           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian Stamford,                          :
                                         :
                  v.                     :   No. 229 C.D. 2019
                                         :   Submitted: September 20, 2019
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Motor Vehicles,                :
                        Appellant        :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: January 13, 2020


      The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Motor Vehicles (Department) appeals from a January 29, 2019 Order of the Court
of Common Pleas of Westmoreland County (trial court), which sustained the
statutory appeal of Brian Stamford (Stamford) from a three-month suspension of the
registration of his 2015 Subaru station wagon (motor vehicle) under Section
1786(d)(1) of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.
C.S. § 1786(d)(1). Upon review, we vacate and remand.
      Erie Insurance Exchange (Erie), Stamford’s motor vehicle liability insurance
company, notified the Department that on June 1, 2018, Erie terminated the policy
on the motor vehicle. On July 10, 2018, the Department notified Stamford of Erie’s
report and requested documentation, which Stamford did not submit. Pursuant to
Section 1786(d)(1), the Department subsequently notified Stamford that the
registration of the motor vehicle was suspended for three months, effective
September 30, 2018. These two notifications advised Stamford of his right to
request a review of the termination of insurance by the Insurance Commissioner if
Stamford believed Erie failed to notify him of the termination or the termination was
in error. Instead, Stamford, proceeding pro se, statutorily appealed the registration
suspension on September 24, 2018, to the trial court.
      On January 29, 2019, a de novo hearing was held regarding Stamford’s
appeal. During the hearing, Stamford testified that the lapse in insurance coverage
was unintentional, and he corrected it when he became aware of it. Stamford further
explained that the extenuating circumstances of the lapse stemmed from his divorce
and the four different addresses at which he lived during and after the divorce. He
also testified he had been paying an insurance policy, which he thought was his own,
but was apparently the wrong one. Stamford testified he received a notice from Erie:

      I did receive a notice. I thought it was for the coverage for my ex-wife
      and I [sic], not for the new coverage that I had. And as soon as I went
      back and looked at that and thought I should probably look at these
      numbers, I realized to myself perhaps that was this new coverage which
      is why I contacted them [sic] and had it reinstated.

(Reproduced Record (R.R.) at 16a.)
      The Department noted that the coverage had lapsed for more than a month
because it terminated on June 1, 2018, and was not reinstated until August 7, 2018,
according to the insurance documents that were introduced as exhibits. The trial
court questioned counsel for the Department as to whether the Department was able
to show that Erie gave Stamford notice:


                                          2
       [Counsel]: Your Honor, the Department is not required to show that
       Erie gave him notice.

       THE COURT: Where does it say that?

       [Counsel]: If you read Section 1786(d) of the [MVFRL], it does not
       say that the Department has to prove that notice was given of the
       termination; it only has to prove when the policy was terminated.

       THE COURT: Then they take the word of the insurance company, is
       that what you're telling me?

       [Counsel]: That is what was reported to the Department, yes, Your
       Honor.


(Id. at 17a.) The trial court stated the following when ruling on the appeal:

       Okay. I’m going to sustain the appeal. I believe, in this situation,
       because of the circumstances of the divorce and the various changes of
       address, that as soon as Mr. Stamford found out about the lapse in
       coverage, he notified Erie -- well, he didn't find out about it, he called
       on a premonition, but when he found out from them [sic], he made
       payment as soon as he could with them [sic]. They [sic] were supposed
       to do it on the 3rd. He finally got back to them on the 7th and said, has
       this been done, and he got it done on the 7th after dealing with them
       [sic] twice. And, so, I’m going to sustain the appeal.

(Id. at 18a-19a.) On the same day as the hearing, January 29, 2019, the trial court
ordered that Stamford’s appeal be sustained. The Department filed a timely appeal
to this Court.1 (Id. at 30a-32a.)




       1
         The trial court ordered the Department to file a statement of errors complained of on
appeal, which it did, but the trial court did not issue an opinion pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(a). Instead, it issued an order on April
9, 2019, directing this Court to the trial court’s reasoning, quoted above.



                                                3
       On appeal,2 the Department argues that it met its prima facie case with
certified documents that show Erie cancelled Stamford’s insurance policy on the
motor vehicle on June 1, 2018. The Department further asserts that if the trial court
found Stamford’s “testimony credible that he never received notice of the
termination of his insurance policy,” the trial court should have continued the case
in order to allow Stamford to file a petition for review nunc pro tunc with the
Insurance Commissioner to determine whether Erie mailed the notice of cancellation
to Stamford’s address on record and thus, complied with the statutory notification
requirements. (Department’s Brief at 9.)3
       Under Section 1786(a) of the MVFRL, every motor vehicle covered under the
MVFRL, which is operated or currently registered, must be insured for financial
responsibility. 75 Pa. C.S. § 1786(a). If the Department determines that insurance
was not obtained as required under Section 1786(a), the Department “shall suspend
the registration of a vehicle for a period of three months . . . .” 75 Pa. C.S.
§ 1786(d)(1). There are three defined defenses or exceptions outlined in Section
1786(d)(2):

       (i) The owner or registrant proves to the satisfaction of the
       [D]epartment 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.



       2
          This “Court’s review of a trial court order sustaining a statutory appeal from a suspension
of registration is limited to determining whether the necessary findings of fact are supported by
substantial evidence and whether the court committed a reversible error of law or abused its
discretion.” Fagan v. Dep’t of Transp., Bureau of Motor Vehicles, 875 A.2d 1195, 1197 n.1 (Pa.
Cmwlth. 2005).
        3
          Stamford did not file a brief with this Court and is, therefore, precluded from participating.


                                                   4
      (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 had
      lapsed while the owner or registrant was on temporary, emergency duty
      and the vehicle was not operated during the period of lapse in financial
      responsibility. The exemption granted by this paragraph shall continue
      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).

75 Pa. C.S. § 1786(d)(2).
      Furthermore, in registration suspension cases appealed to a trial court, the trial
court is constrained to determining whether:

      (i) the vehicle is registered or of a type that is 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 relevant times.


75 Pa. C.S. § 1786(d)(3). This Court has held “that trial courts do not have the
discretion to consider hardship or other equitable factors when deciding whether a
suspension is mandated.” McGonigle v. Dep’t of Transp., Bureau of Motor Vehicles,
37 A.3d 1273, 1275 (Pa. Cmwlth. 2012).


                                           5
      The Department has the prima facie burden to show

      that the vehicle in question is of the type required to be registered and
      that the Department received notice that the registrant’s automobile
      insurance policy has been terminated. . . . This burden may be satisfied
      by the certified receipt of an electronic transmission from an insurance
      company stating that a registrant’s policy has been terminated.


Dinsmore v. Dep’t of Transp., Bureau of Driver Licensing, 932 A.2d 350, 353 (Pa.
Cmwlth. 2007) (citation omitted).        The vehicle owner may then rebut this
presumption by producing clear and convincing evidence that “financial
responsibility was continuously maintained on the vehicle as required by Section
1786(a) of the MVFRL, 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 MVFRL, 75 Pa.[]C.S. § 1786(d)(2)(i-iii).” Fell v. Dep’t of Transp., Bureau of
Motor Vehicles, 925 A.2d 232, 237-38 (Pa. Cmwlth. 2007) (footnote omitted).
      In the hearing before the trial court, the Department produced a certified
record of the electronic transmission submitted by Erie, (R.R. at 12a, 24a-25a), thus
satisfying its prima facie burden. However, when the burden shifted to Stamford,
the Department argues, Stamford did not satisfy his burden to rebut the prima facie
case through any recognized defenses. Stamford presented no evidence in regard to
the aforementioned defenses, but the trial court found that Stamford did not receive
proper notice of the termination of his insurance policy from Erie and cited the
extenuating circumstances of Stamford’s divorce. Contrary to the trial court’s
finding, during his testimony Stamford admitted he received a notice, but assumed
it was for a different car, until he realized it could be for his new coverage. Stamford
stated in his testimony at the hearing that “I did receive a notice . . . . And as soon
as I went back and looked . . . at these numbers [for the insurance coverage], I


                                           6
realized to myself perhaps that was this new coverage which is why I contacted
[Erie] and had it reinstated.” (Id. at 16a.) Therefore, the trial court’s decision was
an error of law and an abuse of discretion because the trial court employed equitable
factors to grant Stamford’s appeal that McGonigle specifically disallowed. 37 A.3d
at 1275.
       The trial court should have stayed the matter for review by the Insurance
Commissioner. Section 2006 of Article XX of the Insurance Company Law of 1921
(Insurance Law) provides “[a] cancellation . . . by an insurer of a policy of
automobile insurance shall not be effective unless the insurer delivers or mails to the
named insured at the address shown in the policy a written notice of the cancellation
. . . .” 40 P.S. § 991.2006.4 Under Section 2008(a) of the Insurance Law, the insured
has the right to request, in writing, the Insurance Commissioner review the
cancellation of their policy.      40 P.S. § 991.2008(a).5        Because the Insurance
Commissioner has the power to review a claim that an insured was not notified, the
Department does not have the authority to suspend a registration where the lack of
notice of the cancellation from the insurance company is asserted. See McGonigle,
37 A.3d at 1275; Eckenrode v. Dep’t of Transp., Bureau of Driver Licensing, 853
A.2d 1141, 1145 (Pa. Cmwlth. 2004). “The law is clear that examination, beyond
the record on its face, into the validity of an insurer’s policy cancellation . . . is
properly brought for review to the Insurance Commissioner under Section
1786(d)(5) [of the MVFRL, 75 Pa. C.S. § 1786(d)(5)], and not a trial court.”
McGonigle, 37 A.3d at 1276 (internal quotations omitted). The trial court should


       4
         Act of May 17, 1921, P.L. 682, as amended, added by Section 1 of the Act of June 17,
1998, P.L. 464.
       5
         Act of May 17, 1921, P.L. 682, as amended, added by Section 1 of the Act of June 17,
1998, P.L. 464.


                                             7
have held this matter in abeyance to allow Stamford to file a nunc pro tunc request
for review with the Insurance Commissioner. We, therefore, vacate the trial court’s
order and remand for the trial court to hold Stamford’s statutory appeal in abeyance
to permit Stamford the opportunity to file within 30 days a petition nunc pro tunc
with the Insurance Commissioner seeking review of the cancellation of his insurance
policy.


                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                         8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian Stamford,                         :
                                        :
                   v.                   :   No. 229 C.D. 2019
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Motor Vehicles,               :
                        Appellant       :



                                    ORDER


      NOW, January 13, 2020, the Order of the Court of Common Pleas of
Westmoreland County (trial court), dated January 29, 2019, is VACATED AND
THIS MATTER IS REMANDED for the trial court to hold Brian Stamford’s
registration suspension appeal in abeyance pending Stamford’s filing of a nunc pro
tunc request for review of the insurance policy cancellation with the Insurance
Commissioner within thirty (30) days of the date of this Order, and the Insurance
Commissioner’s review and disposition of the same.


      Jurisdiction relinquished.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
