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HomeMy WebLinkAbout02-3306IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA LARRY LEE FOSTER Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent APPEAL FROM LICENSE SUSPENSION APPEAL FROM LICENSE SUSPENSION NOW COMES, Larry Lee Foster by and through his attorney, Philip L. Zulli, Esquire, and files the foregoing Appeal from License Suspension and states as follows: 1. Larry Lee Foster is the moving party berein with address of 60 Conrad Road, Carlisle, County of Cumberland, Pennsylvania 17013 (hereinafter called "Petitioner"). 2. Petitioner was issued a Pennsylvania Driver's License and operating privilege by the Department of Transportation, Bureau of Driver Licensing, with a record number of 20604567. 3. Said license is currently suspended for a violation of Section 3731 of the Vehicle Code, 75 Pa. C.S. §3731 (Driving under the influence), and is within the possession of the Bureau of Driver Licensing. 4. By official notice dated June 21, 2002, the Department suspended Petitioner's operating privilege for a period of one year and will not be restored (among other conditions) until he has equipped all vehicles that he owns with an approved ignition interlock system. A copy of said notice is attached as Exhibit A. 5. The Court of Common Pleas of Montgomery County did not order installation of an Ignition Interlock System on vehicles owned by Petitioner or anyone else. 6. Petitioner believes and avers that the suspension of his operating privilege and the conditions established for the restoration of his operating privilege are unlawful and unconstitutional and thus invokes his statutory right of appeal pursuant to Section 1550 of the Vehicle Code, 75 Pa. C.S. §1550. 7. Notice of petitioner's challenge to the constitutionality ora state statute is contemporaneously being given to the Attorney General. A Irue and correct copy is attached hereto as Exhibit B. 8. Petitioner contests, inter alia, the requirement of an ignition interlock system and the additional one-year suspension for failure to install such a system. WHEREFORE, Petitioner requests a hearingde novo, and that the contested actions of the Department be reversed. July 11, 2002 Respectfully submitted: Philip L. Zulli, Esquire Attorney ID No.: 47499 1501 North Front Street Harrisburg, Pennsylvania 17102 (717) 238-9004 DEPARTflEN? OF TRANSPORTATZU# RI]Z Data. JUNE 21, 2002 , LARRY LEE POSTER ¥%1 · O~%bSb&)7?04S?~ q0$ bO CONRA) ROAB PROCESSING )ATE 0b/$q/EO02 )RIV[R L%C[NS[ 4 ~Ob04S~? 04or NR. FOSTEk~ Th~$ Ss in O~fSC2&~ NOtSCI ~P the SUlDI~I$Ofl of Your Or~vJng Pri~iXtll as iuthorSzed by 0tctJen 303~1 gf the Pennsy2vln~i vio~ltJfle $ectSon $75i of tho Voh2c~e Code DRiViNG UNO~fl 2NPLU£N~E on ~AR#INO~ Zf you ltl cohv~eted of d~ivAng vh~le Yaur I ' ' 10¢0~e to aui~eflded/revoked thl peni~t~e~ v~13 be a I ' ", R~N[HUM af 9e ~ly. ~m~risonmant AN~ I e~,O00 fins AND J J../,~.. ..: your drJv/ng ~rJ~JX~e4 vJl~ ~l Bu~end~/r~vok~d for '' · H%N%NUH % year ~erso4 I .~i:.'~.~ .'~..=..~ fe~o~ tho &n~%ructtonl ~ thJ~ let%ir far CONPLY]NG ~ZTH TH%$ SU~PEN$%ON, PAY%NG THE RESTORATION r[~ and PROVZD[NG PRDGF 0K iNSURANCE, YOU i#NIO ~o~Io~ALL ~nmtruotio~$ veP¥ lipe~,%~y, Even &f YOU hmvo leaved o11 the t~me o~ the PIZ~N R£L£AS[ I£OUIR[N£N? (ACTI~]) The Court of NDNTGQH£RY C?Y. Court Number lode, Court Term 2Q02 hie s/nteflced you to sirra I prissn term for th~s v~olition. Pursuant to Section ~Sdl(·.I) of the Vehic2e Coda, you wiX] not receive credit for thtl · mspenston/rovocot~ofl or any edditioo,al OUlponoion/revocatien untA3 you comgXote Your arisen tire. The Court meet oeftlfy your oompletion to PhnnOOT. You wish to oofltoot y·ur probation officer ifld/or thl C·utt Ofter Your release to make sure thet PennDOT lo prolerl¥ Purl#eOt to Section lOeB(d) ·f tho Vehicle ¢ode~ tho Court of #O#TOGNE~Y CTY · Court Number 1~04, Court Tera 2002 ordered ysu to attend · treatment program far alcohol drug addiction. Aa · result of ~ho court order, this susPension/tarot·eton ohol~ remain in effect until the hPgrtloht is notified by the above Court that you hove SUccesSfullY COlPllted treatment and you ere othervtse eltelble for restoretLon of your drJvSng P&YZNG TN[ RESTORATION FEE You must aoy · restoration fee to PoflnOOT to be restored frei O Suspension/revocation of Your drlvin9 privilege. Return tho enclosed Apo~icltlsfl for Rester·eton. ThO Write Your driver's ]Joined number ~lieted on the firi't'l~,~.~ OaSeS On the check er money order to Insure oroo~'"'- credit. T, Fol~w the peyllnt end mailing LnatroctJons on the beck or the application. Before your driving privilege con be restored YOU ire required bY leu to hove ·13 vehicle(o) ·uned by You tm be gqullOed uith in Ignition Interlock System. This ii · result of your eonu~ction for DrOUths Under the Influence. If ya~ approximately $0 give before ysur eligibility date. PROOF OF ZHSURA#C~ w111 Sene you · 16tter asking that you oPovJds proof ef documents end whit ual% be nsadsd %f you do not Own a vchtc~e ...~ ~tlut: Please ~oku sure thee PennDOT ts notified if ¥.e.¥ ..... .~. love fram your ourreflt odorous, You Bay notify PemnDOT your Iddress chnnge bY culling any of the phone numbers ~i~,.." ltst. O .t th. end of thi, 1,,,.*. You hove the right to gppsul this act/on to the Cuurt Camion Pleoe (C$vtl ~v/liofl) within 3e days of thc tIJX the op~eol by certified oat1 tgi ~ . '~; PlnnsyivaflJi OiPirtlent of TransPOrtation ~' ..'~' Office of Chief Cguflso~ ~ ~'~;, Third r~eor, Rtverfro~ Off,ce Center ~ '~:~:.. Harrisburg, PA 17104-2516 Immembmr, this $s mn OKFZCZAL NOTICE OP IUlPiNiZ~. ~ .r~~''~ STATE OUT-OF-STAT~ I~! SITE ADDRESS Rshecca L. IICKZeV, Director Bureau of Driver LIGunsIng %NFfl~#ATZON 7:00 e.m. eD..gOO0 l'8BO-~2'e&O0 TOD iN STAT~ 71T-39[-6190 TDO OUToOF-STAT£ MWW.dot.ctlte. PC.~S t)ffi s of :philip Zulli, ] q4luirt Ju~y ~ L 2OO2 Thc Hon. Michael F~cr Attorney Ge~-'ral Harrisburg, P~nsyivania 17120 Re: Challenge to Constitutionality of 42 PtC.S. Sections 7001 - 7003 of the Judicial Code, (Ignition Interlock System) in the case of Larry Lee Foster v. Department of Transportation~ Bureau of Motor Vehiclez No. , Cumberland Count~ Court of Common Pleas Dear Mr. Fishec In accordance with law, please be advised that I am herewith providing Notice to your Office that thc above-named Petitioner is challensing the constitutionally of the Ignition Interlock provisions of 42 Pa.C.S. §§7001-7003, in case your office wishes to assume jurisdiction of the maRer. A copy of the appeal from license suspension is attached- I believe that the Commonwe~h Court's decision in Schneider v. Departmem of Transportation, Bureau of Driver License, 790 A.2d 363 (Pa. Cmwlth, 2002) ~m~ns o,i_~ c~sc. If you or your staff have any questions or concerns or require clarification, please do not truly yours, Philip L. Zulli, Esquire Office of Chief Coum~l, Del~'tment of Transportation VERIFICATION The undersigned counsel having read the foregoing Appeal from License Suspension states that the language within is true and correct to the best of the undersigned signer's knowledge, information and belief. Because Petitioner is currently on a construction job 160 miles distant from Carlisle, and counsel for the Petitioner is departing to Michigan for vacation on July 12, 2002, and will not return until July 22, 2002, sufficient time does not exist within the time limit to timely appeal the suspension, to secure the Petitioner's signature to a verification. This Verification is made subject to thc penalties of 18 Pa. C.S.A. § 4904 of thc Crimes Code (relating to unsworn falsification to anthoritics). Philip L. ~sq. Attorney for Petitioner, Larry Lee Foster July 11, 2002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA LARRY LEE FOSTER Petitioner YS. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent No. APPEAL FROM LICENSE SUSPENSION CERTIFICATE OF SERVICE I, PHILIP L. ZULLI, ESQUIRE, certify that I have served a copy of the APPEAL FROM LICENSE SUSPENSION, on this date by first class certified U.S. mail, return receipt requested, to the following parties: Pennsylvania Departmem of Transportation Office of Chief Counsel Riverfront Office Center- 34 Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 DATED: July//,2002 The Hon. Michael Fisher Attorney General 16th Floor, Strawberry Square Harrisburg, Pennsylvania 17120 1501 North Front Street Harrisburg, Pennsylvania 17102 (717)238-9004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LARRY LEE FOSTER, : Appellant : : V. : : COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, : Appellee : 02-3306 CIVIL TERM ORDER OF COURT AND NOW, this 27th day of September, 2002, counsel having agreed that we are bound by the case of Schneider v. Commonwealth of Pennsylvania Department of Transportation, 790 A.2d 363, the action of the Department is sustained in part and overruled in part. The action of the Department is sustained insofar as it suspends the Appellant's operating privileges for one year as a result of conviction under 3731(a) of the Vehicle Code. It is overruled insofar as it requires the imposition of a guardian interlock device as a precondition for the restoration of those operating privileges at the end of the ~rd E. Guido, J. first year's suspension. George Kabusk, Esquire Attorney for Appellee Philip L. Zulli, Esquire Attorney for Appellant srs 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 LARRY LEE FOSTER, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-3306 Civil Term Notice of Ap.p_.~ 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 September 27, 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 DWISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 R1VERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 830 LARRY LEE FOSTER, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-3306 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 -PYSL10 Cumberland County Prothonotary,s Office Civil Case Inquiry Page 2002-03306 FOSTER LARRY (va) COMMONWEALTH OF PA DEPT OF TRA Reference No..: Case TVDe .... . ~U~gmeh~ ..... ~. APPEAL - LICENSE SUSP uage Assigned: .00 Disposed Desc.: ............ Case Comments General Index FOSTER LARRY LEE 60 CONRAD ROAD APPELLANT CARLISLE PA 17013 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION RIVERFRONT OFFICE 3RD FL 1101 S FRONT ST HARRISBURG PA 17104 2516 * Date Entries ***************************************************** 7/11/2002 ~P~E~L-F~O~ ~U~P~N~I6N-O~ DRIVERS LICENSE FIRST ENTRY 10/01/2002 ............ ORDER OF ~STAINED IN PART AND OVERRULE SUSTAINED D IN PART - IS INSOFAR AS I THE ACTIO PRIVILEGES - IT T SUSPENDS THE AP N OF THE DEPT OF A GUARDI T~I~ogY~RULED INSOFAR A PELLANT~ OPERATING COPIES MAILE~D [~CK DEVICE - BY TH~ ~u~Q~DT~EG~S~TION ********************** ......... LAST ENTRY * Fees & Debits Escrow Inform ' ****************************__*** Bal Pvmts/~On ************************ End Bal * APPEAL LIC SUSP **************************** TAX ON APPEAL 35.00 35.00 .00 SETTLEMENT .50 .50 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 5.00 5 00 5.00 ' .00 ..... 5.00 .00 ......................... *********************************** 50.50 .00 * End of Case Information ******************************** Filed ........ : 7/11/2002 Time ......... : 4:18 Execution Date 0/00/0000 Jury Trial .... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: Attorney Info ZULLI PHILIP L 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 LARRY LEE FOSTER, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTy, PA NO. 02-3306 Civil Term Proof of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: Judge Edward E. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 First Class Mail; Postage Pre-Paid; =, Addressed as Follows: Date: October 28, 2002 Court Reporter Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 Philip L. Zulli, Esquire Att. for Appellee Foster 1501 North Front Street Harrisburg, PA 17102 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division LARRY LEE FOSTER : V. : COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING : : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA NO. 2002-3306 CiVIL TERM ORDER OF COURT AND NOW, this 1sx day of NOVEMBER, 2002, Counsel for the Department of Transportation is directed to file a concise statement of matters complained of on appeal, along with a brief in support thereof, within fourteen (14) days of todays date in accordance with Rule of Appellate Procedure 1925(b). Edward E. Guido, J. District Attorney Terrance M. Edwards, Esquire 1101 South Front Street Harrisburg, Pa. 17104-2516 For the Dept. of Transportation Philip L. Zulli, Esquire 1501 North Front Street Harrisburg, Pa. 17102 :sld LARRY LEE FOSTER, : Appellant : : : COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLanD COUNTY, PENNSYLVANIA 02-3306 CIVIL TERM TR3~NSCRIPT OF PROCEEDINGS IN RE: LICENSE SUSPENSION APPEAl, Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Friday, September 27, 2002, in Courtroom No. 5 APPEARANCES: GEORGE KABUSK, Esquire Attorney for Appellee PHILIP L. ZULLI, Esquire Attorney for Appellant INDEX TO EXHIBIT COMMONWEALTH'S EXHIBIT NO. 1 - Certified records from PennDOT MARKED ADMITTED identification.) (Commonwealth's Exhibit No. 1 was marked for 1 2 3 MR. KABUSK: This is the case of Larry Lee 4 Foster v. Commonwealth of Pennsylvania Department of 5 Transportation, Case No. 02-3306. This is an appeal from a 6 suspension notice dated June 21st, 2002, which notified the 7 Petitioner, Larry Lee Foster, that as a result of his 8 violation of Section 3731 of the Vehicle Code relating to 9 Driving Under the Influence on 11/6/2001, his operating 10 privilege was being suspended for a period of one year 11 pursuant to Section 1532 of the Vehicle Code. Additionally, 12 that notice informed him of the requirement for the ignition 13 interlock. 14 THE COURT: Okay. Now, as I understand the 15 appeal, you're not questioning the underlying suspension. 16 You're questioning the condition that was placed on for the 17 return of his license, is that correct? 18 MR. ZULLI: Yes. If I may rephrase. We're 19 not questioning the one-year underlying suspension with 20 respect to having been convicted of 3731. We're questioning 21 the additional one-year suspension for not having the 22 guardian ignition interlock; if he were ~not to have that 23 installed, that he would be suspended for an additional year. 24 THE COURT: Do we agree on the factual basis 25 that the sentencing judge did not order the imposition of 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 interlock, that this is an action of the Department under the statute? MR. KABUSK: Yes, Your Honor. Subexhibit No. 2, which is a DL-21, underneath Act 63 ignition interlock required, the Box G of no is checked. THE COURT: Okay. So the sentencing judge did not require the interlock? MR. KABUSK: That's what it appears. THE COURT: This was ail action sua sponte on behalf of the Department following what it feels it must follow under the statute, is that correct? MR. KABUSK: Yes, Your Honor. THE COURT: As I also understand it, there's an appellate court case that is directly on point for the facts as exist in this case, is that correct? MR. KABUSK: That would be Schneider, Your Honor, 790 A.2d 363, which basically states the Department does not have an independent mandate to impose the ignition interlock if it's not been ordered by tile trial court. THE COURT: You agree, Mr. Kabusk, that I am bound by Schneider, at least as far as today's proceedings are concerned? MR. KABUSK: For that issue, yes, Your Honor. THE COURT: Is there another issue? 1 MR. KABUSK: I'm not sure. In his petition, 2 Mr. Zulli raised possibly constitutional arguments. 3 MR. ZULLI: We would also submit that the 4 ignition interlock, insofar as it mandates that everyone else 5 in the household has to have an ignition, interlock for any 6 vehicles owned, I believe that, in my view -- my suggestion 7 is that that is unconstitutional. 8 THE COURT: I believe there is a case in 9 this jurisdiction decided by Judge Bayley that has addressed 10 that precise issue and has found it to be unconstitutional. 11 I don't believe there's any appellate decision right on 12 point, is there, Mr. Kabusk? 13 MR. KABUSK: Your Honor, you're referring to 14 the Mockaitis decision here out of Cumberland County. I 15 would argue that the appellate courts have held that it is 16 not unconstitutional in respect to the equal protection 17 argument and the due process argument and the separation of 18 powers argument. I would cite to you two cases. 19 THE COURT: Well, actually I'm going to back 20 up, because if I can decide this case under the basis of 21 Schneider, which I can, then I've got no authority to address 22 the constitutional issue. You've raised it. You've 23 24 25 preserved it. to address it. If there is cross-appeals filed, I'm not going That's up to the courts above to address it. MR. ZULLI: You are correct, Your Honor. 1 2 3 4 5 6 7 8 9 THE COURT: Okay. So with that in mind, are we agreeable to the procedural posture of this case? Department's Exhibit No. 1 will be admitted for the creation of the record. MR. ZULLI: Yes. We agree and stipulate to its admission. MR. KABUSK: And I move for its admission. THE COURT: So that is admitted. (Commonwealth,s Exhibit No. 1 was admitted.) THE COURT: Does either party wish to present any testimony? MR. ZULLI: 10 11 12 I believe that our issue is 13 solely one of law, Your Honor. I beliew~ the DL-21 is the 14 official record that speaks for itself. The only thing I 15 would be prepared to hand out, although I'm sure the Court 16 already has copies of it, would be the copy of the case of 17 Schneider. 18 THE COURT: I've read Schneider. Your 19 worthy opponent concedes that I'm bound by Schneider. 20 MR. ZULLI: If I may, the only other legal 21 point -- I don't know if it's actually within the 22 same argument or not -- I would also note that, according to 23 the law, the Department has to receive a record saying that 24 the ignition interlock is required, and, obviously, they 25 don't have that record. 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: judge didn't order that. MR. ZULLI: Well, they're conceding that the That's corr,ect. I'm just sensitive because I know that PennDOT is appealing every one of these cases up to the higher level, and I want to make sure I preserve every possible avenue of defense. THE COURT: Understood. We'll enter the following Order:. "AND NOW, this 27th day of September, 2002, counsel having agreed that we are bound by the case of Schneider v. Commonwealth of Pennsylvania Department of Transportation, 790 A.2d 363, the action of the Department is sustained in part and overruled in part. The action of the Department is sustained insofar as it suspends the Appellant's operating privileges for one year as a result of conviction under 3731(a) of the Vehicle Code. It is overruled insofar as it requires the imposition Of a guardian interlock device as a precondition for the restoration of those operating privileges at the end of the first year's suspension.,, Okay, Counsel. Anything else you want on the record? MR. KABUSK: No, Your Honor. MR. ZULLI: Nothing further, Your Honor. (Court was adjourned.) CERTIFIC~ATION 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. Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date Edward E. Guido, J. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 LARRY LEE FOSTER, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, PA } NO. 2002-3306 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, by and through its attorney, Terrance M. Edwards, Esquire, and, 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 September 27, 2002: 1. The trial court erred as a matter of law when it held that the Department 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 holdings in Turner v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d 671 (Pa. Cmwlth. 2002), and Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), and that those holdings are binding upon the trial court, the Bureau continues to believe that Turner and Schneider were wrongly decided on that point of law and it 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 Turner and 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 petitions for allowance of appeal of the Commonwealth Court's decisions in Turner and Schneider, one of which the Pennsylvania Supreme Court has placed on "hold" pending its disposition of the appeals in the Probst and Mockaitis cases. 2. The trial court erred if it sustained, even in part, the driver's challenge to the Ignition Interlock Law since that law is constitutional both on due process, equal protection grounds and under the principle of separation of powers and the driver failed to establish that the statute offends any provision of either the United States or Pennsylvania Constitutions. See Turner v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d 671 (Pa. Cmwlth. 2002) (Ignition Interlock Law does not violate equal protection, due process or the constitutional principle of separation of powers); Frederick v. Department of Transportation, Bureau of Driver Licensing, 802 A.2d 701 (Pa. Cmwlth. 2002) (Ignition Interlock Law does not constitute an ex post facto 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.4~ 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 September 27, 2002. Respectfully submitted, Terrance M. Edwards Assistant Counsel Appellate Section Vehicle & Traffic Law Division Attorney I.D. No. 25231 Attorney for Appellant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 LARRY LEE FOSTER., Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-3306 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: The Honorable Edward E. Guido Philip L. Zulli, Esquire Judge of the Court of Common Pleas Attorney for Appellee Foster Cumberland County Courthouse 1501 N. Front St. 1 Courthouse Square Harrisburg, PA 17102 TERRANCE M. EDWARDS Attorney for Department of Transportation Date: November 14, 2002 LARRY LEE FOSTER COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-3306 CIVIL TERM IN RE: OPINION PURSUANT TO Pa. iR.A.P. 1925 Guido, J. November ~- ~ ,2002 On November 6, 2001, petitioner was convicted of driving under thc influence~ in the Court of Common Pleas of Montgomery County. As a result of said conviction, the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT) suspended his operating privileges. Since it was a second or subsequent offense, PennDOT directed that an ignition interlock device be installed on all vehicles owned by petitioner as a precondition to the restoration of his operating privileges? Petitioner objected to the requirement that he install the ignition interlock devices. We sustained his objection and PennDOT has appealed. When the defendant was sentenced on the underlying driving under the influence conviction, the judge did not order the installation of any ignition interlock devices. The parties agree that the case of Schneider v. Commonwealth of Pennsylvania, Department ~ 75 Pa. C.S.A. § 3731. 28 -. ee Igmt~on Interlock Device Act (42 Pa. C.S. §§ 7001-7003). NO. 2002-3306 CIVIL of Transporation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Commonwealth 2002) is controlling. Based upon the Schneider case, we felt compelled to vacate that portion of PennDOT's action which required the installation of ignition interlock devices as a precondition to the restoration of petitioner's operating privileges. DATE Edward E. Guido, J. / Philip L. Zulli, Esquire For the Appellant George Kabusk, Esquire For the Appellee :sld