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Home My WebLink About94-4103 Civil COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, : CUMBERLAND COUNTY, PENNSYLVANIA Respondent/Appellee : v. : CIVIL ACTION - LAW : JERRY L. FAHNESTOCK, : Petitioner/Appellant : NO. 94-4103 CIVIL TERM IN RE: REGISTRATION SUSPENSION APPEAL BEFORE OLER, J. ORDER OF COURT AND NOW, this ZO~ay of December, 1994, upon consideration of Appellant's Petition To Set Aside Suspension, and for the reasons stated in the accompanying Opinion, the petition is DENIED and appellee's suspension, dated June 27, 1994, of Appellant's registration privilege respecting the motor vehicle bearing VIN 1G2AV87H9BN109518 is AFFIRMED. BY THE COURT, ~ W~sley Oler~r.,~.~ ' Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for Appellee H. Anthony Adams, Esq. 128 E. King Street Shippensburg, PA 17257 Attorney for Appellant : rc COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, : CUMBERLAND COUNTY, PENNSYLVANIA Respondent/Appellee : : v. : CIVIL ACTION - LAW : JERRY L. FAHNESTOCK, : Petitioner/Appellant : NO. 94-4103 CIVIL TERM IN RE: REGISTRATION SUSPENSION APPEAL BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. This 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 coverage which arose prior to the effective date of a certain Vehicle Code amendment and continued for several months therafter warranted the Department 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. STATEMENT OF FACTS Petitioner/Appellant is Jerry L. Fahnestock, a resident of Shippensburg, Pennsylvania, and the owner of a 1981 Pontiac Firebird~ bearing a vehicle identification number (VIN) of ~ N.T. 6, Hearing, October 12, 1994, Commonwealth of Pennsylvania, Department of Transportation v. Fahnestock, No. 94- 4103 Civil Term (hereinafter N.T. __). NO. 94-4103 CIVIL TERM 1G2AV87H9BN109518.2 Respondent/Appellee is the Department of Transportation. On January 4, 1994, Reliance Insurance Company terminated insurance coverage on Appellant's car for nonpayment of premiums.3 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.4 This letter was received by Appellant on May 19, 1994,$ and he procured insurance from another company on May 20, 1994.6 Appellant testified that he had not been notified by Reliance Insurance Company that his coverage had terminated,7 and that he was unaware prior to receipt of the Department's letter that coverage had lapsed.8 On the other hand, he did not testify that he had paid the premium or had attempted to pay it. 2 State's Exhibit 1, Hearing, October 12, 1994, Commonwealth of Pennsylvania, Department of Transportation v. Fahnestock, No. 94-4103 Civil Term (hereinafter State's or Defendant's [sic] Exhibit __). State's Exhibit 1. State's Exhibit 1; N.T. 6-7, 11. N.T. 7. N.T. 7; Defendant's Exhibit 1. N.T. 6. N.T. 6-7. 2 NO. 94-4103 CIVIL TERM Appellant sent notice to the Department on May 21, 1994, that he had obtained new insurance.9 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.~° 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 Applicability of Vehicle Code ~mendment to Appellant's conduct. Section 1786(d) of the Vehicle Code previously provided as follows: 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 .... ~ The wording of this provision was such that courts rejected the Department's position that a registration suspension due to 9 N.T. 8-9. ~0 State's Exhibit 1. ~ Act of February 12, 1984, P.L. 26, §3, as amended, 75 Pa. C.S. S1786(d) (1994 Supp.). 3 NO. 94-4103 CIVIL TERM 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 that 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, §2, adopted the Department's position legislatively by amending Section 1786(d) to read 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 [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 .... ~2 This amendment was effective immediately.~3 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. ~2 75 Pa. C.S. S1786(d) [1 Purdon's Pa. Leg. Serv. 7, 10 (1994)]. ~3 Act of February 10, 1994, P.L. __, No. 2, S12(2) [1 Purdon's Pa. Leg. Serv. 7, 14 (1994)]. 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. Requisite proof as to lapse of coveraqe. 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 follows: 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; 5 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 Transp. v. Shepley, 161 Pa. Commw. 314, 319, 636 A.2d 1270, 1273 (1994). Scienter on the part of an owner that coverage has lapsed is 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 Pa. Commw. 118, 623 A.2d 369 (1993). On the other hand, where an owner has taken all necessary steps to 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 an 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 1786(d), "occurred in the required financial responsibility." For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ZO~aY of December, 1994, upon consideration of Appellant's Petition To Set Aside Suspension, and for the reasons stated in the accompanying Opinion, the petition is DENIED and 7 NO. 94-4103 CIVIL TERM appellee · s suspension, dated June 27, 1994, of Appellant ' s registration privilege respecting the motor vehicle bearing VIN 1G2AV87H9BN109518 is AFFIRMED. BY THE COURT, J~ We~s 1 ey Oler~r. , ~' Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for Appellee H. Anthony Adams, Esq. 128 E. King Street Shippensburg, PA 17257 Attorney for Appellant : rc 8