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HomeMy WebLinkAbout94-01000 -. JAMBS W. BURKHOLDBR, JR., Petitioner : IN THB COURT OF COMMON PLEAS OF : CUMBBRLAND COUNTY, PBNNSYLVANIA . . v : NO. 94-l000 CIVIL . . COMMONWEALTH OF PBNNSYLVANIA, : DBPARTMENT OF TRANSPORTATION, : Respondent LICBNSB SUSPBNSION APPBAL . . MEMORANDUM OPINION AND ORDER A hearing was held on this case on June 8, 1994. This was a defendant's appeal of a sixty (60) day license suspension. Counsel for the Commonwealth and counsel for the defendant appeared at the hearing. The defendant did not appear. The suspension was issued for passing a school bus. 75 Pa.C.S.A. 53345(a). At the time this appeal was filed, an appeal on the District Justice conviction was pending in the Cumberland County Court. The appeal was heard and the defendant was found guilty prior to the June 8 hearing. At the hearing, the Commonwealth introduced the driving record of the defendant as Commonwealth Exhibit No.l and rested. The defendant offered no testimony. The records being complete, the court finds the Department was correct in suspending the license of the defendant for sixty (60) days and that decision is affirmed. , , I ~), U! . i c~ ; d '91/ do': r .;-i[IU']j.\f;y CUtit,;;.:~,J .'.'~!j "....,}li!y IJ~' ;,' I, . ',':... I ~' / , P.J. ORDER AND NOW this, I ). rf./-. day of July, 1994, the action of the Department in suspending the operating privileges of the defendant for sixty (60) days is affirmed. The appeal is DENIED. By the Court, -t l1 H David E. Hershey, Esquire For the Petitioner Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, Pa. l7106 :sld ,*...~.~ JAMES W. BURKHOLDER, JR., Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Ci~, 1 /991 v. 1000 NO. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent LICENSE SUSPENSION APPEAL ORDER OF COURT rt! ''''Ct\q____ AND NOW, this ~ day of PebEuery, 1994, upon Petition of James W. Burkholder, Jr., a hearing is set on the License Suspension Appeal for the Ll.I'JIIIiday of ~, 1994, at ~ o'clock ~.m. in Courtroom Number ~, Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania, all proceedings to stay meanwhile. Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least thirty (30) days prior to the date of said hearing. Pursuant to Section l550(b) of the Pennsylvania Motor Vehicle Code, Petitioner's appeal shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended pending a final determination in this matter. BY THE COURT: ~ ' . .\"'-. . '. ". ,.; fiG, HJ lr. c L II~II JAMES W. BURKHOLDER, JR., Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 1991 v. NO. 1000 C ,'v, I COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent LICENSE SUSPENSION APPEAL LICENSE SUSPENSION APPEAL AND NOW, comes petitioner, James W. Burkholder, Jr., by and through his attorneys, Mancke and Wagner, who make the following averments in support of this License Suspension Appeal: 1. Petitioner, James W. Burkholder, Jr., is a Pennsylvania licensed driver with a residence address of 51B Burgners Road, Carlisle, Cumberland County, Pennsylvania l7013. 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address at Transportation and Safety Building, Harrisburg, Dauphin County, Pennsylvania 17120. 3. Petitioner received a notice of license suspension by way of letter dated February 16, 1994 from the Department of Transportation indicating that his Pennsylvania driving privileges are to be suspended on March 23, 1994, at 12:01 a.m. for a period of sixty (60) days for a violation of S3345(a) of the Vehicle Code. See Exhibit "A" attached hereto and incorporated herein by reference. ,.. :..-:. .~.-..' 4. The suspension as proposed by the Department in Exhibit "A" is illegal, invalid and improper for some or all of the following reasons: (a) A summary appeal of the alleged school bus law violation was timely filed with the Cumberland County Clerk of Courts on December 29, 1993 and a hearing has not yet been scheduled; (b) The license suspension is otherwise illegal and invalid pursuant to statutory and case law. WHEREFORE, Petitioner respectfully requests that this Court enter a supersedeas pursuant to Section 1550 of the Vehicle Code and prohibit the Department from initiating the suspension of his driving privileges as outlined in Exhibit "A" until such time as there can be a final determination at a hearing in the above- captioned matter. Respectfully submitted, MANCKE AND WAGNER Date: d .J'-/- YI.{ ,/---- By David E. Hershey, Esquire 1.0. 1143092 2233 North Front Street Harrisburg, PA l7110 (717) 234-7051 -2- COMMONWEALTH OF PENNSYLVANIA ) ) ) S. S. ) COUNTY OF CUMBERLAND ) I hereby verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: ()./rlli I ~y ~_.o................_-_... , CBRTIFICATB OF SERVICB I, David E. Hershey, Esquire, of the law firm of MANCKE AND WAGNER, hereby certify that I am this day serving a copy of the foregoing document to the attorneys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of civil Procedure, by depositing a copy of same in the United States Mail, postage prepaid, at ,.,Ll"' Harrisburg, Pennsylvania, on the ..i.!LL- day of February, 1994, at the address listed below: Matt Haeckler, Esquire Office of Chief Counsel Pennsylvania Department of Transportation 103 Transportation and Safety Building Harrisburg, PA 17120 By: ~ Davi~E. Hershey, Esquire MANCKE AND WAGNER 2233 North Front Street Harrisburg, PA l7l10 (717) 234-7051 --- 0( I 02-15-1994 06102PM FROM Elre-Insurance-JlmB TO 2347080 P.02 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 FEBRUARY 16, 1994 CARLISLE PA ],1013 ~4D4D~~831?48?5 001 02/0'l/1~~4 :L~~?33:L"I 07/31/1'163 JAMES ~ BURKHOLDER JR 518 BURGNERS H!) Dear Motorist. As a resul~ of your convic~ion on 12/D8/1993 of violating section 3345A of the Vehicle Code PASSING A SCHOOL BUS on 09/22/1993, 5 points have been assigned to your record. As mandated under Section 1535 of the Vehicle Code, a 6D DAYCS) suspension is hereby imposed. In order to comply with this sanction YOU are required to return any current driver's license, learner's permit and/or temporary driver's 11cense (camara card) in your possession no later than the effective date listed below. Failure ~o comply with this notice shall result in this Bureau refarring this matter to the Pennsylvania Sl:ate Police for prosecution under Section 1571 (a) (4) of the Vehicle 'Code. If you clllnnot comply with the requirements stated above, you must contact the Bureau (See information below) for further directions on how to receive credi~ towards your sanction. ' When the department receives your license or acknOWledgement, it will send you a receipt. If YOU do not receive this receipt within 15 days contact the department immediatelYr Otherwise, YOU may not be given credit toward serving this sanction. Credit: will not begin until all driver's licen.e product(s) are received in this Buraau. Effective Date of Suspension. 03/23/1994, 12.01 a.m. Please see the enclosed application for restoration fee information. .:J~-~",,-~;J~'" ~O.tI.Jr'l'l ,.."....... c.ln:-U15U,'Once-J lmD ,u ~,)'I'(~'" ,~..,- ",W 940409283174875 -.._- YOUr drivinp privilege will not be restored until You provide proot to the Department that all motor vehicles registered in your name are covered by a motor vllhicle liebility insurance pOlicy or a program 01' sell' insurance approved by the Department. This insurance information will only be accepted within 30 days of the the eligibility date of the restoration of your driving privilege. You have the right to appeal to the Court 01' Common Pleas of the county 01 your residence within 30 days 01' thll mail date (FEBRUARY ~6, 1994) 01 this notice. Sending a copy to this department 01 a timllly, filed appeal will stay the department's actiDn panding a final decision by the court. The COpy must be sent by certified mail tOI Room 103 Transportation and Safety BUilding HarriSburg, PA 17120 Sincerely, ,- "'- _ ~ ,,,{ T ~ --~ ~ . ..... Douglas K. Tobin, Director Bureau 01' Driver Licensing SEND FEE/LICENSE/DL-16LC/TOI Department 01 Transportation Bureau 01 Driver Licensing P.o. Box 68693 Harrisburp, PA 17106-8693 INFORMATION (7100 AM TO 6130 PM) PittSburgh Area - 412-565-5670 Philadelphia Area - 215-698-8100 Harrisburg Area - 7l7-767-3130 Toll Frea .- 1- 800-?32-4600 .. iii TOTAL P.03 MANCKE ^ND WAGNER "(' '.' .,' '0 ...~lllIi"li5fnrncrrd . .....,".... 1'1..,-0.... to '"I :.~~Vv.f...h .'01 0'" "'0" NIIIVlCII ......01' ()filII JI.IOOfIIlHf YAY II 'If'I'AlO~t YOU " ""cwc' WE 00 H[flfB'r' C[fUI'Y fHAl THE WUHIN 15 II. TRUE AND COR. RECT COPY Of THE OAIQ1NAL flLlD IN THIS ACTION BY I A..... nl' lel~. A"ONtU- -- - ~ '.') v.., '............ ,.:;- -- 'f' ~ .~ ~ ~ ~. ~ . <::.....) ..-,J . c.- ~ - '-' . c.;L.. ~ ~ 0 Q <;J , . "') ~ iJ1 'vi ~ "':l-- to. = ~ '.,'l <.;;;;) -=r -- ,," ., :z-= ~ a: w Z Cl $ 0 <(~:: I ~ I ~ J ~ d j w ~ ~ ~ ~ !Ii U f::t Z <t ~ f'. .._~ ''''''Ii.v Tl-"'- JAMES W. BURKHOLDER, JR., petitioner . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1000 Civil 1994 v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent LICENSE SUSPENSION APPEAL ORDER OF COURT 1f( AND NOW, this 7~ day of April, 1994, upon consideration of Petitioner's request for a continuance relative to the above- captioned matter and noting further the reasons supporting the same, and noting that counsel for the Department of Transportation has no objection, IT IS HEREBY ORDERED AND DECREED that the above-captioned f{(f, 1994, at Q,',-,O matter is to be rescheduled for June ~ ~ v o'clock, in Courtroom Number -1-. BY THE COURT: J~'CGl-f-~{ ("- fh ~- "'---''''' J. ,1 1'.'1 "v ~ . V t)"'~~f'~t'~'\ ~O ~.y APR za 11111 AH '9~ ;i'ICE I)! " ., ci"os~rM.Y (:I..H:. ii!, ,',NO C(\~IN rv "'f dt5~l~'J.'f'.l , , JAMES W. BURKHOLDER, JR., Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1000 Civil 1994 v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent LICENSE SUSPENSION APPEAL MOTION FOR CONTINUANCE AND NOW, comes the Petitioner, James W. Burkholder, Jr., by and through his attorneys, Mancke, Wagner, Hershey & Tully, who make the following averments in support of this request for continuance: l. A timely License Suspension Appeal was filed relative to the above-captioned matter. 2. The Honorable Harold E. Sheely signed an Order scheduling a hearing on May 2, 1994 at 10:30 a.m. 3. The basis for the License Suspension is an underlying summary conviction which is on appeal in Cumberland County Court. 4. The underlying Summary Appeal was filed on December 29, 1993 and is currently scheduled for May 24, 1994 at 10:00 a.m. in Cumberland County Court. 5. Matthew Haeckler, Esquire, counsel for the Department of Transportation, has been consulted regarding this request for relief and has no objection to a continuance for a period of thirty (30) days for the above-stated reasons. WHEREFORE. Petitioner prays that This Honorable Court postpone the above-scheduled License Suspension appeal hearing for a period of thirty (30) days for the reasons set forth herein. Respectfully submitted, MANeKE, WAGNER, HERSHEY & TULLY Date: LJ I Qd Iql.( / By // Davitt E. Hershey, Esquire I.D. #43092 2233 North Front Street Harrisburg, PA l7110 (717) 234-705l --- Attorney for Petitioner -2- Date: y l;t;} 11:\4 A~ - Davi~ E.~erShey, Esquire COMMONWEALTH OF PENNSYLVANIA ) ) ) S. S. ) COUNTY OF CUMBERLAND ) I hereby verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. -- r'" . ~ IS!ll!~.::::; - :.~\f,r __~'l! . CBRTIFICATB OF SBRVICB I, David E. Hershey, Esquire, of the law firm of MANCRE, WAGNER, HERSHEY & TULLY hereby certify that I am this day serving a copy of the foregoing document to the attorneys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, postage '1 "Il1d prepaid, at Harrisburg, Pennsylvania, on the ~~ day of April, 1994, at the address listed below: Matthew Haeckler, Esquire Office of Chief Counsel Pennsylvania Department of Transportation 103 Transportation and Safety Building Harrisburg, PA l71l0 By: ~ David E. Hershey, Esquire MANCRE, WAGNER, HERSHEY & TULLY 2233 North Front Street Harrisburg, PA l7ll0 (717) 234-70Sl ~ V-V DL-326 (4/84) CERTIF ICA"rlON DATE March 15, 1994 1 hereby certify that Douglas K. Tobin , Director of the Bureau of Driver Licensing of the Pennsylvania Department of Trans- portation, is the legal custodian of the Driver License records of the Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, he has legal custody of the original or microfilm records which are reproduced in the attached certification. IN TESTIMONY WHERl:UF, I HAVE HBREUN'ro SI::T MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAll AFORESAID. ~~ Secretary of Trans~ortation I HEREBY CERTIFY, THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND CORRECT CERTIFIED PHOTOSTATIC COPY OF: 1) Official Notice of auspension of operating privielgea dated & mailed 2-16-94 effective 3-23-94; 2) Record of Conviction Details received by the Department electronically from the Distric COurt No. 09303, for Citation No. C028029, dete of violation 9-22-93, and date of conviction 12-8-93, and 3) Driving Record, which appears in the file of the defendant James W. Burkholder, Jr., operator's No. 19973319, date of birth 07-31-63, in the Bureau of Driver licensing, Harriaburg, Pennsylvania. tommonwcalth's EXHIBIT \ -... ~lel~4- L.,l" 1\ CERTIFIED TO as prescribed by Section 6l0J and 6109 of the Judicial Code, Act of July 9, 1976, P.L. 586, as amended. IN TESTIMONY WHEREOF, 1 HAVE HEREUNTO SET BY HAND AND SEAL THE DAY AND YEAR AFORESAID. r -I:. i 1'- ~'I,f ~ Director, Bureau of Drlver Licensing SEAL , COMMONWEALTH OF PENNSVLVANIA DEPARTMENT OF TRANSPORTATION Buroau of Drivor Licensing Harrisburg, PA 17123 FEBRUARY 16, 1994 JAMES ~ BURKHOLDER JR 518 BURGNERS RD 940409283174875 001 02/0'1/1'194 1'197331'1 07/31/1'163 CARLISLE PA 17013 Dear Motorist I As a result of your conviction on 12/oB/1993 of violating section 3345A of the Vehicle Code PASSING A SCHOOL BUS on 09/22/1993, 5 points have been assigned to your record. As mandated under Soction 1535 of the Vehicle Code, a 60 DAYCS) suspension is hereby imposed. In prder to comply with this sanction yOU are required to raturn any current driver's license, learner's permit and/or temporary driver's license (camera card) in your pos- session no later than the effective date listed below. Failure to comply with this notice shall result in this Bu- reau referring this matter to tho Pennsylvania State Polico for prosecution under Section 1571Ca)C4) of the Vehicle Code. If you cannot comply with the requiroments stated above, yOU must contact the Bureau (See information below) for further diractions on how to receive credit towards your sanction. When the department receives your license or acknowl- edgement, it will send yOU a receipt. If YOU do not receive this receipt within 15 days contact the department imme- diatelY. Otherwise, you may not bo given credit toward serv- ing this sanction. Credit will not begin until all driver's license productls) aro roceived in this Bureau. Effective oato of Suspension I 03/23/1994, 12101 a.m. Please see tho onclosod application 'or restoration fee in forma t1 on. Your driving pr!vllogo will not bo rostored until you provide proof to tho Dopartmont that all motor vohicles reg- istorod in your namo aro covorod by a motor vohicle liability ,- ~ \ ( "\\ -l,~ ,'. 940409283174875 insurance policy or a program of solf insurance approved by the Department. This insurance information will only be ac- cepted within 30 days of tho the eligibility date of tho restoration of your driving privilege. You have the right to appeal to the Court of Common Pleas of the county of your residonce within 30 days of the mail date (FEBRUARY 16, 1994) of this notice. Sending a copy to this department of a timolY, filed appeal will stay the dopart- ment's action pending a final decision by the court. The COpy must be sent by certified mail to. Room 103 Transportation and Safety Building Harrisburg, PA 17120 Sincerely, ~ _J p_ .K:'-r-~ Douglas K. 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DEPARTMENT OF nlAN"ORTATION IUREAU 0' DRIVlR UCINIlNQ HARRISlURQ, PENNIYLYANIA tnD CERTIFICATION STATEMENT 0... ...Marc.h _15.. 19% r'n\ ~I In compliance wilh your request, I hereby certify thet I have caused a search to be made of lhe flies 01 lhe Department 01 Transportallon, and herewilh 15 a true record in the name of: James W. burkholder. Jr.. 518 Burgnera Rd Carlisle, PA 17013 OPERATOR NO. 19973319 07-31-63 DATE OF IIRTH CLASS OF LICENSE TITLE NO, PURPOSE OF REOUEST L lR .'NSURANCE, C. CREDIT, E. EMPLOYMENT. L. LEOAL. M. OTHERI DATE SECTiON V10LAT'ON VIPUTION ACTION TAKEN IY DEPARTMENT 08-24-92 3362 Maximum apeed limita Processed & points aasigned 11-9-92+(3) Point letter mailed 11-16-92 No violation one year 08-24-93 -(3) Processed & points aaaigned 2-9-94+(5) Official Notice of suspension dated & mailed 2-16-94 effective 3-23-94 for 60 days Apepal Pending 09-22-93 3345 Point Credit Meeting or overtaking school bus In compliance with your request, I hereby cerllfy that I have caused a search to be made of the flies of lhe Department of Transportalion, and herewilh Is a true record In the name of the subject listed above, - - :=> ,L K7-:=::' " DIRECTOR, IUREAU OF DRIVER L1CENSINO For Secrelary 01 rrenlportaUon I"'olm.llon reque.11d by: COMMONWEALTH OF PENNSYLVANIA IS: I hereby certify that Douglas K. Tobin, DlIeclor or the Bureau 01 Driver llcenSi"g records of the Pennsylvama Department of Tra"SpOrlallOn As the- O.reelor 01 t 'C aforesaid Bureau. he has legal custody of the original or microfilm recorda whieh are reprOduced in the 3ltached cerlihcahon DATE ._lku:l:1L15.....J.994 IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS OEPARTMENT THE DAY AND YEAR AFORESAID ~ ~'<Hf. :-. -----.SECRETARy F TRANSPORTATION SEAL \ ., '') .\' /