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HomeMy WebLinkAbout06-3835IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KAREN K. DEKLINSKI AND JOSEPH A. DEKLINSKI, Petitioners, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent NO. OG - 335 &4 Tiu-- PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION NOW COME, Petitioners, Karen K. Deklinski and Joseph A. Deklinski, by and through their undersigned attorneys, and petition the Court, pursuant to 75 Pa.C.S.A. §1377, for review of an order of the Department of Transportation suspending Petitioners' vehicle registration and in support thereof represent as follows: 1. Petitioners, Karen K. Deklinski and Joseph A. Deklinski, are adult individuals and residents of the Commonwealth of Pennsylvania with a current address of 406 N. Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. 2. Petitioners currently possess a valid registration for a 2000 Saturn Sedan, VIN#IG8JW52R1YY607866 ("motor vehicle"), which registration was originally issued to Petitioners in or about March 2002, and has not heretofore been suspended. 3. By letter, dated June 6, 2006, Petitioners were notified in writing by the Department of Transportation of the entry of an Order suspending their registration because the insurance covering the motor vehicle was terminated. A true and correct 1 copy of the notice of suspension is attached hereto as "Exhibit A" and incorporated by reference. 4. The suspension of Petitioners' registration for the motor vehicle is improper and unlawful for the following reasons: A. In February 2006, Petitioners sent a partial payment to Allstate Insurance Company ("Allstate") for payment of the insurance premium for the motor vehicle which payment was due on March 9, 2006. B. On March 9, 2006, Petitioners mailed a check to Allstate for payment in full of the insurance premium which check was never cashed by Allstate. C. Allstate terminated Petitioners' insurance on April 11, 2006. A true and correct copy of the termination is attached hereto as "Exhibit B" and incorporated by reference. D. On April 20, 2006, after receiving notification from the Department of Transportation, Petitioners learned that Allstate had not cashed their March 9, 2006 check, and, dumfore, Pddmmas seat a new check to ABstde. E. Allstme remstaled Petitioners' insurance on ar about April 29, 2006. WHEREFORE, Petitiaeas, Kama K. DeUmski and Joseph A. Deklinski, r r request yaw lkmorable Count to set this matter for a hemnb de na-, .ter ? to P- C.S.A. ¢1377, ind that r-ie Ord of the Department of Transportation be set aside. 2 Respectfully submitted this G day of July, 2006. By: jg44e?? sta .Teeter, PA ID No. 84068 George A. Michak, PA ID No. 72604 MICHAK TEETER & LEWIS LLC 2000 Linglestown Road, Suite 100 Harrisburg, PA 17110 Telephone: (717) 920-8503 Fax: (717) 920-8505 kdt@,michakteeter.com gam@michakteeter.com Attorneys for Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KAREN K. DEKLINSKI AND JOSEPH A. DEKLINSKI, Petitioners, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent VERIFICATION NO. 66-3r35 cpvd-Fex- I verify that the statements made in the foregoing PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION are true and correct to the best of my knowledge, information and belief This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authorized by counsel in her capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Date: By: Joseph A. Deklinski IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KAREN K. DEKLINSKI AND JOSEPH A. DEKLINSKI, Petitioners, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent VERIFICATION No. 06 - 383 S e;,;f I f-e-r.- I verify that the statements made in the foregoing PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION are true and correct to the best of my knowledge, information and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions and averments authorized by counsel in her capacity as attorney for the party or parties hereto. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Date: l/ d G By: Karen K. Deklinski IJIBI A T JU1,06 06 10:59a Karen K Deklinski 717-761-3665 P.1 06-19-2006 15:24 From- fTITTT2993T T-006 P.DD3/005 F-415 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES PO BOX 66674 HARRISBURG, PA 17106.8674 wwwArav,state.ps.us YIDS 063509999049156 001 TITLE# 53804414 PROCESSING DATE 060530 TRANSACTION CODE 00060 KAREN K It JOSEPH A DEKLINSKI 406 N FRONT ST WORMLEYSBURG. PA 17043 OFFICIAL NOTICE MAIL DATE: 06106106 Dear Customer: The Department mcemly requested that you provide to with proof of financial responsibility (insurance) for the following vehicle: MAKE: SATURN YEAR: 2000 BODY TYPE: SEDAN LICENSE PLATE#! FCA1607 TII.E#:53804414 V11Vy:IG8]W52R1YY607866 This information was requested because ALLSTATE INSURANCE COMPANY notified us that the insurance policy covering the vehicle listed above was terminated on 03/09106. Either no response was received or the information you provided was not acceptable. As a resuh, the registration for the vehicle listed above win be mupeni al for three months effective 07/11166 at 1101 A.M. as authorized by Section 1786(d) of the Vehicle Code. THIS IS A FINAL ORDER OF SUSPENSION. You are ris foi; d to news your current registration plate, sticker and card to the Deportment imroefistely. Credit toward serving this srrspe®on will not beght wsIII the Department receives your registration products. Additionally, you am requited to pay a restoration fee m the amount of $50 to the Department in accordance with Section 1960 of the Vehicle Code. Please make check or money order payable to the PA Deparbumt of Transportation. DO NOT SEND CASH. Within 30 days of your eligibility due for restoration, you will also be required to show proof of insurance for this vehick. We have enclosed a u1f addressed emektpe for your use whim-coffc poadmg and a mailing label to assist with-the return of your registration plate, sticker and card. When the Department receives your registration products, we will send you a letter within 3 weeks confirming that they were received. If, after 3 weeks of mailing year registration plate, sticker sed card to the Department yon do not receive a letter stating your registration products ware reecired, phase contact as Immediately, 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 mail date of this letter, If you file an appeal in the County Court, the Coup win give you a rime-stamped cenffied copy of the appeal. In order for the appeal to be valid, you must send this time stamped cenif ed copy of the appeal by certified mail to: Pennsylvania Dept of I'muspartatiaa office or chief Counsel 1101 S Front Street-3rd Floor Hanhi arg, PA 171012416 ,. EXHIBIT B ;mr2'-P5 2':33 Fran Paul Mattaa Asency bm Allstate Insurance Company 3810 Market Street Camp Hill, PA 17011 Bus: (717) 731-5450 Fax: (717( 731.0699 June 21, 2006 Bureau of Motor Vehicles Pennsylvania DepmunM of Transportation PO Box 68674 Harrisburg, Pennsylvania 17106-8674 Re: Joseph DckHnAd Policy no. 908828547 T-442 P 001/002 F-300 WAIISMte. 1Euh In auaa w" Please see copy of computer screen aclawwledging termination endorsement effective 04/11/2006. ;ur21-56 21:53 Frgr Print Key Output 5722SS1 V5R3M0 040528 A4000076 Display Device . . . . . : QPADEV0IQQ User . . . . . . . . . . : A017875 Insured: JOSEPH DEKLINSKI Address: 406 N FRONT ST Home: ( 717 ) 236 - 1059 MRP: Status : TERMINATED Premium: $1,972.93+ AAP : $1,972,93+ of Balance: $0.00+ Lst B11: $0.00+ Cur Due: $0.00+ Due On : YEAR MAKE PGS 1 2002 TRAILBLAZER G 2 2000 LS2 A 3 4 COV LIMITS 1 AA 100/300 2 AA 100/300 4 (ENTER) CONTINUE { (F8) REVIEW RENEWAL T-412 P.052/002 F301 Page 1 06/20/06 17.20.14 Pol No: 908828547 11/09 City: WORML EYSBURG State. PA Zipcode: 17043 - 1114 Org Year: 05 Agent: 41 17875 **AUTO SUMMARY** 6 Mo.NTR: 00 AR/ER: POSTINGS EF-SYSTEM 041206 $327.16+ ERM ENDORSE 011111L $664-DO- Pay Pln: 5 PAY ASH-DIR MAIL 21806 5336.84- Nxt Due: $0.00 NSTALMENT FEE 021806 $8.00+ B11 Act: ARCHIVE NSTALMENT FEE 021506 $8.00+ On: 4/11/13 ASH-DIR MAIL 011606 $673.62- Claims: NO VIN CLASS TERR OYR TR DSC LPC PREM 35563 2620104300 0140 05 00 Y Y $776.82 07866 2620704300 0140 05 18 Y N 51.196.11 PREM COV LIMITS PREM COV LIMITS $106.37 BB 100 $101.91 CC 5 $178.72 88 100 $236.33 CC 5 A (F1) HELP (F3) QUIT (F4) BACK SCREEN ) VIEW BILL (F10) RESCAN Version: PREM $33.64 $41.52 5 MORE r?? C"' " 7 ?? r -? ? i NN G7 ?V ? ? '.. {? 4 _ '\ r KAREN K. DEKLINSKI And JOSEPH A. DEKLINSKI, Petitioners V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-3835 CIVIL TERM ORDER OF COURT AND NOW, this 14"' day of July, 2006, upon consideration of the Petition for Review of Order of Department of Transportation Suspending Vehicle Registration, a hearing is scheduled for Wednesday, October 4, 2006, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. PETITIONERS ARE forthwith to serve a notice of the appeal and copies of the Petition for Review and Order for Hearing on the Department of Transportation at the address shown in the Department's notice of entry of order, by certified mail, return receipt requested. BY THE COURT, Vt/lXista D. Teeter, Esq. George A. Michak, Esq. MICHAK TEETER & LEWIS LLC 2000 Linglestown Road Suite 100 Harrisburg, PA 17110 Attorneys for Petitioners P ,pb 0`? .,- ,?? j,' i I'1 Pennsylvania Department of Transportation Office of Chief Counsel 1101 S. Front Street Third Floor Harrisburg, PA 17104-2516 Respondent f :rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KAREN K. DEKLINSKI AND NO. 06-3835 CIVIL TERM JOSEPH A. DEKLINSKI, Petitioners, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent AFFIDAVIT OF SERVICE I, George A. Michak, Esquire, being duly sworn according to law, deposes and says that a true and correct copy of the PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION was served on the Defendant, Commonwealth of Pennsylvania, Department of Transportation, by depositing a copy thereof in the United States' mail, certified, restricted delivery, return receiptrequested, postage prepaid, addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel 1101 S. Front Street - 3`" Floor Harrisburg, PA 171042516 The Defendant was served with the Petition for Review on July 10, 2006, as evidenced by a representative's signature on the green card attached hereto as "Exhibit A" and incorporated by reference. Sworn to before me this -3 15.+ day of ( 2j006. NOTARY PUBLIC s aw TH ?QNSYMNIA M commissiabmroperis: Roc®L. 8kidmael Nobly ?Pqulic b?y MY omarmouN*07MI.M1 ttegrge X.Ilichak, Esquire Mombor, PomynvonM ArociWan of Notaries EXHIBIT A N 13or VIft Nana 1, 2, and & ANo oanpleDe jAA. Nam 4 N Ro*kbd D*iwy is deeged. a Prkft year nano and addmee on t* nlvaeo ao that we an mtum the card to you. ¦ Anach this Card to the beck of the Mdpleoe, ar on the ftw tN apace pemift 1. ANdeAddmWWto. Ifol kmralmmranl4 ?We aftm brow. 0 No a Traft L" Om" a ft%4wlypa 0Repletered 0ReamReowforaladmaw 0 snared MM 13 aaa 4. ReWioeed Deevayl Aft fay 01b s MeoN Nwn W nlaA&ft mhdoemw 7006 0100 0003 4884 2388 M Pam 1, Patarary 1004 Oaegaae Rears Raalpt wresse?Mae ? r r_ - r y -•. T -, r. .? r. n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KAREN K. DEKLINSKI AND NO. 06-3835 CIVIL TERM JOSEPH A. DEKLINSKI, Petitioners, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent AFFIDAVIT OF SERVICE I, Megan C. Huff, Esquire, being duly sworn according to law, deposes and says that a true and correct copy of the Petition For Review Of Order Of Department Of Transportation Suspending Vehicle Registration And Order Of Court, dated July 14, 2006, were served on the Defendant, Commonwealth of Pennsylvania, Department of Transportation, by depositing a copy thereof in the United States' mail, certified, restricted delivery, return receiptrequested, postage prepaid, addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel 1101 S. Front Street - 3°' Floor Harrisburg, PA 171042516 The Defendant was served with the Petition for Review and Order of Court on July 26, 2006, as evidenced by a representative's signature on the green card attached here" "Exhibit A" and incorporated by reference. Megan C. Sworn to before me this day of 2006. EXHIBIT A ' i Complete Reins 1, 2, and 3. Also complete ' *am 4 R Restricted 0shmery Is desired. i Print your name and address on the reverse so that we can return the card to you. W Attach this card to the back of the meilpiece, or on the from H space permits. 1. Article Addressed to: Pa. Dept, of Transportat: Office of Chief Counsel 1101 S. Front St. F1. 3 Harrisburg, PA 17104-2570 A. SWWWre X 0 Afire O Adds S. ReceMd by(P~AW* r-DA" y dfBRIMyN?J(, v LU11? Wm 17 13y" If VES, enter &Wrea below: 0 No JUL 8 06 3. Service Type IN Dermed Mom o Express Meil ? Rapbbrsd 17 Return Receipt for marchensi s f] Insured Moll 0 C.O.D. 4. Restricted DSIKW Oft Fee) ? Yes 2' RArWe owe of 7006 0810 0002 6338 2006 (Uarattr eon eerMer •beb P8 Form 3611, Fgip q 20111 Derrwao Rosso Receipt toseeeeawtsa,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY KAREN K. DEKLINSKI AND NO. 06-3835 CIVIL TERM JOSEPH A. DEKLINSKI, Petitioners, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent CERTIFICATE OF SERVICE I, Megan C. Huff, Esquire, counsel for Plaintiffs hereby certify that I served a true and correct copy of the within AFFIDAVIT OF SERVICE, by first class mail, postage prepaid, on the following: Pennsylvania Department of Transportation Office of Chief Counsel 1101 S. Front Street - 3`d Floor Harrisburg, PA 17104-2516 Date: 2 oW BY: Respectfully Submitted, MICHAK TEETER Me&*t. Huff, EsgbirJ-d/ Attorney for Defendant Supreme Court I.D. #84391 Michak Teeter & Lewis, LLC 2000 Linglestown Road, Suite 100 P.O. Box 62188 Harrisburg, PA 17106 Tel. (717) 920-8508 Fax (717) 920-8505 n c ,a to KAREN K. DEKLINSKI IN THE COURT OF COMMON PLEAS OF and JOSEPH A. DEKLINSKI, CUMBERLAND COUNTY, PENNSYLVANIA Petitioners V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, : Respondent NO. 06-3835 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of October, 2006, upon consideration of the Petition for Review of Orden of Department of Transportation Suspending Vehicle Registration, and following a hearing held on this date, the record is declared closed and the matter is taken under advisement. By the Court, 0 i.? J. esley orge A. Michak, Esquire 2000 Linglestown Road, Ste 10 P.O. Box 62188 Harrisburg, PA 17106 For the Petitioner 0rge H. Kabusk, Esquire Office of Chief Counsel 1101 South Front Street- 3rd Floor Harrisburg, PA 17104-2516 For the Respondent pcb 12 0 9o, 0z JI 0 9 KAREN K. DEKLINSKI IN THE COURT OF COMMON PLEAS OF and JOSEPH A. DEKLINSKI, CUMBERLAND COUNTY, PENNSYLVANIA Petitioners V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent NO. 06-3835 CIVIL TERM TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE J. WESLEY OLER, JR., J. Cumberland County Courthouse, Carlisle, Pennsylvania., on October 4, 2006, In Courtroom Number 2. APPEARANCES: George A. Michak, Esquire For the Petitioner George H. Kabusk, Esquire For the Respondent .i l?V/ FOR PETITIONER Karen Deklinski • INDEX TO WITNESSES DIRECT CROSS 8 16 INDEX TO EXHIBITS FOR RESPONDENT MARKED ADMITTED 1 - Packet 3 5 FOR PETITIONER 1 - 6/21/06 letter 12 15 2 - Check register 23 23 2 0 0 1 October 4, 2006 Carlisle, Pennsylvania 2 (The following proceedings were held at 9:46 a.m.) 3 (Commonwealth Exhibit No. 1 marked for 4 identification.) 5 THE COURT: This is the time and place for a 6 hearing on an appeal from a suspension of vehicle registration 7 in the case of Deklinski versus Commonwealth of Pennsylvania. 8 We will let the record indicate that the 9 Petitioners are present in court with their counsel, George A. 10 Michak, Esquire, and the Commonwealth is represented by George 11 Kabusk, Esquire. Mr. Kabusk. 12 MR. KABUSK: Good morning, Your Honor. By official 13 notice dated and mailed June 6, 2006, the Department notified 14 the Petitioner, Karen K. and Joseph A. Deklinski, that their 15 registration for a Saturn, 2000 Saturn, with title 53804414 was 16 being suspended for 3 months effective 7/11/06, pursuant to 17 Section 1786(d) of the Vehicle Code. 18 What has been marked as Commonwealth Exhibit No. 1 19 is a packet of documents under seal and certification. I 20 provided a copy to the Petitioner. Sub-exhibit No. 1 is the 21 Official Notice of Suspension dated and mailed 6/6/06. 22 Additionally, that notice indicated that the 23 information was requested by Allstate Insurance Company in that 24 the department had requested them to provide proof of financial 25 responsibility for the Saturn. The information was requested 3 0 0 1 because of Allstate Insurance Company notifying the Department 2 that the insurance policy covering the vehicle listed was 3 terminated on 3/9/06, and that either no response was received 4 or the information provided was acceptable, therefore, the 5 registration was being suspended pursuant to Section 1786(d) of 6 the Vehicle Code. 7 Sub-exhibit number 2 is the electronic transmission 8 from Allstate Insurance Company certifying the termination of 9 the insurance on 3/9/06. 10 Sub-exhibit number 3 is a computer printout of 11 Vehicle Inquiry Detail by Title screen from the Department of 12 Transportation's record for a 2000 Saturn Sedan with Title No. 13 53804414, license plate No. FCA1607, registered by Karen K. and 14 Joseph A. Deklinski, expiration date February of 2007. 15 Sub-exhibit number 4 is a letter dated 4/20/06 to 16 the Defendant regarding notification of new insurance 17 cancellation, that letter dated April 20, 2006, informed the 18 Petitioner, quote, We recently received information from your 19 insurance company about a cancellation of your automobile 20 insurance. We realize that you may have only changed 21 companies; however, insurance companies are only required to 22 notify us of a cancelation of insurance but not when they add 23 you as a customer. Therefore, we need to verify your new 24 coverage with this letter. Please take the time to read this 25 letter carefully and provide us with the needed information. 4 • • 1 Failure to respond to this letter within three weeks may result 2 in suspension of the vehicle registration. 3 Then it indicated that Allstate Insurance Company 4 indicated the coverage on the 2000 Saturn. was cancelled on 5 3/9/2006. 6 Sub-Exhibit number 5 is a registration record which 7 appears in the file of the Defendant, Karen K. and Joseph A. 8 Deklinski, registration No. 53804414, in the Bureau of Motor 9 Vehicles, Harrisburg, Pennsylvania. 10 I move for the admission of what has been marked 11 Commonwealth Exhibit No. 1. 12 THE COURT: Mr. Michak. 13 MR. MICHAK: I have no objection to that. 14 THE COURT: Commonwealth Exhibit No. 1 is admitted. 15 Are you resting? 16 MR. KABUSK: Yes. If I may site to the Court the 17 pertinent sections. 1786(d) of the Vehicle Code states: The 18 Department of Transportation shall suspend the registration of 19 a vehicle for three months if it determines the required 20 financial responsibility was not secured as required by this 21 chapter. 22 There is a provision, an exception: This 23 subsection shall not apply in the following circumstances: 24 That the lapse was for a period of less than 31 days and the 25 owner or registrant did not operate the vehicle. 5 • • 1 Then I would direct the Court's attention to a 2 paragraph 3 under (d) regarding the registration, suspension 3 and the scope of this hearing: An owner whose vehicle 4 registration has been suspended under this section shall have 5 the same right to appeal under Section 1377 as provided for 6 cases in suspension of vehicle registration for other purposes. 7 The filing of an appeal shall act as a supersedeas, and the 8 suspension shall not be imposed until determination of the 9 matter is provided in Section 1377. 10 The Court's scope of review and then appeal from a 11 vehicle registration suspension shall be limited to 12 determining, one, the vehicle is registered or a type that is 13 required to be registered under this title; and 2, there has 14 been either notice to the depart ment of a lapse of termination 15 or cancellation in the financial responsibility coverage as 16 required by law for that vehicle; or that the owner, 17 registrant, or driver was requested to provide proof of 18 financial responsibility to the department, a police officer, 19 or another driver, and failed to do so. 20 Notice to the department of the lapse of 21 termination or cancellation or the failure to provide the 22 requested proof of financial responsibility shall create a 23 presumption that the vehicle lacked the requisite financial 24 responsibility. 25 The presumption may be overcome by producing clear 6 • 1 and convincing evidence that the vehicle was insured at all 2 relevant times. 3 Further pertinent to this matter is any alleged 4 lapse, cancellation, or termination of a policy of insurance 5 financial or -- may only be challenged by requesting review by 6 the Insurance Commission. 7 That is the department's case, Your Honor. 8 THE COURT: All right. What did that last sentence 9 say again? 10 MR. KABUSK: Any alleged lapse, cancellation or 11 termination of a policy of insurance by an insurer may only be 12 challenged by requesting review by the insurance commissioner, 13 and then it goes on pursuant to Article 20 of the Act of May 17 14 known as the Insurance Company Law of 1921. 15 Proof that a timely request had been made to the 16 insurance commissioner for such review shall act as supersedeas 17 staying the suspension of registration or operating privilege 18 under this section pending a termination pursuant to Section 19 2009(a) of the Insurance Company Law of 1921, or in the event 20 that the further review of a hearing is requested by either 21 party, a final order pursuant to Section 2009 of the Insurance 22 Company Law of 1921. 23 THE COURT: All right. Thank you. Mr. Michak. 24 MR. MICHAK: Thank you, Your Honor. It is our 25 position, and I will be taking testimony from Ms. Deklinski 7 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shortly, that while there was a lapse of policy, it is our belief that that lapse was for less than 30 days, and he did not drive that vehicle for the lapse period, we believe we followed within the exceptions of Section 1786(d)(2) that provides -- that excludes these circumstances from the termination. And so under those circumstances, if I may, Your Honor, I would like to call Karen Deklinski as a witness. THE COURT: All right. KAREN K. DEKLINSKI, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. MICHAK: Q Would you please state your name for the record. A Karen K. Deklinski. Q What is your current address? A 406 North Front Street, Wormleysburg, Pennsylvania. Q Do you own the vehicle that is in question here, the 2000 Saturn sedan with title No. 53804414? A Yes, I do. Q Is that vehicle currently insured? A Yes, it is. Q Who is the insurance carrier? A Allstate. Q Do you recall a time in April of 2006 when you 8 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 became aware of an issue regarding the insurance for that vehicle? A Yes, I did. Q How did you become aware that. there was an issue regarding the insurance on that vehicle? A We received notification I thought was from the department of Transportation, it could have been from Allsate, at the beginning of April that our insurance had lapsed. Q Sorry, you said it could have been from Allstate. You received notification from someone -- A Received notification first week in April that our insurance had lapsed. Q At the time that you received that letter, whether it was from Allstate or the department of' Transportation, what was your understanding, prior to receiving that letter, what was your understanding regarding the status of the insurance on the vehicle? A That our insurance had been paid in full, it was current. Q Could you describe please the payment history regarding the premiums for the insurance on that vehicle immediately prior to your receipt of that. letter in April? A We received a traditional notification that premium was due, the premium was pretty high, so in February I made a partial payment. We got notification from Allstate that they 9 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wanted the full payment by March 9, so I waited until March 8, and I mailed check No. 9855 for $336 and I think 55 cents for the total payment due then to Allstate for that premium period. Q When you made that second payment in March, was it your understanding that the premium was then paid in full? A Yes. Q What did you do after you received this notice in April of 2006 indicating that there was no coverage on the vehicle? A The first thing we did was call our Allstate agent and he indicated to us not to worry, that payments cross in the mail all the time and that he would contact the department to get proof of insurance for us. Q Did you do anything else at that time? A Well, we didn't get the proof of insurance, so we were looking for another vehicle and we were somewhat suspicious, uncomfortable, so my husband called the department of the Transportation to see if we could get proof of insurance and they said, in fact, you do not have insurance on your car. Q Once you were informed that there was a real issue with the insurance, did you continue to drive the vehicle? A No, we did not. Q Why not? A We have two kids and a brand new business and a house and I (inaudible). 10 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT REPORTER: I am sorry, I didn't hear your answer. THE WITNESS: If we had an accident, I would have lost all of that. THE COURT: Would have lost what? THE WITNESS: Just being a new small business owner and having a house and my two kids, if we would have been in an accident in an uninsured vehicle, we could have lost all of that. BY MR. MICHAK: Q So you were aware that there was an issue but did you still understand that you did have insurance or should have had insurance? A My understanding was our insurance was paid in full since I had sent the check. When we realized there was an issue, we didn't drive the car until we tried to finally get to the bottom of what happened and tried to get a copy of the cancelled check. Then April 25, we received a letter from the department of Transportation, it was dated April 20, that we would be suspended and that is when we called Allstate again and explained the information that we had and we walked a check over to the agent the next day. Q So you paid the premium a second time? A When Allstate indicated that they never cashed the 11 9 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 check that was mailed on March 8, and then since the insurance had lapsed, we had to write a check for over $2,000 to get our insurance reinstated and, in fact, it was reinstated on April 29 then. Q So there is no record that Allstate cashed the first check? A No, there is no record that Allstate cashed the March 8 check. Q Do you have an understanding as to when the insurance coverage was terminated on this vehicle? A My understanding was April 11. Q What is the basis of that understanding? A On a document I received from Allstate indicating the termination of the insurance was April 11. MR. MICHAK: Your Honor, I am going to ask that a document be marked as Petitioner Exhibit 1. (Petitioner Exhibit 1 marked for identification. ) BY MR. MICHAK: Q Mrs. Deklinski, could you take a look at the documents I just handed to you and tell me if you recognize that document? A Yes, this is a computer screen that my agent printed out and sent to the department of Transportation. Q How is it that you are familiar with this document? A He sent us a copy as well. 12 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So you received this from your insurance agent? A Yes, I did. Q This formed the basis for your belief that your policy coverage terminated on April 11? A Yes. Q Why is that? A It says termination endorsement April 11, 106. Q That termination endorsement April 11, 106, again, forms the basis of your belief as to when. the policy coverage was cancelled, correct? A Correct. MR. MICHAK: Your Honor, I would like to move to have this document admitted into evidence. THE COURT: Mr. Kabusk. MR. KABUSK: Your Honor, I would object to the admission of this document if it is going to prove the truth of the matter regarding when the termination or cancellation or lapse was effective. There is no one here to cross-examine. I would object to its admission. THE COURT: Mr. Michak. MR. MICHAK: Your Honor, I understand that objection. We are actually putting the document in, the document forms the basis of Ms. Deklinski.'s belief as to when her policy terminated, and she has testified that it is her understanding that it terminated on April. 11. This is 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documentation that she received and forms the basis of that belief. We are not admitting or seeking to have it admitted for any other purpose, Your Honor, other than forming the basis of her belief. THE COURT: Is her belief determinative of when it was, in fact, terminated? MR. MICHAK: We hope so, Your Honor. THE COURT: Why would it be, would be the question? MR. MICHAK: Well, Your Honor, I understand the question -- I think that there is a question, at least in the Petitioner's mind -- excuse me, Your Honor, I think there is a question from our perspective as to when the insurance actually terminated. The Commonwealth has produced documents suggesting that it terminated on the 9th of March. The Petitioner was unaware of that termination; in fact, as she has testified, became aware of an issue in April. And even when the documentation finally caught up with her, never understood the termination to occur any time other than on April 11. And within 31 days from that date procured the insurance and financial responsibility to continue to have the vehicle registered. So the question -- Your Honor_ is correct -- ultimately will be whether that is sufficient to overcome the Commonwealth's proof. But once again, I am not putting this in 14 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really for truth of the matter as set forth in this, other than the fact that my client was operating really in good faith to try to continue to have insurance on this vehicle, has a belief as to when coverage lapsed, and promptly had coverage put in place again within the 31-day period. THE COURT: All right. Petitioner's Exhibit 1 is admitted for the limited purpose of indicating what the Petitioner believed when she received it, but it is not being admitted for the truth of the issue of when the insurance was actually terminated. MR. MICHAK: Thank you, Your Honor. THE COURT: All right. BY MR. MICHAK: Q Ms. Deklinski, do you have an understanding as to when coverage was reinstated on this vehicle? A April 29 coverage was reinstated. Q Based on your understanding of when coverage terminated and your understanding of when coverage was reinstated, do you have an understanding of the period of time that lapsed while the vehicle was uninsured? A About 18 days. Q Once again during that period of time did you drive the vehicle? A No, we did not. MR. MICHAK: Those are all the questions that I 15 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have, Your Honor. THE COURT: All right, Mr. Kabusk. CROSS-EXAMINATION BY MR. KABUSK: Q Mrs. Deklinski, were you aware that your insurance was to be terminated on March 9 of 2006? A No. Q Why is it then you wrote a check you said on March 8, 2006? A The premium was due and they indicated the total balance was due by then and I waited until the last day. Q So you are aware that the premium was due -- A Correct, the premium was due. Q -- on March 9? A That is correct. Q And you wrote the check on March 8? A Correct. Q You are essentially arguing, aren't you, that it was improperly terminated? A No. MR. MICHAK: I am going to object to that question, Your Honor. I think he is asking the witness to draw a legal conclusion. I think her testimony is what it is, and I don't know that that question properly reflects what the previous testimony was. 16 0 • 1 THE COURT: Mr. Kabusk. 2 MR. KABUSK: Strike the question, Your Honor. 3 THE COURT: All right. 4 BY MR. KA BUSK: 5 Q Then you are testifying that your received the 6 notice fr om PennDOT on April 20, 2006, which requested you to 7 submit in formation? 8 A I received the notice on April 25. It was dated 9 April 20, and within 2 days we had to walk a check over to 10 Allstate for over $2,000 then because it had lapsed. 11 Q Allstate what, informed you that it lapsed as of 12 March 9, 2006? 13 A Allstate gave me a printout that it had terminated 14 on April 11. 15 Q I thought you just said your policy ended on March 16 9? 17 A The policy premium was due on March 9. My 18 understanding of insurance is when the premium is paid, the 19 coverage continues. I was under the impression we still had 20 coverage. 21 Q Because you wrote the check on March 8? 22 A Because I wrote the balance due on March 8. 23 MR. KABUSK: No further questions. 24 THE COURT: Mr. Michak. 25 MR. MICHAK: No further questions, Your Honor. 17 0 • 1 BY THE COURT: 2 Q What is the policy period that we are talking 3 about, it ran from when to when? 4 A I have to go backwards 6 months from March 8 or 5 March 9, so they were 6-month periods. 6 Q March 9 of 2006, is that right? 7 A Correct. It would be October 2005 to March 9, 8 2006. We made quarterly payments. 9 Q Your practice was to pay half the premium in the 10 middle of the period. 11 A Correct. They were over $300 per payment, so we 12 made partial payments, the premium was over $600, so our 13 partial payment was more than $300, so our practice was to make 14 partial payments. 15 Q The first payment you made was when and for how 16 much during this period? 17 A The payment, first payment in 2006, was in February 18 for approximately $300.36. I think I can refer to -- it was 19 $336.84 on February 18, which included an $8 installment fee. 20 Q You paid that? 21 A Correct, it is paid, and that is reflected and I 22 have a copy of that cancelled check. 23 Q So they accepted that check? 24 A Correct, they accepted that check and notified me 25 that was a partial payment and that the full balance was due. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Then how much was due and when after that? A By March 9 the $300 and I believe it was $35, I have the exact number that was due by March 9, and I mailed it on March 8. Q Instead of sending that in, what did you send in? A I did send that in. It was never cashed. Q I know you say eventually you sent that in, but somehow you sent some other check in the interim that the insurance company did not accept? A No, that wouldn't be correct. The first check in February, the second check due in March was never cashed. They are saying it was never received. So when it finally got to the bottom of what had happened, Allstate. indicated we now owe them over $2,000 because the insurance, in fact, lapsed; and then we paid that check on April 27 to restore insurance on April 29th. Q Maybe I misunderstood. I thought you sent some check in and they said they we won't accept a partial payment? A No. Q No? A No. Q So you are saying you did everything right, you sent your February check in, and that was in the right amount, and then on March 8 you paid the balance. I am sure I heard something about the insurance company didn't accept the partial 19 0 0 1 payment. 2 A No, the insurance company told me they never 3 received the partial payment. 4 Q Oh, never received it? 5 A They told me they never received the partial 6 payment. 7 Q They never received the February payment? 8 A The March, they never received the March payment. 9 So the February is still okay, and we have a copy of the 10 cancelled check for the first partial payment. Then the March 11 one due, they never received. 12 Q The check you sent, you took over on March 8, or 13 sent in, they never got that? 14 A Correct, that is what they are saying. That 15 started this entire problem then. 16 Q You have your pay stubs or your check stubs that 17 show that you wrote that check? 18 A Yes, I do. 19 Q Are they here? 20 MR. MICHAK: Let me take a look, Your Honor, I 21 think I have a printout of the register. 22 THE WITNESS: The check register. 23 MR. KABUSK: Your Honor, if I may. I would argue 24 that this is clearly an argument regarding the propriety of the 25 relationship between the Petitioner and the insurance company. 20 • 0 1 That matter should not be heard in here, it should be with the 2 insurance commissioner. It is clear in the statute that if 3 there is any argument that is to be brought up in that context, 4 not in this hearing. 5 I would cite to you the case of Fagen which upholds 6 that any claim that was an improper termination of any sort is 7 to the insurance commissioner, not in the context of a 8 registration suspension. The Fagen case is 875 A.2d 1195. 9 Your Honor, we have, he said she said, what the 10 insurance company said, hearsay, that is not what should be 11 going on in this hearing, Your Honor. 12 This is clear. Was there a germination, yes or no. 13 We have the prima facie case right here with PennDOT documents, 14 there is no one here from the insurance company, there is no 15 clear and convincing evidence. I would argue that there was 16 coverage. I would argue that the checks going on about when it 17 was paid, when it is not paid, is not relevant to this hearing. 18 THE COURT: All right. Mr. Michak. 19 MR. MICHAK: Your Honor, I, of course, would 20 disagree with that. I think that ultimately the issue that we 21 are attempting to address is, is the period of time during 22 which the policy was lapsed, and that certainly was the purpose 23 of -- the large part of Ms. Deklinski's testimony was that, 24 again, the period of time that elapsed was from April 11 25 through April 28 or the 29th. 21 • i 1 I think Your Honor's questions with respect to the 2 March payment, which Ms. Deklinski has testified to that she 3 wrote a check to make that payment, really, if nothing else, 4 certainly goes to the good faith attempt of the Petitioner to 5 maintain the insurance on this vehicle and certainly to avoid 6 driving without financial responsibility for that insurance 7 coverage. And so I think to that extent, it does have bearing 8 on this matter. And I don't think that Your Honor's inquiry 9 was improper. 10 THE COURT: Do you have a copy of the check stub? 11 MR. MICHAK: What I have, Your Honor, it is my 12 understanding that Mrs. Deklinski prints her checks 13 electronically, and I have a copy of her check register that 14 she brought with her this morning, and I am happy to show that 15 to counsel and have her authenticate this register and put that 16 into the record for what it is worth. 17 THE COURT: All right. Mr. Kabusk, at worse, I am 18 going to be admitting some evidence that may turn out to be 19 irrelevant; but I have not had that much experience with this 20 type of case and I would rather make a complete record rather 21 than one that has to be supplemented on remand, so I will 22 permit her to identify the exhibit. 23 MR. KABUSK: For the record, I do make an objection 24 to the admission of this. I would argue, once again, it is 25 hearsay, I would argue best evidence rule and argue that it 22 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 needs to be properly authenticated. THE COURT: Who would be the proper party to authenticate her own -- MR. KABUSK: I would say at least a copy of the check of some sort. This is just a computer printout. THE COURT: Was the check ever returned to you? THE WITNESS: It was never found. THE COURT: It was never found. You mailed it? THE WITNESS: I mailed the check. THE COURT: We will have that marked as Petitioner's Exhibit 2. (Petitioner's Exhibit No. 2 marked for identification.) THE COURT: Can you identify Petitioner's Exhibit No. 2 for the record? THE WITNESS: Yes, this is a copy of my check register. I use Quickbooks check writing system, and that is March 1 to March 15 of all the checks that I wrote in that time period. THE COURT: All right. Does that show a check to Allstate? THE WITNESS: Yes. It shows check No. 9855 for $336.84. In the amount owed, it has the policy number, it says Allstate automobile policy 901572747. THE COURT: Petitioner's Exhibit No. 2 is admitted 23 i • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 over objection. MR. MICHAK: Thanks, Your Honor. THE COURT: Mr. Michak, do you want to have an opportunity to call a witness from Allstate to say when the insurance actually did lapse? MR. MICHAK: Actually, Your Honor, I would like that opportunity; unfortunately, the individual from Allstate that we had asked to attend this hearing was unavailable, actually out of town today, and so we don't have that witness to present. We had entertained the possibility of seeking a continuance, but I think under the circumstances we will simply rely on Ms. Deklinski's testimony and have no further witnesses. THE COURT: Well, as Mr. Kabusk points out, her testimony really does not establish when this policy was cancelled. It establishes when she thought it was cancelled, but that is not the same thing. So if you want an opportunity to call that witness, I would be happy to give you one. MR. MICHAK: That would require a continuance, Your Honor. May I ask for a brief recess. THE COURT: Certainly. We will take a short recess. (Brief Recess.) THE COURT: We will let the record indicate that 24 0 0 1 the Court has reconvened in the matter of Deklinski versus 2 Commonwealth of Pennsylvania. Mr. Michak. 3 MR. MICHAK: During our brief recess I made an 4 effort to contact Mr. Paul Mattix (phonetic), who is the 5 Deklinski's insurance agent, and I was unable to reach him. He 6 had indicated to me yesterday that he would be traveling today 7 and I could reach him by cell phone and was unable to do that. 8 I have, however, discussed this matter with my 9 client, and while we certainly appreciate Your Honor's 10 willingness to continue the matter until we could obtain 11 somebody from Allstate to testify in this matter, we are 12 actually not going to ask for a continuance and likely will 13 stand on the record as it exists today. 14 THE COURT: All right. Mr. Kabusk, do you have any 15 further testimony you wish to present? 16 MR. KABUSK: No further testimony, Your Honor. I 17 would like to ask a few questions regarding Petitioner Exhibit 18 No. 2. 19 THE COURT: I am sorry, you were not finished 20 cross-examining. 21 (The witness resumes the stand for continued 22 cross-examination.) 23 BY MR. KABUSK: 24 Q On Petitioner Exhibit No. 2, does any name of an 25 account holder appear on that exhibit? 25 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Exhibit 2 is the check register? Q Yes. A Does the name of an account holder -- Q Is your name on there? A I don't recall. I just printed it out from the check regi ster this morning, off the computer. Q Is the name of a ny bank on there? A No, not a check register. Q So that is not a document that was prepared by the bank? A It is not -- an accountant copy, it is my personal check register at Quickbook, which is an older version of Quicken. It prepares when we do the checks electronically. Q So that is just an accounting program in your computer, correct? A It is a check register writing program. Q But there is no indication of what bank account that checkbook is tied to, is there? A A printout, no, but that is available if you would like to have that. Q But that is not here, is it? A No. Q I noticed on the balance there is a negative in front of those numbers, correct? A The check balancing -- as was probably pretty 26 0 0 1 clear, I don't balance my checkbook on a monthly basis. I 2 would assume that if I balanced my check, I would have realized 3 that the check that I wrote on March 8 was not -- did not cash. 4 So that is a running balance on the right-hand side, which is a 5 fallacy of the old Quickbooks program as well, that is why we 6 are into Quicken. 7 Q But there is a negative sign in front of the 8 balance, is that correct? 9 A It is an artificial running balance because the 10 deposits were not included in that check register report. The 11 only thing that was included would be the number of checks, so 12 that negative number is how many checks have been written over 13 a period of time which is a negative number. If you ran a 14 positive program in Quickbooks, it would be a positive number. 15 Q So what you are showing us though indicates that 16 there is a negative balance on your account when you wrote that 17 check, is that correct? 18 A No, sir, that is not correct. There was not a 19 negative balance in my checkbook when I wrote that check. 20 Q But that document has not been prepared by a bank 21 -- 22 A That is correct. 23 Q -- where that checking account is at? 24 A That is correct. 25 MR. KABUSK: No further questions. 27 • • 1 THE COURT: Okay. 2 MR. MICHAK: I have no questions, Your honor. 3 BY THE COURT: 4 Q Do you actually write checks? Is there a checkbook 5 somewhere? 6 A The checkbook is a computer program. You get 7 sheets of checks, you get three on a sheet. And I have them in 8 a drawer and I pull one out and run it through the copier and 9 run through a printed... Then at a certain period of time you 10 go back and just print out the number of checks you wrote so 11 that you can keep track of how many checks you wrote. 12 There is an automatic reconciliation program in 13 there that I don't use. That is why you would see a large 14 running balance to reconcile, not just checks written, it 15 doesn't include your paycheck or anything that you get 16 deposited. 17 Q But there was a piece of paper that was written out 18 with this amount on it that was mailed in the United States 19 mail to the insurance company? 20 A Uh-huh. 21 Q Yes? 22 A Yes. 23 THE COURT: All right. Anything further? 24 BY MR. KABUSK: 25 Q What bank is that checking account at? 28 0 0 1 A PSECU. 2 Q You have no documentation from them today regarding 3 that check, do you? 4 A Correct. The check did not clear. Allstate said 5 they did not receive the check. 6 THE COURT: Mr. Michak. 7 MR. MICHAK: Nothing further, Your Honor. 8 THE COURT: You may step down, thank you. 9 Is there any further evidence to be presented? 10 MR. KABUSK: No, Your Honor. 11 MR. MICHAK: No, Your Honor. 12 THE COURT: We will enter this order: And now, 13 this 4th day of October, 2006, upon consideration of the 14 Petition for Review of Department of Transportation Suspending 15 Vehicle Registration, and following a hearing held on this 16 date, the record is declared closed and the matter is taken 17 under advisement. 18 Counsel are requested to furnish to the Court 19 briefs on the issues which they perceive to exist in this case 20 within 30 days of the date of this order. 21 Court is adjourned. 22 (Court adjourned at 10:40 a.m.) 23 24 25 29 ?It 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. (249bA=- A (? XaWA?K - Patricia C. -Bddrett Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Nt)v 22 zan6 Date 30 KAREN K. DEKLINSKI and : IN THE COURT OF COMMON PLEAS OF JOSEPH A. DEKLINSKI, : CUMBERLAND COUNTY, PENNSYLVANIA Petitioners V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent CIVIL ACTION-LAW : No. 06-3835 CIVIL TERM IN RE: PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION BEFORE OLER, J. ORDER OF COURT AND NOW, this 27`h day of November, 2006, upon consideration of Petitioners' Petition for Review of Order of Department of Transportation Suspending Vehicle Registration, following a hearing held on October 4, 2006, and for the reasons stated in the accompanying opinion, the Petitioners' appeal is sustained and the suspension of vehicle registration noticed by a mailing of the Department of Transportation on June 6, 2006, with respect to Petitioners' 2000 Saturn automobile is reversed. Xr/ista D. Teeter, Esq. George A. Michak, Esq. MICHAK, TEETER & LEWIS, LLC 2000 Linglestown Road Suite 100 Harrisburg, PA 17110 Attorneys for Petitioners BY THE COURT, ?Wesley&?r, Jr., ir- VINtfAlkSNN3d 1 ? : I 1 WV BZ AON 9001 AUVIG'NO'1 i 1 18d 3H1 -40 3013?0--Og lu eorge H. Kabusk, Esq. Assistant Counsel Commonwealth of Pennsylvania Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent KAREN K. DEKLINSKI and : IN THE COURT OF COMMON PLEAS OF JOSEPH A. DEKLINSKI, : CUMBERLAND COUNTY, PENNSYLVANIA Petitioners V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent CIVIL ACTION-LAW No. 06-3835 CIVIL TERM IN RE: PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., November 27, 2006. In this appeal from a suspension of vehicle registration based upon a termination of insurance coverage, Petitioners maintain that the duration of the non-coverage was within the parameters of an exception to the requirement for suspension.' A hearing on the petition was held on October 4, 2006. For the reasons stated in this opinion, the appeal will be sustained and the suspension reversed. STATEMENT OF FACTS Petitioners are Karen K. Deklinski and Joseph A. Deklinski,2 who reside at 406 North Front Street Street, Wormleysburg, Cumberland County, Pennsylvania, 17043.3 They are, and at all times pertinent to this case were, the owners of a ' Petition for Review of Order of Department of Transportation Suspending Vehicle Registration, filed July 6, 2006. A second contention, appearing in Petitioners' post-hearing brief-that, if a lapse of sufficient duration did occur, the three-month suspension was excessive under the circumstances-does not appear in Petitioner's petition, and in any event is incompatible with the applicable statute. See Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C.S. §1786(d). 2 Petition for Review of Order of Department of Transportation Suspending Vehicle Registration, filed July 6, 2006. 3 N.T. 8, Hearing, October 4, 2006 (hereinafter N.T. ?. 2000 Saturn sedan.4 Their automobile insurance company is, and was, Allstate Insurance Company.5 A payment on the policy in the amount of $336.84 was due in February, 2006, and was timely paid by Petitioners on February 18, 2006.6 A check for the next payment, also in the amount of $336.84, was mailed by Petitioners to Allstate on March 8, 2006, prior to the due date.7 However, this payment was apparently not received or was misplaced by the insurance company.8 In the first week of April, 2006, Petitioners received a notice from Allstate that their insurance had lapsed.9 Upon receipt of this notice, Petitioner Karen K. Deklinski called Petitioners' insurance agent and was advised that the payment must have crossed in the mail and that he would contact the Department of Transportation to obtain proof of insurance coverage for Petitioners. 10 When such proof was not forthcoming, Petitioner Joseph A. Deklinski contacted the Department of Transportation and was advised that its records did not indicate that the vehicle's insurance was still in effect. II Petitioners immediately stopped driving the vehicle. 12 On April 25, 2006, Petitioners received a notice dated April 20, 2006, from the Department advising that it had "recently" received information from Petitioners' insurance company of a 4 N.T. 8. ' N.T. 8. 6 N.T. 18. ' N.T. 18, 19, 23. ' N.T. 20. 9 N.T. 9. Petitioner Karen K. Deklinski testified that the notice was sent either by the insurer or the Department, but the Department's records do not show that it came from the Department. N.T. 9; Commonwealth's Ex. 1, Hearing, October 4, 2006 (hereinafter Commonwealth's/Petitioners' Ex. ?. 10 N.T. 10. " N.T. 10. 12 N.T. 10. 2 cancellation of their automobile insurance.13 The notice advised that the date of cancellation had been March 9, 2006.14 Petitioner Karen K. Deklinski hand-carried a replacement check to Petitioners' insurance agent the following day, April 26, 2006.15 The insurance coverage was reinstated by Allstate on April 29, 2006.16 On June 6, 2006, the Department sent a notice to Petitioners that the registration for their Saturn was being suspended for a period of three months, effective July 11, 2006, as a result of the insurance termination.17 On June 21, 2006, Petitioners' insurance agent sent a computer printout to the Department indicating that the effective termination date of Petitioners' insurance had been April 11, 2006.18 Whether the Department responded to this communication does not appear of record. From the Department's notice of suspension dated June 6, 2006, Petitioners filed a timely appeal to this court. 19 At the hearing on the appeal, the Department presented evidence to support the suspension in the form of one exhibit, consisting of a certified copy of its records relating to Petitioners' vehicle. 20 The first item in the exhibit was the notice of suspension, dated June 6, 2006, from which Petitioners have appealed. The second item was a sort of docket printout generated by the Department, entitled "Suspension Inquiry Detail," listing the date of the suspension notice as "05/30/06," the effective date of the suspension as "07/11/06," the "determination date" as "03/09/06," and the basis for the suspension as a violation of "Section 13 N.T. 11. 14 Commonwealth's Ex. 1. 15 N.T. 11. 16 N.T. 12. 17 Commonwealth's Ex. 1. 18 Petitioners' Ex. 1. 19 Petition for Review of Order of Department of Transportation Suspending Vehicle Registration, filed July 6, 2006. 20 Commonwealth's Ex. 1. 3 1786E" of the Vehicle Code .21 The third item was a computer printout generated by the Department entitled "Vehicle Inquiry Detail by Title," describing the vehicle in question. 22 The fourth item was a copy of the notice dated April 20, 2006, sent by the Department to Petitioners, indicating the Department had "recently" received information that Petitioners' insurance had lapsed.23 The balance of the hearing was devoted to testimony of Petitioner Karen K. Deklinsky and exhibits in support of Petitioners' position as indicated above. The court found Ms. Deklinski's testimony entirely credible. At the conclusion of the hearing the court issued an order taking the matter under advisement and soliciting briefs on the issues presented. Briefs have now been received from counsel for Petitioners and the Department. DISCUSSION Section 1786(d)(1) of the Vehicle Code provides, in pertinent part, as follows: The Department of Transportation shall suspend the registration of a vehicle for a period of three months if it determines the required financial responsibility was not secured as required by this chapter ....Z4 An exception to this requirement for suspension is provided for in Section 1786(d)(2)(i) in a case where: [t]he owner or registrant proves to the satisfaction of the department that the lapse in financial responsibility coverage was for a period of less than 31 days and that the owner or registrant did not operate or permit the operation of the vehicle during the period of lapse in financial responsibility. 25 An appeal from a suspension imposed by the Department arising out of a lapse of insurance coverage is permitted to the appropriate court of common 21 Commonwealth's Ex. 1. 22 Commonwealth's Ex. 1. 23 Commonwealth's Ex. 1. 24 Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C.S. §1786(d)(1). 25 Act of February 12, 1984, P.L 26, §3, as amended, 75 Pa. C.S. §1786(d)(2)(i). 4 pleas. 26 The court's scope of review in such a case is limited to determining whether: (i) the vehicle is registered or of a type that is required to be registered under this title; and (ii) there has been either notice to the department of a lapse, termination or cancellation in the financial responsibility coverage as required by law for that vehicle or that owner, registrant or driver was requested to provide proof of financial responsibility to the department, a police officer or another driver and failed to do so. Notice to the department of the lapse, termination or cancellation or the failure to provide the requested proof of financial responsibility shall create a presumption that the vehicle lacked the requisite financial responsibility. This presumption may be overcome by producing clear and convincing evidence that the vehicle was insured at all relevant times.27 On such an appeal, the Department does not have to show that the registrant received notice of the termination. Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C.S. §1786(e)(2). The Code further provides that "[a]n alleged lapse, cancellation or termination of a policy of insurance may only be challenged by requesting review by the Insurance Commissioner ...." Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C.S. §1786(d)(5). In the present case, the factual issue(s) for determination by the court are not whether Petitioners' vehicle had been uncovered by insurance for some period, but (a) when that period commenced, (b) whether it was less than thirty-one days, and (c) whether the vehicle had been driven during that period. The only evidence presented by the Commonwealth to support its position on the first issue was a docket-type notation reading "Determination Date: 03/09/06," a cryptic and undocumented reference. Given the balance of the evidence, the court is of the view that Petitioners' situation falls within the exception to suspension provided by the legislature, in that the period of non-coverage of Petitioners' vehicle was less than thirty-one days and that the vehicle was not driven during the period of non-coverage. 26 Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C. S. §1786(d)(3). 27 Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C. S. §1786(d)(3). 5 Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 27 h day of November, 2006, upon consideration of Petitioners' Petition for Review of Order of Department of Transportation Suspending Vehicle Registration, following a hearing held on October 4, 2006, and for the reasons stated in the accompanying opinion, the Petitioners' appeal is sustained and the suspension of vehicle registration noticed by a mailing of the Department of Transportation on June 6, 2006, with respect to Petitioners' 2000 Saturn automobile is reversed. BY THE COURT, Js/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Krista D. Teeter, Esq. George A. Michak, Esq. MICHAK, TEETER & LEWIS, LLC 2000 Linglestown Road Suite 100 Harrisburg, PA 17110 Attorneys for Petitioners George H. Kabusk, Esq. Assistant Counsel Commonwealth of Pennsylvania Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent 6 • • KAREN K. DEKLINSKI IN THE COURT OF COMMON PLEAS OF and JOSEPH A. DEKLINSKI, CUMBERLAND COUNTY, PENNSYLVANIA Petitioners V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent NO. 06-3835 CIVIL TERM TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE J. WESLEY OLER, JR., J. Cumberland County Courthouse, Carlisle, Pennsylvania, on October 4, 2006, In Courtroom Number 2. APPEARANCES: George A. Michak, Esquire For the Petitioner George H. Kabusk, Esquire For the Respondent I"0 Z ? :01 WV (f 030 90OZ hECEVVi' Cl«c ]Hi J0 • FOR PETITIONER Karen Deklinski FOR RESPONDENT 1 - Packet FOR PETITIONER 1 - b/Ll/Ub letter 2 - Check register • INDEX TO WITNESSES DIRECT CROSS 8 16 INDEX TO EXHIBITS MARKED J ADMITTED 5 12 15 23 23 2 • • 1 October 4, 2006 Carlisle, Pennsylvania 2 (The following proceedings were held at 9:46 a.m.) 3 (Commonwealth Exhibit No. 1 marked for 4 identification.) 5 THE COURT: This is the time and place for a 6 hearing on an appeal from a suspension of vehicle registration 7 in the case of Deklinski versus Commonwealth of Pennsylvania. 8 We will let the record indicate that the 9 Petitioners are present in court with their counsel, George A. 10 Michak, Esquire, and the Commonwealth is represented by George 11 Kabusk, Esquire. Mr. Kabusk. 12 MR. KABUSK: Good morning, Your Honor. By official 13 notice dated and mailed June 6, 2006, the Department notified 14 the Petitioner, Karen K. and Joseph A. Deklinski, that their 15 registration for a Saturn, 2000 Saturn, with title 53804414 was 16 being suspended for 3 months effective 7/11/06, pursuant to 17 Section 1786(d) of the Vehicle Code. 18 What has been marked as Commonwealth Exhibit No. 1 19 is a packet of documents under seal and certification. I 20 provided a copy to the Petitioner. Sub-exhibit No. 1 is the 21 Official Notice of Suspension dated and mailed 6/6/06. 22 Additionally, that notice indicated that the 23 information was requested by Allstate Insurance Company in that 24 the department had requested them to provide proof of financial 25 responsibility for the Saturn. The information was requested 3 0 • 1 because of Allstate Insurance Company notifying the Department 2 that the insurance policy covering the vehicle listed was 3 terminated on 3/9/06, and that either no response was received 4 or the information provided was acceptable, therefore, the 5 registration was being suspended pursuant to Section 1786(d) of 6 the Vehicle Code. 7 Sub-exhibit number 2 is the electronic transmission 8 from Allstate Insurance Company certifying the termination of 9 the insurance on 3/9/06. 10 Sub-exhibit number 3 is a computer printout of 11 Vehicle Inquiry Detail by Title screen from the Department of 12 Transportation's record for a 2000 Saturn Sedan with Title No. 13 53804414, license plate No. FCA1607, registered by Karen K. and 14 Joseph A. Deklinski, expiration date February of 2007. 15 Sub-exhibit number 4 is a letter dated 4/20/06 to 16 the Defendant regarding notification of new insurance 17 cancellation, that letter dated April 20, 2006, informed the 18 Petitioner, quote, We recently received information from your 19 insurance company about a cancellation of your automobile 20 insurance. We realize that you may have only changed 21 companies; however, insurance companies are only required to 22 notify us of a cancelation of insurance but not when they add 23 you as a customer. Therefore, we need to verify your new 24 coverage with this letter. Please take the time to read this 25 letter carefully and provide us with the needed information. 4 t • 1 Failure to respond to this letter within three weeks may result 2 in suspension of the vehicle registration. 3 Then it indicated that Allstate Insurance Company 4 indicated the coverage on the 2000 Saturn was cancelled on 5 3/9/2006. 6 Sub-Exhibit number 5 is a registration record which 7 appears in the file of the Defendant, Karen K. and Joseph A. 8 Deklinski, registration No. 53804414, in the Bureau of Motor 9 Vehicles, Harrisburg, Pennsylvania. 10 I move for the admission of what has been marked 11 Commonwealth Exhibit No. 1. 12 THE COURT: Mr. Michak. 13 MR. MICHAK: I have no objection to that. 14 THE COURT: Commonwealth Exhibit No. 1 is admitted. 15 Are you resting? 16 MR. KABUSK: Yes. If I may site to the Court the 17 pertinent sections. 1786(d) of the Vehicle Code states: The 18 Department of Transportation shall suspend the registration of 19 a vehicle for three months if it determines the required 20 financial responsibility was not secured as required by this 21 chapter. 22 There is a provision, an exception: This 23 subsection shall not apply in the following circumstances: 24 That the lapse was for a period of less than 31 days and the 25 owner or registrant did not operate the vehicle. 5 • 1 Then I would direct the Court's attention to a 2 paragraph 3 under (d) regarding the registration, suspension 3 and the scope of this hearing: An owner whose vehicle 4 registration has been suspended under this section shall have 5 the same right to appeal under Section 1377 as provided for 6 cases in suspension of vehicle registration for other purposes. 7 The filing of an appeal shall act as a supersedeas, and the 8 suspension shall not be imposed until determination of the 9 matter is provided in Section 1377. 10 The Court's scope of review and then appeal from a 11 vehicle registration suspension shall be limited to 12 determining, one, the vehicle is registered or a type that is 13 required to be registered under this title; and 2, there has 14 been either notice to the department of a lapse of termination 15 or cancellation in the financial responsibility coverage as 16 required by law for that vehicle; or that the owner, 17 registrant, or driver was requested to provide proof of 18 financial responsibility to the department, a police officer, 19 or another driver, and failed to do so. 20 Notice to the department of the lapse of 21 termination or cancellation or the failure to provide the 22 requested proof of financial responsibility shall create a 23 presumption that the vehicle lacked the requisite financial 24 responsibility. 25 The presumption may be overcome by producing clear 6 • • 1 and convincing evidence that the vehicle was insured at all 2 relevant times. 3 Further pertinent to this matter is any alleged 4 lapse, cancellation, or termination of a policy of insurance 5 financial or -- may only be challenged by requesting review by 6 the Insurance Commission. 7 That is the department's case, Your Honor. 8 THE COURT: All right. What did that last sentence 9 say again? 10 MR. KABUSK: Any alleged lapse, cancellation or 11 termination of a policy of insurance by an insurer may only be 12 challenged by requesting review by the insurance commissioner, 13 and then it goes on pursuant to Article 20 of the Act of May 17 14 known as the Insurance Company Law of 1921. 15 Proof that a timely request had been made to the 16 insurance commissioner for such review shall act as supersedeas 17 staying the suspension of registration or operating privilege 18 under this section pending a termination pursuant to Section 19 2009(a) of the Insurance Company Law of 1921, or in the event 20 that the further review of a hearing is requested by either 21 party, a final order pursuant to Section 2009 of the Insurance 22 Company Law of 1921. 23 THE COURT: All right. Thank you. Mr. Michak. 24 MR. MICHAK: Thank you, Your Honor. It is our 25 position, and I will be taking testimony from Ms. Deklinski 7 0 0 I shortly, that while there was a lapse of policy, it is our 2 belief that that lapse was for less than 30 days, and he did 3 not drive that vehicle for the lapse period, we believe we 4 followed within the exceptions of Section 1786(d)(2) that 5 provides -- that excludes these circumstances from the 6 termination. And so under those circumstances, if I may, Your 7 Honor, I would like to call Karen Deklinski as a witness. 8 THE COURT: All right. 9 10 KAREN K. DEKLINSKI, 11 having been duly sworn, testified as follows: 12 DIRECT EXAMINATION 13 BY MR. MICHAK: 14 Q Would you please state your name for the record. 15 A Karen K. Deklinski. 16 Q What is your current address? 17 A 406 North Front Street, Wormleysburg, Pennsylvania. 18 Q Do you own the vehicle that is in question here, 19 the 2000 Saturn sedan with title No. 53804414? 20 A Yes, I do. 21 Q Is that vehicle currently insured? 22 A Yes, it is. 23 Q Who is the insurance carrier? 24 A Allstate. 25 Q Do you recall a time in April of 2006 when you 8 • • 1 became aware of an issue regarding the insurance for that 2 vehicle? 3 A Yes, I did. 4 Q How did you become aware that there was an issue 5 regarding the insurance on that vehicle? 6 A We received notification I thought was from the 7 department of Transportation, it could have been from Allsate, 8 at the beginning of April that our insurance had lapsed. 9 Q Sorry, you said it could have been from Allstate. 10 You received notification from someone -- 11 A Received notification first week in April that our 12 insurance had lapsed. 13 Q At the time that you received that letter, whether 14 it was from Allstate or the department of Transportation, what 15 was your understanding, prior to receiving that letter, what 16 was your understanding regarding the status of the insurance on 17 the vehicle? 18 A That our insurance had been paid in full, it was 19 current. 20 Q Could you describe please the payment history 21 regarding the premiums for the insurance on that vehicle 22 immediately prior to your receipt of that letter in April? 23 A We received a traditional notification that premium 24 was due, the premium was pretty high, so in February I made a 25 partial payment. We got notification from Allstate that they 9 1 wanted the full payment by March 9, so I waited until March 8, 2 and I mailed check No. 9855 for $336 and I think 55 cents for 3 the total payment due then to Allstate for that premium period. 4 Q When you made that second payment in March, was it 5 your understanding that the premium was then paid in full? 6 A Yes. 7 Q What did you do after you received this notice in 8 April of 2006 indicating that there was no coverage on the 9 vehicle? 10 A The first thing we did was call our Allstate agent 11 and he indicated to us not to worry, that payments cross in the 12 mail all the time and that he would contact the department to 13 get proof of insurance for us. 14 Q Did you do anything else at that time? 15 A Well, we didn't get the proof of insurance, so we 16 were looking for another vehicle and we were somewhat 17 suspicious, uncomfortable, so my husband called the department 18 of the Transportation to see if we could get proof of insurance 19 and they said, in fact, you do not have insurance on your car. 20 Q Once you were informed that there was a real issue 21 with the insurance, did you continue to drive the vehicle? 22 A No, we did not. 23 Q Why not? 24 A We have two kids and a brand new business and a 25 house and I (inaudible). 10 r- r -I LJ • 1 THE COURT REPORTER: I am sorry, I didn't hear your 2 answer. 3 THE WITNESS: If we had an accident, I would have 4 lost all of that. 5 THE COURT: Would have lost what? 6 THE WITNESS: Just being a new small business owner 7 and having a house and my two kids, if we would have been in an 8 accident in an uninsured vehicle, we could have lost all of 9 that. 10 BY MR. MICHAK: 11 Q So you were aware that there was an issue but did 12 you still understand that you did have insurance or should have 13 had insurance? 14 A My understanding was our insurance was paid in full 15 since I had sent the check. When we realized there was an 16 issue, we didn't drive the car until we tried to finally get to 17 the bottom of what happened and tried to get a copy of the 18 cancelled check. 19 Then April 25, we received a letter from the 20 department of Transportation, it was dated April 20, that we 21 would be suspended and that is when we called Allstate again 22 and explained the information 'that we had and we walked a check 23 over to the agent the next day. 24 Q So you paid the premium a second time? 25 A When Allstate indicated that they never cashed the 11 0 0 1 check that was mailed on March 8, and then since the insurance 2 had lapsed, we had to write a check for over $2,000 to get our 3 insurance reinstated and, in fact, it was reinstated on April 4 29 then. 5 Q So there is no record that Allstate cashed the 6 first check? 7 A No, there is no record that Allstate cashed the 8 March 8 check. 9 Q Do you have an understanding as to when the 10 insurance coverage was terminated on this vehicle? 11 A My understanding was April 11. 12 Q What is the basis of that understanding? 13 A On a document I received from Allstate indicating 14 the termination of the insurance was April 11. 15 MR. MICHAK: Your Honor, I am going to ask that a 16 document be marked as Petitioner Exhibit 1. 17 (Petitioner Exhibit 1 marked for identification. ) 18 BY MR. MICHAK: 19 Q Mrs. Deklinski, could you take a look at the 20 documents I just handed to you and tell me if you recognize 21 that document? 22 A Yes, this is a computer screen that my agent 23 printed out and sent to the department of Transportation. 24 Q How is it that you are familiar with this document? 25 A He sent us a copy as well. 12 0 Pr- 0 1 Q So you received this from your insurance agent? 2 A Yes, I did. 3 Q This formed the basis for your belief that your 4 policy coverage terminated on April 11? 5 A Yes. 6 Q Why is that? 7 A It says termination endorsement April 11, '06. 8 Q That termination endorsement April 11, 106, again, 9 forms the basis of your belief as to when the policy coverage 10 was cancel led, correct? 11 A Correct. 12 MR. MICHAK: Your Honor, I would like to move to 13 have this document admitted into evidence. 14 THE COURT: Mr. Kabusk. 15 MR. KABUSK: Your Honor, I would object to the 16 admission of this document if it is going to prove the truth of 17 the matter regarding when the termination or cancellation or 18 lapse was effective. There is no one here to cross-examine. I 19 would obje ct to its admission. 20 THE COURT: Mr. Michak. 21 MR. MICHAK: Your Honor, I understand that 22 objection. We are actually putting the document in, the 23 document f orms the basis of Ms. Deklinski's belief as to when 24 her policy terminated, and she has testified that it is her 25 understand ing that it terminated on April 11. This is 13 0 9 1 documentation that she received and forms the basis of that 2 belief. We are not admitting or seeking to have it admitted 3 for any other purpose, Your Honor, other than forming the basis 4 of her belief. 5 THE COURT: Is her belief determinative of when it 6 was, in fact, terminated? 7 MR. MICHAK: We hope so, Your Honor. 8 THE COURT: Why would it be, would be the question? 9 MR. MICHAK: Well, Your Honor, I understand the 10 question -- I think that there is a question, at least in the 11 Petitioner's mind -- excuse me, Your Honor, I think there is a 12 question from our perspective as to when the insurance actually 13 terminated. 14 The Commonwealth has produced documents suggesting 15 that it terminated on the 9th of March. The Petitioner was 16 unaware of that termination; in fact, as she has testified, 17 became aware of an issue in April. And even when the 18 documentation finally caught up with her, never understood the 19 termination to occur any time other than on April 11. And 20 within 31 days from that date procured the insurance and 21 financial responsibility to continue to have the vehicle 22 registered. 23 So the question -- Your Honor is correct -- 24 ultimately will be whether that is sufficient to overcome the 25 Commonwealth's proof. But once again, I am not putting this in 14 0 9 1 really for truth of the matter as set forth in this, other than 2 the fact that my client was operating really in good faith to 3 try to continue to have insurance on this vehicle, has a belief 4 as to when coverage lapsed, and promptly had coverage put in 5 place again within the 31-day period. 6 THE COURT: All right. Petitioner's Exhibit 1 is 7 admitted for the limited purpose of indicating what the 8 Petitioner believed when she received it, but it is not being 9 admitted for the truth of the issue of when the insurance was 10 actually terminated. 11 MR. MICHAK: Thank you, Your Honor. 12 THE COURT: All right. 13 BY MR. MICHAK: 14 Q Ms. Deklinski, do you have an understanding as to 15 when coverage was reinstated on this vehicle? 16 A April 29 coverage was reinstated. 17 Q Based on your understanding of when coverage 18 terminated and your understanding of when coverage was 19 reinstated, do you have an understanding of the period of time 20 that lapsed while the vehicle was uninsured? 21 A About 18 days. 22 Q Once again during that period of time did you drive 23 the vehicle? 24 A No, we did not. 25 MR. MICHAK: Those are all the questions that I 15 1 have, Your Honor. 2 THE COURT: All right, Mr. Kabusk. 3 CROSS-EXAMINATION 4 BY MR. KABUSK: 5 Q Mrs. Deklinski, were you aware that your insurance 6 was to be terminated on March 9 of 2006? 7 A No. 8 Q Why is it then you wrote a check you said on March 9 8, 2006? 10 A The premium was due and they indicated the total 11 balance was due by then and I waited until the last day. 12 Q So you are aware that the premium was due -- 13 A Correct, the premium was due. 14 Q -- on March 9? 15 A That is correct. 16 Q And you wrote the check on March 8? 17 A Correct. 18 Q You are essentially arguing, aren't you, that it 19 was improperly terminated? 20 A No. 21 MR. MICHAK: I am going to object to that question, 22 Your Honor. I think he is asking the witness to draw a legal 23 conclusion. I think her testimony is what it is, and I don't 24 know that that question properly reflects what the previous 25 testimony was. 16 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Mr. Kabusk. MR. KABUSK: Strike the question, Your Honor. THE COURT: All right. BY MR. KABUSK: Q Then you are testifying that your received the notice from PennDOT on April 20, 2006, which requested you to submit information? A I received the notice on April 25. It was dated April 20, and within 2 days we had to walk a check over to Allstate for over $2,000 then because it had lapsed. Q Allstate what, informed you that it lapsed as of March 9, 2006? A Allstate gave me a printout that it had terminated on April 11. Q I thought you just said your policy ended on March 9? A The policy premium was due on March 9. My understanding of insurance is when the premium is paid, the coverage continues. I was under the impression we still had coverage. Q Because you wrote the check on March 8? A Because I wrote the balance due on March 8. MR. KABUSK: No further questions. THE COURT: Mr. Michak. MR. MICHAK: No further questions, Your Honor. 17 0 0 1 BY THE COURT: 2 Q What is the policy period that we are talking 3 about, it ran from when to when? 4 A I have to go backwards 6 months from March 8 or 5 March 9, so they were 6-month periods. 6 Q March 9 of 2006, is that right? 7 A Correct. It would be October 2005 to March 9, 8 2006. We made quarterly payments. 9 Q Your practice was to pay half the premium in the 10 middle of the period. 11 A Correct. They were over $300 per payment, so we 12 made partial payments, the premium was over $600, so our 13 partial payment was more than $300, so our practice was to make 14 partial payments. 15 Q The first payment you made was when and for how 16 much during this period? 17 A The payment, first payment in 2006, was in February 18 for approximately $300.36. I think I can refer to -- it was 19 $336.84 on February 18, which included an $8 installment fee. 20 Q You paid that? 21 A Correct, it is paid, and that is reflected and I 22 have a copy of that cancelled check. 23 Q So they accepted that check? 24 A Correct, they accepted that check and notified me 25 that was a partial payment and that the full balance was due. 18 0 0 1 Q Then how much was due and when after that? 2 A By March 9 the $300 and I believe it was $35, I 3 have the exact number that was due by March 9, and I mailed it 4 on March 8. 5 Q Instead of sending that in, what did you send in? 6 A I did send that in. It was never cashed. 7 Q I know you say eventually you sent that in, but 8 somehow you sent some other check in the interim that the 9 insurance company did not accept? 10 A No, that wouldn't be correct. The first check in 11 February, the second check due in March was never cashed. They 12 are sayin g it was never received. So when it finally got to 13 the botto m of what had happened, Allstate indicated we now owe 14 them over $2,000 because the insurance, in fact, lapsed; and 15 then we p aid that check on April 27 to restore insurance on 16 April 29t h. 17 Q Maybe I misunderstood. I thought you sent some 18 check in and they said they we won't accept a partial payment? 19 A No. 20 Q No? 21 A No. 22 Q So you are saying you did everything right, you 23 sent your February check in, and that was in the right amount, 24 and then on March 8 you paid the balance. I am sure I heard 25 something about the insurance company didn't accept the partial 19 0 0 1 payment. 2 A No, the insurance company told me they never 3 received the partial payment. 4 Q Oh, never received it? 5 A They told me they never received the partial 6 payment. 7 Q They never received the February payment? 8 A The March, they never received the March payment. 9 So the Fe bruary is still okay, and we have a copy of the 10 cancelled check for the first partial payment. Then the March 11 one due, they never received. 12 Q The check you sent, you took over on March 8, or 13 sent in, they never got that? 14 A Correct, that is what they are saying. That 15 started t his entire problem then. 16 Q You have your pay stubs or your check stubs that 17 show that you wrote that check? 18 A Yes, I do. 19 Q Are they here? 20 MR. MICHAK: Let me take a look, Your Honor, I 21 think I h ave a printout of the register. 22 THE WITNESS: The check register. 23 MR. KABUSK: Your Honor, if I may. I would argue 24 that this is clearly an argument regarding the propriety of the 25 relations hip between the Petitioner and the insurance company. 20 0 0 1 That matter should not be heard in here, it should be with the 2 insurance commissioner. It is clear in the statute that if 3 there is any argument that is to be brought up in that context, 4 not in this hearing. 5 I would cite to you the case of Fagen which upholds 6 that any claim that was an improper terminat ion of any sort is 7 to the insurance commissioner, not in the co ntext of a 8 registration suspension. The Fagen case is 875 A.2d 1195. 9 Your Honor, we have, he said she said, what the 10 insurance company said, hearsay, that is not what should be 11 going on in this hearing, Your Honor. 12 This is clear. Was there a term ination, yes or no. 13 We have the prima facie case right here with PennDOT documents, 14 there is no one here from the insurance company, there is no 15 clear and convincing evidence. I would argue that there was 16 coverage. I would argue that the checks going on about when it 17 was paid, when it is not paid, is not relevant to this hearing. 18 THE COURT: All right. Mr. Michak. 19 MR. MICHAK: Your Honor, I, of course, would 20 disagree with that. I think that ultimately the issue that we 21 are attempting to address is, is the period of time during 22 which the policy was lapsed, and that certainly was the purpose 23 of -- the large part of Ms. Deklinski's testimony was that, 24 again, the period of time that elapsed was from April 11 25 through April 28 or the 29th. 21 0 0 1 I think Your Honor's questions with respect to the 2 March payment, which Ms. Deklinski has testified to that she 3 wrote a check to make that payment, really, if nothing else, 4 certainly goes to the good faith attempt of the Petitioner to 5 maintain the insurance on this vehicle and certainly to avoid 6 driving without financial responsibility for that insurance 7 coverage. And so I think to that extent, it does have bearing 8 on this matter. And I don't think that Your Honor's inquiry 9 was improper. 10 THE COURT: Do you have a copy of the check stub? 11 MR. MICHAK: What I have, Your Honor, it is my 12 understanding that Mrs. Deklinski prints her checks 13 electronically, and I have a copy of her check register that 14 she brought with her this morning, and I am happy to show that 15 to counsel and have her authenticate this register and put that 16 into the record for what it is worth. 17 THE COURT: All right. Mr. Kabusk, at worse, I am 18 going to be admitting some evidence that may turn out to be 19 irrelevant; but I have not had that much experience with this 20 type of case and I would rather make a complete record rather 21 than one that has to be supplemented on remand, so I will 22 permit her to identify the exhibit. 23 MR. KABUSK: For the record, I do make an objection 24 to the admission of this. I would argue, once again, it is 25 hearsay, I would argue best evidence rule and argue that it 22 0 0 1 needs to be properly authenticated. 2 THE COURT: Who would be the proper party to 3 authenticate her own -- 4 MR. KABUSK: I would say at least a copy of the 5 check of some sort. Thi s is just a computer printout. 6 THE COURT: Was the check ever returned to you? 7 THE WITNESS: It was never found. 8 THE COURT: It was never found. You mailed it? 9 THE WITNESS: I mailed the check. 10 THE COURT: We will have that marked as 11 Petitioner's Exh ibit 2. 12 (Pet itioner' s Exhibit No. 2 marked for 13 identification.) 14 THE COURT: Can you identify Petitioner's Exhibit 15 No. 2 for the re cord? 16 THE WITNESS: Yes, this is a copy of my check 17 register. I use Quickbo oks check writing system, and that is 18 March 1 to March 15 of a ll the checks that I wrote in that time 19 period. 20 THE COURT: All right. Does that show a check to 21 Allstate? 22 THE WITNESS: Yes. It shows check No. 9855 for 23 $336.84. In the amount owed, it has the policy number, it says 24 Allstate automob ile poli cy 901572747. 25 THE COURT: Petitioner's Exhibit No. 2 is admitted 23 • • 1 over objection. 2 MR. MICHAK: Thanks, Your Honor. 3 THE COURT: Mr. Michak, do you want to have an 4 opportunity to call a witness from Allstate to say when the 5 insurance actually did lapse? 6 MR. MICHAK: Actually, Your Honor, I would like 7 that opportunity; unfortunately, the individual from Allstate 8 that we had asked to attend this hearing was unavailable, 9 actually out of town today, and so we don't have that witness 10 to present. 11 We had entertained the possibility of seeking a 12 continuance, but I think under the circumstances we will simply 13 rely on Ms. Deklinski's testimony and have no further 14 witnesses. 15 THE COURT: Well, as Mr. Kabusk points out, her 16 testimony re ally does not establish when this policy was 17 cancelled. It establishes when she thought it was cancelled, 18 but that is not the same thing. So if you want an opportunity 19 to call that witness, I would be happy to give you one. 20 MR. MICHAK: That would require a continuance, Your 21 Honor. May I ask for a brief recess. 22 THE COURT: Certainly. We will take a short 23 recess. 24 (Brief Recess.) 25 THE COURT: We will let the record indicate that 24 0 0 1 the Court has reconvened in the matter of Deklinski versus 2 Commonwealth of Pennsylvania. Mr. Michak. 3 MR. MICHAK: During our brief recess I made an 4 effort to contact Mr. Paul Mattix (phonetic), who is the 5 Deklinski's insurance agent, and I was unable to reach him. He 6 had indicated to me yesterday that he would be traveling today 7 and I could reach him by cell phone and was unable to do that. 8 I have, however, discussed this matter with my 9 client, and while we certainly appreciate Your Honor's 10 willingness to continue the matter until we could obtain 11 somebody from Allstate to testify in this matter, we are 12 actually not going to ask for a continuance and likely will 13 stand on the record as it exists today. 14 THE COURT: All right. Mr. Kabusk, do you have any 15 further testimony you wish to present? 16 MR. KABUSK: No further testimony, Your Honor. I 17 would like to ask a few questions regarding Petitioner Exhibit 18 No. 2. 19 THE COURT: I am sorry, you were not finished 20 cross-examining. 21 (The witness resumes the stand for continued 22 cross-examination.) 23 BY MR. KABUSK: 24 Q On Petitioner Exhibit No. 2, does any name of an 25 account holder appear on that exhibit? 25 I A Exhibit 2 is the check register? 2 Q Yes. 3 A Does the name of an account holder -- 4 Q Is your name on there? 5 A I don't recall. I just printed it out from the 6 check register this morning, off the computer. 7 Q Is the name of any bank on there? 8 A No, not a check register. 9 Q So that is not a document that was prepared by the 10 bank? 11 A It is not -- an accountant copy, it is my personal 12 check register at Quickbook, which is an older version of 13 Quicken. It prepares when we do the checks electronically. 14 Q So that is just an accounting program in your 15 computer, correct? 16 A It is a check register writing program. 17 Q But there is no indication of what bank account 18 that chec kbook is tied to, is there? 19 A A printout, no, but that is available if you would 20 like to h ave that. 21 Q But that is not here, is it? 22 A No. 23 Q I noticed on the balance there is a negative in 24 front of those numbers, correct? 25 A The check balancing -- as was probably pretty 26 0 0 1 clear, I don't balance my checkbook on a monthly basis. I 2 would as sume that if I balanced my check, I would have realized 3 that the check that I wrote on March 8 was not -- did not cash. 4 So that is a running balance on the right-hand side, which is a 5 fallacy of the old Quickbooks program as well, that is why we 6 are into Quicken. 7 Q But there is a negative sign in front of the 8 balance, is that correct? 9 A It is an artificial running balance because the 10 deposits were not included in that check register report. The 11 only thing that was included would be the number of checks, so 12 that negative number is how many checks have been written over 13 a period of time which is a negative number. If you ran a 14 positive program in Quickbooks, it would be a positive number. 15 Q So what you are showing us though indicates that 16 there is a negative balance on your account when you wrote that 17 check, is that correct? 18 A No, sir, that is not correct. There was not a 19 negative balance in my checkbook when I wrote that check. 20 Q But that document has not been prepared by a bank 21 -- 22 A That is correct. 23 Q -- where that checking account is at? 24 A That is correct. 25 MR. KABUSK: No further questions. 27 0 0 1 THE COURT: Okay. 2 MR. MICHAK: I have no questions, Your honor. 3 BY THE COURT: 4 Q Do you actually write checks? Is there a checkbook 5 somewhere? 6 A The checkbook is a computer program. You get 7 sheets of checks, you get three on a sheet. And I have them in 8 a drawer and I pull one out and run it through the copier and 9 run through a printed... Then at a certain period of time you 10 go back and just print out the number of checks you wrote so 11 that you can keep track of how many checks you wrote. 12 There is an automatic reconciliation program in 13 there that I don't use. That is why you would see a large 14 running balance to reconcile, not just checks written, it 15 doesn't include your paycheck or anything that you get 16 deposited. 17 Q But there was a piece of paper that was written out 18 with this amount on it that was mailed in the United States 19 mail to the insurance company? 20 A Uh-huh. 21 Q Yes? 22 A Yes. 23 THE COURT: All right. Anything further? 24 BY MR. KABUSK: 25 Q What bank is that checking account at? 28 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A PSECU. Q You have no documentation from them today regarding that check, do you? A Correct. The check did not clear. Allstate said they did not receive the check. THE COURT: Mr. Michak. MR. MICHAK: Nothing further, Your Honor. THE COURT: You may step down, thank you. Is there any further evidence to be presented? MR. KABUSK: No, Your Honor. MR. MICHAK: No, Your Honor. THE COURT: We will enter this order: And now, this 4th day of October, 2006, upon consideration of the Petition for Review of Department of Transportation Suspending Vehicle Registration, and following a hearing held on this date, the record is declared closed and the matter is taken under advisement. Counsel are requested to furnish to the Court briefs on the issues which they perceive to exist in this case within 30 days of the date of this order. Court is adjourned. (Court adjourned at 10:40 a.m.) 29 • • 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. (9A ?--, (z gawte Patricia C. -Bddrett Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Nov` . _ Date 30 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 CENTRE - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 KAREN K. DEKLINSKI and JOSEPH A. DEKLINSKI vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES )IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, PA } } NO. 06-3 83 5 CIVIL TERM NOTICE OF APPEAL Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, respondent above named, hereby appeals to the Commonwealth Court of Pennsylvania from the order entered in this matter on 27 November 2006. This order has been entered on the docket as evidenced by the attached copy of the docket entry. TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Riverfront Office Centre - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 Solicitor for Appellant 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 CENTRE - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 KAREN K. DEKLINSKI and }IN THE COURT OF COMMON PLEAS JOSEPH A. DEKLINSKI vs. } OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA, } DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES } NO. 06-3835 CIVIL TERM ORDER FOR TRANSCRIPT A notice of appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. ."'j IP TIMOTHY P. WIL Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Riverfront Office Centre - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 Solicitor for Appellant 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 CENTRE - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 KAREN K. DEKLINSKI and JOSEPH A. DEKLINSKI }IN THE COURT OF COMMON PLEAS vs. I OF CUMBERLAND COUNTY, PA COMMONWEALTH OF PENNSYLVANIA, } DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES } NO. 06-3835 CIVIL TERM Statement of Matters Complained of on Appeal TO THE HONOURABLE, 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 Solicitor, Timothy P. Wile, Esquire, hereby provides, pursuant to Pa. R.A.P. 1925, a concise statement of the matters about which it complains in its appeal of this Court's order of 27 November 2006: 1. The Bureau's certified documentary evidence established its prima facie case that the financial responsibility coverage for the Deklinski's 2000 Saturn sedan was terminated on 9 March 2006 by Allstate Insurance Company as a result of the Deklinski's failure to pay the policy premium and that the Deklinski's 2000 Saturn sedan was currently registered in this Commonwealth, having been issued Pennsylvania registration plate number FCA1607, which is sufficient evidence to establish the Bureau's prima facie case to support a vehicle registration suspension imposed pursuant to 75 Pa.C.S. §1786(d)(1) as a consequence of a lapse in financial responsibility. See Fagan v. Department of Transportation, Bureau of Motor Vehicles, 875 A.2d 1195 (Pa. Cmwlth. 2005). 2. The trial court committed reversible error when it held that the Bureau's certified documents, specifically the Bureau's certification of its receipt of information from Allstate Insurance Company that a policy of financial responsibility that had covered the Deklinski's 2000 Saturn sedan had been terminated as of 9 March 2006, as a result of the Deklinski's failure to pay the policy premium, failed to establish that the Allstate policy of insurance on the Deklinski's 2000 Saturn sedan was cancelled as of 9 March 2006 where the "determination date" set forth on the Bureau's certification of information received from Allstate coupled with the information set forth in the Financial Responsibility Inquiry Letter sent to the Deklinskis on 20 April 2006 and the Notice of Suspension mailed to the Deklinskis on 6 June 2006, bearing the same cancellation date of the Allstate policy, namely 9 March 2006. The Bureau's certification of information received electronically from Allstate constituted prima facie proof of the facts and information set forth in that certification. 42 Pa.C.S. §6104 (relating to effect of official records generally); 75 Pa.C.S. § 1377(b) (relating to documentation); Fagan v. Department of Transportation, Bureau of Motor Vehicles, 875 A.2d 1195 (Pa. Cmwlth. 2005); England v. Department of Transportation, Bureau of Driver Licensing, 687 A.2d 425 (Pa. Cmwlth. 1997). Also, the admission of the Bureau's certified documents created a rebuttable presumption of their correctness that could only be rebutted by the Deklinskis by the presentation of "clear and convincing evidence." See Richards v Department of Transportation, Bureau of Driver Licensing, 767 A.2d 1133 (Pa. Cmwlth. 2001); Mateskovich v. Department of Transportation, Bureau of Driver Licensing, 755 A.2d 100 (Pa. Cmwlth. 2000); Francis v. Department of Transportation, Bureau of Driver Licensing, 746 A.2d 1193 (Pa. Cmwlth. 2000); Department of Transportation, Bureau of Driver Licensing v. Diamond, 151 Pa. Cmwlth. 351, 616 A.2d 1105 (1992), appeal dismissed, 539 Pa. 382, 652 A.2d 826 (1995). The Deklinskis did not produce "clear and convincing evidence" to rebut the presumption of correctness raised by the admission of the Bureau's certified documents, as a result, that presumption of correctness became conclusive with respect to the date of cancellation of the Allstate policy of insurance covering the Deklinski's 2000 Saturn sedan. Mateskovich, 755 A.2d at 102; Diamond, 151 Pa. Cmwlth. at 356, 616 A.2d at 1107-1108. Additionally,. the Deklinskis failed to satisfy their burden of proof to show, by "clear and convincing evidence," that their 2000 Saturn sedan was in fact insured. See Capone v. Department of Transportation, Bureau of Driver Licensing, 875 A.2d 1228 (Pa. Cmwlth. 2005); Eckenrode v. Department of Transportation, Bureau of Driver Licensing, 853 A.2d 1141 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 689, 870 A.2d 324 (2005). 3. Even if the Deklinski's establish that Allstate cancelled their policy of motor vehicle liability insurance on a date other than 9 March 2006, the trial court erred when it held that the Deklinskis satisfied their burden of proof to show that they came within the statutory exception set forth in 75 Pa.C.S. § 1786(d)(2)(i) since the evidence failed to establish that the Deklinskis did not operate their 2000 Saturn sedan during the time when it was not covered by financial responsibility. In order to come with the exception to the mandatory three-month registration set forth in Section 1786(d)(2)(i), a vehicle owner or registrant must establish: 1) that the lapse in financial responsibility was for a period of less than 31 days; and 2) that the owner or registrant did not operate or permit the operation of the vehicle at a time when it was not covered by financial responsibility. In order to fit within the Section 1786(d)(2)(i) exception, the Deklinski's had to satisfy both elements of the exception and the evidence they provided at trial failed to do so as a matter of law. See Jones v. Department of Transportation, Bureau of Motor Vehicles, 723 A.2d 1090, 1091 (Pa. Cmwlth. 1999) (vehicle owner did not come within scope of statutory exception, despite showing that vehicle was not operated while uninsured, where lapse in financial responsibility totalled 93 days); Dillon v Department of Transportation, Bureau of Driver Licensing, 679 A.2d 291, 292 (Pa. Cmwlth. 1996) (vehicle registrant did not come within scope of statutory exception to registration suspension, despite her showing of good faith by not operating her vehicle while it was not covered by insurance, where the lapse in insurance coverage lasted from 2 January 1995, until 28 February 1995, a period in excess of 30 days); Erimias v. Department of Transportation, Bureau of Driver Licensing, 671 A.2d 788, 789 (Pa. Cmwlth. 1996) (vehicle registrant did not fit within the statutory exception to suspension, despite trial court's finding that vehicle was not operated during the time it was uninsured, where prior policy of insurance was cancelled as of 2 October 1994, and new insurance coverage did not become effective until 20 December 1994 - a period of 79 days); Will v. Department of Transportation, Bureau of Motor Vehicles, 163 Pa. Cmwlth. 348, 641 A.2d 624 (1994) (in order to fall within statutory exception to registration suspension for lack of financial responsibility, vehicle owner or registrant must satisfy both elements of the statute). While the Deklinskis testified that the did not operate their 2000 Saturn sedan after they received notice from Allstate that their policy had been cancelled, that cancellation occurred well prior to the Deklinski's receipt of that notice and, as a result, they had been operating their 2000 Saturn sedan during a time when it was not covered by the financial responsibility required by 75 Pa.C.S. §1786(a). The Deklinskis also failed to present "clear and convincing evidence" that Allstate reinstated a policy of insurance for their 2000 Saturn sedan as of 29 April 2006 since they failed to present any proof of insurance that complied with either 75 Pa.C.S. §1782 (relating to manner of providing proof of financial responsibility) or 67 Pa. Code §219.6 (relating to acceptable proof of financial responsibility). A vehicle owner or registrant's testimony, even if found credible by a trier of fact, is insufficient as a matter of law to satisfy the requirements of the Motor Vehicle Financial Responsibility Law to establish the existence of financial responsibility required by 75 Pa.C.S. § 1782 and 67 Pa. Code §219.6. Additionally, a party's testimony, standing alone, even if found credible by the trier of fact, does not constitute "clear and convincing evidence" sufficient to rebut the presumption of correctness created by the Bureau's certified documents. Mateskovich v. Department of Transportation, Bureau of Driver Licensing, 755 A.2d 100, 102 (Pa. Cmwlth. 2000) (Licensee's testimony that the district justice did not find him guilty of the 13 November 1998 citation is not clear and convincing evidence that the certified record is erroneous). Accordingly, the trial court's finding that the Deklinski's come within the statutory exception to the three-month registration suspension set forth in 75 Pa.C.S. §1786(d)(2)(i) is not supported by competent evidence of record and is erroneous as a matter of law. Respectfully submitted, ??. TIMOTHY P. ILE Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Attorney I.D. No. 30397 Riverfront Office Centre - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 Solicitor for Bureau of Motor Vehicles 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 CENTRE - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 KAREN K. DEKLINSKI and JOSEPH A. DEKLINSKI vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, PA } } NO. 06-3835 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 Prepaid Addressed as Follows: Judge J. Wesley Oler, Jr. Court Reporter George A. Michak, Esquire Cumberland County Courthouse Court Reporter's Office MICHAK, TEETER & LEWIs, LLC 1 Courthouse Square Cumberland Co. Courthouse 2000 Linglestown Rd; Ste 100 Carlisle, PA 17103 Carlisle, PA 17013 Harrisburg, PA 17106-2188 VV TIMOTHY P. WILE Solicitor for Bureau of Motor Vehicles Dated: 27 December 2006 PYS511 Cumberland County Prothonotary's Office Civil Case Print Page 1 2006-03835 DEKLINSKI KAREN K ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Reference No... Filed......... 7/06/2006 Case Type ..... : APPEAL - VEHICLE REG Time.........: 2:52 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info DEKLINSKI KAREN K APPELLANT MICHAK GEORGE A 406 N FRONT STREET WORMLEYSBURG PA 17043 DEKLINSKI JOSEPH A APPELLANT MICHAK GEORGE A 406 N FRONT STREET WORMLEYSBURG PA 17043 PENNSYVLANIA COMMONWEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION 1101 S FRONT STREET 3RD FL HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 7/06/2006 PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION ------------------------------------------------------------------- 7/14/2006 ORDER OF COURT - 07-14-06 - IN RE: HEARING FOR 10-04-06 AT 9:30 AM IN CR 1 OF CUMB CO COURTHOUSE - PETITIONERS ARE TO SERVE A NOTICE OF THE APPEAL AND COPIES OF THE PETITION FOR REVIRE AND ORDER FOR HEARING ON THE DEFT OF TRANSPORTATION AT THE ADDRES SHOWN IN DEPT'S NOTICE OF ENTRY ORDER BY CERTIFIED MAIL-RETURN REDEIPT REQUESTED - BY J WESLEY OLER JR J - COPIES MAILED 07-17-06 ------------------------------------------------------------------- 8/02/2006 AFFIDAVIT OF SERVICE - PETITION FOR REVIEW OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION - BY GEORGE A MICHAK ATTY ------------------------------------------------------------------- 8/03/2006 AFFIDAVIT OF SERVICE - PETITION FOR REVIEW OF ORDER OF DEFT OF TRANSP SUSPENDING VEHICL REG AND ORDER OF COURT DATED 07-14-06 - BY MEGAN C HUFF ATTY ------------------------------------------------------------------- 11/27/2006 TRANSCRIPT OF PROCEEDINGS - 10-04-06 ------------------------------------------------------------------- 11/28/2006 ORDER OF COURT - 11-27-06 - IN RE: PETITION FOR REVIEW OF ORDER OF DEPT OF TRANS SUSPENDING VEHICLE REGISTRATION - PETITIONER'S APPEAL IS SUSTAINED AND THE SUSPENSION OF VEHICLE REGISTRATION NOTICED BY A MAILING OF THE DEPT OF TRANS ON 06-06-06 WITH RESPECT TO PETITIONERS' 2000 SATURN AUTOMOBILE IS REVERSED - BY J WESLEY OLER JR J - COPIES MAILED 11-28-06 ------------------------------------------------------------------- 12/11/2006 TRANSCRIPT OF PROCEEDINGS - 10-04-06 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be *Bal***P*ymts/Adl End Bal ******************************** **** ****** ******************************* APPEAL VEH REG 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 ------------------------ ------------ 55.50 55.50 .00 ******************************************************************************** * End of Case Information PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2006-03835 DEKLINSKI KAREN K ET AL (vs) PENNSYLVANIA COMMONWEALTH OF Reference No... Filed......... 7/06/2006 Case Type.....: APPEAL - VEHICLE REG Time...... 2:52 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************* ************************ ,44r. %ove,s r mvivs rirCWhL, ?est1wi seW of sold CW at Cod" ?irgo?ywlMreof, I h" 101. f -.z 'S C"> Pte) CO ,t i KAREN K. DEKLINSKI and JOSEPH A. DEKLINSKI, Appellee V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No. 06-3835 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., January 2, 2007. AND NOW, this 2nd day of January, 2007, upon consideration of the Notice of Appeal filed in the above-captioned matter from the order of court dated November 27, 2006, and the rationale for the court's order having been set forth in an opinion accompanying the order, the Prothonotary is directed to transmit the Pennsylvania Commonwealth Court. /4'imothy P. Wile, Esq. Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Riverfront Office Center, 3?d Floor 1101 South Front Street Harrisburg, PA 17104-2516 N Attorney for Appellant ?Ff . 4eorge A. Michak, Esq. MICHAK, TEETER & LEWIS, LLC 2000 Linglestown Road Suite 100 Harrisburg, PA 17106-2188 Attorney for Appellee ? BY THE COURT, I'NbAA Sr :z Rd ?., Nyr 100, Abvlol or?Lodd o e CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF 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: Karen K. Deklinski and Joseph A. Deklinski VS. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles o&-3fr3r cou 2372 c b acad. The documents comprising the record have been numbered from No.1 to 103, 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 01/d,//2007. Curtis K. Long, P Po 6tarf Regina K. Lebo,Deputy An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND in the Commonwealth of Pennsylvania 2372 CD 2006 to No. 2 0 0 6 - 3 8 3 5 Civil Term, 19 is contained the following: COPY OF COMPT FTF DOCKET ENTRY KAREN K. DEKLINSKI AND JOSEPH A. DEKLINSKI VS. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SEE ATTACHED CERTIFIED DOCKET ENTRIES Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 0y H 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 Plaintiff, and rnmmanwe a l tb of UcnnG3Zl van i n nepari-Ment of Tranainrtatinn Defendant , as the same remains of record before the said Court at No. 0 6 - 18 3 5 of Civil Term, A.D. 19 . set my hand and affixed the seal of said Court day of -,g*-T anua rlf A A. D-AR 9 0 0 Prothonotary I, Edgar 13- Bay l py President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned ar?y d to 11 of whose acts as such full faith and credit are and ought to be given as well in Courts of iu s el er t t the said record, certificate and attestation are in due form of law and ma per o er. %( Vc k Commonwealth of Pennsylvania County of Cumberland ss: President I. Curtis R. Long , Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this ?y of Januar A.D.)gij2007 Prothonotary YY5511 uuminerlana Lounzy eroLnonouary-s VLL1ce Ydye L Civil Case Print 2006-03835 DEKL__..SKI KAREN K ET AL (vs) PENNSi..ANIA COMMONWEALTH OF Reference No..: Filed........: 7/06/2006 Case Type.....: APPEAL - VEHICLE REG Time.........: 2:52 Judgment.. 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 2372 CD 2006 Higher Crt 2.: ******************************************************************************** General Index Attorney Info DEKLINSKI KAREN K APPELLANT MICHAK GEORGE A 406 N FRONT STREET WORMLEYSBURG PA 17043 DEKLINSKI JOSEPH A APPELLANT MICHAK GEORGE A 406 N FRONT STREET WORMLEYSBURG PA 17043 PENNSYVLANIA COMMONWEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION 1101 S FRONT STREET 3RD FL HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 3 ° 7/06/2006 PETITION FOR REVIEW OF ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION ------------------------------------------------------------------- ?' o? 7/14/2006 ORDER OF COURT - 07-14-06 - IN RE: HEARING FOR 10-04-06 AT 9:30 AM IN CR 1 OF CUMB CO COURTHOUSE - PETITIONERS ARE TO SERVE A NOTICE OF THE APPEAL AND COPIES OF THE PETITION FOR REVIRE AND ORDER FOR HEARING ON THE DEFT OF TRANSPORTATION AT THE ADDRES SHOWN IN DEPT'S NOTICE OF ENTRY ORDER BY CERTIFIED MAIL-RETURN REDEIPT REQUESTED - BY J WESLEY OLER JR J - COPIES MAILED 07-17-06 ------------------------------------------------------------------- / - /(p 8/02/2006 AFFIDAVIT OF SERVICE - PETITION FOR REVIEW OF ORDER OF DEPT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION - BY GEORGE A MICHAK ATTY ------------------------------------------------------------------- 17 - o7D 8/03/2006 AFFIDAVIT OF SERVICE - PETITION FOR REVIEW OF ORDER OF DEFT OF TRANSP SUSPENDING VEHICL REG AND ORDER OF COURT DATED 07-14-06 - BY MEGAN C HUFF ATTY ------------------------------------------------------------------- 07? 10/13/2006 ORDER OF COURT - DATED OCTOBER 4 2006 - UPON CONSIDERATION OF THE PEITITON FOR REVIEW OF ORDER OF hEPARTMENT OF TRANSPORTATION SUSPENDING VEHICLE REGISTRATION AND FOLLOWING A HEARING HELD ON THIS DATE THE RECORD IS DECLARED CLOSED AND THE MATTER IS TAKEN UNDER ADVISEMENT BY THE COURT J WESLEY OLER JR J COPIES MAILED ------------------------------------------------------------------- aa.. JC/ 11/27/2006 TRANSCRIPT OF PROCEEDINGS - 10-04-06 -------------------------------------------------------------------REVIEW OF Jr? 11/28/2006 DEPTROFFTCRANSTSUSPENDING6VEHICLEEREGISTRATTIONFOR- PETITIONEROSDER OF APPEAL IS SUSTAINED AND THE SUSPENSION OF VEHICLE REGISTRATION NOTICED BY A MAILING OF THE DEPT OF TRANS ON 06-06-06 WITH RESPECT TO PETITIONERS' 2000 SATURN AUTOMOBILE IS REVERSED - BY J WESLEY OLER JR J - COPIES MAILED 11-28-06 ------------------------------------------------------------------- - 12/11/2006 TRANSCRIPT OF PROCEEDINGS - 10-04-06 ------------------------------------------------------------------- Lj/- 12/26/2006 NOTICE OF APPEAL - BY TIMOTHY P WILE ATTY-VEHICLE & TRAFIC LAW DIV ------------------------------------------------------------------- (fQ 12/29/2006 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2372 CD 2006 ------------------------------------------------------------------- 1/03/2007 OPINION PURSUANT TO PA RAP 1925 - 01-02-07 - IN RE: PROTHONOTARY IS DIRECTED TO TRANSMIT THE PA COMMONWEALTH COURT - BY J WESLEY OLER JR J - COPIES MAILED 01-03-07 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - /0-7 Y S.77L1 C.U1[LUe.L1d11U L.UU11Ly YLUL11U11ULdLy - S ULLIC.:U I-dye L Civil Case Print 2006-03835 DEKL SKI KAREN K ET AL (vs) PENNS'! ANIA COMMONWEALTH OF Reference No... Filed......... 7/06/2006 Case Type.....: Judgment..... APPEAL - VEHICLE REG 00 Time.........: Execution Date 2:52 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------ - Higher Crt 1.: 23 72 CD 2006 Higher Crt 2.: **************************************** ************ ****************** ********** * Escrow Information * Fees & Debits Beg Bal Py mts/Ad' End Bal ******************************** ******* * * ****** *** ****************** ********** APPEAL VEH REG 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPEAL 30.00 30.00 .00 --------------- 85.50 --------- -- 85.50 ---------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** aO RD 14" 71? TRUE ?#?'- rn set my hand Its Testimorr , t-arlisle, Pa. and the seal 01, , a?. ibis .... . T!? ? day 01 t......... I .M,:f4awenenee.a...? r.......... ;??j'.?-**e.TR_M-I....f••i?/75? Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 --------- ----------- ------------------------- ------------------ ------------------------- ----------- ------------------------- ------ ------------------ 08/07 cd 231 I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen K. Deklinski and Joseph A. Deklinski V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Appellant 0,6 - 3535` No. 2372 C.D. 2006 Submitted: December 12, 2007 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE JAMES GARDNER COLINS, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION BY JUDGE COHN JUBELIRER FILED: December 24, 2007 The Department of Transportation, Bureau of Motor Vehicles (Department), appeals from an order of the Court of Common Pleas of Cumberland County (trial court) that sustained the statutory appeal of Karen K. Deklinski and Joseph A. Deklinski (collectively, the Deklinskis) from a three-month suspension of their vehicle registration. The Deklinskis are the registered owners of a 2000 Saturn sedan, le number 53804414 (vehicle), that is, and was, insured by Allstate Insuw x Company (Allstate). The Department, by letter dated April 20, 2006, informer ie Deklinskis that it received information from Allstate regarding the cancellatic ?f automobile insurance on the vehicle.' The letter listed the date of cancellatic s March 9, 2006. The letter also requested verification of coverage on the vel e and informed the Deklinskis that failure to respond within three weeks may re t in the suspension of the vehicle's registration. The Deklinskis failed to provide requested information and the Department, by official notice dated June 6, 2C informed the Deklinskis that the registration for the vehicle would be suspent. for three months effective July 7, 2006, as authorized by Section 1786(d)(1) of Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. §1786(d)( The Deklinskis appealed the suspension to the trial court. ' See Section 1786(e) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C §1786(e) (relating to insurers' obligations upon lapse, termination, or cancellation of financ responsibility) and 67 Pa. Code §221.3 (relating to obligations upon termination of insurance). 2 Section1786(d)(1) provides that: The Department of Transportation shall suspend the registration of a vehicle for a period of three months if it determines the required financial responsibility was not secured as required by this chapter and shall suspend the operating privilege of the owner or registrant for a period of three months if the department determines that the owner or registrant has operated or permitted the operation of the vehicle without the required financial responsibility. The operating privilege shall not be restored until the restoration fee for operating privilege provided by section 1960 (relating to reinstatement of operating privilege or vehicle registration) is paid. 75 Pa.C.S. §1786(d)(1). 2 V At the de novo hearing before the trial court the Department submitted the following documents into evidence in support of the registration suspension: (1) the official notice of suspension dated June 6, 2006; (2) an electronic transmission from Allstate, entitled "Suspension Inquiry Detail l" (SID Form); (3) a Department computer printout of the vehicle's details; (4) the Department's initial letter to the Deklinskis, dated April 20, 2006; and (5) a registration record that appears in the Deklinskis' file in the Bureau of Motor Vehicles, Harrisburg, Pennsylvania.3 In response, Ms. Deklinski testified as follows. In February 2006, she made a partial payment to Allstate for payment of the insurance premium on the vehicle. Allstate informed her that the remaining premium balance was due on March 9, 2006. Ms. Deklinski mailed a check on March 8, 2006; however, that check was never cashed. The Deklinskis received notice in the first week of April that the vehicle's insurance had lapsed.4 The Deklinskis contacted their Allstate agent, who told them not to worry and that he would contact the Department and get proof of insurance. When the Deklinskis did not receive proof of insurance they contacted the Department and were informed that there was no insurance on the vehicle. The Deklinskis did not continue to drive the vehicle. 3 In addition to the documents described, the Department also submitted the certification of Kurt Myers, Director of the Bureau of Motor Vehicles of the Pennsylvania Department of Transportation, certifying that all of the submitted documents are true and correct. (Trial Ct. Tr., Cmwlth's Ex. 1.) 4 Although Ms. Deklinski stated that she could not remember whether the notice was from the Department or Allstate, the trial court determined that it must have been from Allstate because it was not reflected in the Department's records. (Trial Ct. Op. at 2.) 3 The Deklinskis received the Department's letter, dated April 20, 200( ?n April 25, 2006. The following day the Deklinskis delivered a check to Allstatc A Allstate reinstated insurance coverage on the vehicle as of April 29, 2 i. Ms. Deklinski further testified that she was under the impression that All., e terminated insurance coverage on the vehicle on April 11, 2006. Ms. Dekli i stated that the basis for her belief was formed by a printout of a computer sci l that her Allstate agent sent to her and to the Department, which listed termination endorsement date as April 11, 2006. In addition to Ms. Deklinski's testimony, the trial court, over Department's objection, admitted into evidence the printout of the computer scr< that Allstate generated and a copy of the Deklinskis' "check register" for the per. of March 1, 2006 through March 15, 2006. The trial court entered an order on November 28, 2006, which sustained t Deklinskis' appeal and reversed the Department's vehicle registration suspensic In an accompanying opinion, the trial court opined, in pertinent part, that: In the present case, the factual issue(s) for determination by the court are not whether Petitioners' vehicle had been uncovered by insurance for some period, but (a) when that period commenced, (b) whether it was less than thirty-one days, and (c) whether the vehicle had been driven during that period. The only evidence presented by the Commonwealth to support its position on the first issue was a docket-type notation reading "Determination Date: 03109!06," a cryptic and undocumented reference. Given the balance of the evidence, the court is of the view that Petitioners' situation falls within the exception to suspension provided by the legislature, in that the period of non-coverage of Petitioners' vehicle was less than thirty- one days and that the vehicle was not driven during the period of non- coverage. 4 i (Trial Ct. Op. at 5.) The Department's appeal followed .5 The Department raises two issues on appeal: (1) whether the trial court's finding, that the Deklinskis proved by clear and convincing evidence that the lapse of financial responsibility on their vehicle was less than thirty-one days and the vehicle was not driven during that period, is supported by substantial evidence; and, (2) whether the trial court abused its discretion if it sustained the Deklinskis' statutory appeal to help them avoid economic hardship. "In a suspension of registration case," such as the present one, "the Department has the initial burden of showing that a registrant's vehicle is registered or is a type of vehicle that must be registered and that the Department received notice that the registrant's financial responsibility coverage was terminated." Fagan v. Department of Transportation Bureau of Motor Vehicles, 875 A.2d 1195, 1198 (Pa. Cmwlth. 2005) (citing 75 Pa.C.S. § 1786(d)(3)). Statutory authority provides that "the department's certification of its receipt of documents or electronic transmission from an insurance company informing the department that the person's coverage has lapsed, been canceled or terminated shall also constitute prima facie proof' of such termination. 75 Pa.C.S. § 1377(b)(2) (emphasis added); accord Fagan, 875 A.2d at 1198 ("[t]he Department may satisfy this burden by certifying its receipt of documents or of an electronic transmission from an 5 Our standard of review "of a trial court order sustaining a statutory appeal from a suspension of registration is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether the court committed a reversible error of law or abused its discretion." Fagan v. Department of Transportation Bureau of Motor Vehicles, 875 A.2d 1195, 1198 n.l (Pa. Cmwlth. 2005). 5 insurance company stating that a registrant's financial responsibility coverag as been terminated.") If the Department meets its burden, a presumption arises that the regis nt lacked the necessary financial responsibility coverage. Fagan, 875 A.2d at 1 3. The registrant may rebut this presumption by presenting clear and convin g evidence of record "that financial responsibility was continuously maintainer 1 the vehicle as required by Section 1786(a) of the MVFRL, 75 Pa.C.S. § 1786(a; r that the vehicle owner fits within one of the three statutorily defined defer outlined in Section 1786(d)(2)(i-iii)...." Fell v. Department of Transportat_ Bureau of Driver Licensing, 925 A.2d 232, 237-38 (Pa. Cmwlth. 2007) (en ba (footnote omitted). This Court, sitting en banc in Fell, addressed a similar issue relating to content of the electronic transmission provided by the Department and rejected i argument as to the transmission's form and content. The Fell case involves document that was identical to the SID Form in the present case. In Fell, the tr court took great issue with the format and content of the SID Form certified by t Department. The trial court, in Fell, reasoned that: the rule which allows [the Department] to produce a non-validated, uncertified, undated, contextually vague, electronically generated document in satisfaction of its burden of proof in a matter as serious as a registration suspension is incorrect and works an unfairness on the registration holder. In the registration suspension appeals brought before this Court, [the Department] has only supplied the electronically derived document as evidence of non-insurance and has never offered the alternative proof of certified documents. [The Department's] application of 75 Pa. C.S.A. § 1377(b)(2) promotes 6 situations, like the instant one, where the electronic transmission erroneously and improperly issued, and its bald assertion of insurance termination triggered [the Department's] response of a final registration suspension. Id., 925 A.2d at 239 n.11 (quoting Department of Transportation V. Fell, No. 05- 6375-31-6, 2006 Pa. Dist. & Cnty Dec. LEXIS 214, (Bucks County C.P.Pa. filed June 1, 2006)). We rejected this position, noting that the SID Form was certified by the Department as being a record of an electronic transmission from the registrant's insurer. We relied on statutory authority that puts the focus on the Department's certification, specifically, that: the language of Section 1377(b)(2) of the Vehicle Code specifically directs that "the department's certification of its receipt of documents or electronic transmission from an insurance company informing the department that the person's coverage has lapsed, been canceled or terminated shall also constitute prima facie proof that the lapse, cancellation or termination of the policy of insurance described in the electronic transmission was effective under the laws of this Commonwealth." 75 Pa. C.S. § 1377 (b)(2) (emphasis added). Fell, 925 A.2d at 238 n.11. This Court has repeatedly held that the Department's certification constitutes prima facie proof. Id. at 237; Webb v. Department of Transportation, Bureau of Motor Vehicles,, 870 A.2d 968, 973 (Pa. Cmwlth. 2005) ("We emphasize again that DOT's introduction into evidence before a trial court of its receipt of notice from an insurer of a policy cancellation creates a rebuttable presumption that the vehicle at issue lacked the requisite financial responsibility, for purposes of DOT's suspension of a vehicle's registration."); Choff v. Department of Transportation Bureau of Motor Vehicles, 861 A.2d 442, 446 (Pa. Cmwlth. 2004) ("[The Department] may satisfy its burden by certifying that it 7 received documents or electronic transmissions from the insurance com ly informing [the Department] that the insurance coverage has been terminated.") In the present case, the trial court erred by focusing on the format and de n of the SID Form, and by failing to apply the statutory language that Department's certification "shall ... constitute prima facie proof ...... 75 Pa. § 1377(b)(2). Given this statutory authority and precedent, we conclude that Department has met its prima facie burden, thus giving rise to a presumption I the financial responsibility coverage for the Deklinskis' vehicle was invalid. The more difficult question is whether the Deklinskis have produced cl and convincing evidence, on the record, to rebut the presumption that arises frc the Department having met its prima facie burden. Although a challenge to insurance cancellation may only be brought before the Insurance Commissioner, court reviewing a [Department] registration suspension appeal may certain examine the record before it to determine whether an insured's evidence h overcome the applicable presumption established by [the Department]." Web 870 A.2d at 974 (emphasis added). However, "[a]s to an examination, beyond d record on its face, into the validity of an insurer's policy cancellation, ... sai examination is properly brought for review to the Insurance Commissioner undo Section 1786(d)(5), and not to a trial court." Id. at 974. In the present case, the record before the trial court indicated that Allstatf had forwarded a letter and an attachment to the Department that the polic} terminated on April 11, 2006. The body of the letter, in its entirety, reads as 8 follows: "[p]lease see copy of computer screen acknowledging termination endorsement effective 04/11/2006." (Letter from Paul Mattus of Allstate to the Department (Letter) (June 21, 2006).) The attachment, which was a printout of a computer screen, had an information item titled "TERM ENDORSE 041106." (Attachment to Letter.) The term "termination endorsement" is not defined in any of the evidence of record.6 As previously discussed, in order to rebut the presumption, registrants must present "clear and convincing evidence," which is defined as evidence "that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Fell, 925 A.2d at 239 (quoting Fagan, 875 A.2d at 1199). In this case, the Deklinskis have not produced sufficient evidence of record to meet that standard. In particular, it is not clear what the term "termination endorsement" means or to what it applies. It may mean that the insurance was terminated as of April 11, 2006 (and not March 9, 2006), but it simply is not clear that this is what it precisely means. Thus, we conclude that the record evidence, itself, does not rebut the presumption by clear and convincing evidence. However, there does seem to be a cognizable issue as to the validity of the insurance termination. Resolution of such an issue lies with the Insurance Commissioner. 75 Pa.C.S. § 1786(d)(5). Our Court, in Webb, found that, in instances such as this one, the registrant should be afforded an opportunity to transfer for a timely nunc pro tunc appeal to 6 Additionally, the record reflects that, although the trial court afforded the Deklinskis an opportunity to postpone the appeal hearing so as to have a representative of Allstate testify, the Deklinskis declined that opportunity. 9 the Insurance Commissioner. Webb, 870 A.2d at 974-75. Accordingly, we v, `e the trial court's order and remand the matter with instructions to the trial cou o hold the suspension appeal of the Deklinskis in abeyance pending the Insure e Commissioner's review and disposition of the Deklinskis' nunc pro tunc req I for review of their insurance policy cancellation. RE A E COHN JUB IRER, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen K. Deklinski and Joseph A. Deklinski V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, No. 2372 C.D. 2006 Appellant ORDER NOW1 December 24, 2007, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is vacated and this matter is remanded with instructions to the trial court to hold the suspension appeal of Karen K. Deklinski and Joseph A. Deklinski in abeyance pending the Insurance Commissioner's review and disposition of the Deklinskis' nunc pro tunc request for review of their insurance policy cancellation. Jurisdiction Relinquished. RE A E COHN JUB IRER, Judge Certified from the Recon DEC 2 4 2007 and Order Exit v IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen K. Deklinski and Joseph A. Deklinski V. BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE JAMES GARDNER COLINS, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge DISSENTING OPINION BY JUDGE COLINS I must respectfully dissent from the majority opinion, as I do not Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Appellant No. 2372 C.D. 2006 Submitted: December 12, 2007 FILED: December 24, 2007 believe that Fell should control in the instant matter. The Department couches the first issue before this Court as a question of whether the Deklinskis submitted sufficient evidence to fit within the first exception to a registration suspension. However, that question becomes relevant only when the Department satisfies its initial burden. Although the trial court's opinion does not acknowledge the above noted burdens, it is clear that the trial court found the Department's evidence insufficient to sustain the registration suspension. With this in mind, we must proceed to evaluate whether the parties satisfied their respective burdens. The Department submits that it met its initial burden through submission of its certified documents. Specifically, the Department asserts that document labeled "SUSPENSION INQUIRY DETAIL 1" established that Allsi terminated the Deklinskis' policy on March 9, 2006. In support of that positi the Department argues that the document shows that the `DETERMINATION DATE' as reported by Allstate for the cancellation of the Deklinskis' policy of insurance was `03/09/06' (R.R.54a). The `TERM[INATION] REASON' was for `NON PYMNT,' i.e., nonpayment of the premium. Id. (Brief of Department at 26). The Department continues that the document is tl same electronic transmission sent to the Department by Allstate. After reviewing the document titled "SUSPENSION INQUIX DETAILI" it is clear that the document, standing alone, is not sufficient t establish that Allstate terminated the Deklinskis' insurance policy on March 9 2006. The document does not contain a termination date. In fact, contrary to thf Department's insertion of the word in the above quoted passage, the actual worc "termination" does not appear anywhere in the document. Instead, the document lists "DETERMINATION DATE: 03/09/06" without any further explanation. The document also lists other cryptic references, such as, "SOURCE: CA CANCEL" and "STATUS: P PENDING." Moreover, as exhibited in the above quoted passage, these references are not clear without additional explanation or context. However, before the trial court, the Department relied solely on the information contained in the document and it cannot now give meaning to the terms through counsel's arguments. See Grover v. Department of Transportation, Bureau of Driver Licensing, 734 A.2d 941, 944 (Pa. Cmwlth. 1999). Consequently, the JGC-2 Department's certified documents, as presented to the trial court, were not sufficient to satisfy the Department's initial burden. Because the Department failed to establish that insurance coverage on the Deklinskis' vehicle was terminated on March 9, 2006, the burden never shifted to the Deklinskis to prove otherwise. Nevertheless, the trial court credited Mrs. Deklinskis' testimony that any lapse that may have occurred was for less than 31 days and during that period the vehicle was not driven. Accordingly, the trial court's decision, sustaining the Deklinskis appeal and reversing the vehicle registration suspension, was supported by substantial evidence. The Department's assertion that the trial court abused its discretion by sustaining the Deklinskis' statutory appeal to help them avoid economic hardship must also be rejected. Although I agree with the Department that economic hardship is not a basis for sustaining an appeal, Banks v. Department of Transportation, Bureau of Driver Licensing, 856 A.2d 294 (Pa. Cmwlth. 2004), the Department has offered no evidence to support its position. Since the trial court accepted the Deklinskis' testimony and evidence as credible, it is my judgment that this Court is substituting its factual determinations for those of the trial court. 00, DAME GARDNER COLINS, Judge Judge Friedman joins in this dissenting opinion. JGC-3 C? ? { -? cn ?;i Supreme Court of Pennsylvania Irene M. Bizzoso, Esq. Nfid lle District Deputy Prothonotary October 8, 2008 Elizabeth E. Zisk Chief Clerk Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 P.O. Box 624 Harrisbure. PA 17108 717-787-6181 www.aopc.org RE: Karen K. Deklinski and Joseph A. Deklinski, Petitioners V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Respondent Commonwealth Docket Number - 2372 CD 2006 Trial Court/Agency Dkt. Number: 06-3835 Civil Term No. 43 MAL 2008 Appeal Docket No.: Date Petition for Allowance of Appeal Filed: January 23, 2008 Disposition: Order Denying Petition for Allowance of Appeal Date: October 8, 2008 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /bsm I IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT KAREN K. DEKLINSKI AND JOSEPH A. No. 43 MAL 2008 DEKLINSKI, ; Petitioners Petition for Allowance of Appeal from the Order of the Commonwealth Court v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent ORDER PER CURIAM AND NOW, this 8th day of October 2008, the Petition for Allowance of Appeal is denied. TRUE AND CORRECT COPY Attest: October 8, 2008 Elaine Hellen, Assistant Chief Clerk - -: i'7-t C.:_? w i; 'r! File Copy Commonwealth Court of Pennsylvania Kristen W. Brown Prothonotary Michael Krimrnel, Esq. Chief Clerk of Commonwealth Court TO: RE: Deklinski h/w v. DOT No.2372 CD 2006 November 10, 2008 Trial Court/Agency Dkt. Number: 06-3835 Civil Term Trial Court/Agency Nam }antl County ,Court of Common Pleas Irvis Office Building, Room 624 Harrisbure. PA 17120 717-255-1650 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 January 25, 2007 1 Date of Remand of Record: 11/10/2008 10:13:48AM 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. pAe-$?- ? Commonw ourt Filing ffice Signature Date Printed Name ? to NJ = S i ^bti7 I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen K. Deklinski and Joseph A. Deklinski V. No. 2372 C.D. 2006 Commonwealth of Pennsylvania, Submitted: December 12, 2007 Department of Transportation, ; Bureau of Motor Vehicles, Appellant BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE JAMES GARDNER COLINS, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION BY JUDGE COHN JUBELIRER FILED: December 24, 2007 The Department of Transportation, Bureau of Motor Vehicles (Department), appeals from an order of the Court of Common Pleas of Cumberland County (trial court) that sustained the statutory appeal of Karen K. Deklinski and Joseph A. Deklinski (collectively, the Deklinskis) from a three-month suspension of their vehicle registration. The Deklinskis are the registered owners of a 2000 Saturn sedan, title number 53804414 (vehicle), that is, and was, insured by Allstate Insurance Company (Allstate). The Department, by letter dated April 20, 2006, informed the Deklinskis that it received information from Allstate regarding the cancellation of automobile insurance on the vehicle.' The letter listed the date of cancellation as March 9, 2006. The letter also requested verification of coverage on the vehicle and informed the Deklinskis that failure to respond within three weeks may result in the suspension of the vehicle's registration. The Deklinskis failed to provide the requested information and the Department, by official notice dated June 6, 2006, informed the Deklinskis that the registration for the vehicle would be suspended for three months effective July 7, 2006, as authorized by Section 1786(d)(1) of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. §1786(d)(1). The Deklinskis appealed the suspension to the trial court. ' See Section 1786(e) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1786(e) (relating to insurers' obligations upon lapse, termination, or cancellation of financial responsibility) and 67 Pa. Code §221.3 (relating to obligations upon termination of insurance). 2 Section 1 786(d)(1) provides that: The Department of Transportation shall suspend the registration of a vehicle for a period of three months if it determines the required financial responsibility was not secured as required by this chapter and shall suspend the operating privilege of the owner or registrant for a period of three months if the department determines that the owner or registrant has operated or permitted the operation of the vehicle without the required financial responsibility. The operating privilege shall not be restored until the restoration fee for operating privilege provided by section 1960 (relating to reinstatement of operating privilege or vehicle registration) is paid. 75 Pa.C.S. §1786(d)(1). 2 At the de novo hearing before the trial court the Department submitted the following documents into evidence in support of the registration suspension: (1) the official notice of suspension dated June 6, 2006; (2) an electronic transmission from Allstate, entitled "Suspension Inquiry Detaill" (SID Form); (3) a Department computer printout of the vehicle's details; (4) the Department's initial letter to the Deklinskis, dated April 20, 2006; and (5) a registration record that appears in the Deklinskis' file in the Bureau of Motor Vehicles, Harrisburg, Pennsylvania. In response, Ms. Deklinski testified as follows. In February 2006, she made a partial payment to Allstate for payment of the insurance premium on the vehicle. Allstate informed her that the remaining premium balance was due on March 9, 2006. Ms. Deklinski mailed a check on March 8, 2006; however, that check was never cashed. The Deklinskis received notice in the first week of April that the vehicle's insurance had lapsed.4 The Deklinskis contacted their Allstate agent, who told them not to worry and that he would contact the Department and get proof of insurance. When the Deklinskis did not receive proof of insurance they contacted the Department and were informed that there was no insurance on the vehicle. The Deklinskis did not continue to drive the vehicle. s In addition to the documents described, the Department also submitted the certification of Kurt Myers, Director of the Bureau of Motor Vehicles of the Pennsylvania Department of Transportation, certifying that all of the submitted documents are true and correct. (Trial Ct. Tr., Cmwlth's Ex. 1.) 4 Although Ms. Deklinski stated that she could not remember whether the notice was from the Department or Allstate, the trial court determined that it must have been from Allstate because it was not reflected in the Department's records. (Trial Ct. Op. at 2.) 3 The Deklinskis received the Department's letter, dated April 20, 2006, on April 25, 2006. The following day the Deklinskis delivered a check to Allstate and Allstate reinstated insurance coverage on the vehicle as of April 29, 2006. Ms. Deklinski further testified that she was under the impression that Allstate terminated insurance coverage on the vehicle on April 11, 2006. Ms. Deklinski stated that the basis for her belief was formed by a printout of a computer screen that her Allstate agent sent to her and to the Department, which listed the termination endorsement date as April 11, 2006. In addition to Ms. Deklinski's testimony, the trial court, over the Department's objection, admitted into evidence the printout of the computer screen that Allstate generated and a copy of the Deklinskis' "check register" for the period of March 1, 2006 through March 15, 2006. The trial court entered an order on November 28, 2006, which sustained the Deklinskis' appeal and reversed the Department's vehicle registration suspension. In an accompanying opinion, the trial court opined, in pertinent part, that: In the present case, the factual issue(s) for determination by the court are not whether Petitioners' vehicle had been uncovered by insurance for some period, but (a) when that period commenced, (b) whether it was less than thirty-one days, and (c) whether the vehicle had been driven during that period. The only evidence presented by the Commonwealth to support its position on the first issue was a docket-type notation reading "Determination Date: 03/09/06," a cryptic and undocumented reference. Given the balance of the evidence, the court is of the view that Petitioners' situation falls within the exception to suspension provided by the legislature, in that the period of non-coverage of Petitioners' vehicle was less than thirty- one days and that the vehicle was not driven during the period of non- coverage. 4 (Trial Ct. Op. at 5.) The Department's appeal followed.s The Department raises two issues on appeal: (1) whether the trial court's finding, that the Deklinskis proved by clear and convincing evidence that the lapse of financial responsibility on their vehicle was less than thirty-one days and the vehicle was not driven during that period, is supported by substantial evidence; and, (2) whether the trial court abused its discretion if it sustained the Deklinskis' statutory appeal to help them avoid economic hardship. "In a suspension of registration case," such as the present one, "the Department has the initial burden of showing that a registrant's vehicle is registered or is a type of vehicle that must be registered and that the Department received notice that the registrant's financial responsibility coverage was terminated." Fagan v. Department of Transportation, Bureau of Motor Vehicles, 875 A.2d 1195, 1198 (Pa. Cmwlth. 2005) (citing 75 Pa.C.S. § 1786(d)(3)). Statutory authority provides that "the department's certification of its receipt of documents or electronic transmission from an insurance company informing the department that the person's coverage has lapsed, been canceled or terminated shall also constitute prima facie proof' of such termination. 75 Pa.C.S. § 1377(b)(2) (emphasis added); accord Fagan, 875 A.2d at 1198 ("[t]he Department may satisfy this burden by certifying its receipt of documents or of an electronic transmission from an 5 Our standard of review "of a trial court order sustaining a statutory appeal from a suspension of registration is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether the court committed a reversible error of law or abused its discretion." Fagan v. Department of Transportation, Bureau of Motor Vehicles, 875 A.2d 1195, 1198 n.l (Pa. Cmwlth. 2005). 5 insurance company stating that a registrant's financial responsibility coverage has been terminated.") If the Department meets its burden, a presumption arises that the registrant lacked the necessary financial responsibility coverage. Faun, 875 A.2d at 1198. The registrant may rebut this presumption by presenting clear and convincing evidence of record "that financial responsibility was continuously maintained on the vehicle as required by Section 1786(a) of the MVFRL, 75 Pa.C.S. § 1786(a), or that the vehicle owner fits within one of the three statutorily defined defenses outlined in Section 1786(d)(2)(i-iii)...." Fell v. Department of Transportation Bureau of Driver Licensing, 925 A.2d 232, 237-38 (Pa. Cmwlth. 2007) (en Banc) (footnote omitted). This Court, sitting en bane in Fell, addressed a similar issue relating to the content of the electronic transmission provided by the Department and rejected the argument as to the transmission's form and content. The Fell case involved a document that was identical to the SID Form in the present case. In Fell, the trial court took great issue with the format and content of the SID Form certified by the Department. The trial court, in Fell, reasoned that: the rule which allows [the Department] to produce a non-validated, uncertified, undated, contextually vague, electronically generated document in satisfaction of its burden of proof in a matter as serious as a registration suspension is incorrect and works an unfairness on the registration holder. In the registration suspension appeals brought before this Court, [the Department] has only supplied the electronically derived document as evidence of non-insurance and has never offered the alternative proof of certified documents. [The Department's] application of 75 Pa. C.S.A. § 1377(b)(2) promotes 6 situations, like the instant one, where the electronic transmission erroneously and improperly issued, and its bald assertion of insurance termination triggered [the Department's] response of a final registration suspension. Id., 925 A.2d at 239 n.11 (quoting Department of Transportation v. Fell, No. 05- 6375-31-6, 2006 Pa. Dist. & Cnty Dec. LEXIS 214, (Bucks County C.P.Pa. filed June 1, 2006)). We rejected this position, noting that the SID Form was certified by the Department as being a record of an electronic transmission from the registrant's insurer. We relied on statutory authority that puts the focus on the Department's certification, specifically, that: the language of Section 1377(b)(2) of the Vehicle Code specifically directs that "the department's certification of its receipt of documents or electronic transmission from an insurance company informing the department that the person's coverage has lapsed, been canceled or terminated shall also constitute prima facie proof that the lapse, cancellation or termination of the policy of insurance described in the electronic transmission was effective under the laws of this Commonwealth." 75 Pa. C.S. § 1377 (b)(2) (emphasis added). Fell, 925 A.2d at 238 n.11. This Court has repeatedly held that the Department's certification constitutes prima facie proof. Id. at 237; Webb v. Department of Transportation, Bureau of Motor Vehicles, 870 A.2d 968, 973 (Pa. Cmwlth. 2005) ("We emphasize again that DOT's introduction into evidence before a trial court of its receipt of notice from an insurer of a policy cancellation creates a rebuttable presumption that the vehicle at issue lacked the requisite financial responsibility, for purposes of DOT's suspension of a vehicle's registration."); Choff v. Department of Transportation, Bureau of Motor Vehicles, 861 A.2d 442, 446 (Pa. Cmwlth. 2004) ("[The Department] may satisfy its burden by certifying that it 7 received documents or electronic transmissions from the insurance company informing [the Department] that the insurance coverage has been terminated.") In the present case, the trial court erred by focusing on the format and design of the SID Form, and by failing to apply the statutory language that the Department's certification "shall ... constitute prima facie proof .... " 75 Pa. C.S. § 1377(b)(2). Given this statutory authority and precedent, we conclude that the Department has met its prima facie burden, thus giving rise to a presumption that the financial responsibility coverage for the Deklinskis' vehicle was invalid. The more difficult question is whether the Deklinskis have produced clear and convincing evidence, on the record, to rebut the presumption that arises from the Department having met its prima facie burden. Although a challenge to an insurance cancellation may only be brought before the Insurance Commissioner, "a court reviewing a [Department] registration suspension appeal may certainly examine the record before it to determine whether an insurer's evidence has overcome the applicable presumption established by [the Department]." Webb, 870 A.2d at 974 (emphasis added). However, "[a]s to an examination, beyond the record on its face, into the validity of an insurer's policy cancellation, ... said examination is properly brought for review to the Insurance Commissioner under Section 1786(d)(5), and not to a trial court." Id. at 974. In the present case, the record before the trial court indicated that Allstate had forwarded a letter and an attachment to the Department that the policy terminated on April 11, 2006. The body of the letter, in its entirety, reads as 8 i follows: "[p]lease see copy of computer screen acknowledging termination endorsement effective 04/11/2006." (Letter from Paul Mattus of Allstate to the Department (Letter) (June 21, 2006).) The attachment, which was a printout of a computer screen, had an information item titled "TERM ENDORSE 041106." (Attachment to Letter.) The term "termination endorsement" is not defined in any of the evidence of record.6 As previously discussed, in order to rebut the presumption, registrants must present "clear and convincing evidence," which is defined as evidence "that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Fell, 925 A.2d at 239 (quoting Fagan, 875 A.2d at 1199). In this case, the Deklinskis have not produced sufficient evidence of record to meet that standard. In particular, it is not clear what the term "termination endorsement" means or to what it applies. It may mean that the insurance was terminated as of April 11, 2006 (and not March 9, 2006), but it simply is not clear that this is what it precisely means. Thus, we conclude that the record evidence, itself, does not rebut the presumption by clear and convincing evidence. However, there does seem to be a cognizable issue as to the validity of the insurance termination. Resolution of such an issue lies with the Insurance Commissioner. 75 Pa.C.S. § 1786(d)(5). Our Court, in Webb, found that, in instances such as this one, the registrant should be afforded an opportunity to transfer for a timely nunc pro tunc appeal to 6 Additionally, the record reflects that, although the trial court afforded the Deklinskis an opportunity to postpone the appeal hearing so as to have a representative of Allstate testify, the Deklinskis declined that opportunity. 9 the Insurance Commissioner. Webb, 870 A.2d at 974-75. Accordingly, we vacate the trial court's order and remand the matter with instructions to the trial court to hold the suspension appeal of the Deklinskis in abeyance pending the Insurance Commissioner's review and disposition of the Deklinskis' nunc pro tunc request for review of their insurance policy cancellation. RE r E COHN JUB IRER, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen K. Deklinski and Joseph A. Deklinski V. No. 2372 C.D. 2006 Commonwealth of Pennsylvania, Department of Transportation, ; Bureau of Motor Vehicles, Appellant ORDER NOW, December 24, 2007, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is vacated and this matter is remanded with instructions to the trial court to hold the suspension appeal of Karen K. Deklinski and Joseph A. Deklinski in abeyance pending the Insurance Commissioner's review and disposition of the Deklinskis' nunc pro tunc request for review of their insurance policy cancellation. Jurisdiction Relinquished. f RE A E COHN JUB IRER, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen K. Deklinski and Joseph A. Deklinski V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Appellant No. 2372 C.D. 2006 Submitted: December 12, 2007 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE JAMES GARDNER COLINS, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge DISSENTING OPINION BY JUDGE COLINS FILED: December 24, 2007 I must respectfully dissent from the majority opinion, as I do not believe that Fell should control in the instant matter. The Department couches the first issue before this Court as a question of whether the Deklinskis submitted sufficient evidence to fit within the first exception to a registration suspension. However, that question becomes relevant only when the Department satisfies its initial burden. Although the trial court's opinion does not acknowledge the above noted burdens, it is clear that the trial court found the Department's evidence insufficient to sustain the registration suspension. With this in mind, we must proceed to evaluate whether the parties satisfied their respective burdens. The Department submits that it met its initial burden through the submission of its certified documents. Specifically, the Department asserts that the document labeled "SUSPENSION INQUIRY DETAIL 1" established that Allstate terminated the Deklinskis' policy on March 9, 2006. In support of that position, the Department argues that the document shows that the `DETERMINATION DATE' as reported by Allstate for the cancellation of the Deklinskis' policy of insurance was `03/09/06' (R.R.54a). The `TERM[INATION) REASON' was for `NON PYMNT,' i.e., nonpayment of the premium. Id. (Brief of Department at 26). The Department continues that the document is the same electronic transmission sent to the Department by Allstate. After reviewing the document titled "SUSPENSION INQUIRY DETAIL 1" it is clear that the document, standing alone, is not sufficient to establish that Allstate terminated the Deklinskis' insurance policy on March 9, 2006. The document does not contain a termination date. In fact, contrary to the Department's insertion of the word in the above quoted passage, the actual word "termination" does not appear anywhere in the document. Instead, the document lists "DETERMINATION DATE: 03/09/06" without any further explanation. The document also lists other cryptic references, such as, "SOURCE: CA CANCEL" and "STATUS: P PENDING." Moreover, as exhibited in the above quoted passage, these references are not clear without additional explanation or context. However, before the trial court, the Department relied solely on the information contained in the document and it cannot now give meaning to the terms through counsel's arguments. See Grover v. Department of Transportation, Bureau of Driver Licensing, 734 A.2d 941, 944 (Pa. Cmwlth. 1999). Consequently, the JGC-2 Department's certified documents, as presented to the trial court, were not sufficient to satisfy the Department's initial burden. Because the Department failed to establish that insurance coverage on the Deklinskis' vehicle was terminated on March 9, 2006, the burden never shifted to the Deklinskis to prove otherwise. Nevertheless, the trial court credited Mrs. Deklinskis' testimony that any lapse that may have occurred was for less than 31 days and during that period the vehicle was not driven. Accordingly, the trial court's decision, sustaining the Deklinskis appeal and reversing the vehicle registration suspension, was supported by substantial evidence. The Department's assertion that the trial court abused its discretion by sustaining the Deklinskis' statutory appeal to help them avoid economic hardship must also be rejected. Although I agree with the Department that economic hardship is not a basis for sustaining an appeal, Banks v. Department of Transportation, Bureau of Driver Licensing, 856 A.2d 294 (Pa. Cmwlth. 2004), the Department has offered no evidence to support its position. Since the trial court accepted the Deklinskis' testimony and evidence as credible, it is my judgment that this Court is substituting its factual determinations for those of the trial court. JAME GARDNER COLINS, Judge Judge Friedman joins in this dissenting opinion. JGC-3 h^-3 ?,... -. r L r?S e' t ? `-??