Opinion
No. 1996 C.D. 2013 No. 1997 C.D. 2013
01-06-2015
William O. Hazzard v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Appellant William O. Hazzard v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
These are consolidated appeals by the Commonwealth of Pennsylvania, Department of Transportation (Department), Bureau of Motor Vehicles (Motor Vehicles) and Bureau of Driver Licensing (Driver Licensing), from orders of the Court of Common Pleas of Northumberland County (trial court). The trial court sustained the statutory appeals of William O. Hazzard (Hazzard) from (i) a three-month suspension of the registration of Hazzard's vehicle, imposed by Motor Vehicles, and (2) a three-month suspension of Hazzard's operating privilege, imposed by Driver Licensing, each in accordance with the requirements of Section 1786(d) of Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL"), 75 Pa. C.S. § 1786(d). Section 1786(d) of the MVFRL provides, in relevant part:
Due to the retirement of President Judge Robert B. Sacavage, who presided at the hearing, the trial court's opinion was authored by President Judge Wm. Harvey Wiest. This Court's references to the trial court herein include both President Judge Sacavage and President Judge Wiest.
(d) Suspension of registration and operating privilege.75 Pa. C.S. § 1786(d).
(1) The Department of Transportation shall suspend the registration of a vehicle for a period of three months if it determines the required financial responsibility was not secured as required by this chapter and shall suspend the operating privilege of the owner or registrant for a period of three months if the department determines that the owner or registrant has operated or permitted the operation of the vehicle without the required financial responsibility...
Hazzard was cited by a police officer on July 21, 2013 for a violation of Section 1786(f) of MVFRL, for permitting his vehicle to be operated without the required financial responsibility coverage. (Electronically Transmitted Conviction Report, Exhibit C-1, Reproduced Record (R.R.) at 46a-47a, 52a.) On August 23, 2013, Hazzard paid the fine and costs for this violation at District Court 08-2-01 in Mount Carmel, and as such pled guilty and was convicted by the magisterial district judge of violating Section 1786(f) of MVFRL. An electronic record of the traffic citation was sent to the Department, and by Official Notice dated September 1, 2013, Motor Vehicles advised Hazzard that the registration for his vehicle would be suspended for three months, effective October 6, 2013. (R.R. at 32a-33a.) By letter dated September 2, 2013, Driver Licensing notified Hazzard that as a result of his failure to produce proof of financial responsibility on July 21, 2013, the date of his traffic offense, his driving privileges would be suspended for three months, effective October 7, 2013. (R.R. at 41a-43a.) Following the filing of timely statutory appeals of the suspensions, the trial court held a consolidated hearing, at which Hazzard appeared pro se and testified. At the conclusion of the hearing, the trial court entered two orders, sustaining each of Hazzard's appeals and rescinding the relevant suspensions, and the Department then appealed the two orders to this Court. (October 22, 2013 Orders of the trial court, R.R. at 55a, 72a.)
On May 5, 2014, Senior Judge Oler of this Court filed an order consolidating both of the Department's appeals. We note that Hazzard has been precluded from filing a brief in this matter due to his failure to do so within the mandated timeframe. This Court's standard of review of a trial court's order sustaining an appeal from a suspension of registration and/or operating privilege under Section 1786(d) of the MVFRL is limited to considering whether the trial court erred as a matter of law or manifestly abused its discretion. Parnell v. Department of Transportation, Bureau of Motor Vehicles, 90 A.3d 840 (Pa. Cmwlth. 2014).
Before the trial court, Hazzard testified that on Sunday, July 21, 2013, a Mount Carmel Borough police officer came to his home to question him, following receipt of a report from Hazzard's neighbor alleging that Hazzard had hit his car. (Transcript of Proceedings (H.T.) at 6, R.R. at 19a.) Hazzard stated that he believed at that time that his vehicle was insured by Safe Auto Insurance Co. (Safe Auto), and proffered his insurance card to the officer, which the trial court noted indicated coverage for the period from April 23, 2013 through October 23, 2013. (Id.) However, Hazzard testified that subsequent to this incident, he received notification from Safe Auto that his insurance had been cancelled for non-payment just prior to the date of the accident, and he received the traffic citation later in the mail, so he assumed "the police officer in the investigation found out" the policy had been cancelled. (Id.) Hazzard explained that he had been paying Safe Auto with his credit card, using automatic billing, and apparently his payment for July 2013 did not clear. (H.T. at 6-7, R.R. at 19a-20a.) He stated that the imposition of the suspension of his registration and his operating privileges would create undue hardship on himself and his family, given illnesses suffered by both his wife and his son, and their related transportation needs, as well as his need to drive to his job, ten miles away from his home. (Id.) Hazzard also testified that the damage to his neighbor's vehicle had been paid for and resolved. (Id.) The trial court inquired as to whether a hearing was held before the magistrate, and Hazzard responded that he went to the magistrate's office to discuss the citation, and was told that he had to pay the fine to clear the citation, so he presented his credit card and paid. (H.T. at 11, R.R. at 24a.) The trial judge asked Hazzard whether he understood that he had a right to a hearing before the magistrate, and Hazzard responded that he did not discuss a hearing; he stated "I just wanted to get this resolved and move on. Like I didn't ask and they didn't - they just said, [h]ere is what the fines are." (Id.) The trial court indicated at the conclusion of the hearing that the failure of the magistrate to offer Hazzard an opportunity to defend himself caused the court to find in Hazzard's favor, stating:
[I]t appears to me factually that there was a disconnect early on with the local magistrate in failing to give proper notification by which [Hazzard] could have taken action to defend himself and this is the first opportunity he
really has. And I'm going to give him the benefit of the doubt that he had no notification from the insurance company it wasn't insured, his course of conduct, his practice was to always have it, and that there was a failure at the magistrate's level that causes the Court to find in favor of [Hazzard].(H.T. at 14-15, R.R. at 27a-28a.).
In its opinion filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the trial court noted that although Hazzard had acknowledged that the vehicle involved was the primary means of transportation for himself and his family, there was "no further testimony which established that the vehicle was operated by or permitted to be operated by [Hazzard] during a period when he did not have the requisite financial responsibility." (Opinion of the trial court (Tr. Ct. Op.), R.R. at 89a.) The trial court set forth its scope of review, both in regard to the suspension of operating privileges and in regard to a vehicle registration suspension, and opined that the Department was unable to establish that Hazzard had been operating the vehicle during a period of time when it lacked the requisite financial responsibility, and that even if the Department had been able to establish the presumption, there remained the possibility that Hazzard could rebut it after seeking review with the Insurance Commissioner. (Tr. Ct. Op. at 10, R.R. at 96a.) The trial court stated:
At the hearing, Hazzard stated that his vehicle was parked at the time the police officer interviewed him at his home. (H.T. at 12, R.R. at 25a.) The Department's counsel questioned Hazzard about his use of the vehicle, and, in response to his questions, Hazzard responded that he could not remember whether he had operated the vehicle on that day, or whether he had driven his vehicle to work on the following day. (H.T. at 13, R.R. at 26a.)
The pertinent portions of Section 1786(d) of the MVFRL state:
(3)....The court's scope of review in an appeal from a vehicle registration suspension shall be limited to determining whether:
(i) the vehicle was registered or of a type required to be registered under this title; and
(ii) there has been either notice to the department of a lapse, termination or cancellation in the financial responsibility coverage as required by law for that vehicle or that the owner, registrant or driver was requested to provide proof of financial responsibility to the department, a police officer or another driver and failed to do so. Notice to the department of the lapse, termination or cancellation or the failure to provide the requested proof of financial responsibility shall create a presumption that the vehicle lacked the requisite financial responsibility. This presumption may be overcome by producing clear and convincing evidence that the vehicle was insured at all times.
(4) Where an owner or registrant's operating privilege has been suspended under this subsection...the court's scope of review in an appeal from an operating privilege suspension shall be limited to determining whether:
(i) the vehicle was registered or of a type required to be registered under this title; and
(ii) the owner or registrant operated or permitted the operation of the same vehicle when it was not covered by financial responsibility. The fact that an owner, registrant or operator of the motor vehicle failed to provide competent evidence of insurance or the fact that the department received notice of a lapse, termination or cancellation of insurance for the vehicle shall create a presumption that the vehicle lacked the requisite financial responsibility. This presumption may be overcome by producing clear and convincing evidence that the vehicle was insured at the time that it was driven.
While it is true that under most circumstances [Hazzard's] payment of the citation issued to him could serve to establish that his vehicle did not have the
requisite financial responsibility, the Department itself pointed out to the court that the types of suspensions imposed in these two cases (i.e., suspensions imposed under § 1786) are determination-based, not conviction based. See [H.T. at 12, R.R. at 25a].(Tr. Ct. Op. at 5, R.R. at 91a.) (footnote omitted.) The trial court concluded that the Department failed to meet its prima facie burden, and therefore that this Court should sustain the trial court's decision in regard to the suspension of Hazzard's operating privileges.
However, in lieu of sustaining the suspension of Hazzard's vehicle registration as ordered at the conclusion of the hearing, in its 1925(a) opinion the trial court indicated that it would be appropriate for this Court to remand the matter of the vehicle registration suspension to permit Hazzard to seek a nunc pro tunc review from the Insurance Commissioner. The trial court reasoned that, even if the Department had established its prima facie case, there appeared to be a question as to whether Hazzard was properly notified by Safe Auto as to the status of his policy, and Hazzard may have been able to successfully rebut the presumption had he been permitted to file a written request for review to the Insurance Commission. (Id.)
Before this Court, the Department argues, first, that once Motor Vehicles introduced into evidence documentary proof that Hazzard was convicted by the magistrate of violating Section 1786(f) of MVFRL for operating his vehicle without required financial responsibility, it satisfied its prima facie burden of proof for the suspension of the vehicle's registration, and Hazzard could not collaterally attack this conviction in an appeal of the resulting suspension. Acknowledging the trial court's opinion wherein it suggests that even if the Department had established its prima facie case, Hazzard may have been able to successfully rebut the presumption established if he had been permitted to file a written request for review to the Insurance Commissioner, the Department asserts that there is no evidence that Hazzard filed a written request for an Insurance Department review. At the hearing, Hazzard admitted that he received the notice of cancellation from Safe Auto, and the certified record contains the official notice of vehicle registration suspension sent to Hazzard by the Department, which includes the language:
The trial court footnoted Section 6501(b) of MVFRL, which states that: "a payment by any person charged with a violation of this title of the fine prescribed for the violation is a plea of guilty." 75 Pa. C.S. § 6501(b). --------
If you believe your insurance coverage was terminated in error or you did not receive proper notice of your insurance termination, you should file a complaint with the Pennsylvania Insurance Department...(H.T., Exhibit C-1 at 3.) With regard to the operating privilege suspension, the Department argues that it offered unrebutted proof that Hazzard was convicted of violating 75 Pa. C.S. § 1786(f) for operation of a motor vehicle without required financial responsibility, that Hazzard did not appeal such conviction, and that Hazzard cannot collaterally attack this conviction in an appeal of the resulting suspension.
In order to sustain its burden of proof under Section 1786(d), Driver Licensing was required to establish that: (1) Hazzard's vehicle was of a type that required registration; (2) the financial responsibility coverage for Hazzard's vehicle was not secured or maintained; and (3) Hazzard operated or permitted the operation of the vehicle while it was not covered by financial responsibility. Parnell v. Department of Transportation, Bureau of Driver Licensing, 90 A.3d 840, 844 (Pa. Cmwlth. 2014); Pangallo v. Department of Transportation, Bureau of Driver Licensing, 65 A.3d 1091, 1093 (Pa. Cmwlth. 2013); Cangemi v. Department of Transportation, Bureau of Driver Licensing, 8 A.3d 393, 397 (Pa. Cmwlth. 2010) (en banc). Our Court has established that the Department's submission of certified proof of a licensee's conviction on the summary offense for operating a vehicle without insurance satisfies this prima facie burden. 75 Pa. C.S. § 1377(b)(1); Parnell, 90 A.3d at 844; Pangallo, 65 A.3d at 1093; Cangemi, 8 A.3d at 397. Further, we have consistently held that the propriety of a criminal conviction may not be collaterally attacked in a civil license suspension hearing. Department of Transportation, Bureau of Driver Licensing v. Diamond, 616 A.2d 1105, 1108 (Pa. Cmwlth. 1992). We may not ignore the proof of Hazzard's unappealed conviction, and we do not agree that the Department failed to satisfy its prima facie burden. The Department's evidence of conviction creates a presumption that Hazzard must rebut by "clear and convincing evidence that the record is erroneous." Diamond, 616 A.2d at 1107-8. The Pennsylvania Supreme Court has stated that the standard of "clear and convincing evidence" means "testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Matter of Larsen, 616 A.2d 529, 532 (Pa. 1992), cert. denied, 510 U.S. 815 (U.S. 1993).
Here, Hazzard failed to present such evidence. He did not deny operating his vehicle on the date of the accident; he acknowledged that he used his vehicle to drive to work and to the grocery store; he confirmed that he had received notice indicating his insurance had been cancelled prior to the date of accident; and he paid for the damage to his neighbor's vehicle. Therefore, we must reverse the trial court's order sustaining Hazzard's appeal from the three-month suspension of his operating privilege.
Further, with regard to the registration suspension, we find that the trial court erred as a matter of law in sustaining Hazzard's appeal. Hazzard's failure to provide the requested proof of financial responsibility on July 21, 2013 created a presumption that his vehicle lacked the requisite financial responsibility, and Hazzard offered no evidence whatsoever to suggest that the vehicle was insured at all relevant times. Hazzard did not dispute that his vehicle insurance coverage had lapsed; indeed, Hazzard admitted that he received notice from Safe Auto that his insurance had been cancelled for non-payment. He testified that when he received the traffic citation in the mail, he assumed that "the police officer in the course of his investigation found out the policy had been cancelled by Safe Auto." (H.T. at 6, R.R. at 19a.) Hazzard paid the citation on August 23, 2013, after he received notice from Safe Auto of the cancellation. As noted by the trial court, the official notice of vehicle registration suspension sent to Hazzard by Motor Vehicles clearly states the procedure by which an insured may file a complaint with the Pennsylvania Insurance Department, in the event a licensee believes his insurance coverage has been terminated in error or he did not receive proper notice of his insurance termination, and there is no evidence that Hazzard ever filed a request for review. Although we are sympathetic to the burden that the statutorily-mandated three-month loss of use of his vehicle may cause him, it is well established that the courts have no discretion to consider such factors in an appeal from a suspension of registration under Section 1786(d) of the MVFRL. Greenfield v. Department of Transportation, Bureau of Motor Vehicles, 67 A.3d 198, 201 (Pa. Cmwlth. 2013). Accordingly, we reverse the orders of the trial court sustaining Hazzard's appeals and rescinding the suspension of his registration and operating privilege, and hereby reinstate said suspensions.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 6th day of January, 2015, the order of the Court of Common Pleas of Northumberland County, No. CV-13-1737, in the above-captioned matter is REVERSED, and the suspension of registration imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles is hereby reinstated. The order of the Court of Common Pleas of Northumberland County, No. CV-13-1736, in the above-captioned matter is REVERSED, and the suspension of operating privilege imposed by the Commonwealth of Pennsylvania, Bureau of Driver Licensing is hereby reinstated.
/s/_________
JAMES GARDNER COLINS, Senior Judge
75 Pa. C.S. §§ 1786 (d)(3) and (d)(4).