            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawna L. Wireman                             :
                                              :
                   v.                         :
                                              :
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Motor Vehicles,                     :    No. 148 C.D. 2015
                  Appellant                   :    Submitted: August 14, 2015

BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                  FILED: August 28, 2015
            The Pennsylvania Department of Transportation (DOT) contests the
order of the Court of Common Pleas of Westmoreland County (trial court) which
sustained the appeal of Shawna L. Wireman (Wireman) from a three-month
vehicle registration suspension of her 2005 Buick station wagon (the “Vehicle”),
pursuant to Section 1786(d)(1) of the Vehicle Code (Code), 75 Pa.C.S.
§1786(d)(1).1

      1
            Section 1786(d)(1) of the Code provides:

            The Department of Transportation shall suspend the registration of
            a vehicle for a period of three months if it determined 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.             The
            operating privilege shall not be restored until the restoration fee for
            operating privilege provided by section 1960 (relating to
            reinstatement of operation privilege or vehicle registration) is paid.
               By official notice dated September 28, 2014, DOT informed Wireman
that the registration for the Vehicle was to be suspended for three months effective
November 2, 2014, because the insurance policy covering the Vehicle was
terminated on July 26, 2014. Wireman appealed to the trial court.


               At a de novo hearing on January 23, 20152, DOT introduced into
evidence a packet of documents that established Wireman’s violation of Section
1786(d) of the Code, 75 Pa.C.S. §1786(d), and, also, that she was notified of the
suspension.


               Wireman testified that her insurance on the vehicle lapsed from July
26, 2014, until September 29, 2014. Notes of Testimony, January 23, 2015, (N.T.)
at 5-6; Reproduced Record (R.R.) at 14a-15a. Wireman explained:

               I had on the 30th – I was having problems. I had a
               pregnancy of twins, and I had to have an emergency C
               section on the 30th because I had a placenta abruption.

               And it was about a week or two afterwards, I was still
               having issues and they had retained placenta left in me,
               so I had to have an emergency hysterectomy because I
               was hemorrhaging out, bleeding. And I was in the
               hospital for quite a long time, and I suffered –

               Even afterwards, I went into a residential care facility
               afterwards to recover because I wasn’t able to go at home
               and get around and everything. And then once I was
               home and able to go over my bills, I then . . . got
               insurance back and I have had the same insurance since .
               ...

       2
                  Although the transcript states that the hearing was conducted on January 23, 2014,
it is clear that the actual hearing date was January 23, 2015.



                                                 2
N.T. at 5; R.R. at 14a.


             Wireman explained that she was a single mother and that no one in
her household could help her with the bills. N.T. at 6; R.R. at 15a. Wireman
further testified that she “almost died” as a result of the retained placenta. N.T. at
8; R.R. at 17a. Wireman testified that she did not drive during the lapse in
coverage. N.T. at 6-7; R.R. at 15a-16a.


             By order dated January 23, 2015, the trial court sustained Wireman’s
appeal. The trial court determined:

             1) I made a conscientious and deliberate assessment of
             the owner’s credibility as she appeared before me. I
             evaluated her demeanor, her gestures, her language and
             the level of candor with which she gave her testimony.
             Based on these firsthand observations, I felt that she was
             telling the truth in explaining the reason for her non-
             payment of insurance premium during the 65 days that
             her Buick station wagon remained without insurance, but
             was not operated.

             2) In sustaining her appeal and dismissing the
             suspension, I exercised what I have come to believe over
             the course of my judicial service to be known as judicial
             discretion. . . .

             3) I was convinced that the reason for her late payment of
             insurance premium was due to her disability.
             (Interestingly, the outcome and law as urged by D.O.T.
             would no doubt have been the same even if the Owner
             [Wireman] had been comatose for the same lapsed period
             of insurance coverage.)

             4) I considered the fact that the purpose of these statutes
             establishing mandatory financial responsibility by vehicle
             owners in Pennsylvania was to assure that motor vehicle


                                          3
               owners would not evade their responsibility by
               intentionally refusing or failing to pay insurance
               premiums. I found as a fact that this purpose was not
               disregarded by this Owner.
               ....
               In summary, the various subsections of Section 1786(d)
               so limit the scope of review and so reduce the right of de
               novo determination by a court of record as to create a
               farce of general concepts of jurisprudence commonly
               observed by both trial courts and appellate courts. These
               piecemeal legislated restrictions serve to reduce the trial
               judge’s role to be that of an automaton left to tabulate
               things such as whether or not the lapse of insurance is in
               excess of 31 days or whether or not the vehicle in
               question was operated during any of those 31 days.
               (Emphasis in original.)
Trial Court Opinion, April 22, 2015, at 2-4; R.R. at 43a-45a.


               DOT contends that where it satisfied its prima facie burden of proof
for the imposition of a suspension of the registration of the Vehicle due to a lapse
of financial responsibility, the trial court erred when it sustained the appeal for
equitable reasons.3


               DOT has the initial burden of proof in a vehicle registration
suspension proceeding pursuant to Section 1786(d)(3) of the Code, 75 Pa. C.S.
§1786(d)(3). In order to shoulder this burden, DOT must establish that the vehicle
is registered or of a type that is required to be registered under this title, and either
that DOT received a notice of a lapse, termination, or cancellation in the financial


       3
               This Court’s review is limited to a determination of whether necessary findings of
fact are supported by substantial evidence of record, whether the trial court committed an error of
law, and whether the trial court abused its discretion. Todd v. Department of Transportation,
Bureau of Driver Licensing, 723 A.2d 655 (Pa. 1999).



                                                4
responsibility coverage or that the owner, registrant or driver was requested to
provide proof of financial responsibility to DOT, a police officer or another driver
and failed to do so. See Fell v. Department of Transportation, Bureau of Motor
Vehicles, 925 A.2d 232 (Pa. Cmwlth. 2007).


             To establish its initial burden of proof for a vehicle registration
suspension, DOT must submit the necessary documentation as set forth in Section
1377(b)(2) of the Code, 75 Pa. C.S. §1377(b)(2).4 This Court agrees with DOT
that it shouldered its burden.


             Here, DOT introduced a packet of documents which established the
rebuttable presumption that 1) the vehicle was required to be registered in the
Commonwealth; and 2) DOT received a notice of a cancellation in the financial
responsibility coverage. This constituted prima facie proof of the cancellation of
Wireman’s policy.




      4
             Section 1377 of the Code, 75 Pa. C.S. §1377, provides:
             (b) DOCUMENTATION
             ….
             (2) In a proceeding relating to the suspension of the registration of
             a motor vehicle imposed under section 1786 (relating to required
             financial responsibility), the department’s certification of its
             receipt of documents or electronic transmission from an insurance
             company informing the department that the person’s coverage has
             lapsed, been canceled or terminated shall also constitute prima
             facie proof that the lapse, cancellation or termination of the policy
             of insurance described in the electronic transmission was effective
             under the laws of this Commonwealth.



                                              5
               To successfully defend an appeal of a vehicle registration suspension
once DOT establishes its prima facie burden of proof, a vehicle owner must prove
that financial responsibility was continuously maintained on the vehicle as required
by Section 1786(a) of the Code, 75 Pa. C.S. §1786(a), or that the vehicle owner fits
within one of the three statutorily defined defenses outlined in Section
1786(d)(2)(i-iii) of the Code, 75 Pa. C.S. §1786(d)(2)(i-iii).5


               The burden then shifted to Wireman to rebut the presumption by clear
and convincing evidence. Fell, 925 A.2d at 239. See Section 1786(d)(3)(ii) of the
Code, 75 Pa.C.S. §1786(d)(3)(ii). Wireman did not deny that her vehicle insurance
lapsed. DOT established that the prior insurance coverage terminated on July 26,

       5
               The three statutorily defined defenses set forth in Section 1786(d)(2) of the Code,
75 Pa. C.S. §1786(d)(2), are:
               (i) The owner or registrant proves to the satisfaction of the
               department that the lapse in financial responsibility coverage was
               for a period of less than 31 days and that the owner or registrant
               did not operate or permit the operation of the vehicle during the
               period of lapse in financial responsibility.

               (ii) The owner or registrant is a member of the armed services of
               the United States, the owner or registrant has previously had the
               financial responsibility required by this chapter, financial
               responsibility has lapsed while the owner or registrant was on
               temporary, emergency duty and the vehicle was not operated
               during the period of lapse in financial for 30 days after the owner
               or registrant returns from duty as long as the vehicle is not
               operated until the required financial responsibility has been
               established.

               (iii) The insurance coverage has terminated or financial
               responsibility has lapsed simultaneously with or subsequent to
               expiration of a seasonal registration, as provided in section
               1307(a.1) (relating to period of registration).



                                                6
2014. Wireman next obtained insurance coverage on her Vehicle on September
29, 2014, a lapse of sixty-five days. A vehicle may be without insurance coverage
for fewer than thirty-one days to meet the exception contained in Section
1786(d)(2)(i) of the Code, 75 Pa. C.S. §1786(d)(2)(i). Although Wireman testified
that she did not drive the Vehicle during that time, she still failed to meet the “less
than thirty-one days” requirement.6


              In summary, DOT established Wireman’s failure to maintain financial
responsibility on the Vehicle.         Furthermore, Wireman failed to present any
evidence that she fit within one of the statutory defenses. Wireman testified that
she did not operate the vehicle during the period of the lapse. However, because
the lapse was greater than thirty-one days, she did not establish a valid defense
under Section 1786(d)(2)(i) of the Code, 75 Pa.C.S. §1786(d)(2)(i).7


              This Court sympathizes with the difficult situation Wireman faced,
but the General Assembly has spoken.

                                           ____________________________
                                           BERNARD L. McGINLEY, Judge


       6
              Wireman did not allege before the trial court that either of the other two
exceptions applied.
       7
              DOT notes that Section 1786(f)(1.1) of the Code, 75 Pa.C.S. §1786(d)(1.1), which
became effective on January 1, 2015, provides:
              In lieu of serving a registration suspension imposed under this
              section, an owner or registrant may pay to the department a civil
              penalty of $500, the restoration fee prescribed under section 1960
              and furnish proof of financial responsibility in a manner
              determined by the department. An owner or registrant may
              exercise this option no more than once in a 12-month period.



                                              7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawna L. Wireman                     :
                                      :
                 v.                   :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Motor Vehicles,             :   No. 148 C.D. 2015
                  Appellant           :

                                 ORDER

           AND NOW, this 28th day of August, 2015, the order of the Court of
Common Pleas of Westmoreland County in the above-captioned matter is reversed.




                                      ____________________________
                                      BERNARD L. McGINLEY, Judge
