HomeMy WebLinkAbout94-04103
1 October 12, 1994
2 carli.le, penn.ylvania
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4 (Whereupon, the fOllowing proceeding. were
5 held.)
6 THE COURT: Mr. Haeckler.
7 MR. HAECKLER: ThiB iB the Commonwealth of
8 PennBylvania, Department of Transportation verBUB Jerry L.
9 Fahne.tock. It's number 94-4103. This is an appeal of a
10 three-month regi&tration suspension imposed by the
11 Department based upon information received from Reliance
12 Insurance Company that there had been termination of the
13 insurance for the car titled to Jerry L. Fahnestock with
14 title number 42586240.
15 The Department's records have been marked
16 state's Exhibit Number 1. This is a packet of three
17 BUb-exhibits, sub-exhibit Number 1 being the registration
18 suspension history for the vehicle titled 42586240
19 registered to Mr. Fahnestock. It shows one three-month
20 registration suspension which is pendir.g appeal.
21 Sub-exhibit Number 2 is that received of Reliance Insurance
22 Company by means of electronic transmission certifying the
23 termination of insurance on January 4th, 1994. Based on
24 that information, the Department processed the notice of
25 suspension, dated and mailed June 27, 1994, suspending the
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1 registration privilege ot Hr. Fahnestook tor a period ot
2 three months -- I'm sorry, the registration tor the vehiole.
3 And that vehiole again is titled 42586240. We'd move for
4 the admission ot state's Exhibit Number 1.
5 THE COURT: Hr. Adams?
6 HR. ADAMS: No objeotion, Your Honor.
7 THE COURT: All right. state's Exhibit
8 Number 1 is admitted without Objection.
9 (Whereupon,
10 State's Exhibit Number 1
11 was admitted.)
12 MR. HAECKLER: Thank you. The Department
13 rests, Your Honor.
14 THE COURT: All right. My recollection is
15 that this issue has arisen before in our county.
16 MR. HAECKLER: That's correct, Your Honor.
17 The case was the Harpoe decision in which Commonwealth
18 Court -- first you found that Section 1786 did not permit
19 the Department to suspend for a period of three months, it
20 was an indefinite suspension. Subsequent to that decision,
21 which was, by the way, affirmed by the Commonwealth Court,
22 the General Assembly amended 1786 by Act 2 of 1994, and the
23 act now specitically calls for a three-month registration
24 suspension. That act went into ettect on February loth,
25 1994.
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1 THE COURT: Is it your position that that act
2 would apply to this case?
3 MR. HAECKLER: Yes, Your Honor.
4 . THE COURT: All right. Hr. Adams.
5 HR. ADAMS: Your Honor, we are prepared to
6 proceed.
7 THE COURT: And just brietly, what's your
8 position?
9 HR. ADAMS: Our position will be that
10 Mr. Fahnestock did not receive notice from the Reliance
11 Insurance Company of the cancellation. That he did, upon
12 notice trom PennDOT, secure other insurance prior to the
13 date ot the suspension; and that, in tact, that Act 2 ot
14 1994 does not apply, that the Harpoe rUling should apply,
15 and the suspension should have been terminated upon his
16 acquiring new insurance.
17 THE COURT: All right. Are allot the dates
18 that I'll need contained in this record that's been marked
19 as state's Exhibit 1?
20 MR. ADAMS: All of the dates only from the
21 Commonwealth's side. I think we will need briet testimony
22 to establish our time periods.
23 THE COURT: All right. Hr. Adams.
24 HR. ADAMS: Your Honor, I would call Jerry
25 Fahnestock.
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THE COURT: Mr. Fahnestock, the chair'. right
there.
Whereupon,
JERRY LEE FAHNESTOCK,
having been duly sworn, testitied as tollows:
DIRECT EXAMINATION
BY MR. ADAMS:
Q
A
Q
A
pennsylvania.
Q Mr. Fahnestock, you owned a vehicle, an '81
Pontiac Firebird.
A Yes, sir.
Q And in 1993, was that vehicle insured by the
Reliance Insurance company?
A That is correct.
Q At any time beginning January ot 1994, did
you receive any notice from Reliance Insurance Company that
your insurance was being cancelled?
A No, sir.
Q At some point in 1994, you did receive notice
that that insurance was cancelled?
A The first notitication I got ot it was when I
Would you state your name, please?
Jerry Lee Fahnestock.
Mr. Fahnestock, what is your address?
Right now, P.O. Box 285, Shippensburg,
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1 received the letter from PennDOT informing me that my
2 registration was going to be suspended for a period ot three
3 months due to lack of insurance coverage.
4 The day -- the following day that I received
5 that letter I immediately proceeded to Mr. Carl Bertson, who
6 is a state Farm agent, and purchased insurance for that
7 vehicle because I have never operated a vehicle knowingly,
8 in my life, without insurance.
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16 A state Farm Insurance Company.
17 THE COURT: Do you know when your notice from
18 PennDOT was received that you didn't have insurance?
19 THE WITNESS: Sir, I went the very next day.
20 I received that the 19th of June -- 19th of May, sir.
21 THE COURT: 19th of May.
22 (Whereupon,
23 Defendant's Exhibit No. 1
24 was marked for identification.)
25
Q And do you know what the date was that you
purchased the insurance for the vehicle?
A That was on the 20th of May.
Q Of 1994?
A Yes, sir.
Q And what was the company that you had
purchased that from?
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Q
A
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insurance?
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Q
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Q
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1 A Absolutely. The day --
2 Q And when did you do that?
3 A Okay. I purcha.ed the insurance on the 20th.
4 So I had a copy made that evening when I received the
5 paperwork and mailed that out the following morning.
6 Q And did you receive any response as a result
7 of that copy?
8 A Yes, I did. I received another form letter
9 which basically told me -- gave me the same information as
10 the previous letter, and they stated that what I had
11 submitted, which my insurance had given me as proof of
12 insurance was not -- they wouldn't recognize that because it
13 did not have the VIN, which is known as the vehicle
14 identification number, affixed thereto.
15 Q Did you resubmit papers to PennDOT as a
16 result of that?
17 A Yes. Just recently I resubmitted my -- no,
18 let me go back. Okay -- while all of this was transpiring I
19 received my renewal -- my application for renewal of my
20 license in the mail, which I normally get every year,
21 $24.00-to-enter fee; and I wrote a personal check and mailed
22 it back. I didn't know whether or not this was pending
23 that--
24 THE COURT: Are you talking about your
25 license or registration?
9
1 THE WITNESS: My regi.tration .0 my lioen.e
2 i. valid. They in turn .ent that baok to me with yet
3 another torm letter basioally saying the same thing, that we
4 regret to intorm you that you oannot renew your registration
5 at this time because it was ourrently pending adjudioation.
6 MR. ADAMS: There's a matter ot hold as a
7 result at this three-month suspension; is that correct?
8 THE WITNESS: Ves. Correct.
9 MR. ADAMS: That's all of the questions I
10 have, Vour Honor.
11 THE COURT: Mr. Haeckler.
12 MR. HAECRLER: No questions, Your Honor.
13 THE COURT: No questions. I guess you don't
14 have copies of these letters that you were getting trom
15 PennDOT?
16 THE WITNESS: I have -- we have copies ot
17 those. Excuse me, Vour Honor.
18 THE COURT: Sure.
19 THE WITNESS: Some. I do not have the
20 original.
21 THE COURT: You don't have the letter at May
22 19th?
23 THE WITNESS: That's the one I don't have. I
24 sent that back, Your Honor, with what my ine~ranc. agent
25 gave mo to submit as proof ot insurance. So that one I do
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1 not have,
2 THE COURTr That'. all right. Unle..
3 Mr. Adams want. to introduce the.e letter..
4 MR. ADAMSr I don't have that letter, either,
5 Your Honor. It'. reterred to in the letter that re.ulted in
6 the .u.pension, but I don't have a copy ot the initial
7 letter.
8 MR. HAECKLERr Your Honor, if it helps, I
9 don't have a copy of that letter either. It's not a letter
10 that we keep, but the Department does send out prior to
11 sending notice of suspension, they often send out a letter
12 requesting information from the motorist because there may
13 have been a situation where the motorist leaves one
14 insurance company, moves to another, and in that instance
15 all we n.ed is an insurance card. So there's often an
16 opportunity to provide us with the appropriate insurance
17 information.
18 THE COURT: Your position is that although he
19 provided information that he had new insurance, that is not
20 the same thing as Showing that he had carried insurance all
21 along.
22 MR. HAECKLER: That's correct. The
23 su.pension is for having the lapse of insurance coverage,
24 and he doesn't now meot the exceptions of the deten....
25 THE COURT: All right. Mr. Adams.
11
1 THE WITNESS: I have one que.tion. The thing
2 that'. puzzled me from the beginning of this is it, in tact,
3 this law i. obviously in place, why -- I understand there
4 was a 90-day period in which PennDOT has to, you know, you
5 have a 90-day period there where either you do have
6 insurance or you don't have it. If it's past that 90-day
7 period, they may enact the suspension. I was not notified
8 in that 90-day period by PennDOT or Reliance Insurance
9 Company, which has resulted in my being here today.
10 Had I been notified, I would have, you know,
11 immediately purchased insurance as I did. Now they are
12 saying it's too late because that period has lapsed. I have
13 shown no insurance for a gO-day period. And I -- you know I
14 cannot lose my vehicle or I lose my jOb.
15 MR. ADAMS: I don't have any more questions.
16 THE COURT: Mr. Haeckler, any more questions?
17 MR. HAECKLER: No questions, Your Honor.
18 THE COURT: Okay. Thank you, sir. Is that
19 the conclusion of your case, Mr. Adams?
20 MR. ADAMS: Y~s, Your Honor.
21 THE COURT: And I think you had one exhibit,
22 Defendant's Exhibit 1.
23 MR. ADAMS: I would offer that into evidence,
24 Your Honor.
25 MR. HAECKLER: Could we have a copy of that?
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1 I'm just concerned that the motorist have a copy in his car,
2 and I would have no objection of a photocopy being admitted
3 in place of the original. My concern is just that the
4 motorist have his insurance card in his car at all times.
5 THE COURT: Mr. Hursen, you can help with
6 that. And if there's no objection, Defendant'. Exhibit 1 as
7 a photocopy is admitted.
8 (Whereupon,
9 Defendant's Exhibit No. 1
10 was admitted into evidence.)
11 THE COURT: Do counsel wish to submit brief.
12 on this subject?
13 HR. ADAMS: I may have to, Your Honor,
14 because actually I was again taught a lesson by
15 Hr. Haeckler, who knows too much about this law. I thought
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21 Act 2 was not effective until February 10.
22 The only other point I would raise is that my
23 client didn't have a chance to meet the exceptions because
24 he did not receive the adequate notice from his underlying
25 insurance company and met the exception as soon al he could
Harpoe was still going to be valid law.
I would argue and really I'm not Bure I
want to get into great depth in this brief, but would argue
that it should still apply, and that this may very well be
the last Harpoe case; that the suspension was January and
13
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1 when he was notified by PennDOT.
2 Possibly we should be briefing the very first
3 point as to whether the fact that the acts that resulted in
4 the suspension occurred before Act 2, but the suspension
5 occurred after, which would be the effective date. That
6 would be the main issue, Your Honor.
7 THE COURT: Mr. Haeckler?
8 MR. HAECKLER: I would think that actually
9 both issues should be briefed. There is a case out there
10 which -- although I find distinguishable as something that
11 this Court may wish to look at when deciding the facts as
12 testified. The case is called Shepley. I don't have the
13 citation for it, but I believe it is a case which although I
14 believe is distinguishable, may be precedent, which the
15 Court may wish to review before the Court makes its decision
16 in this matter.
17 THE COURT: Thank you for bringing this to
18 the Court's attention. What period of time would you like
19 for your briefs?
20 MR. ADAMS: Ten days?
21 THE COURT: Ten days?
22 MR. HAECKLER: That's fine.
23 THE COURT: Are you Bure?
24 MR. HAECKLER: Yes.
25 THE COURT: All right. We will enter this
14
COMMONWEALTH OF PENNSYLVANIA,
DEPARTHBNT OF TRANSPORTATION,
Respondent/Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
JERRY L. FAHNESTOCK,
Petitioner/Appellant
NO. 94-4103 CIVIL TERM
IN REI REGISTRATION SUSPENSION APPEAL
BEFORE OLER. J.
OPINION and ORDER OF COURT
Oler, J.
Thi. case is an appeal from a three-month suspension of a
motor vehicle registration privilege due to a lapse in financial
responsibility coverage. Questions presented on the appeal are (1)
whether a lapse in insurance c~verage which arose prior to the
effective date of a certain Vehicle Code amendment and continued
for several months therafter warranted the Dtipartment of
Transportation's imposition of a three-month suspension of
registration privilege as provided for in the amendment and (2)
whether the Department's burden of proof on the issue of lapse in
coverage has been met. For the reasons stated in this Opinion,
both questions will be answered in the affirmative and the
suspension will be affirmed.
STATEHBNT OF FACTS
Petitioner/Appellant is Jerry L. Fahnestock, a resident of
Shippensburg, Pennsylvania, and the owner of a 1981 Pontiac
Firebirdl bearing a vehicle identification number (VIN) of
N.T. 6, Hearing, October 12, 1994, Commonwealth ot
Pennsylvania, Department ot Transportation v. Fahnestock, No. 94-
4103 Civil Term (hereinafter N.T. ___I.
NO. 94-4103 CIVIL TERM
lG2AV87H9BN109518.a
Respondent/Appellee is the Department of
TransportaUtln.
On January 4, 1994, Reliance Insurance Company terminated
insurance coverage on Appellant's car for nonpayment of premiums.)
At an undetermined point in time, the insurance company notified
the Department of the termination, and on May 4, 1994, the
Department mailed a letter of inquiry to Appellant regarding the
apparent lapse of coverage,. This letter was received by Appellant
on May 19, 1994,' and he procured insurance from another company on
May 20, 1994.'
Appellant testified that he had not been notified by Reliance
Insurance Company that his coverage had terminated,' and that he
was unaware prior to receipt of the Department'. letter that
coverage had lapsed." On the other hand, he did not testify that
he had paid the premium or had attempted to pay it.
a State's Exhibit 1, Hearing, October 12, 1994, Commonwealth
ot Pennsylvania, Department of Transportation v. Fahnestock, No.
94-4103 Civil Term (hereinafter State's or Defendant's [sia)
Bxhibit ___).
) State'. Exhibit 1.
. State's Exhibit 1, N.T. 6-7, 11.
. N.T. 7.
, N.T. 71 Defendant's Exhibit 1.
, N.T. 6.
" N.T. 6-7.
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NO. 94-4103 CIVIL TERM
Appellant sent notice to the Department on May 21, 1994, that
he had obtained new insurance,' However, by notice dated June 27,
1994, the Department suspended Appellant's registration privilege
with respect to the car because of the lapse in coverage. 10
The present appeal from the suspension was filed by Appellant
on June 22, 1994. A hearing was held by the Court on the appeal on
October 12, 1994. Both counsel have submitted memoranda of law on
the questions presented.
DISCUSSION
Acclicability of Vehicle Code amendment to Accellant's
conduct. Section 1786(d) of the Vehicle Code previously provided
as followsl
The Department of Transportation shall
suspend the registration of a vehicle if it
determines the required financial
responsibility was not secured as required by
[the Motor Vehicle Financial Responsibility
Law) 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,...1I
The wording of this provision was such that courts rejected
the Department's position that a registration suspension due to
.
N.T. 8-9.
10
State's Exhibit 1.
II Act of February 12, 1984, P.L. 26, 53, ae amended, 75 Pa.
C.S. S1786(d) (1994 Supp.).
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NO. 94-4103 CIVIL TBRM
lapse of coverage was to extend for a full three-month period
notwithstanding an owner's acquisition of insurance in the interim.
See e.g., Commonwealth v. Marpoe, 157 Pa. Commw. 603, 630 A.2d 561
(1993) [affirming lower court's holding t.hat registration
suspension under Section 1786(d) as drafted was to be indefinite
and terminable upon acquisition of new insurance rather than for a
definite minimum period of three months].
The General Assembly, by the Act of February 10, 1994, P.L.
No.2, 52, adopted the Department's position legislatively by
-,
amending Section 1786(d) to read as followsl
The Department of Transportation shall
sus~end the registration of a vehicle for a
Qlltlod of three months if it determines the
required financial responsibility was not
secured as required by [the Motor Vehicle
Financial Responsibilitr Law] and shall
suspend the operating pr vilege of the owner
or registrant for a period of three mcnths if
the department determines that the owner or
registrant has operated or permitted the
operation of the vehicle without the required
financial responsibility,... la
This amendment was effective immediately, II It clearly provides
that a registration suspension imposed pursuant to Section 1786(d)
is to be for a minimum period of three months, irrespective of
whether the vehicle owner obtains new insurance within that period.
u 75 Pa. C.S. 51786(d) [1 Purdon's Pa. Leg. Servo 7, 10
(1994) ) .
II Act of February 10, 1994, P.L.
Purdon's Pa. Leg. Servo 7, 14 (1994)).
-,
No.2, 512(2) [1
4
NO. 94-4103 CIVIL TERM
Although an amendatory statute is not generally to be given
retroactive effect, "[w]here no vested right or contractual
obligation is involved, an act or regulation is not impermissibly
construed retroactively when applied to a condition existing on its
effective date, even though the condition results from events which
occurred prior to that date." DeMatteis v. DeMatteis, 399 Pa.
Super. 421, 434, 582 A.2d 666, 672 (1990).
In the present case, the condition of Appellant's failure to
comply with the Vehicle
Code
requirement
of
financial
responsibility was not one to which he had a vested right or
contractual entitlement. Although arising prior to the amendatory
statute, the condition of non-compliance continued for months after
the effective date of the new act. Under these circumstances, the
Department's suspension of Appellant's registration privilege for
a period of three months as provided for in the new act does not
appear to the Court to have been an impermissible retroactive
application of the amendatory legislation.
Reauisite croof as to lacse of coveraae. The Commonwealth
Court has in the past addressed the issue of the Department' s
burden of proof with regard to a suspension imposed under Section
1786(d) of the Vehicle Code. The general rule has been stated as
followsl
To sustain a registration suspension
under section 1786(d), DOT must prove that:
( 1) the vehicle in question is of a type
required to be registered in the Commonwealth,
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NO. 94-4103 CIVIL TERM
and (2) that the required automobile liability
insurance had been cancelled or otherwise
terminated such that a lapse occurred in the
required financial responsibility. Department
of Transportation, Bureau of Motor Vehicles v.
Andrews, 143 Pa. Commonwealth Ct, 601, 600
A.2d 622 (1991).
Once DOT has met its burden of showing a
lapse in coverage, the burden shifts to the
registrant to establish that he or she
qualifies for one of the exceptions set forth
in subsections (1) and (2) of section 1786(d).
Andrews. The registrant may show that the
lapse was for less than thirty-one days and
that the vehicle in question was not operated
during the lapse period.
Commonwealth, Dep't of Trdnsp. v. Shepley, 161 Pa. Commw. 314, 319,
636 A.2d 1270, 1273 (1994).
Scienter on the part of an owner that coverage has lapsed i8
not an express prerequisite to Department action under Section
1786(d). See Stone v. Commonwealth, Dep't, of Transp., ____ Pa.
Commw. _, 647 A.2d 287 (NO. 2962 C.D. 1993) (August 17, 1994)
[upholding suspension of one's operating privilege under Section
1786(d) for driving during lapse in coverage, notwithstanding
driver's claim of lack of fault and lack of knowledge concerning
lapse], Commonwealth, Dep't of Transp. v. Riley, 150 Pa. Commw.
259, 615 A.2d 905 (1992) (reversing lower court's reversal of
registration suspension based on owner's lack of scienter),
overruled on
other grounds, Commonwealth,
Department of
Transportation v. Buss, 154 ~a. Cornrow. 118, 623 A.2d 369 (1993).
On the other hand, where an owner has taken all necessary steps to
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NO. 94-4103 CIVIL TERM
maintain his or her coverage and has reasonably assumed coverage is
in place, a lower court's refusal to uphold a suspension of
registration will be sustained. Commonwealth v. Shepley, 161 Pa.
Commw. 314, 636 A.2d 1270 (1994) (apparent failure of postal system
to deliver premium payment to insurer).
In the present case, the Department demonstrated that
Appellant's insurance had lapsed for a period in excess of four
months as a result of Appellant's nonpayment of premiums. No
testimony was presented by Appellant that he had taken any steps
necessary to keep the insurance in effect during that extended
period of time. Under these circumstances, and without suggesting
that under more compelling circumstances a different result might
not be called for, the Court believes that the Department has met
its burden of showing "that the vehicle in question was of a type
required to be registered in the Commonwealth and that the required
automobile liability insurance had been cancelled or otherwise
terminated such that a lapse," unaccompanied by sufficient excuse
for purposes of Section l786(d), "occurred in the required
financial responsibility."
For these reasons, the following Order will be entered I
~ ORDER OF COURT
AND NOW, this 20 day of December, 1994, upon consideration of
Appellant's Petition To Set Aside Suspension, and for the rea80ns
stated in the accompanying Opinion, the petition is DENIED and
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