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HomeMy WebLinkAbout14-6765S E C T I 0 N A S E C T I 0 N B Supreme Court of Pennsylvania For Prothonotary Use Only: Commencement of Action: ❑ Complaint 0 Writ of Summons 0 Petition x Notice of Appeal ❑ Transfer from Another Jurisdiction 0 Declaration of Taking 11 z1. Docket No:1 q- 6, '26S- (4,4,j The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the, and service of pleadings or other, d b LUW a per as s require yaw or rules of court. Commencement of Action: ❑ Complaint 0 Writ of Summons 0 Petition x Notice of Appeal ❑ Transfer from Another Jurisdiction 0 Declaration of Taking Lealaintifl'§ Nares:: � NN 1414SS �' � Le Defendant's Le Defendant's Name: Der ISDL / 1 ed (Pro Se) Litigant ■ Check here if you area Self-Repres I. 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CF 1HE HONO ,TA i?Y 2014 PlOY 21 Pll 12: 25 CUMBERLAND COUNry PENNSYLVANIA Philip L. Zuni, Esq. Zuni Vehicle & Traffic Law 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 Fax Zulli(&,msn.com www.zullilaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY 9TH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ANN S. EWING • • NO.: 1074.7S. eztj Petitioner • v. CIVIL ACTION — LAW COMMONWEALTH OF PENNSYLVANIA : STATUTORY APPEAL DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING APPEAL FROM REVOCATION OF OPERATING PRIVILEGE NOW COMES, Petitioner, Ann S. Ewing, by and through her attorney, Philip L. Zulli, Esq., pursuant to Section 1550 of the Vehicle Code, 75 Pa.C.S. §1550 (relating to Judicial review) and 42 Pa.C.S. §933(a)(1)(ii) of the Judiciary Code, 42 Pa.C.S. §933(a)(1)(ii) (relating to appeals from government agencies), and hereby files this Appeal from Revocation of Operating Privilege, and respectfully avers as follows: 1. Petitioner is Ann S. Ewing, who is a resident of Cumberland County residing at 688 Front Street, 115'. y 044 3 3'7 3 Enola, PA 17025, with a current valid Pennsylvania driver's license, number 19220687. 2. Respondent is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, which is an administrative department of the Executive Department of the Commonwealth of Pennsylvania under Section 61 of the Administrative Code, 71 P.S. §61, (relating to State Government, Administrative Organization) located at 1101 South Front Street, Harrisburg, PA 17104-2516 (hereinafter "the Commonwealth"). 3. By Official Notice dated and mailed October 22, 2014, the Commonwealth imposed a five-year revocation of petitioner's operation privilege pursuant to Section 1542(d) of the Vehicle Code, 75 Pa.C.S. §1542(d) (relating to Period of Revocation) due to petitioner's conviction on February 15, 2005, of violating Section 3733 of the Vehicle Code, Fleeing Police Officer, on September 4, 2004, in York County. (A true and correct copy of the Commonwealth's Notice of Revocation is attached hereto and incorporated by reference as Exhibit A.) 4. A delay of nine years and eight months elapsed from the date of the conviction, February 15, 2005, until the date of the Official Notice from the Commonwealth— October 22, 2014. 5. The delay in revoking Petitioner's operating privilege is due to the Clerk of Courts of York County failing to transmit a report of the Vehicle Code violation until October 9, 2014. (A true and correct copy of form DL -21 is attached hereto and incorporated by reference.) 6. A delay of nearly 10 years in imposing a revocation of a citizen's operating privilege is a manifestly unreasonable period of time. 7. Petitioner will incur substantial prejudice if the revocation were now to be imposed. a. As Petitioner stated to undersigned counsel, "I am not the same person as I was nine years 2 ago" and evidence of such will be produced at trial. b. Petitioner has been completely sober since July 29, 2009, and fully intends to continue her life free of drugs and alcohol. Petitioner went through 90 -day rehabilitation and participated in Alcoholics Anonymous and is now rehabilitated and recovered from the drug and alcohol addiction that she previously had and evidence of such will be produced at trial. c. Due to several vehicle code violations between April 20, 2001, and August 6, 2008, which were primarily related to her prior drug and alcohol issues, Petitioner's operating privileges were under suspension from March 26, 2002, until December 11, 2012. d. After serving more than 10 years of suspensions, Petitioner's operating privileges and driver's license was restored on December 11, 2012. e. Petitioner has been employed part-time by various temporary agencies and assigned to the Navy Depot in Mechanicsburg since May of 2010. f. During her period of suspension while working at the Navy Depot, Petitioner received a ride to and from work with a fellow employee; however, that employee has since been laid off permanently. g. On May 5, 2014, Petitioner became a full time employee at the Navy Depot through NSC Technologies. h. On October 1, 2014, Petitioner's full-time position was reclassified as a forklift operator/materials handler and she received a substantial increase in pay. i. Petitioner now uses and has used her restored operating privilege to not only go to and from work, but also to enjoy her operating privileges to travel to and fro wherever she desires like 3 ever other licensed driver, including vacations and grocery shopping. j. Petitioner has changed her circumstances in reliance upon the restoration of her operating privileges on December 11, 2012, and for Petitioner now to be subject to a five-year license revocation given her changed circumstances is unreasonable state action and highly prejudicial. 8. After having her privileges suspended for 10 years, and now restored for nearly two years, imposition of a five-year revocation nine years and eight months afer the date of conviction is a manifest and palpable injustice contrary to due process of law in contravention of the Fourteenth Amendment of the United States Constitution and Article 1, Section 1 of the Pennsylvania Constitution. The Due Process Clause under the Pennsylvania Constitution protects life, liberty and property interests. Diwara v. State Board of Cosmetology, 852 A.2d 1279, 1283 (Pa. Cmwlth. 2004). The substantive protections of due process are meant to protect citizens from arbitrary and irrational actions of the government. Gresock v. City of Pittsburgh Civil Service Commission, 698 A.2d 163, 169 (Pa.Cmwlth.1997). Johnson v. Allegheny Intermediate Unit, 59 A.3d 10 (Pa.Cmwlth. 2012) (citations in original). 9. The delay in this case is so extreme that it shocks the conscience and calls for a complete and total judicial re-evaluation of the Commonwealth Court's decision in Chappell v. Commonwealth, 430 A.2d 377 (Pa. Cmwlth. 1981). 10. In Chappell in which the delay between suspension and conviction was but a mere four months, the Commonwealth Court created by caselaw a doctrine that judicial delay is not attributable to the Department of Transportation. 11. Petitioner intends in this appeal to argue for a change in the caselaw and commends to this 4 Court the decision of the Hon. John E. Backenstoe, former President Judge of Lehigh County, in the case of Commonwealth, Department of Transportation v. Curzi, 30 Pa. D. & C.3d 307 (Lehigh, 1984)' (A copy is attached as Appendix 1.) As Judge Backenstoe wrote: There must necessarily come a time when the interests of the individual to a proper resolution of his operator's status overrides that of the state's in enforcing the Vehicle Code if due process is to be served. It would certainly offend anyone's sense of fairness if an operator's license is suspended ten or twenty or more years after a conviction; and while we do not set a particular point here we feel that due process would prohibit the state from acting further upon a conviction, we find that notions of fairness and decency, as embodied in the concept of due process, mandate that the state cannot suspend the appellant's license after a four year period of inaction on its part. Cruzi, supra., at 310. (Emphasis added.) 12. Petitioner cannot understand how a citizen is protected from "arbitrary and irrational actions of the government" (see Johnson, supra, quoting Gresock) with respect to an administrative agency of the Executive Department of the Commonwealth, yet the Judiciary, or the Clerk of Courts in this case, may be capricious and arbitrary contrary to the U.S. and Pennsylvania Constitutions;—such is the practical result of the Commonwealth Court's decision in Chappell and the line of cases following Chappell. It makes no difference to the citizen or to Justice as to whom is responsible for the near 10 year delay. An injustice has been done in this case and Petitioner appeals to this Honorable Court for redress. 13. The doctrine established in the Chappell case transforms the doctrine of separation of powers from a shield against tyranny into a sword against the individual rights, privileges and liberties of the individual citizen by essentially declaring that no matter how egregious the delay ' Undersigned counsel was not able to find in his research a reversal by the Commonwealth Court of this Lehigh County case. 5 between conviction and imposition of suspension the individual citizen has absolutely no recourse, no redress against the wrong; this is patently contrary to due process of law made applicable to the states by the Fourteenth Amendment. 14. Although there are three co -equal departments or powers of government within our Commonwealth, each department exercises its specific delegation of power as part of the one Commonwealth of Pennsylvania. a. Article II, Section 1 of the Pennsylvania Constitution states: The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives. (Emphasis added.) b. Article IV, Section 1 of the Pennsylvania Constitution states: The Executive Department of this Commonwealth shall consist of a Governor, Lieutenant Governor, Attorney General, Auditor General, State Treasurer, and Superintendent of Public Instruction and such other officers as the General Assembly may from time to time prescribe. (Emphasis added.) c. Article V, Section 1 of the Pennsylvania Constitution states: The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system. (Emphasis added.) d. As James Madison wrote in Federalist Paper No. 51, February 6, 1788: In a single republic, all the power surrendered by the people, is submitted to 6 the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. e. Regardless of whether the near 10 year delay came from the Clerk of Courts or the Department of Transportation the injustice wrought upon this Petitioner is from a single government: the Commonwealth of Pennsylvania—notwithstanding its division into distinct and separate departments. 15. To the individual citizen whether an act be by the Legislative branch, the Executive branch or the Judicial branch, that act is correctly perceived by the citizen as an act by the Commonwealth. 16. Recent legislation enacting Senate Bill No. 1239 of 2014 is only applicable to drug-related convictions and is not applicable to the violations of the Vehicle Code.2 17. Petitioner hereby invokes her statutory right to appeal the Commonwealth's Notice of Revocation of Operating Privilege (see Exhibit A), pursuant to Section 1550 of the Vehicle Code, 75 Pa.C.S. §1550 (relating to Judicial review). 18. Petitioner may have additional claims of errors of law, including a civil rights claim under 42 U.S.C. §1983 under the doctrine of concurrent jurisdiction3, which undersigned counsel has not yet fully researched and explored and respectfully preserves the right to raise any such issues at trial or within pre-trial or post -trial briefs. 2 In all Internet press reports read by undersigned counsel, York County Clerk of Courts Don O'Shell only mentioned drug-related violations as being reported late, and obviously, as shown by this case, other violations also were not reported to the Commonwealth, Department of Transportation in a timely manner. 3 Petitioner may also have a civil rights claim against the York County Clerk of Courts. 7 WHEREFORE, Petitioner respectfully requests that the Revocation of her operating privilege by the Commonwealth be stayed pending appeal and that this appeal be sustained. Respectfully submitted: November 21, 2014 8 Philip L. Zulli, Esq. Atty. ID. No. 47499 Zulli Vehicle & Traffic Law, 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 (Fax) Zulli@msn.com 2014-11-20 11:25 PennDOT OCC ROC 123 » ANN $ EWING 688 FRONT ST ENOLA PA 17025 Dear MS. EWING: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 22, 2014 7175662373 P 7/10 WID d 1420860221E7060 002 PROCESSING DATE 10/15/2014 DRIVER LICENSE S 19220687 DATE OF BIRTH 11/30/1960 This is an Official Notice of the Revocation of your Driving Privilege as authorized by Section 1542D of the Pennsylvania Vehicle Code. As a result of your 02/15/2005 conviction of violating Section 3733 of the Vehicle Code, FLEEING POLICE OFFICER, on 09/04/2004: ■ You have been designated as a habitual offender because this is your third major violation within a five year period. • Your driving privilege is REVOKED for a period of 5 YEARCS) effective 11/26/2014 at 12:01 a.m. Before PennOOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING WITH THIS REVOCATION, 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 privilege until all the requirements are satisfied. COMPLYING_WITH THIS REVOCATION You must return all Current Pennsylvania driver's licenses, learner's permits and temporary driver's licenses (camera Cards) in your possession on or before 11/26/2014. You may surrender these items before 11/26/2014, for earlier credit; however, you may not drive after these items are surrendered. YOU NAY 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 $27.50. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. —)011-grcb A fit 2014-11-20 11:25 PennDOT OCC ROC 123 » 7175662373 P 8/10 142886032157860 You will not receive credit toward serving any revocation until we receive your license(s). Complete the following steps to acknowledge this revocation. 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 notarized letter stating you are aware of the revocation 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. Sox 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), camera card(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within three (3) weeks, please contact our office. Otherwise, you will not be given credit toward serving this revocation. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING JHE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay the applicable restoration fee, payment can be made at anytime online B www.dmv.state.pa.us or mailed to the address listed below. Please include your driver number on your check, money order or correspondence. Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 The Restoration Fee is based on the Consumer Price Index and subject to change. For the current restoration fee amount due, please visit PennDOT's website at www.dmv.state.pa.us to obtain a copy of your restoration requirements letter. 2014-11-20 11:25 PennDOT OCC ROC 142886032157860 123 » 7175662373 P 9/10 If you do not have Internet access, please call PennDOT's Customer Care Center at 1-800-932-4600 to request a copy of your restoration requirements letter. 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". 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 insurance at that time. This letter will list acceptable documents and what will be needed if you do not own a vehicle registered in Pennsylvania. IMPORTANT: Please make sure that PennDOT is notified if you move from your current address. You may notify PennDOT of your address change by calling any of the phone numbers listed at the end of this letter. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, OCTOBER 22, 2014, 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 1101 South Front Street Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF REVOCATION. You must return all current Pennsylvania driver license products to PennDOT by 11/26/2014. 2014-11-20 11:25 PeanDOT OCC ROC 142886032157860 SEND FEE/LICENSE/DL-16LC/TO: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 123 » 7175662373 P 10/10 Sincerely. Kara N. Templeton, Director Bureau of Driver Licensing INFORMATION (8:00 AM TO 5:00 PM) IN STATE 1-800-932-4600 OUT-OF-STATE 717-412-5300 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-412-5380 2014-11-20 11:25 PennDOT OCC ROC OL41(3.08) NO OPERATOR NUMBER 123 » 7175662373 P 6/10 REPORT OF THE CLERK OF COURTS SHOWING THE CONVICTION OR DAMENDED REPORT ACQUITTAL OF ANY VIOLATION DEFENDANT REQUESTS ADDRESS CHANGE OF THE VEHICLE CODE Under Section 6323 of the Vehicle Code, it is mandatory that the Clerk of Courts report all violations of the Vehicle Code. DEFENDANT AND VEHICLE INFORMATION (TYPE OR PRINT CLEARLY) NAME SEX DATE OF BIRTH FIRST ANN , OL LAST S. EWING _ F 11 30 60 ADDRESS; (It AO.9o* number may be nod In addlllon to Uto WWI address, but cannot be used as the only eddrosa.1 540 FISHING CREEK RD CRIT STATE ZIP CODE SOCIAL SECURITY NUMBER NEW CUMBERLAND PA 17070 1 7 5. 4 8- 3 7 7 3 COL HOLDER DRIVER NUMBER STATE LICENSE PLATE NUMBER YEAR sun Q vas El NO muse OCCURRED WHILE ORIVINWTRANSPORTING - - ❑ Hazardous Materials CI Commercial Vehicle Cl School Vehicle O t6. Patleenger Vehicle CI Other VIOLATION INFORMATION -Rho Vohicfe Code - Act of Juno 17. 1976 P.L. 162 as amended) SECTION ` SUBSECTION/CLAUSE BLOOD ALCOHOL CONTENT OBense oowr ee In mem mer aubMlted accident ropont 3733 A _ mat YES CI No ss YES t1 No ID VIO DATE OF nATION DATE OF CONVICTIO (/) Box CI DATE OF ACQUITTAL h NOLLE PR DUI MONTH DAY YEAR MONTH DAY YEAR MONTH DAY YEAR _ 09 04 2004 02 15 `2005 CHARGE VIOLATION COMMITTED If speed violation, enter traveling speed and legal speed: FLEEING OR ATTEI1PTIN0 TO ELUDE OFVI (Chuck Ono) O Summery O F -Ungraded 0 M -Ungraded 0Ft OMI 0F2 Ie 11,12 0F3 0M3 DATE LICENSE OR ACKNOWLEDGEMENT WAS SURRENDERED TO COURT OR DISTRICT ATTORNEY. MONTH DAY YEAR COURT INFORMATION COURT OF COMMON PLEAS COUNTY OF 67 YORK COUNTY NUMBER 0005430 YEAR 2004 OTN L2065921 SIGNATURE AND DATE CERTIFIED THE UNDERSIGNED CERTIPIESTHATTHE OF A CONVICTION OR ACOURTALMOLLE SEAL ELECTRONICALLY FOREGOING IS A CERTIFIED RECORD PROSEOUI TRANSMITTED 10/09/2014 �.. _�� .-..-... Dale CenIHNs Clock el Coutts fo _ J.':ifs 44:41.14tlp tlSftDlfLtr::.':r6.:.;--,11;.iii . 01— lcIVOLS9 TREATMENT ORDERED (CHECK ONE) ❑ YES ®NO 0 SENTENCING INFORMATION Na (Check one) eerenernt Retested to Mau aD _ 0 YES in NO CI TIME SERVED". Must for (check one) (1) sections 3802(A)(1)d 3802(A)(2) Wes the defendant sentenced under Section y 388(e)(1), Title 75 of the Vehicle Code? co _ o O Yes ®NO es Send This Form To: Bureau of Driver Licensing, Clerk of Courts, P.O. Box 60037, Harrisburg, PA 17106.0037 PO BOX 644 APPENDIX 1 APPENDIX 1 Corn. Dept. of Transp. v. Curzi, 30 Pa. D. & C.3d 307 (1984) Pennsylvania, Lehigh Colnnty. Commonwealth Dept. of Trans. v. Curti No. 83-C-3248. I Apn718,1984 Attorneys and Law Firms RichelleD. Sanders, assistant counsel for Department of Transportation. Thomas D. Aristide, for appellant Opinion BACKENSTOE, J. The issue before this court is whether a delay of four years between the date of a conviction for a traffic offense and the service of a notice of suspension of driver's license should prohibit the suspension for the reason that such an inordinate length of delay in the procedure violated appellant's due process rights. On October 23, 1979, appellant. pled guilty before a district magistrate to the charge of driving under the influence. Though section 6323 of the Vehicle Code (75 Pa. C.S.A. §101 et seq.) provides that the magistrate is to send a report of the conviction to the Department of Transportation (DOT) within ten days ); Department of Transportation, Bureau of Traffic Safety v. Parr, 56 Pa. Commw. 203, 424 A.2d 604 (1981); Department of Transportation, Bureau of Traffic Safety v. Lyons, 70 Pa. Commw. 604, 453 Aid 730 (1982). The Commonwealth Court has not, however, had occasion to apply this rule when the delay between conviction and suspension exceeded two years. Nor has the court cone, etely explained the distinction it had drawn between administrative delay and judicial delay.1 In general, the court has simply held, without further explanation, that DOT cannot be held accountable for the court's delay. Lyons, supra; Chappell, supra. While it may be a perfectly reasonable proposition that DOT should not be held accountable for delays caused in the judiciary, we must also be mindful that there are also limitations on how the state may proceed against the interests of an individual. Such limitations may stem from the power of the due process clause of the Fourteenth Amendment of the United States Constitution. Due process of law, the principle by which the application of the power of the state against the rights of an individual is held in some check, is a concept escaping an exact definition or definitions. *309 1111b. The concept is rooted in notio d fairness (seeltIMMISOMERMIMMINIMI IIMBISMOMBOMMIMIMIlk and, in general, d its measure of the disposition, the report was no/ actually mailed is often determined by the facts and circumstances until September, 1983 and not received by DOT until the 14th of that month. The delay in sending out report was apparently because of an oversight Acting . In Douglas, the court expressed after upon the certified report, DOT mailed the notice of an extensive analysis, a definition of due process for suspension to the appellant on October 7, 1983. issues not purely procedural which we find to be both persuasive and relevant of each articular case. The Commonwealth Court has held that while a delay between conviction and suspension caused by DOT may require that the order of suspension be *308 vacated if the operator can show that he was prejudiced by the delay, a delay ,4t1 lbutable only to the judiciary will have no effect:onmDOT's power to suspend a license under the Vehicle(•Code regardless of any prejudice caused by the [Due process isj a legal or more accurately, a philosophical concept as to the extent to which the state, in the exercise of its sovereign power, should be permitted to deprive individuals within its jurisdiction of their lives, liberty or property. Its application to the facts of a particular case is purely a matter of judgment and therefore solely a question of law. The most, therefore that the pleader is required to do .. WestiawNexr © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 Com. Dept, of Transp. v. Curzi, 30 Pa. D. 8 C.3d 307 (1984) is to set out those facts upon which he relies to prove a deprivation of life, liberty or property by the state and to aver that the deprivation was beyond that which, under our Constitution, is allowable to the state in the exercise of its sovereign power, or in the language of the Fifth and Fourteenth Amendments, that it was without due process of law (Footnotes omitted). 130 F.2d at 653-659.2 Under the Constitution, a *310 state is forbidden to act against an individual in a manner that is "flagrantly unjust' 7192 .2d 3 or in a manner that does not comport with "traditi ideas of fair play and decency" iCIRliblaNIT=u We find that the appellant herein has set out such facts as to demonstrate that the Commonwealth, in imposing the suspension of his license four years after his conviction, has acted in a manner beyond that allowable by the due process clause 'of the Fourteenth Amendment. Notwithstanding the rule of the Commonwealth Court that delays caused by the judiciary are not to be chargeable to DOT, we believe that the period of delay between conviction and suspension may become so great that due process requires that the state be -prohibited from securing the suspension regardless of the source of delay. To permit the state to proceed in the suspension of an operator's license many years beyond the time when it may legally act by virtue of a conviction offends traditional notions of fair play and justice, particularly when the . operator has been prejudiced by the delay. There must necessarily come a time when the interests of the individual to a proper resolution of his operator's status overrides that of the state's in enforcing the Vehicle Code if due process is to be served. It would certainly offend anyone's sense of fairness if an operator's license is suspended ten or twenty or more years after a conviction; and while we do not set a particular point where we feel that due process would prohibit the state from acting further upon a conviction, we find that notions of fairness and decency, as embodied in the concept of due process, mandate that the state cannot suspend the appellant's license after a four year period of inaction on its part. Footnotes *311 In so holding, we take note that the four year period of delay by the Commonwealth contributed to the appellant's prejudice. Expecting the suspension of his license, the appellant, an unemployed individual in his late forties or early fifties, restricted his search for new employment to areas that did not require the operation of his vehicle. After a period of close to three years after his conviction, the appellant, still unemployed but now under the impression that his license would not be suspended as the Commonwealth had thus far not taken any action against him, began to seek employment outside of his immediate vicinage and ultimately obtained a position some miles away requiring that he drive to and from work. His economic position is such that it would be unlikely for him to be able to afford to live near his place of employment as he is surviving by residing in the house of his mother. We find that the appellant would not have secured employment beyond an area where he would have had access without a car if he had not been lulled by the inaction of the Commonwealth into believing that his license would not be suspended. To suspend the appellant's license at this point, four years after the conviction, we feel would be unfair and unjust and a violation of his rights to due process. Accordingly, the appeal is sustained. ORDER - Now, this April 18,1984, for the reasons expressed the accompanying opinion, It is ordered that appellant's appeal of his driver's license suspension is hereby sustained. It is further ordered that defendant's operating privileges be restored by the Department of Transportation. Parallel Citations 1984 WL 266 (Pa.Com.Pl.) WastlawNe cr © 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 Com. Dept. of Transp. v. Curzi, 30 Pa. D. & C.3d 307 (1984) } In Chappell, however, the court did note that section 6324 of the Vehicle Code provides for sanctions for officials who fail to meet the provisions of section 6323, which the court observed to be a suitable enforcement mechanism for that section. 2 While a drives license has not been held to be a property right, it is an entitlement and one of such importance that due process provides that proper notice and a hearing are required before the state may take away the entitlement Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed. 2d 90 (1971); Reese v. Kassab, 334 F. Supp. 744 (W.D. Pa. 1971). We therefore feel that the protections afforded by due process should necessarily extend to the situation before tis. End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works. 'esttvittlext 0 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 VERIFICATION The undersigned having read the forgoing Appeal from Revocation of Operating Privilege states that the language within is based on information furnished to counsel, or such information has been gathered by counsel in the course of preparing this Appeal from Revocation of Operating Privilege, and that it is true and correct to the best of the undersigned signer's knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 of the Crimes Code (relating to unsworn falsification to authorities). Philip L. Z t1'li, Esq November 21, 2014 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY 9T11 JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ANN S. EWING : NO.: Petitioner v. • COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING CIVIL ACTION — LAW STATUTORY APPEAL CERTIFICATE OF SERVICE I, Philip L. Zulli, Esq., certify that I will serve a time -stamped copy of this Appeal from Revocation of Operating Privilege upon the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing on the date indicated below by Personal Service: Donald J. Smith, Esq. Assistant Chief Counsel Pa. Department of Transportation Office of Chief Counsel Riverfront Office Center, Third Floor Harrisburg, Pa 17104-2516 DATED: November 21, 2014 /vie Philip L. Zulli, E Atty ID.: 47499 Zulli Vehicle & Traffic Law 155 Grandview Road Hummelstown, PA 17036 Phone: 717-566-8585 Zulli@msn.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY 9' JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ANN S. EWING Petitioner v. . NO.: / 7G1-5 etiAj COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING CIVIL ACTION - LAW STATUTORY APPEAL SCHEDULING AND SUPERSEDEAS ORDER AND NOW, this ��, j 11 day of , 2014, a hearing de novo is scheduled on this appeal of Petitioner for the aO 4 day ofQ 20/S , at 9:3o 4. M, in Courtroom No. of the Cumberland County Courthouse, One Courthouse Square, 4th Floor, Carlisle, Pennsylvania, 17013, at which time testimony will be taken and argument heard. The action of the Commonwealth, Department of Transportation, Bureau of Driver Licensing, in revoking the driver's license and operating privilege of the Petitioner is hereby stayed pending a final decision of the Court to the extent provided under § 1550(b) of the Vehicle -Cod, Pa.C.S. §1550(b). DISTRIBUTION: BY THE COURT: Judge rV CD i Philip L. Zulli, Esq., Zulli Law Office, 155 Grandview Road, Hummelstown, PA 17036-9269— Attorney for Petitioner .— Donald J. Smith, Esq., Assistant Chief Counsel, PA Dept. of Transportation, Office of Chief Counsel, 1101 South Front Street, Riverfront Office Center- Third Floor, Harrisburg, PA 17104-2516— Attorney for the Commonwealth eOpteS rat&ied if I �jc ��t