HomeMy WebLinkAbout2010-6379
JEFFREY JOSEPH FAVOROSO, : IN THE COURT OF COMMON PLEAS OF
APPELLANT : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT OF :
TRANSPORTATION, BUREAU OF :
DRIVER LICENSING, :
APPELLEE : 10-6379 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF OPERATOR’S PRIVILEGE
MEMORANDUM OPINION AND ORDER OF COURT
Masland, J., October 12, 2011:--
Before the court is the appeal by Jeffrey Joseph Favoroso (Favoroso) of
the license suspension issued by the Pennsylvania Department of Transportation
1
(PennDOT) resulting from an underage drinking violation.
The essence of the appeal is that an agreement had been reached before
the Magisterial District Judge to withdraw the underage drinking charge and have
Favoroso enter ARD solely on the companion charge of driving under the
2
influence by a minor. Unfortunately, both the DUI and underage drinking
offenses were mistakenly waived to court. And, because of the ARD practice in
Cumberland County, the Appellant was unaware of the lingering underage
drinking charge until he received notice of the suspension from which he
promptly appealed.
It would be easy, and perhaps safe, for the court to rely on Levinson v.
1
18 Pa.C.S § 6308(a)
2
75 Pa.C.S. § 3802(e).
10-6379 CIVIL TERM
Commonwealth, 926 A.2d 1284 (Pa. Cmwlth. 2007), where the court held that a
licensee’s admission into an ARD program is sufficient to support a license
3
suspension under Section 1532(d) of the Motor Vehicle Code. However, that
case would be apropos if Mr. Favoroso was challenging the suspension related
to the driving under the influence offense for which he knowingly and willingly
entered ARD. Here, Trooper Ronald Carey testified that the agreement reached
at the Magisterial District Judge’s office was to withdraw or otherwise dismiss the
underage drinking offense before the entrance into ARD. Therefore, Mr.
Favoroso unknowingly and unwillingly entered ARD on that charge and the
analogy with Levinson breaks down.
Mr. Favoroso bargained for a specific benefit, which would require him to
serve one ninety-day suspension instead of two, and but for what appears to be
an overlooked clerical error he would have received that benefit. Despite the
rationale of Levinson that once an ARD program has been completed, a
consequent suspension is a fait accompli we beg to differ. Therefore, we will
extend the full benefit of the bargain to Mr. Favoroso and enter the following
order.
ORDER OF COURT
AND NOW, this day of October, 2011, upon
3
75 Pa.C.S. Section 1532(d) authorizes PennDOT’s suspension of operating
privileges “upon receiving any certified record of the driver’s conviction,
adjudication of delinquency, or admission into a preadjudication program for a
violation under 18 Pa.C.S. Section 6307, 6308 or 6309.” (emphasis added.)
-2-
10-6379 CIVIL TERM
consideration of the appeal from suspension of operator’s privilege and after
SUSTAINED.
hearing and argument, the appeal is Appellant’s suspension for a
DISMISSED.
violation of 18 Pa.C.S. Section 6308 is
By the Court,
Albert H. Masland, J.
Philip Bricknell, Esquire
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
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-3-
JEFFREY JOSEPH FAVOROSO, : IN THE COURT OF COMMON PLEAS OF
APPELLANT : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT OF :
TRANSPORTATION, BUREAU OF :
DRIVER LICENSING, :
APPELLEE : 10-6379 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF OPERATOR’S PRIVILEGE
ORDER OF COURT
AND NOW, this day of October, 2011, upon
consideration of the appeal from suspension of operator’s privilege and after
SUSTAINED.
hearing and argument, the appeal is Appellant’s suspension for a
DISMISSED.
violation of 18 Pa.C.S. Section 6308 is
By the Court,
Albert H. Masland, J.
Philip Bricknell, Esquire
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
:saa