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Home My WebLink About02-4079Jan L. Warner, Appellant, VS. Commonwealth of Pennsylvania : Department of Transportation Bureau of Driver Licensing, Appellee : : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA No. 02- Z/OT? CIVIL TERM PETITION TO APPEAL NUNC PRO TUNC 1. Jan L Warner is an adult individual with a current address of 115 Cavalry Road, Carlisle, Cumberland County, Pennsylvania, 17013. 2. The Appellee, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, is the Department responsible for the licensing of drivers and suspension of the same. 3. On or about April 2, 2002, the Appellant having previously appeared before the Court of Common Pleas of Cumberland County and entered a plea of guilty to a count of driving under the influence, was sentenced by the Honorable Edward E. Guido to a term of imprisonment in the Cumberland County Prison. 4. On or about April 4, 2002, the Appellant was paroled to the Saint Joseph Hospital Drug and Alcohol Rehabilitation Program effective April 5, 2002. 5. On May 7, 2002, the Appellant's parole was revoked and she was recommitted to the Cumberland County Prison for the balance of her unexpired term. 6. The Appellant was lodged in the Cumberland County Prison from April 25, 2002 and released on July 30, 2002. 7. Just prior to the time that the Appellant was sent to her rehab program, the Appellee, Bureau of Driver Licensing, did mail to her a Notice of Suspension which included the Ignition Interlock requirement, which has been consistently appealed in Cumberland County. 8. The Honorable Edgar 13. Bayley in Commonwealth v. Mockaitis, 50 Cumberland Law Journal 184 (2001), held that the provisions of Act 63 of 2000 upon which the Appellee premised its Order on the use of an Ignition Interlock were unconstitutional. 9. The Appellee did impose an unconstitutional requirement on the Appellant from which now she now seeks the opportunity to appeal. 10. The Appellant was unable to appeal this matter because at the time the thirty (30) day period to appeal ran, she was in close confinement in a drug and rehabilitation program, did not have access to the Notice of Suspension from PennDOT, and thereafter was held in the Cumberland County Prison and did not know how to contact anyone to assist her in this process. 11. Upon her release from the Cumberland County Prison at the end of July 2002, she promptly contacted current counsel who agreed to file the Instant Nunc Pro Tunc Petition and appeal from license suspension. 12. The interest of justice will be served by allowing the Appellant this opportunity to appeal Nunc Pro Tunc because she was unable to do so within the thirty (30) days of mail date of the Notice of Suspension and because her underlying appeal has significant merit as the Appellee has acted in an unconstitutional and illegal manner by imposing restrictions against the return of her license which have been held unconstitutional by the Court of Common Pleas of Cumberland County. WHEREFORE, for all the above reasons, the Appellant, Jan L. Warner, by and through her attorney, Ron Turo, Esquire, respectfully requests this Court grant her relief by allowing her to appeal Nunc Pro Tunc from the license suspension imposed upon her with a mail date of March 14, 2002. Ron ~uur~ E-~qsquir~ Attorney for Appellant Turo Law Offices 28 South Pitt Street Carlisle, PA 17103 (717) 245-9688 Jan L. Warner, Appellant, VS. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02 - z/g?7 CIVIL TERM PETITION FOR APPEAL FROM IMPOSITION OF 1. Appellant herein is Jan L. Warner, residing at and having a mailing address of115 Cavalry Road, Carlisle, PA 17013. 2. Appellee herein is the Department of Transportation of the Commonwealth of Pennsylvania, having a mailing address of: Department of Transportation, Bureau of Driver Licensing, Harrisburg, Pennsylvania 17123. 3. By letter or notice dated March 19, 2002, a copy of which is Attached hereto as Exhibit A, the Department of Transportation suspended Appellant's operating privileges as a result of her conviction for DUI and susa s__pont~e imposed ignition interlock requirements. 4. Imposition of ignition interlock requirements is unlawful Jn that it was done by PennDOT without legal authority and in the absence of imposition of those requirements by this Court. Appellant respectfully requests that this matter be set down for a hearing and tha the imposition of ignition interlock requirements imposed on Appellant by PennDOT be set aside. Date Ron Turo, Esquire Turo Law Offices 28 South Pitt St. Carlisle, PA 17013 (717) 245-9688 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUreau of Driver Licensing Mail Date: MARCH lq, 2002 JAN L WARNER 115 CAVALRY RD CARLISLE PA 17013 WID # 020666117622627 001 PROCESSING DATE 03/07/2002 DRIVER LICENSE # 19791065 DATE OF BIRTH 08/02/1962 Dear NS. WARNER: LICENSE IN BUREAU This is an official Notice of the Suspension of your Driving Privilege as authorized by Section 1552B of the Pennsylvania Vehicle Code. As a result of Your 02/19/2002 conviction of violating Section 3731 of the Vehicle Code DRIVING UNDER INFLUENCE on 09/21/2001: Your driving privilege is SUSPENDED fop a Period of 1 YEAR(s) effective 02/19/2002 at 12:01 aom, 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 fine 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 WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefully. Even if you have sepved all the time on the sus~enston/revocatlon, we cannot PriVilege until all k ......... restore Your driving t,,. ,-=~u~Pements ape satisfied. P~AYING THE R[~TORATION 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 encIosed ApPIication for Restoration. The amount due is listed on the application. Jan L. Warner, Appellant, VS. Commonwealth of Pennsylvania Department of Transportation Bureau of Driver Licensing, Appellee · IN THE COURT OF COMMON PLEAS · OF CUMBERLAND COUNTY, · PENNSYLVANIA · No. 02- ~/O?~ CIVIL TERM ORDER OF ~ A.o.ow, review of the Petition for hearing, a I~earin~is scheduled on the day of ~/~ , 2002 at ~2,'3~/ //~.m. in Courtroom No. ,~ of the Cumberland County Courthouse, Carlisle, Pennsylvania· BY THE COURT, JAN WARNER V COMMONWEALTH OF PA., DEPT. OF TRANSPORTATION : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND CO~TY, PENNSYLVANIA : : 02-4079 CIVIL TERM : : APPEAL FROM LICENSE SUSPENSION IN RE: APPEAL FROM LICENSE SUSPENSION ORDER OF COURT AND NOW, December 6, 2002, Mr. Turo having requested an opportunity to respond in writing to the motion to quash the appeal, he will be given that opportunity and he is directed to respond to the motion no later than Friday', December 13, 2002. Included with his answer, he shall furnish a brief supporting his question. If the appellant raises any new matter, the Department shall have seven days to respond. At that point the Court will consider the matter ripe for decision on the briefs presented. By the Court, Ron Turo, Esquire For Jan Warner George Kabusk, Esquire For Dept. of Transportation :mtf JAN L. WARNER Appellant · IN THE COURT OF COMMON PLEAS · OF CUMBERLAND COUNTY, 'PENNSYLVANIA CIVIL ACTION -- LAW COMMONWEALTH OF PEN NSYLVAN IA, D EPARTM ENT OF TRANSPORTATION, BUREAU OF DRIVER LISCENSING: Appellee No. 02-4079 CIVIL TERM IN RE: APPEAL REGARDING INGNITION INTERLOCK REQUIREMENT ORDER OF COURT AND NOW, this 31st day of December, 2002, the refusal by the Department of Transportation to restore appellant's driving privilege following the completion of her one year suspension for a conviction of driving under the influence, IS REVERSED. (.See Heberliq v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, No. 02-4874 Civ. (Pa. Commw. Ct. Dec. 19, 2002); Schneider v. Commonwealth of Pennsylvania, 790 A.2d 363 (Pa. Commw. Ct. 2002)). By the Court ,,,,- George H. Kabusk, Esquire For the Department of Transportation ~,' Ron Turo, Esquire For Appellant ~lhYA"~NN'dd 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 JAN L. WARNER, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-4079 Civil Term Notice of Aooeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on December 31, 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, e-- kj/~ 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 JAN L. WARNER, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 0:2-4079 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 irt 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 PYS510 Page 1 Cumberland County Prothonotary's Office Civil Case Inquiry 2002-04079 Reference No..: Ca~e Type ..... : PETITION JuQgment ..... = .00 Judge A~signed: Disposed Desc.: Case Comments ............. WARNER JAN L (vs) PENNSYLVANIA COMMONWEALTH OF Filed ........ : Time ......... : Execution Date Jury Trial.~.. Disposed Date. Higher Crt 1. Higher Crt 2.: 8/28/2002 10:58 o/oo/oooo o/oo/oooo General Index Attorney Info WARNER JAN L 115 CAVALRY ROAD CARLISLE PA 17013 PETITIONER RESPONDANT TURO RON PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRA~NSPORTATION DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG PA 17123 * Date Entries * 8/28/2002 8/28/2002 9/03/2002 12/16/2002 12/31/2002 ............. FIRST ENTRY ............ PETITION FOR APPEAL NUNC PRO TUNC .... PRO TUNC - HEARING IS SCHEDULED ON 12/6/02 AT 9:30 AM IN CR 3EO~GER THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT G 0 E HOFFER PJ COPIES MAILED ......... SUSPENSION - MR TURO HAVING REQUESTED AN OPPORTUNITY TO RESPOND IN WRITING TO THE MOTION TO QUASH THE APPEAL HE WILL BE GIVEN THAT OPPORTUNITY AN HE IS DIRECTED TO RESPOND TO THE MOTION NO LATER THAN FRIDAY 12/13/02 INCLUDED WITH HIS ANSWER HE SHALL FURNISH A BRIEF SUPPORTING HIS QUESTION IF THE APPELLANT RAISES ANY NEW MATTER THE DEPARTMENT SHALL HAVE SEVEN DAYS TO RESPOND AT THAT POINT THE COURT WILL CONSIDER THE MATTER RIPE FOR DECISION ON THE BRIEFS PRESENTED - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED INTERLOCK REQUIREMENT - THE REFUSAL BY THE DEPARTMENT OF TRANSPORTATION TO RESTORE APPELLANT'S DRIVING PRIVILEGE FOLLOWING THE COMPLETION OF HER ONE YEAR SUSPENSION FOR A CONVICTION OF DRIVING UNDER THE INFLUANCE IS REVERSED - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED .............. LAST ENTRY .............. * End of Case Information * ******************************************************************************** TRUE COPY FROM RECORD m Testimony whoreol, I hBre unto set my h,lm(i and, the ~al o1 said C~Jrt at Cartisle, I~. 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 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JAN L. WARNER, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS £)F CUMBERLAND COUNTY, PA NO. 02-4079 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 George E. Hoffer Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 First Class Mail; Postage Pre-Paid; Addressed as Follows: Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Ron Turo, Esquire Att. for Appellee Warner 28 South Pitt Street Carlisle, PA 17013 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: January 16, 2003 JAN L. WARNER, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVNIA · 02-4079 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN RE: STATEMENT OF REASON.~ ORDER OFCOURT AND NOW, January 13, 2003, notice having been received that an appeal has been taken in the above-captioned matter, it is ordered and directed that the appellant forthwith file with the trial judge a concise statement of the matters complained of on the appeal, together with reference to any statutory authority or any rule of court. Upon the failure of the appellant to file such reasons within ten days, the court will presume that the appeal has been abandoned. Terrance M. Edwards Assistant Counsel, Appellate Section Riverside Office Center - 3r~ Floor 1101 South Front Street Harrisburg, PA 17104-2516 Ron Turo, Esquire 29 South Pitt Street Carlisle, Pa 17013 COMMONW] DEPARTME~ OFFICE OF (2 VEHICLE & BY: TERK ASSIST APPEL ATTORNEY RIVERFRON 1101 SOUTH HARRISBUR (717) 787-283 JAN L. WAR] COMMONW DEPARTMEI BUREAU OF Concis TO THE NOW Bureau of Dr~ and, in compl: about which i' 2002: 1. The to appeal the ~ALTH OF PENNSYLVANIA IT OF TRANSPORTATION HIEF COUNSEL ['RAFFIC LAW DIVISION ,NCE M. EDWARDS ANT COUNSEL LATE SECTION i.D. NO. 25231 F OFFICE CENTER - THIRD FLOOR FRONT STREET S, PENNSYLVANIA 17104-2516 qER, Appellee ~ALTH OF PENNSYLVANIA, lT OF TRANSPORTATION, DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO,. 02-4079 CIVIL TERM Statement of Matters Complained of on Appeal ~IORABLE, THE JUDGES OF THE SAID COURT: 2OMES the Commonwealth of Pennsylvania, Department of Transportation, ver Licensing, Appellant, by and through its attorney, Terrance M. Edwards, ance with the requirements of Pa. R.A.P. 1925, hereby sets forth the matters complains with respect to its appeal of this Court's order of December 31, trial court erred as a matter of law when it granted Appellee Warner's petition Bureau's notice of suspension, dated MarCh 14, 2002, on a nunc pro tunc basis. untimely, and tunc. 42 Pa.C Driver Licens# Bureau of Dri In filihg her appeal on August 8, 2002, Appellee Wamer's appeal clearly was she failed to establish sufficient basis to support allowing an appeal nunc pro .S. §§933, §5571(b), §5572; Maxion v. Department of Transportation, Bureau of tg, 728 A.2d 442 (Pa. Cmwlth. 1999); Bye v. Department of Transportation, vet Licensing, 607 A.2d 325 (Pa. Cmwlth. 11992); McKeown v. Department of Transportationt 601 A.2d 486 (Pa. Cmwlth. 1991). 2. Th~ trial court erred as a matter of law when. it held that the Department of Bureau of Driver Licensing, does not have a clear statutory duty and 42 Pa.C.S. §7~ §7003 and pro of any repeat Interlock Law interlock rest~ one-year SUSl: offender's DU holdings in Tu 671 (Pa. Cmw Licensing, 79~3 trial court, the )02. This clear and unambiguous statutory mandate is found in 42 Pa.C.S. hibits the Department of Transportation from restoring the operating privilege DUI offender who does not comply with 'the requirements of the Ignition and requires the Department to issue such a repeat DUI offender an ignition cted driver's license following that offender's completion of service of the ension mandated by 75 Pa.C.S. §1532(1:,)(3) as a consequence of the conviction. While the Department recognizes the Commonwealth Court's ncr v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d [th. 2002), and Schneider v. Department of Transportation, Bureau of Driver A.2d 363 (Pa. Cmwlth. 2002), and that those holdings are binding upon the Department continues to believe that Turner and Schneider were wrongly Transportation, mandate to etforce 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 decided on that point of law and it continues to litigate this issue before the Pennsylvania Supreme Court. The Department further submits that thiis issue has not yet been finally decided, as rite Supreme Court is actively considering the issues disposed of by the Commonweallh Court in Turner and Schneider in the case of Probst v. Department of Transportations, Bureau of Driver Licensing, No. 81 MAP 2001, and similar issues are before the Su treme Court in the case of Commonwealth v. Mockaitis, No. 32 MAP 2001. The Departm~,nt has also filed petitions for allowance of appeal of the Commonwealth Court's decisi, ins 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. 3. Th~ 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 that the stat Constitutions. 805 A.2d 671 due process Department ~ 2002) (Igniti{ Etheredge, 79 the Equal Pr rider the principle of separation of powers .and the driver failed to establish Lte offends any provision of either the United States or Pennsylvania See Turner v. Department of TransportatiOn, Bureau of Driver Licensing, (Pa. Cmwlth. 2002) (Ignition Interlock Law does not violate equal protection, or the constitutional principle of separation of powers); Frederick v. £ Transportation, Bureau of Driver Licensing, 802 A.2d 701 (Pa. Cmwlth. a Interlock Law does not constitute an ex post facto law); Commonwealth v. ~ A.2d 391 (Pa. Super. 2002) (Ignition Interlock Law does not violate either ~tection or Due Process Clauses of the United States or Pennsylvania Constitutions)I C.4th 309 (C.~ (C.P. Cumber have been imp 4. The raised by the December 31, Contrary trial court decisions, such as Commonwealth v. Riggs, 53 Pa. D. & Cumberland 2001), and Commonwealth v. Mockaitis, 54 Pa. D. & C.4th 115 iand 2001), which held that the Ignition Interlock Law is unconstitutional, licitly overruled by these intermediate appellate court decisions. Department reserves the right to argue any additional issues that may be common pleas court's opinion filed in support of that court's order of ~.002. Respectfully submitted, Terrance M. Edwards Assistant C. ounsel Appellate Section Vehicle & Traffic Law Division Attorney I.D. No. 25231 Attorney for Appellant COMMONW] DEPARTME]? OFFICE OF (2 VEHICLE & BY: TER1L ASSIST~ APPEL ATTORNEY RIVERFRON 1101 SOUTH HARRISBUR (717) 787-283 JAN L. WAR] COMMONW DEPARTME? BUREAU OF I hereb, the foregoing persons in the R.A.P. 121: The Honorable President Judge Cumberland Ce 1 Courthouse Carlisle, PA 1 ~.ALTH OF PENNSYLVANIA IT OF TRANSPORTATION HIEF COUNSEL ?RAFFIC LAW DIVISION 2qCE M. EDWARDS 4NT COUNSEL LA TE SECTION i.D. NO. 25231 F OFFICE CENTER - THIRD FLOOR FRONT STREET 3, PENNSYLVANIA 17104-2516 /ER, Appellee rS. ~ALTH OF PENNSYLVANIA, IT OF TRANSPORTATION, DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-4079 CIVIL TERM Certificate of Service certify that I have On this day and date duly served a true and correct copy of ~oncise Statement of Matters Complained of on Appeal upon the following following manner, which service complies with the requirements of Pa. First Class Mail; Postage Pre-Paid; Addressed as Follows: aeorge E. Hoffer of the Court of Common Pleas unty Courthouse ;quare r013-3387 Ron Touro, Esquire Attorney for Appellee 29 South Pitt Street Carlisle, PA 17013 TERRANCE M. EDWARDS Attorney for Department of Transportation Date: January 23, 2003