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Home My WebLink About05-6073 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY ROBERTO ESCALET vs. ~)I-<- No.: c:;- (.013 b8A 2005 COMMONWEALTH DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING LICENSE SUSPENSION APPEAL TO THE HONORABLE J. WESLEY OLER, JR., JUDGE OF SAID COURT: AND NOW, comes the Petitioner, Roberto Escalet, 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, Roberto Escalet, is a licensed driver in the Commonwealth of Pennsylvania with a residence address of 4 Hazelwood Path, Mechanicsburg, PA 17050. 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 November 1, 2005, from the Department indicating that his driving privilege is scheduled to be suspended on December 6, 2005, for sixty (60) days for failure to attend a departmental hearing. 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 did not receive any notice to attend a Departmental Hearing; (b) The summary conviction which triggered the Departmental Hearing requirement is presently on appeal and is pending in Cumberland County; (c) If the summary appeal is successful, it will dissolve the hearing requirement and any license consequences of failure to attend same; (d) Penn DOT officials were aware of the pending summary appeal before November 1, 2005, since the companion license suspension appeal was already pending in Cumberland County at 05-3773 Civil Term, before your Honorable Court; (e) The proposed license 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. Dated: / ~ 75'- t".s Respectfully submitted, WILEY, LENOX, COLGAN_f MARZZACCO, P.C. ~ /, ;;; //' ,,/ i/" ' by' D . . ..s'ii-'Y:E,q",,,, 130 West Church Street Suite 1 00 Dillsburg, PA 17019 (717) 432-9666 ID No.: 43092 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 NOVEMBER 01, 2005 MECHANICSBURG PA 17050 WID # 052986543977629 002 PROCESSING DATE 10/25/2005 DRIVER LICENSE t 25580268 DATE OF BIRTH 06/29/1972 ROBERTO ESCALET 4 HAZLEWOOD PATH Dear Motorist: Due to your failure to attend a departmental hearing, a sanction of 60 DAYCS) is imposed as mandated by Section 1538 of the Vehicle Code. In order to comply with this sanction you are required to return any current driver's license, learner's permit and/or temporary driver's license Ccamera card) in your possession no later than the effective date listed. If you cannot comply with the requirements stated above, you are required to submit a DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privilege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571Ca)C4) of the Vehicle Code. Although the law mandates that your driving privilege is under suspension even if you do not surrender your license, Credit will not begin until all current driver's license productCs), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIVE THIS RECEIPT WITHIN 15 DAYS IMMEDIATELY. OTHERWISE, YOU WILL NOT SERVING THIS SANCTION. YOUR LICENSE OR RECE I PT. IF YOU DO NOT CONTACT THE DEPARTMENT BE GIVEN CREDIT TOWARD The effective date of suspension is 12/06/2005, 12:01 a.m. Please see the enclosed application for restoration fee information. 052986543977629 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, NOVEMBER 01, 2005, of this letter. If you file an appeal. in the County COUl't I the COUl't will. give you a time-stamped cel'tified 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 SincerelY, bff.rLPJ Janet'L. Dolan, Acting Director Bureau of Driver Licensing SEND fEE/LICENSE/DL-16LC/TO: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INfORMATION (7:00 IN STATE OUT-Of-STATE TDD IN STATE TOO OUT-Of-STATE AM TO 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 VERIFICATION The undersigned, on behalf of my client, Roberto Escalet, verify 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. 94904, relating to unsworn falsification to authorities. Respectfully submitted, WilEY, lENOX, COLGAN & MARZZACCO, P.C. ~ ~/ by: era 10 E.~ershey, Esquire 130 West Church Street Suite 100 Dillsburg, PA 17019 (717) 432-9666 ID No.: 43092 Dated: //-J_f:. q J"'- CERTIFICATE OF SERVICE /~\ On the 16 day of November 2005, I 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. //tP by: 6avld E: H~~shey, Esquire 130 West Church Street Suite 100 Dillsburg, PA 17019 (717) 432-9666 10 No.: 43092 ..J., :=:1 ~'~ ~ q , ~ ~ 0.,') t r c.:: '- -.j --- .c -' '" " .. - '" V (r\ ::',;'\ ~ - V ("'-) '2 '-.> , , ~- v, C . .. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY NOV 2 8 2005 .~~ f ROBERTO ESCALET vs. C:u..J T L<.- No.: t'{'60 D t5A-2005 COMMONWEALTH DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING ORDER AND NOW, this 2.<6 It day of 1\, ~ 'v of the attached Appeal and the reasons supporting same, 2005, upon consideration IT IS HEREBY ORDERED AND DECREED that a hearing on the merits of this ;'00 (.,. case is hereby scheduled for the ~ day of M ), c..L , ~ at ~ '1':.3...Q .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 suspension until such time as this case can be decided on its merits. This case is consolidated with 05-3773 ZDob Civil Term scheduled for March 2, 2BG5 at 9:30 a.m. in Courtroom NO.1 as the issues ~ in the present appeal are directly related to the companion appeal at 05-3773 Civil Term. Distri bution: Court Administrator f David E. Hershey, Esquire, 130 West Church Street, Suite 100, Dillsburg, PA 17019 /. ~..-'" George Kabusk, Esquire, Pennsylvania Department of Transportation ). }--o~ Bureau of Driver Licensing, 1101 South Front Street, Harrisburg, PA 17104 ~/) /I~ fih" Judge ,") .::;.:) _:..-.- '..,,; r.....~ ROBERTO ESCALET, PETITIONER v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-3773 CIVIL 1oc6-Ico'T3 LICENSE SUSPENSION APPEAL COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT ORDER AND NOW, this J. ., ~ day of rYIv c...L , 2006, the appeal filed in the above referenced matter is REMANDED to (1) RESCIND THE 365 DAY SUSPENISION and (2) to RESCIND THE 60 DAY SUSPENSION. As a result of the petitioner's conviction on June 22, 2005, ofa violation on May 10, 2005 of Section 3362 of the Vehic1e Code, relating to Exceeding Maximum Speed, the petitioner had accumulated II points. The Department imposed a 365 day suspension pursuant to Section 1539 ofthe Vehicle Code. Also as a result of that conviction the petitioner was required to attend a Section IS38(d) Departmental High Speed Hearing. The petitioner appealed that conviction which resulted in the imposition of the two suspensions at issue and had the 3362 charge amended to a violation of 3361, which results in a total of9 points rather than II points. Furthermore, because the petitioner was not guilty of the 3362 charge he was no longer subject to the High Speed Hearing sanction. The Department is directed to RESCIND the 365 day SUSPENSION because the petitioner is no longer at II points but at 9 points and, therefore, is not subject to the 365 day suspension pursuant to Section 1539 of the Vehic1e Code. Additionally, the Department is directed to RESCIND the 60 day SUSPENSION because the petitioner is no longer subject to the High Speed Hearing pursuant to Section lS38(d) of the Vehicle Code. BY THE COURT George H. Kabusk, Esquire, PennDOT, Riverfront 0 Harrisburg, PA 17104-2516 David E. Hershey, Esquire, 130 W. Church Street, Ste. 100, Dillsburg, P A 17019 rYcJ~ ~~J, .)115 \T" -, ( ~. L