                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonia Davis                                   :
                                                :
               v.                               :
                                                :
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing,                     :    No. 958 C.D. 2019
                  Appellant                     :    Submitted: January 24, 2020


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
JUDGE COVEY                                          FILED: April 17, 2020

               The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (DOT), appeals from the Allegheny County Common
Pleas Court’s (trial court) June 27, 2019 order sustaining Antonia Davis’ (Licensee)
appeal from DOT’s three-month suspension of her operating privilege pursuant to
Section 1786(d) of the Vehicle Code.1 The sole issue before this Court is whether the
trial court erred by preventing DOT from calling Licensee as a witness as on cross-
examination in DOT’s case-in-chief. After review, we vacate and remand.
               On January 3, 2019, at 5:47 p.m., Homestead Borough Police Officer
Joseph Podolak (Officer Podolak) stopped Licensee due to an expired inspection
sticker on the 2010 Nissan sedan she was operating. During the traffic stop, Officer
Podolak learned that Licensee was driving the vehicle without insurance. Officer


       1
         75 Pa.C.S. § 1786(d) (relating to suspension of operating privileges for operating a motor
vehicle without required financial responsibility in violation of Section 1786(f) of the Vehicle Code,
75 Pa.C.S. § 1786(f)).
Podolak cited Licensee for violating Section 1786(f) of the Vehicle Code.2 On April
2, 2019, DOT mailed a notification to Licensee advising her that her operating
privilege was being suspended for three months effective May 7, 2019, “because
[she] failed to produce proof of financial responsibility [(insurance)] on [January 3,
2019],” when she was stopped for a traffic offense. Reproduced Record (R.R.) at 5a.
On April 26, 2019, Licensee appealed to the trial court.3 On June 27, 2019, the trial
court held a hearing4 and sustained Licensee’s appeal. DOT appealed to this Court.5
On September 4, 2019, the trial court filed its opinion.
               DOT argues that the trial court erred by preventing DOT from calling
Licensee as a witness as on cross-examination in DOT’s case-in-chief.
               Initially, Section 1786(f) of the Vehicle Code states:

               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


       2
          75 Pa.C.S. § 1786(f) (relating to operating a motor vehicle without required financial
responsibility).
        3
          Licensee also filed an appeal from a three-month suspension of her 2010 Nissan sedan’s
registration, which suspension was imposed pursuant to Section 1786(d) of the Vehicle Code
(relating to registration suspension due to lack of financial responsibility). See Davis v. Dep’t of
Transp., Bureau of Motor Vehicles (Pa. Cmwlth. No. 959 C.D. 2019, filed April 17, 2020).
        4
          The trial court held a single hearing relative to both of Licensee’s appeals. See R.R. at 13a,
15a.
        5
          “Our scope of review is limited to determining whether the trial court’s findings were
supported by competent evidence, whether errors of law were committed, or whether the trial
court’s determinations demonstrated a manifest abuse of discretion.” Weaver v. Dep’t of Transp.,
Bureau of Driver Licensing, 179 A.3d 122, 126 n.5 (Pa. Cmwlth. 2018).
        By January 24, 2020 Order, Licensee was precluded from filing a brief for failing to comply
with the Court’s December 16, 2019 Order directing her to file a brief within 14 days.



                                                   2
             summary offense and shall, upon conviction, be sentenced
             to pay a fine of $300.

75 Pa.C.S. § 1786(f). Section 1786(d)(1) of the Vehicle Code further provides:
             [DOT] 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 [DOT]
             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) (emphasis added). Section 1786(d)(4) of the Vehicle Code
specifies:

             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 [DOT] 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.

75 Pa.C.S. § 1786(d)(4) (emphasis added). “Once [DOT] satisfies its burden of
proving a prima facie violation, the burden shifts to the licensee to prove, by clear
and convincing evidence, that the vehicle was insured at the time it was driven.”
Pangallo v. Dep’t of Transp., Bureau of Driver Licensing, 65 A.3d 1091, 1093 (Pa.
Cmwlth. 2013).


                                          3
            DOT may use certified copies of a licensee’s guilty pleas and/or
convictions for violating Section 1786(f) of the Vehicle Code to make out a prima
facie case for suspensions under Section 1786(d) of the Vehicle Code. See Cangemi
v. Dep’t of Transp., Bureau of Driver Licensing, 8 A.3d 393 (Pa. Cmwlth. 2010); see
also Pangallo; Stone v. Dep’t of Transp., Bureau of Driver Licensing, 647 A.2d 287
(Pa. Cmwlth. 1994). However, because suspensions under Section 1786(d) of the
Vehicle Code are not conviction-based,

            [i]t is well established that:
                [DOT] is not required to introduce proof of a
                summary conviction under Section 1786(f) [of the
                Vehicle Code] in order to establish its prima facie
                case supporting a suspension under Section 1786(d)
                [of the Vehicle Code]. To the contrary, [DOT] may
                introduce evidence independent of the criminal
                charges under Section 1786(f) [of the Vehicle Code]
                to establish its prima facie case in an appeal from a
                Section 1786(d) [of the Vehicle Code] suspension.
            Baum v. Dep[’]t of Transp[.], Bureau of Driver Licensing,
            949 A.2d 345, 349 n.7 (Pa. Cmwlth. 2008). See also
            Dubolino v. Dep[’]t of Transp[.], Bureau of Driver
            Licensing, 816 A.2d 1200, 1202 (Pa. Cmwlth. 2002)
            (although trial court found licensee not guilty of violating
            Section 1786(f) [of the Vehicle Code], [DOT] still satisfied
            its prima facie burden of proof for suspension under Section
            1786(d)(1) [of the Vehicle Code] through testimony of
            officer who investigated accident that led to licensee’s
            citation); Williams v. Dep[’]t of Transp[.], Bureau of Driver
            Licensing, 812 A.2d 736, 740 (Pa. Cmwlth. 2002)
            (submission of accident report certified by Secretary of
            Transportation was sufficient to satisfy [DOT’s] initial
            burden of proof and shift burden to licensee); Smith v.
            Dep[’]t of Transp[.], Bureau of Driver Licensing, 747 A.2d
            1247, 1250 (Pa. Cmwlth. 2000) (trooper’s testimony
            constituted independent evidence that licensee drove her
            automobile without required insurance coverage through
            which [DOT] made out its prima facie case).


                                             4
Pangallo, 65 A.3d at 1093-94. Accordingly, DOT may issue civil driver’s license
and vehicle registration suspensions under Section 1786(d) of the Vehicle Code even
if a licensee has not been criminally convicted of violating Section 1786(f) of the
Vehicle Code.
               In the instant matter, as the June 27, 2019 hearing commenced, the trial
court asked Licensee: “[D]id you have insurance on the 3[rd] of January of 2019?”
R.R. at 15a. Licensee responded: “I did not.”6 R.R. at 15a. She added: “I obtained
insurance a few days later.” R.R. at 16a. When the trial court asked Licensee what
she wanted the trial court to do, Licensee answered that she would like the suspension
overturned. See R.R. at 16a.
               DOT’s counsel clarified to the trial court that Licensee had appealed
from the citation for her violation of Section 1786(f) of the Vehicle Code, that Officer
Podolak did not appear for the hearing in that action, and that the court found
Licensee not guilty of the criminal summary offense. See R.R. at 17a-18a. DOT’s
counsel further explained that, since suspensions under Section 1786(d) of the
Vehicle Code are not conviction-based, DOT can nevertheless suspend Licensee’s
operating privilege if it can prove, either by documentation or operator admission,
that Licensee was driving without the requisite insurance coverage. See R.R. at 18a-
20a. The trial court responded: “I didn’t know that. Had I known that, I wouldn’t
have asked her.” R.R. at 19a. DOT’s counsel represented that he “would have asked
both [Licensee] and [Officer Podolak] whether she produced proof of liability
coverage.” R.R. at 19a.
               Officer Podolak testified for DOT at the hearing in the current civil
action that, after he stopped Licensee on January 3, 2019, he asked her to produce her
driver’s license, vehicle registration and proof of insurance.                See R.R. at 21a.

      6
          It is not clear from the record whether Licensee’s admission was made under oath.


                                                 5
Although he could not recollect whether Licensee produced insurance coverage
documents or if she verbally informed him thereof, he recalled that he “made a note
that there was a State Farm policy and [he] documented the policy number and
contacted [State Farm,] and [State Farm] stated that the policy was cancelled . . . .”
R.R. at 21a. The trial court sua sponte declared that Officer Podolak’s testimony
regarding what he learned from State Farm was hearsay. See R.R. at 21a-23a. When
DOT’s counsel announced his intention to call Licensee as on cross-examination, the
trial court declared:

             THE [TRIAL] COURT: But she doesn’t remember . . . .
             [DOT COUNSEL]: She just admitted a little while ago that
             she didn’t have liability coverage on her Nissan sedan on
             January 3 of this year at 5:47 p.m. Her admission is on the
             record.
             THE [TRIAL] COURT: The [trial c]ourt takes
             responsibility for that. I didn’t know that that was an issue
             and I should never have asked her.
             ....
             I am going to sustain [the appeal].

R.R. at 23a-24a. The trial court thereby precluded DOT from meeting its burden of
proving that Licensee owned the vehicle and that it was not insured while she was
operating it on January 3, 2019.
             This Court acknowledges:

             A trial court has discretion to determine both the scope and
             the     permissible      limits     of      cross-examination.
             Commonwealth v. Rivera, . . . 983 A.2d 1211, 1230 ([Pa.]
             2009). The ‘trial judge’s exercise of judgment in setting
             those limits will not be reversed in the absence of a clear
             abuse of that discretion, or an error of law.’ Commonwealth
             v. Birch, . . . 616 A.2d 977, 978 ([Pa.] 1992) (internal
             quotation marks omitted).


                                           6
Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011). However, this Court has
specifically ruled:

             [DOT] is entitled to call any witness, adverse or otherwise,
             to sustain its burden of proof. Thus, it is evident that the
             law of this Commonwealth allows [DOT] the discretion to
             call [a l]icensee as an adverse witness in its case-in-chief.
             See also Gaul v. Consol[.] Rail Corp., . . . 556 A.2d 892
             ([Pa. Super.] 1989) (a witness may be called as on cross-
             examination when his interest is adverse to the party calling
             upon him to testify. The interest of the witness to be cross-
             examined must be involved in the suit in the sense that the
             judgment would operate on the witness’ legal rights and
             liabilities and that the interest in question would be
             promoted by the success of the adversary to the party
             calling the witness).

Leek v. Dep’t of Transp., Bureau of Driver Licensing, 746 A.2d 1171, 1174-75 (Pa.
Cmwlth. 2000). Because DOT was clearly entitled to call Licensee as on cross-
examination in its case-in-chief, the trial court abused its discretion by ruling
otherwise.
             Notably, the trial court recognized in its opinion:

             [The trial c]ourt agrees with [DOT] that [Licensee’s]
             admission that she did not have financial responsibility
             insurance on the date of the traffic stop, January 3, 2019,
             was sufficient to establish that she violated Section 1786(d)
             [sic] of the Vehicle Code. Therefore, [the trial c]ourt’s
             [o]rder[] of June 27, 2019 should be vacated and the matter
             should be remanded to this [trial c]ourt.

R.R. at 41a. However, in order for DOT to meet its burden, it must prove not only
that the 2010 Nissan sedan did not have the required insurance coverage while
Licensee was operating it on January 3, 2019, but that she owned the vehicle and it
was registered to her at the time. See 75 Pa.C.S. § 1786(d).




                                           7
             Accordingly, based on the foregoing, the trial court’s order is vacated,
and the matter is remanded to the trial court to conduct a hearing at which DOT is
permitted to call Licensee as a witness in its case-in-chief.



                                        ___________________________
                                        ANNE E. COVEY, Judge




                                            8
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Antonia Davis                                :
                                             :
             v.                              :
                                             :
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing,                  :   No. 958 C.D. 2019
                  Appellant                  :


                                       ORDER

             AND NOW, this 17th day of April, 2020, the Allegheny County
Common Pleas Court’s (trial court) June 27, 2019 order is vacated, and the matter is
remanded to the trial court to conduct a hearing at which the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing, is
permitted to call Antonia Davis as a witness in its case-in-chief.
             Jurisdiction is relinquished.


                                        ___________________________
                                        ANNE E. COVEY, Judge
