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HomeMy WebLinkAbout00-6624 civilROBERT C. FITZSIMMONS Appellant VS. COM. OF PA., DEPT. OF TRANSPORTATION, BUREAU OF DRIVERS LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-6624 CIVIL ACTION - LAW APPEAL OF LICENSE SUSPENSION IN RE: APPEAL OF LICENSE SUSPENSION ORDER AND NOW, this day of January, 2001, the appeal of Robert C. Fitzsimmons is SUSTAINED and the action of the Department suspending his operating privileges is REVERSED. BY THE COURT, Paul Esposito, Esquire For the appellant George Kabusk, Esquire For PennDOT · Hess, J. · 'rlm ROBERT C. FITZSIMMONS Appellant VS. COM. OF PA., DEPT. OF TRANSPORTATION, BUREAU OF DRIVERS LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-6624 CIVIL ACTION- LAW APPEAL OF LICENSE SUSPENSION IN RE: APPEAL OF LICENSE SUSPENSION MEMORANDUM OPINION AND ORDER In this case, the movant has filed an appeal from the suspension of his Pennsylvania driver's license. The suspension, in turn, resulted from his guilty plea, in the state of New Jersey, to a count of operating under the influence of liquor. He raises three issues, one of which, under the current state of the law, causes us to sustain his appeal. First, the appellant contends that he received bad advice from his New Jersey lawyer. He was told, incorrectly, that his guilty plea in New Jersey would have no impact on his Pennsylvania operator's license. He further contends that, had he known 'his license would be suspended in Pennsylvania, he would not have pled guilty in New Jersey. We know of no authority for the proposition that a driver's license suspension may be vacated on account of bad advice from counsel. In any event, such a contention would entail a collateral attack on the underlying criminal conviction which is clearly impermissible. See Orndorff v. Com., Dept. of Transp., 654 A.2d 1 (Pa. Cmwlth. 1994). Second, Mr. Fitzsimmons contends that his New Jersey violation was not adequately described in the extract of the New Jersey traffic record.' The defendant, however, took the stand at the hearing of this case and admitted that he had pled guilty to driving under the influence. In Geesaman v. Com., Dept. of Transp., 762 A.2d 1142 (Pa. Cmwlth, 2000), the court held that 00-6624 CIVIL recent amendments to the Vehicle Code give the Department of Transportation the authority to suspend a license even though the information received from a compact state is incomplete. In Geesaman the license suspension was upheld where, in addition to documentation supporting the conviction, there was testimony from the appellant that he did, indeed, plead guilty to driving under the influence of alcohol. Finally, the appellant contends that the New Jersey DUI law is not "substantially similar" to Pennsylvania's driving under the influence statute so as to warrant a license suspension pursuant to the interstate compact, 75 Pa.C.S.A. 1581. The recent Supreme Court case of Com. v. McCafferty, 758 A.2d 1155 (Pa. 2000) included a remand to the trial court of the question of whether N.J.S., Section 39:4-50(a) is substantially similar to 75 Pa.C.S.A. 3731 (driving under the influence) for the purpose of the compact,l The question would, therefore, appear to be open in the Supreme Court. The Commonwealth Court, in the meantime, has made it clear that it considers the New Jersey law to be, indeed, substantially similar to the Pennsylvania enactment. In Seibert v. Com., Dept. of Transp., 715 A.2d 517 (Pa. Cmwlth. 1998) the court affirmed a ruling of the Bucks County Court of Common Pleas to that effect, by simply incorporating the lower court's opinion by reference. In Kiebort v. Com., Dept. of Transp., 719 A.2d 1139 (Pa. Cmwlth. 1998) the court adopted the reasoning of the Superior Court in Com. v. Whisnant, 390 Pa. Super. 192, 568 A.2d 259 (1990) to the effect that the Pennsylvania and New Jersey DUI statutes were "substantially identical." We are, of course, bound by the holdings of our intermediate appellate courts. On January 5,2001, however, the Kiebort case was remanded "for proceedings consistent with Com. of Pa., Dept. of Transp., Bureau of Driver Licensing v. The Supreme Court remanded on this issue because the trial court had not addressed it in any way. O0-6624 CIVIL McCaffert¥, 758 A.2d 1155 (Pa. 2000)." Kiebort v. Com., 2001 W.L. 10605 (Pa.), ~ A.2d (2001). The import of this remand from the Supreme Court is not entirely clear to us. We note, however, that the remand in Com. v. McCaffertv, was to the trial court. As applied to this case, we understand that as a direction to us to address the question of whether the New Jersey statute has the requisite substantial similarity. This court has recently spoken to that issue. In Mease v. Dept. of Transp., No. 99-5259 Civil Term, in an opinion and order dated November 15, 2000, the Honorable Edward E. Guido held that the New Jersey DUI law did not have the requisite similarity to the definition in Article IV of the Compact, 75 Pa.C.S.A. 1581. Accordingly, we will enter the following order. ORDER AND NOW, this day of January, 2001, the appeal of Robert C. Ftizsimmons is SUSTAINED and the action of the Department suspending his operating privileges is REVERSED BY THE COURT, Paul Esposito, Esquire For the appellant Hess, J. George Kabusk, Esquire For PennDOT 'rlm