              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Paul Weaver, Jr.                   :
                                          :   No. 1115 C.D. 2017
             v.                           :
                                          :   Submitted: January 12, 2018
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing,               :
                  Appellant               :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                           FILED: February 15, 2018


             The Department of Transportation, Bureau of Driver Licensing (DOT)
appeals from the May 25, 2017 order of the Court of Common Pleas of Washington
County (trial court) which sustained the appeal of Robert Paul Weaver, Jr. (Licensee)
from the three-month suspension of his operating privileges imposed by DOT under
section 1786(d)(1) of the Vehicle Code, 75 Pa.C.S. §1786(d)(1) (relating to operating
a motor vehicle without the required financial responsibility).
             The facts of this case are not disputed. Around 5:22 p.m. on November
26, 2016, the Pennsylvania State Police stopped Licensee while he was operating his
vehicle on Interstate 79. As a result of this stop, Licensee received two citations. The
first citation was for a violation of section 1543(a) of the Vehicle Code, 75 Pa.C.S.
§1543(a), relating to operating a motor vehicle while his operating privilege was
suspended.1 The second citation was for a violation of section 1786(f) of the Vehicle
Code, 75 Pa.C.S. §1786(f), relating to operating a motor vehicle without the required
financial responsibility.2 During the course of this traffic stop, Licensee telephoned an
insurance company and he was able to obtain insurance on his motor vehicle effective
as of 5:39 p.m. that day. A Magisterial District Court subsequently convicted Licensee
of both citations and he did not appeal these convictions. (Trial court op. at 1.)
                 The Magisterial District Court thereafter notified DOT of Licensee’s
convictions. By notice dated February 13, 2017, DOT informed Licensee that his
operating privileges would be suspended for a period of three months, effective
February 13, 2018,3 under section 1786(d)(1) of the Vehicle Code as a result of his


       1
           Section 1543(a) states,

                 Except as provided in subsection (b), any person who drives a motor
                 vehicle on any highway or trafficway of this Commonwealth after the
                 commencement of a suspension, revocation or cancellation of the
                 operating privilege and before the operating privilege has been restored
                 is guilty of a summary offense and shall, upon conviction, be sentenced
                 to pay a fine of $200.

75 Pa.C.S. §1543(a).

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

75 Pa.C.S. §1786(f).




                                                    2
operation of a motor vehicle without the required financial responsibility.4 Weaver
appealed both suspensions to the trial court, which consolidated the appeals and held a
de novo hearing on May 24, 2017. (Trial court op. at 2.)
                 At this hearing, DOT introduced and the trial court admitted, without
objection, a certified packet of documents indicating that Licensee pled guilty to
violating sections 1543(a) and 1786(f) of the Vehicle Code before the Magisterial
District Court on February 3, 2017. Counsel for DOT noted that these guilty pleas
establish that Licensee was operating a vehicle on November 26, 2016, at a time when
his license was suspended and his vehicle was not covered by the required financial
responsibility, thereby justifying the twelve-month and three-month suspensions of his
operating privileges. Counsel for DOT acknowledged receipt of a faxed declarations
page from Safe Auto Insurance Company reflecting insurance on Licensee’s motor
vehicle, but noted that said insurance did not become effective until 5:39 p.m. on

       3
         Around this same time, Licensee received another suspension notice from DOT indicating
that his operating privileges would be suspended for a period of twelve months as a result of his
conviction under section 1543 for driving a motor vehicle while his operating privileges were
suspended. The three-month suspension was scheduled to take effect after service of Licensee’s
twelve-month suspension.

       4
           Section 1786(d)(1) states,

                 The Department of Transportation 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 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
                 operating privilege or vehicle registration) is paid.

75 Pa.C.S. §1786(d)(1) (emphasis added).


                                                    3
November 26, 2016, 17 minutes after Licensee’s traffic stop. Because Licensee did
not have the required coverage as of the time of the stop, counsel for DOT argued that
the imposition of the three-month suspension was proper. (Reproduced Record (R.R.)
at 13a-32a.)
               During questioning by the trial court, Licensee confirmed his entry of the
guilty pleas before the Magisterial District Court. (R.R. at 23a.) With respect to the
policy from Safe Auto Insurance Company, Licensee stated that he “pulled the policy
up on [his] phone and signed up for it right then and there,” i.e., during the course of
the traffic stop. (R.R. at 28a-29a.) At the conclusion of the hearing, the trial court
stated that it was dismissing Licensee’s appeal of the twelve-month suspension but
sustaining his appeal of the three-month suspension. (R.R. at 30a.) That same day, the
trial court entered separate orders reflecting its decision. (R.R. at 48a.)
               DOT thereafter filed a notice of appeal with the trial court. Upon the
direction of the trial court, DOT later filed a statement of errors complained of on
appeal, wherein DOT alleged that the trial court erred as a matter of law in sustaining
Licensee’s appeal of the three-month suspension. DOT argued that the evidence of
record established that Licensee operated his motor vehicle without the required
financial responsibility on November 26, 2016, which resulted in his unappealed
conviction for violating section 1786(f) of the Vehicle Code and compelled the
aforementioned suspension. DOT noted that Licensee offered no evidence that his
motor vehicle was properly insured at the time of his traffic stop; instead, the only
evidence he offered revealed that he obtained such insurance 17 minutes after the stop.
(R.R. at 49a-59a.)
               In a subsequent opinion dated July 17, 2017, the trial court acknowledged
that it should not have sustained Licensee’s appeal of the three-month suspension of



                                            4
his operating privileges. The trial court explained that, under section 1786(d)(4) of the
Vehicle Code, 75 Pa.C.S. §1786(d)(4), its scope of review in a case such as this was
limited to determining whether the vehicle was registered or required to be registered
and whether the owner operated or permitted the operation of the vehicle when it was
not covered by financial responsibility. The trial court quoted this section, which
further states:

              The fact that an owner, registrant or operator of the motor
              vehicle failed to provide competent evidence of insurance or
              the fact that the department 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)(ii).
              Here, the trial court noted that it was undisputed that Licensee was
operating a vehicle that was required to have financial responsibility, that he did not
have the same when he was stopped, and that he did not obtain insurance until 17
minutes after the traffic stop. Additionally, the trial court stated that Licensee failed to
offer any proof at the de novo hearing that he possessed the required financial
responsibility at 5:22 p.m. on November 26, 2016, when the Pennsylvania State Police
initiated the traffic stop.   Further, the trial court noted, citing Parthasarathy v.
Department of Transportation, Bureau of Motor Vehicles, 148 A.3d 492 (Pa. Cmwlth.
2016), that this Court has repeatedly found that common pleas courts “do not have
discretion to sustain a registrant’s appeal of a vehicle registration suspension based on
hardship or other equitable factors.” Id. at 495 (citations and internal quotation marks
omitted).




                                             5
              On appeal,5 DOT reiterates its argument that the trial court erred as a
matter of law in sustaining Licensee’s appeal of the three-month suspension of his
operating privileges under section 1786(d)(1) of the Vehicle Code.6 We agree.
              As noted above, section 1786(d)(1) states,

              The Department of Transportation 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 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 operating privilege
              or vehicle registration) is paid.

75 Pa.C.S. §1786(d)(1) (emphasis added).
              Section 1786(d)(4) of the Vehicle Code addresses the right of appeal and
the scope of the same:

              Where an owner or registrant’s operating privilege has been
              suspended under this subsection, the owner or registrant shall
              have the same right of appeal under section 1550 (relating to
              judicial review) as provided for in cases of suspension for
              other reason. The court’s scope of review in an appeal from
              an operating privilege suspension shall be limited to
              determining whether:


       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. Department of Transportation, Bureau
of Traffic Safety v. O’Connell, 555 A.2d 873, 875 (Pa. 1989).

       6
         By order of this Court dated January 9, 2018, Licensee was precluded from filing a brief in
this matter.


                                                 6
                   (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 the department 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).
             Thus, in order to satisfy its prima facie burden of proof for the suspension
of Licensee’s operating privilege under section 1786(d)(1), DOT must establish that
(1) the licensee’s vehicle was of a type that required registration; (2) the financial
responsibility coverage for licensee’s 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. Pangallo v. Department of Transportation, Bureau of
Driver Licensing, 65 A.3d 1091, 1093 (Pa. Cmwlth. 2013). DOT can satisfy this
burden through the introduction into evidence of properly certified documents showing
a licensee’s conviction for violating section 1786(f) of the Vehicle Code. See Parnell
v. Department of Transportation, Bureau of Driver Licensing, 90 A.3d 840, 844 (Pa.
Cmwlth. 2014) (holding that DOT’s submission of its certified packet, which included
the licensee’s conviction on the summary offense of operating a vehicle without




                                           7
insurance, satisfied its prima facie burden)7; Fine v. Department of Transportation,
Bureau of Driver Licensing, 694 A.2d 364, 367 n.7 (Pa. Cmwlth. 1997) (noting that
while a suspension under section 1786(d) is not premised on a conviction, the elements
of the offense set forth in section 1786(f) are the same facts DOT must establish for
such a suspension).
               In the present case, at the May 24, 2017 de novo hearing before the trial
court, DOT introduced, without objection, a certified packet of documents that
included Licensee’s conviction for violating section 1786(f) of the Vehicle Code before
the Magisterial District Court on February 3, 2017. These documents revealed that
Licensee’s conviction stemmed from his traffic stop on November 26, 2016. DOT’s
introduction of this certified packet of documents satisfies its prima facie burden of
proof for the suspension of Licensee’s operating privileges under section 1786(d)(1)
and, hence, the burden shifted to Licensee to produce clear and convincing evidence
that the vehicle was insured at the time that it was driven. However, Licensee admitted,
and the trial court found, that he did not obtain the required liability insurance until 17
minutes after the traffic stop was initiated. Consequently, the three-month suspension
of Licensee’s operating privileges imposed by DOT under section 1786(d)(1) of the
Vehicle Code was proper, and the trial court erred as a matter of law in sustaining
Licensee’s appeal.
               Accordingly, the order of the trial court is reversed.


                                                   ________________________________
                                                   PATRICIA A. McCULLOUGH, Judge

       7
         In Parnell, we also noted that DOT bore no burden to demonstrate that the licensee acted
negligently in failing to maintain insurance or that the licensee had a culpable mental state in driving
without insurance. 90 A.3d at 844 (citing Stone v. Department of Transportation, Bureau of Driver
Licensing, 647 A.2d 287, 288 (Pa. Cmwlth. 1994)).


                                                   8
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Paul Weaver, Jr.                 :
                                        :    No. 1115 C.D. 2017
              v.                        :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                  Appellant             :


                                     ORDER


              AND NOW, this 15th day of February, 2018, the order of the Court of
Common Pleas of Washington County, dated May 25, 2017, is hereby reversed. The
three-month suspension of the operating privileges of Robert Paul Weaver, Jr.,
imposed by the Department of Transportation, Bureau of Driver Licensing, is
reinstated.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
