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HomeMy WebLinkAbout01-1309 CivilELLEN A. MCNAMARA, Appellant VS. COM. OF PENNSYLVANIA, DEPARTMENT OF TRANS., BUREAU OF LICENSING, Appellee IN RE: APPEAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1309 CIVIL CIVIL ACTION - LAW OF DRIVER'S LICENSE SUSPENSION ORDER AND NOW, this ~. t ~ day of May, 2001, the appeal of Ellen A. McNamara is SUSTAINED and the action of the Department suspending her operating privileges is REVERSED. Gregory Abeln, Esquire For the Appellant BY THE COURT, K/~. Hess, J. George Kabusk, Esquire For PennDOT :rim ELLEN A. MCNAMARA, Appellant VS. COM. OF PENNSYLVANIA, DEPARTMENT OF TRANS., BUREAU OF LICENSING, Appellee IN RE: APPEAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1309 CIVIL CIVIL ACTION - LAW OF DRIVER'S LICENSE SUSPENSION OPINION AND ORDER In this case, Ellen A. McNamara has appealed the suspension of her driver's license. On February 5,2001, the Pennsylvania Department of Transportation sent her a notice of license suspension as a result of a January 3,2001, driving under the influence conviction in the state of New Jersey. In connection with her conviction, by order of January 3, 2001, the New Jersey court granted a civil reservation "prohibiting the use of the defendant's plea, the fact of conviction or the sentence imposed herein as evidential in any civil or administrative proceeding ...." We note that, with respect to such reservations, the Commonwealth Court has held that they do not bar license suspensions in Pennsylvania. The case of Bourdeev v. Com., Dep't. of Transp., Bureau of Drivers Licensing, 755 A.2d 59 (Pa. Cmmwlth.2000) and its progeny held that while the New Jersey rule allowing a civil reservation with respect to a guilty plea prohibits the use of the plea itself in any civil proceeding, it does not bar the introduction of evidence of the conviction that resulted from the guilty plea. The other issue raised by the petitioner has to do with her contention that the New Jersey DUI law is not "substantially similar" to Pennsylvania's driving under the influence statute so as 01-1309 CIVIL The other issue raised by the petitioner has to do with her contention 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. As this court noted in the recent matter of Robert C. Fitzsimmons, appellant, v. Com. of Pa., Dept. of Trans., Bur. of Drivers Licensing, No. 00-6624 Civil Term, in an opinion dated January 23, 2001: 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.1 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. McCafferty, 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. The Supreme Court remanded on this issue because the trial court had not addressed it in any way. 01-1309 CIVIL We note, however, that the remand in Com. v. McCafferty, 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 grant the within appeal from license suspension. AND NOW, this ORDER day of May, 2001, the appeal of Ellen A. McNamara is SUSTAINED and the action of the Department suspending her operating privileges is REVERSED. Gregory Abeln, Esquire For the Appellant BY THE COURT, George Kabusk, Esquire For PennDOT :rim