Opinion
No. 2533 C.D. 2009
06-30-2011
Marshall L. Williams, Appellant v. PennDOT
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Marshall Williams (Williams) appeals the order of the Court of Common Pleas of Philadelphia County (trial court) that dismissed his appeal from an indefinite suspension of his operating privilege pursuant to Section 1772 of the Vehicle Code (Code), 75 Pa.C.S. §1772. The Department of Transportation (DOT) also moves to strike Williams's supplemental record.
Section 1772 of the Code provides in pertinent part: "(a) General Rule.—The department, upon receipt of a certified copy of a judgment, shall suspend the operating privilege of each person against whom the judgment was rendered except as otherwise provided in this section and in section 1775 (relating to installment payment of judgments)."
By official notice dated April 17, 2008, and mailed April 24, 2008, DOT informed Williams that his operating privilege was to be suspended indefinitely effective June 8, 2008, as authorized by Section 1772. Williams appealed to the trial court. Williams also appealed the suspension of the registration of his 1997 Ford Sedan. On November 23, 2009, the trial court granted the motion of Williams and allowed the withdrawal of the appeal of the registration suspension. At the same time the trial court rescheduled the appeal of the operating privilege suspension to January 22, 2010.
On November 4, 2009, Williams petitioned to strike off, open, set aside and stay a foreign default judgment. In the petition, Williams alleged that the suspension of his vehicle registration was improper and that the suspension of his driving privilege was unconstitutional. Williams admitted that Trena Bell (Bell) had sued Williams and two other defendants in the District Court for Baltimore City, Maryland for injuries suffered in an automobile accident while she rode in a "private cab" operated by one of the defendants, William Gibson. The District Court entered judgment against Williams alone for $9,999.00. Williams did not appear for the trial. The Maryland Automobile Fund paid Bell and sought to collect from Williams. Williams alleged that the District Court did not have personal jurisdiction over him. He also alleged that the judgment in Maryland was not a final judgment because he had appealed the decision. Williams further alleged constructive fraud.
Williams asserts that on November 20, 2009, the trial court denied the petition on the basis that it did not have authority to consider it. The record does not reflect that the trial court ruled on the motion. On December 2, 2009, Williams moved for reconsideration.
On December 21, 2009, Williams appealed the trial court's orders of November 20, 2009, which rescheduled the hearing on the suspension of his operating privilege until January 22, 2010, and the order withdrawing Williams's appeal of the suspension of his vehicle registration.
On January 22, 2010, the trial court held the hearing on the license suspension appeal. DOT entered into evidence the notice of suspension, a Certificate of Facts: Relative to Judgment from the State of Maryland, Motor Vehicle Administration which included the order from the District Court for Baltimore City and Williams's driving record. Williams did not appear for the hearing. The trial court stated, "This matter is non prosed [sic] for lack of prosecution. Suspension is reinstated." Notes of Testimony, January 22, 2010, at 2; Reproduced Record (R.R.) at 28a. On January 22, 2010, the trial court issued an order dismissing the appeal and reinstating the suspension.
On February 1, 2010, Williams filed an amended notice of appeal and appealed the November 20, 2009, and January 22, 2010, orders to this Court. That same day he moved for reconsideration of the January 22, 2010, order. It appears from the record that a hearing on this motion was never held.
On September 29, 2010, DOT moved to quash Williams's appeal. DOT asserted that the order withdrawing Williams's appeal of the vehicle registration suspension was entered with his consent, so he was not an aggrieved party. DOT asserted that Williams could not appeal the order rescheduling his appeal hearing to January 22, 2010, because it was not a final appealable order. DOT asserted that this Court should quash his appeal of the January 22, 2010, order because he waived all issues with respect to this appeal when he failed to appear for the hearing.
By order dated October 13, 2010, this Court granted in part the motion to quash and quashed the notice of appeal filed December 21, 2009. This Court ruled that the remaining issues raised in DOT's motion to quash were to be argued with the merits of the appeal.
I. Williams's Appeal.
Williams contends that the trial court committed an error of law on January 22, 2010, when it exercised jurisdiction over the case because the notice of appeal for that case to this Court was docketed in the trial court and it was served upon DOT and upon the trial court on December 21, 2009. Williams also contends that the trial court committed an error of law when it reinstated the suspension of Williams's operating privilege because DOT did not have standing to offer any evidence while Williams's motion to strike, vacate, set aside, open and stay the Maryland judgment should have been granted as uncontested on November 26, 2009, and because Williams's right to prosecute his appeal was constrained by the trial court under Pa.R.A.P. 1701(a). Williams further contends that the trial court abused its discretion when it denied his motion for reconsideration filed on February 1, 2010, because Williams provided a reasonable explanation for his failure to attend the hearing on January 22, 2010. Williams alleges he was sick in bed with the flu and verified that he had insurance on the date of the alleged accident, September 30, 2006. Williams also contends that DOT prejudicially decided not to remove the suspension after he provided proof of insurance. Williams next contends that DOT's motion to quash did not state a factual or legal basis for the relief requested.
This Court's review of a driver's license suspension case is limited to determining whether the findings of the trial court are supported by competent evidence, whether there has been an error of law, or whether the trial court's decision demonstrates a manifest abuse of discretion. Wheatley v. Department of Transportation, 521 A.2d 507 (Pa. Cmwlth. 1987).
Initially, Williams contends that the trial court lacked jurisdiction to enter an order on January 22, 2010, in view of his notice of appeal to this Court filed December 21, 2009. Williams asserts that he did not appeal the orders withdrawing his appeal of the vehicle registration suspension but instead appealed the denial of his motion to set off the Maryland judgment. This Court already determined when it disposed of the motion to quash that the two orders that were issued on November 20, 2009, regarding the withdrawal of the registration suspension and the rescheduling of the operating privilege suspension were the ones Williams appealed. This Court will not revisit this issue.
Williams next contends that his duty to "process" his appeal on January 22, 2010, was dissolved by his uncontested motion to dispose of the Maryland judgment as of November 26, 2009, by his notice of appeal to this Court filed December 21, 2009, and as a result of his alleged illness on January 22, 2010. Williams had the opportunity to raise the first two of these issues at his hearing and failed to do so. As a result these issues were waived. Plowman v. Department of Transportation, Bureau of Driver Licensing, 535 Pa. 314, 318 n.2, 635 A.2d 124, 126 n.2 (1993). Bottom line, Williams essentially appears to argue that he had no duty or responsibility to appear for the scheduled hearing.
With respect to whether Williams was excused from making an appearance at the hearing on January 22, 2010, because he allegedly was ill, Williams concedes that the trial court may not have actually known about his illness. However, Williams asserts that DOT knew or should have known that Williams never before failed to appear for a listing. Whether DOT knew that Williams, who is a licensed attorney, had never failed to appear for a listing is irrelevant. It is not a party's responsibility to keep track of the opposing party or the opposing counsel's whereabouts or physical condition. Williams did not appear at the hearing and did not contact the trial court or DOT's counsel to attempt to schedule a continuance. Williams cites Pa.R.C.P. No. 216(a)(2) for the proposition that illness of counsel or a party is a ground for a continuance. While that may be grounds for a continuance, Williams never requested a continuance.
Williams next contends that DOT's refusal to accept his proof of insurance was an improper denial of the protections of Section 1772(c) of the Code, 75 Pa.C.S. §1772(c). Williams asserts that he provided DOT with proof that he had insurance coverage on September 30, 2006, on March 16, 2010, and that DOT refused to reinstate his operating privilege. The correspondence between Williams and DOT was not part of the record certified to this Court by the Prothonotary for the trial court. Consequently, these records are not part of the record before this Court and may not be considered by this Court. Department of Transportation v. McCafferty, 563 Pa. 146, 152 n.6, 758 A.2d 1155, 1159 n.6 (2000).
Section 1772(c) of the Code, 75 Pa.C.S. §1772(a), provides:
(c) Financial responsibility in effect at time of accident.—Any person whose operating privilege has been suspended, or is about to be suspended or become subject to suspension, under this chapter shall be relieved from the effect of the judgment as prescribed in this chapter if the person files evidence satisfactory to the department that financial responsibility was in force and effect at the time of the accident resulting in the judgment and is or should be available for the satisfaction of the judgment. If insurance already obtained is not available because the insurance company has gone into receivership or bankruptcy, the person shall only be required to present to or file with the department evidence that an insurance policy was in force and effect at the time of the accident.
Williams next answers DOT's motion to quash which was filed on September 29, 2010. As this Court has already ruled on this motion to quash, this Court need not address Williams's contentions.
II. DOT's Motion to Strike.
Williams submitted a reply brief to this Court following the submission of his brief and DOT's submission of its brief. Williams attached a supplemental record which contained a Statement of Claim filed in Philadelphia Municipal Court in which Williams sued Nationwide Mutual Insurance Company and Bassetts Auto Insurance Agency, Inc. for breach of contract for the failure to pay the $9,999.00 in damages assessed against Williams for the Maryland accident, and the order from the Philadelphia Municipal Court dated April 8, 2011, which entered judgment in favor of Williams and against Bassetts Auto Insurance Agency, Inc. and Nationwide Mutual Insurance Company.
DOT moved to strike Williams's supplemental record:
5. Williams has filed a Reply Brief and Supplemental Record. Williams' supplemental record contains
documents that are not included within the record certified to this Court by the Prothonotary of the Court of Common Pleas of Philadelphia County.Motion to Strike Appellant's Supplemental Record, April 21, 2011, Paragraph Nos. 5-6 at 2-3.
6. Documents not contained in the certified record may not be made a part of Williams' supplemental reproduced record. . . . 'Only items which are part of the certified record may be considered by an appellate Court. . . . A document does not become part of the certified record by the mere expedient of including it in a reproduced record.'. . . (Citations omitted).
Williams answered:
5. Denied in part. Admitted with explanation. It is admitted that appellant's reply contains documents that were not available on January 22, 2010. . . . The records that appellee is referring to are two (2) judgments entered by the Philadelphia Municipal Court in favor of appellant and against Nationwide Insurance Company, Inc., in his claim that he was insured on September 30, 2006 when his vehicle was allegedly involved in an accident. . . . Those judgments were entered on April 8, 2011. . . . They should be reviewed under Pa.R.A.P. 2153(b). They are supported by related documents already in the record certified to this Court by the trial court. They prove appellant's principal contention made to the Department and to the Court at all times prior to December 21, 2009, that his vehicle was insured on September 30, 2006 as required by 75 Pa.C.S. §§ 1772(a) and 1772(c).
6. Denied as stated. First, it appears that appellee is citing cases that cautionally [sic] opines [sic] about the general rule against the review of documents that have not been certified by the trial court. As noted above herein, there are exceptions to that Rule's prohibition. Another . . . exception is that this appellate court may take judicial notice of the Philadelphia Municipal Court's
decision that was issued after the appeal was taken and after the record was certified to this appellate court. . . .Answer, May 5, 2011, Paragraph Nos. 5-6 at 3-5.
Second, appellant respectfully submits the two (2) supplemental records pursuant to this appellate court's own order dated October 13, 2010 in which this appellate court ordered appellant to address appellee's position that appellant's vehicle was not insured on September 30, 2006. . . . It was! . . .
Third, appellee does not attack the validity of said supplemental records, themselves. It does not attack the jurisdiction of the Philadelphia Municipal Court to make these public records. It argues only the general rule and unfairly so.
It appears that four (4) of the six (6) cases that appellee cites in said motion, the appellants are charged with driving under the influence (DUI) or the appellants have been found guilty of driving under the influence (DUI). . . . These cases are implicitly misleading as your appellant was not remotely involved in any such behavior. The facts giving rise to those [sic] appellee's cases on the general rule are remarkably different from the fact's giving rise to this appeal. . . . (Footnote and citations omitted).
This Court agrees with DOT that the documents contained in the Supplemental Reproduced Record filed by Williams are not part of the record certified to this Court by the Prothonotary of the trial court. As a result, this Court grants the motion to strike.
Williams argues that DOT's brief was untimely. However, a review of the docket reveals that the brief was timely filed on the date established by this Court.
Accordingly, this Court affirms and grants DOT's motion to strike the supplemental record.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 30th day of June, 2011, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed. This Court also grants the Department of Transportation's Motion to Strike Appellant's Supplemental Record.
/s/_________
BERNARD L. McGINLEY, Judge