            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elmer Charles Sutton                            :
                                                :
                       v.                       :    No. 614 C.D. 2016
                                                :    Submitted: August 19, 2016
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing,                     :
                         Appellant              :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER1                               FILED: June 27, 2017


      The Commonwealth of Pennsylvania (Commonwealth), Department of
Transportation (Department), Bureau of Driver Licensing (Bureau), appeals from
the March 17, 2016 Order of the Court of Common Pleas of Fayette County (trial
court), which sustained the statutory appeal of Elmer Charles Sutton (Sutton) from
a three-month suspension of his operating privilege imposed by the Bureau
pursuant to Section 1786(d)(1) of the Motor Vehicle Financial Responsibility Law
(MVFRL), 75 Pa. C.S. § 1786(d)(1).2

      1
          This opinion was reassigned to the author on February 6, 2017.
      2
          Section 1786(d)(1) provides, in pertinent part:

(Footnote continued on next page…)
       On September 5, 2015, Pennsylvania State Police stopped Sutton in North
Union Township, Fayette County, and issued a traffic citation for operating a
motor vehicle without the required financial responsibility in violation of 75 Pa.
C.S. § 1786(f).3 (R.R. at 35a.) On November 18, 2015, a magisterial district judge
(MDJ) found Sutton guilty of the summary offense of operating a motor vehicle
without the required financial responsibility. (Id. at 37a.) On December 17, 2015,
Sutton appealed that conviction. (Id.)
       In the interim, the Department was notified of the conviction and issued a
notice to Sutton on November 26, 2015, advising him that his driving privilege
would be suspended effective December 31, 2015, because he failed to produce
proof of financial responsibility on the date of the traffic stop. (Id. at 32a.) On



_____________________________
(continued…)
       The [Department] 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 [D]epartment determines that the
       owner or registrant has operated or permitted the operation of the vehicle without
       the required financial responsibility.

75 Pa. C.S. § 1786(d)(1).
       3
         Section 1786(f) provides:

       Any owner of a motor vehicle for which the existence of financial responsibility
       is a requirement for its legal operation shall not operate the motor vehicle or
       permit it to be operated upon a highway of this Commonwealth without the
       financial responsibility required by this chapter. In addition to the penalties
       provided by subsection (d), any person who fails to comply with this subsection
       commits a summary offense and shall, upon conviction, be sentenced to pay a fine
       of $300.

75 Pa. C.S. § 1786(f).



                                               2
December 16, 2015, Sutton filed a statutory appeal of the suspension of his
operating privilege. (Id. at 4a.)
       A hearing on the suspension was held on February 17, 2016, at which time
counsel for the Department proffered as evidence certified records of the
suspension notice to Sutton, the traffic citation, and the MDJ conviction. (Id. at
16a.) Sutton’s counsel objected to the admission of the documents on the grounds
that the underlying conviction had been appealed, and said appeal was still
pending,4 therefore rendering the documents irrelevant. (Id. at 17a.) The trial
court took the matter of the admissibility of the certified documents under
advisement to consider the parties’ arguments. (Id. at 28a.) No other evidence was
offered. (Id.)
       On March 17, 2016, the trial court issued an Order granting Sutton’s appeal,
vacating the Department’s suspension of operating privileges and ordering same be
restored and reinstated.       (3/17/16 Trial Ct. Order, R.R. at 70a.)              In an
accompanying opinion, the trial court stated that Sutton’s objection to the
admissibility of the certified records foreclosed the Department from relying solely
on the certified records to establish its prima facie case. (Trial Ct. Op. at 2-3, R.R.
at 68a-69a.) The trial court distinguished Capone v. Department of Transportation,
Bureau of Driver Licensing, 875 A.2d 1228 (Pa. Cmwlth. 2005), and Wible v.
Department of Transportation, Bureau of Driver Licensing, 670 A.2d 744 (Pa.
Cmwlth. 1996), stating that “there exists a reasonable inference that [the
Department] only satisfied its burden in those cases due to the failure to object to
the admission of the [certified documents.]” (Trial Ct. Op. at 3, R.R. at 69a.)

       4
        A hearing on the appeal of the underlying conviction was scheduled for February 24,
2016. (R.R. at 18a.)



                                            3
       On April 15, 2016, the Department filed a timely appeal to this Court.5
(R.R. at 72a.) It argues the trial court abused its discretion and erred as a matter of
law in sustaining Sutton’s objection to the admission of the certified documents
showing his conviction.6 Specifically, it contends that certified records reflecting a
conviction serve as prima facie evidence of its case, and Sutton’s appeal of that
conviction, which was still pending at the time of the suspension hearing, had no
effect on the validity of that conviction.
       In order to sustain a suspension of a licensee’s operating privilege under
Section 1786(d) of the MVFRL, the Department must prove: (1) the vehicle was
required to be registered in the Commonwealth; (2) financial responsibility
coverage for the vehicle was not secured or maintained; and (3) the licensee
operated or permitted the operation of the vehicle while it was not covered by
financial responsibility. Cangemi v. Dep’t of Transp., Bureau of Driver Licensing,
8 A.3d 393, 397 (Pa. Cmwlth. 2010). Submission of a certified packet, which
includes the licensee’s conviction of the summary offense, satisfies the
Department’s prima facie burden. Id.; see also Parnell v. Dep’t of Transp., Bureau
of Driver Licensing, 90 A.3d 840, 844 (Pa. Cmwlth. 2014).
       In sustaining Sutton’s appeal, the trial court cites to Capone for support that
an objection to the admission of certified documents is sufficient to preclude the
Department from relying upon same to satisfy its burden.                         In Capone, the
Department suspended the operating privilege of the licensee after she pled guilty


       5
           Our review of a trial court’s order sustaining a licensee’s statutory appeal from an
operating privilege suspension is limited to determining whether the trial court committed an
error of law or abused its discretion. Capone, 875 A.2d at 1230 n.1.
        6
          Sutton did not file a brief as directed by this Court’s July 5, 2016 Order, and pursuant to
this Court’s Order dated August 12, 2016, is precluded from doing so.



                                                 4
to allowing her son to operate her uninsured vehicle, which was involved in an
accident.   875 A.2d at 1229-30.      At the suspension hearing, the Department
introduced, without objection, a packet of certified documents, which included
copies of the notice of suspension, conviction detail report documenting the guilty
plea, and licensee’s driving history. Id. at 1230. In opposition, the licensee and
her husband testified that they were unaware that their insurance policy had lapsed
after payment of the premium was returned for insufficient funds, and introduced a
copy of an insurance card and policy.         Id.   The trial court noted that the
Department’s packet did not include a notice from the insurance company
evidencing a lapse in coverage and credited the testimony of licensee and her
husband. Id. It also determined the insurance card and policy demonstrated the
vehicle was insured. Id. It concluded that the Department did not meet its burden
or, alternatively, that licensee rebutted the presumption she was uninsured. Id.
      The Department appealed arguing the trial court erred in determining it did
not establish a prima facie case because it introduced the certified records. Our
Court agreed and reversed the trial court. In doing so, we stated: “Where a
licensee pleads guilty to the summary offense and does not object to the admission
of the guilty plea at the suspension hearing, [the Department] satisfies its burden of
proof . . . .” Id. at 1231 (citing Fine v. Dep’t of Transp., Bureau of Driver
Licensing, 694 A.2d 364 (Pa. Cmwlth. 1997) and Wible, 670 A.2d at 746). We
further concluded the trial court erred in relying on the insurance card and policy,
as neither was clear and convincing evidence that the coverage was in effect on the
date of the accident. Id. at 1232. Therefore, the licensee did not sufficiently rebut
the evidence. Id.




                                          5
      Capone cited Wible and Fine for the proposition that an objection bars the
Department from satisfying its prima facie case with the mere introduction of
certified documents. In Wible, the licensee was cited for operating a vehicle
without financial responsibility, and the Department suspended his operating
privilege. 670 A.2d at 745. On appeal to the trial court, the licensee did not
dispute he was operating without the requisite financial responsibility but argued
he was being punished twice for the same offense because both his vehicle
registration and operating privilege were suspended. Id. at 745-46. The trial court
agreed and rescinded the suspension.       Id. at 746. The Department appealed,
arguing that it sustained its burden of proof and the trial court erred in finding the
suspensions should have run concurrently. Id. As to the first issue, we stated,
“[b]ased on [l]icensee’s plea of guilty and [the Department’s] unobjected to
admission of the record of [his] plea of guilty to this offense, we conclude that [the
Department] sustained its burden.” Id. at 746. The remainder of the opinion is
devoted to addressing the concurrence issue. Id. at 746-47.
      In Fine, the licensee’s operating privilege was suspended after he was
convicted of operating a vehicle without the required financial responsibility. 694
A.2d at 366. At his suspension hearing, the Department offered a certified copy of
the conviction record from the district justice, and licensee objected, offering a
copy of a court of common pleas order adjudging him not guilty of the offense
after a de novo hearing. Id. The trial court found the Department met its prima
facie case, which licensee appealed. Id. On appeal, we stated:

      Although [the Department’s] initial submission of its records may
      have met its burden to establish a conviction, it is a rebuttable
      presumption; [l]icensee’s submission of a certified copy of the appeal
      is sufficiently clear and convincing to rebut the presumption of a
      conviction. Unlike in Wible, in this case, the plea before the district


                                          6
      justice was overturned on appeal, and the record of the plea was
      objected to by the [l]icensee. Accordingly, [the Department] did not
      meet its ultimate burden of proof because the presumption of a
      conviction was sufficiently rebutted by the record of the not guilty
      judgment in the Court of Common Pleas of Allegheny County.
Id. at 367 (internal citations omitted) (emphasis added). We explained that “like a
licensee attempting to argue that he was not properly convicted of an underlying
offense as the basis of a suspension, [the Department] cannot collaterally attack the
Court of Common Pleas of Allegheny County’s judgment of not guilty.” Id.
      Here, the trial court singles out statements made in Capone and Wible to
conclude that the certified records are only admissible if no objection is lodged.
(Trial Ct. Op. at 3, R.R. at 69a.) However, Fine demonstrates that an objection to
such evidence does not prevent the Department from satisfying its prima facie
case. We found the certified records were sufficient to meet its initial burden, even
over licensee’s objection. Fine, 694 A.2d at 367. The objection simply preserved
licensee’s right to challenge this evidence by presenting rebuttal evidence showing
the conviction had already been overturned.        Once successfully rebutted, the
Department could no longer rely on the certified documents and had to produce
independent evidence to support its suspension.        Without such evidence, the
Department did not satisfy its ultimate burden of proof.
      In addition, various sections of the Vehicle Code, 75 Pa. C.S. §§ 101-9805,
specifically endorse the use of certified records, serving as further evidence that
lack of an objection is not a prerequisite to admissibility. For instance, Section
1516(b) provides, in pertinent part:

      Court abstracts and certifications of conviction and accident reports
      submitted to the [D]epartment under the laws of this Commonwealth
      shall be considered as records of the [D]epartment . . . . Such copies
      shall be admissible into evidence to support the [D]epartment’s case
      in an appeal of a [D]epartment action taken under Chapter . . . 15


                                         7
      (relating to licensing of drivers) . . . , and the certification shall
      constitute prima facie proof of the facts and information contained in
      the court abstract or certification of conviction . . . .
75 Pa. C.S. § 1516(b). In addition, Section 1550(d)(2) provides, in pertinent part:

      In any proceeding under this section, documents received by the
      [D]epartment from any other court . . . shall be admissible into
      evidence to support the [D]epartment’s case. In addition, if the
      [D]epartment receives information from a court by means of
      electronic transmission . . . , it may certify that it has received the
      information by means of electronic transmission, and that certification
      shall be prima facie proof of the adjudication and facts contained in
      such an electronic transmission.
75 Pa. C.S. § 1550(d)(2).
      Here, at the time of his suspension hearing, Sutton’s appeal of the summary
offense was still pending. The underlying conviction was valid and binding and
remains so until it is overturned. See, e.g., Dep’t of Transp., Bureau of Driver
Licensing v. Zavodsky, 637 A.2d 673, 676 (Pa. Cmwlth. 1994) (finding licensee’s
pending criminal appeal was irrelevant to the matter of imposing civil penalties);
Budjnoski v. Dep’t of Transp., Bureau of Traffic Safety, 566 A.2d 936, 937 (Pa.
Cmwlth. 1989) (holding the Department may impose administrative penalties
despite the fact that an appeal from the underlying criminal conviction is pending).
This result is not altered by the fact that this case involved an appeal from an MDJ
subject to de novo review. See Zavodsky, 637 A.2d at 676 (“The fact that the
driver here appealed from a conviction by a district justice, which allows the trial
court to conduct a full de novo review, does not distinguish this case from
[Commonwealth v.] Wolf [632 A.2d 864 (Pa. 1993)] and Budjnoski. A conviction
is a conviction no matter from which court it issues.”).
      Here, the Department satisfied its prima facie case upon introduction of the
certified records. This does not mean the records are conclusive evidence that


                                          8
Sutton violated the MVFRL. Their introduction into evidence merely created a
rebuttable presumption, and Sutton was free to introduce clear and convincing
evidence to the contrary. Fine, 694 A.2d at 367. Sutton presented no evidence.
      Based upon the foregoing, we must conclude that the trial court abused its
discretion and erred as a matter of law in sustaining Sutton’s objection to the
admission of the certified documents showing his conviction. Accordingly, we
must reverse the Order of the trial court.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




Judge Cosgrove dissents.




                                             9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elmer Charles Sutton                    :
                                        :
                  v.                    :   No. 614 C.D. 2016
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :


                                     ORDER


            NOW, June 27, 2017, the Order of the Court of Common Pleas of
Fayette County, in the above-captioned matter, is REVERSED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
