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HomeMy WebLinkAbout01-5315RANDY LEE MYERS, Plaintiff, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO.: Oler. following language: Ignition Interlock Before your driving privi!ege 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. If you fail to comply with this requirement, your driving privilege will remain suspended for an additional year. You will receive more information regarding this requirement approximately 30 days before your eligibility date. 4. This imposition was never part of the original sentencing order by Judge LICENSE SUSPENSION APPEAL AND NOW, comes Randy L. Myers, by his attorneys, Nealon & Gover, and presents the following Petition to this Honorable Court. 1. Your Petitioner is an adult individual who resides at 25 Bel Air Drive, Dillsburg, York County, Pennsylvania 17019. 2. The basis for this Petition is due to a DrMng Under the Influence conviction, which occurred in Cumberland County and the Plaintiff was sentenced on July 24, 2001 before the Honorable J. Wesley Oler of the Cumberland County Court of Common Pleas (copy of the Sentencing Order is attached as Exhibit "A' and incorporated herein by reference thereto). 3. Following the Plaintiffs conviction, the Plaintiff received by official notice the 5. The full letter forwarded to your Petitioner is attached as Exhibit "B" and incorporated herein by reference thereto. 6. The Plaintiff objects to the imposition of the Ignition Interlock System as the statute is arbitrary, unreasonable, and unconstitutional. See, Commonwealth v. David Matthew Mockaitis, 50 Cumb. 184 (2001). Additionally, other courts in this Commonwealth have further found the statute unconstitutional. (Attached as Exhibit "C" and incorporated herein by reference thereto is a recent article from the Pennsylvania Law Weekly regarding this issue.) 7. Based upon the foregoing circumstances, Petitioner requests this Honorable Court prohibit the Department of Transportation from imposing any Ignition Interlock sanction as it is not consistent with the sentence earlier imposed and further violative of Plaintiff's constitutional rights under the United States and Pennsylvania Constitutions. WHEREFORE, Petitioner prays this Honorable Court pursuant to 75 Pa.C.S. §1550, to schedule a hearing upon his appeal from the notice set forth as Exhibit "B" to this Petition and, upon hearing, to vacate the imposition of the Department of Transportation Order as set forth in said notice. Respectfully submitted, NEALON & GOVER, P.C. By: ~ -- I.D. #: 47593 2411 North Front Street Date: ~l~-/~t Harrisburg, PA 17110 717/232-9900 2 COMMONWEALTH R3~NDY LEE MYERS OTN: L080634-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0519 CRIMINAL TERM CHARGE: (1)RECK ENDANG ANOTHER PERSON (2)DRIVING VEHICLE AT SAFE SPEED (SUM) (3)DUI (4)DUTY TO GIVE INFORMATION AND RENDER AID (SUM) (5)FOLLOWING TOO CLOSELY (SUM) AFFIANT: SGT. THOMAS KAUFFMAN IN RE: GUILTY PLEA ORDER OF COURT AND NOW, this 19th day of June, 2001, Defendant, Randy Lee Myers, privately retained counsel, Matthew Gover, Esquire, having tendered pleas of guilty as charged at Count Recklessly Endangering Another Person, a misdemeanor of the second degree, at Count 2 to Driving a Vehicle at a Safe Speed, a summary offense carrying a penalty in the form of a fine of $25.00, at Count 3 to Driving under the Influence, a misdemeanor of the first degree, a third offense overall, and a first offense for mandatory sentencing purposes, at Count 4 to Duty To Give Information and Render Aid, a summary offense carrying a penalty in the form of a fine of $25.00, and at Count 5 to Following Too Closely, a summary offense carrying a penalty in the form the now appearing in court with his and 1 to o'f a fine of $25.00, the Defendant's pleas of guilty are accepted, ~ ~an~l sent~.nce is deferred pending receipt by the Court of ~a D~I~ente~c~ng the afo ~.z~said is directed to prepare )orr, and the Defendant is directed t~appear on Tuesday, Jul/ 2001, at 9:3~ ~. , ~' The District Attorney's office and the Clerk of Courts are directed to effect the filing and docketing of the guilty plea colloquy form executed by the Defendant. By the Court, Michelle Sibert, Esquire Assistant District Attorney Matthew Gover, Esquire For the Defendant Probation Sheriff wcy nu.-~u-u~ ~l:uun~ ~u~-nrnola Logrstic; +~17-731-437! T-410 P.g2/04 F-1;8 COHNONHEALTH AF PENNSYLVANIA DEPARTHENT OF TRANSPORTATION Bureau af Driver Licensing Mai2 Oate~ AUGUST 09, 2001 RANIY L flYERS 25 BEL AIR ~ZLLSBURG PA ~Z~ · O$~$qb$?Q2q?5~5 adh PROCESSING ~ATE ~RIVER LICENSE 9 ~ATE OF BIRTH LICENSE IN eUREAU Dear MR. MYERS: Privilege as authorized by Sect/an 15~2B of the Pennsylvania VehtcZe Code. As a ree~Zt of Your 06/19/2001 conviction of vioZating Sect/an 37~1 of the Vehicle Code DRIVING UNDER INFLUENCE an 01/1~/2001~ Your driving privilege is SUSPENDED for a periocl of 1 YEAR(S) ef~e©tlve 03/07/2002 at 12:01 a.m. HARMING: If you are convicted of drlving ~hila your Zicenso ~s suspended/revoked the penalties ~11 he a MINIMUM of gO days imprisonment AND a $1,000 fine AND Your ~riv/ng Privilege ~ill be suspended/revoked for a M~N[MUM 1 year oer~o~ This susaension is ~n addition to any other sus;enslons already an your record. PRISON RELEASE REQUIREMENT (ACT151) The Court of CUMBERLAND CTY, Court Number 00B19, Court Term ~001 has sentenced you to serve a prison term for thgs violation. Pursuant to Sect/on 15~(a.1) of the Vehicle Code, you wil~ nat receive credit for this susnanslon/revocatlon ~r any additional suspension/revocation until YOU comelete your prison term. The Court must Cert~f~ your completion to PannDGT. You may ~lsh to contact your probation officer and/or the Court after your rc/ea=e to make sure that PennDOT ~s proper~y notified. 0121~&170297615 IGNITION INTERLOC[ Before your driv/ng privilege can be restored you are required by ~aw to have al~ vehicle(s) owned by you to be equipped with an Ignition Interlock System, This is a result of your conviction for Driving Under the Influence, If you fail to comply with this requirement, your driving privilege wilZ remain suspended for an additional year. You will receive more information regard/no this requirement approximately 30 days before your elioibility date, Within the last 30 days of your suspen$ion/revocation~ we w111 send you a letter asking that you pravl=o proof of insurance at that time. This letter ~lll list acceptable documents and what .iii be needed if you do not own a vehicle reaistered in Pennsylvania. Zmpart&nt: Please make sure that PennOOT is notified if you move from your current address. You may notify PannDOT of your address change by calZing any of the ahone numbers listed at the end of this letter. APP£A~ You have the right to anpeal this action to the Court of Common PZeas CCivil Division) ~ithin ~0 days of the mail date, AUGUST 09, 2002, of this letter, Z~ yOU file an aeeeal be valid, You Must sene chis time-stamped certified copy of the appeal ~y certified mail to; Office of Chief CounSel Th/rd Floor, Riverfront Office Center HarrisUurg~ PA 1710~-251& Reme;ber, this is an DFFZC~AL NO?~CE OF 8USPENSZoN. Sincerely, Rebecca L. Bic~le¥; Director Bureau of Driver Licensing CERTIFICATE OF SERVICE AND NOW, this ~'~day of ~/,~__ , 2001, I hereby certify that l have served the foregoing lICENSE SUSPENSION APPEAL on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: Michelle Sibert, Esquire CUMBERLAND COUNTY COURTHOUSE One Courthouse Square Carlisle, PA 17013 Matthew R. Gover, Esquire RANDY LEE MYERS, Plaintiff, COMMONWEALTH OF : PENNSYLVANIA DEPARTMENT : OFTRANSPORTATION, : De~ndant. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO.: ORDER AND NOW, this I~ ld~ay of _~ ~,"~. ,2001, upon presentation of the attached Petition and upon the Motion of Matthew R. Gover, Esquire, Attorney for the Petitioner, a hearing de novo is granted to determine whether the action of the Department of Transportation and imposing regarding Interlock sanctions should be set aside by this Court. Moreover, IT IS HEREBY ORDERED AND DECREED that the Department of Transportation take no further action regarding Interlock sanctions until a final determination of the Petition can be made by this court. A hearing on this matter will be scheduled for '~],/2~,~¢/Z,~/ ' -~'~~"'~'~ /7 , 2001, ~ d at Courtroom / , Cumberland County Courthouse. IT IS FURTHER NOTED that the attorney for the Petitioner shall notify the Department of Transportation of the hearing date forthwith and should provide the Department with a copy of this Petition and Order. BY THE COURT: VINVA']ASNN'aa 6LI :g l~Ia L I ,J3S I0 RANDY LEE MYERS, Plaintiff COMMONWEALTH OF PENNSYLVAN IA DEPARTMENT OF TRANSPORTATION, Defendant · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · NO. 01-5315 CIVIL TERM · LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this 19th day of December, 2001, upon review of the record and proceedings in connection with the appeal of this suspension, the appeal is hereby sustained. Before the Court is an appeal from an Interlock Order from the Pennsylvania Department of Transportation which was served by official notice on August 9, 2001. The Court notes that on July 24, 2001, the defendant was sentenced by the Honorable J. Wesley Oler, Jr. Judge Oler did not impose a Guardian Interlock sanction following the completion of the defendant's suspension. Consequently, no appeal was taken from the sentence. The defendant was then served with an official notice form PennDOT indicating Guardian Interlock would be imposed. Further, the Court notes that the Pennsylvania Department of Transportation, in its Exhibit 1, had before it a DL21 form filled out by the Cumberland County Clerk of Court which indicated that the ignition interlock requirement was not necessary. Judge Oler had before him, prior to the imposition of sentence, the result of the decision of Commonwealth v. Mockaitis, 50 Cumberland County Law Journal, 2001. In Mockaitis, Judge Bayley ruled that a Guardian Interlock suspension following a defendant's license suspension is unconstitutional. That case is presently pending before the Pennsylvania Supreme Court. We further note that other cases are before our appellate courts which may bear a closer resemblance to the facts here. The Department has referred us to the case of Commonwealth v. Brobst, which is docketed at 0081-MD-2001. The resolution of Brobst may be directly relevant to this case; nonetheless, this Court is bound by the rule of comity with Judge Bayley's decision. That was also argued and heard before a three-judge panel of this Court. Therefore, for all the foregoing reasons, the appeal of Randy Lee Myers was sustained. The Pennsylvania Department of Transportation is directed to remove the Guardian Interlock requirement from all further proceedings associated with Myers's license. Matthew R. Gover, Esquire 2411 North Front Street Harrisburg, PA 17110 For the Plaintiff George H. Kabusk, Esquire Assistant Counsel Office of Chief Counsel By the Court, Riverfront Office Center -3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 For PennDOT P.J. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: GEORGE KABUSK ASSISTANT COUNSEL ATTORNEY IDENTIFICATION NO. 58804 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 RANDY LEE MYERS, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 01-5315 Civil Term Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on December 19, 2001. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. GE6RGE~a~BUSK Assistant Counsel Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: GEORGE KABUSK ASSISTANT COUNSEL ATTORNEY IDENTIFICATION NO. 58804 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT ST1LEET HARRISBURG, PENNSYLVANIA 17104-2516 ~830 RANDY LEE MYERS, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 01-5315 Civil Term Request for Transcript A notice of appeal having been filed in this matter, the o~ficial court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Prepare only the original for inclusion in the record as the Appellant, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the transcript. G~ORG~KABUSK ~/ - Assistant Counsel Riverside Off~ce Center - Third Floor 1 i01 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 PYS510 2001-05315 Reference No..: Case TyPe ..... : APPEAL - LICENSE SUSP Judgmen% ...... .00 Judge Assigned: Disposed Desc.: Cumberland County Prothonotary,= Office Civil Case Inquiry ~ ~ MYERS RANDY LEE (rs) PENNSYLVANIA COMMONWEALTH OF Filed ........ : Time ......... : Execution Date Page 1 9/11/2001 2:15 0/00/0000 0/0o/0000 Jury Trial .... ............ Case Comments ....... DisDosed Date. ...... Higher Crt 1.: Higher Crt 2.: General Index MYERS RANDY LEE Attorney Info 25 BEL AIR DRIVE APPELLANT GOVER MATTHEW R DILLSBURG PA 17019 PENNSYLVANIA COMMONWWEALTH OF APPELLEE DEPT OF TRi~NSPORTATION 1101 SOUTH FRONT STREET HARRISBURG PA 17011 * Date Entries 9/11/2001 ............. FIRST ENTRY .............. APPEAL FROM SUSPENSION OF DRIVERS LICENSE DE NOVO IS GRAN~ ................ ED TO DETERMIN T~ ~ ...... PPEAL -HEARING WHE ...... ~c~±uN oF DEFT OF TRANSPORTIATION AND IMPOSING REGARDING INTERLOCK SANCTIONS SHOULD BE SET ASIDE BY THE COURT MOREOVER IT IS HEREBY ORDERED AND DECREED THAT A HEARING ON 12/17 01 AT 30 /LM IN CR 1 OF THE E - BY THE COURT J WESLEY OLER JR HE APPEAL OF THI CEEDINGS IN CONNECTIONS WITH T E RECORD ~ PRO HEREBY SUSTAINED - EEFORE THE COUR~ S[S[?~jH~ APPEAL IS I ......... ~ FROM AN INTERLOCK - EY THE COURT GEORGE E .............. LAST ENTRY .............. * Fees & Debits ~ E§c~ow Information , **************************************--********* End Bal APPEAL LIC SUSP **************** TAX ON APPEAL 35.00 35.00 .00 .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE _ 5.00 5.00 .00 ~5.5o ~5.5o ......... 66~ * End of Case Information ******************************************** TRU5 COPY FFJ'.~ =~" ':~' 'In Testimony v/hereof, I Mrs unto s,'. n-!y hand and the seal o[ s~id Court at Carlisle, Pa. This ......~/Z~ ....... day of/~-~z ........... f...~7..~.. Prothonotary COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DWISION BY: GEORGE KABUSK ASSISTANT COUNSEL ATTORNEY IDENTIFICATION NO. 58804 RIVERFRONT OFFICE CENTER - TH1RD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 RANDY LEE MYERS, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTy, PA NO. 01-5315 Civil Term Proof of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons a~d in the manner indicated below, which service satisfies the requirements ~fPa. R.A.P. 121: Judge George E. Hoffer Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 First Class Mail; Postage Pre-Paid; Addressed as Follows: Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 G~'EORGE KABUSK - Attorney for Department of Transportation Date: January 9, 2002 Matthew R. Gover, Esquire Att. for Appellee Myers 2411 North Front Street Harrisburg, PA 17110 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY I.D. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 RANDY LEE MYERS, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 01-5315 CIVIL TERM Statement of Matters Complained of on Appeal TO THE HONORABLE, THE JUDGES OF THE SAID COURT: NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant, that, by and through its attorney, Timothy P. Wile, Esquire, in compliance with the requirements of Pa. R.A.P. 1925, hereby sets forth the matters about which it complains with respect to its appeal of this Court's order of December 19, 2001: 1. The trial court lacked subject matter jurisdiction to adjudicate a challenge to the Bureau's imposition of an ignition interlock requirement upon the restoration of Appellee Myers' operating privilege insofar as restoration requirements are not one of the six actions of the Depa~hnent of Transportation that may be the subject of a statutory appeal under Section 1550(a) of the Vehicle Code, 75 Pa.C.S. §1550(a). See also Brennan's Case, 25 A.2d 155 (Pa. 1942); Ullman Motor Vehicle Operator License Case, 203 A.2d 386 (Pa. Super. 1964). 2. The trial court committed an error of law when it held that the Bureau of Driver Licensing of the Department of Transportation lacked the authority, under 42 Pa.C.S. §7003, to impose an ignition interlock requirement upon the restoration of the operating privilege of a repeat convicted drank driver where the clear and unambiguous language of 75 Pa.C.S. §7003 imposes such a duty upon the Department of Transportation, regardless of whether such a requirement had been ordered by the criminal trial court under 42 Pa.C.S. §7002. The Bureau is aware of the Commonwealth Court's holding in Schneider v. Department of Transportation, Bureau of Driver Licensing, 2002 Pa. Commw. LEXIS 18 (Pa. Cmwlth. 2002), that held to the contrary, but the Schneider decision is the subject of a petition for allowance of appeal to be filed with the Pennsylvania Supreme Court and the Bureau respectfully submits that this issue has not been finally decided. 3. The trial court committed an error of law when it held that the ignition interlock law, 42 Pa.C.S. §§7001 through 7003, was unconstitutional, relying upon a prior decision of the Court of Common Pleas of Cumberiand County in Commonwealth v. Mockaitis, 50 Cumberland __ (C.P. Pa. 2001). The Bureau of Driver Licensing respectfully submits that the ignition interlock law is a constitutional exercise of the General Assembly's police power and violates neither the constitutional doctrine of separation of powers nor the due process or equal protection rights of drivers as guaranteed by the Fourteenth Amendment to the United States Constitution. As noted by the trial court, the Mockaitis decision is presently on appeal before the Pennsylvania Supreme Court, having been argued in December 2001, and the Bureau of Driver Licensing also has an appeal pending before the Pennsylvania Supreme Court on the constitutionality of the ignition interlock law in the case of Probst v. Department of Transportation, Bureau of Driver Licensing,, No. 81 MAL 2001, which case has been fully briefed and is awaiting oral argument. Insofar as these appeals are currently pending before the Pennsylvania Supreme Court, the Bureau of Driver Licensing respectfully submits that the constitutionality of 42 Pa.C.S. §§7001 through 7003 has not yet been finally determined by the appellate courts of this Commonwealth. 4. The Bureau reserves the right to argue any additional issues that may be raised by the common pleas court's opinion filed in support of that court's order of December 19, 2001. Respectfully submitted, Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Attorney I.D. No. 30397 Attorney for Appellant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY I.D. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 RANDY LEE MYERS, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } IN THE COURT OF COMMON PLEAS : } OF CUMBERLAND COUNTY, PA : } : } : } NO. 01-5315 CIVIL TERM Certificate of Service I hereby certify that I have on this day and date duly served a tree and correct copy of the foregoing Statement of Matters Complained of on Appeal upon the following persons in the following manner, which service complies with the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge George E. Hoffer Matthew R. Gover, Esquire Cumberland County Courthouse Attorney for Appellee Myers 1 Courthouse Square 2411 N. Front St. Carlisle' PA 17013 ~,~,,~~ ~j~. I j~tcisburg' PA 17110 TIMOTHY P.-WILE Attorney for Department of Transportation Date: January 29, 2002 RANDY LEE MYERS, : Petitioner : COMMONWEALTH OF : PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING,: Respondent : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5315 CIVIL TERM ORDER OF COURT AND NOW,.this 17th day of December, will take the case under advisement. 2001, the Court ~atthew R. Gover, For the Plaintiff Foeirge H. Kabusk, the Defendant Esquire Esquire By the Court, pcb P3INDY LEE MYERS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5315 CIVIL TERM LICENSE SUSPENSION APPEAL Proceedings held before the HONORABLE GEORGE E. HOFFER, President Judge, Cumberland County Courthouse, Carlisle, Pennsylvania, on December 17, 2001, in Courtroom Number 3. APPEARANCES: Matthew R. Gover, For the Plaintiff George H. Kabusk, For the Defendant Esquire Esquire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 FOR THE PETITIONER 1 - Packet FOR THE RESPONDENT 1 - Notice of Suspension 2 7/24/01 Judge Oler order INDEX TO EXHIBITS MARKED MARKED 7 7 ADMITTED 4 ADMITTED 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. KABUSK: MR. GROVER: THE COURT: attorneys in the courtroom, to make here? MR. KABUSK: THE COURT: MR. KABUSK: versus Commonwealth of Pennsylvania, Transportation, case No. 2001-5315. Sir. Good morning, Your Honor. Good morning, Your Honor. I don't see anyone other than how much of a record are we going Just to document a case, Your Honor. Go ahead. This is the case of Randy Lee Myers Department of This is an appeal from a notice of suspension dated August 9, 2001, that informed the petitioner, Mr. Myers, that as a result of his 6/19/2001 conviction of violating Section 3731 of the Vehicle Code, Driving Under the Influence, of 1/14/2001, his driving privilege was suspended for a period of 1 year effective 3/7/2002. In addition, that notice informed the petitioner of the interlock requirement, which in that notice it is stated: Before your driving privilege can be restored you are required by law to have all vehicle owned by you to be equipped with an Ignition Interlock System. This is a result of your conviction for Driving Under the Influence. If you fail to comply with this requirement, your driving privilege will remain suspended for an additional year. You will 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 receive more information regarding this requirement approximately 30 days before your eligibility date. The petitioner objects to the imposition of the interlock requirement. (Commonwealth Exhibit No. 1 marked for identification.) MR. KABUSK: What has been marked as Commonwealth Exhibit No. 1, which is a packet of documents under seal and certification, I direct the Court's attention to Sub-exhibit No. 3, which is the Official Notice of Suspension, as well as Sub-exhibit No. 5, which is the Report of the Clerk of DUI date of conviction, 6/19/2001, date of violation 1/14/2001. Additionally, I direct the Court's attention to Sub-exhibit No. 7, which is the driving record, which indicates previous DUIs, at least ARDs for the DUI. I move for the admission of what has been marked Commonwealth Exhibit No. THE COURT: MR. GOVER: THE COURT: MR. KABUSK: Sir? No objection. 1 is admitted. As a preliminary matter, Your Honor, I make a motion to quash this dappeal. I would hand up this motion to the Court if the Court would care to follow along. In the motion I would direct the Court's attention to paragraph 9, which is where I will start eventually. This 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honorable Court has no jurisdiction to hear the appeal of the Department's notice to the petitioner that he will be subject to the Ignition Interlock requirement. 10. The Court of Common Pleas has jurisdiction pursuant to 42 Pa.C.S.933 to hear appeals from final orders from the Department of Transportation in the various cases which are listed there. 11. The appeal of the requirement for an Ignition Interlock requirement is not one of the matters which the Court of Common Pleas has jurisdiction pursuant to 43 Pa.C.S.933. The provisions relating to the Ignition Interlock do not provide for an appeal to the Court of Common Pleas, therefore, there is no appeal of the requirement for Ignition Interlock to the Court of Common Pleas. Where no appeal is specified by statute by the Pennsylvania Constitution, provides for an appeal. When no appeal the Administrative Agency Law is specified by statute from the department determination, the appeal properly should be with the department, not with the Court of Common Pleas. Therefore, with all due respect, this Honorable Court has no jurisdiction to hear this appeal from the requirement for the ignition interlock and any such appeal lies with the department and its administrative dockets, thereby, we make a 1 motion to quash this appeal. 2 THE COURT: Well, is there going to be a response 3 to this motion? 4 MR. GOVER: Yes, sir. This was the first time I 5 received that. 6 THE COURT: Is there going to be a written 7 response to it? 8 MR. GOVER: If you want a written response, I can 9 do it, Your Honor, but, obviously, not at this instant. 10 THE COURT: If you are going to file a written 11 response to it, get it in. 12 MR. GOVER: All right. Can I address it at least 13 verbally right now? 14 THE COURT: But I am not taking any further 15 argument on the record, I didn't mean to take what Mr. Kabusk 16 just said to me. It is all in writing, I don't know why we 17 have to say any more. 18 MR. GOVER: Okay. 19 THE COURT: Including Exhibit 1 and this motion, 20 do you have anything else? 21 22 23 24 25 MR. KABUSK: THE COURT: MR. KABUSK: THE COURT: Nothing further, You are resting? Yes, Your Honor. Except for a response Your Honor. to the motion, do you have anything to present? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GOVER: Yes, Your Honor. It would be two exhibits that have been marked, Myers Exhibit 1, Myers Exhibit No. 2. Those would be the official notice that my client received, as well as the sentencing order of this Court by Judge Oler. (Myers Exhibit No. 1 marked for identification; Myers Exhibit No. 2 marked for identification.) Honor. record. 2001, THE COURT: MR. KABUSK: THE COURT: THE COURT: MR. GOVER: Defense 1 and 2? No objection, Your Honor. Admitted. Do you have anything else? Nothing in the way of testimony, Your THE COURT: Ail right, you rest. Close the (Discussion held off the record.) THE COURT: And now, this 17th day of December, the Court will take the case under advisement. 7 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Patricia C. Barrett Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date 8 ROBIN LYNNE CLEMENS, Plaintiff SCOTT JEFFREY SPRUCEBANK, Defendant : In the Court of Common Pleas of : : CUMBERLAND County, : : Pennsylvania : Civil Action - Law : : No. 01-5515 _. : Protection From Abuse FINAL ORDER OF COURT Defendant's Name is: SCOTT JEFFREY SPRUCEBANK Name(s) of All protected persons, including Plaintiff and minor children: 1. ROBIN LYNNE CLEMENS AND NOW, this 5 ~ Day of tl~ ~,[ , 2002 the court having jurisdiction over the parties and the subject-matter, it is ORDERED, ADJUDGED and DECREED as follows: Plaintiff, Robin Lwme Clemens, is represented by David A. Lopez of MidPenn Legal Services; Defendant, Scott Jeffrey Sprucebank, is represented by Anthony J. Foschi of Shumaker Williams PC. Defendant, although agreeing to the terms of this Order, does not admit the allegations made in the Petition. Plaintiff's request for a final protection order is granted. 1. Defendant shall not abuse, stalk, harass, threaten the Plaintiff or any other protected person in any place where they might be found. 2. Defendant is prohibited from having ANY CONTACT with the Plaintiff, or any other person protected under this Order, at any location, including but not limited to any contact at Plaintiffs school, business, or place of employement. Defendant is specifically ordered to stay away from the following locations for the duration of this order. Plaintiff's current residence listed below, and any other residence she may establish for herself during the term of this Order: Central Pennsylvania College Box 5, Gale Hall College Hill Road Summerdale, PA 17093 Plaintiff's current place of employment listed below, and any other location where she may be employed during the term of this Order: Department of Public Welfare Office of Legislative Affairs Health & Welfare Building, Room 322 Harrisburg, Dauphin County, PA 17105 3. Defendant shall not contact the Plaintiff, or any other person protected under this Order, by telephone or by any other means, including through third persons. 4. The following additional relief is granted as authorized by §6108 of the Act: Defendant is prohibited from having any contact with Plaintiff's relatives. Defendant is ordered to refrain from harassing Plaintiff's relatives. Defendaat is enjoined from damaging or destroying any property owned by Plaintiff. The court costs and fees are waived. 5. A certified copy of this Order shall be provided to the police department where Plaintiff resides and any other agency specified hereafter: EAST PENNSBORO TOWNSHIP POLICE DAUPHIN COUNTY DISPATCH HARRISBURG POLICE DEPARTMENT 6. THIS ORDER SUPERSEDES: 1. ANY PRIOR PFA ORDER 7. All provisions of this order shall expire on: June 17, 2002 NOTICE TO THE DEFENDANT VIOLATION OF THIS ORDER MAY RESULT 1N YOUR ARREST ON THE CHARGE OF/NDIRECT CRIMINAL CONTEMPT WHICH IS PUNISHABLE BY A FINE OF UP TO $1,000 AND/OR A JAIL SENTENCE OF 'LrP TO SIX MON'rI-IS. 23 PA.C.S. §6114. VIOLATION MAY ALSO SUBJECT YOU TO PROSECUTION AND CRIMINAL PENALTIES UNDER THE PENNSYLVANIA CRIMES CODE. THIS ORDER IS ENFORCEABLE IN ALL FII~TY (50) STATES, THE DISTRICT OF COLUMBIA, TRIBAL LANDS, U.S. TERRITORIES AND THE COMMONWEALTH OF PUERTO RICO UNDER THE VIOLENCE AGAINST WOMEN ACT, 18 U.S.C. §2265. IF YOU TRAVEL OUTSIDE OF THE STATE AND INTENTIONALLy VIOLATE THIS ORDER, YOU MAY BE SUBJECT TO FEDERAL CRIMINAL PROCEEDINGS UNDER THAT ACT. 18 U.S.C §§2261-2262. IF THE BRADY INDICATOR PARAGRAPH APPEARS IN THE ORDER, YOU MAY BE SUBJECT TO FEDERAL PROSECUTION AND PENALTIES UNDER THE "BRADY" PROVISIONS OF THE GUN CONTROL ACT, 18 U.S.C. §922(G), FOR POSSESSION, TRANSPORT OR RECEIPT OF FIREARMS OR AMMUNITION. NOTICE TO LAW ENFORCEMENT OFFICIALS The police who have jurisdiction over the plaintiff's residence OR any location where a violation of this order occurs OR where the defendant may be located, shall enforce this order. An arrest for violation of Paragraphs 1 through 3 of this order may be without warrant, based soley on probable cause, whether or not the violation is committed in the presence of the police. 23 Pa.C.S. §6113. Subsequent to arrest, the police officer shall seize all weapons used or threatened to be used during the violation of the protection order or during prior incidents of abuse. The Cumberland County Sheriff's Department shall maintain possession of the weapons until further order of this Court. When the defendant is placed under arrest for violation of this order, the defendant shall be taken to the appropriate authority or authorities before whom defendant is to be arraigned. A "Complaint for Indirect Criminal Contempt" shall then be completed and signed by the police officer OR the plaintiff. Plaintiffs presence and signature are not required to file the complaint. If sufficient grounds for violation of this order are alleged, the defendant shall be arraigned, bond set and both parties given notice of the date of the hearing. By the Court,  Vesl;y 61;r, $ .,~dg'¢ Entered pursuant to the consent of Plaintiff and Defend~/]//~ R~b~ - e Cleero, ~ ~oa Jef Sp Da~d A. Lopez, A,omey~or~la~ ~J.~sc~ Distribution to: ~'David A. Lopez Attorney for Plaintiff MidPenn Legal Services 8 Irvine Row Carlisle, PA 17013 ~,,/Anthony J. Foschi Attorney for Defendant P.O. Box 88 Harrisburg, PA 17018 ,~FAXed and mailed to PSP - 03/06/02 WED 14:07 FAX 717 240 6573 CUMB CO PROTHONOTARY ~001 TX/RX NO INCOMPLETE TX/RX TRANSACTION OK ERROR *** ~ULTI~FN RE~ORT 3OO0 0119p2490779 0319p2405331 04]92438026 PSP CP LS OF~CE OF 7~E pROTHONOTARY C2j~ER[jhNDCOUNTYCOURTHO3SE ONE cOOR2~CUSESOUARE CARLISLE, PA. 17013-3387 (717) 240-6195 FAX (717) 240-6573 vIA TE LECOP I ER TO: PA STATE POLICE FAX ~: 717-249-0779 FR~4: CURTIS R. LONG RE: PFA ORDERS MESSAGE: NO. OF PAGE~ (INCLUPING CiY,,q~R SHEET)