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HomeMy WebLinkAbout05-5282IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY ROBERT P. MITCHELL VS. No.: LSA 2005 COMMONWEALTH DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING LICENSE SUSPENSION APPEAL TO THE HONORABLE JUDGES OF SAID COURT: AND NOW, comes the Petitioner, Robert P. Mitchell, by and through his attorney, David E. Hershey, Esquire, of Wiley, Lenox, Colgan & Marzzacco, P.C., and files this appeal and in support thereof, avers as follows: 1. Petitioner, Robert P. Mitchell is a licensed driver in the Commonwealth of Pennsylvania with a residence address of 2728 Rosegarden Boulevard, Mechanicsburg, Cumberland County, PA 17055. 2. Department of Transportation, Bureau of Driver Licensing has a mailing address at 1101 South Front Street, Harrisburg, PA 17104. 3. Petitioner received an official notice of suspension with a mail date of September 7, 2005, from the Department indicating that his driving privilege is scheduled to be suspended on October 12, 2005, an alleged conviction in West Virginia which implicates Section 1581 of the Pennsylvania Vehicle Code on May 18, 2005. See Exhibit "A" attached hereto and incorporated herein by reference. 4. The proposed suspension as outlined in Exhibit "A" is illegal, improper or invalid for some or all of the following reasons: (a) Petitioner has not been provided with any records which the Department of Transportation is basing its suspension upon; (b) The proposed suspension is otherwise in violation of the Vehicle Code and/or Case Law. WHEREFORE, Petitioner prays your Honorable Court enter a supersedeas pursuant to Section 1550 of the Vehicle Code and to schedule a hearing relative to the merits of this appeal. Respectfully submitted, WILEY, LENOX, COLGAN & MARZZACCO, P.C. by: vi E. Hershey, Esquire 130 West Church Street Suite 100 Dillsburg, PA 17019 t (717) 432-9666 Dated: /? ?/ ID No.: 43092 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: SEPTEMBER 07, 2005 ROBERT P MITCHELL WID # 052436194697505 001 2728 ROSEGARDEN BLVD PROCESSING DATE 08/31/2005 DRIVER LICENSE # 26729366 MECHANICSBURG PA 17055 DATE OF BIRTH 03/29/1984 Dear MR. MITCHELL: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 3804E21 of the Pennsylvania Vehicle Code. As a result of your 05/18/2005 conviction in WEST VIRGINIA: • Your driving record reflects a violation on 01/23/2005 that is similar to violating Section 3802A2 of the Pennsylvania Vehicle Code, DUI BAC .08-<.10. • Your driving privilege is SUSPENDED fora period of 1 YEAR(S) effective 10112/2005 at 12:01 am. Your conviction in WEST VIRGINIA is listed in Article IV of Section 1581 of the Pennsylvania Vehicle Code which mandates that PennDOT process specific out-of-state convictions as though they had occurred in Pennsylvania. Before PennDOT can restore your `thriving 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 satisfied. COMPLYING WITH THIS SUSPENSION You must return all current Pennsyl,vania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in Your possession on or before 10/12/2005. You may surrender these items before, 10/12/2005, 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 052436194697505 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 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. 052436194697505 IGNITION INTERLOCK Before your driving privilege can be restored you are required by law to have all vehicle(s) owned by you to be equipped with an Ignition Interlock System. This is a result of your conviction for Driving Under the Influence. You will receive more information regarding this requirement approximately 30 days before your eligibility date. 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, SEPTEMBER 07, 2005, of this letter. If you file an appeal in the County Court, the Court will give you a time-stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certified copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 10/12/2005. Sincerely, 9?tx ?-- - Z g v;t) Janet L. Dolan, Acting Director Bureau of Driver Licensing 052436194697505 INFORMATION 7:00 a.m. to 9:00 p.m. IN STATE 1-800-932-4600 TDD IN STATE OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 1-800-228-0676 717-391-6191 WEB SITE ADDRESS www.dmv.state.pa.us VERIFICATION The undersigned, Robert P. Mitchell, verifies that the statements made in this 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. Respectfully submitted, i by Robert P. Mitchell Dated: ?© % ?? CERTIFICATE OF SERVICE On the ay of October 2005, 1 certify that a copy of the foregoing petition was served upon the following attorney for the Commonwealth of Pennsylvania, by depositing same, First-class Mail, postage prepaid, addressed as follows: George Kabusk, Esquire Pennsylvania Department of Transportation Bureau of Driver Licensing 1101 South Front Street Harrisburg, PA 17104 Respectfully submitted, WILEY, LENOX, COLGAN & MARZZACCO, P.C. by: D ' Hershey, Esquire 130 West Church Street Suite 100 Dillsburg, PA 17019 (717) 432-9666 ID No.: 43092 r? G C7 r? 1^> r? L.? -[t 7: :5 :t RECEIVED OCT 1 0 2005 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY ROBERT P. MITCHELL Petitioner VS. . COMMONWEALTH DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER No.: LSA 2005 Z )S - S'M a- AND NOW, this 96a day of 2005, upon consideration of the attached Appeal and the reasons supporting same, IT IS HEREBY ORDERED AND DECREED that a hearing on the merits of this case is hereby scheduled for the ?01 day of kXV-4Y 1 , 2005 at 9 CIS G .m. in Courtroom No. ?_ of the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania. Pursuant to Section 1550 of the Motor Vehicle Code, the Department of Transportation is hereby Ordered to stay the proposed one year sytpey4eion until such time as this case can be decided on its merits Judge Distribution: Cumberland County Prothonotary's Office avid E. Hershey, Esquire, 130 West Church Street, Suite 100, Dillsburg, PA 17019 , fseorge Kabusk, Esquire, Pennsylvania Department of Transportation Bureau of Driver Licensing, 1101 South Front Street, Harrisburg, PA 17104 c <• ,- ._ ? . ._ ?,?. _, ` ;._ t= Y ... ROBERT P. MITCHELL vs Case No. 05-5282 COMM OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Statement of Intention to Proceed To the Court: DAVID R- HERSHEY, F.sa _ intends to proceed with the above captioned matter. Print Name DAVID E. HERSHEY, ES Name Date: 1 ().1 08 .OR Attorney for ROBERT P _ MITCHELL Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 goveming the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously govemed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. 11 Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. .? CERTIFICATE OF SERVICE On the '-F day of October, 2008, I certify that a copy of the foregoing Statement of Intention to Proceed was served upon the following attorney for the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing by regular U.S. mail, first class, as follows: Philip Bricknell, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 1101 S. Front St. Harrisburg, PA 17104 Date: ?G e Respectfully submitted, David E. Hershey, Esquire COLGAN MARZZACCO, LLC ID No.: 43092 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 '? Y .,, = :, ?w? .?, :4.i t 1... ?.. .? "? - ... { 'ii .: w i _?