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HomeMy WebLinkAbout02-1400COMMONWEALTH 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 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 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 June 20, 2002: 1. The trial court erred as a matter of law when it held that the Depmhnent of Transportation, Bureau of Driver Licensing, does not have a clear statutory duty and mandate to enforce the requirements of the Ignition Interlock Law, 42 Pa.C.S. §§7001 7003, regardless of whether a criminal trial court has complied with its statutory duty under 42 Pa.C.S. §7002. This clear and unambiguous statutory mandate is found in 42 Pa.C.S. §7003 and prohibits the Bureau of Driver Licensing from restoring the operating privilege of any repeat DUI offender who does not comply with the requirements of the Ignition Interlock Law and requires the Bureau to issue such a repeat DUI offender an ignition interlock restricted driver's license following that offender's completion of service of the one-year suspension mandated by 75 Pa.C.S. §1532(b)(3) as a consequence of the offender's DUI conviction. While the Bureau recognizes the Commonwealth Court's holding in Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), and that its holding is binding upon the trial court, the Bureau continues to believe that Schneider was wrongly decided and continues to litigate this issue before the Pennsylvania Supreme Court. The Bureau further submits that this issue has not yet been finally decided as the Supreme Court is actively considering the issues disposed of by the Commonwealth Court in Schneider in the case of Probst v. Department of Transportation, Bureau of Driver Licensing, No. 81 MAP 2001, and similar issues are before the Supreme Court in the case of Commonwealth v. Mockaitis, No. 32 MAP 2001. The Bureau has also filed a petition for allowance of appeal of the Co~nmonwealth Court's decision in Schneider that the Pennsylvania Supreme Court has placed on "bold" pending its disposition of the appeals in the Probst and Mockaitis cases. 2. The trial court erred when it sustained the driver's challenge to the Ignition Interlock Law since that law is constitutional both on due process and equal protection grounds and the driver failed to establish that the statute offends any provision of either the United States or Pennsylvania Constitution. See Frederick v. Department of Transportation, Bureau of Driver Licensing, 2002 WL 1466543 (Pa. Cmwlth. 2002) (Ignition Interlock Law does not constitute an ex postfacto law); Commonwealth v. Etheredge, 794 A.2d 391 (Pa. Super. 2002) (Ignition Interlock Law does not violate either the Equal Protection or Due Process Clauses of the United States or Pennsylvania Constitutions). Contrary trial court decisions, such as Commonwealth v. Riggs, 53 Pa. D. & C.4th 309 (C.P. Lebanon 2001), and Commonwealth v. Mockaitis, 54 Pa. D. & C.4th 115 (C.P. Cumberland 2001), which held that the Ignition Interlock Law is unconstitutional, have been implicitly overruled by these intermediate appellate court decisions. 3. 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 Jnne 20, 2002. Respectfully submitted, Timothy P. Wile 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 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 CIVIL TERM Certificate of Service I hereby certify that I have on this day and date duly served a true 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 J. Wesley Oler, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Date: July 31, 2002 P. Richard Wagner, Esquire Attomey for Appellee Adeock 2233 North Front St. ~, f'~ _ Harrisburg, PA 17110 TIMO~I'HY P. ~ Attorney for Depath~ent of Transportation COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 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 June 20, 2002. 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. / ~,~' ~ TERRANCE M. EDWARD~g Assistant Counsel Appellate Section 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: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY DENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRWER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 Civil Term Request for Transcript A notice of appeal having been filed in this matter, the official 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. TERRANCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1 I01 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: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 Civil Term Proof of Service I hereby certify that I have on this day and date duly served a tree and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge J. Wesley Oler, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 P. Richard Wagner, Esquire Att. for Appellee Adcock 2233 North Front Street Harrisburg, PA 17110 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: July 18, 2002 PYS5~0 2002-01400 Reference No..: Case TVDe ..... : APPEAL ~u~gmeh% ...... - LICENSE SUSP du~ge Assigned: .00 Disposed Desc.: Cumberland County Prothonotary,s Office Civil Case Inquiry ADCOCK JOHN BRADFORD (va) COMMONWEALTH OF PA Filed ........ : Time ......... : Execution Date Page 1 3/22/2002 8:07 o/oo/o000 0/00/oo00 Jury Trial .... ............ Case Comments ............. Disposed Date. Higher Crt 1.: Higher Crt 2.: General Index *********************************************** Attorney Info ADCOCK JOHN BRADFORD 716-B WEST NORTH STREET APPELLANT WAGNER p RICHARD CARLISLE PA 17013 COMMONWEALTH OF PENNSYLVANIA APPELLEE DEPARTMENT OF TRANSPORTATION ~UREAU OF DRIVER LICENSING 0 BOX 68693 HARRISBURG PA 17104 * Date Entries 3/22/2002 ............. FIRST ENTRY .............. APPEAL FROM SUSPENSION OF DRIERS LICENSE MAIL~n ~/o~7~ .... ~ FA - BY THE COROT 3 w~J~'U~i~u~D COUNTY .... ,~/uz ........ ~ ~ER JR J COPIES ............................... 6/20/2002 O~ZR o~ COURT ~m OPINION - 6~T~6-~-~626~-i-~-~E PETITI , LICENSE SUSPENSION APPEAL AND FOR ~ ~ ......... ONER S -- - HE ~um~ ~'I~TED IN ACCOMPANYING OPINION THE APPEAL IS SUSTAINED TO THE EX ENT T ~YSTEM AS ~aum w~ EQUIP HIS _V~__HICLES WIT-~i"G~ z z2/02 NOTICE ............ - ~ ~ COPIES - - LAST ENTRY .............. * Fees & Debits End * ******************************************************** .... . APPEAL LIC SUSP TAX ON APPEAL 35.00 35.00 .00 SETTLEMENT .50 .50 00 JCP FEE 5.00 5 00 ' 5,00 ' .00 _ 5.00 00 ................... 45.50 45.50 .00 * End of Case Information *********************** ********************************************** . TRU5 C©P¥ F~OM !n Te~h?mny v~er~3f, ~ he¢~ unto ~t my ~d the ~ ~ ~id Co~ at ~dls~ Pa h~ z~. day of~ , JOHN BRADFORD ADCOCK, V. COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 'NO: oov-/fao LICENSE SUSPENSION APPEAL LICENSE SUSPENSION APPEAL AND NOW, comes John B. Adcock, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and files the following license suspension appeal: 1. Petitioner, John B. Adcock, is an adult individual currently residing at 716-B West North Street, Carlisle, Cumberland County, Pennsylvania. 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address at P.O. Box 68693, Harrisburg, Dauphin County, Pennsylvania. 3. The Petitioner herein, John B. Adcock, received a notice from PennDOT dated Fe. bmary 22, 2002, a copy of which is attached hereto, incorporated herein by reference, and marked as Exhibit A. 4. According to the notice from PennDOT, on page 2, Petitioner is required to install an ignition interlock before receiving the return of his license after his period of suspension. 5. On or about February 5, 2002, the Petitioner herein was sentenced by the Court of Common Pleas of Cumberland County as a result of having pled guilty to driving under the influence. (Second offense for sentencing, however, first offense in that Petitioner had a prior ARD.) 6. A copy of said sentencing is attached hereto, incorporated herein by reference and marked as Exhibit B. 7. Pursuant to the provisions of the sentencing order, no imposition of interlock was required by the Court of Common Pleas of Cmnberland County. 8. No appeal was taken by the Commonwealth from the imposition of sentence on February 5, 2002. 91 The imposition of the interlock devise by PennDOT in its letter of February 22, 2002, is improper, invalid and should not be enforced for the following reasons: A. The Court of Common Pleas has the sole power to impose the interlock, which it did not do; B. No appeal was taken from the sentence of the Court of Common Pleas of Cumberland County, dated February 5, 2002; and C.. PennDOT has no unilateral authority to impose an ignition interlock devise requirement if the trial court fails to do so. 10. As a result of the aforementioned, the Petitioner believes and therefore avers that the ignition interlock devise requirement is improper. 11. The letter from PennDOT is dated February 22, 2002, at a time after the Commonwealth Count ruled in Sclmeider v. Dept. of Transportation, on January 11, 2002, a copy of which is attached hereto and marked as Exhibit C, and in .Stiles v. Dept.of Transportation, dated February 4, 2002, a copy of which is attached hereto and marked as Exhibit D. 12. Because PennDOT failed to remove the ignition interlock requirement in its notice of February 22, 2002, to Petitioner Adcock, after a time in which they were expressly aware that the Commonwealth Court had ruled as against PennDOT, PennDOT's, the Respondent herein, actions are unreasonable, vexatious, unjustified, and therefore, Petitioner is entitled to counsel fees as against PennDOT. WHEREFORE, Petitioner requests this Court to grant the relief as requested. Respectfully submitted, Mancke, Wagner, Hershey & Tully By ~,//"15. ~agner, Esquire -/ ~03 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for Petitioner Date: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: FEBRUARY 22, 2002 JOHN B ADCOCK 716 B WEST NORTH STREET CARLISLE PA 17013 WID e 020466114439707 001 PROCESSING DATE 02/15/2002 DRIVER LICENSE ~ 22379508 DATE OF BIRTH 08/24/1948 LICENSE IN BUREAU Dear MR. ADCOCK: This is an O~f$c$al Not,ce of the Suspension of your Driving Privilege as authorized by Section 1532B of the Pennsylvania Vehicle Code. As a result of your 11/$0/2001 conviction of violating Section 375! of the Vehicle Code DRIVING UNDER INFLUENCE on 09/02/2000: · Your driving privilege is SUSPENDED fop a period cf 1 YEAR(S) effective 02/05/2002 at 12:01 a.m. WARNING: If you are convicted of driving while your license is suspended/revoked the penalties will be a MINIMUM of 90 days imprisonment AND a 1,000 ~ine AND your driving privilege will be suspended/revoked for a MINIMUM 1 year period *********************************************************** Before PennDOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING NITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should ~ollow ALL tnstructlons very caPefully. Even If You have served all the tlme on the suspension/revocation, we cannot restore your dPlvlng privilege until all the PequtPementa are satisfied. 020~6611~39707 PRISON RELEASE REQUIREMENT (ACT151) The Court of CUMBERLAND CTY, Court Number 00q19, Court Term 2001 has sentenced you to serve a prison term for this violation. Pursuant to Section 1541(a.1) of the Vehicle Code, you will not receive credit for this suspension/revocation or any additional suspension/revocation until you complete your prison term. The Court must certify your completion to PennDOT. You may wish to contact your probation officer and/or the Court after your release to make sure that PennDOT is properly notified. COURT ORDER TREATMENT PROGRAM (ACT 122) Pursuant to Section 154B(d) of the Vehicle Code, the Court of CUMBERLAND CTY , Court Number 004i9, Court Term 2001 has ordered you to attend a treatment program for alcohol or drug addiction. As a result of the court order, this suspension/revocation shall remain in effect until the Department is notified by the above Court that you have successfully completed treatment and you are otherwise eligible for restoration of your driving privilege. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored To from a suspension/revocation of your driving .privilege. pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amoun~ due is li~ted 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. 5. Follow the payment and mailing instructions on the back of the application. 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. 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 $0 days before your eligibility date. 020~&11~39707 PROVIDING PROOF OF INSURANCE Nithin the last $0 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. Zmportant: 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, FEBRUARY 22, 2002, of this letter. Z~ you ~11e an appeal in the County Court, the Court w111 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 1710~-2516 Remember, this is an OFFZC/AL NOTZCE OF SUSPENSZON. Sincerely~ Rebecca L. Bickley, Director Bureau of Driver Licensing INFORNATION 7=00 a.m. to 9:00 p.m. IN STATE 1-800-932-q600 TDD IN STATE OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE NEB SITE ADDRESS www.dot.state.pa.us 1-800-228-0676 717-391-6191 COMMONWEALTH V0 JOHN BRADFORD ADCOCK OTN: L071153-5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 01-0419 CRIMINAL TERM : CHARGE: (1) DRIVING UNDER THE : INFLUENCE : (2) CARELESS DRIVING : (SUMMARY) : (3) DRIVING ON RIGHT : SIDE OF ROADWAY : (SUMMARY) : AFFIAi~T: PTL. KEVIN ROLAND IN RE: SENTENCING ORDER OF COURT AI~D NOW, this 5th day of February, 2002, the Defendant, John Bradford Adcock, now appearing in court for sentence with his privately retained counsel, P. Richard Wagner, Esquire, and having previously entered pleas of guilty as charged at Count 1 to Driving under the Influence, a misdemeanor of the second degree, a second offense overall and a second offense for mandatory sentencing purposes, at Count 2 to Careless Driving, a summary offense, and at Count 3 to Driving on Right Side of Roadway, also a summary offense, and the Court being in receipt of a presentence investigation report, upon which it relies, the sentence of the Court is as follows: At Count 1, Driving under the Influence, the Defendant is sentenced to pay the costs of prosecution, a fine of $300.00, a $100.00 CAT fund surcharge, and a $t0.00 Emergency Medical Services Fund Assessment, and to undergo imprisonment in the Cumberland.County Prison for a period of not less than 30 days nor more than 23 months. Conditioned upon the Defendant's reporting to the prison at the time provided for hereinafter, and upon his reporting without alcohol or unlawful controlled substances in his system, upon his being and remaining on good behavior while in the prison, upon his being and remaining on good behavior thereafter, and upon his complying with all written directions of his parole officer, he shall be automatically paroled at the expiration of his minimum sentence of 30 days. Prior to obtaining his Pennsylvania operating privileges, the Defendant must pay all court-imposed fines and costs, and he must pay for and successfully complete an alcohol treatment program. Work release is authorized for the Defendant. At Count 2, Careless Driving, the Defendant is sentenced to pay the costs of prosecution, a fine of $25.00, a $30.00 CAT fund surcharge, and a $10.00 Emergency Medical Services Fund Assessment. At Count 3, Driving on Right Side of Roadway, the Defendant is sentenced to pay the costs of prosecution, a fine of $25.00, a $30.00 CAT fund surcharge, and a $10~00 Emergency Medical Services Fund Assessment. Pursuant to an agreement of counsel in the person of Michael W. Mervine, Esquire, on behalf of the Commonwealth and Defendant and his counsel, commencement of the service of the term of imprisonment provided for herein shall be on Monday, February 11, 2002, at 9:00 a.m., at which time he shall present himself to the Cumberland County Prison authorities w~thout further Order of Court. By the Court, Michael W. Mervine, Esquire Assistant District Attorney ~ard Wagner, Esquire e Defendant Probation Sheriff Victim Witness CCP :mae JJCWes±ey O J~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA Albert John Schneider Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 1513 C.D. 2001 Argued: December 4, 2001 BEFORE: HONORABLE DORIS A. SMITH, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION BY JUDGE PELLEGRINI FILED: January 11, 2002 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from an order of the Court of Common Pleas of Bucks County (trial court) sustaining Albert John Schneider's (Schneider) appeal from PennDOT's requirement that he install an ignition interlock device on all vehicles owned by him before his driving privilege could be restored. The Ignition Interlock Device Act (Act)~ was enacted in September 2000 and provides that a court must order repeat DUI offenders to install an ~ 42 Pa. C.S. §§7001-7003. The Ignition Interlock Device Act became effective September 30, 2000, except for Section 7002(a), which became effective September 30, 2001. ignition interlock device2 on all vehicles they own before their driving privileges may be restored, and that a court may use its discretion regarding whether to impose an ignition interlock device on first time offenders. Under the Act, an Accelerated Rehabilitative Disposition (ARD) is considered a first offense.3 2 An ignition interlock device is a system approved by PennDOT that prevents a vehicle from being started or operated unless the operator first provides a breath sample indicating that the operator has an alcohol level of less than .025%. 42 Pa. C.S. §7001. 3 Section 7002 of the Act provides that: (a) First offense.--In addition to any other requirements imposed by the court, where a person has been convicted for a first offense under 75 Pa. C.S. §3731 (relating to driving under influence of alcohol or controlled substance), the court may order the installation of an approved ignition interlock system on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (b) Second or subsequent offense.--In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa. C.S. §3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (c) Alternative disposition--For the purpose of this section, acceptance of Accelerated Rehabilitative Disposition, an adjudication of delinquency or a consent decree under Chapter 63 (Footnote continued on next page...) 2 In 1984, Schneider was arrested for driving under the influence (DUI) in violation of 75 Pa. C.S. §3731(a) and was accepted into an ARD program. Schneider's operating privilege was suspended for one month as a condition of ARD. On May 7, 2000, Schneider was arrested again for DUI and pleaded guilty to the offense on October 25, 2000, before the trial court which resulted in a conviction under 75 Pa. C.S. §373 l(a). Schneider was sentenced to serve not less than 48 hours in the Bucks County prison and pay costs and a $300 fine. Schneider was required to surrender his driver's license to the court pursuant to 75 Pa. C.S. §1540(a) which forwarded the license to PennDOT to begin Schneider's credit on his one-year suspension. On December 7, 2000, PennDOT notified Schneider that his operating privilege had been suspended for one year, and he was required under the Act to have all vehicles owned by him equipped with an ignition interlock device before his driving privilege could be restored or else his license would be suspended for an additional year. Schneider filed an appeal challenging PennDOT's imposition (continued...) (relating to juvenile matters) or any other form of preliminary disposition of any charge brought under 75 Pa. C.S. §3731 shall be considered a first conviction. (d) Department approval.--An ignition interlock system required to be installed under this section must be a system which has been approved by the department. The department's approval of ignition interlock systems shall be published in the Pennsylvania Bulletin. 42 Pa. C.S. §7002. of the ignition interlock requirement upon the restoration of his license at the end of one year. Schneider contended that his 2000 DUI was his first DUI conviction and he was not subject to the ignition interlock requirement. A de novo hearing was held and PennDOT admitted into evidence a packet of documents, including a copy of the Bucks County Clerk of Courts' certification of Schneider's 2000 DUI and a certification of his official driving record showing his 1984 ARD. The trial court granted Schneider's appeal and rescinded the ignition interlock requirement from the restoration of his operating privilege. The trial court specifically found that Schneider's 2000 DUI offense was his first DUI offense,4 and in its opinion noted that while the ignition interlock requirement is mandatory for second and subsequent DUI offenders, trial courts are allowed discretion in imposing the requirement upon first time offenders.5 Finally, the trial court found that Section 7002 allowed only a trial court to impose the ignition interlock requirement and that PennDOT had no independent authority to impose such a requirement absent a court order. PennDOT then filed the instant appeal. 6 4 In fact, footnote 1 of the trial court's opinion notes that "[t]he offense occurred on May 7, 2000 and was Licensee's first offense under 3731." 5 In its opinion, the trial court also relied upon the fact that Section 7002(a), pertaining to first time offenders, became effective on September 1, 2001, and Schneider was not convicted until October 25, 2000. However, only Section 7002(a) became effective on that date and the rest of the statute was effective as of September 1, 2000. 6 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence, whether errors of law have been committed or whether the trial court's determination demonstrates a manifest abuse of discretion. Mazza v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 692 A.2d 251 (Pa. Cmwlth. 1997),petition for allowance of appeal denied, 551 Pa. 172, 709 A.2d 887 (1998). 4 PennDOT contends that it has an independent mandate under the Act to impose ignition interlock requirements upon repeat DUI offenders regardless of whether the trial court ordered installation.7 Sections 7002(b) and 7003(1) of the Act prohibit PennDOT from restoring the operating privilege of any repeat DUI offender until a court certifies that all vehicles owned by the offender have had the ignition interlock device installed. 42 Pa. C.S. §§7002(b) and 7003(1). Although the trial court's failure to order the device may have been because it was unaware of Schneider's 1984 offense, PennDOT claims it has an independent mandate from the General Assembly to ensure that the device is installed. 7 PennDOT also contends that a court of common pleas lacks subject matter jurisdiction to adjudicate a driver's challenge to the imposition of an ignition interlock requirement upon the restoration of the driver's operating privilege because the ignition interlock requirement is not a final order or determination and, as such, does not fall under 42 Pa. C.S. §933(a)(ii) (appeals from government agencies) and 75 Pa. C.S. § 1550(a) (judicial review). Despite the trial court's determination that failure to comply with the ignition interlock requirement is a continuation of a suspension and can be the subject of a statutory appeal under the above provisions, PennDOT contends that it is actually another restoration requirement such as the payment of a restoration fee or providing proof of current financial responsibility and carmot be the subject of a statutory appeal. We agree with the trial court that failure to comply with the ignition interlock device requirements is a continuation of a suspension of driving privileges because the failure to install the ignition interlock device will result in the driver's license being suspended for an additional year. See 75 Pa. C.S. §7003(5). Under 75 Pa. C.S. §1550(a), "[a]ny person who has been denied a driver's license, whose driver's license has been canceled or whose operating privilege has been recalled, suspended, revoked or disqualified by the department shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure) [which provides that the court of common pleas shall have jurisdiction]..." Therefore, this appeal was properly taken to the Bucks County Court of Common Pleas. Although Schneider had two DUI offenses and pursuant to Section 7002(b), the trial court was required to order installation of an ignition interlock device,s that failure does not mean that PennDOT has been given authority to override the trial court's order and require installation. Section 7002 provides that only "the court shall order the installation of an approved ignition interlock device .... "42 Pa. C.S. §7002(b). (Emphasis added). Because this provision gives a court the sole authority, PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so. If the trial court fails to impose this requirement in a criminal proceeding, the district attorney can appeal the trial court's failure to do so as it would if the trial court failed to impose any other mandatory sentence. 9 s Under 75 Pa. C.S. §3731(e)(1), the imposition and severity of penalties for DUI offenses is based upon the frequency of previous offenses under Section 3731 in the past seven years. However, there is no reference in the Act to this provision. The Act specifically refers to first offenses in Section 7002(a) and second or subsequent offenses in Section 7002(b) without reference to a time limit that would preclude consideration of a previous offense in determining whether a current offense is a "second or subsequent offense." Nothing in this provision limits the period when the offense occurred to be considered a second offense. 9 In Pennsylvania State Police v. Court of Common Pleas of Bucks County, 615 A.2d 946 (Pa. Cmwlth. 1992), the Court of Common Pleas ordered the State Police to expunge an arrest and conviction record. The State Police challenged the expungement order to avoid a contempt of court order and argued that it had an independent mandate under 18 Pa. C.S. §9111 to collect and maintain complete and accurate criminal history record information. Id. This Court held that the State Police lacked standing to challenge the order because there are no affirmative duties placed upon the State Police in the expungement process except to comply with court- ordered expungements. Id. Similarly, here, PennDOT is charged with restoring driving privileges but not with imposing ignition interlock devices, and, therefore, it may not independently order imposition of the devices. Accordingly, because the trial court has jurisdiction over driver license suspension appeals and because the plain language of the Act does not permit PennDOT to have independent authority to impose installation of an igmtion interlock device, the decision of the thai court is affirmed. DAN PELLEGRINI, JUDGE IN THE COMMONWEALTH COURT OF PENNSYLVANIA Albert John Schneider Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : No. 1513 C.D. 2001 ORDER AND NOW, this 11th day of Janua _ry, 2002, the Order of the Court of Common Pleas of Bucks County dated June 12, 2001, at No. 00-8145-14-6, is affirmed. DAN PELLEGR1NI, JUDGE IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alberta G. Stiles Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant · No. 2001 C.D. 2001 · Submitted: December 28, 2001 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: February 4, 2002 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDot) appeals from an order of the Court of Common Pleas of Bucks County (trial court) sustaining the appeal of Alberta G. Stiles (Licensee) from PennDot's requirement that she install an ignition interlock device on all vehicles owned by her before her driving privilege could be restored· The Ignition Interlock Device Act (Act)t was enacted in September 2000 and provides that a court must order repeat driving under the influence (DUI) 1 42 Pa. C.S. §§7001-7003. The Act became effective September 30, 2000, except for Section 7002(a), which became effective September 30, 2001. offenders to install an ignition interlock device2 on all vehicles they own before their driving privilege may be restored, and that a court may use its discretion regarding whether to impose an ignition interlock device on first time offenders. Under the Act, an Accelerated Rehabilitative Disposition (ARD) is considered a first offense.3 2 An ignition interlock device is a system approved by PennDot that prevents a vehicle from being started or operated unless the operator first provides a breath sample indicating that the operator has an alcohol level of less than .025%. 42 Pa. C.S. §7001. 3 Section 7002(a) of the Act provides: (a) First offense. In addition to any other requirements imposed by the court, where a person has been convicted for a first offense under 75 Pa. C.S. §3731 (relating to driving under influence of alcohol or controlled substance), the court may order the installation of an approved ignition interlock system on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of any approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (b) Second or subsequent offense. In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa. C.S. §3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (Footnote continued on next page...) In 1986, Licensee was arrested for DUI in violation of 75 Pa. C.S. §3731(a) and was accepted into an ARD program. Her operating privilege was suspended for one month as a condition of ARD. On September 9, 2000, Licensee was again arrested for DUI and pled guilty to the offense on February 14, 2001. Licensee was sentenced to serve not less than 48 hours and not more than 12 months in the Bucks County prison commencing February 22, 2001, and pay costs and a $300 fine. The Bucks County Clerk of Courts notified PennDot of Licensee's conviction, and by official notice dated March 19, 2001, PennDot notified Licensee that her operating privilege had been suspended for one year. The notice also stated that Licensee would be required to have all vehicles owned by her to be equipped with an approved ignition interlock system prior to the restoration of her driving privilege and failure to do so would result in her operating privilege remaining suspended for an additional year. Licensee filed an appeal with the trial court challenging PennDot's imposition of the ignition interlock requirement upon the restoration of her licensee at the end of one year. A de novo hearing was held after which the trial court granted Licensee's appeal. Specifically, the trial court found that Licensee's DUI (continued...) (c) Alternative disposition. For the purpose of this section, acceptance of Accelerated Rehabilitative Disposition, an adjudication of delinquency or a consent decree under Chapter 63 (relating to juvenile matters) or any other form of preliminary disposition of any charge brought under 75 Pa. C.S. §3731 shall be considered a first conviction. offense was her first as her previous ARD was expunged after seven years4 and noted that while the ignition interlock requirement was mandatory for second and subsequent DUI offenders, trial courts were allowed discretion in imposing the requirement upon first time offenders.5 Additionally, the trial court found that Section 7002 only allowed a trial court to impose the ignition interlock requirement, and PennDot had no independent authority to impose such a requirement absent a court order. This appeal by PennDot followedfi PennDot makes two arguments on appeal: 1) that the trial court lacked subject matter jurisdiction to adjudicate whether Licensee's challenge to PennDot's imposition of the ignition interlock requirement upon the restoration of her driving privilege; and 2) that PennDot had an independent mandate to impose an ignition interlock requirement upon repeat DUI offenders when the trial court failed or refused to comply with statutory mandate. These identical arguments were previously made by PennDot in Schneider v. Commonwealth, Department of 4 See 75 Pa. C.S. §1534(b) which provides that when a person who is arrested for DUI accepts ARD, PennDot shall maintain a record of the acceptance of ARD for seven years and the record shall not be expunged prior to that date. See also Commonwealth v. M.M.M., 779 A.2d 1158 (Pa. Super. 2001). s In its opinion, the trial court relied upon the fact that Section 7002(a) became effective on September 30, 2000, and Licensee was not convicted until February 14, 2001. However, only Section 7002(a) became effective on that date and the rest of the statue was effective as of September 1, 2000. 6 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence, whether errors of law have been committed or whether the trial court's determination demonstrates a manifest abuse of discretion. Mazza v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 692 A.2d 251 (Pa. Cmwlth. 1997),petition for allowance of appeal denied, 551 Pa. 172, 709 A.2d 887 (1998). Transportation, Bureau 'of Driver Licensing, __ A.2d __ (Pa. Cmwlth., filed January 11, 2002), wh~re we ~ffn-med the trial court on both issues. Because we need not reiterate our previous decision, for the same reasons set forth in Schneider, the order of the trial court is affmned. DAN PELLEGRINI, JUDGE IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alberta G. Stiles Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant · No. 2001 C.D. 2001 ORDER AND NOW, this 4th day of February_, 2002, the order of the Court of Common Pleas of Bucks County dated July 24, 2001, is affirmed. DAN PELLEGRINI, JUDGE ~ERTIFICATE OF SERVICE I, DEBRA K. SPINNER, Secretary in the law firm of MANCKE, WAGNER, HERSHEY & TULLY do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of civil Procedure, by depositing the same in the united States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: George Kabusk, Esuqire office of Chief Counsel Department of Transportation 1101 South Front Street Harrisburg, PA 17104 By Debra K. Spinner, Secretary MANCKE, WAGNER, HERSHEY & TULLY 2233 North Front Street Harrisburg, PA 17110 p. Richard Wagner, Esquire Attorneys for John B. Adcock DATE: MAR 2 5 2002 JOHN BRADFORD ADCOCK, COMMONWEALTH OF PA · 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO: DEPARTMENT OF TRANSPORTATION : LICENSE SUSPENSION APPEAL ORDER AND NOW, this~day o£ [~ ~_~ c_~ ,2002, upon Petition o£John B Adcock, a hearing is set for the/~ day o~ ,2002, at ~J,~t~ o'clock ~..,min Courtroom No. / of the Cumberland County Courthouse, Carlisle, Cumberland County, Pennsylvania, for PennDOT to show cause why, if any, the Petition of Petitioner should not be granted in the form of removing the requirement for the installation of the ignition interlock as determined by PennDOT in a letter of February 22, 2002. Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least sixty (60) days prior to the date of the hearing. BY THE COURT: Distribution: Prothonotary's Office · .4)ffice of Chief Counsel, Penn DOT 1101 S. Front St., Harrisburg, PA 17104-2516 .~P. Richard Wagner, Esquire 2233 North Front St., Harrisburg, PA 17110 JOHN BRADFORD ADCOCK, Petitioner Vo COMMONWEALTH OF : PENNSYLVANIA, : DEPARTMENT OF : TRANSPORTATION, BUREAU: OF DRIVER LICENSING, : Respondent : IN THE COURT OF COMMON PLEAS OF FY, PENNSYLVANIA CUMBERLAND COUN CIVIL ACTION - LAW LICENSE SUSPENSIO~ NO. 02-1400 CIVIL TEl IN RE: PETITIONER'S LICENSE SUSPENSIOb BEFORE OLER, J. ORDER OF COURT AND NOW, this 20th day of June, 2002, upon consi~ License Suspension Appeal, and for the reasons stated in the acc appeal is sustained to the extent that the portion of the Departn February 22, 2002, notice requiring Petitioner to equip his vehicle systems, as a prerequisite to scheduled restoration of his driving p BY THE COUR~ JffWesley Ole-r~ P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Petitioner George Kabusk, Esq. Pennsylvania Department of Transportation 1101 S. Front Street Harrisburg, PA 17104-2516 Attorney for Respondent APPEAL 'dVl APPEAL [eration of Petitioner's >mpanying opinion, the ~nt of Transportation's with ignition interlock ivilege, is rescinded. g. 6- ,~/.oa-. JOHN BRADFORD Al)COCK, Petitioner COMMONWEALTH OF : PENNSYLVANIA, : DEPARTMENT OF : TRANSPORTATION, BUREAU: OF DRIVER LICENSING, : Respondent : IN TH]~ COURT OF COMMON PLEAS OF CUMBERLAND COUN fY, PENNSYLVANIA CIVIL ACTION - LAW LICENSE SUSPENSIO] NO. 02-1400 CIVIL TEl APPEAL M APPEAL guilty on November 30, 2001, to driving under the influence,~ was sentenced to pay the fine, to undergo a term of imprisonment of thirty days to tv county prison, and, as a prerequisite to restoration of his drivin ~ Petitioner also pled guilty to careless driving, a summary offense, roadway, a summary offense, for which he was sentenced to pay cosl Order of Ct., Feb. 15, 2002, Commonwealth v. Adcock~ No. 00-2381 Pl. Cumberland County Feb 15, 2002) (Oler, J.); Pet'r.'s Ex. 1, Hr'g. Pet'r.'s Ex. __). :osts of prosecution and a enty-three months in the privilege, to complete an ~d driving on right side of of prosecution and fines. '.riminal Term (Ct. Com. June 17, 2002 (hereinafter notice that required, as a prerequisite to scheduled restoratio~ privilege, that Petitioner equip each of the vehicles owned interlock system. For the reasons stated in this opinion, Petitioner's appeal DISCUSSION In an underlying criminal case, Petitioner, having pled rill be sustained. of Petitioner's driving him with an ignition IN RE: PETITIONER'S LICENSE SUSPENSIOI BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., June 20, 2002. Petitioner appeals from an action taken by Respondent, 17 nnsylvania Department of Transportation, Bureau of Driver Licensing (hereinafter Department of Transportation), and requests that this court rescind that part of a license suspension alcohol treatment program.2 The sentencing court did not include a requirement that Petitioner install ignition interlock systems in his vehicles.3 Subsequent to this sentencing order, the Department Petitioner a suspension notice dated February 22, 2002, de restoration of his driving privilege. In addition to the requirement the Department of Transportation also required, as a prerequisite that Petitioner install an approved ignition interlock system owned.4 The notice stated, in relevant part, as follows: Before your driving privilege can be restored you are re, have all vehicle(s) owned by you to be equipped with an 1 System. This is a result of your conviction for Driving Um If you fail to comply with this requirement, your driviJ remain suspended for an additional year.5 On March 22, 2002, Petitioner filed a license suspension of the notice.6 A hearing was held on Petitioner's appeal on June In Schneider v. Commonwealth, Department of Transp~ 2001, 2001 WL 1692244 (Pa. Commw. Ct., Jan. 11, 2002), th~ stated: Although [the petitioner] had two DUI offenses Section 7002(b), the trial court was required to order ! ignition interlock device, that failure does not mean that Pi given authority to override the trial court's order and re. Section 7002 provides that only "the court shall order the approved ignition interlock device .... "Because this provi: 2 Order of Ct., Feb. 15, 2002, Commonwealth v. Adcock, No. 00-2381 Pl. Cumberland County Feb. 15, 2002) (Oler, J.); Pet'r's Ex. 1. 3 Id. In Commonwealth v. Mockaitis, 50 Cumberland L.J. 184 (2001), ~ constitutionality of the statutory ignition interlock system requirement Honorable Edgar B. Bayley of this court. n Pet'r.'s License Suspension Appeal, filed Mar. 22, 2002 (no Transportation to Petitioner, dated Feb. 22, 2002). 5 Id. (notice from Department of Transportation to Petitioner, dated Fe 6/d. )f Transportation sent ailing prerequisites to in the sentencing order, scheduled restoration, each vehicle that he aired by law to nition Interlock ler the Influence. tg privilege will appeal from this aspect .7, 2002. rtation, No. 1513 C.D. Commonwealth Court and pursuant to nstallation of an .,nnDOT has been tuire installation. installation on an ;ion gives a court Criminal Term (Ct. Com. · challenge to the was upheld by the :ice from Department of ~.22,2002). the sole authority, PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so Id. at *2 (footnotes and citations omitted) (emphasis omitted). Accordingly, the Commonwealth Court, in Schneider, alS,reed the trial court's order rescinding the ignition interlock system provision in the sus ~ension notice issued to the petitioner by the Department of Transportation. Id. On tis issue, Schneider is indistinguishable from the present case and, accordingly, the s~tme result must obtain herein. For the foregoing reasons, Petitioner's appeal will be sust~ ined, without prejudice to Respondent's right to pursue a challenge to this holding, as p ;escribed by Schneider, on appeal. ORDER OF COURT AND NOW, this 20t~ day of June, 2002, upon consi~ License Suspension Appeal, and for the reasons stated in the acc appeal is sustained to the extent that the portion of the Departn February 22, 2002, notice requiring Petitioner to equip his vehicle systems, as a prerequisite to scheduled restoration of his driving p BY THE COURq P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17011 Attorney for Petitioner George Kabusk, Esq. Pennsylvania Department of Transportation 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent /s/J. Wesley Ole~ J. Wesley Oler, Jl leration of Petitioner's )mpanying opinion, the .ent of Transportation's with ignition interlock :ivilege, is rescinded. Jr. JOHN BRADFORD ADCOCK, Petitioner COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION- LAW LICENSE SUSPENSION APPEAL : pENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, : BUREAU OF DRIVER : LICENSING, : Respondent : No. 02-1400 CIVIL TERM IN RE: PETITIONER'S LICENSE SUSPENSION APPEAL Proceedings held before the Honorable J. WESLEY OLER, JR., Judge, Cumberland County Courthouse, Carlisle, Pennsylvania, on June 17, 2002, commencing at 9:32 a.m. in Courtroom No. 1. APPEARANCES: P. Richard Wagner, Esquire For the Petitioner George Kabusk, Esquire For the Respondent 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 June 17, 2002 Courtroom No. 1 9:32 a.m. (Whereupon, Commonwealth's Exhibit 1 and Petitioner's Exhibits 1 and 2 were marked for identification.) THE COURT: This is the time and place for a hearing on a license suspension appeal filed in the case of John Bradford Adcock v. Commonwealth of Pennsylvania, Department of TransDortation, at No. 02-1400 CIVIL TERM. We will let the record indicate that the Petitioner/Appellant, John Bradford Adcock, is present in court with his counsel, P. Richard Wagner, Esquire. The Commonwealth is represented today by George Kabusk, Esquire. This appeal is based on a case of Schneider v. Department of Transportation and Stiles v. Department of Transportation, both cases handed down by the Commonwealth Court. And the relief requested is a rescission of the portion of the suspension notice sent by the Department of Transportation to the Appellant which contains the ignition interlock system requisite to restoration of the motorist's license. The Schneider opinion was reported. I'm not sure that the Stiles opinion was a reported opinion. 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 However, the principle of Schneider is of record in the printed and published appellate court opinions. Mr. Kabusk. MR. KABUSK: Yes, Your Honor. What has been marked as Commonwealth's Exhibit No. 1 is a certified packet of documents under seal and certification. I provided a copy to Mr. Wagner. Subexhibit No. 1 is official notice of suspension dated and mailed 3/7/02, effective 1/15/02. That notice to Mr. Adcock informed him that his driving privilege was suspended pursuant to 1544 of the Vehicle Code as a result of his 11/30/2001 conviction of violating Section 3714 of the Vehicle Code, Careless Driving, on 9/2 of 2000. And that suspension was for 15 days. Subexhibit 2 is Report of Clerk of Courts of Cumberland County, convicted 12/3/01, seal attached to original. Subexhibit 3 is letter dated 2/28/02 to the Defendant acknowledging receipt of surrendered license to the Department. Your Honor, that appears to be in error in the Department's certification. Subexhibit 3 is a letter of suspension dated February 22nd, 2002, to Mr. Adcock, to inform him that his driving privilege was suspended, as authorized by Section 1532 of the Pennsylvania Vehicle Code as a result of his 11/30/2001 conviction of violating 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 Section 3731 of the Vehicle Code relating to Driving under the Influence on 9/2 of 2002, and that his driving privilege was suspended for a period of one year, effective 2/5/2002. Additionally, that notice of suspension informed the Petitioner of the ignition interlock requirement. That states, before your driving privilege can be restored, he was required by law to have all vehicles owned by him to be equipped with an ignition interlock system. This is as a result of his conviction for Driving under the Influence. He fails to comply with this requirement, his driving privilege would remain suspended for an additional one year, and he would receive more information regarding this requirement approximately 30 days before his eligibility date. Subexhibit No. 4 is Report of Clerk of Courts showing conviction for the 3731. Once again, the Department's certification is in error. Subexhibit 4 is the Report of the Clerk of the Courts for 3731, date of violation, 9/2/2000, date of conviction, 11/30/2001. And Subexhibit No. 5 is the driving record which appears in the file of the Defendant. My certification says Joel Robert Seitz, Jr. I believe that's in error also. It's John B. Adcock, operator's number 22379508, which date of birth is August 24th, 1948, and the 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 Bureau of Driving Licensing, Harrisburg, Pennsylvania. I respectfully request that the Department's certification be amended to reflect those errors and amendments, as I indicated. THE COURT: Mr. Wagner, do you have any objection to the amendment of the exhibit to reflect those corrections? MR. WAGNER: I'm just enjoying the fact that PennDOT admitted to errors in their record. I have no objection. THE COURT: All right. And do you have any objection to the admission of that item as corrected? MR. WAGNER: THE COURT: Exhibit 1 is admitted. No. Ail right. Commonwealth's (Whereupon, Commonwealth's Exhibit 1 was admitted into evidence.) MR. KABUSK: Your Honor, this is captioned as a license suspension appeal, and that February 22nd, 2002, notice was attached to that, and so the Department took that as an appeal pursuant to 1550. It appears that the Department restored the Petitioner on both the one-year suspension and the 15-day add-on, and I can confirm that later on today, but it has the paperwork indicating that he has been restored pending appeal. 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: Are counsel able to stipulate that the contents of the license suspension appeal petition, including the exhibits, are true and correct? MR. KABUSK: MR. WAGNER: THE COURT: Yes, Your Honor. Yes, Your Honor. All right. We'll accept that stipulation. And then, Mr. Wagner, did you want to put anything on the record regarding the issue of restoration of the Appellant's license? MR. WAGNER: I'd like to put two exhibits, if I might. One is the actual order, certified copy of the Order of Court dated 5th of February, 2002. Petitioner's Exhibit No. 2 is a certified record of-- from the Clerk of Courts concerning this case, indicating that there's no appeal filed. And just as a caveat, I note that PennDOT's Exhibit D-- I don't know what number it is, but it's a form DL-21 (9-00), has under block G from the Clerk of Courts of Cumberland County checked, Act 63 ignition interlock required, and it's checked no. This is dated February 6, 2002. So PennDOT's heretofore argument that they didn't have notice and couldn't have appealed, we respectfully point that out. As far as the license restoration is concerned, our position is, Your Honor, the order that this Court signed was an order that indicated 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 that PennDOT was to show cause why, if any, the Petitioner should not be granted relief in the form of removing the requirement for the installation of the ignition interlock, as determined by PennDOT in a letter of February 22nd, 2002. It's our position that, this particular issue is a restoration issue not a suspension issue under 1550, and therefore, our position is that, PennDOT should not have returned my client's driver's license, and that he should continue to receive credit from March 25th, 2002, and before that when he surrendered his license. Our discussion in chambers, our position very simply is, if PennDOT says, we get our license back pending appeal, if we are successful with this issue up through the court system, PennDOT's position is, we keep our license and we never suffer any suspension for the underlying conviction. And we don't believe that we have the privilege of driving in the Commonwealth of Pennsylvania at this point. We don't believe that PennDOT had the authority to return the-- restore the privilege of my client. This Court did not direct PennDOT to do that. And so for purposes of the record, I'm handing counsel for PennDOT the driver's license of my client which had heretofore been sent to him with the belief that my client 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 cannot drive, should not be able to drive, and that PennDOT should not have restored his privilege pending the outcome of this appeal. THE COURT: On what date did your client receive his license back in the mail from the Department of Transportation? MR. WAGNER: The envelope, Your Honor, is dated April the 1st, 2002, which is rather curious, because the letter is dated April 12th, 2002, and it says that, the privilege is restored, effective March 25th, 2002. So I would submit to the Court, probably sometime around the 13th or 14th of April, he got it back, if I assume that the letter was properly dated. THE COURT: All right. Mr. Kabusk, did you have a response to that tender of the license and to the statements made by Mr. Wagner? MR. KABUSK: Your Honor, pursuant to Section 1550, the Department is required to restore anyone pending appeal, unless it is for a suspension or revocation or recall or disqualification that is specifically accepted from the requirement that PennDOT restore any appeal. The Department restored him pending appeal pursuant to 1550. Second, the Court of Common Pleas has no authority to determine credit, and that's, I would cite to you the Yarbinitz case, 508 A.2d 641. And additionally, in 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 regard to the license, unless this Court specifically orders that he be suspended, pursuant to 1550, he's restored pending appeal. THE COURT: So you are indicating that you are not accepting the tender of the license? MR. KABUSK: I'll accept it, but it needs to be clear that this Court will-- is ordering him to be suspended, because presently it appears that he's restored pending appeal. THE COURT: All right. Well, I think counsel put their positions on the record, and I will take the matter of the ignition interlock system provision rescission under advisement and would propose entering the same order that we have entered in previous cases, pursuant to Schneider v. Commonwealth of Pennsylvania, Department of TransHortation, which is to rescind that portion of the suspension notice dealing with the interlock system.' MR. WAGNER: Would the Court entertain suspending my client's driving privilege, effective March 25th, 2002? Would you consider that, please? THE COURT: I don't think that issue is before me at this time, and I'm not prepared to do that. MR. WAGNER: May my client drive? THE COURT: Well, Mr. Kabusk apparently is indicating he may. I'm not prepared to rule on that issue, 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 because, as I say, I don't believe it is before me at this time. MR. WAGNER: As we said in our prior discussion, the issue, we don't know how we could get it in front of you, because it occurred as a result of the petition which you did not direct the restoration of the privilege, so we respectfully suggest, it is in front of the Court because PennDOT did not follow your order, did not do what you ordered. They unilaterally sent it back, and you did not order that. So we respectfully submit that, it is appropriately before the Court and would ask the Court to consider that in writing the opinion or the order in this case. THE COURT: Well, as I say, I'm not prepared to undertake that issue in this particular appeal. It may be a proper subject for another petition. Whether that petition should be to this Court or to the Department of Transportation, I'm not sure. MR. WAGNER: Thank you, Judge. THE COURT: Thank you very much. is adjourned. Mr. Wagner? And court Oh, did you want me to admit your exhibits, MR. WAGNER: Yes, please. THE COURT: Mr. Kabusk, do you have any 10 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 objection to the admission of Petitioner's Exhibits 1 and 2? MR. KABUSK: No objection, Your Honor. THE COURT: All right. Petitioner's Exhibits 1 and 2 are admitted. (Whereupon, Petitioner's Exhibits 1 and 2 were admitted into evidence.) THE COURT: For the record in the case, where is the license going to reside? MR. WAGNER: I hope not in Mr. Kabusk's hip pocket. Probably with PennDOT or with the file. MR. KABUSK: THE COURT: MR. KABUSK: THE COURT: MR. WAGNER: THE COURT: Well, I'll keep it in the file. In the PennDOT file? Yes. All right. Thank you, Your Honor. Thank you. (Whereupon, the proceeding concluded at 9:46 a.m.) 11 0 0~-240(~ {1] 2:10 1 {101 2:2,4-5 3:5,t 5:15-16 11:1,5-6 1/lS/O2 11/3o/2ool 12/3/Ol 12th 13th 14th 15 15 -day 1532 1544 1550 17 1948 1st 2 2 2/28/02 2/5/2002 2000 2002 223795O8 22nd 24th ~5th 3 3 3/7/02 3O 3714 731 4 [2] 4:16,18 508 5th 6 [11 6:19 63 641 9 9-00 9/2 [2] 3:13 4:2 Appropriately 9/2/2000 [11 ~o:12 i1] 4:20 Approximately 9 32 A Argument A Around A.m. 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COMMONWEALTH OF PENNSYLVAN DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING Appellee NO. 02-1400 CIVIL TERM 1774 CD 2002 The documents comprising the record have been numbered from No. 1 to 57, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 8-30-02 An additional copy of this certificate is enclosed. Please sign and date copy~ thereby acknowledging receipt of this record. Date Signature & Title CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a tree and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: JOHN BRADFORD ADCOCK, Appellant V. COMMONWEALTH OF PENNSYLVAN DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING Appellee NO. 02-1400 CIVIL TERM 1774 CD 2002 The documents comprising the record have been numbered from No. 1 to 57, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 8-30-02 Curtis ~. I~;ng: P~t~ ~ Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please sign and date copy~ thereby acknowledo, in~ receipt of this record. Date Signature & Title to No. COPY OF Among the Records and Proceedings enrolled in the court of Common Pleas in and for the CUMBERLAND county of 1774 CD 2002 02-1400 CIVIL Term, 19__ COMPLETE in the Commonwealth of Pennsylvania is contained the following: DOCKET ENTRY JOHN BRADFORD ADCOCK, Appellant Ve COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING Appellee SEE ATTACHED CERTIFIED DOCKET ENTRIES. '1 - 26 27 28 - 31 32 - 35 36 - 37 38 - 41 42 - 56 57 PYSS10 ~umberland County Prothonotaz. s Office Page 1 Civil Case Inquiry 2002-01400 ADCOCK JOHN BRADFORD (vs) COMMONWEALTH OF PA Reference No..: Filed ........ : 3/22/2002 Case T~oe ..... : APPEAL - LICENSE SUSP Time ......... : 8:07 Judgmeht ...... .00 Execution Date 0/00/0000 Judge Assigned: Disposed Desc.: Jury Trial .... Disposed Date. 0/00/0000 ............ Case Comments ............. Higher Crt 1.: 1774 CD 2002 Higher Crt 2.: General Index Attorney Info ADCOCK JOHN BRADFORD APPELLANT WAGNER P RICHARD 716-B WEST NORTH STREET CARLISLE PA 17013 COMMONWEALTH OF PENNSYLVANIA APPELLEE DEPARTMENT OF TPJ~NSPORTATION BUREAU OF DRIVER LICENSING P O BOX 68693 HARRISBURG PA 17104 Date Entries ............. FIRST ENTRY .............. 3/22/2002 APPEAL FROM SUSPENSION OF DRIVERS LICENSE 3/26/2002 ~U~f~O~ ~Z{i~EA~Ag:3iyA~H~N~-~ ~F.~_CUMBERLAND COUNTY MAILED 3/26/02 - ~ cuum~ d W~hEY OLER JR J COPIES ......................... 6/20/2002 ORDER OF COURTAND OPINIO~-i-6~6-~2~626~-i-~-~-~i~7~ .... LICENSE SUSPENSION APPEAL - AND FOR THE REASONS STATED IN ~O~oA~T~Go~P~O~E~T~EA~I~~_TO,THE.EKTENT THAT I ~ Z~bPU~TAT±ON S 2 22/02 NOTICE REQUIRING PETITION TO EQUIP HIS VEHICLES WITH IGNIT{ON INTERLOCK SYSTEM AS A PREREQUISITE TO SCHEDULED RESTORATION OF HIS DRIVING PRIVILEGE IS RESCINDED - BY THE COURT J WESLEY OLER JR J COPIES MAILED FILED ON 6/20/02 - BY TERRANCE M EDWARDS ................................................................... 7/31/2002 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1774 CD 2002 ..................................... 8/02/2002 STATEMENT OF MATTERS COMPLAINED OF ON-~£-i-~-~i~S~9-~-~£&--- ESQ FOR APPELLANT 8/o9/2oo2 ........................................................ TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J COPIE~-~£~6--- ~H~B~Tg ......... LAST ENTRY .............. Escrow Information , * Fees & Debits Be Bal P mts/Ad' End Bal * APPEAL LIC SUSP 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 ...... * End of Case Information ********************* TRUE COPY FROM RECORD In 'r~'tJmom/where,, I here uno ~ n~ ~ Commonwealth of Pennsylvania County of Cumberland SS: I. Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing m a full, true and correct copy of the whole record of the c,~se, therein stated, wherein onn ~rao~OrQ A~cock P~aintiff. and omm o~- PA, Dept Or Transp Bur of Dr Licensing Defendant , as th~ same remains of record before the said Court at No. -Q2mJ..,4~ of £iv~ ,] Term, A.D. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the~,eal of said Cour this 30~b 1, _ Oonrgo E. lqc~ffor President Judge of the Ni n-I-h Judicial District, composed of the County of Cumberland, do certify that Curtiq R. T,nng , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of _ c'rTbm-~Pr.aND the Commonwealth of Penn~,,'-.--' .... in <,.v,:ma, umy commtsstoned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made Commonwealth of Pennsylvania County of Cumberland 1, Curtis R. Long Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable George E. Hoffer, p. $. by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereoL and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto 3~rny hand and affixe0 the se I of said Co t ' JOHN BRADFORD ADCOCK, COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA · LICENSE SUSPENSION APPEAL LICENSE SUSPENSION APPEAl, AND NOW, comes Jolm B. Adcock, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and files the following license suspension appeal: 1. Petitioner, John B. Adcock, is an adult individual currently residing at 716-B West North Street, Carlisle, Cumberland County, Pennsylvania. 2. Respondent, Pennsylvania Depart~nent of Transportation, Bureau of Driver Licensing, has a mailing address at P.O. Box 68693, Harrisburg, Dauphin Connty, Pennsylvania. 3. The Petitioner herein, John B. Adcock, received a notice from PennDOT dated Februa~ 22, 2002, a copy of which is attached hereto, incorporated herein by reference, and marked as Exhibit A. 4. According to the notice from PennDOT, on page 2, Petitioner is required to install an ignition interlock before receiving the return of his liceuse after his period of suspension. 5. On or about February 5, 2002, the Petitioner herein was sentenced by the Court of Cmmnon Pleas of Cumberland County as a result of having pled guilty to driving under the influence. (Second offense for sentencing, however, first offense in that petitioner had a prior ARD.) 6. A copy of said sentencing is attached hereto, incorporated herein by reference and marked as Exhibit B. 7. Pursuant to the provisions of the sentencing order, no imposition of interlock was required by the Court of Co~mnon Pleas of Cumberland County. 8. No appeal was taken by the Commonwealth from the imposition of sentence on February 5, 2002. 9. The imposition of the interlock devise by PennDOT in its letter of February 22, 2002, is improper, invalid and should not be enforced for the following reasons: A. The Cottrt of Co~mnon Pleas has the sole power to impose the interlock, which it did not do; B. No appeal was taken from the sentence of the Court of Co~mnon Pleas of Cumberland County, dated Februm'y 5, 2002; and C.. Pe~mDOT has no unilateral attthority to impose an ignition interlock devise requirement if the trial court fails to do so. 10. As a result of the aforementioned, the Petitioner believes and therefore avers that the ignition interlock devise requirement is improper. 11. The letter from PennDOT is dated February 22, 2002, at a time after the Commonwealth Count ruled in Sclmeider v. Dept. of Transportation, on January 11, 2002, a copy of which is attached hereto and marked as Exhibit C, and in Stiles v. Dept.of Transportation~ dated February 4, 2002, a copy of which is attached hereto and marked as Exhibit D. 12. Because PennDOT failed to remove the ignition interlock requirement in its notice of Februm-y 22, 2002, to Petitioner Adcock, after a time in which they were expressly aware that the Commonwealth Court had ruled as against PennDOT, PennDOT's, the Respondent herein, actions are unreasonable, vexatious, unjustified, and therefore, Petitioner is entitled to counsel fees as against PennDOT. WHEREFORE, Petitioner requests this Court to grant the relief as requested. Respectfully submitted, Mancke, Wagner, Hershey & Tully · ~.q6. ~agmer, Esquire ~ 4:-D7~3103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for Petitioner Date: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: FEBRUARY 22, 2002 JOHN B ADCOCK WID # 020466114439707 001 716 B WEST NORTH STREET PROCESSING DATE 02/15/2002 DRIVER LICENSE ~ 22379508 CARLISLE PA 17013 DATE OF BIRTH 08/24/1948 LICENSE IN BUREAU Dear MR. ADCOCK: This is an 0~icla1 Notlce of the Suspension of your Driving Privilege as authorized by Section 1552B of the Pennsylvania Vehicle Code. As a result of your 11/50/2001 conviction of violating Section 5751 of the Vehicle Code DRIVING UNDER INFLUENCE on 09/02/2000: Your driving privilege is SUSPENDED ~o~ a PePiod of 1 YEAR(S) e~ectlve 02/05/2002 at 12:0! a.m. WARNING: If you are convicted of driving while your license is suspended/revoked the penalties will be a MINIMUM of 90 days imprisonment AND a 1,000 Line AND Your driving Privilege will be suspended/revoked for a MINIMUM ! Year period Before PennDOT can restore your driving privilege, you mus[ follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. YOU should ~o110~ ALL lnstPuctlons ve~ carefully. Even if you have sePved a11 the tlme on the suspens~on/pevocat~on, we cannot pestope youP dPtvlng PeiviZege untll all the PequiPements ape satisfied. 020~6611~39707 PRISON RELEASE REQUIREMENT (ACT151) The Court of CUMBERLAND CTY, Court Number OOqlg~ Court Term 2001 has sentenced you to serve a prison term for this violation. Pursuant to Section 1541(a.1) of the Vehicle Code, you will not receive credit for this suspension/revocation or any additional suspension/revocation until you complete your prison term. The Court must certify your completion to PennDOT. You may wish to contact your probation officer and/or the Court after your release to make sure that PennDOT is properly notified. COURT ORDER TREATMENT PROGRAM (ACT 122) Pursuant to Section 1548(d) of the Vehicle Code, the Court of CUMBERLAND CTY , Court Number OOqlg, Court Term 2001 has ordered you to attend a treatment program for alcohol or drug addiction, As a result of the court order, this suspension/revocation shall remain in effect until the Department is notified by the above Court that you have successfully completed treatment and you are otherwise eligible for restoration of your driving privilege. 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 amoun~ due is lA,ted 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. 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. 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. 02046611qq39707 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. ImpoPtant: 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 CCivil Division) within 30 days of the mail date, FEBRUARY 22, 2002, of this letter. Zf you file an appeal in the County CcuPt, the CouPt 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 OFFZCZAL NOTZCE OF SUSPENSZON. Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing 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 WEB SITE ADDRESS www.dot.state.pa.us 1-800-228-0676 717-591-6191 7 COMMONWEALTH JOHN BP~ADFORD ADCOCK OTN: L071153-5 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 01-0419 CRIMINAL TERM : CHARGE: (1) DRIVING UNDER THE : INFLUENCE : (2) CARELESS DRIVING : (SUMMARY) : (3) DRIVING ON RIGHT : SIDE OF ROADWAY : (SUMMARY) : AFFIANT: PTL. KEVIN ROLA2qD IN RE: SENTENCING ORDER OF COURT AND NOW, this 5th day of February, 2002, the Defendant, John Bradford Adcock, now appearing in court for sentence with his privately retained counsel, P. Richard Wagner, Esquire, and having previously entered pleas of guilty as charged at Count 1 to Driving under the Influence, a misdemeanor of the second degree, a second offense overall and a second offense for mandatory sentencing purposes, at Count 2 to Careless Driving, a summary offense, and at Count 3 to Driving on Right Side of Roadway, receipt it relies, Defendant fine of also a summary offense, and the Court being in of a presentence investigation report, upon which the sentence of the Court is as follows: At Count t, Driving under the Influence, the is sentenced to pay the costs of prosecution, a $300.00, a $100.00 CAT fund surcharge, and a $t0.00 Emergency Medical Services Fund Assessment, imprisonment in the Cumberland County Prison for a period of not less than 30 days nor more than 23 months. Conditioned upon the Defendant's reporting to the prison at the time provided for hereinafter, and upon his reporting without alcohol or unlawful controlled substances in his system, upon his being and remaining on good behavior while in the prison, upon his being and remaining on good behavior thereafter, and upon his complying with all written directions of his parole officer, he shall be automatically paroled at the expiration of his minimum sentence of 30 days. Prior to obtaining his Pennsylvania and to undergo operating privileges, the Defendant must pay all court-imposed fines and costs, and he must pay for and successfully complete an alcohol treatment program. release is authorized for the Defendant. At Count 2, Careless Driving, is sentenced to pay the costs of prosecution, a fine of $25.00, Medical Work the Defendant a $3o. 00 Services Fund Assessment. At Count 3, Driving on Right Roadway, the Defendant prosecution, a fine of $25.00, and a $10.00 Emergency Medical CAT fund surcharge, and a $10.00 Emergency Side of is sentenced to pay the costs of a $30.00 CAT fund surcharge, Services Fund Assessment. person of Commonwealth and Defendant the service of the shall be on Monday, Pursuant to an agreement of counsel in the Michael W. Mervine, Esquire, on behalf of the and his counsel, commencement of term of imprisonment provided for herein February 11, 2002, at 9:00 a.m., at which time he shall present himself to the Cumberland County Prison authorities without further Order of Court. By the Court, Michael W. Mervine, Esquire Assistant District Attorney f~~ard Wagner, Esquire For the Defendant Probation Sheriff Victim Witness CCP :mae Jj~Wesley O1,~7~ ~ /0 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Albert John Schneider Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : No. 1513 C.D. 2001 : Argued: December 4, 2001 : BEFORE: HONORABLE DORIS A. SMITH, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION BY JUDGE PELLEGRINI FILED: January 11, 2002 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ~PennDOT) appeals from an order of the Court of Common Pleas of Bucks County (trial court) sustaining Albert John Schneider's (Schneider) appeal from PennDOT's requirement that he install an ignition interlock device on all vehicles owned by him before his driving privilege could be restored. The Ignition Interlock Device Act (Act)~ was enacted in September 2000 and provides that a court must order repeat DUI offenders to install an ~ 42 Pa. C.S. §§7001-7003. The Ignition Interlock Device Act became effective September 30, 2000, except for Section 7002(a), which became effective September 30, 2001. ignition interlock device2 on all vehicles they own before their driving privileges may be restored, and that a court may use its discretion regarding whether to impose an ignition interlock device on first time offenders. Under the Act, an Accelerated Rehabilitative Disposition (ARD) is considered a first offense.3 2 An ignition interlock device is a system approved by PennDOT that prevents a vehicle from being started or operated unless the operator first provides a breath sample indicating that the operator has an alcohol level of less than .025%. 42 Pa. C.S. §7001. Section 7002 of the Act provides that: (a) First offense.--In addition to any other requirements imposed by the court, where a person has been convicted for a first offense under 75 Pa. C.S. §3731 (relating to driving under influence of alcohol or controlled substance), the court may order the installation of an approved ignition interlock system on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (b) Second or subsequent offense.--In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa. C.S. §3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (c) Alternative disposition--For the purpose of this section, acceptance of Accelerated Rehabilitative Disposition, an adjudication of delinquency or a consent decree under Chapter 63 (Footnote continued on next page...) 2 /4 In 1984, Schneider was arrested for driving under the influence (DUI) in violation of 75 Pa. C.S. §3731(a) and was accepted into an ARD program. Schneider's operating privilege was suspended for one month as a condition of ARD. On May 7, 2000, Schneider was arrested again for DUI and pleaded guilty to the offense on October 25, 2000, before the trial court which resulted in a conviction under 75 Pa. C.S. §373 l(a). Schneider was sentenced to serve not less than 48 hours in the Bucks County prison and pay costs and a $300 fine. Schneider was required to surrender his driver's license to the court pursuant to 75 ]Pa. C.S. §1540(a) which forwarded the license to PennDOT to begin Schneider's credit on his one~year suspension. On December 7, 2000, PennDOT notified Schneider that his operating privilege had been suspended for one year, and he was required under the Act to have all vehicles owned by him equipped with an ignition interlock device before his driving privilege could be restored or else his license would be suspended for an additional year. Schneider filed an appeal challenging PennDOT's imposition (continued...) (relating to juvenile matters) or any other form of preliminary disposition of any charge brought under 75 Pa. C.S. §3731 shall be considered a first conviction. (d) Department approval--An ignition interlock system required to be installed under this section must be a system which has been approved by the department. The department's approval of ignition interlock systems shall be published in the Pennsylvania Bulletin. 42 Pa. C.S. §7002. 3 of the ignition interlock requirement upon the restoration of his license at the end of one year. Schneider contended that his 2000 DUI was his first DUI conviction and he was not subject to the ignition interlock requirement. A de novo hearing was held and PennDOT admitted into evidence a packet of documents, including a copy of the Bucks County Clerk of Courts' certification of Schneider's 2000 DUI and a certification of his official driving record showing his 1984 ARD. The trial court granted Schneider's appeal and rescinded the ignition interlock requirement from the restoration of his operating privilege. The trial court specifically found that Schneider's 2000 DUI offense was his first DUI offense,4 and in its opinion noted that while the ignition interlock requirement is mandatory for second and subsequent DUI offenders, trial courts are allowed discretion in imposing the requirement upon first time offenders.5 Finally, the trial court found that Section 7002 allowed only a trial court to impose the ignition interlock requirement and that PennDOT had no independent authority to impose such a requirement absent a court order. PennDOT then filed the instant appeal. 6 4 In fact, footnote 1 of the trial court's opinion notes that "[t]he offense occurred on May 7, 2000 and was Licensee's first offense under 3731." 5 In its opinion, the trial court also relied upon the fact that Section 7002(a), pertaining to first time offenders, became effective on September 1, 2001, and Schneider was not convicted until October 25, 2000. However, only Section 7002(a) became effective on that date and the rest of the statute was effective as of September 1, 2000. 6 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence, whether errors of law have been committed or whether the trial court's determination demonstrates a manifest abuse of discretion. 2ktazza v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 692 A.2d 251 (Pa. Cmwlth. 1997), petition for allowance of appeal denied, 551 Pa. 172, 709 A.2d 887 (199 8). 4 PennDOT contends that it has an independent mandate under the Act to impose ignition interlock requirements upon repeat DUI offenders regardless of whether the trial court ordered installation.? Sections 7002(b) and 7003(t) of the Act prohibit PennDOT from restoring the operating privilege of any repeat DUI offender until a court certifies that all vehicles owned by the offender have had the ignition interlock device installed. 42 Pa. C.S. §§7002(b) and 7003(1). Although the trial court's failure to order the device may have been because it was unaware of Schneider's 1984 offense, PennDOT claims it has an independent mandate from the General Assembly to ensure that the device is installed. 7 PermDOT also contends that a court of common pleas lacks subject matter jurisdiction to adjudicate a driver's challenge to the imposition of an ignition interlock requirement upon the restoration of the driver's operating privilege because the ignition interlock requirement is not a final order or determination and, as such, does not fall under 42 Pa. C.S. §933(a)(ii) (appeals from government agencies) and 75 Pa. C.S~ §1550(a) (judicial review). Despite the trial court's determination that failure to comply with the ignition interlock requirement is a continuation of a suspension and can be the subject of a statutory appeal under the above provisions, PennDOT contends that it is actually another restoration requirement such as the payment of a restoration fee or providing proof of current financial responsibility and cannot be the subject of a statutory appeal. We agree with the trial court that failure to comply with the ignition interlock device requirements is a continuation of a suspension of driving privileges because the failure to install the ignition interlock device will result in the driver's license being suspended for an additional year. See 75 Pa. C.S. §7003(5). Under 75 Pa. C.S. §1550(a), "[a]ny person who has been denied a driver's license, whose driver's license has been canceled or whose operating privilege has been recalled, suspended, revoked or disqualified by the department shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure) [which provides that the court of common pleas shall have jurisdiction]..." Therefore, this appeal was properly taken to the Bucks County Court of Co~rmaon Pleas. 5 Although Schneider had two DUI offenses and pursuant to Section 7002(b), the trial court was required to order installation of an ignition interlock device,8 that failure does not mean that PennDOT has been given authority to override the trial court's order and require installation. Section 7002 provides that only "the court shall order the installation of an approved ignition interlock device .... "42 Pa. C.S. §7002(b). (Emphasis added). Because this provision gives a court the sole authority, PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so. If the trial court fails to impose this requirement in a criminal proceeding, the district attorney can appeal the trial court's failure to do so as it would if the trial court failed to impose any other mandatory sentence. 9 8 Under 75 Pa. C.S. §3731(e)(1), the imposition and severity of penalties for DUI offenses is based upon the frequency of previous offenses under Section 3731 in the past seven years. However, there is no reference in the Act to this provision. The Act specifically refers to f'rrst offenses in Section 7002(a) and second or subsequent offenses in Section 7002(b) without reference to a time limit that would preclude consideration of a previous offense in determining whether a current offense is a "second or subsequent offense." Nothing in this provision limits the period when the offense occurred to be considered a second offense. 9 In Pennsylvania State Police v. Court of Common Pleas of Bucks County, 615 A.2d 946 (Pa. Cmwlth. 1992), the Court of Common Pleas ordered the State Police to expunge an arrest and conviction record. The State Police challenged the expungement order to avoid a contempt of court order and argued that it had an independent mandate under 18 Pa. C.S. §9111 to collect and maintain complete and accurate criminal history record information. Id. This Court held that the State Police lacked standing to challenge the order because there are no affirmative duties placed upon the State Police in the expungement process except to comply with court- ordered expungements. Id. Similarly, here, PennDOT is charged with restoring driving privileges but not with imposing ignition interlock devices, and, therefore, it may not independently order imposition of the devices. 6 Accordingly, because the trial court has jurisdiction over driver license suspension appeals and because the plain language of the Act does not permit PennDOT to have independent authority to impose installation of an ignition interlock device, the decision of the trial court is affirmed. DAN PELLEGRINI, JUDGE 1N THE COMMONWEALTH COURT OF PENNSYLVANIA Albert John Schneider Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : No. 1513 C.D. 2001 ORDER AND NOW, this 11th day of January, 2002, the Order of the Court of Common Pleas of Bucks County dated June 12, 2001, at No. 00-8145-14-6, is affirmed. DAN PELLEGRINI, JUDGE IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alberta G. Stiles Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : No. 2001 C.D. 2001 : Submitted: December 28, 2001 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: February 4, 2002 The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDot) appeals from an order of the Court of Common Pleas of Bucks County (trial court) sustaining the appeal of Alberta G. Stiles (Licensee) from PennDot's requirement that she install an ignition interlock device on all vehicles owned by her before her driving privilege could be restored. The Ignition Interlock Device Act (Act)~ was enacted in September 2000 and provides that a court must order repeat driving under the influence (DUI) ~ 42 Pa. C.S. §§7001-7003. The Act became effective September 30, 2000, except for Section 7002(a), which became effective September 30, 2001. offenders to install an ignition interlock device2 on all vehicles they own before their driving privilege may be restored, and that a court may use its discretion regarding whether to impose an ignition interlock device on first time offenders. Under the Act, an Accelerated Rehabilitative Disposition (AP, D) is considered a first offense? 2 An ignition interlock device is a system approved by PennDot that prevents a vehicle from being started or operated unless the operator first provides a breath sample indicating that the operator has an alcohol level of less than .025%. 42 Pa. C.S. §7001. 3 Section 7002(a) of the Act provides: (a) First offense. In addition to any other requirements imposed by the court, where a person has been convicted for a first offense under 75 Pa. C.S. §3731 (relating to driving under influence of alcohol or controlled substance), the court may order the installation of an approved ignition interlock system on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of any approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (b) Second or subsequent offense. In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa. C.S. §3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (Footnote continued on next page...) 2 In 1986, Licensee was arrested for DUI in violation of 75 Pa. C.S. §3731(a) and was accepted into an ARD program. Her operating privilege was suspended for one month as a condition of ARD. On September 9, 2000, Licensee was again arrested for DUI and pled guilty to the offense on February 14, 2001. Licensee was sentenced to serve not less than 48 hours and not more than 12 months in the Bucks County prison commencing February 22, 2001, and pay costs and a $300 fine. The Bucks County Clerk of Courts notified PennDot of Licensee's conviction, and by official notice dated March 19, 2001, PennDot notified Licensee that her operating privilege had been suspended for one year. The notice also stated that Licensee would be required to have all vehicles owned by her to be equipped with an approved ignition interlock system prior to the restoration of her driving privilege and failure to do so would result in her operating privilege remaining suspended for an additional year. Licensee filed an appeal with the trial court challenging PennDot's imposition of the ignition interlock requirement upon the restoration of her licensee at the end of one year. A de novo hearing was held after which the trial court granted Licensee's appeal. Specifically, the trial court found that Licensee's DUI (continued...) (c) Alternative disposition. For the purpose of this section, acceptance of Accelerated Rehabilitative Disposition, an adjudication of delinquency or a consent decree under Chapter 63 (relating to juvenile matters) or any other form of preliminary disposition of any charge brought under 75 Pa. C.S. §3731 shall be considered a first conviction. offense was her first as her previous ARD was expunged after seven years4 and noted that while the ignition interlock requirement was mandatory for second and subsequent DUI offenders, trial courts were allowed discretion in imposing the requirement upon first time offenders.5 Additionally, the trial court found that Section 7002 only allowed a trial court to impose the ignition interlock requirement, and PennDot had no independent authority to impose such a requirement absent a court order. This appeal by PennDot followed.6 PennDot makes two arguments on appeal: 1) that the trial court lacked subject matter jurisdiction to adjudicate whether Licensee's challenge to PennDot's imposition of the ignition interlock requirement upon the restoration of her driving privilege; and 2) that PermDot had an independent mandate to impose an ignition interlock requirement upon repeat DUI offenders when the trial court failed or refused to comply with statutory mandate. These identical arguments were previously made by PennDot in Schneider v. Commonwealth, Department of 4 See 75 Pa. C.S. §1534(b) which provides that when a person who is an'ested for DUI accepts ARD, PennDot shall maintain a record of the acceptance of ARD for seven years and the record shall not be expunged prior to that date. See also Commonwealth v. M.M.M., 779 A.2d 1158 (Pa. Super. 2001). s In its opinion, the trial court relied upon the fact that Section 7002(a) became effective on September 30, 2000, and Licensee was not convicted until February 14, 2001. However, only Section 7002(a) became effective on that date and the rest of the statue was effective as of September 1, 2000. 6 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence, whether errors of law have been committed or whether the trial court's determination demonstrates a manifest abuse of discretion. Mazza v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 692 A.2d 251 (Pa. Cmwlth. 1997),petition for allowance of appeal denied, 55I Pa. 172, 709 A.2d 887 (1998). 4 Transportation, Bureau of Driver Licensing, __ A.2d January 11, 2002), wh~re we affirmed the trial court on both issues. need not reiterate our previous decision, for the same reasons Schneider, the order of the trial court is affirmed. (Pa. Cmwlth., filed Because we set forth in DAN PELLEGR1NI, JUDGE IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alberta G. Stiles Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : No. 2001 C.D. 2001 : ORDER AND NOW, this 4t~h day of February, 2002, the order of the Court of Common Pleas of Bucks County dated July 24, 2001, is affirmed. DAN PELLEGRINI, JUDGE CERTIFICATE OF SERVICF I, DEBRA K. SPINNER, Secretary in the law firm of MANCKE, WAGNER, HERSHEY & TULLY do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: George Kabusk, Esuqire Office of Chief Counsel Department of Transportation 1101 South Front Street Harrisburg, PA 17104 Debra K. Spinne~r, Secretary MANCKE, WAGNER, HERSHEY & TULLY 2233 North Front Street Harrisburg, PA 17110 P. Richard Wagner, Esquire Attorneys for John B. Adcock " .MAR 5 2002 JOHN BRADFORD ADCOCK, V COMMONWEALTH OF PA · IN THE COURT OF COMMON PLEAS ' CUMBERLAND COUNTY, PENNSYLVANIA : NO: Oe,,D_ Distribution: DEPARTMENT OF TRANSPORTATION : LICENSE SUSPENSION APPEAL ORDER AND NOW, this ~.~/Jc, day of IL{ z3 a hearing is set for the/?~{~ day o~'~ ,2002, at r_~]~) o'clock No. / of the Cumberland County Courthouse, Carlisle, Cumberland County, Courtroom Pennsylvania, for PennDOT to show cause why, if any, the Petition of Petitioner should not be granted in the Ibrm of removing the requirement for the installation of the ignition interlock as determined by PennDOT in a letter of February 22, 2002· Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least sixty (60) days prior to the date of the hearing BY THE COURT: 2002, upon Petition of John B. Adcock, Prothonotary's Office ,..'Office of Chief Counsel, Penn DOT 1101 S. Front St., Harrisburg, PA 17104-2516 ..."P Richard Wagner, Esquire 2233 North Front St., Harrisburg, PA 17110 o17 JOHN BRADFORD ADCOCK, Petitioner COMMONWEALTH OF : PENNSYLVANIA, : DEPARTMENT OF : TRANSPORTATION, BUREAU: OF DRIVER LICENSING, : Respondent : 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL NO. 02-1400 CIVIL TERM IN RE: PETITIONER'S LICENSE SUSPENSION APPEAL BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., June 20, 2002. Petitioner appeals from an action taken by Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing (hereinafter Department of Transportation), and requests that this court rescind that part of a license suspension notice that required, as a prerequisite to scheduled restoration of Petitioner's driving privilege, that Petitioner equip each of the vehicles owned by him with an ignition interlock system. For the reasons stated in this opinion, Petitioner's appeal will be sustained. DISCUS SION In an underlying criminal case, Petitioner, having pled guilty on November 30, 2001, to driving under the influence, 1 was sentenced to pay the costs of prosecution and a fine, to undergo a term of imprisonment of thirty days to twenty-three months in the county prison, and, as a prerequisite to restoration of his driving privilege, to complete an 1 Petitioner also pled guilty to careless driving, a summary offense, and driving on right side of roadway, a summary offense, for which he was sentenced to pay costs of prosecution and fines. Order of Ct., Feb. 15, 2002, Commonwealth v. Adcock, No. 00-2381 Criminal Term (Ct. Com. Pl. Cumberland County Feb 15, 2002) (Oler, J.); Pet'r.'s Ex. 1, Hr'g., June 17, 2002 (hereinafter Pet'r.'s Ex. __ ). alcohol treatment program.2 The sentencing court did not include a requirement that Petitioner install ignition interlock systems in his vehicles.3 Subsequent to this sentencing order, the Department of Transportation sent Petitioner a suspension notice dated February 22, 2002, detailing prerequisites to restoration of his driving privilege. In addition to the requirement in the sentencing order, the Department of Transportation also required, as a prerequisite to scheduled restoration, that Petitioner install an approved ignition interlock system in each vehicle that he owned.4 The notice stated, in relevant part, as follows: 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. If you fail to comply with this requirement, your driving privilege will remain suspended for an additional year.s On March 22, 2002, Petitioner filed a license suspension appeal from this aspect of the notice.6 A hearing was held on Petitioner's appeal on June 17, 2002. In Schneider v. Commonwealth, Department of Transportation, No. 1513 C.D. 2001, 2001 WL 1692244 (Pa. Commw. Ct., Jan. 11, 2002), the Commonwealth Court stated: Although [the petitioner] had two DUI offenses and pursuant to Section 7002(b), the trial court was required to order installation of an ignition interlock device, that failure does not mean that PennDOT has been given authority to override the trial court's order and require installation. Section 7002 provides that only "the court shall order the installation on an approved ignition interlock device...." Because this provision gives a court 2 Order of Ct., Feb. 15, 2002, Commonwealth v. Adcock, No. 00-2381 Criminal Term (Ct. Com. Pl. Cumberland County Feb. 15, 2002) (Oler, J.); Pet'r's Ex. 1. 3 Id. In Commonwealth v. Mockaitis, 50 Cumberland L.J. 184 (2001), a challenge to the constitutionality of the statutory ignition interlock system requirement was upheld by the Honorable Edgar B. Bayley of this court. 4 Pet'r.'s License Suspension Appeal, filed Mar. 22, 2002 (notice from Department of Transportation to Petitioner, dated Feb. 22, 2002). s/d. (notice from Department of Transportation to Petitioner, dated Feb. 22, 2002). 61d. the sole authority, PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so. Id. at *2 (footnotes and citations omitted) (emphasis omitted). Accordingly, the Commonwealth Court, in Schneider, affirmed the trial court's order rescinding the ignition interlock system provision in the suspension notice issued to the petitioner by the Department of Transportation. Id. On this issue, Schneider is indistinguishable from the present case and, accordingly, the same result must obtain herein. For the foregoing reasons, Petitioner's appeal will be sustained, without prejudice to Respondent's right to pursue a challenge to this holding, as prescribed by Schneider, on appeal. ORDER OF COURT AND NOW, this 20th day of June, 2002, upon consideration of Petitioner's License Suspension Appeal, and for the reasons stated in the accompanying opinion, the appeal is sustained to the extent that the portion of the Department of Transportation's February 22, 2002, notice requiring Petitioner to equip his vehicles with ignition interlock systems, as a prerequisite to scheduled restoration of his driving privilege, is rescinded. BY THE COURT, /s/J. Wesley Oler, Jr. J. WesleyOler, Jr., J. P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17011 Attorney for Petitioner George Kabusk, Esq. Pennsylvania Department of Transportation 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent JOHN BRADFORD ADCOCK, Petitioner 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL COMMONWEALTH OF : PENNSYLVANIA, : DEPARTMENT OF : TRANSPORTATION, BUREAU: OF DRIVER LICENSING, : Respondent : NO. 02-1400 CIVIL TERM IN RE: PETITIONER'S LICENSE SUSPENSION APPEAL BEFORE OLER J. ORDER OF COURT AND NOW, this 20th day of June, 2002, upon consideration of Petitioner License Suspension Appeal, and for the reasons stated in the accompanying opinion, the appeal is sustained to the extent that the portion of the Department of Transportation's February 22, 2002, notice requiring Petitioner to equip his vehicles with ignition interlock systems, as a prerequisite to scheduled restoration of his driving privilege, is rescinded. BY THE COURT, p. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Petitioner George Kabusk, Esq. Pennsylvania Department of Transportation 1101 S. Front Street Harrisburg, PA 17104-2516 Attorney for Respondent J/j/Wesley Ole~t~., J. ' ' COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRWER LICENSING, Appellant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 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 June 20, 2002. 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. TERRANCE M. EDWARDS Assistant Counsel Appellate Section 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: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 Civil Term Request for Transcript A notice of appeal having been filed in this matter, the official 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. TERRANCE M. EDWARDS Assistant Counsel Appellate Section 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: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JOHN B. ADCOCK, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } } 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-1400 Civil Term Proof of Service I hereby certit~ that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge J. Wesley Oler, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 P. Richard Wagner, Esquire Att. for Appellee Adcock 2233 North Front Street Harrisburg, PA 17110 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: July 18, 2002 PYS5~0 2002-01400 Reference No..: Cumberland County Prothonotary's ~ffice Page 1 Civil Case Inquiry ADCOCK JOHN BP~ADFORD (rs) COMMONWEALTH OF PA Filed ........ : 3/22/2002 Case T~rpe ..... : APPEAL - LICENSE SUSP Time ......... : 8:07 Ju~gmeh% ....... 00 Execution Date 0/00/0000 Juage Assigned: Jury Trial .... Disposed Date 0/00/0000 Disposed Desc.: Higher Crt 1.: ............ Case Comments ............. Higher Crt 2.: ******************************************************************************** General Index Attorney Info ADCOCK JOHN BRADFORD APPELLANT WAGNER P RICHARD 716-B WEST NORTH STREET CARLISLE PA 17013 COMMON-WEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING P O BOX 68693 HARRISBURG PA 17104 APPELLEE * Date Entries * ............. FIRST ENTRY .............. 3/22/2002 APPEAL FROM SUSPENSION OF DRIVERS LICENSE IS SET FOR 6/17/02 AT 9:30 AM IN CR 1 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES ..................................................... 6/20/2002 ORDER OF COURT AND OPINION - DATED 6/20/02 - IN RE PETITIONER'S LICENSE SUSPENSION APPEAL - AND FOR THE REASONS STATED IN ACCOMPANYING OPINION THE APPEAL IS SUSTAINED TO,THE.EX~T_~_F~_~_ THE PROTION OF THE DEPARTMENT OF TRANSPORTATION S 2/22/U2 REQUIRING PETITION TO EQUIP HIS VEHICLES WITH IGNITION INTERLOCK SYSTEM AS A PREREQUISITE TO SCHEDULED RESTORATION OF HIS DRIVING PRIVILEGE IS RESCINDED - BY THE COURT J WESLEY OLER JR J COPIES MAILED .............. LAST ENTRY ............ * Escrow Information * * Fees & Debits Be Bal P ts/Ad' End Bal * APPEAL LIC SUSP 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 ...... 5.5o .oo * End of Case Information * 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. Wendy C/~nger / / ~ ~ Of fici~urt R~porter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. DateU ' IN THE COMMONWEALTH John B. Adcock Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: COURT OF PENNSYLVANIA · Bio. l??4C.D. 2002 · Submitted: December 20, 2002 HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENIS-,E L. COHN, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: February 25, 2003 The Department of Transportation, Bureau of Driver Licensing (Department) appeals from a decision of the Court of Common Pleas of Cumberland County that sustained the appeal of John B. Adcock (Adcock) from the requirement that he install an ignition interlock device on all vehicles owned by him before his driving privileges could be restored. The Department imposed this requirement pursuant to Sections 7001 - 7003 of the Judicial Code, 42 Pa. C.S. §§7001 - 7003, following Adcock's one-year suspension under Section 1532(b)(3) of the Vehicle Code, as amended, 75 Pa. C.S. §1532(b)(3). That suspension resulted from Adcock's second conviction for violating Section 3731 of the Vehicle Code, as amended, 75 Pa. C.S. §3731, relating to driving under the influence of alcohol (DUI), and fell within the ambit of Section 7002(b) of the Judicial Code, 42 Pa. C.S. §7002(b), requiring courts to order the installation of an ignition interlock system on each motor vehicle owned by repeat DUI offenders, effective upon restoration of driving privileges. The Department contends that it has an independent mandate under Section 7003 to impose ignition interlock requirements upon repeat DUI offenders regardless of whether the trial court ordered installation. On November 30, 2001, Adcock was convicted in the trial court of his second DUI offense and given the mandatory one-year operating privilege suspension. The trial court did not order the installation of an ignition interlock system on Adcock's vehicles. On February 22, 2002, the Department notified Adcock of the one-year suspension and that he was required by law to have his vehicles equipped with an ignition interlock system in order for his operating privilege to be restored at the end of the suspension period or face an additional year of suspension. Adcock appealed the interlock system requirement. At a June 17, 2002 de novo hearing before Judge J. Wesley Oler, Jr., the Department stipulated to the factual averments made in Adcock's appeal petition and offerred into evidence a certified copy of the certification of Adcock's underlying DUI conviction. Adcock offered into evidence a copy of the February 5, 2002 court order that resulted in the suspension of his operating privileges but did not order installation of an ignition interlock device, and he presented a certified record from the Cumberland County Clerk of Courts attesting to the fact that no appeal had been filed in Adcock's criminal DUI case. The trial court sustained Adcock's appeal, holding that under Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), the Department has no unilateral authority to require an interlock system. This Court's review of the trial court's order is limited to determining whether the trial court's 2 findings of fact are supported by competent evidence and whether the trial court has committed an error of law or an abuse of discretion. Schneider. The Department argues that it has an independent mandate under Section 7003 of the Judicial Code to impose ignition interlock requirements upon repeat DUI offenders regardless of whether the trial court ordered installation. Although the Department acknowledges this Court's contrary holding in Schneider, which was reaffirmed in Turner v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d 671 (Pa. Cmwlth. 2002), it maintains that those cases were wrongly decided. Inviting this Court to revisit the issue, the Department urges a reinterpretation of the relevant statutes. The Department notes that Section 7002 requires installation of ignition interlock systems on all vehicles owned by the driver, and Section 7003 requires the driver to obtain a restricted license that limits that person to the operation of vehicles equipped with the interlock system, regardless of ownership. Therefore, it is the driver's responsibility to apply for a restricted license regardless of whether the court ordered installation 6f the ignition interlock system. Adcock argues that it is well settled that Sections 7001 - 7003 of the Judicial Code confer upon the court of common pleas sole authority to require the installation of an ignition interlock system. Lacking a court order, the Department has no authority to require installation of the interlock ignition system. Adcock cites Schneider and Turner as already having decided this issue. The Court agrees with Adcock that the trial court correctly relied on Schneider in sustaining Adcock's appeal and in rescinding the Department's requirement that Adcock equip his vehicle with the ignition interlock system as a prerequisite to the restoration of his driving privileges. In Schneider the trial court did not impose an ignition interlock requirement on a driver twice convicted of DUI. This Court held that the trial court's failure to order installation of the system did not give the Department the authority to override the trial court's order by requiring installation of the device. In Turner this Court specifically rejected the Department's assertion that it had an independent mandate under Section 7003 of the Judicial Code to impose ignition interlock requirements upon a driver. The issues are the same in the present case. The trial court did not order the imposition of the ignition interlock system in this case; hence, the Department had no requirement. Accordingly, the order Cumberland County is affirmed. power to unilaterally impose such a of the Court of Common Pleas of DORIS A. SMITH-RIBNER, Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John B. Adcock, Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 1774 C.D. 2002 ORDER AND NOW, this 25t:h day of February , 2003, the order of the Court of Common Pleas of Cumberland County is hereby affirmed. DORIS A. SMITH-RIBNER, Judge Ce~ied from the Record FEB ~ 5 Z003 e. nd Order Exit IN THE COMMONWEALTH COURT OF PENNSYLVANIA John B. Adcock Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, BEFORE: Appellant No. 1774 C.D. 2002 Submitted: December 20, 2002 HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENI~E L. COHN, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE COHN FILED: February 25, 2003 Respectfully, I dissent in accordance with my position as stated in Watterson v. Department of Transportation Bureau of Driver Licensing, No. 1055 C.D. 2002 filed February 7, 2003). The Bureau maintains, correctly in my view, that it has an independent mandate under Section 7003(5) of the Judicial Code, 42 Pa.C.S. {}7003, to refuse to reinstate operating privileges. That is an issue not decided in Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), or its progeny. Section 7003 of the Judicial Code states: Additional driver's license restoration requirements In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. {} 1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance), or a similar out- of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. § 1951(d) (relating to driver's license and leamer's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. § 1951 (d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 or a similar out-of- State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1). (Emphasis added.) It is imperative to recognize that, while the thai court is mandated under Section 7002 to order the ignition interlock system in a case where there is a one- year suspension for two or more convictions for DUI, it is the Bureau that is mandated to refuse to reinstate operating privileges where this is not done. What Schneider said, in my view, is that the Bureau has no authority under Section RLC-2 1532(b)(3) to demand that the ignition interlock be installed or to demand that the trial court issue an order to that effect.~ We never said there that the Bureau was not permitted to refuse reinstatement or continue the suspension for an additional year where this was not done. Indeed, under Section 7003 of the Judicial Code, Licensee is not eligible for reinstatement and the Bureau has a non-discretionary duty to refuse reinstatement. That is simply what the Bureau seeks to do here. Although the majority writes that the Bureau has no independent authority to impose the sanction of an interlock requirement, the Bureau is not doing that. Rather, it is refusing to re-instate a license, a matter solely within its authority. The majority, by prohibiting the Bureau from doing this, is, in my view, re-writing, by judicial fiat, an explicit statutory directive, an act we are not permitted to do.2 RENI]E L. COHN, Judge ~ We wrote, "PennDOT claims it has an independent mandate from the General Assembly to ensure that the device is installed... Although...the trial court was required to order installation of an ignition interlock device...that failure does not mean that PennDOT has been given authority to override the trial court's order and require installation .... PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so." Schneider, 790 A.2d at 366 (footnote omitted). Accord Turner v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d 671 (Pa. Cmwlth. 2002). 2 Giacobello v. Board of Elections, 322 A.2d 429 (Pa. Cmwlth. 1974) (for a court to rewrite a portion of a statute is "to erode the effect of the statutory provision by an unwarranted invasion by the judiciary into the legislative field.") We note, additionally, that one seeking a driver's license must apply to the Bureau, Section 1506 of the Vehicle Code, 75 Pa. C.S. {}1506, and, further, that the Bureau is prohibited from issuing or renewing a driver's license to anyone whose operating privilege is suspended or revoked. Section 1503 of the Vehicle Code, 75 Pa. C.S. {}1503. RLC-3