 4th Floor Scheduled Pre-Trial Conferenoe O6/13/2012 9:00 am 4th Floor St~tedujed Date Of Birth: 01/12/1982 City/State2io: Enola, PA 17025 _ ~~. T~ ~ ~ Partiaoant Type N me Defendant Conahan, David J. /curt; klUtl1 - It9V 71 M1Jel1012 Recant entries made in the court Ming offices may not be immediately reflected on these docket sheets . Neitlror the courts of the Unified Judicial System of the Commornwealth of Pennsylvania nor ties Administrative Olfice of Psnnsylvur~ Courts aswme any IiabNity for inaxurats or delayed data, errors a omissions on these roports. Docket Sheet information should r~ be used in place of a criminal history background diedt which can only be provided by the PennsyMnia Staff Police. Moreover an employer who does not comply with the provisiars ~ the Criminal History Record Information Ad may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. Printetl: 11 /0 81201 2 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Commonwealth of Pennsylvania Set 07/19/2011 Unsecured $5,000,00 __ - ~~. e ~ tar rr3il ~:.. S Ong Sea• rig Statute Statute DescxiotiOn OlFensa Dt. QTT~V 1 1 F 35 § 780-113 §§A30 Manufacture, Delivery, or Possession 10/26/2010 T0714722 With Intent to Manufacture or Deliver 2 µ~P ^ _ 2 q V u , u F3 18 § 751.2 §§A~~y Criminal Use Of Communication Faality 10/26P2010 T0714722 3 3 M 35 § 780-113 §§A18 Int Poss Contr Subst By Per Not Reg ~~ 10/26/2010 T0714722 4 M 18 §901 §§A Criminal Attempt - Int Poss Contr Subst 10/26/2010 T0714722 Disposition Case Event Seauence/Description Sentencing Judoe Sentertce/Diversion Program Tvpe Sentence Conditions Linked Offense -Sentence Waived for Court (Lower Court) Lower Court Disposition Defendant Was Present 1 /Manufacture, Delivery, or Possession With Intent to Manufacture or Deliver 2 /Criminal Use Of Communication Facility 3 / Int Poss Contr Subst By Per Not Reg 4 /Criminal Attempt - Int Poss Contr Subst By Per Not Reg Proceed to Court Information Filed 1 /Manufacture, Delivery, or Possession Wdh Intent to Manufacture or Deliver 2 /Criminal Use Of Communicatian Facility 3 / Int Poss Contr Subst By Per Not Reg 4 /Criminal Attempt - Int Poss Contr Subst By Per Not Reg Disposition Date Final Disposition Offense Disposition Grade Section Sentence Date Credit For Tmie Served Incarceratiort/Diversionarv Period smart Dam Link Tvpe 08/23/2011 Waived for Court (Lower Court) Waived for Court (Lower Court) Waived for Court (Lower Court) Waived for Court (Lower Court) 1 0/1 912 0 1 1 Held for Court Held for Court Held for Court Held for Court Linked Docket Number Not Final r 35§780-113§§A30 F3 18§7512§§A M 35§780-113§§A16 M 18§901§§A Not Final F 35§780-113§§A30 F3 18§7512§§A M 35§780-113§§A16 M 18§901§§A MVrI. ifVOL - RBV l7IlAlLUIL Printed: 11/08/2012 Recent entries made in the court filing offices may not be immediatey reflected on these docket sheets .Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts usurrle any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a cxirninM history badspround check which can only be provided by the Pennsylvania Stela Police. Moreover an employer who does not comply wig the provisions of the Criminal History Record Information Act may be subject to civY liability as set forth in 18 Pe.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ,~ :+'" '' ~~- .. -+, ~ ~ ~, ;. , Commonwealth of Pennsylvania Linked Offense -Sentence Link Tvoe Guilty Plea Defendant Was Present Pre-Trial Conference 06/13/2012 1 /Manufacture, Delivery, or Possession Wdh Intent Dismissed to Manufacture or Deliver Masland, Albert H. 06/13/2012 2 /Criminal Use Of Communication Facility Dismissed Masland, Albert H. 06/13/2012 3 / Int Poss Contr Subst ByPer~Not Reg Masland, Albert H. Dismissed 06/13/2012 CRM#NAL DOCKET Court Case Linked Docket Number Final Disposition F 35§780-113§§A30 _.._....~3.._m_w_ 18§7512§§A. . ~ .~~ w.. - ~. M . _-.35§780-113§§A16 .~~ _._._ _...~_.. _ -..,,_~,M.~,..,.~,~.,.~,w,.w. ~.,.-,__ w~~~~...,.~,.~. _ ,,~..,~.v..-,w.,.~~~ 4 /Criminal Attempt - Int Poss Contr Subst By Per Guilty Plea M 18§901 §§A Not Reg Masland, Albert H. 06/13/2012 Probation Min of 12.00 Months Max of 12.00 Months Other Drug and Alcohol Program 1 S§~3§§C -Probation Concurrent To Seq. 4 CP-21-CR-X02269-2011 nVrti AlOL-ROV IINOlLVIL Pr1Med: 11/08/2012 Recent entries made in the court fdinQ olBces may not be immediately rollected on these docket sheets . Neither the courts of ttro Unifbd Judirtial System of the Commonwealth d Pennsylvania nor the Administrative ORkx of Pennsylwnia Courts assume any liab8ity for inaocurets or delayed data, errors or omissions on these reports. Docket Sheet information stwuld not be used in place ~ a crimin~ history badcp-orrnd check which can only tx provided by the Pennsylwnia State Police. Moreover an empbyer who dow not comply with the provisions of the Criminal History Retail Information Act may be subject to civil liability as set forth in 1 S Pa.C.S. Section 9183. Docket Number: CP-21-CR-0002475-2011 Commonwealth of Pennsylvania v Page 4 of 7 Name: Christin J. Mehrtens-Carlin - - - -- -____~ Name: Robert James Daniels Jr., Esq. District Attorney Private Supreme Court Nb: 200361 Supreme Court No: 083376 Phone Number(sl: Rep. Status: Active (717) 240-6467 (Phone) Phone Number(sl: Address: (717) 232-1851 (Phone) One Courthouse Square (717) 238-0592 (Fax) Carlisle PA 17013 Address: 218 Pine Street Harrisburg PA 17101 Representing: Conahan, David J. 1 10/20/2011 Daniels, Robert James Jr. Entry of Appearance - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 2 10/20/2011 Daniels, Robert James Jr. Acknowledgment of Arraignment, filed. You and your attorney are directed to appear on 1/12/12 at 1:30 PM for PTC and to appear on 1/23/12 at 9:00 AM for Trial. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 12/29/2011 Daniels, Robert James Jr. Motion for Continuance, Filed. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 12/30/2011 Mastand, Albert H. Order of Court, filed 12/30/11. In Re: Motion for Continuance It is hereby ordered and decreed that the PTC and Trial dates in the above-captioned matters are continued until 2/22/12 at 9:00 AM, and appear for trial on 3/5/12 at 9:00 AM. 1/3/12 -copies delivered/mailed. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - AUYt; LU6L - KeV 1'1/06/1072 Printetl: 11/08/2012 Recent entries made in the court filing offices may not be immediately reflected on these docket aheefs . Neither the courts of ttte Unified Judicial System of the Commonwealth of Pennsylvania nor the Adminislrefive t~Rice of Pennsylwnia Courts assume any liability for inaxurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a c+iminal history background check which can only be provided by the Pennsylvania State Police. Moroover an empbysr who does not comply with the provisions of the Crirrrinal History Record Informatan Act may be subject (b av~ liability as set forth in 18 Pa.C.S. Section 8183. Commonwealth of Pennsylvania v Page 5 of 7 av nahan .... h. .. ., ;Y :. .. ,.. Sequence Number CP Filed Date Document Date Filed By 2 02/22/2012 Hess, Kevin A. Pre-Trial Conference Order of Court, Filed 2/22112. In Re: Continuance. The Def. is to appear for a PTC on 6/13/12, at 9:OOam and for trial on 6/25/12, at 9:OOam. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 06/13/2012 Daniels, Robert James Jr. Guilty Plea Colloquy and Plea of Defendant, filed. 2 06!13/2012 Masland, Albert H. Guilty Plea 3 06/13/2012 Order - Sentence/Penalty Imposed 4 06!13/2012 DL-21 D Prepared. PennDOT 06/13/2012 Certified 1 06/14/2012 Masland, Albert H. Lebo, Dennis E. 06/18/2012 Penalty Assessed 1 06/18/2012 Guilty Plea Order of Court, filed 6/13/12. 6/18/12 -copies delivered/mailed. 2 06/18/2012 Sentence Order of Court, filed 6/13/12. 6/18/12 -copies delivered/mailed. 1 07/09/2012 Penalty Satisfied 1 07/16!2012 Guideline Sentence Form 06/13/2012 06/13/2012 Accepted Court of Common Pleas -Cumberland County Masland, Albert H. Masland, Albert H. Conahan, David J. Cumberland County DistrictAttomey's Office w.-,. awa - nev i uw~cv ~ c Printed: 11/08/2012 Recent entries made in the court ftling otFicea may not be immediately reflecMd on these docket sheets . Neither the courts of the Unified Judictial System of the Commonwealth of Pennsylvania nor the Administrative Olfice of Pennsylvania Courts assume any liability for inaxurab or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can oMy be provided by the Pennsylvania State Police. Moroover an empbyer who dog not c»mply with the provisions of the Criminal History Record Information Act may be subject to dvN liability as set forth in 18 Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY :>, _ ~,. ~ n a: ~ .~ Docket Numl~r: CP-21-CR-0002475-2011 CRtMiNAL DOCKET Court Case Commonwealth of Pennsylvania v Page 6 of 7 David J. Cortahan Last Payment Date: 07/09/2012 Total of Last Payment: -$1,063.00 Conahan, David J. Assessment Payments Adjustments Non Monetary Total Defendant PavmenEs Costs/Fees District Attorney (Forensic $105.00 -$105.00 $0.00 $0.00 $0.00 Laboratory)Cumberiand District Attorney (Forensic $105.00 -$105.00 $0.00 $0.00 $0.00 Laboratory)Cumberland State Court Costs (Act 204 of 1976) $11.00 -$11.00 $0.00 $0.00 $0,00 Commonwealth Cost - Ht3627 (Act 167 $9.40 -$9.40 $0.00 $0.00 $0.00 of 1992) County Court Cost (Act 204 of 1976) $30.60 -$30.60 $0.00 $0.00 $0.00 Crime Victims Compensation (Act 96 $35.00 -$35.00 $0.00 $0,00 $0 00 of 1984) Domestic Violence Compensation (Act $10.00 -$10.00 $0.00 $0,00 $0 00 44 of 1988) Victim Wdness Service (Act 111 of $25.00 -$25.00 $0.00 $0.00 $0.00 1998) Firearm Education and Training Fund $5.00 -$5.00 $0.00 $0.00 $0 00 (158 of 1994) Substance Abuse Education (Act 198 $50.00 -$50.00 $0.00 $0.00 $0.00 of 2002) Substance Abuse Education (Act 198 $50.00 -$50.00 $0.00 $0.00 $0.00 of 2002) District Attorney (Cumberland) $19.00 -$19.00 $0.00 $0.00 $0.00 Plea Fee (Cumberland) $175.00 -$175.00 $0.00 $0.00 $0.00 Administrative Fee (Cumberland) $45.00 -$45.00 $0.00 $0.00 $0.00 Sheriff Costs (Cumberland) $1.50 -$1.50 $0.00 $0.00 $0.00 Automation Fee (Cumberland) $5.00 -x.00 $0.00 $0.00 ~ ~ Traffic Report Costs (Cumberland) $8.00 -$8.00 $0.00 $0.00 $0.00 Non DUI Central Processing Cost $200.00 -$200.00 $0.00 $0.00 $0.00 {Cumberland) Costs of Prosecution - CJEA $50.00 -$50.00 $0.00 $0,00 $0 00 Judicial Computer Project $8,00 _$8.00 $0.00 $0 ~ ~ ~ ATJ $3.00 -$3.00 $0.00 $0.00 $0,00 CJES $2.25 -$2.25 $0.00 $0,00 $0,00 JCPS $10.25 -$10.25 $0.00 $0.00 $0.00 J~'li auoG - RtlY i iniwcv~[ PdMed: 11/08@012 Recent entries made in the court fling otRoes may not be immediately reflected on these docket sheets .Neither the courts of the Unified Judicial System of the Commomveakh of Pennsylvania nor the Adminis4ative Olrax of Pennsylvania Courts assume any liabilityy for inaxurets or delayed data, errors or omissions on these roports. Docket Sheet information should not be used in place of a criminal history background check which can only be Provided by the Pennsylvania State Police. Moroover an empbyer who does not comply with the provisions of fhs Criminal History Record Information Act may l1e subject to civil liability as set forth in 18 Pa.C.S. Section 9183. Conahan, David J. Defendant Costs/Fees Totals: Fines Crimes Code, etc. Fines Totals: Grand Totals: ** -Indicates assessment is subrogated Commonwealth of Pennsylvania v. David J. Conahan Page 7 of 7 Assessment Payments Adjustments Non Monmtarv Total $963.00 -$963.00 $0.00 $0.00 $0.00 $100.00 -$100.00 $0.00 $0.00 $0.00 $100.00 -$100.00 $0.00 $0.00 $0.00 $1,063.00 -$1,063.00 $0.00 $0.00 $0.00 -v auo~ - rtev ~ vuor[ul[ Printed: 11/08/2012 Recent entries made in the court Bing olficea may not be immediately reflected on these dodcst ahesb .Neither the courts of the Unified Judicial System of the Commonrveahh d Pennsylvania nor the Administrative ORkx of Penraylvania Courts assume any Ii~Ny for inaxurats or delayed data, errors or omissions on these reports. Docket Sheet infonmatbn should not be used in place of a crimin~ history background check whidt can only be provided by the Pennsylvania State Police. Moreover an empbysr who does not comply with tM provisions of the CrirrMrr~ History Record Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. EXHIBIT C DAVID J. CONAHAN, Petitioner v. IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, . BUREAU OF MOTOR VEHICLES, Respondent ORDER NO. 12-4450 CIVIL TERM APPEAL OF DRIVER LICENSE SUSPENSION AND NOW, this 24th day of October, 2012, the appeal filed in the above- captioned matter is: REMANDED to the Department of Transportation for correction of its records. .DISMISSED and the suspension which is the basis of this appeal shall be REINSTATED. V SUSTAINED and the suspension which is the basis of this appeal shall be RESCINDED. WITHDRAWN and the suspension which is the basis of this appea( shall be REINSTATED. CONTINUED and RESCHEDULED for the day off; =:~; , 20 , at _.m., in Court~~ o ~~ z~ n ~,_.. Room No. of the Cumberland County Courtho ; dG Carlisle, Pennsylvania. ~o ~~ -~ _z4 a ~ ~_ BY THE COURT: ~''~ © ~~' ~ ~ ~~ --; ~~,_ ~ J. Attest: Robert J. Daniels, Esq., 218 Pine Street, P.O. Box 886, Harrisburg, PA 17108-0886 Phili . Bracknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, 3`~ Floor; 1101 South Front Street, Harrisburg, PA 17104-2516 EXHIBIT D ~iiui ni~nir ^11284 b468 234715^ JOSHUA M. CULLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVING LICENSING NO. 11-5015 CIVIL TERM ORDER OF COURT AND NOW, this 29s' day of September, 2011, upon consideration of Petitioner's Appeal from Suspension of Operating Privilege as noticed by mailing dated May 28, 2011, and following (a) a hearing held on July 12, 2011, (b) a vacation pn July 25, 2011, of the initial order in the case, and (c) a further period of hearing on September 27, 2011, the Petitioner's appeal is denied and the suspension of Petitioner's driving privilege as noticed by mailing dated May 28, 2011, is affirmed. See Dienes v. Commonwealth, Department of Transportotion, Nos. 2550 C.D. 2010, 2551 C.D. 2010, 2552 C.D. 2010 (Pennsylvania Commonwealth Court May 20, 20I 1); Conchado v Commonwealth, Department of Transportation, 941 A.2d 792 (Pa. Commw. Ct. 2008). Joshua M. Culley 6977 Wentzville Road Enola, PA 17025 Petitioner, pro Se ~ ~~ ~~J1! t' o~'r... BY THE COURT, ~ w Philip Bricdcnell, Esq. t Counsel . Department of Transportation Office of Chief Counsel Rive front Office Center 1101 South Front Street Harrisburg, PA 17104-2830 EXHIBIT E IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sherry M. Dienes v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 2550 C.D. 2010 No. 2551 C.D. 2010 No. 2552 C.D. 2010 Submitted: Apri121, 2011 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: May 20, 2011 The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Jefferson County (trial court) sustaining the statutory appeals of Sherry M. Dienes (Licensee) and rescinding the Department's three, six-month suspensions of her driving privilege because her convictions for criminal conspiracy to deliver a controlled substance did not fall under the violations listed in Section 1532(c) of the Vehicle Code.' Because a conviction for criminal conspiracy to deliver a ~ ?5 Pa. C.S. § 1532(c). That section provides, in pertinent part, as follows: (Footnote continued on nett page...) controlled substance constitutes an "offense involving the possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance," we reverse. The facts of this case are not in dispute. On February 22, 2010, Licensee entered a guilty plea to three counts of criminal. conspiracy, 18 Pa. C.S. §903(a)(1), with the underlying offense being delivery of a controlled substance in violation of Section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act).2 Upon being notified of Licensee's conviction, the (continued...) (c) Suspension. -The department shall suspend the operating privilege of any person upon receiving a certified record of the person's conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance... . (1) The period of suspension shall be as follows: (i) For a first offense, a period of six months from the date of the suspension. 2 Act of April 14, 1972, P.L. 1048, as amended, 35 P.S. §780-113(a)(30). Section 13(a)(30) of the Drug Act defines Licensee's underlying offense as "the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance." 2 Department sent Licensee a notice that her operating privilege was being suspended for six months pursuant to 75 Pa. C.S. § 1532(c).3 Licensee filed a timely appeal of all three suspensions, which the trial court consolidated, and a de novo hearing was held. No testimony was presented, but the Department introduced the notice it received of Licensee's conviction4 and asked the trial court to take judicial notice of the docket information for Licensee's three criminal cases. The Department argued that in Conchado v. Department of Transportation, Bureau of Driver Licensing, 941 A.2d 792 (Pa. Cmwlth. 2008), this Court held that suspension under 75 Pa.C.S. §1532(c) was required for a conviction for conspiracy to violate Section 13(a)(30) of the Drug Act. Licensee argued Conchado was not controlling because the statement that a suspension could be imposed for conspiracy to violate Section 13(a)(30) of the Drug Act was merely dictum. In the alternative, Licensee argued that in order to determine whether a conspiracy conviction "involved" the possession, sale or delivery of a controlled substance, it was necessary for the trial court to have evidence of the underlying crime, including the facts surrounding a licensee's involvement in the 3 Licensee received a total of three notices of suspension, one for each of her criminal conspiracy convictions. The first notice indicated that Licensee's operating privilege was being suspended for a period of six months effective June 23, 2010, for the violation occurring on December 19, 2007. The second notice indicated that asix-month suspension was being imposed effective July 22, 2010, for the violation occurring on December 27, 2007. The third and final notice indicated that asix-month suspension was being imposed effective January 22, 2011, for a violation that occurred on January 4, 2008. a While the notice indicated that Licensee was convicted of violating 35 P.S. §780- 113(a)(30), the parties stipulated that Licensee was, in fact, convicted of three counts of criminal conspiracy to violate Section 13(a)(30) of the Drug Act, not the actual offense of delivery. 3 underlying crime. Because such evidence was lacking in this case, Licensee argued that a suspension was not appropriate. The Department disagreed, stating it was an improper collateral attack on Licensee's conviction. Adopting Licensee's alternative argument, the trial court sustained Licensee's appeal, stating that the definition of conspiracy to deliver a controlled substance "does not warrant the inescapable conclusion that she was "involved" in the delivery of a controlled substance for purposes of § 1532(c)." (Trial court opinion at 3). It reasoned that the Conchado court "did not intend the result that any criminal conspiracy conviction undergirded by a § 1532(c)-type conviction would result in a license suspension regardless of [the Department's] ability to demonstrate that the motorist's involvement was more than remotely attenuated to the possession, sale, delivery, offering for sale, holding for sale, or giving away of any controlled substance." (Trial court opinion at 3). The trial court noted that the Department neither called any witnesses who may have linked Licensee to the actual delivery or the trooper who swore out the affidavits nor did it present copies of her plea and sentencing transcripts. Because there was no factual record indicating the extent of Licensee's involvement in the conspiracy, it was possible that she did nothing more than, inter alia, agree that her co-conspirator would deliver the drugs, which the trial court stated would not "involve" delivery of a controlled substance. The trial court found there were no proven facts directly connecting Licensee to the possession, sale, or delivery of a control substance; 4 s therefore, her conviction for criminal conspiracy did not support a license suspension. This appeal followed.s The sole issue on appeal is whether the phrase "any offense involving the possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance" in Section 1532(c) of the Vehicle Code encompasses Licensee's conviction for conspiracy to commit delivery of a controlled substance. This Court has examined the construction of this particular statute in several prior cases. In Keim v. Department of Transportation, Bureau of Driver Licensing, 887 A.2d 834 (Pa. Cmwlth. 2005), the Department suspended Keim's operating privilege following notification that he pleaded guilty to the offense of manufacturing a controlled substance, marijuana. Keim appealed and the trial court found that because "manufacture" of a controlled substance was not included in the offenses enumerated in Section 1532(c) of the Vehicle Code it could not be the basis for a suspension. However, we held that: Although it is certainly true that a person may possess a controlled substance without having manufactured it, it is equally true that a person may not manufacture a controlled substance without possessing it. For purposes of Section 1532(c) of the Vehicle Code, a conviction for 5 Our scope of review is limited to determining whether the trial court committed an error of law or an abuse of discretion, and whether the trial court's findings are supported by substantial evidence. Gregro v. Department of Transportation, Bureau of Driver Licensing, 987 A.2d 1264 (Pa. Cmwlth. 2010). 5 manufacture of a controlled substance is a conviction of an "offense involving possession" of a controlled substance. The Court agrees with [the Department] that the result would be absurd and unreasonable and therefore not in accordance with the intent of the legislature ... if conviction of the offense of manufacture of a controlled substance were deemed to be outside the scope of "any offense involving possession ... of any controlled substance" in Section 1532(c). Id. at 839. (Internal citations omitted). In Conchado, the Department suspended the licensee's operating privilege pursuant to Section 1532(c) upon receiving notice that he was convicted of the charge of criminal conspiracy to commit possession with intent to deliver. Relying upon our precedent in Keim, we stated, "[i]t would appear obvious ...that conspiracy to commit a crime `involves' that crime." Conchado, 941 A.2d at 795. Therefore, we held that Section 1532(c) provides for a license suspension following a conviction for criminal conspiracy to commit possession with intent to deliver a controlled substance. The relevant inquiry in a license suspension case is whether or not the licensee was, in fact, convicted; not whether she should have been or what the underlying circumstances were. Department of Transportation v. Soder, 532 A.2d 948 (Pa. Cmwlth. 1987). The Department is not required to establish Licensee's actual role in the conspiracy as the statute only requires proof that the Department received "a certified record of the person's conviction." 75 Pa. C.S. § 1532(c). Once the Department established that Licensee was convicted of three counts of 6 Y criminal conspiracy to deliver a controlled substance, it met its burden. Given our previous decisions in Keim and Conchado, conspiracy to commit the crime of delivery necessarily "involves" that crime for purposes of Section 1532(c) of the Vehicle Code. Suspension of Licensee's operating privilege under Section 1532(c) was proper. Accordingly, the order of the trial court is reversed. DAN PELLEGRINI, JUDGE 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sherry M. Dienes v. Commonwealth of Pennsylvania, Department of Transportation, No. 2550 C.D. 2010 Bureau of Driver Licensing, No. 2551 C.D. 2010 Appellant No. 2552 C.D. 2010 ORDER AND NOW, this 20~' day of Mav, 2011, the order of the Court of Common Pleas of Jefferson County in the above captioned matters is hereby reversed and the license suspensions at issue in this appeal are reinstated. DAN PELLEGRINI, JUDGE Get aDocument - by Citation - 941 A.2d 792 Page 1 of 5 ~ 1 941 A.2d 792, *; 2008 Pa. Commw. LEXIS 82, ** Christine M. Conchado v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 259 C.D. 2007 COMMONWEALTH COURT OF PENNSYLVANIA 941 A.2d 792; 2008 Pa. Commw. LEXIS 82 October 29, 2007, Argued February 5, 2008, Decided February 5, 2008, Filed PRIOR HISTORY: [**1] Appealed from No. 06-30997. Common Pleas Court of the County of Montgomery. Rossanese, Jr., J. CASE SUMMARY: PROCEDURAL POSTURE: Appellant, the Department of Transportation, Bureau of Driver Licensing (DOT), challenged the order entered by the Court of Common Pleas of Montgomery County (Pennsylvania), which sustained appellee licensee's petition for appeal. The trial court's order rescinded the suspension of the licensee's driver's license, which was suspended rnandatorily under 75 Pa.C.S. § 1532(c). OVERVIEW: DOT suspended the licensee's driver's license upon receiving a certified conviction stating that she had been convicted for possession with intent to deliver a controlled substance, in violation of 35 Pa. Stat. Ann. § 780-113(a)(30). The licensee filed a timely statutory appeal, and a de novo hearing took place before the trial court wherein DOT offered into evidence the certified conviction. The trial court, sua sponte, took judicial notice of an uncertified photocopy of what was represented by the licensee's counsel to be a sentencing sheet. Based on that document, the trial court found that the charge had been amended to criminal conspiracy to possession with intent to deliver, in violation of 18 Pa.C.S. § 903. After finding that criminal conspiracy was not a crime for which DOT could suspend a driver's license, the trial court granted the licensee's appeal. The court held that the trial court improperly took judicial notice of the purported sentencing sheet, which was an uncertified, unauthenticated photocopy. The court also held that 75 Pa.C.S. § 1532(c) mandated suspension of the license upon concluding that § 1532(c) included convictions not specifically enumerated. OUTCOME: The court reversed the order of the trial court. CORE TERMS: controlled substance, criminal conspiracy, suspension, license suspension, judicial notice, sentencing, waived, conspiracy, trigger, sheet, driver's license, enumerated, photocopy, license, deliver, driver, conspiracy conviction, conspiracy to possess, conspiracy to commit, broad interpretation, manufacturing, uncertified, manufacture, possessing, mandatory, suspended, purported, suspend, unauthenticated LEXISNEXIS(R) HEADNOTES Evidence > Judicial Notice > Adjudicative Facts > Proceedings in Other Courts HNS ~. While a court in appropriate circumstances may take judicial notice of court records, .~.. https://www.lexis.com/research/retrieve? m=6a5a6ee6bc60a1174a4092288762b784& bro... 11/5/2012 • Get aDocument - by Citation - 941 A.2d 792 Page 2 of 5 that does not include unauthenticated photocopies which look like court records but are not stipulated to be genuine and accurate. Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review > Requirements HN2iAn argument is properly preserved for appeal if a party includes the argument in its Pa.R.A.P. 1925(b) statement. Transportation Law > Private Vehicles > Operator Licenses > Revocation & Suspension wN3i75 Pa.C.S. § 1532(c) states that the Department of Transportation, Bureau of Driver Licensing, shall suspend the driving privileges of any person upon receiving a certified record of the person's conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale, or giving away of any controlled substance under the laws of the United States, the Commonwealth of Pennsylvania, or any other state. Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > Conspiracy > Elements Transportation Law > Private Vehicles > Operator Licenses > Revocation & Suspension HNC' M Use of the phrase any offense involving in the enumerated offenses set forth in 75 Pa.C.S. § 1532(c) of the Vehicle Code should be broadly interpreted to include convictions not specifically enumerated in § 1532(c) within the trigger for mandatory suspension. Conspiracy to commit a crime involves that crime. Section 1532(c) provides for a license suspension following a conviction for criminal conspiracy to possess with intent to deliver. Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Conspiracy > Penalties Criminal Law & Procedure > Sentencing > Guidelines > General Overview f/rvs+In the .Commonwealth of Pennsylvania, conspiracy is a crime of the same grade and degree as the most serious offense that is the object of the conspiracy. 18 Pa.C.S. § 905(a). Under the Pennsylvania Sentencing Guidelines, a conviction for conspiracy to commit an offense under the Controlled Substance, Drug, Device, and Cosmetic Act, 35 Pa. Stat. Ann. § 780-113(a)(30), receives the same Offense Gravity Score as the offense that is the object of the conspiracy. 204 Pa. Code § 303.3(3). The Guidelines treat a conspiracy as identical to the underlying crime itself. COUNSEL: Harold H. Cramer, Asst. Chief Counsel, Harrisburg, for appellant. Marc Robert Steinberg, Lansdale, for appellee. JUDGES: BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President ]udge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JIM FLAHERTY, Senior Judge. OPINION BY PRESIDENT JUDGE LEADBETTER. OPINION BY: BONNIE BRIGANCE LEADBETTER OPINION [*794] OPINION BY PRESIDENT ]UDGE LEADBETTER Appellant Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the order entered by the Court of Common Pleas of Montgomery County (trial court) sustaining Appellee Christine M. Conchado's Petition for Appeal. DOT contends the trial court erred in rescinding the suspension of Conchado's driver's license. We must determine whether a https://www.lexis.com/research/retrieve? m=6a5a6ee6bc60a1174a4092288762b784& bro... 11/5/2012 Get aDocument - by Citation - 941 A.2d 792 Page 3 of 5 conviction for criminal conspiracy triggers a mandatory license suspension under 75 Pa. C.S. § 1532(c). The trial court held that it does not. For the following reasons, we reverse. DOT received a certified conviction from the Montgomery County Clerk of Courts stating that on July 10, 2006, Conchado had been convicted for a violation of Section 13(a)(30) of the Controlled Substance, Drug, Device [**2] and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 1048, as amended, 35 P.S. 780-113(a)(30). DOT then informed Conchado by mail that her driver's license would be suspended for six months as provided by Section 1532(c). Conchado filed a timely statutory appeal, A de novo hearing took place before the trial court. At that hearing, DOT offered into evidence the certified conviction. The trial court also took judicial notice, sua sponte, of an uncertified photocopy of what was represented by Conchado's counsel to be the sentencing sheet from Juiy 10, 2006. Based on this document, the trial court found that Conchado's charge had been amended to Criminal Conspiracy to Possession with Intent to Deliver. See 18 Pa. C.S. § 903. The court concluded that the certified conviction stated erroneous information. After finding that criminal conspiracy was not a crime for which DOT could suspend a driver's license, the trial court granted Conchado's appeal. On appeal, DOT first argues that the trial court improperly took judicial notice of the purported sentencing sheet. We agree. The trial court erred in taking judicial notice of information contained in an uncertil=fed, unauthenticated photocopy [**3] of a disputed document. Hers #While a court in appropriate circumstances may take judicial notice of court records, this does not include unauthenticated photocopies which look like court records but are not stipulated to be genuine and accurate. DOT also argues that, even if Conchado's guilty plea was to conspiracy to possess rather than possession of drugs, suspension was mandated. In its Pa. R.A.P. 1925(a) opinion, the trial court did not address this argument, but opined that by not presenting it at the hearing, DOT waived the argument that the criminal conspiracy conviction falls under Section 1532(c). The court noted that at the hearing, DOT argued that a plea agreement that reduced the charge and led to the imposition of a preadjudication program might still trigger a license suspension under Section 1532(c}. The trial court found the case at bar to be a different situation because there was a completely different charge, and that charge was not one that triggered a license suspension. Considering the issue waived, the trial court chose not to discuss it further in its Pa. R.A.P. 1925(a) opinion. In analyzing the contention that DOT waived its argument that criminal conspiracy falls [**4] under Section 1532(c), we first note the extremely brief nature of the hearing. At the trial, the court took judicial notice of Conchado's sentencing sheet, found DOT's evidence to be erroneous, held that criminal conspiracy does not trigger a license suspension and granted the appeal before counsel for DOT had a chance to make any objection or argument. See R.R. at 14a-15a. Turning to the legal [*795] analysis, the trial court relies on Stein v. Dept. of Transp., Bureau of Driver Licensing, 857 A.2d 719 (Pa. Cmwlth. 2004), and George v. Ellis, 2006 PA Super 306, 911 A.2d 121 (Pa. Super. 2006), to support its holding that DOT had waived an argument by failing to clearly state and support it at the hearing. However, Stein and George both dealt with parties who failed to include or support an argument in their brief at the appellate level. Here, we are dealing with a party that had no reasonable opportunity to articulate an argument before judgment was passed, but did then raise a brief objection related, but not identical to, that later fully developed in his Pa. R.A.P. 1925(b) statement. Under these circumstances, we do not consider it waived. See Venafro v. Dept. of Transp., Bureau of Driver Licensing, 796 A.2d 384, 388 n.4 (Pa. Cmwlth. 2002) [**5] (HN~~an argument is properly preserved for appeal if a party includes the argument in its Rule 1925(b) statement). Whether Conchado's conviction was for criminal conspiracy, as the purported sentencing sheet suggests, or for actual possession with intent to deliver, as the certified conviction indicates, Section 1532(c) mandates suspension of her license. The statute HN3tstates that DOT shall https://www.lexis.com/research/retrieve? m=6a5a6ee6bc60a1174a4092288762b784&_bro... 11/5/2012 Get aDocument - by Citation - 941 A.2d 792 Page 4 of 5 suspend the driving privileges of "any person upon receiving a certified record of the person's conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale, or giving away of any controlled substance under the laws of the United States, this Commonwealth or any other state ...." 75 Pa. C.S. § 1532(c). DOT argues that the statute's use of the phrase "any offense involving" supports a broad interpretation. DOT asserts that Conchado's criminal conspiracy conviction falls under this broad interpretation because her conspiracy to possess necessarily "involved" possession. This Court has previously examined the construction of this particular statute in K®im v. Dep'!. of Transp., Bureau of Driver tic~ensing, 887 A.2d 834 (Pa. Cmwlth. 2005). In Keim, DOT, pursuant to Section 1532(c), [**6] suspended the license of a driver who pleaded guilty to one count of manufacturing a controlled substance. Id. at 835. The driver appealed the suspension because the manufacture of a controlled substance was not one of the offenses enumerated in Section 1532(c}. Id. at 836. This court held that because it would be impossible for a person to manufacture a controlled substance without possessing it, for the purposes of the statute, the manufacturing of a controlled substance was an "offense involving possession" of a controlled substance. Id. at 839. Any other result "would be absurd and unreasonable and therefore not in accordance with the intent of the legislature[.)" Id. (citation omitted). Plainly, the case sub judice does not fall squarely within our holding in Keim. Indeed, it is quite possible to conspire to possess a controlled substance without actually possessing the controlled substance. However, in Keim, we concluded that "HNa~use of the phrase 'any offense involving' enumerated offenses in Section 1532(c) of the Vehicle Code" should be broadly interpreted to include convictions not specifically enumerated in Section 1532(c) within the trigger for mandatory suspension. Id. It [**7] would appear obvious, as DOT argues, that conspiracy to commit a crime "involves" that crime. 1 Thus, Section 1532(c) [*796] provides for a license suspension following a conviction for Criminal Conspiracy to Possess with Intent to Deliver. FOOTNOTES s HN~In Pennsylvania, conspiracy is a crime of the same grade and degree as the most serious offense that is the object of the conspiracy. See 18 Pa. C.S. § 905(a). Under the Pennsylvania Sentencing Guidelines, a conviction for conspiracy to commit an offense under the Drug Act receives the same Offense Gravity Score as the offense that is the object of the conspiracy. See 204 Pa. Code § 303.3(3). The Guidelines treat a conspiracy as identical to the underlying crime itself. Accordingly, the order of the trial court is reversed. BONNIE BRIGANCE LEADBETTER, President Judge ORDER AND NOW, this 5th day of February, 2008, the order of the Court of Common Pleas of Montgomery County in the above captioned matter is hereby REVERSED, and the license suspension at issue in this appeal is REINSTATED. BONNIE BRIGANCE LEADBETTER, President Judge Service: Get by LEXSEE® Citation: 2008 Pa. Commw. LEXIS 82 View: Full https://www.lexis.com/research/retrieve?_m=6a5a6ee6bc60a1174a4092288762b784& bro... 11/5/2012 Get aDocument - by Citation - 941 A.2d 792 y. Date/Time: Monday, November 5, 2012 - 4:08 PM EST * Signal Legend: - Warning: Negative treatment is indicated - Questioned: Validity questioned by citing refs - Caution: Possible negative treatment - Positive treatment is indicated - Citing Refs. With Analysis Available - Citation information available * Click on any Shepard's signal to Shepardize® that case. Page 5 of 5 l~ About LexisNexis ~ Privacy Policy ~ Terms & Conditions ~ Contact Us Copyright © 2012 LexisNexis, a division of Reed Elsevier Inc. Ail rights reserved. https://www.lexis.com/research/retrieve? m=6a5a6ee6bc60a1174a4092288762b784& bro... 11/5/2012 Get aDocument - by Citation - 887 A.2d 834 Page 1 of 8 ,, , r 887 A.2d 834, *; 2005 Pa. Commw. LEXIS 740, ** Roy P. Keim, Jr. v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 2481 C.D. 2004 COMMONWEALTH COURT OF PENNSYLVANIA 887 A.2d 834; 2005 Pa. Commw. LEXIS 740 September 13, 2005, Argued December 7, 2005, Decided December 7, 2005, Filed SUBSEQUENT HISTORY: [**i] As Modified February 10, 2006. PRIOR HISTORY: Appealed from Common Pleas Court of the County of Lehigh. No. 2004-0- 1198. Lavelle, Senior Judge. CASE SUMMARY: PROCEDURAL POSTURE: Appellant Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT), challenged an order from the Common Pleas Court of the County of Lehigh (Pennsylvania), which sustained a statutory appeal by respondent licensee and which reversed the DOT's order suspending the licensee's operating privilege under the authority of § 1532(c) of the Vehicle Code, 75 Pa. Cons. Stat. § 1532(c). OVERVIEW: After the licensee's pled guilty to manufacturing controlled substances in violation of § 13(a)(30) of the Controlled Substance, Device and Cosmetic Act, Pa. Stat. Ann. tit. 35, § 780-113(a)(30), the DOT informed the licensee it was suspending his driver operating privileges for six months under § 1532(c) of the Vehicle Code, 75 Pa. Cons. Stat. § 1532(c). The licensee filed an administrative appeal and the trial court reversed that suspension, finding that manufacturing was not listed under the statute. The DOT appealed, questioning whether the trial court erred as a matter of law in ruling that the DOT could not suspend the licensee's operating privilege because that offense was not one of the offenses "involving" controlled substances specifically mentioned in § 1532(c). The court found that the phrase "any offense involving possession of any controlled substance" under § 1532(c) encompassed manufacture of a controlled substance. While a person could possess drugs without having manufactured them, it was equally true that a person could not manufacture drugs without possessing them. Since possession justified a suspension, manufacturer justified a suspension as well. OUTCOME: The court reversed the order and reinstated the DOT's suspension of the licensee's operating privilege. CORE TERMS: controlled substance, manufacture, suspension, Drug Act, statutory construction, delivery, offering, offenses listed, marijuana, enumerated offenses, license suspension, remedial, small amount, manufacturing, paraphernalia, warranting, ambiguity, deliver, driver, absurd, driver's license, criminal penalty, delinquency, disregarded, possessing, encompasses, liberally, licensee's, suspend, intend https://www.lexis.com/reseazch/retrieve? m=98eb96c79eaeb7a205d7c25983859d36& bro... 11/5/2012 Get aDocument - by Citation - 887 A.2d 834 Page 2 of 8 'f ' ~. LEXISNEXIS(R) HEADNOTES Transportation Law > Private Vehicles > Operator Licenses > General Overview Hn-i ~ See 75 Pa. Cons. Stat. § 1532(c). Administrative Law > Judicial Review > Standards of Review > General Overview Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Appeals > Standards of Review > De Novo Review Transportation Law > Private Vehicles > Operator Licenses > General Overview FtN2~An appellate court's review of a trial court's order sustaining a licensee's appeal is limited to determining whether its findings are supported by competent evidence and whether it committed an error of law or abused its discretion. Governments > Legislation > Interpretation Transportation Law > Private Vehicles > Operator Licenses > General Overview trnt3~ Use of the phrase "any offense involving" enumerated offenses in § 1532(c) of the Vehicle Code, 75 Pa. Cons. Stat. § 1532(c), conveys a different meaning than the phrase "any offense of" such offenses, the latter of which would be held to be exclusive. Governments > Legislation > Types of Statutes Transportation Law > Private Vehicles > Operator Licenses > General Overview HHa t Section 1532(c) of the Vehicle Code, 75 Pa. Cons. Stat. § 1532(c), is not a penal provision to be strictly construed but rather a remedial one. Governments > Legislation > Interpretation Transportation Law > Private Vehicles > Operator Licenses > General Overview xNS~The phrase "any offense involving possession of any controlled substance" encompasses a conviction for manufacture of a controlled substance under § 13(a) (30) of the Controlled Substance, Device and Cosmetic Act, Pa. Stat. Ann. tit. 35, § 780-113(a)(30). Although it is certainly true that a person may possess a controlled substance without having manufactured it, it is equally true that a person may not manufacture a controlled substance without possessing it. For purposes of § 1532 (c) of the Vehicle Code, 75 Pa. Cons. Stat. § 1532(c), a conviction for manufacture of a controlled substance is a conviction of an offense involving possession of a controlled substance. COUNSEL: Terrance M. Edwards, Asst. Counsel, Harrisburg, for appellant. Michael C. Boland, Reading, for appellee. 7UDGES: BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge. OPINION BY JUDGE SMITH- RIBNER. DISSENTING OPINION BY SENIOR JUDGE KELLEY. OPINION BY: DORIS A. SMITH-RIBNER OPINION [*835] OPINION BY JUDGE SMITH-RIBNER In this case of first impression, the Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Lehigh County that sustained the statutory appeal of Roy P. Kelm from DOT's order suspending Keim's operating privilege for six https://www.lexis.com/research/retrieve? m=98eb96c79eaeb7a205d7c25983859d36&_bro... 11/5/2012 Get aDocument - by Citation - 887 A.2d 834 Page 3 of 8 months following notification that he pleaded guilty to the offense of manufacturing a controlled substance. DOT questions whether the trial court erred as a matter of law in ruling that DOT could not suspend Keim's operating privilege because that offense is not one of the offenses "involving" controlled substances that is specifically mentioned in Section 1532(c) of the Vehicle Code, as amended, 75 Pa. C.S. § 1532(c) [**2] . 1 FOOTNOTES i This case was reassigned to this author on October 18, 2005. As indicated in the trial court's opinion, Keim pleaded guilty on February 17, 2004 to one count of violating Section 13(a)(30) of The Controlled Substance, Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30), admitting that he did "knowingly and intentionally manufacture a controlled substance," namely, marijuana, in violation of the act. s Trial court opinion at p. 2 (quoting the criminal proceedings filed against Keim, see Certified Record, Appellant's Exhibit. l}. Other charges in the original criminal information were not pursued, including possession with intent to deliver a controlled substance also under Section 13(a)(30), possession of a controlled substance under Section 13(a)(16), 35 P.S. § 780-113(a)(16), and possession of drug paraphernalia under Section 13(a}(32), 35 P.S. § 780-113(a)(32) [**3] .Keim was sentenced only on the manufacturing charge. Supplemental Certified Record, Appellant's Exhibit 1; Certified Record, Appellant's Exhibit 2. FOOTNOTES z Section 13(a) enumerates prohibited acts relating to controlled substances including: (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance. Section 2 of the Drug Act, 35 P.S. § 780-102, provides in part that "manufacture" means "the production, preparation, propagation, compounding, conversion or processing of a controlled substance...." The trial court notified DOT of the conviction, and DOT informed Keim that it [*835] was suspending his operating privilege for six months pursuant to Section 1532(c) of the Vehicle [**4] Code. Section 1532(c) provides: xas*Suspension.-- The department shall suspend the operating privilege of any person upon receiving a certified record of the person's conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance under the laws of the United States, this Commonwealth or any other state, or any person 21 years of age or younger upon receiving a certified record of the person's conviction or adjudication of delinquency under 18 Pa.C.S, § 2706 {relating to terroristic threats) committed on any school property, including any pubic school grounds, during any school-sponsored activity or on any conveyance providing transportation to a school entity or school- sponsored activity. https://www.lexis.com/research/retrieve? m=98eb96c79eaeb7a205d7c25983859d36&_bro... 11/5/2012 Get aDocument - by Citation - 887 A.2d 834 Page 4 of 8 (1) The period of suspension shall be as follows: (i) For a first offense, a period of six months from the date of the suspension. (ii) For a second offense, a period of one year from the date of the suspension. (iii) For a third and any subsequent offense thereafter, a period of two years from the date of the suspension. (Emphasis added.) Keim filed a timely statutory [**5] appeal, and the trial court conducted a de novo hearing. No testimony was presented, but DOT introduced as Exhibit C-1 documents that included the notice to DOT of Keim's conviction, a certified copy of Keim's driving history and the notice of suspension. Keim introduced the criminal information and the sentencing sheet. The trial court heard oral argument and received briefs on the matter. The trial court accepted Keim's argument that his conviction for "manufacture" of a controlled substance was not within any of the offenses enumerated in Section 1532(c) of the Vehicle Code as a basis for a suspension and that DOT had exceeded its authority by imposing the suspension. HNZ'~7his Court's review of the trial court's order sustaining the appeal is limited to determining whether its findings are supported by competent evidence and whether it committed an error of law or abused its discretion. Dunn v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 189 (Pa. Cmwlth. 2003). At issue in this appeal is whether the phrase any offense involving the possession ... of any controlled substance under the laws of the United States, this Commonwealth or any ,~ other [**6] state in Section 1532(c) of the Vehicle Code encompasses Keim's conviction for "manufacture" of a controlled substance. DOT refers to Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 532 A.2d 325 (1987), affd sub nom., Duquesne Light Co. v. Barasch, 488 U.S. 299, 109 S. Ct. 609, 102 L. Ed. 2d 646 (1989), for the propositions that the object of all interpretation and construction of statutes is to ascertain the intention of the legislature as expressed in the words employed and that it is only when the words are not explicit that the intention may be ascertained by other means of statutory interpretation or construction. DOT submits that the legislature's use of the phrase "any offense involving" creates an ambiguity as to the scope of Section 1532(c) because if the legislature had simply said "any offense of followed by the six enumerated offenses (possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance), the six would be considered to be exclusive. By using the term "involving," DOT argues, the legislature intended that the six offenses listed [*837] were not exclusive but rather were indicative of [**7] the type of offense for which DOT is required to impose a license suspension. DOT acknowledges that it has been held that "possession" and "manufacture" are separate offenses that do not merge for sentencing purposes. Commonwealth v. Everett, 290 Pa. Super. 344, 434 A.2d 785 (Pa. Super. 1981). In Everett a raid on an apartment netted 112 pounds of marijuana, paraphernalia associated with manufacture or distribution and substantial cash. The court held that charges of possession under Section 13(a)(16) of the Drug Act and possession with intent to deliver under Section 13(a)(30) merged but that the charge of manufacture was not based solely on seizure of a large quantity but also on seizure of paraphernalia for manufacture and distribution and did not merge. Nevertheless, DOT argues that although criminal penal statutes are to be strictly construed pursuant to Section 1928(b)(1) of the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. § 1928(b)(1), remedial statutes such as Section 1532(c) of the Vehicle Code are to be liberally construed under Section 1928(c), 1 Pa. C.S. § 1928(c). a [**8] https://www.lexis.com/research/retrieve? m=98eb96c79eaeb7a205d7c25983859d36&_bro... 11/5/2012 ~- Get aDocument - by Citation - 887 A.2d 834 FOOTNOTES Page 5 of 8 3 On this particular point Keim responds by arguing that Section 1532(c) of the Vehicle Code is in fact "penal" in nature. He quotes Black's Law Dictionary 1020 (5th ed. 1979) regarding "penal laws": "Statutes imposing a penalty, fine, or punishment for certain offenses of a public nature or wrongs committed against the state." Keim overlooks the ~~ preceding sentence in the definition: Term, in general, refers to state and federal statutes that define criminal offenses and specify corresponding fines and punishment." Id. Keim acknowledges that in Plowman the Supreme Court held that former Section 13(m) of the Drug Act, formerly 35 P.S. § 780-113(m), repealed by Section 7 of the Act of June 23, 1993, P.L. 137 (and added with slight modification as Section 1532(c) of the Vehicle Code by Section 8 of the same Act), did not impose a criminal penalty. Rather, it was a civil consequence of a criminal violation. See also Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994) (holding that loss of driver's license due to conviction of an underage drinking offense, even though ordered by the judge and pursuant to Section 6310.4 of the Crimes Code, 18 Pa. C.S. § 6310.4, was a collateral civil consequence rather than a criminal penalty). Case law does not support Keim's theory that Section 1532(c) is a civil penal statute. [**9] In Plowman v. Department of Transportation, Bureau of Driver Licensing, 535 Pa. 314, 635 A.2d 124 (1993), the Pennsylvania Supreme Court addressed the public policy goals behind the predecessor to Section 1532(c) of the Vehicle Code, see n3, in rejecting a constitutional challenge to the suspension of a driver's license in connection with a conviction of an offense under the Drug Act. There the licensee was convicted of possessing a small amount of marijuana in her home in violation of Section 13(a)(31) of the Drug Act, 35 P.S. § 780-113(a) (31). The Supreme Court held that under the applicable rational basis analysis, the prospect of losing one's driver's license might deter an initial offense but that such suspension was not criminal punishment. Also in Brosius v. Department of Transportation, Bureau of Driver Licensing, 664 A.2d 199, 201 (Pa. Cmwlth. 1995), this Court stated that the predecessor to Section 1532(c) serves "a broader goal of general deterrence." DOT argues that in interpreting the phrase "any offense involving," the Court should be guided by the principle of Section 1922(1) of the Statutory Construction [**10] Act, 1 Pa. C.S. § 1922(1), which provides that it is to be presumed "that the General Assembly did not intend a result that is absurd, impossible of execution or unreasonable. Citing Section 1922(1), the Supreme Court stated in Commonwealth v. Beachey, 556 Pa. 345, 348, 728 A.2d 912, 913 (1999): "In interpreting statutes, it is [*838] axiomatic that the legislature does not intend an absurd or unreasonable result. DOT emphasizes that while Section 13(a)(31) of the Drug Act prohibits possession of a small'amount of marijuana for personal use, possession of a small amount with intent to distribute but not to sell and distribution of a small amount but not for sale and would result in a suspension, the trial court's interpretation of Section 1532(c) leads to the absurd result that conviction of significantly more illegal activity involved in the manufacture of marijuana would not result in a suspension. DOT points out that its standard form for reporting certain violations of the Drug Act includes a box for a conviction under Section 13(a)(30), which relates to manufacture, see n2. As the agency responsible for enforcing the Vehicle Code, DOT [**11] claims a right to some deference. See Martin Media v, Department of Transportation, 700 A.2d 563, 566 (Pa. Cmwlth. ~~ 1997) (The agency s interpretation of its statute may not be disregarded by this Court unless it is clearly erroneous or is inconsistent with the intent or purpose of the statute."). DOT maintains that because Section 1532(c) is civil remedial legislation to be liberally construed, the intent of the legislature would be thwarted if Section 1532(c) were interpreted not to provide for a license suspension for conviction of manufacturing a controlled substance. https://www.lexis.com/research/retrieve?_m=98eb96c79eaeb7a205d7c25983859d36&_bro... 11 /5/2012 ~ Get a Document - by Citation - 887 A.2d 834 Page 6 of 8 Kelm in response quotes from the full text of Section 1532(c) of the Vehicle Code, including paragraph 2, which provides: "For the purposes of this subsection, the term 'conviction' shall include any conviction or adjudication of delinquency for any of the offenses listed in paragraph (1), whether in this Commonwealth or any other Federal or state court." (Emphasis added.) 4 In Scheipe v. Orlando, 559 Pa. 112, 117, 739 A.2d 475, 478 (1999), the Supreme Court quoted Section 1921(b) of the Statutory Construction Act, 1 Pa. C.S. § 1921(b): "When the words [* * 12] of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Keim disagrees that the meaning of Section 1532(c) would be any different if the provision referred to conviction of "any offense of [enumerated offenses]" rather than "any offense involving [enumerated offenses] (emphasis added)." DOT noted that it does not impose license suspensions for conviction of offenses under the Drug Act relating only to paraphernalia because these do not involve possession, sale, delivery, offering for sale, holding for sale or giving away of any drugs. Keim, however, finds the assertion unpersuasive, and he insists that Section 1532(c) is not ambiguous and that it must be read to authorize license suspension for conviction of the enumerated offenses and no others. FOOTNOTES a As Keim points out, the Court has previously noted that paragraph (2) refers to offenses listed in paragraph (1), but in fact paragraph (1) does not list offenses but rather specifies periods of suspension. The Court concluded that the intent was to refer to the offenses listed in the introductory portion of subsection (c). Klinger v. Department of Transportation, Bureau of Driver Licensing, 856 A.2d 280, Z83 n.6 (Pa. Cmwlth. 2004). [**13] Keim argues that Section 1532(c) is penal rather than remedia{, see n3. In addition, he seeks to apply the decision in Department of Transportation v. Taylor, 576 Pa. 622, 841 A.2d 108 (2004), to this case. In Tay/or a criminal defendant in a vehicular. homicide case sought a subpoena for in-depth accident investigations, safety studies, records and reports used in their preparation relating to the highway where the accident occurred, although such investigations, studies, records and reports were expressly made confidential by a statute that provided that those items "shall not be discoverable nor admissible [*839] as evidence in any legal action or other proceeding...." 75 Pa. C.S. § 3754(b), as amended. DOT argued and the Supreme Court concluded that the plain language of the statute was not ambiguous and did not need the application of further rules of construction. Kelm responds to the assertion that manufacture of a controlled substance necessarily implies possession by stating, without citation, that courts have defined possession as "conscious dominion and control." He notes that the definition of manufacture in Section 2 [**14] of the Drug Act does not use the word "possession," and he posits that it does not imply the concept of possession. In the Court's view, application of the proper principles of statutory construction results in an endorsement of DOT's interpretation. First, the Court agrees that HN'~use of the phrase "any offense involving" enumerated offenses in Section 1532(c) of the Vehicle Code conveys a different meaning than the phrase "any offense of such offenses, the latter of which would be held to be exclusive. The statute does not unambiguously provide what Keim contends, and therefore the principle stated in Taylor of adherence to the plain language does not apply. Md'~ `C~1`d'"si°'C'~°+t 4~9~n~1 )=if ': 'c»s to tie st~~ev~~f° but t~Yt~'t'' ~°"~-i~ec~~ii"tme: ~~aea,; Construing the statute liberally to effect its remedial goals, the Court concludes that HNS~Fthe phrase "any offense involving possession ... of any controlled substance" encompasses a conviction for manufacture of a controlled substance under Section 13(a)(30) of the Drug Act. Although it is certainly true that a person may possess a controlled substance without having manufactured it, it [**15] is equally true that a person may not manufacture a controlled https://www.lexis.com/research/retrieve? m=98eb96c79eaeb7a205d7c25983859d36&_bro... 11/5/2012 ~ Get aDocument - by Citation - 887 A.2d 834 Page 7 of $ substance without possessing it. For purposes of Section 1532(c) of the Vehicle Code, a conviction for manufacture of a controlled substance is a conviction of an "offense involving possession"' of a controlled substance. The Court agrees with DOT that the result would be absurd and unreasonable and therefore not in accordance with the intent of the legislature, see Beachey, if conviction of the offense of manufacture of a controlled substance were deemed to be outside the scope of "any offense involving possession ... of any controlled substance" in Sectian 1532(c). In Plowman the Supreme Court endorsed the application of a civil driver`s license suspension for a conviction of possession of a small amount of marijuana for the driver's personal use in her home in part because it might be a more effective deterrent than the criminal penalties for a minor first offense. Based on its review, the Court concludes that the legislature did not intend in Section 1532(c) of the Vehicle Code for a person found guilty of manufacture of a controlled substance, such as Keim, to be subject to any less of a sanction than the [**16] driver in Plowman. Accordingly, the order of the trial court is reversed, and the suspension of Keim's operating privilege is reinstated. DORIS A. SMITH-RIBNER, Judge ORDER AND NOW, this 7th day of December, 2005, the order of the Court of Common Pleas of Lehigh County is reversed. DORIS A. SMITH-RIBNER, Judge DISSENT BY: JAMES R. KELLEY DISSENT DISSENTING OPINION BY SENIOR JUDGE KELLEY 1 respectfully dissent. When the words of a statute are clear and free from ambiguity, the interpretation is relatively simple; in such circumstances, "the fetter of it is not to be disregarded under the pretext of pursuing its spirit." Section 1921(b) of the Statutory Construction Act, 1 Pa. C.S. § 1921(b). When, however, the words of a statute are [*840] not explicit, legislative intent may be ascertained by considering, inter alia, the occasion and necessity of the statute, the circumstances in which it was enacted, the mischief to be remedied, and the object to be attained by the legislation. Section 1921(c) of the Statutory Construction Act, 1 Pa. C.S. § 1921 (c). The primary object of all statutory interpretation, of [**17] course, "is to ascertain and effectuate the intention of the General Assembly." Section 1921(a) of the Statutory Construction Act, 1 Pa. C.S. § 1921 (a). Here, Section 1532(c) is clear and free from ambiguity and easily understood by its express terms. Section 1532(c} expressly lists six types of Drug Act offenses warranting the suspension of a licensee's operating privilege -the "possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance." 75 Pa. C.S. § 1532(c). Subsection (2) reiterates "for the purposes of this subsection, the term "conviction" shall include any conviction or adjudication of delinquency for any of the offenses listed." 75 Pa. C.S. § 1532{c)(2) (emphasis added). The manufacture of a controlled substance, however, is not listed as an offense warranting suspension. https:!/www.lexis.com/researchdretrieve?_m=98eb96c79eaeb7a205d7c25983859d36&_bro... 11 /5/2012 "" Get a Document - by Citation - 887 A.2d 834 Page 8 of 8 ,r. The maxim, inclusio unius est exclusio alterius, is clearly applicable to the present circumstances, This doctrine decrees that where {aw expressly describes a particular situation [**18] to which it shall apply, an irrefutable inference must be drawn that what is omitted or excluded was intended to be omitted or excluded. Black's Law Dictionary 763 (6th ed. 1990). In the Drug Act, the General Assembly expressly prohibits the "manufacture" of a controlled substance as wel4 as the "sale or delivery, holding, offering for sale, or possession of any controlled substance." Section 13(a){1) of the Drug Act, 35 P.S. § 780-113(a)(1). Yet in the Vehicle Code, the General Assembly, while including the "possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance" as offenses warranting the suspension of operating privilege, excluded the manufacture of a controlled substance from the list. The General Assembly, by expressly including the manufacture of a controlled substance in the list of prohibited offenses in the Drug Act, but excluding it from the list of offenses warranting suspension under Vehicle Code, has implicitly indicated to the courts that the offense of manufacturing was intended to be excluded. The conclusion reached by the majority that "possession" encompasses manufacture is overreaching. [**19] If possession could be interpreted so broadly, then the word possession would obviate the need for the other offenses listed because possession, as interpreted by the majority, would arguably include the sale, delivery, offering for sale, holding for sale, or giving away of any controlled substance. The majority's interpretation would render the inclusion of these other offenses redundant. As the statute is easily understood by its express terms, DOT should not be permitted to go beyond the express words of the statute to determine legislative intent. While "the manufacture of a controlled substance" would be a logical addition to the list of offenses for which a licensee's operating privilege may be suspended, such expansion is a matter for the General Assembly, not this Court. For these reasons, I believe that the trial court did not err or abuse its discretion in determining that DOT lacked statutory authority to suspend Keim's operating privilege since he was not convicted of any of the offenses enumerated in Section 1532(c) and would affirm. JAMES R. KELLEY, Senior Judge Service: Get by LEXSEE® Citation: 887 A.2d 834 View: Full Date/Time: Monday, November 5, 2012 - 4:09 PM EST * Signal Legend: - Warning: Negative treatment is indicated - Questioned: Validity questioned by citing refs - Caution: Possible negative treatment - Positive treatment is indicated - Citing Refs. With Analysis Available - Citation information available * Click on any Shepard's signal to Shepardize® that case. in About LexisNexis I Privacy Policy I Terms & Conditions I Contact Us Copyright © 2012 LexisNexis, a division of Reed Elsevier Inc. Ail rights reserved. hops://www.lexis.com/research/retrieve? m=98eb96c79eaeb7a205d7c25983859d36&_bro... 11/5/2012 DAVID J. CONAHAN, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent NO. 12-4450 CIVIL TERM IN RE: MOTION TO R ECONSIDER AND VACATE ORDER FILED OCTOBER 31, 2012 ORDER OF COURT AND NOW, this 15th day of November, 2012, upon consideration of Respondent's Motion To Reconsider and Vacate Order Filed October 31, 2012, a Rule is hereby issued upon Petitioner to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, ~. _ -~ Christy e L. Peck, J. / Robert J. Daniels, Esq. 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Attorney for Petitioner / Philip Bricknell, Esq. Assistant Counsel PA. Department of Transportation Office of Chief Counsel Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent ~~ -- . -~ ~ r, _, m - `r~ - rte. z ~ r cn r" ~'' ~ r' ; +~ ~-: -t cn r-- .~= --s : -: ~. ._... .~-