HomeMy WebLinkAbout02-3269JEFFREY S. VAN BOSKIRK
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
Respondent
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No.
LICENSE SUSPENSION APPEAL (FROM
IMPOSITION OF THE INTERLOCK
REQUIREMENT AND THE IMPOSITION OF
AN ADDITIONAL YEAR OF SUSPENSION
FOR FAILURE TO COMPLY)
LICENSE SIJSPENSlON APPEAl
AND NOW, comes Pelitioner, Jeffrey S. Van Boskirk, by and through his attorneys, Mancke Wagner
& Tully, and makes the following averments in support of this License Suspension Appeal:
1. Petitioner, Jeffrey S. Van Boskirk, is a Pennsylvania licensed driver with a residence address of 15
N. Fifth Street, Lemoyne, Cumberland County, Pennsylvania, 17043.
2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing
address at Riverfront Office Center, Third Floor, 1101 South Front Street, Harrisburg, Dauphin County,
Pennsylvania 17104-2516.
3. Petitioner received a notice of license suspension by way of letter dated July 1, 2002 from the
Department of Transportation indicating, in pertinent part, "Before your driving p#vilege 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 D#ving Under the Influence. If you fail to comply with this requirement, your
dwing p#v~lege v~ll remain suspended for an edditional year. You will receive more information regarding this
requirement approximale~y 30 days before your eligibility date." Said notice is attached hereto as Exhibit
and incorporated herein by reference.
4. The apove-mentioned provision, as part of the Deparlment's notice of July 1, 2002, is illegal, invalid,
and improper for reasons which include, but are not limited to, the following:
(a) At the time of Petitioner's sentencing in Cumberland County, the tdal
cou.rt did not order that each motor vehic e owned by the Petitioner be
equipped with an approved ignition interlock system and PennDOT has
no authority to order the ignition interlock or to extend the license
suspension for an additional year. See Schneider v. PennDOT, 790
A.2d 363 (Pa.Cmwith. 2002).
(b)
(c)
The provisions of Act 63 of 2000 are unconstitutional in that the Act
violates Article III, {}1 of the Pennsylvania Constitution which provides,
Jn perlinent part: "no/aw shall be passed except by Bill and no Bi//shall
be so altered or amended on its passage through either House as to
change its odginalpurpose.' Const. Art. III, {}1.
The provisions of Act 63 violate the Pennsylvania Constitution because
no Bill shall be passed containing more than one subject by including
provisions for restitution for identity theft along with ignition interlock
requirements. Const. Art. III, {}3.
(d)
The provisions of Act 63 are unconstitutional in that it violates Article III,
{}4 of the Pennsylvania Constitution which provides, in pertinent part:
"E '
very Bill shall be considered on three different days in each House"
Const. Art. III, ~. '"
(e) The provisions of Act 63 violate Petitioner's equal protection and due
process rights under the State and Federal Constitutions by treating
similarly situated persons differently without a rational basis. Said
unequal enforcement of the law is not rationally related to the protection
of the public from intoxicated drivers.
The provisions of Act 63 violate the Separation of Powers Doctrine and
procedural due process as the interlock requirement is not analogous to
the imposition of costs in a criminal proceeding, is not administrative in
nature and interferes with the sentencing power of the court as it
requires the court to cerlify to the executive branch (PennDOT) whether
2
the ignition interlock systems have been installed before PennDOT will
.reinstate the operating privilege which necessarily requires the court to
investigate whelher or not the devices have been installed without
procedural due process. See Commonwealth v. Mockaiti.~, 54 D&C 4~h
155 (Cumb. 2001).
(g) The provisions of Act 63 violate due process because PennDOT has no
authority or jurisdiction over vehicles owned by a motorist but not
registered and not operated on a public highway.
(h) The provisions of Act 63 violate due process because the statute is
vague in failing to define ownership and is overbroad because, by its
reach, it punishes constitutionally protected activity, i.e. ownership of a
non-registered vehicle maintained and/or used solely on private property
in violation of Pefitioner's rights under Article, I, {}9 of the Pennsylvania
Constitution and the 5*h Amendment of the Unites States Constitution.
(i) PennDOT has waived any perceived authorization to have the ignition
interlock requirements and/or extend the license suspension by its
failure to file an appeal, within 30 days of notice of the court's failure to
impose such requirements on the Petitioner.
5. Petitioner requests the court take judicial notice of Senate Bill 849 and all of its prior forms prior to
becoming Act 63 of 2000 including the legislative summary obtained from the Pennsylvania State website,
www. legis.state.pa.us, in chronological order beginning with the summary and printer numbers 952, 1225,
1814, 1918, 2038, and 2059.
WHEREFORE, Petitioner prays that this Court declare that the portion of the Department's notice of
July 1, 2002 which reads: "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
3
suspendedforanaddiffonalyear. Youwillreceivemoreinforma#onregardingthisrequirementapproximately
30 days before your eligibil~ date" be declared illegal, unconstitutional, and sthcken as part of the
Department's notice and direct that the Department reinstate the Petitioner's driving privileges after the one
(1) year suspension for the conviction for driving under the influence, subject to the payment of the restoration
fee and providing proof of insurance.
Dated:
Respect~y~
John B. Ma~cke, Esq., ID No. 07212
Mancke, V~agner & Tully
2233 N. Front Street, Harrisburg, PA 17110
717-234-7051, Attorney for Petitioner
4
VERIFICATION
I hereby vedfy 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 unswom
falsification to authorities.
Date/7~ ~-~p' ~ ~Oskir~. ~,/,/,~~
5
CONNONHEALTH OF PENNSYLVANIA
DEPARTHENT OF TRAHSPORTAT[ON
Bureeu of Driver Licensing
Nail Datez JULY 01, 2002
J£FFR[Y $
$$ N FZFTH
LEflOYN£ PA
IRZVER LZCENS£ ·
lATE OF BZRTH
LZCENSE ZN BUREAU
Dear HR. VANBOSKZHK:
This is an O~f~C~e~ Not'ce Of the 9uePcnc~on of your Driving
Privilege as authorized by Section 1552B of the PennsYlvania
Vehicle Code. As a result of your 04/23/2002 conviction of
vtoZsting Section $75! of the Vehicle Code DRZVZNG UNDER
[NFLUENCE on ~a/o&/2eel~
Your driving PriviZege is SUSPENDED for · period of Z
YEAR(B) effective 0&/1~/2002 at 12:01 a.m.
HARNZNG: Zf YOU ire convicted of driving uh~le Your
license is suspended/revoked the Penalties ~il! be a
MIN;HUN of 90 days iePrieonment AND · 1,OEO fine AND
your driving privilege Nil! be susPended/revoked for
lefare PsnnDOT can restore Your driving privilege, You suet
fallou tho instructions in th~s Zetter for COHPLYZNG H~TH
TH~S SUSPENSION, PAYZNG THE RESTORATION FEE and PROVIDING
PROOF OF INSURANCE, You Ihouid fOZ2ON ALL inetruet~ene Very
eare~u~iy. Even Xf YOU have Ic~ved a2! thc t~mm off the
gr~v~iege unt~Z 022 the requirements are eat~ef~ed.
~o/z~xz~z ~:Z~ /1//318974 ARTHUR ~LIRRA¥' STUDIO PAGE
0217561'1221293S
PRZSON RELEASE REDUZREMENT (ACT]S1)
The Court of CUHIERLAND CTY,
2002 has sentenced You
violation. Pursuant to
Code, you vi1! not
suspsnsion/rivocatton
Court Nuiber 162~ Court Teri
to serve a prison term for this
Section 15~1(a.i) of the Vehicle
receive credit for this
or any additional
suSPension/revocation until YOu coIplete Your pr/son term.
The Court must certify your completion to PenflDOT. You may
wish to contact your probation officsr and/or the Court
-Afb_er .3LD~L~ r~l)_~U ~-make sure that PennDOT Ss p~perZ¥
not/f/ed.
COURT ORDER TREATMENT PROGRAH (ACT 122)
Pursuant to Section 15qB(d) of the Vehicle Cede, the Court
of CUMBERLAND CTY , Court Number 1&2~ Court Term 20~2 has
ordered you to attend a treatment program for slcohoZ or
drug odd/ct/on. As a result of the court order, this
susPension/revocation shall remain in effect unti! the
Department ts notified by the above Court that YOu have
successfully completed treatment and you are otherwise
ellglbZe for restoration of your driving ;rivtlege.
PAYZN; THE ~ESTORATXON PEr
You must Pay p restoration fee to PennDOT to be restored
from a suspension/revocation of Your drtvtng priviZege. To
Pay your restoration fee, COlOlete the following steps:
1. Roturn the enclosed APPZlcation for Restoration. The
amount due is 1/sted on the a~oltcation.
2. ~r/te Yoor driver's license number (~istsd on the first
Dogs) on ~ne ~h~ck or money
credit.
Follov the Payment and mailing
of the application.
order to 'offseT1-P~O121r ...............
~nstructions on the back
[GNZTZQN ZNTEELOC~
Before Your dr/v/nD Privilege can be rIitOred You are
required by Zaw to have 811 vehiclsCs) ovoid by You to be
equipped with an Zgn/tlon Znterlock SYStem. This ~s a result
of Your conviction for Driving Under the Znfluence. Zf you
fall to comely vith this requirement, your driving Privilege
~i1! remain suspended for an additional year. You ~i1!
receive lore Information regarding this requirement
approximately 30 deys before your s~igib~ty date.
02175&112212955
PROVZD[NG PROOF DF ZNSURAN;E
Within the last ]0 days of Your suspension/revocation, we
will send you a /after asking that You prow/de Drool of
insurance at that t/me. This letter w111 list acceptable
documents and what will be needed /f you do not own a web/elm
registerod /n PennsyXvan/a.
zeoortant= Please make sure that PoflnDGT ls notified if You
move from your current address. You may not/fy PonnDOT of
your address change by calling any of the phone numbers
You have the right to appeal this action ta the Court of
Common Pleas (Civil D/v/sion) with/n $0 days of the
date, JULY 01, 2002, of this letter. Z~ you flle mn
in the County Cpupt, the CouPt wtlZ glve YOU m
~ePtlf~ld o~y o~· the .PpelI, ~n order for your appeal to
be vii/d, You must send this time-stamped certified copy of
the appeal by certified mail
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Rivarfront Office Center
Harrisburg, PA 1710~-251&
Remember, th/s Le an O~;Z¢ZAL NO?ZCR OF RU~PENSZON.
Sincerely,
Rebecca L, Blckley, D/rector
Bureau of Driver L/censing
ZNFORRATZON 7:00 a,e. to 9~00 p.m.
~N STATE 1-800-Y&Z-4&00 TOD ;N STATE
OUT-OF-STATE 717-391-6190 TOD OUT-OF-STATE
HEB SZTE ADDRESS www.dot.state.pa.us
1-800-228-0676
717-391-6191
JEFFREY S. VAN BOSKIRK
Petitioner
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
Respondent
· IN THE COURT OF COMMON PLEAS
· CUMBERLAND COUNTY, PENNSYLVANIA
: LICENSE SUSPENSION APPEAL (FROM
: IMPOSITION OF THE INTERLOCK
: REQUIREMENT AND THE IMPOSITION OF
: AN ADDITIONAL YEAR OF SUSPENSION
: FOR FAILURE TO COMPLY)
AND NOW, this/I ~ day of_~, 2002, upon Petition of Jeffrey S. Van Boskirk, a
heating is set on the License Suspension Appeal for the ?-~'~' day of ('~)~~ ,2002 at
C~; 0~) ,3, .m. in Courtroom No. /'7/' , Cumberland County Courthouse, One Courthouse Square, Carlisle,
Cumberland County, Pennsylvania.
Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at
least sixty (60) days pdor to the date of said hearing·
Distribution:
Pmthonotary's Office
Office of Chief Counsel, PennDOT
1101 S. Front St., Harrisburg, PA 17104-2516
John B. Mancke, Esquire
2233 N. Front St., Harrisburg, PA 17110
BY THE COURT:
JEFFREY S. VAN BOSKIRK,
APPELLANT
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT :
OF TRANSPORTATION, :
APPELLEE :
CIVIL ACTION - LAW
02-3269 CIVIL TERM
IN RE: TRANSCRIPT OF PROC~mnINGS
Proceedings held before the HONORABLE
KEVIN A. HESS, J., Cumberland County
Courthouse, Carlisle, Pennsylvania, on
Monday, October 7, 2002~ in Courtroom Number
Four.
APPEARANCES:
P. Richard Wagner, Esquire
For the Appellant
George Kabusk, Esquire
For the Appellee
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE COURT:
MR. WAGNER:
MR. KABUSK:
THE COURT:
MR. KABUSK:
Good morning.
Good morning, Judge.
Good morning, Your Honor.
Mr. Kabusk.
This is the case of Jeffrey S.
Van Boskirk versus Commonwealth of Pennsylvania, Department
of Transportation, case number 02-3269. This is an appeal
from a Notice of Suspension dated July 1st, 2002, which
notified the petitioner, Jeffrey S. Van Boskirk, operator's
number 18287041, that as a result of his 4.302 conviction
of violating Section 3731 of the Vehicle Code, Driving
Under the Influence of 10/6/01, his driving privilege was
suspended for a period of one year.
Additionally, that notice informed him of
the requirement for the Ignition Interlock, and that
Official Notice of Suspension is Subexhibit Number 1 in the
Department's packet of documents. Subexhibit 2 is a Report
of Clerk of Court of Cumberland County convicted 4/23/02,
seal attached to the original.
Subexhibit 3 is Acknowledgment of
Suspension, and Subexhibit Number 4 is driving record which
appears in the file of the Defendant, Jeffrey S. Van
Boskirk, operator's number 18287041, date of birth 9/12/58,
in the Bureau of Driver Licensing, Harrisburg,
Pennsylvania.
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 Departments documents are under seal and
certification. I've provided a copy to Mr. Wagner, and I
move for the admission of what's been marked as
Commonwealth Exhibit Number 1.
THE COURT:
objection?
MR. WAGNER:
THE COURT:
MR. KABUSK:
case, Your Honor.
THE COURT:
Ail right.
Is there any
There's no objection.
Okay.
And that is the Department,s
Very well. Anything you want
to offer by way of testimony for the record?
MR. WAGNER:
if it please the Court.
THE COURT:
MR. WAGNER:
No. I just have one exhibit,
Okay.
If it please the Court, I'm
Rich Wagner, and I'm appearing for Mr. Mancke, and I have
marked as Defendant's Exhibit Number 1 a certified copy of
the Order of Court dated the llth day of June, 2002, a
decision by Judge Oler, the sentencing of Judge Oler in
which the issue of the interlock is not required,
consistent with Exhibit Number 2 of PennDOT, the DL-21.
We would offer that. I've provided a copy to the
Department of Transportation, and we would move for the
admission of that document.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE COURT:
MR. KABUSK:
THE COURT:
MR. WAGNER:
I assume there's no objection.
No objection, Your Honor.
Very well.
And with that we believe the
decision in this case is controlled currently by Schneider,
and we would rest.
THE COURT: And just so that I'm absolutely
clear about this, he is still in the initial suspension for
DUI, right? And you're seeking to strike the language that
says before it's restored he must comply?
MR. WAGNER:
restored by the Department.
this juncture.
THE COURT:
MR. WAGNER:
No. He has his license back,
We're satisfied with that at
Oh, okay.
The Department takes the
position, I believe, that upon the filing of this notice of
appeal, that that acts as an automatic restoration of his
driving privilege, notwithstanding the conviction.
Therefore, he has his driving privilege returned, and we're
comfortable with that, and we're not seeking to have any
change in that position that PennDOT now takes.
THE COURT:
clear about that. Okay.
MR. WAGNER:
Okay. I just wanted to be
Thank you.
Thank you, Judge.
(Whereupon, the proceedings concluded at 9:09 a.m.)
CERTIFICATIO_________~N
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.
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
Kev' i/ A. Hess, J.
Judicial District
JEFFREY S. VAN BOSKIRK, :
Appellant :
;
VS.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
Appellee
AND NOW, this
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
02-3269 CIVIL
IN RE: LICENSE SUSPENSION APPEAL
ORDER
/¥' day of November, 2002, the appeal of Jeffrey S. Van
Boskirk is SUSTAINED but only to the extent that the requirement that all vehicles owned by
him must he equipped with an ignition interlock system prior to the restoration of his driving
privileges is STRICKEN. See Albert John Schneider v. Com. of Pa., Dept. of Trans., Bureau of
Driver Licensing, No. 1513 C.D. 2001 (Pa. Cmmwth. 2002).
BY THE COURT,
A.
Hess,
J.
P. Richard Wagner, Esquire
For the Appellant
George Kabusk, Esquire
For PennDOT
:tim
JEFFREY S. VAN BOSKIRK, :
Appellant :
VS. :
.'
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT:
OF TRANSPORTATION, :
Appellee :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
02-3269 CIVIL
1N RE: APPEAL
ORDER
AND NOW, December 3, 2002, in accordance with Rule 192,5 of the Rules of Appellate
Procedure, the Pennsylvania Department of Transportation having filed a notice of appeal, it is directed to
file of record, within fourteen (14) days hereof and serve upon the undersigned a concise statement of the
matters complained of on the appeal.
P. Richard Wagner, Esquire
For the Appellant
Terrance M. Edwards, Esquire
For PennDOT
:rim
BY THE COURT,
Ke~. Hess, J.
/--
JEFFREY S. VAN BOSKIRK,
Appellant
VS.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT:
OF TRANSPORTATION, ·
Appellee ·
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
02-3269 CIVIL
IN RE: APPEAL PURSUANT TO RULE 1925
In this case, the petitioner, Jeffrey Van Boskirk, appealed from a notice of driver's
license suspension which he received from the Department of Transportation and which was
dated July 1, 2002. He appealed, specifically, from that portion of the notice which read as
follows:
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.
On November 14, 2002, this court sustained Mr. Boskirk"s appeal to the extent that the
above requirement, namely that all vehicles owned by him must 'be equipped with an ignition
interlock system prior to the restoration of his driving privileges, was stricken. The Department
of Transportation has appealed from our order. On December 3, 2002, we filed an order
directing that the Department of Transportation file, within fourteen days, a concise statement of
the matters complained of on appeal. This was not done. Arguably, all issues have now been
P. Richard Wagner, Esquire
For the Appellant
George Kabusk, Esquire
For PennDOT
waived. See Com. v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). We will not, however, presume
upon that matter.
Our order of November 14, 2002, was entered in accordance with Albert Schneider v.
Com. of Pa., Dept. of Transp., Bureau of Driver Licensing, 790 A.2d 353 (Pa. Cmwlth. 2002). In
that case, the Commonwealth Court was presented with the same situation that pertains in the
matter sub judice. Namely, though the sentencing court failed to impose an ignition interlock
requirement, PennDOT has sought to impose the requirement absent a court order. In Schneider,
the court held expressly that PennDOT has no unilateral authority to impose ignition interlock
device requirements if the trial court fails to do so. It was because of this express holding that
we entered our order of November 14, 2002.
January 10, 2003
:rim