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PETSINGER v. PA. DEPT. OF TRANSP.

July 1, 2002

JOHN W. PETSINGER, PLAINTIFF,
V.
PA. DEPT. OF TRANSPORTATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joyner, District Judge.

MEMORANDUM AND ORDER

Presently before this Court is the Motion to Dismiss of the Defendant, Pennsylvania Department of Transportation ("PennDOT"). The pro se Plaintiff, John W. Petsinger ("Plaintiff"), filed his complaint on August 21, 2001.

PennDOT seeks to dismiss Plaintiffs complaint against it under Fed.R.Civ.P. 12(b)(1), 12(b)(5), and 12(b)(6). For the following reasons, Plaintiffs complaint against PennDOT is dismissed.

BACKGROUND

Under the Driver's License Compact, 75 Pa.C.S.A. § 1581, Pennsylvania gives the same effect to motor vehicle convictions obtained in another state as if the conviction had occurred in Pennsylvania. Delaware has adopted this statute, (21 Del.C. § 8101), and, therefore, exchanges information concerning motor vehicle convictions with Pennsylvania.

On May 22 and June 19, 2001, Plaintiff wrote to Rebecca L. Bickley, Director of the Bureau of Driver Licensing for PennDOT, and Harold Cramer in the Office of Chief Counsel for PennDOT, respectively, requesting that PennDOT postpone the suspension of Plaintiffs driver's license. However, PennDOT suspended Plaintiffs driver's license on June 28, 2001, based upon Plaintiffs conviction for driving under the influence in Delaware.

Plaintiff claims in his complaint that PennDOT suspended his driver's license without notice to him based upon a false conviction for driving under the influence in Delaware.

DISCUSSION

I. Legal Standard

When deciding a 12(b)(1) motion, "dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false, but only because the right claimed is `so insubstantial, implausible, foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 776, 39 L.Ed.2d 73, (1974)). Consequently, "[t]he threshold to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(1) is thus lower than that required to withstand a Rule 12(b)(6) motion." Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989).

A motion to dismiss under Fed.R.Civ.P. 12(b)(5) for insufficiency of service or process contends that the Defendant did not receive sufficient notice of the action as set forth in Rule 4. "[T]he party making the service has the burden of demonstrating its validity when an objection to service is made." Reed v. Weeks Marine, Inc., 166 F. Supp.2d 1052 (E.D.Pa. 2001). See also Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488-89 (3d Cir. 1993); Addanki v. Def. Logistics Agency Def. Personnel Support Ctr., No. 95-CV-696, 1996 WL 635590 at *1 (E.D.Pa. 1996).

A motion to dismiss based upon Fed.R.Civ.P. 12(b)(6) may only be granted where the allegations fail to state any claim upon which relief can be granted. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court must view all facts, and reasonable inferences drawn therefrom, in the light most favorable to the non-movant. Fed.R.Civ.P. 12(b)(6); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). However, the Court will construe a pro se Plaintiffs complaint more liberally and hold it to a less stringent standard than a pleading drafted by an attorney. ...


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