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HomeMy WebLinkAbout07-3301 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOME. LEWIS, No. M- 33ot Civ t l Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYL VANIA, Respondent IN FORMA PAUPERIS PETITION Thom E. Lewis states under the penalties provided by 18 Pa. C.S.A. §4904 (unsworn falsification to authorities) that: 1. I am Thom E. Lewis, the Petitioner in the above-captioned action and because of my financial condition am unable to pay the following fees and costs: filing fees and costs. 2. My responses to the questions below relating to my ability to pay the fees and costs of prosecuting an appeal are true and correct. (a) Are you presently employed? No (b) Have you received within the past twelve months any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, pensions, annuities, social security benefits, support payments or other source? Yes, assorted part time work averaging between $300 to $500/month (c) Do you own any cash or checking or savings accounts? No (d) Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Auto: 1993 Jeep Grand Cherokee (e) List the persons, if any, who are dependent upon you for support and state your relationship to those persons. None (f) List all your debts and obligations. Rent/Mortgage $600/month Auto Ins 60/ month Elec 27/ month Phone 45/month 3. I understand that a false statement or answer to any question in this verified statement will subject me to the penalties provided by law (misdemeanor of the second degree). 7n B 6- q-07 Date n CS 0 v -TI -c!; c-- rn -° T - ° - s J S IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOME. LEWIS, Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent No. OT -330 ( o 7-, C iT] rn w u APPEAL NUNC PRO TUNC. FROM MOTOR _VEHICLE REGISTRATION SUSPENSION AND NOW, this 4th day of June, 2007, comes the Petitioner Thom E. Lewis, and files this Appeal, Nunc Pro Tunc, from the Motor Vehicle Registration Suspension imposed by the Respondent the Pennsylvania Department of Transportation and in support thereof avers as follows: 1. The Petitioner is Thom E. Lewis, an adult individual, residing at 263 Texaco Rd., Mechanicsburg, County of Cumberland, Pennsylvania. 2. The Petitioner is a licensed driver in the Commonwealth of Pennsylvania by the Pennsylvania Department of Transportation. 3. The Petitioner is the registered owner of a 1993 Ford Jeep Grand Cherokee, Registration number ELD8311. 4. The Pennsylvania Department of Transportation is the state agency mandated with the responsibility of issuing registrations for vehicles titled and registered in the Commonwealth of Pennsylvania. 5. That the Respondent has suspended the registration of the aforementioned 1993 Ford Jeep Grand Cherokee, claiming that the Petitioner knowingly failed to maintain Financial Responsibility of this vehicle. 6. Petitioner disputes the basis upon which the Respondent suspended the registration of the Petitioner's vehicle. 7. Petitioner further disputes the period of the registration suspension as well as the time credited for the suspension imposed by the Respondent. 8. Title 75 Pa. C.S.A. § 1377, sets forth as follows: (a) GENERAL RULE.-- Any person who has been sanctioned by the department under this chapter or whose registration or authority to issue registration cards or plates has been denied, suspended or otherwise sanctioned by the department shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). The filing of the appeal shall act as a supersedeas, except for a warning or a revocation, and the suspension or monetary penalty shall not be imposed until determination of the matter as provided in this section. Upon application of the registrant and prior notice to the department, the court may grant a supersedeas from a revocation of registration or authority to issue registration. The court shall schedule the appeal for hearing upon 30 days' written notice to the department, and thereupon take testimony and examine into the facts of the case and determine whether the petitioner is entitled to registration, subject to suspension of registration or other sanction under the provisions of this title or departmental regulations. WHEREFORE, the Petitioner Thom E. Lewis respectfully requests that this Honorable Court schedule a hearing in the above-captioned matter for the reasons set forth herein and thereafter overrule the registration suspension imposed by the Respondent. Respectfully submitted, T dm E. Le s Petitioner 263 Texaco Rd. Mechanicsburg, PA 17050 e ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOME. LEWIS, No. Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent CERTIFICATE OF SERVICE OF APPEAL FROM MOTOR VEHICLE REGISTRATION SUSPENSION I, Thom E. Lewis, Petitioner, in the above-captioned matter, do hereby certify that a true and correct copy of the Appeal, Nunc pro Tunc, from the Motor Vehicle Registration Suspension was served by first class mail on the Respondent on June 4th, 2007; as follows: Pennsylvania Department of Transportation Office of Chief Counsel P.O. 8212 Harrisburg, PA 17105 Thom 12. Lewis Petitioner 263 Texaco Rd. Mechanicsburg, PA 17050 0 r?a C= 0 c= -n -K, 1 emorandum 07-- 330/ EDGAR B. BAYLEY Judge To V p Date Subject: 40 ? c.i CtAl?? ooe---, ''. ? 4AA---, v,,O? I &&0" ?-, to?? . 11\0 CA^ 4v; &or CXY" n/l%? -T/o'-- ?" kv? P4 AD A 0 Yr A1)N? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOME. LEWIS, Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, : Respondent No. 07-3301 Civil AMENDED APPEAL. NUNC PRO TUNC.FROM MOTOR VEHICLE REGISTRATION SUSPENSION AND NOW, this f,"5 day of June, 2007, comes the Petitioner Thom E. Lewis, and files this Amended Appeal, Nunc Pro Tunc, from the Motor Vehicle Registration Suspension imposed by the Respondent the Pennsylvania Department of Transportation and in support thereof avers as follows: 1. The Petitioner is Thom E. Lewis, an adult individual, residing at 263 Texaco Rd., Mechanicsburg, County of Cumberland, Pennsylvania. 2. The Petitioner is a licensed driver in the Commonwealth of Pennsylvania by the Pennsylvania Department of Transportation. 3. The Petitioner is the registered owner of a 1993 Ford Jeep Grand Cherokee, Registration number ELD8311. 4. The Pennsylvania Department of Transportation is the state agency mandated with the responsibility of issuing registrations for vehicles titled and registered in the Commonwealth of Pennsylvania. 5. That the Respondent has suspended the registration of the aforementioned 1993 Ford Jeep Grand Cherokee, claiming that the Petitioner knowingly failed to maintain Financial Responsibility of this vehicle. 6. Petitioner disputes the basis upon which the Respondent suspended the registration of the Petitioner's vehicle. 7. Petitioner has previously filed an appeal with the Insurance Commission, as the law requires, which resulted in PennDot reinstating the registration of the Petitioner's vehicle. This matter is currently pending in an appeal with the Commonwealth Court of Pennsylvania. 8. When the Petitioner attempted recently to renew his registration, PennDot informed the Petitioner that they would not renew his license because the suspension had been reinstated. 9. Petitioner never received any notice regarding the reinstatement of the registration suspension. 10. Petitioner requested from PennDot documentation to establish when the registration suspension was reinstated, but PennDot refused to provide the Petitioner with any documentation in this regard. 11. Petitioner further disputes the period of the registration suspension as well as the time credited for the suspension imposed by the Respondent. 10. Title 75 Pa. C.S.A. § 1377, sets forth as follows: (a) GENERAL RULE.-- Any person who has been sanctioned by the department under this chapter or whose registration or authority to issue registration cards or plates has been denied, suspended or otherwise sanctioned by the department shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). The filing of the appeal shall act as a supersedeas, except for a warning or a revocation, and the suspension or monetary penalty shall not be imposed until determination of the matter as provided in this section. Upon application of the registrant and prior notice to the department, the court may grant a supersedeas from a revocation of registration or authority to issue registration. The court shall schedule the appeal for hearing upon 30 days' written notice to the department, and thereupon take testimony and examine into the facts of the case and determine whether the petitioner is entitled to registration, subject to suspension of registration or other sanction under the provisions of this title or departmental regulations. 11. Petitioner filed this Appeal upon learning of the reinstatement of the registration suspension. WHEREFORE, the Petitioner Thom E. Lewis respectfully requests that this Honorable Court schedule a hearing in the above-captioned matter for the reasons set forth herein and thereafter overrule the registration suspension imposed by the Respondent. Respectfully submitted, 263 Texaco Rd. Mechanicsburg, PA 17050 Petitioner F* IN THE COURT OF COMMON PLEAS OF CUMBERLAND COL PENNSYLVANIA CIVIL ACTION - LAW DOME. LEWIS, Petinone: - V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent No. 07-3301 Civil CERTIFICATE OF SERVICE OF AMENDED APPEAL FROM MOTOR VEHICLE REGISTRATION SUSPENSION I, Thom E. Lewis, Petitioner, in the above-captioned matter, do hereby certify that a true and correct copy of the Amended Appeal, Nunc Pro Tunc, from the Motor Vehicle Registration Suspension was served by first class mail on the Respondent on June , 2007, as follows: Pennsylvania Department of Transportation Office of Chief Counsel P.O.8212 Harrisburg, PA 17105 Thom ewis Petitioner 263 Texaco Rd. Mechanicsburg, PA 17050 CID ` h IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYL VANIA CIVIL ACTION - LAW THOM E. LE WIS, Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYL VANIA, Respondent No. -301 IN FORMA PAUPERIS PETITION Thom E. Lewis states under the penalties provided by 18 Pa. C.S.A. §4904 (unsworn falsification to authorities) that: 1. I am Thom E. Lewis, the Petitioner in the above-captioned action and because of my financial condition am unable to pay the following fees and costs: filing fees and costs. 2. My responses to the questions below relating to my ability to pay the fees and costs of prosecuting an appeal are true and correct. (a) Are you presently employed? No (b) Have you received within the past twelve months any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, pensions, annuities, social security benefits, support payments or other source? Yes, assorted part time work averaging between $300 to $500/month (c) Do you own any cash or checking or savings accounts? No • (d) Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Auto: 1993 Jeep Grand Cherokee (e) List the persons, if any, who are dependent upon you for support and state your relationship to those persons. None (f) List all your debts and obligations. Rent/Mortgage $600/month Auto Ins 60/ month Elec 27/ month Phone 45/month 3. I understand that a false statement or answer to any question in this verified statement will subject me to the penalties provided by law (misdemeanor of the second degree). (\\I Q 6- q -- 0 7 Date W IL THOM E. LEWIS, IN THE COURT OF COMMON PLEAS OF PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA V. DEPARTMENT OF TRANSPORTATION: PENNSYLVANIA, : 07-3301 RESPONDENT :-06-338a CIVIL TERM ORDER OF COURT AND NOW, this 19 day of June, 2007, IT IS ORDERED THAT: (1) Thom E. Lewis may proceed in forma pauperis. (2) A Rule is entered against the Department of Transportation, Pennsylvania, to show cause why petitioner should not be allowed to file an amended appeal nunc pro tunc from a motor vehicle registration suspension. (3) Rule returnable at a hearing to be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania on Monday, August 27, 2007, at 1:30 p.m. e Court, Edgar B. Bayley, J. ?.Am E. Lewis, Pro se 263 Texaco Road Mechanicsburg, PA 17050 ,C epartment of Transportation Office of Chief Counsel P.O. Box 8312 Harrisburg, PA 17105 sal ?.. i`_= ; -- t ?...; ?C? -- T 1? ?: ? ?: ® ? ^?'cy. ''? v THOM E. LEWIS, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION,: BUREAU OF MOTOR VEHICLES, Respondent a7 NO.,H-3301 CIVIL TERM ORDER OF COURT AND NOW, this 27th day of August, 2007, a Rule having been entered against the Department of Transportation to show cause why petitioner should not be allowed to file an amended appeal nunc pro tunc from a motor vehicle registration suspension, the Rule is made absolute. Petitioner may file an appeal nunc pro tunc within 20 days of is granted. ar B. Bayle 4kee"'orge H. Kabusk, Esquire For the Department of Transportation I V `hom E. Lewis, pro se 263 Texaco Road Mechanicsburq, RA 17050 prs J te. A supersedeas ts.) D C '-' co N : r ri t (U , . ? U r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOME. LEWIS, Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent No. 07-3301 Civil AMENDED APPEAL. K WC PRO 100 EROM MOTOR VEHICLE REGISTRATION SUSPENSION AND NOW, this lath day of September, 2007, comes the Petitioner, Thom E. Lewis, and files this Amended Appeal, Nunc Pro Tune, from the Motor Vehicle Registration Suspension imposed by the Respondent, the Pennsylvania Department of Transportation (PennDOT). By permission of this Honorable Court, granted on August 27, 2007 (Attachment A), Petitioner Appeals his registration suspension, and in support thereof avers as follows: 1. The Petitioner is Thom E. Lewis, an adult individual, residing at 263 Texaco Road, Mechanicsburg, County of Cumberland, Pennsylvania. 2. The Petitioner is a licensed driver in the Commonwealth of PA and registered owner of a 1993 Jeep Grand Cherokee, reg. number ELD8311, title number 45517693. .4 3. The Pennsylvania Department of Transportation is the state agency mandated with the responsibility of issuing registrations for vehicles titled and registered in the Commonwealth of Pennsylvania. 4. The Respondent has suspended the registration of the aforementioned 1993 Jeep Grand Cherokee, claiming that the Petitioner knowingly failed to maintain financial responsibility of this vehicle for a period of over 30 (thirty) days. 5. Petitioner disputes both the basis upon which the Respondent suspended the registration, and the period of the registration suspension as well as the time credited for the suspension imposed by the Respondent. 6. Petitioner alleges that. Respondent can not meet its burden of proof to impose a Vehicle Registration Suspension because respondent can not meet the two (2) criteria to show a prima facie case for suspension as required under 75 Pa. C.S. § 1377(b) 7. Under 75 Pa. C.S. § 1377(b), Respondent must certify that it received information which complies with the Insurance Company obligations under Subchapter H of Chapter 17. ' (and it must also comply with 42 Pa. C.S. § 6103 and 6109). 8. Respondents have previously stipulated in writing, that Progressive Insurance Company (Progressive) failed to comply with the insurance company obligations under Subchapter H of Chapter 17, (Attachment B), because they did not comply with 75 Pa. C.S. § l 377(b) (in relevant part) In addition, if the department receives information from an insurance company which is compxing with its obligation under Subchauter H of Chapter 17 (relating to proof of financial responsibility) by means of electronic transmission, it may certify that it has received the information by means of electronic transmission. 2 Respondents "10 (ten) day notification" obligation under 75 Pa. C. S. § 1786(e)(2). 9. Respondents also stipulated that Progressive has violated Pennsylvania Codes in this matter and that Respondents are knowingly allowing Progressive to continue to violate PA Motor Vehicle Financial Responsibility Law (PA MVFRL) without sanction. 10. Petitioner alleges that Respondents instead chose to sanction the Petitioner for Progressives unlawful 47 (forty-seven) day lapse in issuing a notice to PennDOT. 11. At a hearing to Show Cause, on Aug. 27, 2007 PennDOT, through it's Counsel, Mr. George Kabusk, did serve upon the Petitioner, two (2) separate "Certification and Attestation", signed by Anita M. Wasko, Acting Director of Bureau of Motor Vehicles that are meant to satisfy the requirements of 75 Pa. C.S. § 1377(b) (Attachment C and Attachment D), but fail to do so. 12. In their Certification, Respondents omitted a letter dated Dec 29, 2006, from PennDOT (Attachment B), in which PennDOT acknowledges Progressive violated PA Motor Vehicle Code by issuing the unlawful notice 47 (forty-seven) days after the fact. 13. Because Respondents Certification does not contain the required notice from Progressive that conforms to PennDOT's required 10 (ten) day obligations under 75 Pa. C.S. § 1786(ex2), Petitioner alleges that Respondent was therefore required to attach a written statement to its Certification stating that no such record or entry existe&. 2 75 Pa. C.S. § 1786(ex2) (in relevant part) "The insurer shall notify the department not later than ten days following the effective date of the cancellation or termination. " 3 42 Pa. C.S. § 6103(b). Lack of record.--A written statement that after an examination of the records of the government unit no record or entry of a specified tenor is found to exist in the records designated by the statement, 3 .s 14. Petitioner further alleges that Respondent should now be estopped from making any claim that Progressive sent a proper notice, since Respondents previously held Progressive failed to do so. 15. Progressive has previously testified at a hearing in 2006, that they (Progressive) also failed to issue any notice to Petitioner during the same time. 16. For these reasons and others, Petitioner asserts that PennDOT should be prohibited from using any document that does not comply with 75 Pa. C.S. § 1377(b); 75 Pa. C.S. § 1786(ex2); or 42 Pa. C.S. § 6103 and 6109 of the Judicial Code. 17. Petitioner alleges he has been treated differently than others similarly situated, by both Respondents (PennDOT) and the PA Dept of Insurance in this matter. 18. Furthermore, had Respondent or Progressive issued any notice in a timely fashion, rather than allowing a 47 (forty-seven) day lapse, Petitioner would have been allowed to simply return his license plate, without penalty, under Section 1786(g)(2) a 19. Because of a mechanical problem with the vehicle, the vehicle wasn't driven during the insurance lapse alleged by Respondents. 20. Petitioner asserts that he has successfully shown Progressive failed to issue notices required under Pennsylvania Law to both Respondent and Petitioner, and most authenticated as provided in subsection (a), is admissible as evidence that the records contain no such records or entry. °75 Pa. C.S. § 1786(gx2) (in relevant part) No person shall be penalized for maintaining a registered motor vehicle without financial responsibility under subsection (d) if, at the time insurance coverage terminated or financial responsibility lapsed, the a registration plate and card were voluntarily surrendered to the department. 4 s importantly, there simply was not any lapse of insurance warranting any suspension. 21. Petitioner has previously filed an appeal with the Insurance Commission, as the law requires, and is currently on appeal with the Commonwealth Court of PA. 22. Petitioner alleges PA law required a ruling from the PA Department of Insurance regarding improper cancellation by Progressive prior to Respondent imposing any vehicle registration suspension on the Petitioner. Respondent admits suspending the registration prior to receiving that ruling. 23. Petitioner alleges that an e-mail from the Dept of Insurance to PennDOT requesting a "delay" in the registration suspension was improper, because Petitioner was entitled to a supersedeas as a matter of law, when he filed his appeal. 24 Petitioner further alleges that the Dept of Insurance additionally violated the Petitioner's rights, by making an unprecedented and bizarre claim that Petitioner was required to file an appeal a full month before any alleged notice even existed. 25. Petitioner alleges PennDOT acted improperly, based at least partially, on improper conduct of both Progressive Insurance and the PA Dept of Insurance. 26. When the Petitioner attempted recently to renew his registration, PennDOT informed the Petitioner that they would not renew his license because the suspension had been reinstated. 27. At the hearing on August 27, 2007, Respondents stipulated to this Honorable Court that the Petitioner was never informed by PennDOT of the reinstated registration suspension. 5 28. Petitioner has since learned that PennDOT reinstated the suspension from roughly June 2006 through August 2007 (15 months) without any notice being given to the Petitioner or allowing him the chance to appeal or return his license plate, as he should have been allowed to do under Pennsylvania Law. Had PennDOT given proper notice, and Petitioner been allowed to simply serve the suspension, it would have only lasted 90 (ninety) days. However, Petitioner alleges even that would have been excessive, since there was never a lapse that warranted any suspension at all. WHEREFORE, the Petitioner Thom E. Lewis respectfully requests that this Honorable Court hold a hearing in the above-captioned matter for the reasons set forth herein and thereafter overrule the registration suspension imposed by the Respondent. 263 Texaco Road Mechanicsburg, PA 17050 6 Petitioner r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LA W THOME. LEWIS, No. 07-3301 Civil Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYL MANIA, Respondent RTIFI A O SERVICE Of AMIDDED P FROM MOTOR VE LE. REGISTRATION SUSPENSION 1, Thom E. Lewis, Petitioner, in the above-captioned matter, do hereby certify that a true and correct copy of the Amended Appeal, Nunc Pro Tunc, from the Motor Vehicle Registration Suspension was served by first class mail on the Respondent on September 11F, 2007, as follows: Pennsylvania Department of Transportation Attn.: Mr. George Kabusk Office of Chief Counsel 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 Thom E-. Lewis \ 1 Petitioner J 263 Texaco Rd. Mechanicsburg, PA 17050 7 r A. THOM E. LEWIS, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. ?- COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION,: BUREAU OF MOTOR VEHICLES, Respondent NO. 06-3301 CIVIL TERM ORDER OF COURT AND NOW, this 27th day of August, 2007, a Rule having been entered against the Department of Transportation to show cause why petitioner should not be allowed to file an amended appeal nunc pro tune from a motor vehicle registration suspension, the Rule is made absolute. Petitioner may file an appeal nunc pro tune within 20 days of thi te. A supersedeas is granted. By,/the Co Edgar B. Bayley J. George H. Kabusk, Esquire For the Department of Transportation Thom E. Lewis, pro se 263 Texaco Road Mechanicsburg, PA 17050 prs r MN 151 (9-97) COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES HARRISBURG, PENNSYLVANIA 171042516 December 29, 2006 Thomas E. Lewis 263 Texaco Road Mechanicsburg, PA 17050 Dear Mr, Lewis, IN REPLY REFER TO 4-- This letbar is in Mfuence to your phone inquiry on December 28, 2006 concerning the letter you received regarding your insurance cancellation submitted to the Department for a 1993 Jeep. Our records indicate that a cancellation was received by the Department from Progressive Specialty Company on December 21, 2005 for title number 45517693. The insurance was cancelled on the 1993 Jeep on November 4, 2005 and we received the cancellation notice from the insurance company on December 21, 2005. The Department requires cancellations be submitted within 10 days from the cancellation date of the vehicle, which is stated in the 67 Pa. Code 221.3 section (a). The insurer shall not fy the D3eparfisiew no latter thm 10 days followi>' g the of ecaw dh* of the c elWon or termtrati©m This requiremeN shall not cipply to a policy which has been m effect for more hko 6» wWnfrom the mite the policy was initially issued Currently, a number of insurance companies do comply with the .10 day requirement and we hope more will meet the requirement aS we speak with them throughout the year. The Department is looking at ways to enforce the 10 day requirement but unfortunately at this time no penalty for not meeting the 10 day requirement is in place. Sincerely, x'?; . ? Debra Silvis, Manager U r MV-326 (1/03) CERTIFICATION AND ATTESTATION DATE August 27, 2007 11 I hereby certify that Anita M. Wasko, Acting Director of the Bureau of Motor Vehicles of the Pennsylvania Department of Transportation, is the legal custodian of the Motor Vehicle records of the Pennsylvania Department of Transportation. As the Acting Director of the aforesaid Bureau, she has ems` +? A >' ` coed in the attached J certification. 141 / ? Z ka Yi wow IN _HIME 1:y, HAND SEAL OF THIS HE Q CERTIFIED HOTO 1) Email doted 31 Regarding #Tho Insurance Inquiry D4 number 4 5) received In- Wexp ANNEXED IS A FULL, Fink, s,ion; Of Detail s 6103 and 6109,?©f AND CORRECT Arbegast, fnt List 2, Specialty 20/06, tag Vehicles, ylvania. 1 Code, Act of July 9, 1976, P L?. " amerxi? 03 and 6109 IN C*Y Iiiii uNrtAs VI D SEAL THE DAY AND YEAR RAEBA 1, 17 Anita M. Wasko, Acting DIRECTOR SEAL BUREAU OF MOTOR VEHICLES A t6Ld0'.M_ qLb C r . ?. 6n79--999 9--QLiQafi9t ! Fink, Kathy L n/)n-:'...97 1 9 - -0 0 0 ?'., ?7 From: rorbepast. Patricia SOW. Monday. March 20.2005 3:25 PM TO. Fink. Kathy L. Subjeft Thom Lewis Hi Kathy: ?r Please wants of uspeneion for Thom Lewis 263 T Lft.Ahnai -i'.", PA 17050. Old po ft with i"73008". IM Jeep SIA 515380 csnceMtd 11140. New poNcy: 109474308ti" seine vehicle, eftcdve 12!1512005. Thank-you for you assistance in this matter. Mr. Lewis has requaM a hearing with the Ps insumnoe Department. Patricia K. Arlxgast Incuranom Invc-aigatur Pennsylvania Insurance: t)cpt. Cim.+umer Scn•icxs Bureau Harrisburg. PA 17120 Phone (717)787-2162 parbegat t(a.,state.ps.us ??, of j M i?4 E i ' 603 :;U 10 f IN00IRY/MAINT LIST2 ----END Olt LI$T--- 7 SCROLL -_> PAGE 0WEIRt INIT EFF DT : 03/13/06 TAG/ EXP ELD8311 03106 LEKIS,THOMAS E FIN ELIG DT . TAG RECD DATE : 263 TEXACO RD TAG RECD METH : MECHANICSBURG PA 1705 STATUS : A ACTIVE FR R EQUIRED : Y NEEDED REST/RESC DT : FEE REQ IND : Y NEEDED MCSAP CMPL DT: FEE PAID DATE : TITLE: 45517693 FPA REL DATE SAFE INSP REQ : VIN : 1J4GZ78SOPr.515389 POL PCKUP CODE: S ESTABLISH WIA 05354 999405 1154001 16-RESTREGS 4 SUSPENSION SUSPENSION ELIGIBILITY .SOURCE STATUS EFF DATE DATE CANCEL ACTIVE 03/13/06 l +CQ[i00-6 X66--6L09Q 22-DETAIL 19-WIDMIST 15-RETURN • 45517693 CA CANCEL $ : A ACTIVE CODE F "MINATION DATE: 04 11/04/05 ' !`S?SP NOTICE SENT 01/30/06 ? P EFFECT DATE 03/13/06 %'CRIG SUSP EFF DA'Z'E: w DIT DATE '*gm : 003M ELIGIBILITY DATE : ` .00CIND NOTICE DT : T CLOSED • ' L "ZXSE DATE '.C?71iVICTION DATE {_. CASE/CITATION NO VOURT NUMBER ?': DOCKET NUMBER COST .00 PEN . 17-LIST OWNER LEWIS, THOMAS' E AUTH CODE : 17860 VIOL CODE : 1786E INS REQUESTED: 12/21/05 AFFID REQUEST: AFFIDAVIT : PRV INS CO CD: 32786 PREV INS CO : PROGRESSIVE SPECIALTY COMPANY PREY POI. NO TERM REASON : 4 CANCEL FR REQUIRED : Y NEEDED IF IND: MCSAP CM-PL DT: PPA REL DT: RESPONSE DATE: TYPE OF PROOF: INS CO CODE : INS CO NAME : INS POL NO INS EFF DT INS EXP DT: MAINT TYPE REINST IND: .00 EST WID : 053549999055159001 15-RETURN ?3 r C7604600 28004605 TISW : 45517693 O11Ml I : LEMZS r TMKMU 8 STATOQ : A ACTIVE SDSP !'!'F DBE: 03/13/06 Ps SAWIAAD T NNW= Fit RiOQIRM s T NEMDED SAM IMF RRQ: !IGW CWL DT s -Tv OF PybDOPt Ruslo N VATS s Zs, C4 cow s IND 00 ]a1Sj` PQLICT NQ : : If a" DAMS Ift SIP DATA : IT INDICATOR: 1f11I11'i' TIM 17-LIST WSPENSION INQOIRT DETTAIL2 PDT03805 3/20/06 VIN: IJ4GZ768OPC515389 TAG ESP CREDIT DTs: 03/06 TAO RAM 118ism : TAG R/CUrm VATS : The RMIPT Barr : PD DATA: POL PICNO 0008 PICKUP NOTIts Sd ,r.- PPA RXL DT: POL INCIDLO NO POLIC2 AGMUM CURE: PICIM CANCIIJA D RNINSURSS IND ELIOIDUJTT DATD s SLIGIVIL"M llt3 ZCtt RMIMM- VATS ASS'1"d103 1 miss NOT NID 053549999055159001 15-RETURN V 6 7L.;13 ...Y•..Iv L?_ v M C7604600 2SCO4604 SUSPENSION INQUIRY DETAILI ----END OF LIST---- TITLE : 45517693 SOURCE : CA CANCEL STATUS : A ACTIVE STOP CODE : F DETERMINATION DATE: 11/04/05 SUSP NOTICE SENT : 01/30/06 SUSP EFFECT DATE : 06/20/06 ORIG SUSP EFF DATE: 03/13/06 CREDIT DATE : 03/31/07 TERM : 003M ELIGIBILITY DATE : 06/30/07 RESCIND NOTICE DT : SEGMENT CLOSED OFPSNSR DATE CONVICTION DATE CASE/CITATION NO COURT NUMBER DOCKET NUMBER COST : .00 PEN 17-LIST OWNER : LEWIS,THOMAS E AUTH CODE : 1786D VIOL CODE : 1786E INS REQUESTED: 12/21/05 AFFID REQUEST: AFFIDAVIT : PRV INS CO CD: 32786 PREV INS CO : PROGRESSIVE SPECIALTY COMPANY PREV POL NO . TERM REASON : 4 CANCEL FR REQUIRED : Y NEEDED IF IND: MCSAP CMPL DT: PPA REL DT: RESPONSE DATE: TYPE OF PROOF: INS CO CODE INS CO NAME INS POL NO INS EFF DT INS EXP DT: MAINT TYPE A ADMIN REINST IND: .00 EST WID : 060799919000629001 15-RETURN 0 10 'o MV-326 (1/03) CERTIFICATION AND ATTESTATION DATE August 27, 2007 11 I hereby certify that Anita M. Wasko, Acting Director of the Bureau of Motor Vehicles of the Pennsylvania Department of Transportation, is the legal custodian of the Motor Vehicle records of the Pennsylvania Department of Transportation. As the Acting Director of the aforesaid Bureau, she has I in the attached certfication IN HAND AND SEAL OF THIS I HE CERTI FOR ANNEXED IS A FULL, RUE AND CORRECT CERTIFIED OTOST l 1) Official o n 2/06/ 2) Electronic TraI nsm ss n SSI INS rtifying the terminati0 11 / afar Pri it by Title Screen 's STATION WAGON, .4551 no LEWIS$ expiration 2007 12/21/0 notification of new in 0 Inquiry s E. Lewis, Title num 93, 3/31/07, expired, DR required i (active), s date 6/20/06, eligibility 079 record, which a in the file of the defendant E. L 45517693, in the Burea of Motor Vehicles, Harrisburg ennsylvania. Pennsylva j CER '$ f ,l al Code, Act of July 9, 1976, P. IN TESTIMONY WHEREOF, 1 HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR AFORESAID. Anita M. Wasko, Acting DIRECTOR SEAL BUREAU OF MOTOR VEHICLES A ix -t =D # F-F VWW*VN%06+ A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES PO BOX 68674 HARRISBURG, PA 17106-8674 wwwAmvstate pa.us WID6 060309999008487 001 TITLE# 45517693 PROCESSING DATE 060130 TRANSACTION CODE 00060 THOMAS E LEWIS 263 TEXACO RD PA 17050 OFFICIAL NOTICE MAIL. DATE: 02/06106 Dour Customw. The Depatunw recently requested that you provide us with proof of financial respausnbility (insurance) for'dw following vehicle: AL4".- JEEP YEAR: 1993 BODY TYPE: STATION WAGON LICENSE PLATE#-. ELDS311 TITLE: 45517693 VINO. 1J4GZ7SSOPC515399 This information was requested because PROGRESSIVE SPECIALTY COMPANY notified us that the insurance policy covering the vehicle listed above was terminated on 11/04/05. Either no response was received or the information you provided was not acceptable. As a result, the registration for the vehicle listed above will be suspended for three months effective 03/13/06 at 12:01 A.M. as authorized by Section 1756(d) of the Vehicle Code. TEM IS A FINAL ORDER OF SUSPENSION. You are regnitydb return yew carrreshtregistradou plate, sddw and card to the Departsaent Immediately. Credit toward serving tbb sum will not bgbe until the Departasent receives your registration products. Additionally, you are required to pay a restoration fee in the amount of S50 to the Deft in accordance with Section 1960 of the Vehicle Code. Please make check or money order payable to the PA Department of Transportation. DO NOT SEND CASH. Within 30 days of your eligibility date for restoration, you will also be required to show proof of insurance for this vehicle. We have enclosed a self-addressed envelope for your use when coding and a mailing label to assist with the return of your registration plate, sucker and cmd. When the Department receives your registtaaon products, we will mad you a letter within 3 weeks confirming that they were received. If, aflar 3 weeks of asailbg your regketrudes plate, sticker and card to the Depwtseat you do not receive a letter std your registration products were received, please contact us immediately. You have the right to appeal this suspension to the Count of Common Pleas of the county of your residence within tbirty(30) days of the mail date of this letter. If you file an appeal in the County Court, the Court will give you a time-staniped certified copy of the appeal. In order for the appeal to be valid, you must sand this time stamped certified copy of the appeal by certified mail to: Pennsylvania Dept of Transportation Office of Chief Counsel 1101 S Front Stree0rd Floor Harrisburg, PA 17104.2516 16 a By Order of Director Bureau of Motor Vehicles Deparbrnent of Transportation Information (8:00 Pennsylvania Out of State TDD Pennsylvania TDD Out of State AM to 6:00 PM) 800.932-4600 717-412-5300 800-22&0676 717412-5380 ,^%C7604600 2SCO4604 SUSPENSION INQUIRY DETAILI ----END OF LIST---- TITLE : 45517693 OWNER LEWIS,THOMAS E SOURCE : CA CANCEL STATUS : A ACTIVE AUTH CODE 1786D VIOL CODE : 17868 STOP CODE F INS REQUESTED: 12/21/05 DETERMINATION DATE: 11/04/05 AFFID REQUEST: AFFIDAVIT : SUSP NOTICE SENT 01/30/06 PRV INS CO CD: 32786 SUSP EFFECT DATE 06/20/06 PREY INS CO : PROGRESSIVE SPECIALTY COMPANY ORIG SUSP EFF DATE: 03/13/06 PREY POL NO . CREDIT DATE : 03/31/07 TERM REASON : 4 CANCEL TERM : 003M FR REQUIRED : Y NEEDED IF IND: ELIGIBILITY DATE : 06/30/07 MCSAP CMPL DT: PPA REL DT: RESCIND NOTICE DT : RESPONSE DATE: SBGMZNT CLOSED TYPE OF PROOF; OFFENSE DATE INS CO CODE CONVICTION DATE INS CO NAME CASE/CITATION NO INS POL NO COURT NUMBER INS EFF DT INS EXP DT: DOCKET NUMBER : MAINT TYPE A ADMIN REINST IND: COST .00 PEN .00 EST WID : 060799919000629001 17-LIST 15-RETURN y 101 '%C7507500 2MV07501 VEHICLE INQUIRY DETAIL BY TITLE PDT05157 8/24/07 OWNER Lessee: 000 Ckdt: LE Carrier: ARP: Flt: THOMAS E LEWIS Title: 45517693 7 Tag: ELD8311 GVW: 263 TEXACO RD Tl Seq: 04 Exp Dt: 03/07 GCWT: MECHANICSBURG PA 17050 T1 Dt: 09/29/92 Rg Fee: 36.00 Unl Wt: T1 Dup: Axle Tx: .00 Axles: Non Pa Tl: Prv Rn: 04/10/05 GVWR: Reg Dups: GCWR: MAKE: JEEP Tag Tp: 01 AWR: Model: P Tag: EXZ0247 LESSEE Year: 1993 Tag Color Code: N Body: SW Reg Pro: VIN: 1J4GZ78SOPC515389 Class: 00 Dealer Junk: Unclaimed: Equip No: A/C: Stolen Veh Dt: Van: Stolen Tag Dt: Renew WID: 06091 0310 000141 001 Est. WID: 92266 0022 005259 001 Stops: F 21-ININFO 22-DETAIL2 15-RETURN 16-NOTBPAD 18-LIENINFO 19-KIDHIST 43 r • . COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES PO BOX 68674 HARRISBURG, PA 17106-8674 www.dmv.state.pa.us WID4 053559999005634 001 TITLED 45517693 PROCESSING DATE 051221 TRANSACTION CODS 00030 THOMAS S LEWIS 263 TEXACO RD MECHANICSBURG, PA 17050 MAIL DATE: Deeember 21, 2005 Dear Customer. We recently received information from your insurance company about a caa mllatm of your automobile insurance. We rraliae you may have only changed companies however, mane= compauft are only re"ieed to notify us of a cancellation of issuance but not when they add you as a customer. Thembra, we heed to verify your new coverage with this letter. Please tabs the time to read this letter carefully and provide us with the needed information. Failure to respond to tlhla letter within three week may resadt in a suspendon of yeor vehicle regldnAk a. The insurance company who notified us of the cancellation and the vehicle affected are listed below. Insurance Informaden Vebkb Iatermadom V*URANCE CO: MAKE: JEEP YEAR 1993 PROGRESSIVE SPECIALTY COMPANY BODY TYPE: STATION WAGON POLICY NUMBER: LICENSE PLATE NUMBER: ELD8311 DATE INSURANCE TITLE: 45517693 WAS CANCELLED: 11/04/05 VIN: 1J4GZ78SOPC515389 W YOU NO LONGER OWN OR LEASE THIS VEHICLE, SKIP PART A AND GO DIRECTLY TO PART & IF YOU STILL OWN OR LEASE THE VEHICLE LISTED ABOVE, please review PART A and submit the requested documentation in the enclosed envelope. PART A_ If you... Thee Pines- And PumDOT wig... Obtained insurance with a new Send PennDOT proof of new Send you a letter within lire insntiahee company for the insurance. Plem we week accepting you updated above vehicle BEFORE OR "Acceptable Proof of Insurance insrance informiation. ON THE SAME DAY you on the next page. previous policy was cancelled. Continued instnmtx with the Send PennDOT a sired letter, Send you a letter within throe sale company BEFORE OR ON on insurance company letteftid, week accepting your updated THE SAME DAY your policy from either the insurance insurance information. was cancelled. company's hadquuautera or your agent, stating the date your policy resumed active coverage. The letter must include the policy number, policy effective and expiration dates, NAIL number and Vehicle Identification Number. 4L? e PART A. If yon... Obtained insurance with a new insurance company or continued insurance with the same insurance company NO MORE THAN 30 DAYS after your previous policy was cancelled Do not Lave lanrance for the vehicle listed for any reason, and more than a 30 day lapse of insusrs Then please... Send PennDOT proof of new insurance (see "Acceptable Proof of Insurance" below) AND complete and send the "STATEMENT of Non-Operation of VEHICLE" on the next page. Send your registration plate, sticker and card into PennDOT IMMEDIATELY.* Return year registration plate, sticker and card to: PeanDOT Fluan vial Rapensibility Section, PO Box 68674, RwrbbwL PA 1710641674 And PennDOT wiLL.. Send you a letter within three weeks accepting your updated insurance information. Send you a letter within three weeks confirming that your registration plate, sticker and card were received. * RRGUTRATION PLAM STICKERS AND CARDS MUST BR RECEIVED BY THZ DEPARTMENT VVITIUN 30 I1AY$ PWM THR INSURANCE CANCELLATION OR THR VEMICL CS RICUTRATI{ON WELL BE 3USPXND19D FOR 3 MONTHS. Acceptable Proof of Insurance • hutinsnca identification card • A valid binder of h=nnce.(Now: Policy information will be requested upon expiration of binder) • Declaration page of your insurance policy. • Application for houuane to the Pe=ylvania Auto Plan. • A letter ft m the insurance company's headquarters or your insuaanc a agent. PHOTOCOPIES ARE ACCEPTABLE. ORIGINALS WILL NOT BE RETI If you believe your tnstaanc a coverage was terminated and you did not receive proper as required by insurance laws, you should contact the Pennsylvania Instu neo Department. Buren of Consumer Services for assistance. The toll free automated censtuner hotline is M M41114= or visit their website at w, Please be parepaz to provide the name of your insurance company, policy number and any notices or correspond ce you may have received concerning your policy. Sincerely, Service Representative Team Bureau of Motor Vehicles Information (7:00 AM to 9:00 PM) Pennsylvania 800-9324600 Out of State 717-391-6190 TDD Pennsylvania 800-228-0676 TDD Out of State 717-391-6191 PART & If ym- Then Please. And FeanDOT wgL- SoK Transferred or Traded Send Pe=DOT a copy of form Update your record accordingly. your vehicle. MV I or MV4-ST or a bill of sale the new owner. Salvaged your vehicle Send PenaDOT a copy of your Update your record accordingly. salvage certificate or a letter of salvage tram the insurance Company indicaUS the new owner. Had your vehicle Repossessed. Send Pm = a copy of your Update your record accordingly. letter of repossession from the or financial institution. a notice r' L7604600 2SCO4603 SUSPENSION INQUIRY/MAINT LIST2 ----END OF LIST---- OWNER INIT EFF DT : 06/20/06 LEWIS,THOMAS E FIN ELIG DT : 06/30/07 263 TEXACO RD MECHANICSBURG PA 1705 STATUS : A ACTIVE REST/RESC DT : MCSAP CMPL DT: TITLE: 45517693 PPA REL DATE VIN : 1J4GZ78SOPC515389 SCROLL =_> PAGE TAG/EXP : ELD8311 03/07 TAG RECD DATE : 03/31/07 TAG RECD METH : E EXPIRED FR REQUIRED : Y NEEDED FEE REQ IND : Y NEEDED FEE PAID DATE : SAFE INSP REQ : POL PCKUP CODE: SUSPENSION SUSPENSION ELIGIBILITY 3 ESTABLISH WID SOURCE STATUS EFF DATE DATE 060799919004629001 CANCEL ACTIVE 06/20/06 06/30/07 16-RESTRBQS 22-DETAIL 15-RETURN 19-WIDHIST y `COMMOWIAWTH of F&84 WANM Oele: Auptpt 27, 2007 ?frOfTRIMgPO1rrATM A OtlARTlo4FIID/ORVIb11Cl [t e1M1eAU HAW N U ft. Pe *lMVANK 17123 CERTIFICATION STATEMENT In vvM your request, I hwebycw* that I have caused a search to be made of the fibs of the Dep.Ament of TrarupwUrdon, and hwwmm is a he vo= in the name oft THOMAS E. LEWIS, 263 TEXACO ROAD, MECHANIXSBURG, PA 17050 OPERATOR NO. DATE OF BIRTH: CLASS OF LICEI {SE PURPOSE OF , L mmom* R) CNTt ACTIONT eVARtYeRr r33 0d FOR 3 ECTION 17WD)) PRO TUNC. the sublecl MMd abovrr InfomaYon nq?NSlee' COMMONWEALTH OF vehlda ia001de be d mpoduad in to IN I HA1tE rn U? y co 8 7 ? w? O W THOM E. LEWIS, IN THE COURT OF COMMON PLEAS OF PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA V. DEPARTMENT OF TRANSPORTATION: PENNSYLVANIA, RESPONDENT 07-3301 CIVIL TERM ORDER OF COURT AND NOW, this j day of September, 2007, a hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 11:30 a.m., Monday, November 26, 2007. ?Thom E. Lewis, Pro se 263 Texaco Road Mechanicsburg, PA 17050 ?Department of Transportation Office of Chief Counsel P.O. Box 8312 Harrisburg, PA 17105 aopt-cs qla 6/10 7 sal e•s - MI T C ? -rr o r? 0 THOM E. LEWIS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION 07-3301 CIVIL TERM IN RE: APPEAL FROM VEHICLE REGISTRATION SUSPENSION BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this /a day of November, 2007, the appeal of Thom E. Lewis from the appeal of the registration for his 1993 Jeep for three months, IS DISMISSED. By the ,X om E. Lewis, Pro se 263 Texaco Road Mechanicsburg, PA 17055 Edgar B. Bayley, J. Xeorge Kabusk, Esquire For Department of Transportation sal y u I 1 8 GN loot THOM E. LEWIS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENNSYLVANIA DEPARTMENT OF : TRANSPORTATION : 07-3301 CIVIL TERM IN RE: APPEAL FROM VEHICLE REGISTRATION SUSPENSION BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., November 28, 2007:-- Thom E. Lewis filed an appeal nunc pro tunc (as allowed by an order dated August 27, 2007) from the suspension for three months by PennDOT of the registration for his 1993 Jeep pursuant to 75 Pa.C.S. Section 1786(d). A hearing was conducted on November 26, 2007. The notice of suspension was dated and mailed to Lewis on February 6, 2006, and was based on an electronic transmission to PennDOT from Progressive Specialty Insurance Company on December 12, 2005, certifying the termination of insurance on the Jeep on November 4, 2005.' On December 12, 2005, PennDOT had sent Lewis the following notice: We recently received information from your insurance company about a cancellation of your automobile insurance. We realize you may have only changed companies; however, insurance companies are only required to notify us of a cancellation of insurance but not when they add you as a customer. Therefore, we need to verify your new coverage with this letter. Please take the time to read this letter carefully and provide us with the needed information. Failure to respond to this letter within three Progressive's notice to PennDOT was not within ten days from the cancellation date of the insurance as required by 67 Pa. Code. 221.1(a). 07-3301 CIVIL TERM weeks may result in a suspension of your vehicle registration. On December 12, 2005, Progressive sent petitioner a notice canceling his policy effective November 4, 2005, declaring that it was void as of that date because Lewis's check for the premium was not honored. On March 10, 2006, Lewis filed a complaint with the Insurance Department of Pennsylvania challenging the cancellation of his insurance by Progressive. He asserted that he never received the December 12, 2005 notice of cancellation from Progressive, although he acknowledged that he learned of the cancellation from his insurance agent on December 13, 2005. Lewis's complaint was dismissed as untimely. On appeal, the dismissal was upheld by the Commonwealth Court. Lewis v. Insurance Department, A.2d (2007 Pa. Commw. Lexis 612, memorandum opinion filed August 28, 2007, and designed an opinion on November 2, 2007). The court stated: Tiffany Burton, an employee of Progressive who deals with cancellation mailings to policyholders, testified that the termination notice was mailed to Lewis in the regular course of business on December 12, 2005, that the notice was sent to the address that Lewis had provided when he applied for the insurance policy and that the notice contained the required information regarding a right to request review by the Insurance Commissioner within thirty days. To corroborate this testimony, Progressive presented a copy of internal business documents establishing the mailing of the notice to Lewis and a certificate of mailing from the United States Post Office. Burton also testified that the notice was not returned to Progressive as undeliverable. Lewis's mere denial that he received Progressive's notice is not sufficient to rebut the presumption that the December 12, 2005, notice was received. Id. Moreover, Lewis admitted that he had actual notice of the policy termination on December 13, 2005, when his insurance agent -2- 07-3301 CIVIL TERM informed him of the fact. Therefore, the Insurance Commissioner correctly found that Lewis's March 10, 2006, request for review was untimely and that she lacked jurisdiction to consider the merits of his case. (Footnote and citation omitted.) In the instant appeal, the record shows that Lewis obtained new insurance on his Jeep from a company other than Progressive on December 16, 2005, which was 42 days from the effective date of the cancellation by Progressive of November 4, 2005, three days after Lewis learned of the cancellation from his insurance agent on December 13, 2005, and four days after Progressive sent him notice of the cancellation on December 12, 2005. PennDOT maintains that it was required to suspend Lewis's vehicle registration for three months pursuant to 75 Pa.C.S. § 1786(d) of the Vehicle Code because he had no insurance for more than thirty days between November 4, 2005 to December 16, 2005. In Beitler v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, 811 A.2d 30 (Pa. Commw. 2002), the Commonwealth Court stated that a cancellation of automobile insurance is a termination of a policy prior to its expiration, and that the Insurance Company Law of 1921, 40 P.S. §§ 991.2001-2013, provides in Article XX: [t]hat a policy cancellation cannot be effected without prior notice. It states: A cancellation or refusal to renew 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 or refusal to renew. The Court noted that challenges to an insurer's action must be presented to the Insurance Department. Citing Department of Transportation, Bureau of Driver -3- 07-3301 CIVIL TERM Licensing v. Riley, 150 Pa. Commw. 259 (1992), the Court stated that when PennDOT seeks to suspend a vehicle registration for three months pursuant to Section 1786(d): [t]o sustain its burden of proof, DOT must establish: (1) that the vehicle in question is of a type required to be registered in the Commonwealth; and (2) that the required automobile liability insurance had been cancelled or otherwise terminated." To sustain its burden of proof, DOT must establish the policy period and whether it terminated on the twelve- month anniversary date or at mid-policy. Next, it must show that in a termination for non-payment of premium, a notice of cancellation was sent, if required. In the absence of such notice, a cancellation is not effected and the predicate act for suspending a registration has not occurred. (Footnote omitted.) [t]he requirements of the Vehicle Code means that DOT must prove that an insurance policy cancellation has been effected. DOT does not meet its burden of proving that the vehicle owner was without insurance coverage for 31 days until it proves that the insurer sent a notice of cancellation or non-renewal. In the case sub judice, Progressive did not send a cancellation notice to Lewis until December 12, 2005, which was already 38 days after the effective date of the cancellation effective November 4, 2005. Thus, Lewis could not have purchased new insurance within 30 days of the effective date of the cancellation and avoided a three month registration suspension even if he would have been able to certify that he did not operate or permit the operation of the Jeep during the period of lapse in financial responsibility. See 75 Pa.C.S. § 1786(d)(2). Notwithstanding, because Lewis was without insurance for more than thirty days and Progressive sent him notice of the cancellation, PennDOT was required to suspend his vehicle registration for three months. -4- 07-3301 CIVIL TERM ORDER OF COURT AND NOW, this • day of November, 2007, the appeal of Thom E. Lewis from the appeal of the registration for his 1993 Jeep for three months, IS DISMISSED. By the Co Edgar B. Bayley, J. Thom E. Lewis, Pro se 263 Texaco Road Mechanicsburg, PA 17055 George Kabusk, Esquire For Department of Transportation :sal -5- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION- LAW THOME. LEWIS, Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, ; Respondent NOTICE OF APPEAL No. 07-3301 Civil AND NOW, this 28th day of December 2007, comes the Petitioner, Thom E. Lewis, and files NOTICE OF APPEAL from this Honorable Courts ORDER, dated Nov. 28, 2007. (attached as Exhibit A). On June 19, 2007 This Honorable Court granted permission for the Petitioner to proceed in forma pauperis. Petitioner respectfully requests that he may be allowed to continue so, on this appeal. On Aug 27, 2007 This Honorable Court granted a supersedeas of the vehicle registration suspension. Petitioner respectfully request that supersedeas remain in effect while this appeal is ongoing. Respectfully submitted I==.- TholhA Lewis 263 Texaco Road Mechanicsburg, PA 17050 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOME. LEWIS, No. 07-3301 Civil Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent CERTIFICATE OF SERVICE OF NOTICE OF APPEAL I, Thom E. Lewis, Petitioner, in the above-captioned matter, do hereby certify that a true and correct copy of the NOTICE OF APPEAL, from the ORDER dated Nov. 28, 2007 was served by first class mail on the Respondent on December 28, 2007, as follows: Pennsylvania Department of Transportation Attn.: Mr. George Kabusk Office of Chief Counsel 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 aAj.0 Tho E. Lewi Petitioner 263 Texaco Rd. Mechanicsburg, PA 17050 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION- LAW THOME. LEWIS, No. 07-3301 Civil Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYL VA NIA, Respondent MOTION FOR RECONSIDERATION OF ORDER, DATED NOV. 28, 2007 AND NOW, this 24th day of December 2007, comes the Petitioner, Thom E. Lewis, and files this Motion for Reconsideration from this Honorable Courts ORDER, dated Nov. 28, 2007, (Dismissing Petitioner's APPEAL of his Motor Vehicle Registration Suspension.) (Order attached as Exhibit A). Petitioner requests reconsideration of the Order on issues previously not considered by this Honorable Court. INTRODUCTORY STATEMENT AND STATEMENT OF FACTS I . The Petitioner is Thom E. Lewis, an adult individual, residing at 263 Texaco Road, Mechanicsburg, County of Cumberland, Pennsylvania. 2. The Respondent, PA Department of Transportation, (PA DOT) is the state agency mandated with the responsibility of issuing registrations for vehicles titled and registered in the Commonwealth of Pennsylvania. 3. PA DOT suspended the registration of the aforementioned 1993 Jeep Grand Cherokee beginning on June 20, 2006 for an unprecedented period of 15 months, until a supersedeas was issued by this Honorable Court on August 27, 2007. 4. Respondent claims that Petitioner failed to maintain financial responsibility, but has since admitted to the Court that, in fact, PA DOT committed violations of PA MVFRL (75 Pa. C.S.A. § 1377(a)l in handling the matter, and Progressive Insurance failed to comply with the insurance company obligations under PA MFVRL. (75 Pa. C.S. § 1377(b) 5. During the multiple proceedings involved, PA DOT, Pa Dept of Insurance and This Honorable Court have noted that the Petitioners Insurance company never mailed the required "Notice of Cancellation" under Act 68, during the time PA DOT alleges there was an insurance lapse. These sworn statements do not conform to an Order issued by the PA Dept of Insurance. ' (a) GENERAL RULE.-- Any person who has been sanctioned by the department under this chapter or whose registration or authority to issue registration cards or plates has been denied, suspended or otherwise sanctioned by the department shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). The filing of the aggMi shall act as a sunenedeas.... 2 6. Subsequently, PA DOT only issued a notice to the Petitioner in March 2006 that a suspension would not occur, and PA DOT further noted that Progressive Insurance (not Petitioner) had violated PA MVFRL. 7. On August 28, 2007 and then again on November 27, 2007, PA DOT stipulated before this Honorable Court that PA DOT never notified the Petitioner of any registration suspension that had begun in June 2006 8. On November 27, 2007 a hearing was held before this Honorable Court on Petitioner's appeal of his Motor Vehicle Registration Suspension, which resulted in this Honorable Courts ORDER, dated Nov. 28, 2007, dismissing Petitioner's appeal. (Attachment A) RECONSIDERATION 9. A court has inherent power to reconsider its own rulings. Moore v. Moore, 535 Pa. 18, 25, 634 A. 2d 163, 167 (1993); Hutchison v. Luddy, 417 Pa.Super. 93,108, 611A.2d1280, 1288 (1992). See 42 Pa.C.S.A. § 55052. 10. Under section 5505, the trial court has broad discretion to modify or rescind an order, and this power may be exercised sua sponte or invoked pursuant to a party's motion for reconsideration. V'erholek v. Verholek, 741 A. 2d 792, 798 (Pa. Super. 1999). However, "the trial court may consider a 2 § 5505. Modification of orders Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed. 3 motion for reconsideration only if the motion for reconsideration is filed within thirty days of the entry of the disputed order. ISSN„ 11. Under The Insurance Company Law of 1921, Act of May 17, 921, P.L. 682, as amended, added by Section 1 of the Act of June 17, 1998, P.L. 464, 40 P.S. §991.2006. (Act 68) retroactive cancellations and rescissions are not allowed under Act 683. 12. Petitioner must be granted a fifteen day "cure" period after any alleged notice is mailed4. 13. In its ORDER, this Honorable Court has noted that the only notice that was allegedly mailed was on Dec 12, 2005, and the PA Dept of Insurance has already stipulated on the record that it does NOT conform to the requirements of Act 68 or PA case law, and during the entire time PA DOT alleges an insurance lapse, no notice of any kind had been sent to Petitioner. 3 In Shepely, 636 A.2d at 1274, Commonwealth Court held that an unknowing failure to pay an insurance premium will not support a suspension of a motor vehicle registration. An insurer can not effect a cancellation unless it has given the inured prior written notice of the impending cancellation. In the absence of a legally effective insurance cancellation, DOT cannot suspend a motor vehicle registration for failure to satisfy the Vehicle Code's Finacial responsibility requirements. 75. Pa. C.S. § 1786(d). 4 "Additionally, the notice shall allow the insured a 15-day cure period, 40 P.S. §991.2006(2), in which the insured may either remit the amount due or obtain other insurance." 4 14. The Court also noted that Petitioner had a second policy in effect on Dec 16, 2005, four (4) days later. 15. Under PA Law, a policy remains in effect until the notice is maileds. In the instant matter, that is Dec 12, 2005. SUGGESTED CONCLUSIONS Petitioner acquired insurance within the 15 day cure period allowed by PA Law, and Act 68 doesn't allow for any "retro-active" cancellations or Rescissions. This Honorable Court should not allow PA DOT to use the Act 68 "notice" then refuse to allow the Petitioner the protections of the same Act. PA DOT has admitted it instituted a Vehicle registration suspension on the Petitioner PRIOR to allowing him to pursue his appeal through either the PA Dept of Insurance or the Common Pleas Court, in clear violations of his rights. PA DOT's Vehicle Registration suspension it initiated on June 20, 2006 was in clear violation and should not be allowed. FOR THE ABOVE stated reasons, Petitioner respectfully requests this Honorable Court reconsider its ORDER of November 27, 2007. Respectfully submitted, Thom Le ' "The court held that it has long been the law of Pennsylvania that where a notice of cancellation is required by statute or by the policy itself, the insurer's failure to follow the requirement results in the continuation of coverage". Royad Indemnity Co. v Adams, A.2d 135 (Pa. Super. 1983) 5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOME. LEWIS, No. 07-3301 Civil Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent CERTIFICATE OF SERVICE OF MOTION FOR RECONSIDERATION I, Thom E. Lewis, Petitioner, in the above-captioned matter, do hereby certify that a true and correct copy of the Motion for Reconsideration, from the ORDER dated Nov. 28, 2007 was served by first class mail on the Respondent on December 28, 2007, as follows: Pennsylvania Department of Transportation Attn.: Mr. George Kabusk Office of Chief Counsel 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 Tho E. Le is Petitioner 263 Texaco Rd. Mechanicsburg, PA 17050 9 4 a F .. 7cT ( W ; (1 ?zl I W Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 5012 - 10/99 10/1199 Commonwealth Court of Pennsylvania www.aopc.org RE: Lewis v. DOT No.: 617 CD 2008 April 21, 2008 Agency Docket Number: 07-3301 Filed Date: December 28, 2007 Notice of Docketing Appeal A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Party Name Party Type Terrance M. Edwards, Esq George H. Kabusk, Esq Thom E. Lewis Pennsylvania Department of Transportation Pennsylvania Department of Transportation Thom E. Lewis Appellee Appellee Appellant Address all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Irvis Office Building Harrisburg, PA 17120 (717) 255-1650 Filings may be made in person at the following address (except on Saturdays, Sundays and holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Sixth Floor Irvis Office Building Harrisburg, PA 17120 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Comonwealth Court shall exit only from the Harrisburg Office. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOM E. LEWIS, No. 07-3301 Civil Petitioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent AMENDED CERTIFICATE OF SERVICE OF NOTICE OF APPEAL I, Tbom E. Lewis, Petitioner, in the above-captioned matter, do hereby certify that a true and correct copy of the NOTICE OF APPEAL, from the ORDER dated Nov. 28, 2007 was served by first class mail on the Respondent, PA DOT on December 28, 2007, as follows: Pennsylvania Department of Transportation Attn.: Mr. George Kabusk Office of Chief Counsel 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 And by handing a true and correct copy of the NOTICE OF APPEAL, from the ORDER dated Nov. 28, 2007 to the Office of Prothonotary for Cumberland County Common Pleas Court, on Dec. 28, 2007, at: The Honorable Judge Edgar B. Bailey One Courthouse Square Carlisle, PA 17013 The Prothonotary's Office has acknowledged that the NOTICE OF APPEAL was given to the Honorable Judge Edgar B. Bailey, at that time. FURTHERMORE, I have re-served PA DOT, and Judge Edgar B. Bailey at their respective addre&ses listed above by first class mail on April 17, 2008, with a true and correct copy of the NOTICE OF APPEAL and (original) CERTIFICATE OF SERVICE that was filed in CUMBERLAND COUNTY COURT Dec 2 , 2007. Thom E. Petitioner 263 Texaco Rd. Mechanicsburg, PA 17050 r-.s ?? ?? ?? ?;° --a t`„ i r? ?"° t°' ?";' = ?? ?? . ? ? ? Lg IN THE COURT OFCOMMON PLEAS OFCUMBERZ.AIVD ([j:597 PENNSYLV.l1VIA CIVIL ACTION-LAW 7710ME LEWIS, Pedtioner V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent 0 No. 07-3301 Civil NOTICICE, OF APPEAL AND NOW, this 28th day of December 2007, comes the Petitioner, Thom E. Lewis, and files NOTICE OF APPEAL from this Honorable Courts ORDER, dated Nov. 289 2007. (attached 08&hibit A). On June 19, 2007 This Honorable Court granted permission for the Petitioner to proceed in forma pa&peris. Petitioner respec idty requests that he may be allowed to continue so, on this appeal. On Aug 27, 2007 This Honorable Court granted a szgxwedeas of the vehicle n egistratiou suspension. Petitioner respectfully request that supersedeas remain in effect while this appeal is ongoing. Respectfully submitted r Cdr o COQ, d o AIM -A?? "I" WPY FROM REOORD Tho Lewis 9, h" ulMl lib 263 To oo Road "d ft Ed d Mechanicsburg, PA 1 IN TIM COURT OF COMMON PLEAS OF CUMBERLAND ([?)M PENNSYLVANIA CIYILACTLON-LAW THOME LEWIS, Petitioner 0 No. 07-3301 Civil CbZ ?f-7 V. DEPARTMENT OF TRANSPORTATION, PENNSYLVANIA, Respondent NOTICE OF APPEAL AND NOW, this 281h day of December 2007, comes the Petitioner, Thom E. Lewis, and files NOTICE OF APPEAL from this Honorable Courts ORDIK dated Nov. 28, 2007. (attached as Exhibit A). On June 14, 2007 This Honorable Court granted permission for the Petitioner to proceed in forma paWeris. Petitioner reRwtfvlly requesb that he may be allowed to continue so, on this appeal. On Aug 27, 2007 This Honorable Court granted a supersede= of the vehicle registration suspension. Petitioner respectfully request that supersedeas remain in effect while this appeal is ongoing. Respectfully submitted ? J 30? '` COPY FROM R ? Tho Lewis 9 I AAA1?01.11MMM1110- ° 263 Texaco Road d Mechanicsburg, PA Big - 'a 1 0 IN THE COURT OF COMMON PLE4S OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION- LAW THOME. LEWIS, No. 07-3301 Civil Petitioner - V. DEPARTMENT OF TRANSPORTATION, PENNSYLVNNI , Respondent ; CERTIFICATE OF SERVICE OF NOTICE OF APPEAL I, Thom E. Lewis, Petitioner, in the above. captioned matter, do hereby certify that a true and correct copy of the NOTICE OF APPEAL, from the ORDER dated Nov. 28, 2007 was served by first class mail on the Respondent on December 28, 2007, as follows: Pennsylvania Department of Transportation Attn.: Mr. George Kabusk Office of Chief Counsel 3rd Floor 1101 South Front S#reet Harrisburg, PA 17104-2516 ; , - -.: -_ . Aj.0 Tho E. Lewi Petitioner 263 Texaco Rd. t P'Y Rom chanicsbwg, PA 17050 Ad "cot Oft f 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW THOM E. LEWIS, No. 07-3301 Civil Petitioner v. DEPARTMENT OF TRANSPORTATION, : PENNSYLVANIA, Respondent CERTIFICATE OF SERVICE OF NOTICE OF APPEAL AND AMENDED CERTIFICATE OF SERVICE OF NOTICE OF APPEAL i, Thom E. Lewis, Petitioner, in the above-captioned matter, do hereby certify that a true and correct copy of the ANOBNDED CERTIFICATE OF SERVICE, the (original) NOTICE OF APPEAL, from the ORDER dated Nov. 28, 2007 and (original) Cert. of Service was served by first class mail on the following parties on April 17, 2008, as follows: Pennsylvania Department of Transportation Attn.: Mr. George Kabusk Office of Chief Counsel 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 The Honorable Edgar B. Bailey One Courthouse Square Carlisle, PA 17013 Thom E. Le ' Petitioner 263 Texaco Rd. Mechanicsburg, PA 17050 a a., Commonwealth Court of Pennsylvania Kristen W. Brown Prothonotary Michael Krimmel, Esq. Chief clerk of Commonwealth Court April 10, 2008 Irvis Office Buildine. Room 624 Harrisbure. PA 17120 717-255-1652 Defect Correction Letter Mr. Thom E. Lewis 263 Texaco Road Mechanicsburg, PA 17050 Re: Lewis v. DOT No. 617 CD 2008 Dear Mr. Lewis: This office is in receipt of your Notice of Appeal. Before we can proceed in docketing your Notice of Appeal, the following corrections or additions indicated below are necessary: Reasons for Send Back: Amended Proof of Service Notice of Appeal lacks service on lower court judge (name and address) Please return this form TO THIS COURT within 10 days along with the required items listed above. If we do not receive your perfected filing within 10 days from the date of this notice, this matter will be considered abandoned and may be dismissed. Very truly yours, Commonwealth Court Filing Office Check Returned: No CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Thom E. Lewis VS. Department of Transportation, Pennsylvania 07-3301 C :V" l &J-? Cl) )L-?6g The documents comprising the record have been numbered from No.1 to 88, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4/24/2008. IIJPMLY?'L Curtis R. Long, notary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 24th I, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Than E. Lewis Plaintiff, and uebaranent oz j.ransporr Pennsylvania Defendant , as the same remains of record before the said Court at No. 07-3301 of Civi 1 Term, A.D. 19 . set my hand and affixed the seal of said Court day of Ai ri 1 p D., W20QB. rothonotary 1, Edclar R. PnVIe r President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that _0iri-ic R T4Mg , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualifi of whose acts as such full faith and credit are and ought to be given as well in Courts of judica a as else he said record, certificate and attestation are in due form of law and made y he rop offi r 1 G President .lu e Commonwealth of Pennsylvania County of Cumberland ss: 1, LS trt i G R. Lang , Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable F CIar B_ Bay 1 ey by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this y of A. D.: 2QQ . Prothonotary Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland in the Commonwealth of Pennsylvania 617 CD 2008 to No. 2007-3301 Civil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Than E. Lewis VS. Department of Transportation, Pennsylvania **See Certified Copy of Docket Entries** 0 0 w ?e 0 tD 0m a w 0 •n co m -n y o 0 H b N ? ? v a 7O A O n v 0 C G C ` 0 0 ? N O tt] o LO ? n C ? H ? ? c PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2007-03301 LEWIS THOM E (vs) PENNSYLVANIA DEPT OF TRANSPORT Reference No..: Filed........: 6/04/2007 Case Type ..... : APPEAL - VEHICLE REG Judgment......: 00 Time.........: Execution Date 3:27 0/00/0000 Judge Assigned: BAYLEY EDGAR B Disposed Desc.: Jury Trial.... Disposed Date. 1 i 0/00/0000 617 CD 2008 ------------ Case Comments ------------- gher Crt .: H Higher Crt 2.: General Index Attorney Info LEWIS THOM E APPELLANT PRO SE 263 TEXACO ROAD MECHANICSBURG PA PENNSYLVANIA DEPARTMENT OF APPELLEE TRANSPORTATION OFFICE OF CHIEF COUNSEL P 0 8212 HARRISBURG PA 17105 * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - /-s 6/04/2007 APPEAL NUNC PRO TUNC FROM MOTOR VEHICLE REGISTRATION SUSPENSION FILED BY PLFF ------------------------------------------------------------------- 6- 7 6/04/2007 PETITION TO PROCEED.IN FORMA PAUPERIS FILED BY PLFF ------------------------------------------------------------------- -/? 6/13/2007 AMENDED APPEAL NUNC PRO TUNC FROM MOTOR VEHICLE REGISTRATION SUSPENSION - BY PLFF ------- -------- --------- ----------------------------------------- 6/13/2007 IN-FORMA-PAUPERIS PETITION - BY PLFF ------------------------------------------------------------------- 6/19/2007 ORDER OF COURT - 06-19-07 - IN RE: ORDERED THAT: 1-THOM E LEWIS MAY PAROCEED IN FORMA PAUPERIS 2-RULE ENTERED AGAINST DEPT OF TRANS PA TO SHOW CAUSE WHY PETITIONER SHOULD NOT BE ALLOWED TO FILE AN AMENDED APPEAL NUNC PRO TUNC FROM A MOTOR VEHICLE REGISTRATION SUSPENSION 3-RULE RETURNABLE AT HEARING 08-27-07 AT 1:30 PM IN CR 2 CUMB CO COURTHOUSE - BY EDGAR B BAYLEY J - COPIES MAILED 06-19-07 ------------------------------------------------------------------- 8/28/2007 ORDER OF COURT - DATED 08-27-07 - A RULE HAVING BEEN ENTERED AGAINST THE DEPT OF TRANSPORTATION TO SHOW CAUSE WHY PETITIONER SHOULD NOT BE ALLOWED TO FILE AN AMENDED APPEAL NUNC PRO TUNC FROM A MOTOR VEHICLE REGISTRATION SUSPENSION - THE RULE IS MADE ABSOLUTE - PETITIONER MAY FILE AN APPEAL NUNC PRO TUNC WITHIN 20 DAYS OF THIS DATED - A SUPERSEDEAS IS GRANTED - BY EDGAR B BAYLEY J - COPIES MAILED 08-28-07 ------------------------------------------------------------------- 9/18/2007 AMSNDEDIAPPEAL NUNOMPROLEWIS FROM MOTOR VEHICLE REGISTRATION PLFF SUS - BY E ------------------------------------------------------------------- / 9/19/2007 ORDER OF COURT - DATED 9/19/07 - IN E AMENDED APPEAL NUNC PRO TUNC FROM MOTOR VEHICLE REGISTRATION SUSPENSION - HEARING 1,1/26/07 11:30 AM CR 2 - BY EDGAR B BAYLEY J - COPIES MAILED 9/20/07 ------------------------------------------------------------------- 1/?•ly? 11/09/2007 TRANSCRIPT FILED - BY EDGAR B BAYLEY J ------------------------------------------------------------------- 63.?,g11/28/2007 OPINION AND ORDER OF COURT - BEFORE BAYLEY J - 11/28/07 IN RE: APPEAL FROM VEHICLE REGISTRATION SUSPENSION IS DISMISSED - BY EDGAR B BAYLEY J - COPIES MAILED 11/28/07 ------------------------------------------------------------------- 9-77 12/28/2007 NOTICE OF ATHOMLLEWIOTION FOR RECONSIDERATION OF ORDER DATED NOV 2007 BY S PETITIONER PRO S ------------------------------------------------------------------- 7 g_ 4/21/2008 AMENDED CERTIFICATE OF SERVICE OF NOTICE OF APPEAL - UPON RESPONDENT PA DEPT OF TRANSPORTATION - BY THOM E LEWIS PLFF ------------------------------------------------------------------- ?s- -S?7 4/22/2008 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 617 CD 2008 ------------------------------------------------------------------- 4/24/2008 NOTICE OF DOCKET ENTRIES MAILED TO THOM E LEWIS PRO SE AND PA PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2007-03301 LEWIS THOM E (vs) PENNSYLVANIA DEPT OF TRANSPORT Reference No..: Filed........: 6/04/2007 Case Type.....: APPEAL - VEHICLE REG Time.........: 3:27 Judgment.;... 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 617 CD 2008 Higher Crt 2.: DEPARMENT OF TRANSPORTATION - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq Bal Py*mts/Adj End Bal ******************************** ******** ****** ******************************* APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 48.00 48.00 .00 * End of Case Information ******************************************************************************** TRUE CPY F2,17"M rC ???D In Testimony when.-of, I h-r8 urtto set my hand and the seal of said Court at Carlisle, Pa. -2,-e This .... ??Y..... day of... . ? ??•:•Prot?a r.... CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) SUPPLEMENTAL RECORD To the :Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Thom E. Lewis VS. Department of Transportation Pennsylvania 07-3301 Civil 617 CD 2008 The documents comprising the record have been numbered from No.88 to 104 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 05/ 06 /2008 Cu is R. Long, Pr on ary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 6th 1, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Than E. Lewis Plaintiff, and De=tment of Transportat Pennsylvania Defendant , as the same remains of record before the said Court at No. 07-3301 of civil Term, A. D. 19 . set my hand and affixed the seal of said Court day of -May 4 A. D., ic*-2008 Prothonotary 1, Edgar B. Bayley President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature ere, and that the said record, certificate and attestation are in due form of law and made he prope r i ent . dge Commonwealth of Pennsylvania County of Cumberland ss: 1, Curtis R. Long Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified, to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 6th of Flay A. D. mv2DOQ8. i Prothonotary SUPPLEMENTAL RECORD Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Ctunberland in the Commonwealth of Pennsylvania 617 CD 2008 to No. 2007-3301 Civil Term, 19 is contained the following: COPY OF Aarance DOCKET ENTRY Thom E. Lewis VS. Department of Transportation, Pennsylvania **See Certified Copy of Docket Entries** w 0 T 0 w a w 0 C CL G n -- v C O CD 3 W 69 0 a n 0 k lTJ ro v n O v z 0 ro O o W ? rt ? or o H N f'S I-- U a z 0 -"Ib?,II LUIIWCL1d11U I-UUi1Ly rLUL11U11UL.d.1-y' S 'JLLIL:C Civil Case Print 2007-03301 LEWIS THOM E (vs) PENNSYLVANIA DEPT OF TRANSPORT ray C Reference No..: Filed........: 6/04/2007 Case Ty e.....: APPEAL - VEHICLE REG Judgmer.T...... 00 Time.........: Execution Date 3:27 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 1 i 0/00/0000 617 CD 2008 ------------ Case Comments ------------- .: gher Crt H Higher Crt 2.: ********************************************** ********************************** General Index .Attorney Info LEWIS THOM E APPELLANT PRO SE 263 TEXACO ROAD MECHANIC:SBURG PA PENNSYLVANIA DEPARTMENT OF APPELLEE TRANSPORTATION OFFICE OF CHIEF COUNSEL P 0 8212 HARRISBURG PA 17105 ******************************************************************************** * Date Entries ******************************************************************************** /-S 6/04/2007 6/04/2007 6/13/2007 6/13/2007 6/19/2007 /7 8/28/2007 19--11,.), 9/18/2007 /9' 9/19/2007 J13-&a 11/09/2007 ZU ?, 1? 11/28/2007 &, - 7-7 12/28/2007 7?- '54 4/21/2008 4/22/2008 4/24/2008 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL NUNC PRO TUNC FROM MOTOR VEHICLE REGISTRATION SUSPENSION FILED BY PLFF ------------------------------------------------------------------- PETITION 'r0 PROCEED IN FORMA PAUPERIS FILED BY PLFF ------------------------------------------------------------------- AMENDED APPEAL NUNC PRO TUNC FROM MOTOR VEHICLE REGISTRATION SUSPENSION - BY PLFF ------------------------------------------------------------------- IN FORMA .'PAUPERIS PETITION - BY PLFF ------------------------------------------------------------------- ORDER OF COURT - 06-19-07 - IN RE: ORDERED THAT: 1-THOM E LEWIS MAY PAROCEED IN FORMA PAUPERIS 2-RULE ENTERED AGAINST DEPT OF TRANS PA TO SHOW CAUSE WHY PETITIONER SHOULD NOT BE ALLOWED TO FILE AN AMENDED APPEAL NUNC PRO TUNC FROM A MOTOR VEHICLE REGISTRATION SUSPENSION 3-RULE RETURNABLE AT HEARING 08-27-07 AT 1:30 PM IN CR 2 CUMB CO COURTHOUSE - BY EDGAR B BAYLEY J - COPIES MAILED 06-19-07 -------------------------------------------------------------------- ORDER OF COURT - DATED 08-27-07 - A RULE HAVING BEEN ENTERED AGAINST THE DEPT OF TRANSPORTATION TO SHOW CAUSE WHY PETITIONER SHOULD NOT BE ALLOWED TO FILE AN AMENDED APPEAL NUNC PRO TUNC FROM A MOTOR VEHICLE REGISTRATION SUSPENSION - THE RULE IS MADE ABSOLUTE -- PETITIONER MAY FILE AN APPEAL NUNC PRO TUNC WITHIN 20 DAYS OF THIS DATED - A SUPERSEDEAS IS GRANTED - BY EDGAR B BAYLEY J - COPIES MAILED 08-28-07 -------------------------------------------------------------------- AMENDED APPEAL NUNC PRO TUNC FROM MOTOR VEHICLE REGISTRATION SUSPENSION - BY THOM E LEWIS PLFF -------------------------------------------------------------------- FROMRMOTOROVEHICLEA // // SIAPPEAL REGISTRATION SUSPENOND- H ARING ]11N/26/0O7 TUNC 11:30 AM CR 2 - BY EDGAR B BAYLEY J - COPIES MAILED 9/20/07 -------------------------------------------------------------------- TRANSCRIP]. FILED - BY EDGAR B BAYLEY J -------------------------------------------------------------------- OPINION AND ORDER OF COURT - BEFORE BAYLEY J - 11/28/07 IN RE: APPEAL FROM VEHICLE REGISTRATION SUSPENSION IS DISMISSED - BY EDGAR B BAYLEY J - COPIES MAILED 11/28/07 ------------------------------------------------------------------- NOTICE OF APPEAL - MOTION FOR RECONSIDERATION OF ORDER DATED NOV 28 2007 BY THOM LEWIS PETITIONER PRO SE ------------------------------------------------------------------- AMENDED CERTIFICATE OF SERVICE OF NOTICE OF APPEAL - UPON RESPONDENT PA DEPT OF TRANSPORTATION - BY THOM E LEWIS PLFF COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 617 CD 2008 ----------------------------------------------------------------- NOTICE OF DOCKET ENTRIES MAILED TO THOM E LEWIS PRO SE AND PA PYS511 C:umberiant County Prothonotary's Cttice Civil Case Print Page 2 2007-03301 LEWIS THOM E (vs) PENNSYLVANIA DEPT OF TRANSPORT Reference No... Filed..... .... 6/04/2007 Case Type Judgment. .. APPEAL - VEHICLE REG .... 00 Time...... Execution .. Date 3:27 0/00/0000 Judge Ass igned: BAYLEY EDGAR B Jury Trial .... Disposed Desc.: Disposed D i ate. 0/00/0000 7 D 2008 ---------- --- Case Comments ------------- gher Crt H 1.: 61 C Higher Crt 2.: DEPARMENT OF TRANSPORTATION - ------ ---- ------------ /Oy 5/02/2008 --------------------------------------- TRANSCRIPT FILED - BY EDGAR B BAYLEY J ---- - ' ----- ---- ------------ 5/06/2008 --------------------------------------- NOTICE OF DOCKET ENTRIES MAILED TO THOM ------- E LEWIS AND PA DEPARTMENT OF TRANSPORATION - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beg Bal P*ymts/Ad? End Bal APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 48.00 48.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY F °M, R C RD Ira Testimony whercof, I here unto set my hand and the seal of said Court at Carlisle, Pa. This ....... 4? ....... day of.... u 0? .:.. . .............. ...... Prothonotary Y Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 7- 330/ --------------------------------------------------------------------- - 08/07 cr1231 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thom E. Lewis, Appellant V. Pennsylvania Department of Transportation : No. 617 C.D. 2008 : Submitted: December 10, 2008 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge' HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: February 17, 2009 Thom E. Lewis (Lewis) appeals pro se from the November 28, 2007 order of the Court of Common Pleas of Cumberland County (trial court), which dismissed Lewis's nunc pro tunc appeal from a vehicle registration suspension imposed by the Pennsylvania Department of Transportation (DOT) pursuant to Section 1786(d)(1) of ' The decision in this case was reached before January 1, 2009, when Judge Friedman assumed the status of senior judge. the Vehicle Code, 75 Pa. C.S. § 1786(d)(1).2 At issue before the Court is whether Lewis received appropriate notice from his insurance company when it rescinded his automobile insurance for his vehicle based on the non-payment of the initial premium check. Resolution of this issue requires this Court to consider our prior decision in Lewis v. Insurance Department, 935 A.2d 36, 37 (Pa. Cmwlth. 2007) (Lewis I), in which we affirmed the Insurance Commissioner's denial of Lewis's challenge to his insurance company's rescission' of the automobile policy. For the reasons that follow, we affirm the trial court's denial of Lewis's appeal from DOT's suspension of Lewis's vehicle's registration. 2 Section 1786(d)(1) states that DOT "shall suspend the registration of a vehicle for a period of three months if it determines" that the owner or registrant did not secure the required financial responsibility. 75 Pa. C.S. § 1786(d)(1). ' We note that during the present litigation, as well as the litigation in Lewis I, several terms related to this rescission have been used interchangeably, to some confusion. As we noted in Lewis I: Although Progressive issued a rescission notice, the hearing officer and the Insurance Commissioner often have used the terms rescission, termination and cancellation interchangeably. In fact, in his response to the Insurance Department's application for summary relief, Lewis makes much of the fact that this was a rescission, not a cancellation, of his automobile insurance policy. Lewis maintains that the two are not identical, and, therefore, the proper "notice of cancellation" required by Act 68 was never mailed or received; instead, Progressive substituted a different notice that was in violation of, and excluded from, the provisions of Act 68. Lewis I, 935 A.2d at 38 n.5. We noted that while "[w]e agree[d] with Lewis that the terms rescission of a contract and cancellation of a contract are two separate and distinct legal concepts," we did not need to address the distinction because Lewis did not timely file his challenge with the Insurance Commissioner. Id. Similarly, in this case, while the terms are, at times, used distinctly, they more often are used interchangeably by the parties. As the document issued by Progressive to Lewis on December 12, 2005 was titled "Rescission of Coverage Notice", Lewis I, 935 A.2 at 37, we will try to bring some consistency, as we tried to do in Lewis I. by limiting our references, when possible, to "rescind". 2 As the operative set of facts in the present case are the same as those discussed in Lewis I, we draw upon our statement of the facts from Lewis I. "[O]n.November 4, 2005, [Lewis] purchased a Progressive [Specialty Insurance Company (Progressive)] automobile insurance policy from his independent insurance agent and gave the agent a premium check." Lewis I, 935 A.2d at 37. "The Application for Insurance" that Lewis signed on that day "contained an agreement stating, `I affirm that if I make my initial payment by ... check ... , the coverage afforded under this policy is conditioned on payment to the Company by the financial institution.' If the ... check ... is not honored by the financial institution, the Company shall be deemed not to have accepted the payment and this policy shall be void." Id. at 37 n.2 (citation omitted). Lewis acknowledged that, in the ensuing few weeks, he "receive[d] two automobile insurance payment reminders, one in November and one in early December of 2005," the latter of which "informed him that his payment was past due." Id. at 38 n.6. On December 12, 2005, Progressive sent Lewis notice that it had rescinded the insurance coverage on Lewis's 1993 Jeep station wagon, effective November 4, 2005, the day he purchased the insurance policy.' The rescission was based on the refusal of the banking institution, from which Lewis had drawn the initial premium check, to honor the check. On that same date, Progressive notified DOT by electronic transmission that Progressive had terminated Lewis's insurance as of November 4, a "The rescission notice stated, in part, `In accordance with the terms of your policy, which require your payment of premium as consideration for issuance of coverage by this company, all coverage is rescinded and declared VOID as of 12:01 A.M. on the date of policy inception 11/04/05."' Lewis I, 935 A.2d at 37 n.2 (citation omitted). 3 2005. Lewis claims to have not received the December 12, 2005 notice. He, instead, claims that he learned about the rescission of his policy from his insurance agent on December 13, 2005. "Lewis stated that he did not challenge the policy termination" id. at 38, but instead obtained a new policy of insurance. On December 21, 2005,5 DOT sent Lewis a letter about Progressive's "cancellation" of his insurance, asking Lewis to verify his new insurance coverage. (Letter from DOT to Lewis (December 21, 2005) at 1.) The letter advised Lewis that his failure to respond within three weeks might result in a suspension of his vehicle registration. On February 6, 2006, when Lewis failed to respond, DOT mailed Lewis notice of the suspension of his vehicle registration based upon Progressive having "terminated on 11/04/05" Lewis's insurance policy for the vehicle. (Official Notice from DOT to Lewis, February 6, 2006.) "Lewis agreed that DOT's notice also informed him that he had thirty days to take action; however, he did not formally file a complaint [with the Insurance Commissioner, challenging Progressive's rescission of his insurance] until March 10, 2006. When asked why he waited, Lewis responded, `I honestly don't know."' Lewis I, 935 A.2d at 38 (citations omitted). The Insurance Commissioner appointed a hearing officer, who conducted a hearing, and received evidence as to the "timeliness of Lewis's review request" as well as to the "merits of Progressive's policy 'termination."' Lewis I, 935 A.2d at 37-38. The Insurance Commissioner 5 The trial court states that DOT sent this letter on December 12, 2005; however, the record shows that the date was December 21, 2005. (Letter from DOT to Lewis (December 21, 2005) at 1.) 4 dismissed the complaint as untimely. Lewis appealed that decision, and this Court upheld the dismissal of the complaint as untimely. In doing so, we reasoned that: Act 68[6] provides a comprehensive regulatory scheme that includes review of automobile insurance terminations by the Insurance Commissioner. These procedures must be followed, and because Lewis failed to timely avail himself of the administrative remedy provided in section 2008 of Act 68, he is precluded from seeking judicial recourse. Lewis 13,935 A.2d at 40. On June 4, 2007, Lewis filed with the trial court a request for leave to file a nunc pro tunc appeal of his vehicle registration suspension. The trial court permitted Licensee to appeal nunc pro tunc and conducted a hearing on the merits of the appeal. At the hearing, DOT presented certified copies of various documents, including: (1) a computer printout showing Lewis as the owner of the Jeep; (2) a certification that DOT received an electronic transmission from Progressive certifying the cancellation of Lewis's insurance; (3) DOT's December 21, 2005 letter to Lewis; and (4) DOT's February 6, 2006 notice of suspension. Lewis offered only his own testimony. The focus of Lewis's argument before the trial court was that the suspension was improper because Progressive failed to give Lewis proper notice of the termination of his insurance coverage. Lewis contended that, if Progressive had given timely notice of the termination, he could have taken steps to avoid a 6 Article XX of the Insurance Company Law of 1921. Act of May 17, 1921, P.L. 682, added by the Act of June 17, 1998, P.L. 464, as amended. 40 P.S. §§ 991.2001 - 991.2013. "The provisions of. Act 68 substantially reenacted the repealed Act of June 5, 1968, P.L. 140, 40 P.S. §§ 1008.1-1008.11 (Act 78); thus, many cases construing Act 78 continue to have precedential effect on cases dealing with Act 68." Lewis I, 935 A.2d at 37 n.3. 5 suspension by obtaining new insurance before his coverage lapsed for thirty-one days.' Lewis acknowledged that his argument in the vehicle registration case was dependent entirely on the appeal in Lewis I: "[t]he insurance matter that's on appeal, until that's resolved, that's really the determination whether or not [DOT] should have suspended this." (Trial Ct. H'rg Trans. (August 27, 2007) at 18.) On that day, the trial court allowed Claimant to appeal the vehicle registration suspension nunc pro tunc. The next day, following the hearing, this Court issued its decision in Lewis 1. On November 28, 2007, the trial court issued its opinion and order which, relying on Lewis I, dismissed Lewis's appeal because Lewis's Jeep station wagon had been without insurance for more than thirty days, beginning on November 4, 2005. Lewis filed a Notice of Appeal and a Motion for Reconsideration of Order Dated Nov. 28, 2007 (Reconsideration Motion), arguing that "Under [Act 68], retroactive cancellations and rescissions are not allowed...." (Reconsideration Motion ¶ 11). Lewis also argued that, under Section 2006 of Act 68, 40 P.S. § 991.2006(2), he was entitled to a 15-day cure period from the date of mailing of any cancellation or rescission notices to remit the insurance premium or find other 7 Under Section 1786(d)(2)(i) of the Vehicle Code, DOT shall not suspend the registration of a vehicle if the "registrant proves to the satisfaction of [DOT] that the lapse in financial responsibility coverage was for a period of less than 31 days and that" the vehicle was not operated during that period. 75 Pa. C.S. § 1786(d)(2)(i). 6 insurance. (Reconsideration Motion $ 12.) The trial court entered no subsequent order and the appeal before this Court proceeded.8 Before this Court, Lewis argues that Progressive did not give proper notice of the rescission of his insurance policy, which means that the rescission was ineffective and, thus, that his vehicle was continuously covered by the insurance policy that he applied for on November 4, 2005 but did not pay for. He also argues that, while notices of cancellation are covered under Act 68 and, thus, subject to review by the Insurance Commissioner, notices of rescission are not subject to Act 68 and, thus, are not subject to review by the Insurance Commissioner. (Lewis Br. at 6.) In order to analyze Lewis's arguments, this Court must look to the statutory framework in place for consideration of both insurance cancellations and of registration suspensions. This Court has described this system as being: a parallel, two-part system whereby a request for review of the validity of an insurer's alleged cancellation of a policy is to be directed towards the Insurance Commissioner, and a request for review of DOT's suspension of a vehicle registration, on the grounds of a lack of insurance, is to be directed towards a court of common pleas. Webb v. Department of Transportation, Bureau of Motor Vehicles, 870 A.2d 968, 972 (Pa. Cmwlth. 2005). In refining our discussion of the appropriate means of challenging an insurance cancellation, and a vehicle registration suspension, we have also explained that 8 "Our review is limited to determining whether the trial court committed an error of law or. abused its discretion in reaching its decision." Eckenrode v. Department of Transportation, Bureau of Driver Licensing, 853 A.2d 1141, 1143 n.5 (Pa. Cmwlth. 2004). 7 [a]lthough a challenge to an insurance cancellation may only be brought before the Insurance Commissioner, "a court reviewing a [Department] registration suspension appeal may certainly examine the record before it to determine whether an insured's evidence has overcome the applicable presumption established by [the Department]." Webb, 870 A.2d at 974 (emphasis added). However, "[a]s to an examination, beyond the record on its face, into the validity of an insurer's policy cancellation, ... said examination is properly brought for review to the Insurance Commissioner under Section 1786(d)(5), and not to a trial court." Id. at 974. Deklinski v. Department of Transportation, Bureau of Motor Vehicles, 938 A.2d 1191,1195-96 (Pa. Cmwlth. 2007). The applicable standard in a vehicle registration case is well established: "In a suspension of registration case," such as the present one, "the Department has the initial burden of showing that a registrant's vehicle is registered or is a type of vehicle that must be registered and that the Department received notice that the registrant's financial responsibility coverage was terminated." Fagan v. Department of Transportation, Bureau of Motor Vehicles, 875 A.2d 1195, 1198 (Pa.Cmwlth.2005) (citing 75 Pa.C.S. § 1786(d)(3)). Statutory authority provides that "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' of such termination. 75 Pa.C.S. § 1377(b)(2) (emphasis added); accord Fagan, 875 A.2d at 1198 ("[t]he Department may satisfy this burden by certifying its receipt of documents or of an electronic transmission from an insurance company stating that a registrant's financial responsibility coverage has been terminated.") If the Department meets its burden, a presumption arises that the registrant lacked the necessary financial responsibility coverage. Fagan, 875 A.2d at 1198. The registrant may rebut this presumption by presenting clear and convincing evidence of record "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 8 Section 1786(d)(2)(i-iii)...." Fell v. Department of Transportation, Bureau of Motor Vehicles. 925 A.2d 232, 237-38 (Pa.Cmwlth.2007) (en banc) (footnote omitted). Deklinski, 938 A.2d at 1194 (Pa. Cmwlth. 2007). The licensee must meet this burden through clear and convincing evidence. Fell, 925 A.2d at 238. In the present case, we conclude that DOT has met its burden, but that Lewis has not met his burden. Applying the above standard in this case, DOT had the burden of proving that: (1) Lewis's Jeep is a registered vehicle or of a type required to be registered; and (2) DOT received notice of the cancellation of Lewis's automobile insurance from Lewis's insurer. 75 Pa. C.S. § 1786(d)(3). DOT met that burden by presenting a certification that it received an electronic transmission from Progressive informing DOT that the insurance coverage on Lewis's Jeep station wagon had been rescinded. Such evidence creates a presumption that Lewis lacked insurance on the Jeep. Applying the above standard, the burden then switched to Lewis and required him to establish that he either maintained continuous insurance coverage on the Jeep station wagon or that one of the three applicable statutory exceptions applied. Lewis offered no evidence or argument as to the three statutory exceptions,9 but rather 9 These exceptions 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 had lapsed while the owner or registrant was on temporary, (Footnote continued on next page...) 9 focused on the requirement that he had continuously maintained coverage. As noted above, in a vehicle registration case, we may only look at the face of the,documents to determine if there is clear and convincing evidence to rebut the presumption in favor of DOT. Lewis has offered nothing in the record that meets this standard. Under 75 Pa.C.S. § 1786(d), failure of a vehicle owner to maintain insurance coverage on a vehicle for a thirty-day period requires DOT to suspend that registration of the uninsured vehicle. Applying our decision in Lewis I, the face of the documents in the record indicate that the policy was rescinded as of November 4, 2005, and that Lewis had not secured coverage on the Jeep station wagon until "December 16, 2005, which was 42 days after the effective date of the cancellation and four days after Progressive sent him notice of the cancellation on December 12, 2005." (Trial Court Op. at 3.) Lewis's argument in this appeal is directed at establishing that the he did not receive timely notice of the insurance rescission and, thus, that the rescission was improper. Lewis's evidence and arguments on this point are nothing more than a (continued...) 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)(i-iii). 10 collateral attack on the Lewis I decision and its upholding of Progressive's action as to the November 4, 2005 policy. Each relates to the absence of what he claims was notice that he was required to receive under Act 68. While Lewis does contend in part of his Appellate Brief that questions of rescission (as opposed to cancellation) do not fall under Act 68 and are, thus, not appropriately brought before the Insurance Commissioner, we note that he does not develop this argument in any manner and that it conflicts with arguments he raised before the trial court and this Court related to the applicability of the 15-day cure period of Section 2006 of Act 68, 40 P.S. § 991.2006(2). Additionally, it appears that a similar argument was made before the Court in Lewis I. Lewis I, 935 A.2d at 38 n.5. Despite this argument in Lewis I, we nonetheless upheld the Insurance Commissioner's denial of Lewis's challenge, thus tacitly rejecting the argument that the issue was not within the Insurance Commissioner's purview. These issues as to what notice was required are issues appropriately raised before the Insurance Commissioner and, had Lewis's challenge in Lewis I been timely filed with the Insurance Commissioner, presumably would have been addressed by the Insurance Commissioner. "The payment of premiums is said to be the very essence of an insurance contract; premium payments are a condition precedent to or at least concurrent with the assuming of any liability by an insurance company." Kelly v. Allstate Insurance Company, 138 F. Supp. 657, 662 (E.D. Pa. 2001). As discussed in Lewis I, Lewis did receive notice in November 2005 which indicated that his premium payment for the policy was past due. Lewis had just obtained the new policy of insurance on November 4 and, thus, the only payment he had made so far was the initial payment for this first month. Notice of past-due payment clearly indicated that there was a 11 problem with this first, and only, payment. Thus, he had the opportunity to inquire and correct this problem within thirty days of the date he applied for the policy. He did not do so.lo What we are left with is our decision in Lewis I, which upholds the rescission effective November 4, 2005. Lewis's arguments would require us to conduct "an examination, beyond the record on its face, into the validity of an insurer's policy cancellation", which, as noted above, is not appropriately addressed in vehicle registration suspension cases. Deklinski, 938 A.2d at 1196." As such, we must find that Lewis failed to meet his burden in this vehicle registration suspension appeal. Accordingly, we conclude that the trial court appropriately dismissed Lewis's appeal. io We disagree that any additional prior notice was required, and Lewis has not sufficiently developed an argument to lead us to conclude otherwise. By its terms, an insurance policy rescission is effective as of the date of the application - it is not possible to give notice of a cancellation of insurance policy prior to the time for which the policy has actually been applied. ' 1 Lewis raises a total of eight issues before this court, many of which seem tangential, at best, to the vehicle registration suspension issue presently before us and the rest which, in large measure, are essentially restatements of, or entirely dependent on the notice argument. Among the issues are allegations of lack of due process, largely arising from his appeal before the Insurance Commissioner being dismissed for being untimely - issues that were addressed by our Lewis I decision. Petitioner also raises allegations that suggest collusion between the Insurance Department and DOT, which seem to arise from DOT staying the vehicle registration suspension during the first ninety days of the Lewis I appeal being before the Insurance Commissioner. Another part of these arguments relate to DOT reinstating the suspension, after this ninety day stay period, but prior to the Insurance Commissioner's decision in Lewis I. DOT notes that part of its reason for not continuing the stay past the initial ninety days was because the appeal was brought well after the thirty-day period prescribed by Section 2008 of Act 68, 40 P.S. § 991.2008. These arguments by Lewis presuppose that Progressive's action was improper, a presupposition that is eviscerated by the Insurance Commissioner's and this Court's decisions in Lewis I. As the Insurance Commissioner and this Court, in Lewis I, ultimately denied the appeal based on Lewis's failure to comply with this thirty-day appeal period limitation, this denial upheld Progressive's rescinding of the policy. 12 For these reasons, we affirm the trial court's order. 1?rcaAt, . RE A E COHN JUB IRER, Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thom E. Lewis, Appellant V. Pennsylvania Department of Transportation NOW, February 17, 2009, No. 617 C.D. 2008 ORDER the order of the Court of Common Pleas of Cumberland County, dated November 28, 2007, is hereby affirmed. 12 / 04 RE AE COHN JUB IRER, Judge Certified from the Record f EB 17 2009 Order IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thom E. Lewis, Appellant V. Pennsylvania Department of Transportation No. 617 C.D. 2008 Submitted: December 10, 2008 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE FRIEDMAN FILED: February 17, 2009 I respectfully dissent. The majority concludes that the "Rescission of Coverage Notice" sent by Progressive Specialty Insurance Company (Progressive) to Thom E. Lewis (Lewis) is not invalid on its face; thus, Lewis failed to rebut the presumption that the Pennsylvania Department of Transportation (DOT) created before the Court of Common Pleas of Cumberland County (trial court) that Lewis lacked insurance coverage for his vehicle as of November 4, 2005.' However, I ' In a registration suspension appeal, DOT may create a presumption that a vehicle lacked the requisite insurance coverage by presenting evidence that DOT received notice of a lapse, termination or cancellation of the vehicle's insurance coverage. Section 1786(d)(3)(ii) of the Vehicle Code, 75 Pa. C.S. §1786(d)(3)(ii). However, "[t]his presumption may be overcome by producing clear and convincing evidence that the vehicle was insured at all relevant times." Id. submit that, in reaching this conclusion, the majority does not adequately consider two of the arguments made by Lewis. First, Lewis argues that there is an important distinction between a retroactive policy "rescission" and a prospective policy "cancellation" and that Article XX of The Insurance Company Law of 1921 (Act 68)2 does not govern retroactive policy rescissions. I agree. In Klopp v. Keystone Insurance Companies, 528 Pa. 1, 595 A.2d 1 (1991), our supreme court held that the language in section 2002(c)(3) of Act 683 means that insurers may rescind insurance policies in effect less than sixty days free from the statutory constraints. Thus, because Progressive rescinded a policy in effect less than sixty days, Act 68 and its case law are not applicable. Second, Lewis argues that DOT may not certify the receipt of notice from an insurance company under section 1377(b)(1) of the Vehicle Code4 to avoid the hearsay rule unless the company is complying with its obligation to notify DOT 2 Act of May 17, 1921, P.L. 682, added by section 1 of the Act of June 17, 1998, P.L. 464, 40 P.S. §§991.2001-991.2013. 3 Section 2002(c)(3) of Act 68 states that "[n]othing in [Act 68] shall apply ... [t]o any policy of automobile insurance which has been in effect less than sixty (60) days, unless it is a renewal policy...." 40 P.S. §991.2002(c)(3). 4 75 Pa. C.S. §1377(b)(1). Section 1377(b)(1) states that if DOT receives information from an insurance company that is "complying with its obligation" under section 1786(e)(3) of the Vehicle Code, DOT may certify that it has received the information, and DOT's certification shall be prima facie proof of the facts contained therein. RSF-2- under section 1786(e)(3) of the Vehicle Code,' and, in this case, Progressive was not complying with section 1786(e)(3) when it notified DOT. I agree. Thus, the trial court erred in admitting Progressive's notice through DOT's certification, and, absent the notice, DOT failed to create the presumption that Lewis lacked insurance on his vehicle as of November 4, 2005. 1. Facts On November 4, 20051 Lewis purchased an automobile insurance policy from Progressive through an independent insurance agent. Lewis gave the agent a check for the initial monthly premium, but Lewis's bank did not honor the check. Later in November, Progressive sent Lewis a payment reminder for the December premium. On December 5, 2005, Progressive sent Lewis another payment reminder, indicating that the December premium was past due.' On December 8, 2005, Lewis's insurance agent informed Progressive that Lewis's bank had not honored the initial premium payment.' Lewis v. Insurance Department, 935 A.2d 36 (Pa. Cmwlth. 2007) (Lewis I).' ' 75 Pa. C.S. §1786(e)(3). Section 1786(e)(3) requires that an insurer notify DOT of a cancellation or termination of insurance within ten days of the effective date of the cancellation or termination. 6 Lewis testified before the trial court that he was to pay monthly premiums. (8/27/2007 hearing, N.T. at 13.) The December premium would have been due on December 4, 2005, one month after the initial premium payment. ' The majority misstates these facts. The majority incorrectly states that Lewis received notice in November 2005 that his initial premium was past due. (Majority op. at 11-12.) However, the November 2005 notice was not a past due notice; the December 5, 2005, notice was the past due notice. Moreover, because Progressive did not know until December 8, 2005, that Lewis's bank did not honor his initial check, Progressive did not send the December 5, 2005, notice in reference to (Footnote continued on next page...) RSF-3- On December 12, 2005, Progressive issued a "Rescission of Coverage Notice" to Lewis, rescinding his automobile insurance policy for nonpayment of the initial premium. The notice stated that "all coverage is rescinded and declared VOID as of 12:01 A.M. on the date of policy inception 11/04/05." Lewis I, 935 A.2d 36, 37 n.2 (emphasis added). Lewis first learned that Progressive had voided the policy on December 13, 2005, when Lewis went to his insurance agent's office to pay the December premium. The agent instructed Lewis to purchase another policy, which he did on December 16, 2005. Lewis L Progressive sent DOT a notice regarding Progressive's action on Lewis's policy. DOT received the notice on December 21, 2005. (DOT's 12/29/2006 letter to Lewis.) That same day, DOT mailed Lewis a letter informing Lewis that DOT had (continued...) Lewis's initial premium payment. Lewis v. Insurance Department, 935 A.2d 36 (Pa. Cmwlth. 2007). 8 I note that DOT asked the trial court to take judicial notice of Lewis I. (11/26/2007 hearing, N.T. at 7.) However, a court may not take judicial notice of the record in another case, and none of the evidence presented in Lewis I was submitted here. 8 Standard Pennsylvania Practice 2d, §49:91 (2007). Thus, I question the majority's reliance on facts that are not in evidence here. I point out that this appeal is not a continuation of the prior proceeding before the Insurance Commissioner and this court. This appeal involves a different jurisdiction, a different statute and a different burden of proof. Indeed, the trial court's scope of review in this case was limited to determining: (1) whether Lewis's vehicle needed to be registered; and (2) whether DOT received notice of a lapse, termination or cancellation of insurance coverage as required by law for the vehicle or the owner was requested to provide proof of insurance and failed to do so. Section 1786(d)(3) of the Vehicle Code, 75 Pa. C.S. §1786(d)(3). RSF-4- received notice that Progressive "cancelled" his automobile insurance. (S.R.R. at 6b.) The letter asked Lewis to provide documentation showing that he obtained a new insurance policy no more than thirty days after the "cancellation." (S.R.R. at 7b.) Lewis responded by sending DOT documentation of his new insurance policy. Lewis L However, because Progressive retroactively "cancelled" Lewis's policy as of November 4, 2005, and Lewis did not obtain new coverage until December 16, 2005, DOT determined that Lewis's lapse in coverage was more than thirty days. On February 6, 2006, DOT sent Lewis a letter suspending Lewis's vehicle registration for three months pursuant to section 1786(d) of the Vehicle Code.' (S.R.R. at 2b.) DOT's letter informed Lewis that he had the right to appeal the suspension to the court of common pleas within thirty days of the letter's mailing date. Id. On March 10, 2006, Lewis requested that the Insurance Commissioner review Progressive's rescission of his insurance policy pursuant to Act 68.10 The Insurance Commissioner believed that Lewis's request acted to stay DOT's suspension of Lewis's vehicle registration." Thus, on March 20, 2006, an Insurance 9 75 Pa. C.S. §1786(d). 10 Section 2008 of Act 68 states that, within thirty days of receiving a notice of cancellation or a notice of intention not to renew a policy, an insured may request that the Insurance Commissioner review the action. 40 P.S. §991.2008. 11 Section 1786(d)(5) of the Vehicle Code states, in relevant part: Proof that a timely request has been made to the Insurance Commissioner for ... review [of a cancellation of insurance] shall act (Footnote continued on next page...) RSF-5- Investigator sent an email to DOT, stating, "Please grant a Delay of Suspension for ... [Lewis because] Lewis has requested a hearing with the Pa Insurance Department." (S.R.R. at l lb.) As a result, DOT delayed the suspension of Lewis's vehicle registration until June 20, 2006.12 (S.R.R. at 4b, 16b.) DOT did not give Lewis notice of its amended decision; thus, DOT did not give Lewis notice of his appeal rights with respect to the amended decision. On November 13, 2006, the Insurance Commissioner dismissed Lewis's request for review as untimely because it was made more than thirty days from the date Lewis presumably received the notice of rescission. Lewis then petitioned this court for review. On March 31, 2007, the registration on Lewis's vehicle expired, and, pursuant to a DOT policy, DOT began giving Lewis credit towards the three-month suspension. 13 DOT did not notify Lewis. On June 4, 2007, Lewis appealed nunc pro (continued...) as a supersedeas, staying the suspension of registration ... pending ... a final order [under section 2009 of Act 68]. 75 Pa. C.S. §1786(d)(5). 12 DOT admits that it erred in reinstating the suspension on June 20, 2006, stating that it should not have reinstated Lewis's suspension until the Insurance Commissioner entered an order in Lewis's pending appeal. (See Lewis's brief at 12, citing DOT's answer to Lewis's request for a supersedeas.) 13 DOT states in its brief that, where an owner has not surrendered the vehicle plate and registration card as required by law, DOT's policy is to begin crediting the service of a vehicle registration suspension when the registration has expired. (DOT's brief at 4 n.5.) RSF-6- tunc to the trial court from DOT's suspension of his vehicle registration.14 (S.R.R. at 16b-17b.) On June 30, 2007, the three-month suspension ended, and Lewis became eligible to have his vehicle registration restored.15 (S.R.R. at 4b, 16b.) On August 27, 2007, the trial court issued an order granting Lewis a supersedeas and allowing him to proceed with his appeal nunc pro tunc. (Trial ct. op. at 1.) The trial court allowed the nunc pro tunc appeal because DOT failed to give Lewis notice of the delay in the suspension following Lewis's request for review by the Insurance Commissioner. (8/27/2007 hearing, N.T. at 15.) In other words, the trial court allowed the nunc pro tunc appeal because DOT failed to give Lewis notice of his appeal rights with respect to DOT's amended decision, a breakdown in the administrative process. See Baum v. Department of Transportation, Bureau of Driver Licensing, 949 A.2d 345 (Pa. Cmwlth. 2008) (stating that a nunc pro tunc appeal is permitted where there has been an administrative breakdown). On August 28, 2007, this court dismissed Lewis's petition for review of the Insurance Commissioner's decision, holding that Lewis failed to timely request review of Progressive's cancellation of insurance. Lewis L On November 28, 2007, the trial court dismissed Lewis's appeal from DOT's vehicle registration suspension la The filing of an appeal with the trial court acts as a supersedeas, and DOT cannot impose a suspension until the trial court reaches a determination. 75 Pa. C.S. §1786(d)(3). is Whenever DOT suspends the registration of a vehicle, DOT shall restore the registration when the vehicle owner furnishes proof of financial responsibility and submits an application for registration to DOT with the restoration fee. Section 1786(d)(2) of the Vehicle Code, 75 Pa. C.S. §1786(d)(2). The restoration fee is $50.00. (8/27/2007 hearing, N.T. at 6.) RSF-7- because Lewis, having received notice of the insurance policy cancellation thirty- eight days after its effective date, could not prove that his policy lapsed for no more than thirty days. Lewis now appeals to this court. II. Rescission and Act 68 Lewis asks this court to recognize the distinction between a retroactive policy "rescission" and a prospective policy "cancellation," arguing that Act 68 does not govern policy rescissions.16 The majority mentions this argument, (majority op. at 7, 11), but states that Lewis does not develop the argument, that the argument conflicts with the argument he made in the Act 68 proceedings and that this court tacitly rejected the argument in Lewis I, (majority op. at 11). Thus, the majority declines to address the applicability of Act 68. 16 Our supreme court has explained the difference between a policy rescission and policy cancellation as follows. "Rescission is a retroactive remedy [under the common law], by which the rights and obligations of all parties under the policy are abrogated, as if the policy had never been issued. Cancellation is a prospective remedy; it terminates the rights and obligations of the parties in the future." Erie Insurance Exchange v. Lake, 543 Pa. 363, 367, 671 A.2d 681, 683 (1996). I note that Lewis's insurance policy was an executory contract, an exchange of promises. Progressive provided Lewis with an application, offering to provide Lewis insurance coverage in exchange for Lewis's timely payment of the required premiums. Part of the application set forth a condition, stating that, if Lewis paid the initial premium by check and the check was not honored, the policy would be void. Lewis accepted the offer by signing the application, and Lewis provided consideration by promising to make timely payment of the initial premium. However, when Lewis failed to keep that promise, the condition was not met, there was no longer any consideration, and the contract became void when Progressive exercised its right to rescind the policy. RSF-8- However, all of the case law relied upon by the majority to reach its holding is Act 68 case law examining the limits of trial court review in a suspension appeal based on the Insurance Commissioner's role under Act 68. (See majority op. at 8, citing Deklinksi v. Department of Transportation, Bureau of Motor Vehicles, 938 A.2d 1191 (Pa. Cmwlth. 2007), appeal denied, Pa. , 959 A.2d 321 (2008)). If Lewis is correct that Act 68 does not apply to policy rescissions, then the majority either must explain its reliance on Act 68 case law or provide another basis for its holding. Thus, despite the shortcomings in Lewis's argument, I submit that, as a preliminary matter, this court must address whether Act 68, and its case law, applies to the policy rescission in this case. A. Act 68 Section 2002(c)(3) of Act 68 states that "[n]othing in [Act 68] shall apply ... [t]o any policy of automobile insurance which has been in effect less than sixty (60) days, unless it is a renewal policy...."17 40 P.S. §991.2002(c)(3). Our supreme court has held that this language allows an insurer to exercise the common law right of rescission within the first sixty days of an insurance policy free from statutory constraints. Klopp. Here, Progressive rescinded Lewis's policy on December 12, 2005, less than sixty days after November 4, 2005, the date when Progressive and Lewis entered 17 I note that the Unfair Insurance Practices Act (UIPA), Act of July 22, 1974, P.L. 589, as amended, 40 P.S. §§1171.1-1171.15, also does not apply to any insurance policy that has been in effect less than sixty days, unless it is a renewal policy. Section 5(c)(3) of the UIPA, 40 P.S. § 1171.5(c)(3). RSF-9- into an agreement for insurance coverage. Thus, I would conclude that neither Act 68 nor Act 68 case law apply and that Lewis had no right or duty to request that the Insurance Commissioner review the policy rescission under Act 68 or under section 1786(d)(5) of the Vehicle Code.18 B. Vehicle Code Section 1786(d)(5) of the Vehicle Code states that "[a]n alleged lapse, cancellation or termination of a policy of insurance by an insurer may only be challenged by requesting review by the Insurance Commissioner pursuant to [Act 68]." 75 Pa. C.S. § 1786(d)(5). I point out that section 1786(d)(5) refers to the cancellation, termination or lapse of an insurance policy and does not refer to a rescission. The fact that the Legislature used the three terms in the disjunctive indicates that the Legislature recognized a distinction between the legal concepts and did not intend that the terms be used interchangeably." See section 1903(a) of the Statutory Construction Act of 18 Lewis could have challenged the rescission only in the courts of common pleas. See Metropolitan Property and Liability Insurance Company v. Insurance Commissioner, 517 Pa. 218, 535 A.2d 588 (1987) (stating that, absent a statutory remedy, an insured would be required to proceed to common pleas court to contest the rescission of an insurance contract). Lewis apparently has not challenged Progressive's December 12, 2005, rescission in the courts of common pleas; however, the four-year statute of limitations for an action upon a contract has not yet expired. Section 5525(a)(8) of the Judicial Code, 42 Pa. C.S. §5525(a)(8). 19 A "cancellation" is the ending of a contract prior to its expiration date for a breach of contract. Restatement of Contracts 2d, vol. 2, §283 cmt. a (1981); Black's Law Dictionary 206 (6th ed. 1990). A "termination" is the ending of a contract other than for a breach, e.g., for the expiration of the policy period. Restatement of Contracts 2d, vol. 2, §283 cmt. a (1981); Black's Law Dictionary 1471 (6th ed. 1990). A "lapse" is the ending of a policy for failure to pay a (Footnote continued on next page...) RSF- 10- 19721 1 Pa. C.S. § 1903(a) (stating that words shall be construed according to rules of grammar and that technical words shall be construed according to their peculiar and appropriate meaning or definition); see also section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1921(a) (stating that every statute shall be construed, if possible, to give effect to all its provisions). Because a rescission is the ending of a contract retroactively, it does not fall within the meaning of any of these terms. Thus, section 1786(d)(5) does not make Act 68 applicable to retroactive policy rescissions.20 III. DOT's Certification Lewis also argues that the trial court erred in admitting DOT's certification of the notice DOT received from Progressive as prima facie evidence that Lewis lacked insurance as of November 4, 2005. Lewis maintains that, under section 1377(b)(1) of the Vehicle Code, DOT may not certify information it receives electronically from an insurance company unless the insurance company is providing the information in compliance with section 1786(e)(3) of the Vehicle Code. Lewis asserts that, because the information Progressive sent to DOT was untimely under section 1786(e)(3), DOT could not certify its receipt of that information. (See Lewis's brief at 20-21.) (continued...) premium, with the policy remaining in force for a statutory grace period. Black's Law Dictionary 880-81 (60' ed. 1990). 20 If we were to interpret this provision otherwise to mean that an insured must challenge the rescission of an insurance policy in effect less than sixty days pursuant to Act 68, then the provision would negate section 2002(c)(3) of Act 68. RSF-11- Again, the majority does not address this issue. The majority simply states that DOT met its burden of proof by presenting the certification. (Majority op. at 9.) Yet, if DOT's certification of Progressive's notice were improper, then any reference to the notice in the record would be hearsay, which means that DOT would have failed to create the presumption that Lewis lacked insurance on his vehicle as of November 4, 2005. Thus, I submit that this court should address the matter.21 Section 1377(b)(1) of the Vehicle Code states that, in a suspension appeal, if DOT received information by electronic transmission from an insurer who is "complying with its obligation" under section 1786(e)(3) to notify DOT of a policy cancellation or termination, DOT may certify that it has received the information, and such certification shall be prima facie proof of the facts contained in the electronic transmission. 75 Pa. C.S. §1377(b)(1). This court has held that section 1377(b)(1) sets forth an exception to the hearsay rule. England v. Department of Transportation, Bureau of Driver Licensing, 687 A.2d 425 (Pa. Cmwlth. 1997). However, it is clear that the exception extends only to information that an insurance company sent to DOT in compliance with its obligation under section 1786(e)(3). Section 1786(e)(3) states that, if an insurer has "canceled or terminated" a contract of motor vehicle liability insurance, the insurer shall notify DOT "not later than ten days following the effective date of the cancellation or termination." 75 Pa. 21 I note that Lewis objected to admission of the certification. (11/26/2007 hearing, N.T. at 3-4.) Lewis also objected that a timeline presented by DOT failed to include the fact that Progressive's notice to DOT was untimely. (11/26/2007 hearing, N.T. at 11-13.) RSF- 12- C.S. § 1786(e)(3). Thus, if an insurance company notifies DOT of the cancellation or termination of an insurance policy not later than ten days from the effective date, DOT may certify its receipt of that notice, and the certification shall be prima facie proof that the insurer cancelled or terminated the policy. Here, Progressive's December 21, 2005, electronic notice to DOT was later than ten days from the November 4, 2005, effective date and, thus, was not compliant with section 1786(e)(3). As a result, DOT could not avoid the hearsay rule by certifying that it received the notice. This means that the facts in Progressive's electronic transmission could not constitute prima facie proof that Lewis lacked insurance as of November 4, 2005. Because DOT failed to meet its initial burden, the trial court erred in dismissing Lewis's appeal." 22 In this case, the parties stipulated that Progressive's notice to DOT failed to comply with the ten-day requirement in section 1786(e)(3). (Lewis's Amended Appeal, 18, DOT's 12/29, 2006 letter to Lewis.) Our supreme court has stated that parties may limit the issues that a reviewing court may address by stipulation. Northbrook Life Insurance Company v. Commonwealth, _ Pa. _, 949 A.2d 333 (2008). Were it not for the parties' stipulation that section 1786(e)(3) applies here, I would hold that, because section 1786(e)(3) applies to cancellations and terminations, and not rescissions, section 1786(e)(3) does not apply and, thus, did not obligate Progressive to notify DOT of the rescission of Lewis's policy. We presume that, in enacting section 1786(e)(3), the Legislature did not intend a result that would be impossible of execution. Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(1). Here, it was impossible for Progressive to notify DOT of the December 12, 2005, policy rescission within ten days of November 4, 2005, because the rescission had not even occurred by then. I recognize that interpreting section 1786(e)(3) to mean that an insurance company has no obligation to notify DOT of a rescission may defeat the goal of keeping uninsured vehicles off the roads. However, the lack of statutory authority governing insurance policy rescissions is a problem for the Legislature to resolve, not the courts. RSF-13- Accordingly, I would reverse. ROCHELLE S. FRIEDI?, Judge r`> C::7 RSF-14- Irene M. Bizzoso, Esq. Oupreme Court of flennopfbania Deputy Prothonotary Middle District Elizabeth E. -Lisk Chief Clerk September 9, 2009 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Thom E. Lewis, Petitioner v. Pennsylvania Department of Transportation, Respondent No. 188 MAL 2009 Trial Court Docket No: 07-3301 Commonwealth Docket Number: 617 CD 2008 Appeal Docket No: Date Petition for Allowance of Appeal Filed: March 19, 2009 Disposition: Order Denying Petition for Allowance of Appeal Disposition Date: September 09, 2009 601 Commonwealth Avenue, Suite 4500 P.U. Box 62575 Harrisburg, PA 17106 (717) 787-6181 www.pacourts.us Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT THOM E. LEWIS, No. 188 MAL 2009 Petitioner Petition for Allowance of Appeal from the Order of the Commonwealth Court V. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Respondent ORDER PER CURIAM AND NOW, this 9th day of September, 2009, the Petition for Allowance of Appeal is hereby DENIED. TRUE & CORRECT COPY ATTEST: September 9, 2009 1766th E. Zi ,Chief Clerk RED-Offla OF NOT 2 19 OCT -1 M12:21 PENNVR4Y IA. Kristen W. Brown Commonhaealtb Court of 3pennotbania Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue, Suite 2100 Michael Krimmel, Esq. P,O. Box 69185 Chief Clerk of Commonwealth Court Harrisburg, PA 17106-9185 October 5, 2009 CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Mr. Long Prothonotary RE: Lewis v. DOT 617 CD 2008 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 07-3301 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description trial court record April 28, 2008 rec & supp Remand/Remittal Date: ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, *--f4 - Commonwealth Court Filing Office Lewis v. DOT 617 CD 2008 Letter to: Mr. Curtis R. Long October 5, 2009 Acknowledgement of Certificate of Remittal(Remand of Record (to be returned): Signature Date Printed Name FI{.!' if1 0" THE 2009 OCT 12 Psi ti: 071 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thom E. Lewis, Appellant V. Pennsylvania Department of Transportation : No. 617 C.D. 2008 : Submitted: December 10, 2008 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge' HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: February 17, 2009 Thom E. Lewis (Lewis) appeals pro se from the November 28, 2007 order of the Court of Common Pleas of Cumberland County (trial court), which dismissed Lewis's nunc pro tunc appeal from a vehicle registration suspension imposed by the Pennsylvania Department of Transportation (DOT) pursuant to Section 1786(d)(1) of ' The decision in this case was reached before January 1, 2009, when Judge Friedman assumed the status of senior judge. the Vehicle Code, 75 Pa. C.S. § 1786(d)(1).2 At issue before the Court is whether Lewis received appropriate notice from his insurance company when it rescinded his automobile insurance for his vehicle based on the non-payment of the initial premium check. Resolution of this issue requires this Court to consider our prior decision in Lewis v. Insurance Department, 935 A.2d 36, 37 (Pa. Cmwlth. 2007) (Lewis 1), in which we affirmed the Insurance Commissioner's denial of Lewis's challenge to his insurance company's rescission' of the automobile policy. For the reasons that follow, we affirm the trial court's denial of Lewis's appeal from DOT's suspension of Lewis's vehicle's registration. z Section 1786(d)(1) states that DOT "shall suspend the registration of a vehicle for a period of three months if it determines" that the owner or registrant did not secure the required financial responsibility. 75 Pa. C.S. § 1786(d)(1). 3 We note that during the present litigation, as well as the litigation in Lewis 1, several terms related to this rescission have been used interchangeably, to some confusion. As we noted in Lewis I: Although Progressive issued a rescission notice, the hearing officer and the Insurance Commissioner often have used the terms rescission, termination and cancellation interchangeably. In fact, in his response to the Insurance Department's application for summary relief, Lewis makes much of the fact that this was a rescission, not a cancellation, of his automobile insurance policy. Lewis maintains that the two are not identical, and, therefore, the proper "notice of cancellation" required by Act 68 was never mailed or received; instead, Progressive substituted a different notice that was in violation of, and excluded from, the provisions of Act 68. Lewis I, 935 A.2d at 38 n.5. We noted that while "[w]e agree[d] with Lewis that the terms rescission of a contract and cancellation of a contract are two separate and distinct legal concepts," we did not need to address the distinction because Lewis did not timely file his challenge with the Insurance Commissioner. Id. Similarly, in this case, while the terms are, at times, used distinctly, they more often are used interchangeably by the parties. As the document issued by Progressive to Lewis on December 12, 2005 was titled "Rescission of Coverage Notice", Lewis I, 935 A.2 at 37, we will try to bring some consistency, as we tried to do in Lewis 1, by limiting our references, when possible, to "rescind". 2 As the operative set of facts in the present case are the same as those discussed in Lewis I, we draw upon our statement of the facts from Lewis I. "[O]n.November 4, 2005, [Lewis] purchased a Progressive [Specialty Insurance Company (Progressive)] automobile insurance policy from his independent insurance agent and gave the agent a premium check." Lewis I, 935 A.2d at 37. "The Application for Insurance" that Lewis signed on that day "contained an agreement stating, `I affirm that if I make my initial payment by ... check ... , the coverage afforded under this policy is conditioned on payment to the Company by the financial institution.' If the ... check ... is not honored by the financial institution, the Company shall be deemed not to have accepted the payment and this policy shall be void." Id. at 37 n.2 (citation omitted). Lewis acknowledged that, in the ensuing few weeks, he "receive[d] two automobile insurance payment reminders, one in November and one in early December of 2005," the latter of which "informed him that his payment was past due." Id. at 38 n.6. On December 12, 2005, Progressive sent Lewis notice that it had rescinded the insurance coverage on Lewis's 1993 Jeep station wagon, effective November 4, 2005, the day he purchased the insurance policy.' The rescission was based on the refusal of the banking institution, from which Lewis had drawn the initial premium check, to honor the check. On that same date, Progressive notified DOT by electronic transmission that Progressive had terminated Lewis's insurance as of November 4, a "The rescission notice stated, in part, `In accordance with the terms of your policy, which require your payment of premium as consideration for issuance of coverage by this company, all coverage is rescinded and declared VOID as of 12:01 A.M. on the date of policy inception 11/04/05."' Lewis I, 935 A.2d at 37 n.2 (citation omitted). 3 2005. Lewis claims to have not received the December 12, 2005 notice. He, instead, claims that he learned about the rescission of his policy from his insurance agent on December 13, 2005. "Lewis stated that he did not challenge the policy termination" id. at 38, but instead obtained a new policy of insurance. On December 21, 2005,5 DOT sent Lewis a letter about Progressive's "cancellation" of his insurance, asking Lewis to verify his new insurance coverage. (Letter from DOT to Lewis (December 21, 2005) at 1.) The letter advised Lewis that his failure to respond within three weeks might result in a suspension of his vehicle registration. On February 6, 2006, when Lewis failed to respond, DOT mailed Lewis notice of the suspension of his vehicle registration based upon Progressive having "terminated on 11/04/05" Lewis's insurance policy for the vehicle. (Official Notice from DOT to Lewis, February 6, 2006.) "Lewis agreed that DOT's notice also informed him that he had thirty days to take action; however, he did not formally file a complaint [with the Insurance Commissioner, challenging Progressive's rescission of his insurance] until March 10, 2006. When asked why he waited, Lewis responded, `I honestly don't know."' Lewis I, 935 A.2d at 38 (citations omitted). The Insurance Commissioner appointed a hearing officer, who conducted a hearing, and received evidence as to the "timeliness of Lewis's review request" as well as to the "merits of Progressive's policy 'termination."' Lewis I, 935 A.2d at 37-38. The Insurance Commissioner 5 The trial court states that DOT sent this letter on December 12, 2005; however, the record shows that the date was December 21, 2005. (Letter from DOT to Lewis (December 21, 2005) at 1.) 4 dismissed the complaint as untimely. Lewis appealed that decision, and this Court upheld the dismissal of the complaint as untimely. In doing so, we reasoned that: Act 68[6] provides a comprehensive regulatory scheme that includes review of automobile insurance terminations by the Insurance Commissioner. These procedures must be followed, and because Lewis failed to timely avail himself of the administrative remedy provided in section 2008 of Act 68, he is precluded from seeking judicial recourse. Lewis I, 935 A.2d at 40. On June 4, 2007, Lewis filed with the trial court a request for leave to file a nunc pro tunc appeal of his vehicle registration suspension. The trial court permitted Licensee to appeal nunc pro tunc and conducted a hearing on the merits of the appeal. At the hearing, DOT presented certified copies of various documents, including: (1) a computer printout showing Lewis as the owner of the Jeep; (2) a certification that DOT received an electronic transmission from Progressive certifying the cancellation of Lewis's insurance; (3) DOT's December 21, 2005 letter to Lewis; and (4) DOT's February 6, 2006 notice of suspension. Lewis offered only his own testimony. The focus of Lewis's argument before the trial court was that the suspension was improper because Progressive failed to give Lewis proper notice of the termination of his insurance coverage. Lewis contended that, if Progressive had given timely notice of the termination, he could have taken steps to avoid a 6 Article XX of the Insurance Company Law of 1921. Act of May 17, 1921, P.L. 682, added by the Act of June 17, 1998, P.L. 464, as amended, 40 P.S. §§ 991.2001 - 991.2013. "The provisions of Act 68 substantially reenacted the repealed Act of June 5, 1968, P.L. 140, 40 P.S. §§ 1008.1-1008.11 (Act 78); thus, many cases construing Act 78 continue to have precedential effect on cases dealing with Act 68." Lewis I, 935 A.2d at 37 n.3. 5 suspension by obtaining new insurance before his coverage lapsed for thirty-one days.' Lewis acknowledged that his argument in the vehicle registration case was dependent entirely on the appeal in Lewis I: "[t]he insurance matter that's on appeal, until that's resolved, that's really the determination whether or not [DOT] should have suspended this." (Trial Ct. H'rg Trans. (August 27, 2007) at 18.) On that day, the trial court allowed Claimant to appeal the vehicle registration suspension nunc pro tunc. The next day, following the hearing, this Court issued its decision in Lewis L On November 28, 2007, the trial court issued its opinion and order which, relying on Lewis I, dismissed Lewis's appeal because Lewis's Jeep station wagon had been without insurance for more than thirty days, beginning on November 4, 2005. Lewis filed a Notice of Appeal and a Motion for Reconsideration of Order Dated Nov. 28, 2007 (Reconsideration Motion), arguing that "Under [Act 68], retroactive cancellations and rescissions are not allowed...." (Reconsideration Motion 11 11). Lewis also argued that, under Section 2006 of Act 68, 40 P.S. § 991.2006(2), he was entitled to a 15-day cure period from the date of mailing of any cancellation or rescission notices to remit the insurance premium or find other 7 Under Section 1786(d)(2)(i) of the Vehicle Code, DOT shall not suspend the registration of a vehicle if the "registrant proves to the satisfaction of [DOT] that the lapse in financial responsibility coverage was for a period of less than 31 days and that" the vehicle was not operated during that period. 75 Pa. C.S. § 1786(d)(2)(i). 6 insurance. (Reconsideration Motion 11 12.) The trial court entered no subsequent order and the appeal before this Court proceeded.8 Before this Court, Lewis argues that Progressive did not give proper notice of the rescission of his insurance policy, which means that the rescission was ineffective and, thus, that his vehicle was continuously covered by the insurance policy that he applied for on November 4, 2005 but did not pay for. He also argues that, while notices of cancellation are covered under Act 68 and, thus, subject to review by the Insurance Commissioner, notices of rescission are not subject to Act 68 and, thus, are not subject to review by the Insurance Commissioner. (Lewis Br. at 6.) In order to analyze Lewis's arguments, this Court must look to the statutory framework in place for consideration of both insurance cancellations and of registration suspensions. This Court has described this system as being: a parallel, two-part system whereby a request for review of the validity of an insurer's alleged cancellation of a policy is to be directed towards the Insurance Commissioner, and a request for review of DOT's suspension of a vehicle registration, on the grounds of a lack of insurance, is to be directed towards a court of common pleas. Webb v. Department of Transportation, Bureau of Motor Vehicles, 870 A.2d 968, 972 (Pa. Cmwlth. 2005). In refining our discussion of the appropriate means of challenging an insurance cancellation, and a vehicle registration suspension, we have also explained that 8 "Our review is limited to determining whether the trial court committed an error of law or. abused its discretion in reaching its decision." Eckenrode v. Department of Transportation, Bureau of Driver Licensing, 853 A.2d 1141, 1143 n.5 (Pa. Cmwlth. 2004). 7 [a]lthough a challenge to an insurance cancellation may only be brought before the Insurance Commissioner, "a court reviewing a [Department] registration suspension appeal may certainly examine the record before it to determine whether an insured's evidence has overcome the applicable presumption established by [the Department]." Webb, 870 A.2d at 974 (emphasis added). However, "[a]s to an examination, beyond the record on its face, into the validity of an insurer's policy cancellation, ... said examination is properly brought for review to the Insurance Commissioner under Section 1786(d)(5), and not to a trial court." Id. at 974. Deklinski v. Department of Transportation Bureau of Motor Vehicles, 938 A.2d 1191, 1195-96 (Pa. Cmwlth. 2007). The applicable standard in a vehicle registration case is well established: "In a suspension of registration case," such as the present one, "the Department has the initial burden of showing that a registrant's vehicle is registered or is a type of vehicle that must be registered and that the Department received notice that the registrant's financial responsibility coverage was terminated." Fagan v. Department of Transportation, Bureau of Motor Vehicles, 875 A.2d 1195, 11.98 (Pa.Cmwlth.2005) (citing 75 Pa.C.S. § 1786(d)(3)). Statutory authority provides that "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" of such termination. 75 Pa.C.S. § 1377(b)(2) (emphasis added); accord Fagan, 875 A.2d at 1198 ("[t]he Department may satisfy this burden by certifying its receipt of documents or of an electronic transmission from an insurance company stating that a registrant's financial responsibility coverage has been terminated.") If the Department meets its burden, a presumption arises that the registrant lacked the necessary financial responsibility coverage. Fagan, 875 A.2d at 1198. The registrant may rebut this presumption by presenting clear and convincing evidence of record "that financial responsibility was continuously maintained on the vehicle as required by Section 1786(x) 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 8 Section 1786(d)(2)(i-iii)...." Fell v. Department of Transportation, Bureau of Motor Vehicles, 925 A.2d 232, 237-38 (Pa.Cmwlth.2007) (en ban.c) (footnote omitted). Deklinski, 938 A.2d at 1194 (Pa. Cmwlth. 2007). The licensee must meet this burden through clear and convincing evidence. Fell, 925 A.2d at 238. In the present case, we conclude that DOT has met its burden, but that Lewis has not met his burden. Applying the above standard in this case, DOT had the burden of proving that: (1) Lewis's Jeep is a registered vehicle or of a type required to be registered; and (2) DOT received notice of the cancellation of Lewis's automobile insurance from Lewis's insurer. 75 Pa. C.S. § 1786(d)(3). DOT met that burden by presenting a certification that it received an electronic transmission from Progressive informing DOT that the insurance coverage on Lewis's Jeep station wagon had been rescinded. Such evidence creates a presumption that Lewis lacked insurance on the Jeep. Applying the above standard, the burden then switched to Lewis and required him to establish that he either maintained continuous insurance coverage on the Jeep station wagon or that one of the three applicable statutory exceptions applied. Lewis offered no evidence or argument as to the three statutory exceptions,9 but rather 9 These exceptions 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 had lapsed while the owner or registrant was on temporary, (Footnote continued on next page...) 9 focused on the requirement that he had continuously maintained coverage. As noted above, in a vehicle registration case, we may only look at the face of the .documents to determine if there is clear and convincing evidence to rebut the presumption in favor of DOT. Lewis has offered nothing in the record that meets this standard. Under 75 Pa.C.S. § 1786(d), failure of a vehicle owner to maintain insurance coverage on a vehicle for a thirty-day period requires DOT to suspend that registration of the uninsured vehicle. Applying our decision in Lewis 1, the face of the documents in the record indicate that the policy was rescinded as of November 4, 2005, and that Lewis had not secured coverage on the Jeep station wagon until "December 16, 2005, which was 42 days after the effective date of the cancellation and four days after Progressive sent him notice of the cancellation on December 12, 2005." (Trial Court Op. at 3.) Lewis's argument in this appeal is directed at establishing that the he did not receive timely notice of the insurance rescission and, thus, that the rescission was improper. Lewis's evidence and arguments on this point are nothing more than a (continued...) 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)(i-iii). 10 collateral attack on the Lewis I decision and its upholding of Progressive's action as to the November 4, 2005 policy. Each relates to the absence of what he claims was notice that he was required to receive under Act 68. While Lewis does contend -in part of his Appellate Brief that questions of rescission (as opposed to cancellation) do not fall under Act 68 and are, thus, not appropriately brought before the Insurance Commissioner, we note that he does not develop this argument in any manner and that it conflicts with arguments he raised before the trial court and this Court related to the applicability of the 15-day cure period of Section 2006 of Act 68, 40 P.S. § 991.2006(2). Additionally, it appears that a similar argument was made before the Court in Lewis I. Lewis I, 935 A.2d at 38 n.5. Despite this argument in Lewis I, we nonetheless upheld the Insurance Commissioner's denial of Lewis's challenge, thus tacitly rejecting the argument that the issue was not within the Insurance Commissioner's purview. These issues as to what notice was required are issues appropriately raised before the Insurance Commissioner and, had Lewis's challenge in Lewis I been timely filed with the Insurance Commissioner, presumably would have been addressed by the Insurance Commissioner. "The payment of premiums is said to be the very essence of an insurance contract; premium payments are a condition precedent to or at least concurrent with the assuming of any liability by an insurance company." Kelly v. Allstate Insurance Company, 138 F. Supp. 657, 662 (E.D. Pa. 2001). As discussed in Lewis I, Lewis did receive notice in November 2005 which indicated that his premium payment for the policy was past due. Lewis had just obtained the new policy of insurance on November 4 and, thus, the only payment he had made so far was the initial payment for this first month. Notice of past-due payment clearly indicated that there was a 11 problem with this first, and only, payment. Thus, he had the opportunity to inquire and correct this problem within thirty days of the date he applied for the policy. He did not do so.to What we are left with is our decision in Lewis I, which upholds the rescission effective November 4, 2005. Lewis's arguments would require us to conduct "an examination, beyond the record on its face, into the validity of an insurer's policy cancellation", which, as noted above, is not appropriately addressed in vehicle registration suspension cases. Deklinski, 938 A.2d at 1196." As such, we must find that Lewis failed to meet his burden in this vehicle registration suspension appeal. Accordingly, we conclude that the trial court appropriately dismissed Lewis's appeal. 10 We disagree that any additional prior notice was required, and Lewis has not sufficiently developed an argument to lead us to conclude otherwise. By its terms, an insurance policy rescission is effective as of the date of the application - it is not possible to give notice of a cancellation of insurance policy prior to the time for which the policy has actually been applied. " Lewis raises a total of eight issues before this court, many of which seem tangential, at best, to the vehicle registration suspension issue presently before us and the rest which, in large measure, are essentially restatements of, or entirely dependent on the notice argument. Among the issues are allegations of lack of due process, largely arising from his appeal before the Insurance Commissioner being dismissed for being untimely - issues that were addressed by our Lewis I decision. Petitioner also raises allegations that suggest collusion between the Insurance Department and DOT, which seem to arise from DOT staying the vehicle registration suspension during the first ninety days of the Lewis I appeal being before the Insurance Commissioner. Another part of these arguments relate to DOT reinstating the suspension, after this ninety day stay period, but prior to the Insurance Commissioner's decision in Lewis 1. DOT notes that part of its reason for not continuing the stay past the initial ninety days was because the appeal was brought well after the thirty-day period prescribed by Section 2008 of Act 68, 40 P.S. § 991.2008. These arguments by Lewis presuppose that Progressive's action was improper, a presupposition that is eviscerated by the Insurance Commissioner's and this Court's decisions in Lewis L As the Insurance Commissioner and this Court, in Lewis I, ultimately denied the appeal based on Lewis's failure to comply with this thirty-day appeal period limitation, this denial upheld Progressive's rescinding of the policy. 12 For these reasons, we affirm the trial court's order. Z. e. RE A E COHN JUB IRER, Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thom E. Lewis, ; Appellant V. No. 617 C.D. 2008 Pennsylvania Department of Transportation ; ORDER NOW, February 17, 2009, the order of the Court of Common Pleas of Cumberland County, dated November 28, 2007, is hereby affirmed. RE AE COHN JUB IRER, Judge C i d from the Record FEB 1 7 2009 ,, 77- IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thom E. Lewis, Appellant V. No. 617 C.D. 2008 Submitted: December 10, 2008 Pennsylvania Department of Transportation BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE FRIEDMAN FILED: February 17, 2009 I respectfully dissent. The majority concludes that the "Rescission of Coverage Notice" sent by Progressive Specialty Insurance Company (Progressive) to Thom E. Lewis (Lewis) is not invalid on its face; thus, Lewis failed to rebut the presumption that the Pennsylvania Department of Transportation (DOT) created before the Court of Common Pleas of Cumberland County (trial court) that Lewis lacked insurance coverage for his vehicle as of November 4, 2005.' However, I ' In a registration suspension appeal, DOT may create a presumption that a vehicle lacked the requisite insurance coverage by presenting evidence that DOT received notice of a lapse, termination or cancellation of the vehicle's insurance coverage. Section 1786(d)(3)(ii) of the Vehicle Code, 75 Pa. C.S. §1786(d)(3)(ii). However, "[t]his presumption may be overcome by producing clear and convincing evidence that the vehicle was insured at all relevant times." Id. submit that, in reaching this conclusion, the majority does not adequately consider two of the arguments made by Lewis. First, Lewis argues that there is an important distinction between a retroactive policy "rescission" and a prospective policy "cancellation" and that Article XX of The Insurance Company Law of 1921 (Act 68)2 does not govern retroactive policy rescissions. I agree. In Klopp v. Keystone Insurance Companies, 528 Pa. 1, 595 A.2d 1 (1991), our supreme court held that the language in section 2002(c)(3) of Act 683 means that insurers may rescind insurance policies in effect less than sixty days free from the statutory constraints. Thus, because Progressive rescinded a policy in effect less than sixty days, Act 68 and its case law are not applicable. Second, Lewis argues that DOT may not certify the receipt of notice from an insurance company under section 1377(b)(1) of the Vehicle Code' to avoid the hearsay rule unless the company is complying with its obligation to notify DOT 2 Act of May 17, 1921, P.L. 682, added by section 1 of the Act of June 17, 1998, P.L. 464, 40 P.S. §§991.2001-991.2013. 3 Section 2002(c)(3) of Act 68 states that "[n]othing in [Act 68] shall apply ... [t]o any policy of automobile insurance which has been in effect less than sixty (60) days, unless it is a renewal policy...." 40 P.S. §991.2002(c)(3). a 75 Pa. C.S. §1377(b)(1). Section 1377(b)(1) states that if DOT receives information from an insurance company that is "complying with its obligation" under section 1786(e)(3) of the Vehicle Code, DOT may certify that it has received the information, and DOT's certification shall be prima facie proof of the facts contained therein. RSF-2- under section 1786(e)(3) of the Vehicle Code,5 and, in this case, Progressive was not complying with section 1786(e)(3) when it notified DOT. I agree. Thus, the trial court erred in admitting Progressive's notice through DOT's certification, and, absent the notice, DOT failed to create the presumption that Lewis lacked insurance on his vehicle as of November 4, 2005. 1. Facts On November 4, 20055 Lewis purchased an automobile insurance policy from Progressive through an independent insurance agent. Lewis gave the agent a check for the initial monthly premium, but Lewis's bank did not honor the check. Later in November, Progressive sent Lewis a payment reminder for the December premium. On December 5, 2005, Progressive sent Lewis another payment reminder, indicating that the December premium was past due.' On December 8, 2005, Lewis's insurance agent informed Progressive that Lewis's bank had not honored the initial premium payment.' Lewis v. Insurance Department, 935 A.2d 36 (Pa. Cmwlth. 2007) (Lewis I).' 5 75 Pa. C.S. §1786(e)(3). Section 1786(e)(3) requires that an insurer notify DOT of a cancellation or termination of insurance within ten days of the effective date of the cancellation or termination. 6 Lewis testified before the trial court that he was to pay monthly premiums. (8/27/2007 hearing, N.T. at 13.) The December premium would have been due on December 4, 2005, one month after the initial premium payment. ' The majority misstates these facts. The majority incorrectly states that Lewis received notice in November 2005 that his initial premium was past due. (Majority op. at 11-12.) However, the November 2005 notice was not a past due notice; the December 5, 2005, notice was the past due notice. Moreover, because Progressive did not know until December 8, 2005, that Lewis's bank did not honor his initial check, Progressive did not send the December 5, 2005, notice in reference to (Footnote continued on next page...) RSF-3- On December 12, 2005, Progressive issued a "Rescission of Coverage Notice" to Lewis, rescinding his automobile insurance policy for nonpayment of the initial premium. The notice stated that "all coverage is rescinded and declared VOID as of 12:01 A.M. on the date of policy inception 11/84/05." Lewis I, 935 A.2d 36, 37 n.2 (emphasis added). Lewis first learned that Progressive had voided the policy on December 13, 2005, when Lewis went to his insurance agent's office to pay the December premium. The agent instructed Lewis to purchase another policy, which he did on December 16, 2005. Lewis L Progressive sent DOT a notice regarding Progressive's action on Lewis's policy. DOT received the notice on December 21, 2005. (DOT's 12/29/2006 letter to Lewis.) That same day, DOT mailed Lewis a letter informing Lewis that DOT had (continued...) Lewis's initial premium payment. Lewis v. Insurance Department, 935 A.2d 36 (Pa. Cmwlth. 2007). 8 I note that DOT asked the trial court to take judicial notice of Lewis T (11/26/2007 hearing, N.T. at 7.) However, a court may not take judicial notice of the record in another case, and none of the evidence presented in Lewis I was submitted here. 8 Standard Pennsylvania Practice 2d, §49:91 (2007). Thus, I question the majority's reliance on facts that are not in evidence here. I point out that this appeal is not a continuation of the prior proceeding before the Insurance Commissioner and this court. This appeal involves a different jurisdiction, a different statute and a different burden of proof. Indeed, the trial court's scope of review in this case was limited to determining: (1) whether Lewis's vehicle needed to be registered; and (2) whether DOT received notice of a lapse, termination or cancellation of insurance coverage as required by law for the vehicle or the owner was requested to provide proof of insurance and failed to do so. Section 1786(d)(3) of the Vehicle Code, 75 Pa. C.S. § 1786(d)(3). RSF-4- received notice that Progressive "cancelled" his automobile insurance. (S.R.R. at 6b.) The letter asked Lewis to provide documentation showing that he obtained a new insurance policy no more than thirty days after the "cancellation." (S.R.R. at 7b.) Lewis responded by sending DOT documentation of his new insurance policy. Lewis L However, because Progressive retroactively "cancelled" Lewis's policy as of November 4, 2005, and Lewis did not obtain new coverage until December 16, 2005, DOT determined that Lewis's lapse in coverage was more than thirty days. On February 6, 2006, DOT sent Lewis a letter suspending Lewis's vehicle registration for three months pursuant to section 1786(d) of the Vehicle Code.' (S.R.R. at 2b.) DOT's letter informed Lewis that he had the right to appeal the suspension to the court of common pleas within thirty days of the letter's mailing date. Id. On March 10, 2006, Lewis requested that the Insurance Commissioner review Progressive's rescission of his insurance policy pursuant to Act 68.10 The Insurance Commissioner believed that Lewis's request acted to stay DOT's suspension of Lewis's vehicle registration." Thus, on March 20, 2006, an Insurance ' 75 Pa. C.S. §1786(d). 10 Section 2008 of Act 68 states that, within thirty days of receiving a notice of cancellation or a notice of intention not to renew a policy, an insured may request that the Insurance Commissioner review the action. 40 P.S. §991.2008. 11 Section 1786(d)(5) of the Vehicle Code states, in relevant part: Proof that a timely request has been made to the Insurance Commissioner for ... review [of a cancellation of insurance] shall act (Footnote continued on next page...) RSF - S - Investigator sent an email to DOT, stating, "Please grant a Delay of Suspension for ... [Lewis because] Lewis has requested a hearing with the Pa Insurance Department." (S.R.R. at l lb.) As a result, DOT delayed the suspension of Lews's vehicle registration until June 20, 2006.i2 (S.R.R. at 4b, 16b.) DOT did not give Lewis notice of its amended decision; thus, DOT did not give Lewis notice of his appeal rights with respect to the amended decision. On. November 13, 2006, the Insurance Commissioner dismissed Lewis's request for review as untimely because it was made more than thirty days from the date Lewis presumably received the notice of rescission. Lewis then petitioned this court for review. On March 31, 2007, the registration on Lewis's vehicle expired, and, pursuant to a DOT policy, DOT began giving Lewis credit towards the three-month suspension." DOT did not notify Lewis. On June 4, 2007, Lewis appealed nuns pro (continued...) as a supersedeas, staying the suspension of registration ... pending .. . a final order [under section 2009 of Act 68]. 75 Pa. C.S. §1786(d)(5). 12 DOT admits that it erred in reinstating the suspension on June 20, 2006, stating that it should not have reinstated Lewis's suspension until the Insurance Commissioner entered an order in Lewis's pending appeal. (See Lewis's brief at 12, citing DOT's answer to Lewis's request for a supersedeas.) 13 DOT states in its brief that, where an owner has not surrendered the vehicle plate and registration card as required by law, DOT's policy is to begin crediting the service of a vehicle registration suspension when the registration has expired. (DOT's brief at 4 n.5.) RSF-6- tunc to the trial court from DOT's suspension of his vehicle registration." (S.R.R. at 16b-17b.) On June 30, 2007, the three-month suspension ended, and Lewis became eligible to have his vehicle registration restored.15 (S.R.R. at 4b, 16b.) On August 27, 2007, the trial court issued an order granting Lewis a supersedeas and allowing him to proceed with his appeal nunc pro tunc. (Trial ct. op. at l.) The trial court allowed the nunc pro tunc appeal because DOT failed to give Lewis notice of the delay in the suspension following Lewis's request for review by the Insurance Commissioner. (8/27/2007 hearing, N.T. at 15.) In other words, the trial court allowed the nunc pro tunc appeal because DOT failed to give Lewis notice of his appeal rights with respect to DOT's amended decision, a breakdown in the administrative process. See Baum v. Department of Transportation, Bureau of Driver Licensing, 949 A.2d 345 (Pa. Cmwlth. 2008) (stating that a nunc pro tunc appeal is permitted where there has been an administrative breakdown). On August 28, 2007, this court dismissed Lewis's petition for review of the Insurance Commissioner's decision, holding that Lewis failed to timely request review of Progressive's cancellation of insurance. Lewis L On November 28, 2007, the trial court dismissed Lewis's appeal from DOT's vehicle registration suspension la The filing of an appeal with the trial court acts as a supersedeas, and DOT cannot impose a suspension until the trial court reaches a determination. 75 Pa. C.S. § 1786(d)(3). is Whenever DOT suspends the registration of a vehicle, DOT shall restore the registration when the vehicle owner furnishes proof of financial responsibility and submits an application for registration to DOT with the restoration fee. Section 1786(d)(2) of the Vehicle Code, 75 Pa. C.S. §1786(d)(2). The restoration fee is $50.00. (8/27/2007 hearing, N.T. at 6.) RSF-7- because Lewis, having received notice of the insurance policy cancellation thirty- eight days after its effective date, could not prove that his policy lapsed for no more than thirty days. Lewis now appeals to this court. II. Rescission and Act 68 Lewis asks this court to recognize the distinction between a retroactive policy "rescission" and a prospective policy "cancellation," arguing that Act 68 does not govern policy rescissions. 16 The majority mentions this argument, (majority op. at 7, 11), but states that Lewis does not develop the argument, that the argument conflicts with the argument he made in the Act 68 proceedings and that this court tacitly rejected the argument in Lewis I, (majority op. at 11). Thus, the majority declines to address the applicability of Act 68. 16 Our supreme court has explained the difference between a policy rescission and policy cancellation as follows. "Rescission is a retroactive remedy [under the common law], by which the rights and obligations of all parties under the policy are abrogated, as if the policy had never been issued. Cancellation is a prospective remedy; it terminates the rights and obligations of the parties in the future." Erie Insurance Exchange v. Lake, 543 Pa. 363, 367, 671 A.2d 681, 683 (1996). I note that Lewis's insurance policy was an executory contract, an exchange of promises. Progressive provided Lewis with an application, offering to provide Lewis insurance coverage in exchange for Lewis's timely payment of the required premiums. Part of the application set forth a condition, stating that, if Lewis paid the initial premium by check and the check was not honored, the policy would be void. Lewis accepted the offer by signing the application, and Lewis provided consideration by promising to make timely payment of the initial premium. However, when Lewis failed to keep that promise, the condition was not met, there was no longer any consideration, and the contract became void when Progressive exercised its right to rescind the policy. RSF-8- However, all of the case law relied upon by the majority to reach its holding is Act 68 case law examining the limits of trial court review in a suspension appeal based on the Insurance Commissioner's role under Act 68. (See majority op. at 8, citing Deklinksi v. Department of Transportation, Bureau of Motor Vehicles, 938 A.2d 1191 (Pa. Cmwlth. 2007), appeal denied, Pa. , 959 A.2d 321 (2008)). If Lewis is correct that Act 68 does not apply to policy rescissions, then the majority either must explain its reliance on Act 68 case law or provide another basis for its holding. Thus, despite the shortcomings in Lewis's argument, I submit that, as a preliminary matter, this court must address whether Act 68, and its case law, applies to the policy rescission in this case. A. Act 68 Section 2002(c)(3) of Act 68 states that "[n]othing in [Act 68] shall apply ... [t]o any policy of automobile insurance which has been in effect less than sixty (60) days, unless it is a renewal policy...."17 40 P.S. §991.2002(c)(3). Our supreme court has held that this language allows an insurer to exercise the common law right of rescission within the first sixty days of an insurance policy free from statutory constraints. Klopp. Here, Progressive rescinded Lewis's policy on December 12, 2005, less than sixty days after November 4, 2005, the date when Progressive and Lewis entered 17 I note that the Unfair Insurance Practices Act (UIPA), Act of July 22, 1974, P.L. 589, as amended, 40 P. S. §§1171.1-1171.15, also does not apply to any insurance policy that has been in effect less than sixty days, unless it is a renewal policy. Section 5(c)(3) of the UIPA, 40 P.S. § 1171.5(c)(3). RSF-9- into an agreement for insurance coverage. Thus, I would conclude that neither Act 68 nor Act 68 case law apply and that Lewis had no right or duty to request that the Insurance Commissioner review the policy rescission under Act 68 or under section 1786(d)(5) of the Vehicle Code. 18 B. Vehicle Code Section 1786(d)(5) of the Vehicle Code states that "[a]n alleged lapse, cancellation or termination of a policy of insurance by an insurer may only be challenged by requesting review by the Insurance Commissioner pursuant to [Act 68]." 75 Pa. C.S. § 1786(d)(5). I point out that section 1786(d)(5) refers to the cancellation, termination or lapse of an insurance policy and does not refer to a rescission. The fact that the Legislature used the three terms in the disjunctive indicates that the Legislature recognized a distinction between the legal concepts and did not intend that the terms be used interchangeably.19 See section 1903(a) of the Statutory Construction Act of 18 Lewis could have challenged the rescission only in the courts of common pleas. See Metropolitan Property and Liability Insurance Company v. Insurance Commissioner, 517 Pa. 218, 535 A.2d 588 (1987) (stating that, absent a statutory remedy, an insured would be required to proceed to common pleas court to contest the rescission of an insurance contract). Lewis apparently has not challenged Progressive's December 12, 2005, rescission in the courts of common pleas; however, the four-year statute of limitations for an action upon a contract has not yet expired. Section 5525(a)(8) of the Judicial Code, 42 Pa. C.S. §5525(a)(8). 19 A "cancellation" is the ending of a contract prior to its expiration date for a breach of contract. Restatement of Contracts 2d, vol. 2, §283 cmt. a (1981); Black's Law Dictionary 206 (6 h ed. 1990). A "termination" is the ending of a contract other than for a breach, e.g., for the expiration of the policy period. Restatement of Contracts 2d, vol. 2, §283 cmt. a (1981); Black's Law Dictionary 1471 (6th ed. 1990). A "lapse" is the ending of a policy for failure to pay a (Footnote continued on next page...) RSF-10- 19721 1 Pa. C.S. § 1903(a) (stating that words shall be construed according to rules of grammar and that technical words shall be construed according to their peculiar and appropriate meaning or definition); see also section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1921(a) (stating that every statute shall be construed, if possible, to give effect to all its provisions). Because a rescission is the ending of a contract retroactively, it does not fall within the meaning of any of these terms. Thus, section 1786(d)(5) does not make Act 68 applicable to retroactive policy rescissions.20 III. DOT's Certification Lewis also argues that the trial court erred in admitting DOT's certification of the notice DOT received from Progressive as prima facie evidence that Lewis lacked insurance as of November 4, 2005. Lewis maintains that, under section 1377(b)(1) of the Vehicle Code, DOT may not certify information it receives electronically from an insurance company unless the insurance company is providing the information in compliance with section 1786(e)(3) of the Vehicle Code. Lewis asserts that, because the information Progressive sent to DOT was untimely under section 1786(e)(3), DOT could not certify its receipt of that information. (See Lewis's brief at 20-21.) (continued...) premium, with the policy remaining in force for a statutory grace period. Black's Law Dictionary 880-81 (6' ed. 1990). 20 If we were to interpret this provision otherwise to mean that an insured must challenge the rescission of an insurance policy in effect less than sixty days pursuant to Act 68, then the provision would negate section 2002(c)(3) of Act 68. RSF-11- Again, the majority does not address this issue. The majority simply states that DOT met its burden of proof by presenting the certification. (Majority op. at 9.) Yet, if DOT's certification of Progressive's notice were improper, then any reference to the notice in the record would be hearsay, which means that DOT would have failed to create the presumption that Lewis lacked insurance on his vehicle as of November 4, 2005. Thus, I submit that this court should address the matter.21 Section 1377(b)(1) of the Vehicle Code states that, in a suspension appeal, if DOT received information by electronic transmission from an insurer who is "complying with its obligation" under section 1786(e)(3) to notify DOT of a policy cancellation or termination, DOT may certify that it has received the information, and such certification shall be prima facie proof of the facts contained in the electronic transmission. 75 Pa. C.S. §1377(b)(1). This court has held that section 1377(b)(1) sets forth an exception to the hearsay rule. England v. Department of Transportation, Bureau of Driver Licensing, 687 A.2d 425 (Pa. Cmwlth. 1997). However, it is clear that the exception extends only to information that an insurance company sent to DOT in compliance with its obligation under section 1786(e)(3). Section 1786(e)(3) states that, if an insurer has "canceled or terminated" a contract of motor vehicle liability insurance, the insurer shall notify DOT "not later than ten days following the effective date of the cancellation or termination." 75 Pa. 21 I note that Lewis objected to admission of the certification. (11/26/2007 hearing, N.T. at 3-4.) Lewis also objected that a timeline presented by DOT failed to include the fact that Progressive's notice to DOT was untimely. (11/26/2007 hearing, N.T. at 11-13.) RSF- 12- C.S. § 1786(e)(3). Thus, if an insurance company notifies DOT of the cancellation or termination of an insurance policy not later than ten days from the effective date, DOT may certify its receipt of that notice, and the certification shall be prima facie proof that the insurer cancelled or terminated the policy. Here, Progressive's December 21, 2005, electronic notice to DOT was later than ten days from the November 4, 2005, effective date and, thus, was not compliant with section 1786(e)(3). As a result, DOT could not avoid the hearsay rule by certifying that it received the notice. This means that the facts in Progressive's electronic transmission could not constitute prima facie proof that Lewis lacked insurance as of November 4, 2005. Because DOT failed to meet its initial burden, the trial court erred in dismissing Lewis's appeal.22 22 In this case, the parties stipulated that Progressive's notice to DOT failed to comply with the ten-day requirement in section 1786(e)(3). (Lewis's Amended Appeal, 18, DOT's 12/29, 2006 letter to Lewis.) Our supreme court has stated that parties may limit the issues that a reviewing court may address by stipulation. Northbrook Life Insurance Company v. Commonwealth, _ Pa. 949 A.2d 333 (2008). Were it not for the parties' stipulation that section 1786(e)(3) applies here, I would hold that, because section 1786(e)(3) applies to cancellations and terminations, and not rescissions, section 1786(e)(3) does not apply and, thus, did not obligate Progressive to notify DOT of the rescission of Lewis's policy. We presume that, in enacting section 1786(e)(3), the Legislature did not intend a result that would be impossible of execution. Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1922(1). Here, it was impossible for Progressive to notify DOT of the December 12, 2005, policy rescission within ten days of November 4, 2005, because the rescission had not even occurred by then. I recognize that interpreting section 1786(e)(3) to mean that an insurance company has no obligation to notify DOT of a rescission may defeat the goal of keeping uninsured vehicles off the roads. However, the lack of statutory authority governing insurance policy rescissions is a problem for the Legislature to resolve, not the courts. RSF-13- CAF T?`- P :?7my Accordingly, I would reverse. 2009 OCT -1 P 3'. 50 ROCHELLE S. FRIEDMAN, Judge RSF - 14 - • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Thom E. Lewis vs. Department of Transportation, Pennsylvania vim- e~3~ i C : ,.~ I ~u17 C',J ~GSs The documents comprising the record have been numbered from No.l to 88, and attached • hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4/24/2008 . Curtis R. Lo ro honotary ~' Regina Lebo :.,~ -°a C.:~ -~ An additional copy of this certificate is enclosed. Please sign and date copy, thereb'' acknowledging receipt of this record. ~" Signature & Title Date n Q ..~ • -.~ • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) SUPPLEMENTAL RECORD To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Thom E. Lewis vs. Department of Transportation Pennsylvania 07-3301 Civil 617 CD 2008 • The documents comprising the record have been numbered from No.88 to 104 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is OS/ 06 /2008 Curtis .Long, Pro tary Regina Lebo c,'-, rs ~. _;. '~~ ,-, ~,, °. _ ., ._W'~ .` An additional copy of this certificate is enclosed. Please sign and date copy, therel acknowledging receipt of this record. `' Signature & Title Date •