HomeMy WebLinkAbout05-3363
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVll.. ACTION NO: () 5 - 3:3 (., 3 ~ r:;::.
MICHELLE E. FRAGALE
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
: LICENSE SUSPENSION APPEAL
PETffiON FOR LEAVE TO APPEAL FROM SUSPENSION OF OPERATOR'S
PRIVILEGE NUNC PRO TUNC AND REOUEST FOR SUPERSEDEAS
AND NOW comes the Appellant, Michelle Fragale, by and through her attorney, Karl E.
Rominger, Esquire, and respectfully avers the following:
1. Appellant resides at 24 Winterset Court, West Grove, Pennsylvania, 19390.
2. Appellant received Notice dated March 16, 2005, stating that as a result of her
alleged violation of Section 6308 of the Vehicle Code on November 14, 2004, her driving
privilege was being suspended for a period of ninety (90) days, effective April 20, 2OOS, at
12:01 a.m. A copy is attached hereto as Exhibit "A".
3. Suspension is improper in that
(a) Appellant's Counsel sent a Notice of Appeal to PennDOT on
February 23,2005, well within the 30 days allowable by law to appeal a
summary conviction. However, within the 30 days appellant had to
exercise her appeal rights, PennDOT improperly sent appellant a Notice of
Suspension on March 16, 2005.
(d) The Pennsylvania Department of Transportation lacked independent
authority to administratively suspend or revoke the license in question,
because a Summary Appeal was filed, and a Summary Appeal vacates the
findings and order of the District Justice, and as such there was no finding
of guilt or Order by any Court, either of record, or not of record, and thus
PennDOT lacked statutory authority to act and/or subject matter
jurisdiction to act.
4. A Supersedeas is appropriate in this matter if and until these issues can be
resolved, especially given the high likelihood of success by AppellantIPetitioner.
5. On June 27,2005, the trial court ordered all evidence in the case suppressed as the
fiuits of an illegal search and seizure, and as such there is no ability of the Commonwealth
to obtain a conviction.
6, Due in the fact the conviction is now impossible, either a dismissal, a not guilty, or
a nolle pros are the only possible outcomes, and it would be unjust and violate Due
Process for Appellant to continue to suffer a license suspension for a crime for which she
can not be convicted.
WHEREFORE, your Appellant respectfully requests this Honorable Court to
schedule an evidentiary hearing on the matter and in the meantime to grant a Supersedeas
pursuant to the Vehicle Code, for the just reasons stated above.
Respectfully submitted,
I
,
KarlE. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Appellant
Date:
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MICHELLE E. FRAGALE
v.
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO: :
: LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certifY that I this day
served a copy of the Notice of Appeal Nunc Pro Tunc upon the following by depositing same in
the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as
follows:
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Date:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center,
Harrisburg, PA 17104-2516
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
~ 2 _
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Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, P A 17013
(717) 241-6070
Supreme Court 10 # 81924
Attorney for Appellant
COMMONWEALTH O~ PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver licensing
Ma11 Date: MARCH 16, 2005
MICHrLLr ERIN FRAGALE
i!li lIlINTEIt:SET <:T
WEST GROVE PA l~~~O
WID t D50~A~1a2~aQ~b~ 001
PROCESSING DATE 03/0'/i!OOS
DRIVER LICENSE t i!~?li5li~3
>>ATt Of BIRTH U~/l?/l~a~
O&ar .MS. f'R"AU::
As a result ft~ your ~~Dl~~ian on 11/14/2D04 of violating
Section 6308 (offenses related to alcohol), your driVing
privilege is being SUSPENDED for a period of 90 DAVeS} as
Mandated by 5ection l~&ZD of the vehicle code.
The effective date of sU8~ens1on is O~'20/200S, 12.01 a.M.
. Before PennOOT can restore your driVing privilege, YOU ~ust
follow the instructions in this letter for COMPLYING WITH
THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING
PROO~ OF INSURANCE. You should fallow ALL instructions very
oor~u11Y. Even;l." 11'011 have served all the t1ll1e on the
.uspens1on'~evocat1on. we cannot ~estore your driving
privilege until all the reQu1rements are .atlc"ied.
COKPLVING WITH THIS SUSPENSION
Vnu Must retu~n all ~urrent Pennsylvania driver's licenses,
learner's persits, teMPOrary driver's licenses (camera
cardS) in your posses5ion on or before 04/20/2005. You May
surrender these iteas before, 04'20'2005, for earlier
credit; however, YOU ..aY not drive after these iteMS are
,!tu.r".e.ndllre,cl__.. .,~._-----.-..~~~.-.... "-' .- ".--' .---.,-.-
YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION
PURPOSES. However, you ..ay ,""ply "fDr and oDtain a PhDto
identification card at any Driver License Center for a cost
of tl0. 00. You must present two (2) "forms of proPII..
identification (e.g., birth certificate, valid U.S.
pa5sport, marriage certificate, etc.) in order to obtain
YOur ohoto jdentifieation card.
You w11l not receive oredit toward serv:l.ng any suspension
un'til we reoeive yay,. 1:1.cenae(s). Complete tile follOWing
steps to acknowledge this susoension.
1. Return all current PennsYlv,nia driver's licenses,
l..arner's permits and/or cam"ra cards to PennDOT. If
YOU do nDt have any of tllese items. s..nl'l .. sworn
Exhibit "A"
0506861224110164
notarized letter stating ~au are aware of the suSpcn,1on
at !four drilling privilege. Vou Must specify in your
letter why YOU are unable ta return your driver's
license. Remellb...r, Vau ....v not relain vour driller's
license for identification purposes. Please send these
i telllS tIll
2.
PennSYlVania Departlllent of Transportation
Bureau Of Driver Licensing
P.O. 80l< 'A(;93
.__ Ilar.risburg" -'~A .1.71U:::.8&!!.3. . ____ _, " _ _
Upan raceiot, review and acceptance of ~our PennSYlvania
driv.~'s 1~ce".c(a)~ le~r".r.s permit(s), and/or a sworn
notarized letter, PennDOT will send YOU a receipt
COnfirming the date th..t credit bell!!n. f1' lfau do nDt
recelve a receipt fram us within 3 weeks, please contact
our office., Otherwise, YOU will not be gill.n credit
toward serllina this SUSPRnS'''n. PennDOT phone numbers
are listed at the end Of this letter.
If YOU do not return all Current driver licen~...
a,.aducls, we must refer this matter to the PennsYlvania
State Police for IIras..cution under SECTION 1571 (a) (4)
of the PennSYlvania V.hiele Code.
. _.__....~--_...
3.
PAVING THE RESTORATION FFF
You must pay a restorlltion fee to PennDDT to be restored
from a suspensiOn/revocation of your driving privilege. To
lIay your restorat1un fee, complete the fallowing steps:
1.
Return the ..nclosed Application for Restoration. The
alllount due is listed on the application.
Write your driver's license nUMber (listed on the first
paq.>,._~o.r.l.. .th..A.. eh.eek _or "'DnGV._Qrder:~ _t...o.......e.A.-.w.r...._-Prop....,..
credit.
Follow the payment and mailing instructions on the back
of the application.
2.
3.
PROVIDING PROOF OF INSURANCE
Within the last 30 days of your suspension/revocation, we
will send 'YOU a letter askinA that you pravide proof of
insurance at that ti.e. This letter will list accePtable
docu.ents and what will be needed if YOU do not own a vehicle
rea1st.r.d in Pennsvlvania.
%MPDRTANT: Please mak.. sure that PennDOT is notified jf yoU
.uve frOM yaur current address. You May notify PennOOT of
your address chanSle by callinSl any of the IIhone nu"bers
listed at the end of this letter.
05068&122480164
AePEAb
You "ave the right to appeal this action to the Court of
COllman Pleas (Civil Divisionl within 30 days of the mail
date, MARCH I~. 2005. gf this lettyI'. X~ YOU ~11e an appeal
in the county Court, the Court will give YOu a tiMe-stamped
eerti~ied eopy of the appeal. In order far YOUI' appeal to
be valid, yOU lIust send this tillie-stamped certified CODY of
the appeal by certified mail to:
Pennsylvania Deo.rt..nt of Trensport.tion
-'If f.i ce ,0 l'.-C.I!1.e:L.C1l UD.5.e1
Third Floor, Riverfront Office Center
Harr~sbur9, PA 1710~-Z~16
R......ber, this is an Ol'I'XC%AL NOTICE OF SUSPENSION. v.....
Must retur" all current PennsYlvania driver license prOducts
to PennDOT by 04/20/2005.
Sincerely,
.~~.~
Rebecca l. Bickley, Director
Bureau of Uriver Licensing
INFORMATION 7,00 a.... to 9'00 D.m.
IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676
aUT-OF-~TATE 717-191-&190 TDD OUT-OF-STA1~ 717-391-6191
WEB SITE ADDRESS www.d~v.state.Da.us
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MICHELLE E. FRAGALE : IN THE COURT OF COMMONWEALTH PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, : NO. 2005 - 3363 CIVIL TERM
PENNSYLVANIA
DEPARTMENT OF
TRANSPORTATION,
BUREAU OF DRIVER
LICENSING
ORDER OF COURT
AND NOW, this 6TH day of JULY, 2005, a Rule is issued upon the Department of
Transportation to Show Cause why the Petitioner should not be allowed to file the
attached appeal Nunc Pro Tunc.
Rule returnable in ten (10) days.
Edward E. Guido, J.
::Jeorge Kabusk, Esquire
'or the Pa. Dept. of Transportation
~I E. Rominger, Esquire
or the Appellant
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MICHELLE E. FRAGALE,
PETITIONER
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No. 2005-3363
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION
APPEAL
RESPONSE TO RULE RETURNABLE
AND NOW comes the Department of Transportation (hereinafter referred to as
"Department") by and through its attorney, George H. Kabusk, Assistant Counsel, and
hereby respectfully represents as follows:
I. The Department of Transportation notified the petitioner by notice dated March
16,2005, that as a result of the petitioner's conviction of a violation of Section
6308, offenses related to alcohol, on November 14,2004, the petitioner's
operating privilege was being suspended for 90 days, effective April 20, 2005.
See Department's exhibit I, sub-exhibit 1.
2. An appeal of a license suspension must be filed within thirty days of the mailing
date of the Department's Notice of Suspension. See 75 Pa. C.S. S 1550 and 42
Pa. C.S. SS 5571, 5572. See Hudson v. Department of Transportation, Bureau of
Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003); Bye v. Department of
Transportation, Bureau of Driver Licensing, 607 A.2d 325 (Pa. Cmwlth. 1992).
3. Failure to file the appeal within the thirty-day appeal period deprives the court of
jurisdiction to entertain the merits of the case. See Hudson v. Department of
Transportation, Bureau of Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003);
Kovalesky v. Department of Transportation, Bureau of Driver Licensing, 850
A.2d 26 (Pa. Cmwlth. 2004); Department of Transportation, Bureau of Motor
Vehicles v. Shemer, 629 A.2d 1063 (Pa. Cmwlth. 1993), appeal denied, 536 Pa.
635,637 A.2d 294 (1993), (appeal quashed when filed one day after the
expiration of the 30 day appeal period).
4. An appeal nunc pro tunc may only be allowed when the party requests to appeal
nunc pro tunc and there is proof of fraud or breakdown of administrative or
judicial system which caused the late filing. See Kovalesky v. Department of
Transportation, Bureau of Driver Licensing, 850 A.2d 26 (Pa. Cmwlth. 2004).
5. An appeal nunc pro tunc may also be allowed when the party requests to appeal
nunc pro tunc and there were extraordinary circumstances by which the petitioner
was precluded from filing a timely appeal due to non-negligent, unforeseeable and
unavoidable consequences. See Schofield v. Department of Transportation,
Bureau of Driver Licensing, 828 A.2d 510 (Pa. Cmwlth. 2003); Puckett v.
Department of Transportation, Bureau of Driver Licensing, 804 A.2d 140 (Pa.
Cmwlth. 2002).
6. The last day for filing a timely appeal after the mailing date of the Department's
Notice of Suspension dated March 16, 2005, was Apri115, 2005.
7. The petitioner filed an appeal on July 1, 2005, more than 76 days after the mailing
date of the Department's Notice of Suspension.
8. The petitioner's appeal is untimely.
9. The Court on July 6,2005, issued a Rule upon the Department to Show Cause
why the Petitioner should not be allowed to file the appeal Nunc Pro Tunc.
10. The petitioner alleges in her petition that the suspension is improper but alleges
no reasons why the petitioner should be allowed to file the appeal nunc pro tunc.
11. The petitioner alleges no fraud or breakdown of the system or other extraordinary
circumstances.
12. The petitioner alleges that she sent a Notice of Appeal to the Department.
13. The Notice of Appeal which the petitioner refers to in paragraph 3 of her petition
would have been for the underlying criminal offense, not for the suspension at
Issue.
14. The filing of an appeal from the underlying criminal offense does not stay the
Department's action of imposing a suspension undl~ the Vehicle Code. See
Zavodsky v. Department of Transportation, Bureau of Driver Licensing, 637 A.2d
673 (Pa. Cmwlth. 1994); Commonwealth of Pennsylvania v. Wolf, 632 A.2d 864
(1993); Budjnoski v. Department of Transportation, Bureau of Driver Licensing,
566 A.2d 936 (Pa. Cmwlth. 1989); Department of Transportation, Bureau of
Traffic Safety v. Sheets, 410 A.2d 1295 (Pa. Cmwlith. 1980).
15. Section 1555 of the Vehicle Code provides for a 6 month delay of a suspension
upon the filing of an appeal from the underlying summary conviction.
16. A licensee must request the Department to delay the suspension pursuant to
Section 1555 of the Vehicle Code. See 75 Pa.C.S. * 1555.
17. The licensee is not granted an automatic delay of the suspension pursuant to
Section 1555 of the Vehicle Code upon filing of an appeal from the underlying
summary conviction. See 75 Pa.C.S. * 1555.
18. The Department has discretion under Section 1555 of the Vehicle Code to grant
or not to grant a delay. See 75 Pa.C.S. * 1555.
19. The petitioner in her appeal alleges that on February 23, 2005, she sent a Notice
of Appeal to the Department, ifthis was for the purpose of seeking a delay
pursuant to Section 1555 of the Vehicle Code, the Department had not issued the
notice of suspension until March 16, 2005; therefore, when the Department
received the notice of appeal on or about February 23, 2005, there was no notice
of suspension issued nor was there a suspension to delay.
20. The petitioner makes no allegation why she could not have filed an appeal from
the notice of suspension dated March 16,2005, nor any allegation that the
petitioner attempted to request a 6 month delay pursuant to Section 1555 of the
Vehicle Code after the notice of suspension dated March 16, 2005, was issued.
21. The petitioner alleges that the petitioner has filed an appeal of the underlying
criminal offense which resulted in the suspension at issue and the petitioner will
be found not guilty or that the charges be dismissed or nolle prossed.
22. If the petitioner is acquitted, the Clerk of Courts will report such a fact to the
Department.
23. The petitioner's suspension at issue was effective April 20, 2005, and the
petitioner has earned credit towards the 90 day suspension starting June 9, 2005,
and the suspension is scheduled to be released on September 7, 2005. See
Department's exhibit I, sub-exhibit 3.
24. Even if the petitioner were successful on the merits of the underlying criminal
appeal, the Department would be permitted to keep a record of the offense for the
purpose of showing the suspension was imposed against the petitioner. See 75
Pa.C.S. ~ 1516(c).
25. Ifthe petitioner is permitted to proceed with this appeal, the Court must hold a
hearing addressing the merits of granting an appeal nunc pro tunc before the court
addresses the merits ofthe appeal. See Department of Transportation v. Schillaci,
639 A.2d 924 (Pa. Cmwlth. 1994).
WHEREFORE, the Department respectfully requests that the petitioner's appeal
not be granted because the petitioner has alleged no grounds for appealing Nunc Pro
Tunc.
Respectfully submitted,
/ .). J/
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George . Ka usk, Esquire
Assistant Counsel
Office of Chief Counsel
Riverfront Office Center-3rd Floor
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Dated: July 14, 2005
DL-326 (9/95)
CERTIFICATION
.
DATE: July 11, 2005
I hereby certify that Janet L. Dolan, Acting 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 Acting Dir,ector of the aforesaid Bureau, she has
legal custody of the original or microfilm records which are reproduced in the attached certification.
IN TESTIMONY WHEREOF, I HAVE HEREmnO SET MY HAND AND SEAL OF
THIS DEPARTMENT THE DAY AND YEAR AFORESAID.
~.f).~
ALLEN D. BIEHLEH, SECRETARY OF TRANSPORTATION
I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND
CORRECT CERTIFIED PHOTOSTATIC COPY OF:
1) Official notice of suspension dated & mailed 3/16/05/04, effective 4/20/05; 2) Report of a court
ordering the suspension of operating privilege as the result of a violation of Chapter 63 of Title 18,
of Cumberland County No. NT -0001266-04, 2005, date of violation 11/14/04, date of disposition
2/18/05, seal attached to original; and 3) Driving record which appears in the file of the defendant
MICHELLE ERIN FRAGALE, Operator's No. 26745423, datE~ of birth 3/17/84, in the Bureau of
Driver Licensing, Harrisburg, Pennsylvania.
CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9,
1976, P.L. 586, as amended, 42 Pa.C.S. ~~6103 and 6109.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR
AFORESAID.
~ tJ~W
SEAL
JANET L. DOLAN, ACTING DIRECTOR
BUREAU OF DRIVER LICENSING
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: MARCH 16, 2005
MICHELLE ERIN FRAGALE
24 WINTERSET CT
WID # 050686122480164 001
PROCESSING DATE 03/09/2005
DRIVER LICENSE # 26745423
DATE OF BIRTH 03/17/1984
WEST GROVE PA 19390
Dear MS. FRAGALE:
As a result of your violation on 11/14/2004 of violating
Section 6308 (offenses related to alcohol), your driving
privilege is being SUSPENDED for a period of 90 DAY(S) as
mandated by section 1S32D of the vehicle code.
The effective date of suspension is 04/20/2005, 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
privilege until all the requirements are sa'tisfied.
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 04/20/2005. You may
surrender these items before, 04/20/200~;, for earlier
credit; however. you may not drive after these items are
surrendered.
YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FO~: IDENTIFICATION
PURPOSES. However, you may apply for and obtain a photo
identification card at any Driver License Center for a cost
of $10.00. 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.
You will not receive credit toward serving any suspension
until we receive your license (s) . Complete the following
steps to acknowledge this suspension.
1. Return all current Pennsylvania driver'S licenses,
learner's permits and/or camera cards to PennDOT. If
you do not have any of these items, send a sworn
~(
050686122480164
notarized 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
confirming the date that credit began. If you do not
receive 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
products, 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.
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.
050686122480164
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (civil Division) within 30 days of the mail
date, MARCH 16, 2005, of this letter. If you file an appeal
in the County Court, the Court will give yC)U 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 ~lUSPENSION. You
must return all current Pennsylvania driver license products
to PennDOT by 04/20/2005.
Sincerely,
~~\~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
INFORMATION 7:00 a.m. to 9:00 D~
IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676
OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 717-391-6191
WEB SITE ADDRESS www.dmv.state.Da.us
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.uD NOW. Ha~ made !he above I8OOI1!Id dliIpoalllOft. In IIlXlOl'lfanCe wItlI the
1_ ~..,., plCNIItloI '" of 18 PA. C.S. t 6310.4(8). Ihls 0QWt ordeJ$1hl.4 the opel'$llng
~ (1/ ltliS".,.oo be 8lI8p8I1ded. A copy of 1lIl8 0IdIt It 10 be fOIWaR1$d to
.. DtpeItment (1/ T~ In oRlerlhst Ihe "lIl1ln lltlIl be Imposed in
~dal1oe WIllI the provlelon8 of 18 PA. C.S. & 8310.<<11).
ey,:OOUR1' /~ J.
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o PREAOJUtltCATlON 0lSP0SIT1ON
~CGrlMl'lf!o.a"'J
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=,meMeled under the ptO\Ilsionaof 18 PA.C.S. . 8310.4(8). DUll RllIlla. a/18'OI 4,11.1."
~ -=:;~;.:~~:._~,~._~
COMMONWEALTH OF PENNSYLVANIA.
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER llCENSftllG
HARRISBURG, PENNSYlVANIA 17123
Date: July 11, 2005
CERTIFICATION
STATEMENT
..:;"~
~
~...~
In compliance with your request, I hereby certify that I have caused a search to be made of the flies of the IDepartment of Transportation, and herewith is a true record in the
name of:
MICHELLE ERIN FRAGALE, 24 WINTERSET COURT, WEST GROVE, PA 19390
OPERATOR NO.:
26745423
Date of Birth: 3/17/84
CLASS OF LICENSE:
mlE NO.:
PURPOSE OF REQUEST:
Legal
(R-INSURANCE. C-CREDrr. E-EMPlOYMENT.l-lEGAl. M-OTHER)
om SECTION VIOLATION ACTION TAKSN BY DEPARTMENT
IIIOtATlON
11114/04 6308 Underage alcohol offense Official notice of suspension dated & mailed 3/16/05,
effective 4/20/05, for 90 days. Appeal talen, not
restored, nunc pro tunc.
In compliance with your request, I hereby certify that I have caused a search to be made of the files of the Department of Transportation, and herewith is a true record in the name c
the subieCt listed above.
~ Jj~W
ACTING DIRECTOR. BUREAU OF DRIVER LICENSING
Information requested by:
tv
DATE: July 11. 2005
COMMONWEALTH OF PENNSYlVANIA $S:
I hereby certify that Janet l. Dolan, ActIng Director of the Bureau of Driver Ucensing of the Pennsylvania DE!partment of Transportation, Is the legal custodian of the Driver
License records of the Pennsylvania Department of Transportation. As the Dkector of the aforesaid Bureau. she has legal custody of the original or microfilm recGl'ds 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
~~LJ.~
SEAl
SECRETARY OF TRANSPORTATION
1t5
COMMONWEAl. TH OF PENNSYlVANIA
DEPAATMfNT OF TRANSPORTATION
BUREAU OF ORNER LICENSING
HARRISBURG, PENNSYlVANIA 17123
Date: July 11, 2005
CERTIFICATION
STATEMENT
(!)
~hJ'
In compliance with your request, I hereby certify that I have caused a search to be made of the files of the Department of Transportation, and herewith is a true record in the
name of:
MICHELLE ERIN FRAGALE, 24 WINTERSET COURT, WEST GROVE, PA 19390
OPERA TOR NO,:
26745423
Date of Birth: 3/17184
CLASS OF LICENSE:
TITLE NO.:
PURPOSE OF REQUEST:
Legal
(R=INSURANCE. C=CREDIT. E=EMPLOYMENT. L=LEGAL. M=OTHER)
DAT' SECTlON VOOUoOON ACTION TAKEN BY DePARTMENT
VIOLATION
11/14/04 6308 Underage alcohol offense Official notice of suspension dated & mailed 3/16/05,
effective 4/20/05, for 90 days. Appeal talen, not
restored, nunc pro tunc.
In compllanee with your request, I hereby certify that I have caused a search to be made of the files of the Department of T ransportatJon, and herewtth is a true record in the name of
the subject listed above.
~ lJ~w
ACTING DIRECTOR. BUREAU OF DRIVER LICENSING
Information requested by.
tv
DATE: July 11,2005
COMMONWEALTH OF PENNSYLVANIA os:
I hereby certify that Janet l. Oolan, ActIng Okeetor of the Bureau of Driver Licensing of the Pennsytvania DEipartment ofTransportation, Is the legal custocflBn of the Driver
License records of the Pennsylvania Department of Transportation. As the Q(rector of the aforesaid Bureau, she has legal custody of the original or microfilm reeords which are
reproduced In the attached certlflcatlon.
IN TESTIMONY WHEREOF. I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID
~~LJ.~
SEAL
SECRETARY OF TRANSPORTATION
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
CERTIFIED DRIVING HIS~~ORY
JUL 11 2005
DRIVER: MICHELLE ERIN FRAGALE
24 WINTERSET CT
WEST GROVE, PA 19390
DRIVER LICENSE (DL)
~ICENSE CLASS :
~ICENSE ISSUE DATE:
~ICENSE EXPIRES
DRIG ISSUE DATE
imD RESTRICTIONS
~EARNER PERMITS :
~ICENSE STATUS
DRIVER LICENSE NO
DATE OF BIRTH
SEX
RECORD TYPE
PAGE 1
26745423
MAR 17 1984
FEMALE
REG LIC/ID
COMMERCIAL DRIVER LICENSE (CDL)
C
JAN 06 2004
MAR 18 2008
NOV 07 2000
1
CDL LICENSE CLASS
CDL LICENSE ISSUED :
CDL LICENSE EXPIRES:
CDL ENDORSEMENTS
CDL RESTRICTIONS
CDL LEARNER PERMITS:
CDLLlCENSE STATUS
SUSPENDED
SB ENDORSEMENT
NONE
NONE
SUSPENDED
PROBATIONARY LICENSE (PL)
PL LICENSE CLASS
PL LICENSE ORIG ISS:
PL LICENSE ISSUED
PL LICENSE EXPIRES :
PL LIa~NSE STATUS
OCCUPA~~IONAL LIMITED LICENSE (OLL)
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
OLL LICENSE CLASS :
OLL LICENSE ISSUED :
OLL LICENSE EXPIRES:
OLL LICENSE STATUS :
*** CONTINUED ***
PAGE 2
CERTIFIED DRIVING HISTORY - JUL 11 2005 - LICE1JSE NUMBER 26745423 CONTINUED
- - ~ - - - - - - - - - ~ - - - - - - - - - - - - - . - . ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
REPORT OF VIOLATIONS AND DEPARTME:NTAL ACTIONS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
IlIOLATION DATE:
IlIOLATION:
DESCRIPTION:
:X>NVICTION DATE:
!l.CTION:
NOV 14 2004
CRIMES CODE: 630B
UNDERAGE ALCOHOL OFFENSE
FEB 18 2005
SUSPENSION FOR 90 DAY(S) EFFECTIVE APR 20 2005
OFFICIAL NOTICE MAILED MAR 16 2005
LICENSE RECEIVED JUN 09 2005
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
REPORT OF MEDICALS AND DEPARTMENTAL ACTIONS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
NO MEDlCALS OR DEPARTMENTAL ACTIONS DURING '.rHIS REPORTING PERIOD
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - . - - - - -
REPORT OF ACCIDENTS AND DEPARTMENTAl, ACTIONS
, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
NO ACCIDENTS DURING THIS REPORTING PERIOD
*** END OF RECORD ***
PAGE 3
CERTIFIED DRIVING HISTORY . JUL 11 2005 - LICENSE NUMBER 26745423 CONTINUED
IN COMPLIANCE WITH YOUR REQUEST, I HEREBY CERTIFY THAT I
HAVE CAUSED A SEARCH TO BE MADE OF THE E'ILES OF THE DEPART-
MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE
SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED.
SINCERELY,
~ l;),.eW
SEAL
ACTING DIRECTOR, BUREAU OF DRIVER LICENSING
FOR
SECRETARY OF TR1\NSPORTATION
COMMONWEALTH OF PENNSYLVANIA SS:
DATE:JUL 11 2005
I HEREBY CERTIFY THAT JANET L. DOLAN, ACTING DIRECTOR OF THE
BUREAU OF DRIVER LICENSING, OF THE PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION IS THE LEGAL CUSTODIAN OF THE DRIVER
LICENSING RECORDS OF THE DEPARTMENT OF TRANSPORTATION. AS
THE DIRECTOR OF THE AFORESAID BUREAU, SHE HAS LEGAL CUSTODY
OF THE ORIGINAL OR MICROFILM RECORDS WHICH ARE THE SUBJECT
OF THE ABOVE CERTIFICATION.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL
OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID.
SINCERELY,
~h-j).~
SECRETARY OF TRANSPORTATION
SEAL
MICHELLE E. FRAGALE,
PETITIONER
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No. 2005-3363
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION
APPEAL
VERIFICATION
I verify that the statements made in the Department of Transportation's Response to
Show Cause are true and correct. I understand that false statements are made subject to the
penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsifi,~ation to authorities.
Date: July 14, 2005
hye
Assistant Counsel
Department of Transportation
Riverfront Office Center-3rd Floor
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
v.
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
No. 2005-3363
MICHELLE E. FRAGALE,
PETITIONER
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION
APPEAL
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the Department of Transportation ' s
Response to Show Cause upon the person, and in the manner, indicated below, which satisfies
the requirements of the Pennsylvania Rules of Civil Procedure:
By first class mail, prepaid, addressed to:
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, Pennsylvania 17103
Date: July 14, 2005
a . ~f~~f!L
~Kabusk
Assistant Counsel
Department of Transportation
Riverfront Office Center-3rd Floor
1 JO 1 South Front Street
Harrisburg,PA 17104-2516
(717) 787-2830
S2
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MICHELLE E. FRAGALE,
PETITIONER
v.
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
No. 2005-3363
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION
APPEAL
RESPONSE TO RULE RETURN~~
AND NOW comes the Department of Transportation (hereinafter referred to as
"Department") by and through its attorney, George H. Kabusk, Assistant Counsel, and
hereby respectfully represents as follows:
1. The Department of Transportation notified the petitioner by notice dated March
16,2005, that as a result of the petitioner's conviction ofa violation of Section
6308, offenses related to alcohol, on November 14, 2004, the petitioner's
operating privilege was being suspended for 90 days, dTective April 20, 2005.
See Department's exhibit 1, sub-exhibit 1.
2. An appeal of a license suspension must be filed within thirty days ofthe mailing
date of the Department's Notice of Suspension. See 7:5 Pa. C.S. ~ 1550 and 42
Pa. C.S. ~~ 5571, 5572. See Hudson v. Department of Transportation, Bureau of
Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003); Bye v. Department of
Transportation, Bureau of Driver Licensing, 607 A.2d 325 (Pa. Cmw1th. 1992).
3. Failure to file the appeal within the thirty-day appeal pleriod deprives the court of
jurisdiction to entertain the merits of the case. See Hudson v. Department of
Transportation, Bureau of Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003);
Kovalesky v. Department of Transportation, Bureau of Driver Licensing, 850
A.2d 26 (Pa. CmwIth. 2004); Department of Transportation, Bureau of Motor
Vehicles v. Shemer, 629 A.2d 1063 (Pa. Cmw1th. 1993), appeal denied, 536 Pa.
635,637 A.2d 294 (1993), (appeal quashed when fikd one day after the
expiration of the 30 day appeal period).
4. An appeal nunc pro tunc may only be allowed when the party requests to appeal
nunc pro tunc and there is proof of fraud or breakdown of administrative or
judicial system which caused the late filing. See Kovalesky v. Department of
Transportation, Bureau of Driver Licensing, 850 A.2d 26 (Pa. Cmwlth. 2004).
5. An appeal nunc pro tunc may also be allowed when the party requests to appeal
nunc pro tunc and there were extraordinary circumstances by which the petitioner
was precluded from filing a timely appeal due to non-negligent, unforeseeable and
unavoidable consequences. See Schofield v. Department of Transportation,
Bureau of Driver Licensing, 828 A.2d 510 (Pa. Cmwl1th. 2003); Puckett v.
Department of Transportation, Bureau of Driver Licensing, 804 A.2d 140 (Pa.
Cmwlth. 2002).
6. The last day for filing a timely appeal after the mailing date of the Department's
Notice of Suspension dated March 16,2005, was Apri:i 15,2005.
7. The petitioner filed an appeal on July 1, 2005, more than 76 days after the mailing
date of the Department's Notice of Suspension.
8. The petitioner's appeal is untimely.
9. The Court on July 6, 2005, issued a Rule upon the Department to Show Cause
why the Petitioner should not be allowed to file the appeal Nunc Pro Tunc.
10. The petitioner alleges in her petition that the suspension is improper but alleges
no reasons why the petitioner should be allowed to file the appeal nunc pro tunc.
11. The petitioner alleges no fraud or breakdown of the system or other extraordinary
circumstances.
12. The petitioner alleges that she sent a Notice of Appeal to the Department.
13. The Notice of Appeal which the petitioner refers to in paragraph 3 of her petition
would have been for the underlying criminal offense, not for the suspension at
Issue.
14. The filing of an appeal from the underlying criminal offense does not stay the
Department's action of imposing a suspension under1he Vehicle Code. See
Zavodsky v. Department of Transportation, Bureau of Driver Licensing, 637 A.2d
673 (Pa. Cmwlth. 1994); Commonwealth of Pennsylvania v. Wolf, 632 A.2d 864
(1993); Budjnoski v. Department of Transportation, Bureau of Driver Licensing,
566 A.2d 936 (Pa. Cmwlth. 1989); Department of Transportation, Bureau of
Traffic Safety v. Sheets, 410 A.2d 1295 (Pa. Cmwlth. 1980).
15. Section 1555 of the Vehicle Code provides for a 6 month delay ofa suspension
upon the filing of an appeal from the underlying summary conviction.
16. A licensee must request the Department to delay the suspension pursuant to
Section 1555 of the Vehicle Code. See 75 Pa.C.S. g 1555.
17. The licensee is not granted an automatic delay of the suspension pursuant to
Section 1555 of the Vehicle Code upon filing of an appeal from the underlying
summary conviction. See 7S Pa.C.S. ~ ISSS.
18. The Department has discretion under Section ISSS of the Vehicle Code to grant
or not to grant a delay. See 7S Pa.C.S. ~ ISSS.
19. The petitioner in her appeal alleges that on February 23, 200S, she sent a Notice
of Appeal to the Department, if this was for the purpose of seeking a delay
pursuant to Section ISSS of the Vehicle Code, the Dt:partment had not issued the
notice of suspension until March 16, 200S; therefore, when the Department
received the notice of appeal on or about February 23, 200S, there was no notice
of suspension issued nor was there a suspension to de:lay.
20. The petitioner makes no allegation why she could not have filed an appeal from
the notice of suspension dated March 16, 2005, nor any allegation that the
petitioner attempted to request a 6 month delay pursuant to Section 1555 of the
Vehicle Code after the notice of suspension dated March 16, 2005, was issued.
21. The petitioner alleges that the petitioner has filed an appeal of the underlying
criminal offense which resulted in the suspension at issue and the petitioner will
be found not guilty or that the charges be dismissed or nolle prossed.
22. If the petitioner is acquitted, the Clerk of Courts will report such a fact to the
Department.
23. The petitioner's suspension at issue was effective April 20, 2005, and the
petitioner has earned credit towards the 90 day suspension starting June 9, 2005,
and the suspension is scheduled to be released on September 7, 2005. See
Department's exhibit I, sub-exhibit 3.
24. Even ifthe petitioner were successful on the merits ofthe underlying criminal
appeal, the Department would be permitted to keep a record ofthe offense for the
purpose of showing the suspension was imposed against the petitioner. See 75
Pa.C.S. S 1516(c).
25. If the petitioner is permitted to proceed with this appeal, the Court must hold a
hearing addressing the merits of granting an appeal nunc pro tunc before the court
addresses the merits ofthe appeal. See Department of Transportation v. Schillaci,
639 A.2d 924 (Pa. Cmwlth. 1994).
WHEREFORE, the Department respectfully requests that the petitioner's appeal
not be granted because the petitioner has alleged no grounds for appealing Nunc Pro
Tunc.
Respectfully submitted,
)!vCA r~!C
~lk, Esquire
Assistant Counsd
Office of Chief Counsel
Riverfront OffiCI: Center-3rd Floor
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Dated: July 14, 2005
DL-326 (9/95)
CERTIFICATION
.
DATE: July 11 , 2005
I hereby certify that Janet L. Dolan, Acting 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 Acting Diredor of the aforesaid Bureau, she has
legal custody of the original or microfilm 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.
~-f).~
ALLEN D. BIEHLER, SECRETARY OF TRANSPORTATION
I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND
CORRECT CERTIFIED PHOTOSTATIC COpy OF:
1) Official notice of suspension dated & mailed 3/16/05/04, effective 4f20f05; 2) Report of a court
ordering the suspension of operating privilege as the result of a violation of Chapter 63 of Title 18,
of Cumberland County No. NT -0001266-04, 2005, date of violation 11/14/04, date of disposition
2118f05, seal attached to original; and 3) Driving record which appears in the file ofthe defendant
MICHELLE ERIN FRAGALE, Operator's No. 26745423, datle of birth 3/17/84, in the Bureau of
Driver Licensing, Harrisburg, Pennsylvania.
CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9,
1976, P.L. 586, as amended, 42 Pa.C.S. ~~6103 and 6109.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR
AFORESAID.
~~ 1J~w
SEAL
,JANET L. DOLAN, ACTING DIRECTOR
BUREAU OF DRIVER LICENSING
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: MARCH 16, 2005
WEST GROVE PA 19390
WID # 050686122480164 001
PROCESSING DATE 03/09/2005
DRIVER LICENSE # 26745423
DATE OF BIRTH 03/17/1984
MICHELLE ERIN FRAGALE
24 WINTERSET CT
Dear MS. FRAGALE:
As a result of your violation on 11/14/2004 of violating
Section 6308 (offenses related to alcohol), your driving
privilege is being SUSPENDED for a period of 90 DAY(S) as
mandated by section 1532D of the vehicle code.
The effective date of suspension is 04/20/2005, 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 FE:E 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 restorEl your driving
privilege until all the requirements are satisfied.
COMPLYING WITH THIS SUSPENSION
You must return all current pennsylvania driver's licenses,
learner's permits, temporary driver'S licenses (camera
cards) in your possession on or before 04/20/2005. You may
surrender these items before, 04/20/2005, 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 $10.00. 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.
You will not receive credit toward serving any suspension
until we receive your license (s) . Complete the following
steps to acknowledge this suspension.
1. Return all current Pennsylvania driver's licenses,
learner's permits and/or camera cards to PennDOT. If
you do not have any of these items, send a sworn
it
050686122480164
notarized 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
confirming the date that credit began. If you do not
receive 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
products, 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 drivin9 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 instruct:lons on the back
of the application.
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.
050686122480164
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, MARCH 16, 2005, of this letter. If YClU 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 04/20/2005.
Sincerely,
~~.~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
INFORMATION 7:00 a.m. to 9:00 D~
IN STATE 1-800-932-4600 TDD IN STJ,TE 1-800-228-0676
OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 717-391-6191
WEB SITE ADDRESS www.dmv.state.Da.us
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Date: July 11, 2005
COMMONW~iH OF PENNS'<LV.o..l'llA
DEPARTMENTOFTRANSpORTAT~N
BUREAU OF DRIVER LICENSING
HARRISBURG, PENNSYLVANIA 17123
CERTIFICATION
STATEMENT
tJ"~
o
In compliance with your request, I hereby certify that I have caused a search to be made of the files of the Department of Transportation, and herewtth is a true record in the
name of:
MICHELLE ERIN FRAGALE, 24 WINTERSET COURT, WEST GROVE, PA 19390
OPERATOR NO.,
26745423
Date of Birth: 3/17/84
CLASS OF LICENSEe
TITLE NO.'
PURPOSE OF REQUEST:
Legal (R=INSURANCE. C=CREDIT. E=EMPLOYMENT. L=LEGAL. M=OTHER)
DATE SECTION VlOLAilON ACTION i AKEN BY DEPARTt.lENT
"""'TOO
11/14/04 6308 Underage alcohol offense Official notice of suspension dated & mailed 3/16/05,
effective 4120105, for 90 days. Appeal \alen, not
restored, nunc pro tunc.
In compliance with ur uest, I here cart that I have caused a search to be mad80fthe files of the Departmtmt of Transportation, and herewith is a true record in the name of
yo req
the subject listed above.
by Ify
~ jj~w
ACTING DIRECTOR. BUREAU OF DRIVER LICENSING
Information requested by:
Iv
DATE: July 11, 2005
COMMONWEALTH OF PENNSYLVANIA ss:
I hereby certify that Janet L. Dolan. ActIng 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 Tl'Bnsportatlon. As the Director of the aforesaid Bureau. she has legal custody of the origInal or microfilm recol'ds which are
reproduced in h attached cerUfk::ation.
IN TESTIMONY WHEREOF. I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTM8~T THE DAY AND YEAR AFORESAID
a~.o.~
SEAL
SECRETARY OF TRANSPORTATION
"*5
Date: July 11. 2005
COMMONWEALTH OF PE~S'l\..VAN\I\
DEPARTMENT OF TRANSpORTATION
BUREAU OF ORNER LlCENSIiQ
HARRISBURG, PENNSYlVANIA 11123
CERTIFICA TIClN
STATEMENT
nf"~
~
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In compliance with your request, I hereby certify that I have caused a search to be made of the files of the Departmentof Transportation, and herewith is a true record in the
name of:
MICHELLE ERIN FRAGALE, 24 WINTERSET COURT, WEST GROVE, PA 19390
OPERATOR NO.:
26745423
Date of Birth: 3/17184
CLASS OF LICENSE:
TITLE NO.:
PURPOSE OF REQUEST:
Legal
(R=INSURANCE, C=CREDIT. E=EMPLOYMENT. L=LEGAL. M=OTHER)
DAT' SECTION VIOlAT"", ACTION TAKEN BY DEPARTMENT
VOOl.ATlON
11/14104 6308 Underage alcohol offense Official notice of suspension dated & mailed 3/16/05,
effective 4/20/05. for 90 days. Appeal talen, not
restored, nunc pro tunc.
In compliance with your request, I hereby ertIty that I have caused a search to be made at the files. of the Department ofTransportat\on, and herewith is a true record in the name of
the subject listed above.
~D~w
ACTING DIRECTOR. BUREAU OF DRIVER LICENSING
Infonnation requested by:
tv
DATE: July 11. 2005
COMMONWEALTH OF PENNSYLVANIA ss:
I hereby certify that Janet L. Dolan, Acting Director of the Bureau of Driver Licensing ofllle Pennsylvania Department of Transportation, is the legal custodian of the Driver
License records of the Pennsylvania Department of Tl1lInsportation. As the DIrector of the aforesaId Bureau. she has legal custody of the original or microfilm records which are
reproduced in the attached certlfication.
IN TESTIMONY WHEREOF. I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMEI<T THE DAY AND YEAR AFORESAID
a~LJ.~
SEAL
SECRETARY OF TRANSPORTATION
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
CERTIFIED DRIVING HISTORY
JUL 11 2005
DRIVER: MICHELLE ERIN FRAGALE
24 WINTERSET CT
WEST GROVE, PA 19390
DRIVER LICENSE NO
DATE OF BIRTH
SEX
RECORD TYPE
DRIVER LICENSE (DL)
LICENSE CLASS
LICENSE ISSUE DATE:
LICENSE EXPIRES
DRIG ISSUE DATE
~D RESTRICTIONS
LEARNER PERMITS :
LICENSE STATUS
PAGE 1
26745423
MAR 17 1984
FEMALE
REG LIC/ID
COMME:RCIAL DRIVER LICENSE (CDL)
C
JAN 06 2004
MAR 18 2008
NOV 07 2000
1
CDL LICENSE CLASS
CDL LICENSE ISSUED :
CDL LICENSE EXPIRES:
CDL ENDORSEMENTS
CDL RI!:STRICTIONS :
CDL LEARNER PERMITS:
CDL LICENSE STATUS
SB ENDORSEMENT
SUSPENDED
NONE
NONE
SUSPENDED
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 11 2005 - LICENSE NUMBER 26745423 CONTINUED
- - - - - - - - - - - - - - - - - - - - - - - - - - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - . - - - - - - - - - - - - - - - - -
ITIOLATION DATE:
ITIOLATION:
DESCRIPTION:
:::ONVICTION DATE:
l\CTION:
NOV 14 2004
CRIMES CODE: 6308
UNDERAGE ALCOHOL OFFENSE
FEB 18 2005
SUSPENSION FOR 90 DAY(S) EFFECTIVE APR 20 2005
OFFICIAL NOTICE MAILED MAR 16 2005
LICENSE RECEIVED JON 09 2005
REPORT OF MEDlCALS AND DEPARTMENTAL ACTIONS
NO MEDlCALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD
REPORT OF ACCIDENTS AND DEPARTMENT~~ ACTIONS
NO ACCIDENTS DURING THIS REPORTING PERIOD
*** END OF RECORD ***
PAGE 3
CERTIFIED DRIVING HISTORY . JUL 11 2005 - LICENSE NUMBER 26745423 CONTINUED
IN COMPLIANCE WITH YOUR REQUEST, I H]~REBY CERTIFY THAT I
HAVE CAUSED A SEARCH TO BE MADE OF THE FILES OF THE DEPART-
MENT OF TRANSPORTATION, AND HAVE SET FOR~m ABOVE AN ACCURATE
SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED.
SINCERELY,
~ b,.e~
SEAL
ACTING DIRECTOR, BURE:AU OF DRIVER LICENSING
FOR
SECRETARY OF TR1\.NSPORTATION
COMMONWEALTH OF PENNSYLVANIA SS:
DATE:JUL 11 2005
I HEREBY CERTIFY THAT JANET L. DOLAN, ACTING DIRECTOR OF THE
BUREAU OF DRIVER LICENSING, OF THE PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION IS THE LEGAL CUSTODIAN OF THE DRIVER
LICENSING RECORDS OF THE DEPARTMENT OF TRANSPORTATION. AS
THE DIRECTOR OF THE AFORESAID BUREAU, SHE HAS LEGAL CUSTODY
OF THE ORIGINAL OR MICROFILM RECORDS WHICH ARE THE SUBJECT
OF THE ABOVE CERTIFICATION.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL
OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID.
SINCERELY,
~~/). ~d~~
SECRETARY OF TRANSPORTATION
SEAL
MICHELLE E. FRAGALE,
PETITIONER
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYL VANIA
v.
No. 2005-3363
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION
APPEAL
VERIFICATION
I verify that the statements made in the Department of Transportation's Response to
Show Cause are true and correct. I understand that false statements are made subject to the
penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities.
Date: July 14, 2005
o-~&c
Assistant Counsel
Department of Transportation
Riverfront Office Center-3rd Floor
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
MICHELLE E. FRAGALE,
PETITIONER
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No. 2005-3363
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION
APPEAL
CERTIFICATE OF SERVIC]~
I hereby certify that I am this day serving a copy of the Department of Transportation's
Response to Show Cause upon the person, and in the manner, indicated below, which satisfies
the requirements ofthe Pennsylvania Rules of Civil Procedure:
By first class mail, prepaid, addressed to:
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, Pennsylvania 17103
Date: July 14, 2005
a . 'J~tL
~,abusk
Assistant Counsel
Department of Transportation
Riverfront Office Center-3rd Floor
110 1 South Front Street
Harrisburg, P A 17104-2516
(717) 787-2830
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MICHELLE E. FRAGALE : IN THE COURT OF COMMONWEALTH PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, : NO. 2005 ~ 3363 CIVIL TERM
PENNSYL VANIA
DEPARTMENT OF
TRANSPORTATION,
BUREAU OF DRIVER
LICENSING
ORDER OF COURT
AND NOW, this 20TH day of JULY, 2005, a hearing on Petitioner's request for
appeal "nunc pro tunc" is set for WEDNESDAY. AUGUST 31. 2005. at 11:00 a.m.
/'
Edward E. Guido, J.
....er~orge Kabusk, Esquire
For the Pa. Dept. of Transportation
//'
~l E. Rominger, Esquire
For the Appellant
:sld
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MICHELLE E. FRAGALE
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL ACTION NO: 2005-3363
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly discontinue the above captioned matter on behalf of the Plaintiff.
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Date:f1j 2~~ 20()F
;7
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, Pa 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Appellant
cc: George Kabusk, Esquire
Michelle Fragale
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