            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mwavua Mshimba,                              :
                             Appellant       :
                                             :
               v.                            :    No. 49 C.D. 2016
                                             :    Submitted: December 30, 2016
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing                   :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: May 1, 2017

               Mwavua Mshimba (Licensee), representing himself, appeals from an
order of the Court of Common Pleas of Pike County1 (trial court) that denied
Licensee’s statutory appeal from a one-year suspension of his driving privilege
imposed by the Department of Transportation, Bureau of Driver Licensing (DOT)
following his conviction for driving while his license was suspended, a violation of
75 Pa. C.S. §1543(a) (DUS). Essentially, Licensee contends the trial court erred in
sustaining the one-year suspension at issue where (1) he made timely installment
payments on fines related to an earlier conviction, thereby rendering DOT’s prior
November 2014 notice of suspension for failure to make regular payments
unnecessary; and, (2) he never received DOT’s prior November 2014 notice of
suspension. For the reasons that follow, we affirm.

      1
          The Honorable Gregory H. Chelak presided.
                                   I. Background
             On March 23, 2015, a Pennsylvania state trooper stopped Licensee in
Pike County and issued him a traffic citation for DUS. On May 21, 2015, Licensee
was convicted of that violation. On May 29, 2015, DOT mailed Licensee notice of
a one-year suspension, effective July 3, 2015, based on his conviction for driving
while his operating privilege was suspended.


             In June 2015, Licensee filed a timely license suspension appeal in the
trial court. In August 2015, the trial court held a hearing on Licensee’s appeal.
DOT, as respondent, submitted into evidence Licensee’s certified driving record as
Respondent’s Exhibit No. 1. See Ex. R-1; Supplemental Reproduced Record
(S.R.R.) at 1b-17b. Exhibit R-1 included: a copy of the May 29, 2015 notice of
suspension (S.R.R. at 2b-5b); a copy of a conviction detail showing Licensee’s
May 21, 2015 conviction for a violation of 75 Pa. C.S. §1543(a) (S.R.R. at 6b-7b);
a March 26, 2015 copy of DOT’s notice advising Licensee his operating privilege
was reinstated (S.R.R. at 8b); a copy of a November 24, 2014 notice of suspension
advising Licensee that his operating privilege was being suspended as a
consequence of his failure to make regular payments on fines, costs and restitution
for a violation of 75 Pa. C.S. §3111, relating to obedience to traffic control devices
(S.R.R. at 9b-12b); and, Licensee’s certified driving history (S.R.R. at 13b-17b).
DOT then rested.


            Thereafter, Licensee testified he did not know his license was
suspended when he was issued a citation on March 23, 2015, because he did not
receive DOT’s November 2014 notice of suspension.            Tr. Ct. Hr’g, Notes of



                                          2
Testimony (N.T.), 8/26/15, at 8-10.                   On cross-examination, Licensee
acknowledged his mailing address as 1125 South Hanover Street, Nanticoke
Pennsylvania, 18634, the address on DOT’s November 24, 2014 notice of
suspension. N.T. at 15.


              Licensee further testified he maintained regular payments as instructed
by the magisterial district court for the fine imposed for his earlier conviction
under 75 Pa. C.S. §3111 (obedience to traffic control devices). N.T. at 8-9, 11-12.
On August 31, 2015, five days after the hearing, the trial court denied Licensee’s
appeal. Thereafter, Licensee appealed to the Superior Court, which transferred the
case here.2


              In a Pa. R.A.P. 1925(a) opinion in support of its order, the trial court
noted that it considered two appeals by Licensee: an appeal from Licensee’s
criminal conviction for DUS and a civil appeal from the new license suspension.
The trial court dismissed Licensee’s appeal from his criminal conviction for DUS
as untimely because Licensee filed his appeal 55 days after the date of conviction,
25 days outside the 30-day appeal period in Pa. R.Crim.P. 460 provided for
appealing a summary conviction. See Tr. Ct., Slip. Op., 6/3/16, at 2. The trial
court also noted Licensee failed to present any proper basis to permit a criminal
appeal nunc pro tunc (late appeal by permission). Id. In an unreported opinion, a
three-judge panel of the Superior Court affirmed the DUS conviction.                      See

       2
          Our review in a license suspension case is limited to determining whether the trial
court’s findings of fact were supported by substantial evidence, whether errors of law were
committed, or whether the trial court committed a manifest abuse of discretion. Kalina v. Dep’t
of Transp., Bureau of Driver Licensing, 929 A.2d 1233 (Pa. Cmwlth. 2007).



                                              3
Commonwealth v. Mshimba, (Pa. Super., No. 2871 EDA 2015, filed May 19,
2016), 2016 WL 2962931.


            Regarding the merits of Licensee’s civil appeal from the new license
suspension, Licensee testified that when the police officer issued him a ticket for
DUS, he was surprised because he did not receive DOT’s November 2014 notice
of suspension and was thus unaware that his license was suspended. N.T at 8. The
trial court dismissed this argument as an impermissible attack on Licensee’s
criminal conviction for DUS. Tr. Ct., Slip Op., at 3.


            The trial court further recognized that in a license suspension appeal,
DOT bears the initial burden of showing that Licensee was in fact convicted of the
underlying offense, and that DOT acted in accord with applicable law. Dep’t of
Transp. Bureau of Driver Licensing v. Tarnopolinski, 626 A.2d 138 (Pa. Cmwlth.
1993); Zeitlen v. Dep’t of Transp., 525 A.2d 876 (Pa. Cmwlth. 1987). To meet
this burden, DOT must produce a record of the conviction supporting the
suspension. Tarnopolinski; Zeitlen. Here, the trial court concluded, DOT met its
burden. Tr. Ct., Slip Op., at 3.


                                     II. Issues
            On appeal here, Licensee presents two arguments. First, Licensee
contends the November 2014 suspension was improper because he made the
payments as instructed by the magisterial district court. Licensee attached the
installment receipts he received from the district court in Hazle Township, Luzerne
County to his amended petition. See Am. Pet. for Appeal, Ex. B.



                                         4
             Second, Licensee contends he did not receive DOT’s November 24,
2014 notice of suspension.           Licensee asserts this rendered DOT’s evidence
insufficient to establish he knew that his driver’s license was suspended.


                                       III. Discussion
                                   A. Prima Facie Case
             As noted above, the initial burden of proof is on DOT to produce a
record of conviction supporting the suspension. Kalina v. Dep’t of Transp.,
Bureau of Driver Licensing, 929 A.2d 1233 (Pa. Cmwlth. 2007); Passel v. Dep’t of
Transp., Bureau of Driver Licensing, 928 A.2d 381 (Pa. Cmwlth. 2007). The
burden then shifts to the licensee to rebut the inference drawn from the records.
Kalina; Passel.


             Here, DOT introduced into evidence a “conviction detail”3 establishing
that on May 15, 2015, Licensee was convicted of driving while his operating
privilege was suspended. Resp. Ex R-1; S.R.R. at 6b-7b. The report indicated a
violation date of March 23, 2015. Id. Page Three of Licensee’s certified driving
history shows Licensee’s operating privilege was suspended effective December
15, 2014, by notice mailed November 24, 2014. S.R.R. at 15b. Thereafter,
Licensee’s operating privilege was reinstated March 26, 2015.                     Id.    These
documents establish that when Licensee was cited on March 23, 2015 for driving
while his operating privilege was suspended, his operating privilege was in fact


       3
         Upon conviction of a summary charge by a magisterial district court, the Administrative
Office of Pennsylvania Courts electronically certifies a licensee’s conviction to DOT. See
Kalina, 929 A.2d at 1233.



                                               5
under suspension. See 75 Pa. C.S. §1543(c)(1). DOT is then statutorily obligated
to suspend the licensee’s operating privilege for an additional one-year period. Id.
In short, DOT’s documentary evidence created a rebuttable presumption that it
properly suspended Licensee’s operating privilege for one year. Kalina; Passel.


            The burden then shifted to Licensee to show, by clear and convincing
evidence, that DOT’s records were incorrect. Kalina; Passel. Licensee, however,
attempted to show that he never received DOT’s November 24, 2014 notice of
suspension, and that he made all the payments on his fine following his earlier
conviction for violation of     75 Pa. C.S. §3111 (obedience to traffic control
devices), which Licensee argues rendered his December 2015 suspension invalid.


                            B. Licensee’s Arguments
                              1. Installment Payments
            Licensee first contends he made an “arrangement” with the Hazle
Township magisterial district court to make installment payments on his fine for
his July 2014 violation of 75 Pa. C.S. §3111, which Licensee refers to as a
“speeding” offense. See Appellant’s Br. at 8, 13-14. Licensee “delayed” making
the first payment and received a notice of suspension effective September 10,
2014. Appellant’s Br. at 8. However, Licensee followed the payment instructions
in the notice, and DOT removed the suspension. Licensee also lists the following
payments made:

             8/28/14 - $35 (September payment)
            10/3/14 - $35 (October payment)
            12/04/14 - $35 (November payment)
            1/12/15 - $60 (payment for December and part of January)
            2/24/15 - $37.50 (March payment)


                                         6
            3/6/15 - $7.50
            3/25/15 - $47.50
            Total
            $257.50

Appellant’s Br. at 13-14; Am. Pet. for Appeal, Ex. B (bold emphasis added).


            Licensee maintains the total amount of the fine was only $170.
However, as indicated above, he made payments of $257.50. Licensee therefore
argues the managerial district court’s clerks failed to keep proper records and thus
improperly sent notice to DOT that he did not make his installment payments in a
timely manner.     Consequently, Licensee argues DOT improperly issued its
November 2014 notice of suspension. As such, Licensee asserts the trial court
erred in not examining his installment payment receipts, which would have shown
no need for the November 2014 suspension notice.


               2. Receipt of November 2014 Notice of Suspension
            Licensee also contends DOT must prove beyond a reasonable doubt
that he received the November 2014 notice of suspension. He argues DOT never
produced any document showing he received the notice of suspension.


            Nonetheless, Licensee testified in the present appeal that the address
on the November 2014 notice, 1125 South Hanover Street, Nanticoke, PA, 18634,
was his mailing address at the time DOT mailed the notice. See N.T., 8/26/15, at
9. However, Licensee asserts this address is a block of four apartments and that at
the time DOT mailed the notice, Licensee’s family and another family each lived
there.



                                         7
              Given these circumstances, Licensee reasons, any number of things
could have happened to the letter. For example, it could have been placed in the
wrong box. In short, Licensee concludes, he never received the November 2014
suspension notice. Otherwise, he would have acted on it as he did with the earlier
suspension.


                                    3. Case Law
              Finally, Licensee contends the trial court completely disregarded two
cases he cited. In Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 320 (3d Cir.
2014), a case involving the issue of whether an individual received timely notice of
her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§2061-
2654, the Third Circuit noted that where notice is sent via regular mail, as opposed
to certified or registered mail, a weak presumption that the notice arrived at its
destination and was received by the person to whom it was addressed, is created
under the common law “mailbox rule.” However, where the addressee presents
evidence that he did not receive the notice, the presumption is destroyed. A single,
non-conclusory affidavit, based on personal knowledge and directed at a material
issue, is sufficient to defeat summary judgment on the FMLA notice of rights
issue.


              Licensee also cites Commonwealth v. Kane, 333 A.2d 925 (Pa. 1975),
where the Pennsylvania Supreme Court held that in order to convict a person of
operating a motor vehicle while his license was suspended, the Commonwealth
must establish, as an essential element of the crime, that the person had actual




                                          8
notice of the suspension. Proof that a notice of suspension was mailed to the
person was admissible, but insufficient to establish actual notice of the suspension.


            Citing Lupyan and Kane, Licensee asserts DOT failed to establish he
had actual notice of DOT’s November 2014 notice of suspension. Therefore,
Licensee requests that we reverse the trial court’s order denying his current license
suspension appeal.


                                    B. Analysis
                                1. Criminal Appeal
            DOT established that on May 21, 2015, Licensee was convicted in
abstentia in Pike County of driving while his driver’s license was suspended at the
time the state trooper cited him on March 23, 2015 for a violation of 75 Pa. C.S.
§1543(a). Fifty-five days after his criminal conviction, Licensee filed an appeal,
which the trial court denied as untimely. The trial court also determined Licensee
failed to present a proper basis for an appeal nunc pro tunc.


            The Superior Court affirmed the denial of his criminal appeal.
Commonwealth v. Mshimba. The Superior Court agreed with the trial court that
the record did not establish a breakdown in the court’s operations justifying a
criminal appeal nunc pro tunc. See Mshimba, Slip. Op., at 3-7.


                                  2. Civil Appeal
            On May 29, 2015, DOT mailed Licensee notice of a one-year
suspension, effective July 3, 2015, for his violation of 75 Pa. C.S. §1543(a).



                                          9
Licensee timely appealed. At the hearing on his civil appeal, DOT submitted
documentary evidence including a copy of its November 24, 2014 notice of
suspension informing Licensee his driving privilege:

            will be suspended for failing to make regular payments
            on fines, costs, and restitution for citation number
            T22311376 (Amount Owed $100.00) issued on
            4/19/2014. This citation is a result of your violation of
            Section 3111 of the Pennsylvania Vehicle Code:
            TRAFFIC-CONTROL VIOL.

S.R.R. at 9b (emphasis added).


           DOT also submitted Licensee’s certified driving history, which
showed DOT suspended Licensee’s license on December 15, 2014, and that it was
not restored until March 26, 2015. S.R.R. at 15b. Therefore, DOT met its prima
facie burden of showing it properly suspended Licensee for driving while his
operating privilege was suspended at the time he was cited for that violation on
March 23, 2015. Kalina; Passel; Zeitlen.


           Licensee contends DOT improperly suspended his license in December
2014 because he made timely payments on his outstanding fine for his earlier
speeding/obedience of traffic control signs conviction. We note, however, that
according to Licensee, he made the final payment toward his fines and costs on
March 25, 2015, two days after the March 23, 2015 citation for DUS. Appellant’s
Br. at 13-14. Licensee also asserts he never received DOT’s November 2014
notice of the December 2014 suspension.




                                        10
            We recognized in Kalina that the initial burden of proof is on DOT to
produce a record of conviction supporting a suspension. In Kalina, DOT initially
suspended a license for 90 days based on a conviction for underage drinking.
Thereafter, a magisterial district court convicted the licensee of a second underage
drinking violation.   As a result of this conviction, DOT imposed a one-year
suspension. Licensee appealed the second conviction and the one-year suspension.
The Commonwealth eventually nolle prossed (dismissed) the second underage
drinking charge. Thereafter, the trial court sustained the licensee’s suspension
appeal.


            On appeal in Kalina, DOT argued that a nolle pros of the underage
drinking charge did not constitute a final determination in licensee’s favor
eliminating the need for the suspension. We disagreed, noting that a nolle pros in a
de novo proceeding is sufficient proof that the licensee was not convicted of the
charge.


            The present case, however, is distinguishable from Kalina. Because
Licensee failed to timely appeal his May 21, 2015 criminal conviction for DUS, he
cannot establish that DOT’s May 29, 2015 notice of suspension based on that
conviction was improper. Unlike the case in Kalina, the Commonwealth did not
nolle pros Licensee’s underlying DUS charge. Therefore, the trial court could not
consider facts and circumstances surrounding Licensee’s criminal conviction
“because the relevant inquiry is whether the motorist was convicted, not whether
he should have been convicted.” Dep’t of Transp, Bureau of Driver Licensing v.
Rinehart, 537 A.2d 930 (Pa. Cmwlth. 1988). In short, a license suspension appeal,



                                        11
which is civil in nature, cannot be used to attack the licensee’s underlying criminal
conviction. Id.


             Consequently, Licensee’s assertions that DOT failed to prove beyond a
reasonable doubt that he in fact received DOT’s prior November 24, 2014 notice of
suspension or that DOT erred in issuing the December 2014 suspension because he
timely made payments on the outstanding fines and costs related to an earlier
violation, and the two appellate cases he cites regarding receipt of mail notice, are
irrelevant to this appeal.4 Kalina; Rinehart.


             For the above reasons, we affirm the trial court’s order denying
Licensee’s civil license suspension appeal. Therefore, we grant DOT’s request to




       4
         Even assuming arguendo that Licensee’s assertions were properly before us, they would
not establish DOT failed to provide him notice of the December 2014 suspension or that the
suspension was improper. Although Licensee asserts he did not receive DOT’s November 2014
notice of suspension, he does not dispute that DOT mailed it to his correct address. Under the
mailbox rule, proof of mailing raises a rebuttable presumption that the item was received. Dep’t
of Transp, Bureau of Driver Licensing v. Grasse, 606 A.2d 544 (Pa. Cmwlth. 1991). This
presumption is not nullified solely by the licensee’s testimony denying receipt of the mailed
item. Id. DOT’s certification of a driving record showing that notice was sent is competent to
show DOT sent the notice. Id. Further, DOT is not required to show the licensee actually
received the notice. Id.
       In addition, Licensee’s record of installment payments does not constitute clear and
convincing evidence that DOT erred in suspending his license in December 2015 for failure to
make regular payments on his outstanding fines and costs. To that end, his receipts do not show
he made the $100.00 payment needed to avoid the December 15, 2014 suspension. Further,
Licensee did not make his final payment until after he received the March 23, 2015 citation for
driving while his operating privilege was suspended. Appellant’s Br. at 13-14, Am. Pet. for
Appeal, Ex. B.




                                              12
reinstate its one-year suspension of Licensee’s operating privilege pursuant to 75
Pa. C.S. §1543(c)(1) within a reasonable time.



                                      ROBERT SIMPSON, Judge




                                        13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mwavua Mshimba,                      :
                       Appellant     :
                                     :
            v.                       :   No. 49 C.D. 2016
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :


                                   ORDER

            AND NOW, this 1st day May, 2017, the order of the Court of
Common Pleas of Pike County is AFFIRMED and the Department of
Transportation, Bureau of Driver Licensing, is hereby directed to REINSTATE
the one-year suspension of Appellant Mshimba’s operating privilege within a
reasonable time.




                                    ROBERT SIMPSON, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mwavua Mshimba,                           :
               Appellant                  :
                                          :
             v.                           :
                                          :
Commonwealth of Pennsylvania,             :
Department of Transportation,             :   No. 49 C.D. 2016
Bureau of Driver Licensing                :   Submitted: December 30, 2016


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING
OPINION BY JUDGE COSGROVE                     FILED: May 1, 2017

             I concur in the majority’s conclusion that the merits of a driving under
suspension (DUS) conviction cannot be addressed in a civil proceeding
challenging a subsequent license suspension arising out of that conviction. Where
I differ with the majority is in its determination that, in a case such as the present,
the administrative circumstances related to the initial suspension are ineligible for
review in the civil proceeding.
             In this case, Appellant presented evidence that he paid the appropriate
monies to the magisterial district judge (MDJ) in conjunction with his original
offense. (Reproduced Record at 18a-25a.) If this were so, he would not have been
subject to the DUS prosecution at the heart of the present additional suspension.
Since he was convicted in that DUS prosecution and failed to timely appeal, the
matter of the current civil suspension is, according to the majority, essentially
closed.
               In support of its position, the majority cites Department of
Transportation, Bureau of Driver Licensing v. Rinehart, 537 A.2d 930 (Pa.
Cmwlth. 1988), a case which itself cites Department of Transportation, Bureau of
Traffic Safety v. Edwards, 519 A.2d 1083 (Pa. Cmwlth. 1987). The essence of the
holdings in these cases is that “[a] criminal conviction may not later be attacked
collaterally in a suspension appeal.” Edwards, 519 A.2d at 1084. On that point,
neither I nor the majority disagree. But that is not what the present Appellant
attempted to do in his civil appeal. Instead, at issue was whether he had indeed
made full payment of the monies assessed at the MDJ level and whether there had
been an administrative breakdown in the processing of these payments.            See
Majority, Slip Op. at 7. If Appellant is correct, the question of whether he fully
complied with the duties imposed on him was at issue and should have been
considered in determining whether the license suspension at issue herein was
appropriate.
               The majority suggests that even if Appellant’s record of MDJ
installment payments were considered, it may be of no moment. Majority, Slip
Op. 12, n.4. The majority may, or may not, be correct. That is not the issue,
however. A question exists as to whether Appellant made all necessary payments
and whether the MDJ court’s administrative structure failed him. Since justice
requires an answer to this question, I would remand this matter to the trial court. I
must therefore dissent from the majority’s disposition.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge

                                      JMC-2
