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Home My WebLink About02-0763DUANELEBO COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. LICENSE RECALL APPEAL OLN: 15713702 LICENSE RECALL APPEAL AND NOW, comes Petitioner, Alexander Wilson, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this License Recall Appeal: 1. Petitioner, Duane Lebo, is an adult individual and a Pennsylvania licensed driver with a residence address of 606 West Old York Road, Carlisle, Cumberland County, Pennsylvania. 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address at Riverfront Office Center, Third Floor, 1101 South Front Street, Harrisburg, Dauphin County, Pennsylvania 17104-2516. 3. Petitioner received a notice of license suspension by way of letter dated January 14, 2002 from the Department of Transportation indicating that his Pennsylvania driving privileges are to be recalled on February 18, 2002 as a result of a seizure disorder condition which prevents him from safely operating a motor vehicle. See Exhibit "A" attached hereto and incorporated herein by reference. 4. The alleged basis for recalling Petitioner's driving privileges is based upon §1519(c) of the Vehicle Code alleging that Petitioner is not competent to ddve a motor vehicle. The Department's recall action is illegal, improper, and invalid for some or all of the following reasons: Petitioner's seizure episode of December 20, 2001 was preceded by a specific prolonged aura; Petitioner's seizure episode of December 20, 2001 did not involve the operation of a motor vehicle; Petitioner's condition is not incompatible with the safe operation of a motor vehicle; Petitioner's seizure disorder is controlled by medication and, in the opinion of his treating neurologist, has not rendered him incapable of safely operating a motor vehicle because the condition is controlled by medication and because a sufficient aura precedes any seizure episode to allow Petitioner to avoid any potential problems while ddving and further that this episode was preceded by excessive vomiting brought on by a stomach virus which resulted in his medication dropping to subtherapeutic levels; Said recall is not in accordance with PennDOT's published regulations pertaining to physical and mental criteda as set forth specifically at 67 Pa. Code §83.5(a)(4), (a)(9); PennDOT's notification of January 14, 2002 requiring Petitioner to remain seizure-free for a six month pedod with or without medication before he is eligible for reinstatement of driving privileges is not supported in PennDOT's regulations for physical and mental criteda at 67 Pa.Code §83.1 et seq., nor is it supported by PennDOT's guidelines related to physical and mental criteda at 67 Pa. Code §82.1 et seq., nor is it supported under §1519 which is the statutory provision governing the recall of driving privileges; PennDOT's broad-brush policy of requiring a person who has a seizure episode to remain seizure-free for six months with or without medication as applied to Petitioner is a violation of Petitioner's due process rights under the 14th Amendment of the Federal Constitution and the Pennsylvania Constitution; Petitioner's due process dghts are not cured by virtue of his right to a headng in this matter as PennDOT's policy remains the same regardless of the evidence to be presented by Petitioner at the headng; PennDOT's policy in this case is not supported by case law; The recall of ddving privileges as outlined in Exhibit "A" is in direct conflict with the Pennsylvania Human Relations Act, 43 Pa.C.S. {951, et seq. for some or all of the following reasons: The Department has violated {955(i)(3) because they have excluded or denied privileges, accommodations, or other opportunities to Petitioner because of a handicap or disability and Petitioner is known to have a relationship or association with the Department of Transportation, Bureau of Driver Licensing, through is ddver license status; Said recall violates {955(i)(2) insofar as any person, agent or employee of any public accommodation has refused Petitioner because of a handicap or disability, either directly or indirectly, any of the accommodations, or privileges of such public accommodation and/or the Department, its agents, or employees have published a written or printed communication to the effect that any of the accommodations of the Department of Transportation shall be denied to Petitioner on account of his handicap or disability; iii. Said recall is an unlawful discriminatory practice as found at 42 Pa.C.S. {955(e) which prohibits the Department from directly or indirectly committing any act declared by {955 to be an unlawful discriminatory practice. The recall of Petitioner's driving privileges outlined in Exhibit '%" are in direct violation of the Americans with Disabilities Act, 42 U.S.C.S. §12111, et seq. for some or all of the following reasons: The Department of Transportation has violated the above-mentioned act at §12112(a) which prohibits a covered entity from discriminating against a qualified individual with a disability in regard to other terms, conditions, and privileges of employment insofar as the Department has limited, segregated, or otherwise classified Petitioner in regards to his employment by recalling his existing ddving privileges thereby reducing his potential for employment; The Department has otherwise violated the above-mentioned act by utilizing standards, criteria, or methods of administration related to driver licensing that have the effect of discrimination on the basis if disability. See 42 U.S.C.S. §12112(b)(3). The Department's recall of Petitioner's driving privileges as outlined in Exhibit "A" is illegal and in violation of the Federal Rehabilitation Act, 29 U.S.C.S. §794, et seq., for some or all of the following reasons: Petitioner, an otherwise qualified individual with a handicap, has been denied the benefits of or been subject to discrimination under a program or activity receiving federal financial assistance, to wit: his driving privileges have been recalled by the Bureau of Driver Licensing, an operation of a Department or other instrumentality of the Pennsylvania State Government. WHEREFORE, Petitioner respectfully requests that this Court schedule a supersedeas headng immediately to address the issue of Petitioner's ability to drive pending the outcome of a formal headng in this matter and that a formal hearing on the medts of said appeal be scheduled as well. Respectfully submitted, MANCKE WAGNER SHEY & TULLY David E,~H~rshey, Esquire I.D. #-43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 CERTIFICATE OF SERVICE I, Tammy L. Kelly, an employee of the law firm of MANCKE WAGNER HERSHEY & TULLY, hereby certify that I am this day serving a copy of the foregoing document to the attorneys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ['~day of February, 2002, at the address listed below: George Kabusk, Esquire Office of Chief Counsel PA Department of Transportation Riverfront Office Center, Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 Tammy L. Kelly MANCKE WAGNER HERSH LY reca][szr COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: January 14, 2002 DUANE LEBO 661 W OLD YORK RD CARLISLE PA 17013 Dear Mr. DUAi"~ LEBO: We have received medical information indicating that you have a Seizure Disorder condition which prevents you from safely operatin8 a motor vehicle. As of 02/1812002, you may no longer drive. Your driving privilege is hereby recalled indefinitely as mandated by Section 1~19(c) of [he Vehicle Code, This decision has been made by comparing your medical condition with the st~da[ds recommended by our Medical Advisory Board and adopted by this Department. This action will remain in effect until we receive medical information that your condition has improved and you are able to safely operate a motor vehicle. S~ce you have a seizure disot~ler, you must remain seizure five for a six month period: with or without medication, before you will be eligible for reinstatement of your driving privilege. Our records indicate that your seizure occurred on 12/20/01. In order to comply with this action, you must remm all current Pennsylvauia th/vet,s licenses, learner's permits, temporary driver's licenses (camera ear&) in your possession, on or before the effective date listed above. If you cannot comply with the requh~mtents stated above, a sworn affidavit stating that you are aware of the sanction against your driving privilege must be submitted. When the Department receives your license or affidavit, we will send you a receipt. YOU lV'~,Y NOT RETAIN YOUR DILIVER:S LICENSE FOR IDENTII~CATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center. You must present two (2) forms of proper identification (e.g., birth cextiticate, valid U.S. passport, mamage certificate, etc.) in order to obtatn your photo identification card. You have the right to appeal to the Court of Common Pleas (Civil Division) within thirty (30) days of the nmil date of this notice. If you file an appeal iu the Couuty Court, the Court will give you a time-stamped certified copy o£ the appeal. Iu 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 Th[rd Floor, Riverffont Office Center Harrisburg, PA 17104 You still must send in your license before the effective date of recall unless you appe, at ~ pea:son before a judge and receive m-t order permitting you to continue driving. If you have any questions or need further information, please contact tho Me0,ical Unit, P.O. Box 68682, Harrisburg, PA 17106-8682 or c~li (717) 787-9662 between the hours of 8:00 a.m. and 4:30 p.m. Sincerely, Rebecca L. Bickicy, Director Bureau of Driver Licensing Dr~ver License #i 15713702 VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information', and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date:~__ WE DO HEREBY CEHTFY THAT THE WITHIN 18 A TRUE AND COR- RECT COPY OF THE ORIGINAL TO FLIED IN THIS ACllON LAW OFFICES .YO~..,..A~E.__H~ __y NO'/1 D TO FILE A WRITTEN RESPONSE TO THE A~"r~NL=Y MANCKE, WAGNER, HERSHEY & TULLY DUANE LEBO Vo COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2002-0763 CIVIL TERM : : : CIVIL ACTION - LAW . : ORDER OF COURT AND NOW, this 13TM day of FEBRUARY, 2002, the court being advised that the above captioned appeal is a medical recall of Petitioner's driving privileges a hearing is scheduled for FRIDAY~ FEBRUARY 22~ 2002~ at 11:00 a.m. in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa. D~avid E. Hershey, Esquire 2233 North Front Street Harrisburg, Pa. 17110 d/eorge Kabusk, Esquire Riverfront Office Center 1101 South Front Street Harrisburg, Pa. 17104 Edward E. Guido, J. :sld DUANELEBO COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-0763 CIVIL TERM CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 13TM day of FEBRUARY, 2002, the court being advised that th'e above captioned appeal is a medical recall of Petitioner's driving privileges a hearing is scheduled for FRIDAY~ FEBRUARY 22~ 2002~ at 11:00 arm- in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa. D~avid E. Hershey, Esquire 2233 North Front Street Harrisburg, Pa. 17110 ~,,~eorge Kabusk, Esquire - Riverfi'ont Office Center 1101 South Front Street Harrisburg, Pa. 17104 Edward E. Guido, J. o q-O.g :sld DUANELEBO IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02-763 CIVILTERM COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING LICENSE RECALL APPEAL OLN: 15713702 MOTION FOR CONTINUANCE TO THE HONORABLE EDWARD E. GUIDO, JUDGE Of THE ABOVE-SAID COURT: AND NOW, comes Petitioner, Duane Lebo, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this Motion for Continuance: 1. A timely license suspension appeal was filed from the Department's notice of January 14, 2002. 2. A supersedeas hearing was heard by Your Honorable Court on February 22, 2002. 3. As a result of the above-mentioned hearing on the supersedeas, Your Honorable Court granted a supersedeas of Petitioner's operating privileges pending a hearing on the merits of this case. 4. The Department of Transportation's Medical Recall Unit's current policy, as articulated by the Officer of Chief Counsel, is that, where a motorist is seizure-frae for a period of six (6) months with or without medication, the Department will agree to rescind the recall and correct the motorist's ddving privilege accordingly. 5. The seizure which gave rise to the Department's action in this case occurred December 20, 2001. 6. As of June 20, 2002, Petitioner will have been seizure-free for a pedod of six (6) months. 7. George Kabusk, Esquire, counsel for the Department of Transportation, is aware of all of the above based upon discussions between he and Petitioner's counsel 8. Counsel for the Department, George Kabusk, Esquire, has indicated that he has no objection to a continuance to a date certain after June 20, 2002 to provide the opportunity for Petitioner to meet the Department's recall policy with respect to seizures. 9. Since the supersedeas was filed, and since December 20, 2001, Petitioner has been seizure-free. WHEREFORE, Petitioner prays Your Honorable Court continue the above-captioned matter for a date certain in July, 2002 for the reasons outlined above. Date: 04/19/02 Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY Da,/~-E~-Rershey, Esquire I.D. #43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 CERTIFICATE OF SERVICE I, Tammy L. Kelly, an employee of the law firm of MANCKE WAGNER HERSHEY & TULLY, hereby certify that I am this day serving a copy of the foregoing document to the attomeys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the 19th day of April, 2002 at the address listed below: George Kabusk, Esquire PA Department of Transportation Riverfront Office Center, Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 Tammy L. Kelly MANCKE WAGNER HERSHEY & TULLY VERIFICATION I vedfy that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities. Date: Davi~--~hey, Esquire Attorney for Petitioner DUANELEBO COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-763 CIVIL TERM LICENSE RECALL APPEAL OLN: 15713702 ORDER ~ . AND NOW, this ~.~ day of Z~5~.~, 2O02, upon motion of Petitioner and noting that the Department of Transportation, through counsel, George Kabusk, Esquire, has no objection and noting the reasons supporting same, said motion is hereby ~'~ . The above- mentioned appeal is hereby rescheduled for the __ day of Jul,vi 2002 at~t.~ .m. in Courtroom #,~. Distribution: The l able Edward E. Guido /~'eorge Kabusk, Esq., PennDOT 1101 S. Front St., Harrisburg, PA 17104-2516 .,pavid E. Hershey, Esq. 2233 N. Front St., Harrisburg, PA 17110 DU~NE LEBO, Appellant : : : V. : COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, : Appellee : IN THE COURT OF COMMON pLEAS OF CUMBERLAND COUNTY, pENNSYLVANIA NO. 02-0763 CIVIL TERM LICENSE RECALL APPEAL OLN: 157 13702 ORDER OF COURT AND NOW, this 1st day of July, 2002, by agreement of the parties, this matter is remanded to the Department of Transportation, Bureau of Driver Licensing, for further action. the Edward E. J. George Kabusk, Esquire For Appellee David E. Hershey, Esquire For Appellant srs