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HomeMy WebLinkAbout00-05090File Copy ? y e Commonwealth Court of Pennsylvania Charles R. Hostutler Deputy Prothonotary/Chief Clerk TO: RE: Hawbaker, et al v. DOT No.21 CD 2001 P.O. Box 11730 March 22, 2001 xarrisbom. PA 17109 717-255-1650 Trial CourUAgency Dkt. Number: 2000-5090 Civil Term Trial Court/Agency Name: C r?arf{ County Court of Common Pleas t Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Trial Court Record February 20, 2001 1 Date of Remand of Record: Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed copy to the Prothonotary Office or the Chief Clerk's office. Of" `?p Commonwdalth Court Filing Office Date 00 .20 72 W -1 C Commonwealth Court of Pennsylvania Charles R. Hostutler DeputyProthonotary/Chief Clerk March 22, 2001 Notice of Discontinuance of Action RE: Hawbaker, et al v. DOT Appeal of: Type of Action: Notice of Appeal No. 21 CD 2001 Cumberland County Court of Common Pleas Agency Docket Number: 2000-5090 Civil Term E#efopy P.O. Box 11730 Hartisb=. PA 17108 717255-1650 The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Harold Cramer, Esq. Walter Hawbaker Timothy Peter Wile, Esq. Certified from the Record MAR 2 1 2001 Party Name Party Type Bureau of Motor Vehicles Appellant Walter W. Hawbaker Appellee Bureau of Motor Vehicles Appellant and Order Exit 0 .1 11 1*1 CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 19311 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: WALTER W. HAWBAKER and JENNIFER H. HAWBAKER vs COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES 00-5090 CIVIL TERM 21 CD 2001 The documents comprising the record have been numbered from No. 1 to 36 , 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 2 -16 - 01 Curtis R. Long, Prothonotary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please sign and date acknowledging receipt of this record. Date Signature & Title L101 0 Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLANDD in the Commonwealth of Pennsylvania 21 CD 2001 to No. 00-5090 CIVIL Term, 19 is contained the following: COPY OF COMPLETE APPEARAJCE DOCKET ENTRY WALTER W. HAWBAKER and JENNIFER H. HAWBAKER VS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES SEE ATTACHED CERTIFIED DOCKET ENTRIES Commonwealth of Pennsylvania County of Cumberland ss: 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 Walter W. & Jennifer H. Hawbaker Plaintiff, and Comm. of PA. Dent, of Transportation. Burt-au of Motor Vebic le Defendant , as the same remains of record before the said Court at No. 00-5090 of C1i vi l Term, A.D. 19-. In TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 16th day of Fphrliar)z A. D., 2001-. Pro hon tar I George E. Hoffer p sident Judge of the nth ' 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 as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the a oAce 4 it Alident Judge r4r Commonwealth of Pennsylvania County of Cumberland ss: I Curtis R. Long Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable George E. Hoffer, P. J. 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 16th day of FBb;,Ik = A. D. ROU -. l Prothonotary m 0 l4 d w a -n a N O ? B N s o _ ? O X l?7 v [+7 O n 0 z d rv y e N z 0 3 ..j PYS510 Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry 2000 05090 HAWBAKER WALTER ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Reft?rence No..: Filed........: 7/20/2000 Cave Type.....: APPEAL - VEHICLE REG Time...... 9:39 .fudgment.... . 00 Execution Date 0/00/0000 Jutkle Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000. -- Case Comments ------------- Higher Crt 1.: 21 CD 2001 Higher Crt 2.: General Index Attorney Info HAWBAKER WALTER W APPELLANT PRO SE 20 WEST SPRINGVILLE ROAD ROTT,TNG SPRINGS PA 17007 HAWBAKER JENNIFER H APPELLANT PRO SE 20 WEST SPRINGVILLE ROAD ROILING SPRINGS PA 17007 PENNSYLVANIA COMMONWEALTH OF APPELLEE DF.PARMTNE OF TRANSPORTATION RIIREAU OF MOTOR VEHICLES HARRISBURG PA 17104 2516 .k****************************************************************************** * Date Entries PACE NJ. - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 1 -4 7/20/2000 PETITION FOR APPEAL AND SUPERSEDEAS ------- -- - -------------------- - -- - -- -- 5 8/01/2000 - -- ------------ - - -- - - ORDER - DATED 7/31/00 - IN RE PETITION FOR APPEAL AND SUPERSEDEAS - HEARING ON 9/29/00 AT 10:15 AM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA -: BY THE COURT EDWARD E GUIDO J COPIES MAILED 8/2/00 - 6 9/28/2000 ------------------------------------------------------------------- ORDER OF COURT DATED 9/27/00 - HEARING FOR 9/20/00;IS CONTINUED UNTIL 12/4/00 AT 11 AM IN COURTROOM 5 - EDWARD E GUIDO J COPIES MAILED 9/28/00 ------------- - - - -- -- -- -- 7 12/06/2000 ---------------------------------- -- -- - - - - - ORDER OF COURT DATED 12/4/00 - SINCE INSURANCE CANCELLATION IS BEING CHALLENGED - DEPT OF TRANSPORTATION IS PREMATURE - THE APPEAL IS SUSTAINED AND DEPT'S ACTION IN SUSPENDING APPELLANTS' RETGISTRATIONIS REVERSED - EDWARD E GUIDO J ------------------------------------------ -- - - - - 8 1/03/2001. - - - ----------- --- ORDER OF COURT - DATED 1/2/01 - APPELLANT TS DIRECTED TO FILE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL WITHIN FOURTEEN DAYS OF TODAYS DATE IN ACCORDANCE WITH RULE OF APPELLATE PROCEDURE 1925 B - BY THE COURT EDWARD E GUIDO J COPIES MAILED 1/3/01 -------------------- - - 9 - 12 I/03/2001 -- - ------------------------------------------- NOTICE OF APPEAL - NOTICE IS GIVEN THAT THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTION BUREAU OF DRIVER LICENSING HEREBY APPEALS TO THE COMMONWEALTH COURT OF PENNSYLVANIA FROM THE ORDER THAT WAS FILED ON 12/5/00 - BY TIMOTHY P WILE ESQ ----------- - - -- 13 - 14 1/09/2001 -- - - ------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 21 CD 2001 ------------------------------------------ 15 - 18 1/16/2001 -------------------------- STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY TIMOTHY P WILE FOR APPELLANT ---------------------------------- - 19 - 35 2/13/2001 ------------------------- TRANSCRIPT FILED FOR 12-04-00 IN CR4 BEFORE J GUIDO - - - - - - - - - - - - - - LAST ENTRY - - - - - .- - - - - - - - - 36 *********** **********************#**************************************** * Escrow Information Pmts/Adj End Bal * Foes & Debits B e? Bal ************ ** * * * ** *********** * ** * ** * *** ************************ #***** **#** * * APPEAL VEH REG 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 PYS510 Cumbe land County Prothonotary' s Office Page 2 Civil Case Inquiry ,, 2000-05090 HAWBAKER WALTER ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: 7/20/2000 ("ISO Ty e.....: APPEAL - VEHICLE REG J d Time...... 9:39 u gmen . .00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 - -- ------- Case Comments ----------- -- Higher Crt 1.: -------------- ---------- Higher Crt 2.: ------ 75.50 75.50 - .00 * End of Case Information **************************************************** **************************** TRUE COPY FROM RECORD In Testimony whereof, t here unto set my hw and ! of saitl Co at Careers, Pa rhi o, v f 0 WALTER W. HAWBAKER and JENNIFER H. HAWBAKER, Appellants, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Appellee 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 2000- 409v CIVIL TERM CIVIL ACTION - LAW PETITION FOR APPEAL AND SUPERSEDEAS The appellants in the above-captioned matter respectfully represent as follows: 1. The appellants, Walter W. Hawbaker and Jennifer H. Hawbaker, are adult individuals residing at 20 West Springville Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 2. The appellee is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles (hereinafter: "PennDOT"), whose offices are located at the Riverfront Office Center, Third Floor, Harrisburg, Dauphin County, Pennsylvania 17104-2516. 3. By notices dated June 23, 2000 and July 5, 2000, PennDOT informed Appellants that the registration privilege for their vehicle was being suspended for three months effective July 28, 2000, because of an alleged lapse in their insurance coverage for the vehicle. Copies of these notices are attached hereto, incorporated by reference and marked as Exhibits "A" and "B". 4. PennDOT's proposed suspension of Appellants' registration privilege is contrary to law, violates due process and is unsupported by evidence, in that : a. Appellants' insurance coverage was improperly canceled by their insurance carrier, Progressive Insurance Company, without proper notice and without Appellants' knowledge. /' b. Appellants have appealed said cancellation to the Pennsylvania Department of Insurance, which appeal remains pending. 5. Subsequent to when they learned of the cancellation of their automobile insurance by Progressive Insurance Company, Appellants obtained and continue to maintain insurance through a different company. WHEREFORE, Appellants pray that this Court stay the suspension pending a final decision in this matter, grant her appeal and reverse the suspension. Date: Car/ Date: -7 -1 ? - v U Respectfully submitted, Walter W. Hawbaker Appellant Pro Se 20 W. Springville Road Boiling Springs, PA 17007 (717) 245-9008 r' ennife H. Hawbaker Appellant Pro Se 20 W. Springville Road Boiling Springs, PA 17007 (717) 245-9008 We verify that the statements made in this Petition are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 P.S. Section 4904, relating to unsworn falsification to authorities. Walter W. Hawbaker ennifer If. Hawbaker Z C MMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES PO BOX 68674 HARRISBURG, PA 17106-8674 OFFICIAL NOTICE MAIL DATE: 06123/00 Information (7:00 AM to 9.00 PM) WALTER W & JENNIFER H HAWBAKER 3101 SPRING RD CARLISLE, PA 17013 Dear Motorist: You were recently reques covering the operation of VIN NO: 1FABP52U91 a result of this Bureau I covering the vehicle was indicated a lapse of cove Bureau of Motor ing vehicle: MAI TITLE: 4186819 d by PROGRE Aa 04/13/00. YPa6 not oerntitC Pennsylvania 8110-932-4600 Out of State 717-391-6190 TDD Pennsylvania 80022&0676 TDD Out of State 717-391-6191 to provide proof UD, BODY TYP; NO: BVM400& was responsibility (insurance) formation was requested as CO that the insurance policy w information you provided e Code. As a result, the vehicle registra#...... ilege mil 5e suspendi w..:three prgrifl 3 i ffective 07/28/t10 at 12:01 A.M. as Section 1786 (D)'af #t a ?elgel pde: is': llriaE:;ordeFt f="":". lion. You may obtain authorized by susp?en reconsideration of this order by'suriifGn a'rsjy'oi your insuranee;"eDli3`rca3ion card, the declaration page of your insurance policy, a valid binder of fnpur(iA , or an application for insure rip :Ya the Pennsylvania Auto Insurance Plan as evidence that the described mot or'velre[e':.was continuously coveretIylia6ility insurance. If there was a lapse in insurance coverage, you must provide this $urrau:;tif..onf_of,iasuranoe indicating an effective date of coverage of less than 31 days from 04113100, and also provfdea'nitariz"eA affidavit stating that your vesicle was not operated during this time. It is necessary for you to provide copies of the insurance documents and return them with this notification. A self addressed label is enclosed for your convenience. Please note that original documents wily not be returned This is a final order of suspension and unless you receive notice from this Department that reconsideration was granted, you will be required to return your current registration plate and card. Additionally, credit toward serving the suspension will not begin until the registration plate is received by the Bureau. You will be required to pay a restoration fee in the amount of $50.00, to the Department in accordance with Section 1960 of the Vehicle Code. Please see the enclosed application for additional restoration fee information. We have enclosed a self-addressed envelope for use when correspanding and a mailing label to assist with the return of your registration plate and card. You have the right to appeal this suspension to the Court of Common Pleas of the county of your residence within thirty (30) days of the date of this notice. Sending a copy to this Department of a timely, filed appeal will stay the Department's action pending a final decision by the court. The copy must be sent by certified mail to. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, OFFICE OF CHIEF COUNSEL, THIRD FLOOR, RIVERFRONT OFFICE CENTER, HARRISBURG, PA 171042516. rXJ?/B/T ff " C[r'MMONIVEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES PO BOX 68674 BARRISBURG, PA 17106.8674 ADDITIONAL NOTICE MAIL DATE: 07105100 WALTER W & JENNIFER HAWBAKER 20 W SPRINGVILLE BOILING SPGS, PA Dear Motorist: You were recently reques covering the operation of ViN NO: IFABP52LT911 a result of this Bureau be covering the vehicle was 1 indicated a lapse of cover RD 17007 Information (7.00 AM to 9:00 PM) Pennsylvania 800-932-4600 Out of State 717-391-6190 TDD Pennsylvania 800-228-0676 TDD Out of State 717-391-6191 Bureau of Motor Vehicles to provide proof of<financial responsibility (insurance) ng vehicle: MAKE 10RD, BODY TYPI SEDAN, TITLE: 418681950)'AG NO: BVM400& Tliis information was requested as d by PROGRESSWIDWORTHRN LNSMAIYCE CO that the insurance policy tin 04/13/00 Either Oa response was received ar the information you provided ryas not permit fal uuiw.ISection 1786 of the i e icle Code. As a result, the vehicle registration privilege will:* suspemled for three months effective 07/28/00 at 12:01 A.M. as authorized by Section 1786 (D) of the Vehicle Code; This is a final order of suspension. You may obtain reconsideration of this order by submitting a copy 'ot your insurance .tdentuiication card, the declaration page of your insurance policy, a valid binder of insurance, or an application for insurance to the Pennsylvania Auto Insurance Plan as evidence that the described motor veliicigwas continuously covered by liability insurance. If there was a lapse in insurance coverage, you must provide this Bureau )with proof;oLmsurance indicating an effective date of coverage of less than 31 days from 04/13/00, and also provide a notarized affidavit stating that your vehicle was not operated during this time. It is necessary for you to provide copies of the insurance documents and return them with this notification. A self addressed label is enclosed for your convenience. Please note that original documents will not be returned. This is a final order of suspension and unless you receive notice from this Department that reconsideration was granted, you will be required to return your current registration plate and card. Additionally, credit toward serving the suspension will not begin until the registration plate is received by the Bureau. You will be "required to pay a restoration fee in the amount of $511.00, to the Department in accordance with Section 1960 of the Vehicle Code. R'e have enclosed a self-addressed envelope for use when corresponding and a mailing label to assist with the return of your registration plate and card. You have the right to appeal this suspension to the Court of Common Pleas of the county of your residence within thirty (30) days of the date of this notice. Sending a copy to this Department of a timely, filed appeal will stay the Department's action pending a final decision by the court. The copy mast be sent by certified mail to PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, OFFICE OF CHIEF COUNSEL, THIRD I•'LOOR, RIVERFRONT OFFICE CENTER, HARRISBURG, PA 17104-2516. (7 t-r ?- G7 _ ? b 1nr WALTER W. HAWBAKER and JENNIFER H. HAWBAKER, Appellants, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Appellee JUL 21 200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 2000- 509v CIVIL TERM CIVIL ACTION - LAW ORDER AND NOW, this j/ S" day of July, 2000, upon presentation and consideration of the attached, verified petition, it is ORDERED that a hearing be held on thead"ay of 1LA&42 A' 2000, at ? o'clock} .m., in Courtroom No-? , of the Cumberland County Courthouse, Carlisle, Pennsylvania. Appellants shall forthwith serve a copy of this Order and the attached Petition on the Appellee by certified mail, return receipt requested. The registration suspension ipkenb7 stayed r-"6 By the Court, Walter and Jennifer Hawbaker 20 W. Springville Road Boiling Springs, PA 17007 Pennsylvania Department of Transportation Office of Chief Counsel Third Floor Riverfront Office Center Harrisburg, PA 17104-2516 'jTMnf,''0jj ; MR. Ala 0-opt'es :Y,?;tt ?f>14co r ihK"?i }'. ^, to C, 1 140 WALTER W. HAWBAKER, and IN THE COURT OF COMMON PLEAS OF JENNIFER H. HAWBAKER CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF NO. 2000-5090 CIVIL TERM PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES CIVIL ACTION -LAW ORDER OF COURT AND NOW, this 27TH day of SEPTEMBER, 2000, at the request of the petitioner and with the concurrence of George Kabusk, Esquire (Department of Transportation) the hearing scheduled for Friday, September 29, 2000, is continued until Monday, December 4.2000, at 11:00 a.m. in Courtroom # 5. Walter and Jennifer Hawbaker 20 W. Springville Rd. Boiling Springs, Pa. 17007 Pennsylvania Dept. of Transportation Riverfront Office Center 1101 S. Front Street Harrisburg, Pa. 17104-2516 :sld By the Court, 4 Edward E. Guido, -'l 1 4,00 ?g 6 h ?1'rv?tY 010S?FP28 `P,tI ?? L.) U3 PENNSYLVANIA 0 0 WALTER W. HAWBAKER, and : IN THE COURT OF COMMON PLEAS OF JENNIFER H. HAWBAKER CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF NO. 2000-5090 CIVIL TERM PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES CIVIL ACTION -LAW ORDER OF COURT AND NOW, this 51H day of DECEMBER, 2000, after hearing, and it appearing to the Court that the appellants have challenged the propriety of their insurance cancellation before the Insurance Department, and there being no decision in said challenge, the action of the Department in suspending their registration is premature. The appeal is sustained and the action of the Department in suspending appellants' registration is REVERSED. By the Edward E. Guido, J. Walter and Jennifer Hawbaker 20 W. Springville Rd. Boiling Springs, Pa. 17007 Pennsylvania Dept. of Transportation Riverfront Office Center 1101 S. Front Street Harrisburg, Pa. 17104-2516 /1 „r ld? t 17 ' --6 Avilo, I'll QUMBE.Rj-?Z COUNTY PENNSYLVANIA l- JENNIFER H. HAWBAKER IN THE COURT OF COMMON PLEAS OF WALTER W. HAWBAKER CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, NO. 2000-5090 CIVIL TERM DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES ORDER OF COURT AND NOW, this 2f day of JANUARY, 2001, Appellant is directed to file a concise statement of matters complained of on appeal within fourteen (14) days of todays date in accordance with Rule of Appellate Procedure 1925(b). Jennifer H. Hawbaker Walter W. Hawbaker Timothy P. Wile, Esquire Dept. of Transportation :sld By the Co , Edward E. Guido, J. C 3 Y. Oz- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JENNIFER H. HAWBAKER WALTER W. HAWBAKER, } IN THE COURT OF COMMON PLEAS Appellee OF CUMBERLAND COUNTY, PA } vs. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Appellant } NO. 2000-5090 CIVIL TERM Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on December 5, 2000. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. SSJJ?? .rte W a L TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 0 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JENNIFER H. HAWBAKER WALTER W. HAWBAKER, } Appellee } vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Appellant } NO. 2000-5090 CIVIL TERM Request for Transcript A notice of appeal having been filed in this matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Prepare only the original for inclusion in the record as the Appellant, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the transcript. /a. TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 ?Y5510 Cumbe and County Prothonotary' OCivil Case Inquiry s ffice 15 Page 1 2000-05090 HAWBAKER WALTER ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: 7/20/2000 Case Type.....: APPEAL - VEHICLE REG Time...... 9:39 Judgment.. .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: **************************************************** **************************** General Index Attorney Info HAWBAKER WALTER W APPELLANT PR O SE 20 WEST SPRINGVILLE ROAD BOILING SPRINGS PA 17007 HAWBAKER JENNIFER H APPELLANT PR O SE 20 WEST SPRINGVILLE ROAD BOILING SPRINGS PA 17007 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARMTNE OF TRANSPORTATION BUREAU OF MOTOR VEHICLES HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 7/20/2000 PETITION FOR APPEAL AND SUPERSEDERS ------------------------------------------------------------------- 8/01./2000 ORDER - DATED 7/31/00 - IN RE PETITION FOR APPEAL AND SUPERSEDEAS - HEARING ON 9/29/00 AT 10:15 AM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 8/2/00 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - -- - - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pmts/Ad! End Bal ******************************** ******** ****** ******************************* APPEAI, VEH REG 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 -------------- 5.00 ---------- --- .00 --------- 45.50 45.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** /'. 0 0 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JENNIFER H. HAWBAKER WALTER W. HAWBAKER, } IN THE COURT OF COMMON PLEAS Appellee OF CUMBERLAND COUNTY, PA } VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Appellant } NO. 2000-5090 CIVIL TERM Proof of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Edward E. Guido Court Reporter Walter & Jennifer Hawbaker Cumberland County Courthouse Cumberland County Courthouse Pro Se Appellee 1 Courthouse Square 1 Courthouse Square 20 W. Springville Road Carlisle, PA 17013 Carlisle, PA 17013 Boiling Springs, PA 17007 wW4 TTM THY P. WILE Attorney for Department of Transportation Date: January 2, 2001 /1), -c: ' f ,- y CD c- C_1 J-TF C?V k- Commonwealth Court of Pennsylvania January 5, 2001 RE: Hawbaker, et al v. DOT No.: 21 CD 2001 Agency Docket Number: 2000-5090 Civil Term Filed Date: January 3, 2001 Notice of Docketing Appeal A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. 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 forty (40) 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 Harold Cramer, Esq. Bureau of Motor Vehicles Appellant Walter Hawbaker Walter W. Hawbaker Appellee Timothy Peter Wile, Esq. Bureau of Motor Vehicles Appellant /3. s COMMONWEALTH OF PE VANIA' DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION . ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JENNIFER H. HAW13AKER WALTER W. HAWBAKER, } Appellee } VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Appellant } S ? C;l e'6 ,d i IN THE COURT OF COMIVION PLEAS :-. OF CUMBERLAND ?-DLJNTX, PA NO. 2000-5090 CIVIL TERM Notice of Appeal . TFIZE COPY FROM RECORD in 1&aia?'ia"9jiV I ?ys 'c3 ntt$, t my land ` '' Wa,,9 film si.W ri! n a4 0 ' ai Car:B61e, P4. T3:1 s 3 _ day !t _????? &- 1,19r1 Prothonotary 4 TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on December 5, 2000. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. 41, c> , WI COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY I.D. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 WALTER W. HAWBAKER and } IN THE COURT OF COMMON PLEAS JENNIFER H. HAWBAKER, Appellees } OF CUMBERLAND COUNTY, PA VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Appellant } NO. 2000-5090 CIVIL TERM Statement of Matters Complained of on Appeal TO THE HONORABLE, THE JUDGES OF THE SAID COURT: NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Appellant, that, by and through its attorney, Timothy P. Wile, Esquire, in compliance with the requirements of Pa. R.A.P. 1925, hereby sets forth the matters about which it complains with respect to its appeal of this Court's order of December 5, 2000: 1. The trial court erred as a matter of law when it held that the Bureau's certified documents, admissible under 75 Pa.C.S. § 1377(b), and constituting prima facie proof of the information set forth in the Bureau of Motor Vehicle's receipt of an electronic transmission 167 V from Progressive Northern Casualty Insurance Company, failed to establish a lapse in financial responsibility coverage for the Ford sedan, bearing Pennsylvania registration plate number BVM-4008, that is titled and registered to Walter W. Hawbaker and Jennifer H. Hawbaker. See England v. Department of Transportation, Bureau of Driver Licensing, 687 A.2d 425 (Pa. Cmwlth. 1997). The Bureau's certified documents were sufficient, in and of themselves, to satisfy the Bureau's initial burden of proof and establish the Bureau's prima facie case in a statutory appeal from a Bureau registration suspension. 75 Pa.C.S. § 1377(b); England. 2. The trial court committed reversible error when it sustained the Appellees' statutory appeal from a Bureau registration suspension where the Bureau established its prima facie case and the Appellees failed to prove that they came within the statutory exceptions to the mandatory three-month registration suspension set forth in 75 Pa.C.S. §1786(d). See, e.g., Dillon v. Department of Transportation, Bureau of Driver Licensing, 679 A.2d 291 (Pa. Cmwlth. 1996); Erimias v. Department of Transportation, Bureau of Driver Licensing, 671 A.2d 788 (Pa. Cmwlth. 1996); Koller v. Department of Transportation, Bureau of Driver Licensing, 670 A.2d 215 (Pa. Cmwlth. 1996); Evans v. Department of Transportation, Bureau of Motor Vehicles, 44 Cumberland 221 (Pa. C.P. 1995). 3. The trial court committed reversible error when it sustained the Appellees' statutory appeal on the basis that they were without fault with respect to the lapse in financial responsibility coverage for their Ford sedan. See, e.g., Morgan v. Department of Transportation, Bureau of Motor Vehicles, 702 A.2d 1 (Pa. Cmwlth. 1997); O'Hara v. l?. Department of Transportation, Bureau of Motor Vehicles, 691 A.2d 1001 (Pa. Cmwlth. 1997) (en bane), aff'd per curiam, 713 A.2d 60 (Pa.. 1998). 4. The trial court committed reversible error by sustaining the Appellees' statutory appeal from a registration suspension on the basis that Appellees had filed an appeal of the insurance carrier's cancellation of their prior policy of liability insurance where the Appellees' appeal with the Insurance Department has not yet been decided and the cancellation of that policy of liability insurance remains valid, thus causing a lapse in financial responsibility coverage for the Appellees' Ford sedan. The trial court should have continued the Appellees' statutory appeal pending the outcome of the Appellees' appeal of Progressive's cancellation of their prior policy of liability insurance with the Pennsylvania Insurance Department. 5. The Bureau reserves the right to argue any additional issues that may be raised by the common pleas court's opinion filed in support of that court's order of December 5, 2000. Respectfully submitted, ?wX Timothy P. Wile Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Attorney I.D. No. 30397 Attorney for Appellant 7 0 0 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE' OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY I.D. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 WALTER W. HAWBAKER and JENNIFER H. HAWBAKER, Appellees VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Appellant ) IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, PA NO. 2000-5090 CIVIL TERM Certificate of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Statement of Matters Complained of on Appeal upon the following persons in the following manner, which service complies with the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Edward E. Guido Walter & Jennifer Hawbaker Cumberland County Courthouse Appellees, Pro Se 1 Courthouse Square 20 W. Springfield Rd. Carlisle, PA 17013-3387 Boiling Spring, PA 17007 TIMOTHY P. WILE Attorney for Department of Transportation Date: January 12, 2001 rl?it??+l '_ ? t4[i?H96e5NdYn:?'Cwit:-2YSIMV'eiufaY3l y?'9an, .?.?•..,' .'""??Y *?i ?imz:dwY'?i'•"'.?5... fFtl•-`•?'"?•°•? i694i&_. i; "1 f„ i ?' ?._. I ? -"7 C'' m r?r= ' ; , - __ - ? . _m. r?" , °n _ -- - ?. - r'?-i _' -: tJJ _ ? JENNIFER H. HAWBAKER IN THE COURT OF COMMON PLEAS OF WALTER W. HAWBAKER, CUMBERLAND COUNTY, PENNSYLVANIA Appellee V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES,: Appellant 00-5090 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, December 4, 2000, in Courtroom Number Five. APPEARANCES: Walter & Jennifer Hawbaker Pro Se Appellee 20 West Springville Road Boiling Springs, PA 17007 George Kabusk, Esquire Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 For the Appellant lq- 0 0 INDEX TO WITNESSES FOR THE APPELLEE DIRECT CROSS REDIRECT RECROSS Jennifer H. Hawbaker By the Court 5 By Mr. Kabusk 9 INDEX TO EXHIBITS FOR THE APPELLEE MARKED ADMITTED Ex. No. 1 - letter 10 FOR THE APPELLANT Ex. No. 1 - packet of documents 5 OCD 0 0 1 THE COURT: Good morning. This is the 2 case of Walter and Jennifer Hawbaker, their appeal from the 3 suspension of their registration privileges. Is that 4 correct, Mr. Kabusk? 5 MR. KABUSK: Yes, Your Honor. 6 THE COURT: Mrs. Hawbaker, are you ready to 7 proceed? 8 MS. HAWBAKER: Yes. 9 THE COURT: Okay. You may take the stand. 10 Anything else? 11 MR. KABUSK: May I enter my documents 12 first, Your Honor? 13 THE COURT: Sure. 14 MR. KABUSK: What's been marked as 15 Commonwealth's Exhibit Number 1 is under seal and 16 certification, and it consists of four subexhibits. 17 Subexhibit Number 1 is an additional notice of suspension 18 dated and mailed 7/5 of 2000 effective 7/28 of 2000. That 19 notice is addressed to Walter W. and Jennifer H. Hawbaker, 20 with the mail date of 7/5/2000. It states the following: 21 Dear Motorist, you were recently requested 22 by the Bureau of Motor Vehicles to provide proof of 23 financial responsibility (insurance) covering the operation 24 of the following vehicle: MAKE: FORD, BODY TYPE: SEDAN, 25 VIN NO: 1FABP52U9KG226460, TITLE: 41868195, TAG NO: 3 Ott 1 BVM4008. 2 This information was requested as a result 3 of this Bureau being notified by Progressive Northern 4 Insurance Company that the insurance policy covering the 5 vehicle was terminated on 4/13/2000. Either no response 6 was received or the information you provided indicated a 7 lapse of coverage which was not permitted under Section 8 1786 of the Vehicle code. 9 As a result, the vehicle registration 10 privilege will be suspended for three months effective 11 7/28/2000, at 12:01 a.m. as authorized by Section 1786(D) 12 of the Vehicle Code. 13 THE COURT: If we're going to admit these 14 exhibits, I can certainly read. 15 MR. KABUSK: Oh, okay. 16 THE COURT: So you don't have to read them 17 into the record. 18 MR. KABUSK: Okay. Subexhibit 2 is 19 official notice of suspension dated and mailed 6/23/2000 20 effective 7/28/2000, which is essentially the same. A 21 notice, but with a different mail date. And 3 is an 22 electronic transmission from Progressive Northern 23 certifying termination of insurance on April 13th of 2000, 24 and 4 is a computer printout of vehicle inquiry. 25 THE COURT: Okay. 4 aC, - I-01 0 1 MR. KABUSK: I move for the admission of 2 what's been marked Commonwealth's Exhibit Number 1. 3 THE COURT: Any objection to the admission 4 of that, Mrs. Hawbaker? 5 MS. HAWBAKER: No. 6 MR. KABUSK: I've provided a copy to Mrs. 7 Hawbaker. 8 THE COURT: It is admitted. 9 (Whereupon, Commonwealth Exhibit No. 1 was 10 admitted.) 11 THE COURT: Anything else, Mr. Kabusk? 12 MR. KABUSK: No, Your Honor. I will now 13 rest. 14 THE COURT: Okay. Mrs. Hawbaker, do you 15 want to take the stand? 16 Whereupon, 17 JENNIFER H. HAWBAKER 18 having been duly sworn, testified as follows: 19 BY THE COURT: 20 Q Mrs. Hawbaker, we're here because 21 Progressive canceled your insurance effective 4/13 of 2000. 22 Do you want to tell us your side of the story? 23 A Sure. We had had insurance with them for a 24 while, and we had moved out of our house -- or our trailer 25 in February. We moved in with my parents because I found 5 % it 0 1 out that I was pregnant, and -- 2 Q What address was that? 3 A That was 3101 Spring Road, is where we did 4 live. 5 Q Okay. 6 A And then -- 7 Q What date did you move? 8 A I'm not sure of the exact date. It was in 9 February. 10 Q And then what happened? 11 A Well, we had had all of our mail transferred 12 -- well, it was being kept at the post office, the Carlisle 13 Post Office, and we would pick it up once a week. We paid 14 our insurance, and then in April I had called, and -- 15 Q I'm sorry. You paid your insurance when? 16 A Every month we paid our insurance. It was 17 sent. 18 Q Sent to where? 19 A To Progressive. 20 Q Okay. 21 A My mom usually wrote the check out for it -- 22 for the insurance. In April I had sent it the day before. 23 I sent a money order, and -- because I had called and asked 24 them -- you know, I told them that I was sending it. I was 25 sending the money order. The lady that I talked to said 1 that would be fine, as long as it was postdated for the day 2 that it was d ue. 3 MR. KABUSK: Objection to the hearsay, Your 4 Honor. 5 THE COURT: Overruled. 6 BY THE COURT: 7 Q Okay. So you sent a money order. What 8 date did you send the money order? 9 A We sent it -- it was on April 13th. 10 Q Okay. Was that money order ever cashed? 11 A No. It was sent back to us unopened. 12 Q And when did you get it back? 13 A We didn't get it back until I think the 14 beginning of May, is the date on the envelope, I guess it 15 was returned, but we had moved into our new place May 1st 16 so we had not picked up our mail. So we did not actually 17 get it -- 18 Q Until? 19 A Until about -- until after I think we got 20 the paper fro m PennDOT saying that our insurance was 21 cancelled. 22 Q So you're telling me you let your mail sit 23 for several m onths? 24 A No, no. No, no. 25 Q Well, you're saying that this letter was 7 OLIY? 1 dated May 1st? 2 A Yes. 3 Q The first PennDOT notice is June 23rd. Am 4 I right? 5 A The first PennDOT notice that we got we had 6 received on May 10th. 7 Q Okay. And so on May 10th what did you do? 8 A On May loth when I got the letter, I had 9 called Progre ssive, and I was informed that they had 10 returned it, and we had gone in and gotten our mail because 11 with moving a nd stuff it just kind of slipped our mind. 12 Q Okay. 13 A And so we went and got it, and Progressive 14 never called back or anything, and I had talked to somebody 15 at PennDOT, I 'm not sure who it was, and they told me that 16 if we got insurance, and we brought it down to them, proof 17 of insurance, you know, that they would submit that in. 18 We did not -- we got the letter from PennDOT May 10th. It 19 was sent out May 8th. The letter from PennDOT was dated 20 May lst, but it was never sent out until the 8th. 21 Q Okay. So you got that May 10th. 22 A Right. 23 Q When did you talk to the people at PennDOT? 24 A After I got the letter it was, I believe, 25 the same day. 8 ??` 0 0 1 Q Okay. And did you get insurance? 2 A We got insurance on the 19th of May. We had 3 until the 13th, which the 13th was a Saturday, and I called 4 State Farm then on Friday, which was the 12th, and Alan at 5 State Farm had never contacted me back, and I had calls in 6 to him. So finally he told me that because it was over 30 7 days that he could not help me. He gave me Jack Brunner's 8 number. I called into there, and-they had the insurance 9 by the 19th. 10 Q Okay. Do you have a copy of your policy? 11 A No, sir, I do not. 12 Q Do you have a copy of your card that says 13 when it was effective? 14 A We have copies of our insurance card, but 15 it's renewed every two months. We went through Legal 16 Services, and I don't even remember his name, it's been so 17 long. He has everything, copies of our policy, and -- 18 THE COURT: Cross-examine. 19 CROSS EXAMINATION 20 BY MR. KABUSK: 21 Q Mrs. Hawbaker, did you also file a complaint 22 with the insurance department? 23 A Yes, I did, sir. 24 Q Do you have any proof of that? 25 A Just the letter that I had sent to you, that 9 d-7, a 0 1 I faxed to you. 2 THE COURT: Do you want to mark that as 3 Defendant's 1? 4 (Whereupon, Defendant's Exhibit No. 1 was 5 marked for identification.) 6 BY MR. KABUSK: 7 Q What was your complaint that you filed with 8 the insurance department? 9 A We were not notified that our insurance had 10 been canceled until we had gotten a letter from PennDOT 11 three days before. 12 Q Have you been advised of the results of your 13 complaint with the insurance department? 14 A No, sir, we have not. 15 Q Have you followed up on the insurance 16 department? 17 A Thursday I had called down, and I had to 18 leave a message on the voice mail for them. I left my 19 name and number for someone to call me back to let me know 20 what was going on, and nobody has called. 21 Q Do you recall when you filed that complaint? 22 A Actually, no. 23 Q Was it sometime in July or August? 24 A Yes, I believe. It was before the hearing 25 was supposed to -- before I had even found anything out 10 ?? 0 0 1 about the hearing. 2 MR. KABUSK: No further questions, Your 3 Honor. 4 THE COURT: Anything else you want to tell 5 me, ma'am? 6 THE WITNESS: Just what I was telling -- I 7 don't even remember his name -- the attorney for PennDOT, 8 we would not have let our insurance go. We have not ever 9 had a lapse in our insurance, and if I would have known -- 10 if I would have been properly informed that our insurance 11 was canceled, I would have gotten it right away. 12 Like I was telling him, I was pregnant at 13 the time. We were told we could never get pregnant. I 14 would not jeopardize myself or my baby by not having 15 insurance. 16 THE COURT: Okay. Thank you, ma'am. 17 Anything else? 18 MR. KABUSK: Nothing further, Your Honor. 19 THE COURT: May I see Defendant's -- you 20 may step down. Do you have any other testimony or 21 witnesses you want to present? 22 MRS. HAWBAKER: No. 23 THE COURT: Okay. You can pass up Exhibit 24 Number 1, please. Anything else you wish to say, Mr. 25 Kabusk? 11 oC ?, 0 0 1 MR. KABUSK: Just a brief closing, if you so 2 wish. 3 THE COURT: You may. 4 MR. KABUSK: Your Honor, the Department's 5 burden in these cases is very simple. One is that the 6 vehicle in question is a type required to be registered, 7 and two, the required automobile liability insurance had 8 been canceled or otherwise terminated. 9 And 1786 sets forth various defenses, and 10 one of them is that the lapse of insurance was for less 11 than 31 days, and that the owner or registrant did not 12 operate the vehicle. Here the lapse is greater than 31 13 days. 14 THE COURT: What if -- is it 31 days from 15 the lapse or 31 days from when they got notice of the 16 lapse? I mean I would find as a fact in this case that 17 they did reinstate the coverage within 31 days of the time 18 that they were notified. 19 MR. KABUSK: It is from the lapse, I would 20 argue, Your Honor. 21 THE COURT: Well, are you saying that -- do 22 you have any cases on that, that says that you can't go 23 from the notice? 24 MR. KABUSK: I'm sure I do, if you give me 25 a few minutes. 12 36- __ uarrauuu. ?b:.l 1 THE COURT: Okay. 2 MR. KABUSK: Two, in these cases where the 3 Petitioner claims that they were improperly canceled, the 4 remedy is to go to the insurance department and file a 5 complaint. They did in this case. We've not heard the 6 results of that. The Department is willing to rescind 7 it's suspension if, in deed, the insurance department finds 8 that they were improperly canceled, and there, in deed, was 9 no lapse. 10 THE COURT: Well, I don't -- the insurance 11 department has gotten a letter. I've heard testimony. I 12 don't think there's any reason to disbelieve this young 13 lady that there was a mix-up in the mail, and that really 14 from 19 days after she got the letter from -- she attempted 15 to reinstate the policy immediately. Well, actually on 16 April 13th sent her money order in. I believe her when 17 she says she did that. 18 For whatever reason, Progressive didn't 19 accept it. She received notice -- even if you take the 20 May 1st date, which I believe she didn't get that until a 21 few days after that, they had insurance in effect by May 22 the 19th. So I think under those circumstances that they 23 did everything that was reasonably possible to make sure 24 that they had insurance coverage within 31 days after the 25 cancellation. And you're saying on that factual basis I 13 3 ( ( . 1 have no discretion? 2 MR. KABUSK: I'm saying, Your Honor, that 3 the Vehicle Code is clear. It talks about a lapse in 4 insurance responsibility coverage. Intent does not play a 5 part in this particular provision. Even though they were 6 very timely in their response, there is a lapse greater 7 than 31 days, a period of coverage. Thirty-one days is the 8 period. Not from their notice, but it is an actual lapse. 9 THE COURT: Well, they didn't even know 10 that they were lapsed until 27 days after it took place. 11 They thought they had insurance. She did everything she 12 could possibly have done. She sent it in. To me it 13 would seem to compound that error, to suspend her 14 registration. 15 MR. KABUSK: Well, and that's why if it was 16 an improper cancellation her remedy is not here today. 17 Her remedy is to go to the insurance department. 18 THE COURT: Yet you're telling me that you 19 will give credence to the insurance department's 20 determination, yet I don't have the ability to listen and 21 find the facts and find that based upon what I heard that 22 it would seem to be an improper cancellation or if not an 23 improper cancellation, they certainly had taken all 24 reasonable steps to remedy that. 25 MR. KABUSK: Well, Your Honor, very 14 3,- 1 respectfully I would say that is the case. 2 THE COURT: Okay. 3 MR. KABUSK: Despite her reasonable steps, 4 the question is was there a lapse of greater than 31 days, 5 and two, the cases state that her remedy is to go to the 6 insurance department and have a proceeding there to 7 determine if there, in deed, was an improper cancellation. 8 THE COURT: In the meantime how's she 9 supposed to get this baby around and get back and forth to 10 work for the next three months? 11 MR. KABUSK: Your Honor, I understand the 12 concern there. I explained to them that the Department is 13 suspending only their privilege to register this particular 14 vehicle. 15 THE COURT: Well, they sure don't look like 16 they've got a whole bunch of vehicles sitting in their 17 parking lot of their trailer. So that would seem to me to 18 be the same as telling them they can't drive for the next 19 three months. Let me take a look at the cases. What 20 cases do you want me to read, Mr. Kabusk? 21 MR. KABUSK: I would cite to you Riley, 22 Commonwealth of Pennsylvania, Department of Transportation 23 versus Riley, R-i-1-e-y, 615 A.2d. 905. Morgan, 24 M-o-r-g-a-n, versus Commonwealth of Pennsylvania, 25 Department of Transportation 701 A.2d. 1, and the case of 15 23, r 0 0 1 Ohara, O-h-a-r-a, versus Commonwealth of Pennsylvania, 2 Department of Transportation, 691 A.2d. 1,001. 3 THE COURT: Okay. Good. I'll take a 4 look at them, and I'll take this under advisement, and then 5 issue an order. Okay. Court's adjourned. 6 (Whereupon, the proceedings concluded at 7 12:24 p.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. ichele A. Eline Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date Edward E. Guido, J. Ninth Judicial District 17 361? c-7s X DL-326r(9/95) DATE: August 18, 2000 0 CERTIFICATION I hereby certify that Kurt Myers, 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 Director of the aforesaid Bureau, he has legal custody of the original or microfilm records, which are reproduced in the attached certification. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID. I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND CORRECT CERTIFIED PHOTOSTATIC COPY OF: 1) Additional Notice of Suspension dated and mailed 07/05/00, effective 07/28/00; 2) Official Notice of suspension dated & mailed 06/23/00, effective 07/28/00; 3) Electronic Transmission from PROGRESSIVE NORTHRN INSURANCE CO., certifying the termination of insurance on April 13, 2000, and 4) Computer Printout of Vehicle Inquiry Detail by Title screen from the Department of Transportation's records for a 1989 Ford Sedan, with title number 41868195, license plate number BVM4008 owned by WALTER W. & JENNIFER H. HAWBAKER, with a registration expiration date of October, 2000. CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9, 1976, PL. 586, as amended, 42 Pacs §§6103 and 6109. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR AFORESAID. ?_- SEAL "KURT MYERS, DIRECTOR BUREAU OF MOTOR VEHICLES COMMONWEALTFPS EXHIBIT laltilo? MMONNVEALTH OF PENNSYLVA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEIIICLES PO BOX 68674 HARRISBURG, PA 17106-8674 ADDITIONAL NOTICE MAIL DATE: 07/05/00 Information (7:00 AM to 9:00 PM) WALTER W & JENNIFER HAWBAKER 20 W SPRINGVILLE BOILING SPGS, PA Dear Motorist: You were recently reques covering the operation of VIN NO: IFABP52U9E a result of this Bureau be covering the vehicle was I indicated a lapse of cover Pennsylvania 800-932-4600 Out of State 717-391-6190 TDD Pennsylvania 800-228-0676 TDD Out of State 717-391-6191 Bureau of Motor Vcficles to provide proof of;fnancial responsibility (insurance) ing vehicle: MAK FORD, BODY TYP . SO^ TITLE: 41868195b'1'AG NO: BVM4008's7lris information was requested as it by PROGRESSWE'NORTHRN L\'SV.1t, E CO that the insurance policy gn 04/13/011. l fh'et;tiitresponse was recaivetzr the information you provided ,Was not perm tt4d under. Section 1786 of the.'Veliicle Code. As a result, the vehicle registration .prryilege wdl he_ suspended for,;three months effe:tive 07/28/00 at 12:01 A.M. as authorized by Section 1786 (D) of thb'i.Vehicle Code This rs;a tout order ofsasensinn. You may obtain reconsideration of this order by submitting a.copy'of your in surance identification card, the declaration page of your insurance policy, a valid hinder of insurance, or an application for insorance to the Pennsylvania Auto Insurance Plan as evidence that the described motor vehicle liras continuously covered by liability insurance. If there was a lapse in insurance coverage, you must provide this Bureauwith::proof;of.;insurance indicating an effective date of coverage of less than 31 days from 04/13/00, and also provide a notarized affidavit stating that your vehicle was not operated during this time. It is necessary for you to provide copies of the insurance documents and return them with this notification. A self addressed label is enclosed for your convenience. Please note that original documents will not be returned. This is a final order of suspension and unless you receive notice from this Department that reconsideration was granted, you will be required to return your current registration plate and card. Additionally, credit toward serving the suspension will not begin until the registration plate is received by the Bureau. You will he required to pay a restoration fee in the amount of .550.00, to the Department in accordance with Section 1960 of the Vehicle Code. IVe have enclosed a self-addressed envelope for use when corresponding and a mailing label to assist with the return of your registration plate and card. You have the right to appeal this suspension to the Court of Common Pleas of the County of your residence within thirty (30) days of the date of this notice. Sending a copy to this Department of a timely, filed appeal will stay the Department's action pending a final decision by the court. The copy must be sent In certified mail to PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, OFFICE OF CHIEF COUNSEL, THIRD FLOOR, RIVERFRONT OFFICE CENTER, HARRISBURG, PA 17104-2516. 0 0 By order of Director Bureau of Motor Vehicles Department of Transportation WALTER W 8 JENNIFER HAWBAKER 3101 SPRING RD CARLISLE, PA 17013 Dear Motorist: You were recently reques covering the operation of VIN NO: 1FABP52U9S a result of this Bureau be covering the vehicle was 1 indicated a lapse of cover, was responsibility (insurance) formation was requested as CO that the insurance policy te information you provided le Code. As a result, the vehicle registration prv)lege wil{spapemlilQrthree gQitt%s;effeetive 07/28100 at 12:01 A.M. as authorized by Section 1786 (D)E#Re_!eh1.4eCtde._fs,1sE:rder.ui46pensi0n. You may obtain reconsideration of this order by`siifim [qij a ropy''o(your iristitlfi ;:140 'ea ion card, the declaration page of your insurance policy, a valid binder of iijsa or an application for insd6i &lu the Pennsylvania Auto Insurance Plan as evidence that the descri bed motor'e[e_was continuously covered lig:liability insurance. If there was a lapse in insurance coverage, you must provide this°Bureau;ivith.;pootof.insuranee indicating an effective date of coverage of less than 31 days from 04/13100, and also provfde a nutaiized afTdavit stating that your vehicle was not operated during this time. It is necessary for you to provide copies of the insurance documents and return them with this notification. A self addressed label is enclosed for your convenience. Please note that original documents will not be returned. This is a final order of suspension and unless you receive notice from this Department that reconsideration was granted, you will be required to return your current registration plate and card. Additionally, credit toward serving the suspension will not begin until the registration plate is received by the Bureau. You will be required to pay a restoration fee in the amount of $50.00, to the Department in accordance with Section 1960 of the Vehicle Code. Please see the enclosed application for additional restoration fee information. We have enclosed a self-addressed envelope for use when corresponding and a mailing label to assist with the return of your registration plate and card. You have the right to appeal this suspension to the Court of Common Pleas of the county of your residence within thirty (30) days of the date of this notice. Sending a copy to this Department of a timely, filed appeal will stay the Department's action pending a final decision by the court. The copy must be sent by certified mail to: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, OFFICE OF CHIEF COUNSEL, THIRD FLOOR, RIVERFRONT OFFICE CENTER, HARRISBURG, PA 171042516. OMMONWEALTH OF PENNSYLVAND DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES PO BOX 68674 HARRISBURG, PA 17106-8674 OFFICIAL NOTICE MAIL DATE: 06/23100 Information (7:00 AM to 9:00 PM) Pennsylvania 800-9324600 Out of State 717-391-6190 TDD Pennsylvania 800-228.0676 H TDD Out of State 717-391-6191 fU By order of Director Bureau of Motor Vehicles Department of Transportation C7604600 2SCO4604 "USPENSION INQUIRY DETAILl ----END OF LIST---- TITLE : 41868195 SOURCE : CA CANCEL STATUS : A ACTIVE STOP CODE : F DETERMINATION DATE: 04/13/00 SUSP NOTICE SENT : 06/16/00 SUSP EFFECT DATE : 07/28/00 ORIG SUSP EFF DATE: CREDIT DATE TERM 003M ELIGIBILITY DATE RESCIND NOTICE PT SEGMENT CLOSED OFFENSE DATE CONVICTION DATE CASE/CITATION NO COURT NUMBER - DOCKET NUMBER COST : .00 PEN : 17-LIST OWNER : HAWBAKER,WALTER W & JENNIFER H AUTH CODE . 1786D VIOL CODE : 1786E INS REQUESTED: 05/02/00 AFFID REQUEST: AFFIDAVIT : PRV INS CO CD: 38628 PREV INS CO PROGRESSIVE NORTHRN INSURANCE PREV POL NO TERM REASON 1 NON PYMNT FR REQUIRED Y NEEDED IF INDICATOR 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 : 001229999091049001 15-RETURN f3 C7507500 2MV07501 V CLE INQUIRY DETAIL BY TIT A0730303 8/17/00 OWNER Lessee: 000 Ckdt: HA Carrier : ARP: Flt: WALTER W & JENNIFER H Title: 41868195 7 Tag: BVM4008 GVW: HAWBAKER T1 seq: 03 Exp Dt: 10/00 GCWT: 20 W SPRINGVILLE RD T1 Dt: 05/30/89 Rg Fee: 36.00 Unl wt: BOILING SPGS PA 17007 T1 Dup: Axle Tx: .00 Axles: -Non Pa TI: Prv Rn: 11/30/98 GVWR: Reg Dups: GCWR: MAKE: F ORD Tag Tp: 01 AWR: Model: TAG P Tag: WHV090 LESSEE Year: 1989 Tag color code: B Body: SDN Reg Pro: VIN: 1FABP52U9KG226460 Class: 00 Dealer Junk: Unclaimed: Equip No: A/C: Stolen Veh Dt: Van: Stolen Tag Dt: Renew WID: 99302 1161 001051 001 Est. WID: 89150 1815 000570 001 Stops: F 21-IMINFO 22-DETAIL2 15-RETURN 16-NOTEPAD 18-LIENINFO 19-WIDHIST fLI SEP-26-2000 17:07 FROM ?17 243 6999 TO •? 7051122 P.01 ' ?' Commonwealth o£ Pennsylvania Insurance Department Bureau of Consumer Services Harrisburg Regional office 1•:' 1321 Strawberry Square ` Fourth. and Walnut Streets Harrisburg, PA 17120 'AiYgLst3,c :2000 - Telephone: (71'7) 783-0659 Toll Free: 1-877-881-6388 '• Fax:.(717) 787-8565 E-Mail:.. hetzeli@ins.state:pa.us ' ' '?Pb4ffi2 :Aid r7 =IFSR :2 (k wPizxlvcvxE.. . ;:: •; ', :;, 6 NGS.,.' PA 17007 .. t.x „., ?? . C ;1dxlatG;atr'?gg.5`S'':T70'Ii':C'' 3+I$t3CS COMPANY' 't.:'7:epditiiiCoat E" SIt'c7TiPg' 2'8 ?'OSO :.?F9_uis __:<::.=. _-.__•-_c .. __.. .._..`i;i,•J"':_<'__..__ _ ' TiiankKoui:or contacting the Insurance Department regarding your complaint ag in t.V 0GRE8SIVE. NORTHERN =SURMCE COMPAW- Youe complaint has beeri re ?edthe Bateau of consumer services on July 25, 2000 and was, assigned s,'s to`?3RNE. TZEL -for :a :..'' ;• ; :fit )LS ;d r' aa1'`_' or;a5szst 'you ?u`rPsoly rig your' comp la .nt within a reaso34able". 'Yei3q't F ?oCe ,liases3 on the' a$ Qriiiation y-yo;. have presented to us and' , n?o 3:7 j "aoii' oxd obtaiis £rom the 'parties`,involved. . We will attemge to keep, you, advlss;£:. olf Sit' 'ficakt developments as your dase'`progresees• IIo*?x cciFiplair;kt;has been resolved or if you have.additiotal information: that, icFdi ;4' 4,vo a bearing on your complaint, please contact :the, Investigator as xo`1?SUr'case_' In ordei for us -to handle your, complaint more gi t..y,;.;we encourage- you. to,;submit' suck. information `in writing. when gt cdraacing;you'r investigator,'please refer to the file number above. Ozi behalf;of 'the Insurance Commissioner, we thank you for bringing this matter,toiour attention. we hope to be of assistance in resolving your Complaint: (li r,.•a r* a uu ; ( } • ::::[ r e. ':tii" .. \ }. r. •yri.:' !.r:.:f tii .Y?•n. l:. h' I t il.: r• :` `: deoEd.DSFwco,; Mafzager EXHIBIT 15 oxisumer' Servic gY S? '.-: p es t :.' ..,', . Ea i lxarg `egionZa Office ia'IIIkA1 Y . PYS510 Cumberland County Prothonotary' s Office Page 1 Civil Case Inquiry 2000 05090 HAWBAKER WALTER ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Refcrence No..: Filed......... 7/20/2000 Case Typpe..... : APPEAL - VEHICLE REG Time.........: 9:39 ,iucigment...... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 --- - Case Comments ---- Higher Crt 1.: 21 CD 2001 Higher Crt 2.: General Index Attorney Info f 1AW11AKER WALTER W APPELLANT PR O SE 20 WEST SPRINGVILLE ROAD ROCLiNG SPRINGS PA 17007 HAWBAKER JENNIFER H APPELLANT PR O SE 20 WEST SPRINGVILLE ROAD BOILING SPRINGS PA 17007 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARMTNE OF TRANSPORTATION RURF.AU OF MOTOR VEHICLES HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries IPAGE NO FIRST ENTRY - - - - - - - - - - - - - - 1 - 4 7/20/2000 PETITION FOR APPEAL AND SUPERSEDEAS ----------------------- ----------- ---------- -- --- 5 8/01/2000 _ --- -- -- ORDER - DATED 7/31/00 - IN RE PETITION FOR APPEAL AND SUPERSEDEAS HEARING ON 9/29/00 AT 10:15 AM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES - MAILED 8/2/00 - 6 9/28/2000 ---------------- ------------------------------------------------- ORDER OF COURT DATED 9/27/00 - HEARING FOR 9/20/001IS CONTINUED UNTIL 12/4/00 AT 11 AM IN COURTROOM 5 - EDWARD E GUIDO J COPIES MAILED 9/28/00 ------------------------------------------ 7 12/06/2000 ------------------------- ORDER OF COURT DATED 12/4/00 - SINCE INSURANCE CANCELLATION IS BEING CHALLENGED - DEPT OF TRANSPORTATION IS PREMATURE - THE APPEAL IS SUSTAINED AND DEPT'S ACTION IN SUSPENDING APPELLANTS' RETGISTRATIONIS REVERSED - EDWARD E GUIDO J ------------------------------------------ g 1/03/2001. --- --------------------- ORDER OF COURT - DATED 1/2/01 - APPELLANT IS DIRECTED TO FILE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL WITHIN FOURTEEN DAYS OF TODAYS DATE IN ACCORDANCE WITH RULE OF APPELLATE PROCEDURE 1925 B - BY THE COURT EDWARD E GUIDO J COPIES MAILED 1/3/01 --------------------------------------------- --- -- - -- 9 --12 1/03/2001 -- -- ---- --- -- NOTICE OF APPEAL - NOTICE IS GIVEN THAT THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTION BUREAU OF DRIVER LICENSING HEREBY APPEALS TO THE COMMONWEALTH COURT OF PENNSYLVANIA FROM THE ORDER THAT WAS FILED ON 12/5/00 - BY TIMOTHY P WILE ESQ ------------------------- --- 13 - 14 1/09/2001 -- ------------------------------------ COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 21 CD 2001 --------------- --------------- - 15 - 18 1/16/2001 -- --------------------------- STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY TIMOTHY P WILE FOR APPELLANT ---------------------------------------------- - -- 19 - 35 2/13/2001 ------------- --- --- TRANSCRIPT FILED FOR 12-04-00 IN CR4 BEFORE J GUIDO - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 36 Exhibits **#******** *************************************************************** * Escrow Information ymts/Adi End Bal P * Pees & Debits Be Bal ************ * * * *********** * **** **** *** *** ********************* **** ****** ***** * APPEAL VEH REG 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 1CP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 "€5510 Cumberland County Prothonotary's Office Page 2 Civil Case Inquiry 2000-05090 HAWHAKER WALTER ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: Ca So Typpe..... : APPEAL, - VEHICLE REG Time........ ,JudgmenE...... .00 Execution Date fncige Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. -- - --- Case Comments Higher Crt I.: Higher Crt 2.: 75.50 75.50 .00 7/20/2000 9:39 0/00/0000 0/00/0000 l******************************************************************************* " End of Case Information ******************************************************************************** ON COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY I.D. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 JAN 18 200t \-j WALTER W. HAWBAKER and } IN THE COURT OF COMMON PLEAS JENNIFER H. HAWBAKER, Appellees } OF CUMBERLAND COUNTY, PA VS. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Appellant } NO. 2000-5090 CIVIL TERM Statement of Matters Complained of on Appeal TO THE HONORABLE, THE JUDGES OF THE SAID COURT: NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Appellant, that, by and through its attorney, Timothy P. Wile, Esquire, in compliance with the requirements of Pa. R.A.P. 1925, hereby sets forth the matters about which it complains with respect to its appeal of this Court's order of December 5, 2000: 1. The trial court erred as a matter of law when it held that the Bureau's certified documents, admissible under 75 Pa.C.S. §1377(b), and constituting prima facie proof of the information set forth in the Bureau of Motor Vehicle's receipt of an electronic transmission from Progressive Northern Casualty Insurance Company, failed to establish a lapse in financial responsibility coverage for the Ford sedan, bearing Pennsylvania registration plate number BVM-4008, that is titled and registered to Walter W. Hawbaker and Jennifer H. Hawbaker. See England v. Department of Transportation, Bureau of Driver Licensing, 687 A.2d 425 (Pa. Cmwlth. 1997). The Bureau's certified documents were sufficient, in and of themselves, to satisfy the Bureau's initial burden of proof and establish the Bureau's prima facie case in a statutory appeal from a.Bureau registration suspension. 75 Pa.C.S. § 1377(b); England. 2. The trial court committed reversible error when it sustained the Appellees' statutory appeal from a Bureau registration suspension where the Bureau established its prima facie case and the Appellees failed to prove that they came within the statutory exceptions to the mandatory three-month registration suspension set forth in 75 Pa.C.S. §1786(d). See, e.g., Dillon v. Department of Transportation, Bureau of Driver Licensing, 679 A.2d 291 (Pa. Cmwlth. 1996); Erimias v. Department of Transportation, Bureau of Driver Licensing, 671 A.2d 788 (Pa. Cmwlth. 1996); Koller v. Department of Transportation, Bureau of Driver Licensing, 670 A.2d 215 (Pa. Cmwlth. 1996); Evans v. Department of Transportation, Bureau of Motor Vehicles, 44 Cumberland 221 (Pa. C.P. 1995). 3. The trial court committed reversible error when it sustained the Appellees' statutory appeal on the basis that they were without fault with respect to the lapse in financial responsibility coverage for their Ford sedan. See, e.g., Morgan v. Department of Transportation, Bureau of Motor Vehicles, 702 A.2d 1 (Pa. Cmwlth. 1997); O'Hara v. Department of Transportation, Bureau of Motor Vehicles, 691 A.2d 1001 (Pa. Cmwlth. 1997) (en banc), aff'd per curiam, 713 A.2d 60 (Pa.. 1998). 4. The trial court committed reversible error by sustaining the Appellees' statutory appeal from a registration suspension on the basis that Appellees had filed an appeal of the insurance carrier's cancellation of their prior policy of liability insurance where the Appellees' appeal with the Insurance Department has not yet been decided and the cancellation of that policy of liability insurance remains valid, thus causing a lapse in financial responsibility coverage for the Appellees' Ford sedan. The trial court should have continued the Appellees' statutory appeal pending the outcome of the Appellees' appeal of Progressive's cancellation of their prior policy of liability insurance with the Pennsylvania Insurance Department. 5. The Bureau reserves the right to argue any additional issues that may be raised by the common pleas court's opinion filed in support of that court's order of December 5, 2000. Respectfully submitted, ___ 41- 1A Timothy P. Wile Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Attorney I.D. No. 30397 Attorney for Appellant _ _ a?wwaa?? '. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: 'TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY I.D. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 WALTER W. HAWBAKER and JENNIFER H. HAWBAKER, Appellees VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Appellant ) IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, PA NO. 2000-5090 CIVIL TERM Certificate of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Statement of Matters Complained of on Appeal upon the following persons in the following manner, which service complies with the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Edward E. Guido Walter & Jennifer Hawbaker Cumberland County Courthouse Appellees, Pro Se 1 Courthouse Square 20 W. Springfield Rd. Carlisle, PA 17013-3387 Boiling Spring, PA 17007 TIM Y P. WILE Attorney for Department of Transportation Date: January 12, 2001 PYS510 Cumberland County Prothonotary' s Office Page 1 Civil Case Inquiry 2000 05090 HAWBAKER WALTER ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: 7/20/2000 Case Type.....: APPEAL - VEHICLE REG Time...... 9:39 Judgment..... 00 Execution Date 0/00/0000 Iudge Assigned: GUIDO EDWARD E D Jury Trial.... isposed Desc.: -------- Case Comm t --- Disposed Date. 0/00/0000 en s Higher Crt 1.: Higher Crt 2.: **************************************************** **************************** General Index Attorney Info HAWBAKER WALTER W APPELLANT PR O SE 20 WEST SPRINGVILLE ROAD ROILING SPRINGS PA 17007 HAWBAKER JENNIFER H APPELLANT PR O SE 20 WEST SPRINGVILLE ROAD BOILING SPRINGS PA 17007 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARMTNE OF TRANSPORTATION BUREAU OF MOTOR VEHICLES HARRISBURG PA 17104 2516 * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 7/20/2000 PETITION FOR APPEAL AND SUPERSEDEAS ------------- -------------------------------------- 8/01/2000 ORDER - DATED 7/31/00 - IN RE PETITION FOR APPEAL AND SUPERSEDEAS - HEARING ON 9/29/00 AT 10:15 AM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 8/2/00 ------------------------------------------------------------------- 1/03/2001 ORDER OF COURT - DATED 1/2/01 - APPELLANT IS DIRECTED TO FILE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL WITHIN FOURTEEN DAYS OF TODAYS DATE IN ACCORDANCE WITH RULE OF APPELLATE PROCEDURE 1925 B - BY THE COURT EDWARD E GUIDO J COPIES MAILED 1/3/01 ------------------------ ------------------------------------- 1/03/2001 NOTICE OF APPEAL - NOTICE IS GIVEN THAT THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTION BUREAU OF DRIVER LICENSING HEREBY APPEALS TO THE COMMONWEALTH COURT OF PENNSYLVANIA FROM THE ORDER THAT WAS FILED ON 12/5/00 - BY TIMOTHY P WILE ESQ --------------------------------------------------- 1/16/2001 STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY TIMOTHY P WILE FOR APPELLANT ---------------------------------------------- 2/13/2001 TRANSCRIPT FILED FOR 12-04-00 IN CR4 BEFORE J GUIDO - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Foes & Debits Be Bal P mts/Ad' End Bat APPEAL VEH REG 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 ------------------------ ------------ 75.50 75.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** JENNIFER H. HAWBAKER IN THE COURT OF COMMON PLEAS OF WALTER W. HAWBAKER, CUMBERLAND COUNTY, PENNSYLVANIA Appellee V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES,: Appellant 00-5090 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, December 4, 2000, in Courtroom Number Five. APPEARANCES: Walter & Jennifer Hawbaker Pro Se Appellee 20 West Springville Road Boiling Springs, PA 17007 George Kabusk, Esquire Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 For the Appellant INDEX TO WITNESSES FOR THE APPELLEE DIRECT CROSS REDIRECT RECROSS Jennifer H. Hawbaker By the Court 5 By Mr. Kabusk 9 INDEX TO EXHIBITS FOR THE APPELLEE MARKED ADMITTED Ex. No. 1 - letter 10 FOR THE APPELLANT Ex. No. 1 - packet of documents 5 1 THE COURT: Good morning. This is the 2 case of Walter and Jennifer Hawbaker, their appeal from the 3 suspension of their registration privileges. Is that 4 correct, Mr. Kabusk? 5 MR. KABUSK: Yes, Your Honor. 6 THE COURT: Mrs. Hawbaker, are you ready to 7 proceed? 8 MS. HAWBAKER: Yes. 9 THE COURT: Okay. You may take the stand. 10 Anything else? 11 MR. KABUSK: May I enter my documents 12 first, Your Honor? 13 THE COURT: Sure. 14 MR. KABUSK: What's been marked as 15 Commonwealth's Exhibit Number 1 is under seal and 16 certification, and it consists of four subexhibits. 17 Subexhibit Number 1 is an additional notice of suspension 18 dated and mailed 7/5 of 2000 effective 7/28 of 2000. That 19 notice is addressed to Walter W. and Jennifer H. Hawbaker, 20 with the mail date of 7/5/2000. It states the following: 21 Dear Motorist, you were recently requested 22 by the Bureau of Motor Vehicles to provide proof of 23 financial responsibility (insurance) covering the operation 24 of the following vehicle: MAKE: FORD, BODY TYPE: SEDAN, 25 VIN NO: 1FABP52U9KG226460, TITLE: 41868195, TAG NO: 3 ?. a 1 BVM4008. 2 This information was requested as a result 3 of this Bureau being notified by Progressive Northern 4 Insurance Company that the insurance policy covering the 5 vehicle was terminated on 4/13/2000. Either no response 6 was received or the information you provided indicated a 7 lapse of coverage which was not permitted under Section 8 1786 of the Vehicle code. 9 As a result, the vehicle registration 10 privilege will be suspended for three months effective 11 7/28/2000, at 12:01 a.m. as authorized by Section 1786(D) 12 of the Vehicle Code. 13 THE COURT: If we're going to admit these 14 exhibits, I can certainly read. 15 MR. KABUSK: Oh, okay. 16 THE COURT: So you don't have to read them 17 into the record. 18 MR. KABUSK: Okay. Subexhibit 2 is 19 official notice of suspension dated and mailed 6/23/2000 20 effective 7/28/2000, which is essentially the same. A 21 notice, but with a different mail date. And 3 is an 22 electronic transmission from Progressive Northern 23 certifying termination of insurance on April 13th of 2000, 24 and 4 is a computer printout of vehicle inquiry. 25 THE COURT: Okay. 4 1 MR. KABUSK: I move for the admission of 2 what's been marked Commonwea lth's Exhibit Number 1. 3 THE COURT: Any objection to the admission 4 of that, Mrs. Hawbaker? 5 MS. HAWBAKER: No. 6 MR. KABUSK: I've provided a copy to Mrs. 7 Hawbaker. 8 THE COURT: It is admitted. 9 (Whereupon, Commonwealth Exhibit No. 1 was 10 admitted.) 11 THE COURT: Anything else, Mr. Kabusk? 12 MR. KABUSK: No, Your Honor. I will now 13 rest. 14 THE COURT: Okay. Mrs. Hawbaker, do you 15 want to take the stand? 16 Whereupon, 17 JENNIFER H. HAWBAKER 18 having been duly sworn, testified as follows: 19 BY THE COURT: 20 Q Mrs. Hawbaker, we're here because 21 Progressive canceled your insurance effective 4/13 of 2000. 22 Do you want to tell us your side of the story? 23 A Sure. We had had insurance with them for a 24 while, and we had moved out of our house -- or our trailer 25 in February. We moved in with my parents because I found 5 1 out that I was pregnant, and -- 2 Q What address was that? 3 A That was 3101 Spring Road, is where we did 4 live. 5 Q okay. 6 A And then -- 7 Q What date did you move? 8 A I'm not sure of the exact date. It was in 9 February. 10 Q And then what happened? 11 A Well, we had had all of our mail tra nsferred 12 -- well, it was being kept at the post office, the Carlisle 13 Post Office, a nd we would pick it up once a week. We paid 14 our insurance, and then in April I had called, and -- 15 Q I'm sorry. You paid your insurance when? 16 A Every month we paid our insurance. It was 17 sent. 18 19 20 21 22 23 24 25 Q Sent to where? A To Progressive. Q Okay. A My mom usually wrote the check out for it -- for the insurance. In April I had sent it the day before. I sent a money order, and -- because I had called and asked them -- you know, I told them that I was sending it. I was sending the money order. The lady that I talked to said 6 1 that would be fine, as long as it was postdated for the day 2 that it was d ue. 3 MR. KA13USK: Objection to the hearsay, Your 4 Honor. 5 THE COURT: Overruled. 6 BY THE COURT: 7 Q Okay. So you sent a money order. What 8 date did you send the money order? 9 A We sent it -- it was on April 13th. 10 Q Okay. Was that money order ever cashed? 11 A No. It was sent back to us unopened. 12 Q And when did you get it back? 13 A We didn't get it back until I think the 14 beginning of May, is the date on the envelope, I guess it 15 was returned, but we had moved into our new place May 1st 16 so we had not picked up our mail. So we did not actually 17 get it -- 18 Q Until? 19 A Until about -- until after I think we got 20 the paper fro m PennDOT saying that our insurance was 21 cancelled. 22 Q So you're telling me you let your mail sit 23 for several months? 24 A No, no. No, no. 25 Q Well, you're saying that this letter was 7 1 dated May 1st? 2 A Yes. 3 Q The first PennDOT notice is June 23rd. Am 4 I right? 5 A The first PennDOT notice that we got we had 6 received on May 10th. 7 Q Okay. And so on May 10th what did you do? 8 A On May 10th when I got the letter, I had 9 called Progre ssive, and I was informed that they had 10 returned it, and we had gone in and gotten our mail because 11 with moving a nd stuff it just kind of slipped our mind. 12 Q Okay. 13 A And so we went and got it, and Progressive 14 never called back or anything, and I had talked to somebody 15 at PennDOT, I 'm not sure who it was, and they told me that 16 if we got ins urance, and we brought it down to them, proof 17 of insurance, you know, that they would submit that in. 18 We did not -- we got the letter from PennDOT May 10th. It 19 was sent out May 8th. The letter from PennDOT was dated 20 May 1st, but it was never sent out until the 8th. 21 Q Okay. So you got that May 10th. 22 A Right. 23 Q When did you talk to the people at PennDOT? 24 A After I got the letter it was, I believe, 25 the same day. 8 1 Q Okay. And did you get insurance? 2 A We got insurance on the 19th of May. We had 3 until the 13th, which the 13th was a Saturday, and I called 4 State Farm then on Friday, which was the 12th, and Alan at 5 State Farm had never contacted me back, and I had calls in 6 to him. So finally he told me that because it was over 30 7 days that he could not help me. He gave me Jack Brunner's 8 number. I called into there, and they had the insurance 9 by the 19th. 10 Q Okay. Do you have a copy of your policy? 11 A No, sir, I do not. 12 Q Do you have a copy of your card that says 13 when it was effective? 14 A We have copies of our insurance card, but 15 it's renewed every two months. We went through Legal 16 Services, and I don't even remember his name, it's been so 17 long. He has everything, copies of our policy, and -- 18 THE COURT: Cross-examine. 19 CROSS EXAMINATION 20 BY MR. KABUSK: 21 Q Mrs. Hawbaker, did you also file a complaint 22 with the insu rance department? 23 A Yes, I did, sir. 24 Q Do y ou have any proof of that? 25 A Just the letter that I had sent to you, that 9 1 I faxed to you. 2 THE COURT: Do you want to mark that as 3 Defendant's 1? 4 (Whereupon, Defendant's Exhibit No. 1 was 5 marked for identification.) 6 BY MR. KABUSK: 7 Q What was your complaint that you filed with 8 the insurance department? 9 A We were not notified that our insurance had 10 been canceled until we had gotten a letter from PennDOT 11 three days bef ore. 12 Q Have you been advised of the results of your 13 complaint with the insurance department? 14 A No, sir, we have not. 15 Q Have you followed up on the insurance 16 department? 17 A Thursday I had called down, and I had to 18 leave a messag e on the voice mail for them. I left my 19 name and numbe r for someone to call me back to let me know 20 what was going on, and nobody has called. 21 Q Do you recall when you filed that complaint? 22 A Actually, no. 23 Q Was it sometime in July or August? 24 A Yes, I believe. It was before the hearing 25 was supposed t o -- before I had even found anything out 10 1 about the hearing. 2 MR. KABUSK: No further questions, Your 3 Honor. 4 THE COURT: Anything else you want to tell 5 me, ma'am? 6 THE WITNESS: Just what I was telling -- I 7 don't even remember his name -- the attorney for PennDOT, 8 we would not have let our insurance go. We have not ever 9 had a lapse in our insurance, and if I would have known -- 10 if I would have been properly informed that our insurance 11 was canceled, I would have gotten it right away. 12 Like I was telling him, I was pregnant at 13 the time. We were told we could never get pregnant. I 14 would not jeopardize myself or my baby by not having 15 insurance. 16 THE COURT: Okay. Thank you, ma'am. 17 Anything else? 18 MR. KABUSK: Nothing further, Your Honor. 19 THE COURT: May I see Defendant's -- you 20 may step down. Do you have any other testimony or 21 witnesses you want to present? 22 MRS. HAWBAKER: No. 23 THE COURT: Okay. You can pass up Exhibit 24 Number 1, please. Anything else you wish to say, Mr. 25 Kabusk? 11 1 MR. KABUSK: Just a brief closing, if you so 2 wish. 3 THE COURT: You may. 4 MR. KABUSK: Your Honor, the Department's 5 burden in these cases is very simple. One is that the 6 vehicle in question is a type required to be registered, 7 and two, the required automobile liability insurance had 8 been canceled or otherwise terminated. 9 And 1786 sets forth various defenses, and 10 one of them is that the lapse of insurance was for less 11 than 31 days, and that the owner or registrant did not 12 operate the vehicle. Here the lapse is greater than 31 13 days. 14 THE COURT: What if -- is it 31 days from 15 the lapse or 31 days from when they got notice of the 16 lapse? I mean I would find as a fact in this case that 17 they did reinstate the coverage within 31 days of the time 18 that they were notified. 19 MR. KABUSK: It is from the lapse, I would 20 argue, Your Honor. 21 THE COURT: Well, are you saying that -- do 22 you have any cases on that, that says that you can't go 23 from the notice? 24 MR. KABUSK: I'm sure I do, if you give me 25 a few minutes. 12 1 THE COURT: Okay. 2 MR. KABUSK: Two, in these cases where the 3 Petitioner claims that they were improperly canceled, the 4 remedy is to go to the insurance department and file a 5 complaint. They did in this case. We've not heard the 6 results of that. The Department is willing to rescind 7 it's suspension if, in deed, the insurance department finds 8 that they were improperly canceled, and there, in deed, was 9 no lapse. 10 THE COURT: Well, I don't -- the insurance 11 department has gotten a letter. I've heard testimony. I 12 don't think there's any reason to disbelieve this young 13 lady that there was a mix-up in the mail, and that really 14 from 19 days after she got the letter from -- she attempted 15 to reinstate the policy immediately. Well, actually on 16 April 13th sent her money order in. I believe her when 17 she says she did that. 18 For whatever reason, Progressive didn't 19 accept it. She received notice -- even if you take the 20 May 1st date, which I believe she didn't get that until a 21 few days after that, they had insurance in effect by May 22 the 19th. So I think under those circumstances that they 23 did everything that was reasonably possible to make sure 24 that they had insurance coverage within 31 days after the 25 cancellation. And you're saying on that factual basis I 13 1 have no discretion? 2 MR. KABUSK: I'm saying, Your Honor, that 3 the Vehicle Code is clear. It talks about a lapse in 4 insurance responsibility coverage. Intent does not play a 5 part in this particular provision. Even though they were 6 very timely in their response, there is a lapse greater 7 than 31 days, a period of coverage. Thirty-one days is the 8 period. Not from their notice, but it is an actual lapse. 9 THE COURT: Well, they didn't even know 10 that they were lapsed until 27 days after it took place. 11 They thought they had insurance. She did everything she 12 could possibly have done. She sent it in. To me it 13 would seem to compound that error, to suspend her 14 registration. 15 MR. KABUSK: Well, and that's why if it was 16 an improper cancellation her remedy is not here today. 17 Her remedy is to go to the insurance department. 18 THE COURT: Yet you're telling me that you 19 will give credence to the insurance department's 20 determination, yet I don't have the ability to listen and 21 find the facts and find that based upon what I heard that 22 it would seem to be an improper cancellation or if not an 23 improper cancellation, they certainly had taken all 24 reasonable steps to remedy that. 25 MR. KABUSK: Well, Your Honor, very 14 1 respectfully I would say that is the case. 2 THE COURT: Okay. 3 MR. KABUSK: Despite her reasonable steps, 4 the question is was there a lapse of greater than 31 days, 5 and two, the cases state that her remedy is to go to the 6 insurance department and have a proceeding there to 7 determine if there, in deed, was an improper cancellation. 8 THE COURT: In the meantime how's she 9 supposed to get this baby around and get back and forth to 10 work for the next three months? 11 MR. KABUSK: Your Honor, I understand the 12 concern there. I explained to them that the Department is 13 suspending only their privilege to register this particular 14 vehicle. 15 THE COURT: Well, they sure don't look like 16 they've got a whole bunch of vehicles sitting in their 17 parking lot of their trailer. So that would seem to me to 18 be the same as telling them they can't drive for the next 19 three months. Let me take a look at the cases. What 20 cases do you want me to read, Mr. Kabusk? 21 MR. KABUSK: I would cite to you Riley, 22 Commonwealth of Pennsylvania, Department of Transportation 23 versus Riley, R-i-1-e-y, 615 A.2d. 905. Morgan, 24 M-o-r-g-a-n, versus Commonwealth of Pennsylvania, 25 Department of Transportation 701 A.2d. 1, and the case of 15 1 Ohara, 0-h-a-r-a, versus Commonwealth of Pennsylvania, 2 Department of Transportation, 691 A.2d. 1,001. 3 THE COURT: Okay. Good. I'll take a 4 look at them, and I'll take this under advisement, and then 5 issue an order. Okay. Court's adjourned. 6 (Whereupon, the proceedings concluded at 7 12:24 p.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. ichele A. Eline Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. 3 of Date 4000 Edward E. Guido, J. Ninth Judicial District 17 WALTER W. HAWBAKER & JENNIFER H. HAWBAKER V. COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES : NO. 2000-5090 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Guido, J., February 13, 2001. The Commonwealth of Pennsylvania Department of Transportation has appealed our Order of December 5, 2000, sustaining the appeal of Walter and Jennifer Hawbaker (the Hawbakers) from the suspension of the registration privilege in connection with their family vehicle. The reasons for our order are set forth in the opinion that follows. FACTUAL BACKGROUND The Hawbaker's received notice from Progressive Insurance that the coverage on their van would be cancelled unless their premium was paid by April 13, 2000. Mrs. Hawbaker mailed a money order for the premium to Progressive prior to April 13, 2000. Apparently the payment arrived after the deadline. Rather than accept it, Progressive returned the premium payment to the Hawbakers and cancelled their coverage, effective April 13, 2000. Unfortunately, the notice of cancellation did not reach the Hawbakers on a timely basis. 2000-5090 CIVIL The Hawbaker's first notice of cancellation came in the form of a letter from Penn DOT which they received on May 10, 2000. The letter advised them that their insurance had been cancelled, effective April 13, 2000, and that their vehicle registration would be suspended if they did not purchase additional insurance by May 13, 2000. They immediately contacted Progressive. The insurer verified that their premium had been returned and that their insurance coverage would not be reinstated. Despite their best efforts, they could not make arrangements to secure insurance with another company until May 19, 2000. Since their van had been uninsured for a period in excess of thirty (30) days, and since it was operated by the Hawbakers during the lapse in coverage, Penn DOT suspended their vehicle registration for three months pursuant to Section 1786(D) of the Vehicle Code.' The suspension was to be effective July 28, 2000. The Hawbakers appealed the Department's action to this court and we stayed the registration suspension pending a hearing on the merits. The Hawbaker's also filed a complaint with the Insurance Department challenging the propriety of Progressive's action in cancelling their policy. The matter was still pending before the Insurance Department at the time of our hearing.2 The Hawbakers are a young, married couple with an infant child. They are struggling to make ends meet. The suspension of the registration on their only vehicle would result in a severe hardship to them and would, under the circumstances, be manifestly unfair. 1 75 Pa. C.S.A. § 1786(D). a Counsel for Penn DOT was aware of the matter pending before the insurance Department prior to the commencement of the hearing on this appeal. 2000-5090 CIVIL DISCUSSION At the time of the hearing we found Mrs. Hawbaker to be both credible and sympathetic. We were satisfied that she and her husband had been caught up in a bearacutic nightmare involving their insurer, the Department of Transportation, and the Insurance Department. They had no intention of allowing their insurance to lapse. They did everything they thought necessary to keep it in force. After they discovered that it had, in fact, lapsed, they took immediate action to have it reinstated at the earliest possible date. Since their prior insurer would not agree to reinstate them, despite their best efforts, they could not obtain alternate coverage until May 19, 2000, nine days after they received notice that they had no insurance 3 However, that date was 36 days after their insurance had been cancelled. Therefore, Penn DOT felt that it had no alternative but to suspend the Hawbaker's registration on the vehicle in question pursuant to Section 1786(D) of the Vehicle Code. At the conclusion of the hearing, Penn DOT's lawyer suggested, and we agreed, that the instant case was controlled by the Commonwealth Court's decisions in Stone v. Dept. of Transportation Bureau of Driver Licensing, 166 Pa. Commonwealth. 643, 647 A.2d 287 (1994), and O'Hara v Department of Transportation Bureau of Driver Licensing, 691 A.2d 1001 (Pa. Commonwealth 1997). As the Stone Court noted: While we too have sympathy for Stone's predicament, we agree with Common Pleas that the Code is clear. The Department is required to suspend the operating privilege of the owner or registrant of a vehicle, when the Department determines that that person has operated the vehicle without insurance. There is no requirement that the Department establish that the person was at fault or that the person intended to operate the vehicle without insurance. Neither is the Department required to prove that the owner or registrant actually received notice of an imminent lapse of insurance. 3 Two of those days fell on a weekend. 2000-5090 CIVIL 647 A.2d at 288. The O'Hara Court quoted with approval the above language from Stone. It also held that a collateral attack upon the appropriateness of the insurance cancellation could not be made in the Court of Common Pleas. Quoting from Department of Transportation. Bureau of Driver Licensing v. Riley, 150 Pa. Commonwealth 259, 615 A.2d 905 (1992) the 'Hara Court stated: Sections 8, 9 and 10 of the Insurance Act, Act of June 5, 1968, P.L. 140, as amended, 40 P.S. §§ 1008.8, 1008.9, and 1008.10, provide a method by which an insured, who may have been illegally cancelled or refused renewal of an insurance policy, can obtain a review of the insurer's actions. This is the exclusive remedy to challenge an alleged violation of the Commonwealth's insurance laws and a vehicle owner may not collaterally challenge such a cancellation in the context of an appeal from an operation or registration privilege suspension imposed by DOT. Riley, 615 A.2d at 909. (emphasis added) 691 A.2d at 1003. The Court went on to state: where an insured believes that an insurer has improperly terminated insurance coverage, the insured has an exclusive remedy to challenge the cancellation under the Insurance Act. If the insured does not challenge the termination of insurance, the insured has waived that issue. However, if the insured makes the challenge and prevails against the insurer, DOT may not suspend the insured's vehicle registration. (emphasis added) 691 A.2d 1004. In the case at bar, the Hawbaker's had, in fact, challenged the cancellation of their insurance with the Insurance Department. Those proceedings were still pending at the time of the hearing before us. Since the O Hara Court made it very clear that the Department may not suspend the insureds' registration if they prevail in their challenge 4 2000-5090 CIVIL before the Insurance Department, we held that the Department's action was premature. Therefore, we sustained the appeal a FEBRUARY 'J^, 2001 Walter & Jennifer Hawbaker 20 West Springville Road Boiling Springs, Pa. 17007 George Kabusk, Esquire Riverside Office Center 1101 South Front Street Harrisburg, Pa. 17104 :sld 0!? Edward E. Guido, J. a' C a The Department now contends that we should have granted a continuance pending the outcome of the action before the Insurance Department. In retrospect, that may have been the better course of action. However, no request for continuance was made by the Department, even though it was aware that a favorable decision by the Insurance Department would preclude suspension of the Hawbakers' vehicle registration. 17 r='? `?YL?GiviA a CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 19311 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: WALTER W. HAWBAKER and JENNIFER H. HAWBAKER vs COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES 00-5090 CIVIL TERM 21 CD 2001 The documents comprising the record have been numbered from No. 1 to36 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 2 -16- 01 . (:?? j ?n d-A?- C is R. Long, pro onotary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please sign and date Date Signature & Title ? Y e Commonwealth Court of Pennsylvania Charles R. Hostutler DeputyProthonotary/dvef Clerk March 22, 2001 P.O. Box 11730 Hanish. PA 17108 717-255-1650 Notice of Discontinuance of Action RE: Hawbaker, et al v. DOT Appeal of: Type of Action: Notice of Appeal No. 21 CD 2001 Cumberland County Court of Common Pleas Agency Docket Number: 2000-5090 Civil Term The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Harold Cramer, Esq. Walter Hawbaker Timothy Peter Wile, Esq. Certified from the Record MAR 2 1 2001 Party Name Party Type Bureau of Motor Vehicles Appellant Walter W. Hawbaker Appellee Bureau of Motor Vehicles Appellant and Order Exit CFA?_: C..: - S v `s r i" C .