May 16, 1997
LEE A. FINE, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING
Appealed From No. 96-2397. Common Pleas Court of the County of Washington. Judge TERPUTAC.
Before: Honorable Dan Pellegrini, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Pellegrini. Senior Judge Silvestri Dissents.
The opinion of the court was delivered by: Pellegrini
OPINION BY JUDGE PELLEGRINI
FILED: May 16, 1997
Lee A. Fine (Licensee) appeals from the decision of the Court of Common Pleas of Washington County (trial court) dismissing his statutory appeal of a three-month suspension of his operating privileges imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT) pursuant to the Motor Vehicle Financial Responsibility Law. *fn1
On March 5, 1996, while driving his vehicle, Licensee was stopped by Officer Bartman of Jefferson Borough. He was cited for operating a vehicle without the required financial responsibility. *fn2 He pled guilty and was convicted of that offense before a district Justice on April 12, 1996, with a sentence of a fine of $300. On April 24, 1996, PennDOT notified Licensee that his driving privileges would be suspended for three months under Section 1786(d) of the Vehicle Code *fn3 for failing to produce proof of financial responsibility on March 5, 1996. Licensee filed a statutory appeal with the trial court.
At a de novo hearing before the trial court, PennDOT offered a certified copy of the record of conviction from the district Justice, which indicated that Licensee had pled guilty to the offense. *fn4 Licensee objected to the admission of the record from the district Justice and offered a copy of an order of the Court of Common Pleas of Allegheny County, which heard Licensee's appeal from the district Justice de novo, *fn5 adjudging him not guilty of the offense. After argument by the parties, the trial court ruled that PennDOT had met its prima facie case and offered Licensee the opportunity to testify on his own behalf. Licensee chose not to testify or present further evidence. PennDOT then attempted to call Licensee as a witness; however, the trial court refused to allow it. The trial court dismissed the appeal and reinstated the suspension, holding that PennDOT established a prima facie case based on the conviction by the district Justice, thereby shifting the burden to Licensee who failed to prove that he fell within the exceptions to Section 1786(d). Licensee then filed this appeal. *fn6
As PennDOT acknowledges, to meet its burden of proof where a licensee has appealed a license suspension pursuant to Section 1786(d), it must establish that the vehicle is one which must be registered, that financial responsibility was not secured or maintained, and that the licensee operated the vehicle while it was not covered by financial responsibility. Pelter v. Department of Transportation, Bureau of Driver Licensing, 663 A.2d 844 (Pa. Commw. 1995); Stone. In Wible v. Department of Transportation, Bureau of Driver Licensing, 670 A.2d 744 (Pa. Commw. 1996), we held that where a licensee pled guilty to operating a motor vehicle without the requisite financial responsibility in violation of Section 1786(f) and did not object to the admission of the record of the guilty plea, PennDOT met its burden of proof to support a license suspension under Section 1786(d). *fn7 Once PennDOT has satisfied its burden, the burden shifts to the licensee to prove that he, in fact, maintained financial responsibility or that he fell within the exceptions described in Section 1786(d). Stone.
Licensee contends that PennDOT did not meet its burden of proof in this case by submitting the conviction of the district Justice because that conviction was reversed by the "not guilty" verdict in the Court of Common Pleas of Allegheny County. PennDOT argues that the Court of Common Please of Allegheny County merely dismissed the action because the police officer did not show up to testify, and that such a dismissal does not change the facts pled guilty to by the Licensee before the district Justice.
What PennDOT fails to realize is that, like a licensee attempting to argue that he was not properly convicted of an underlying offense as the basis of a suspension, it cannot collaterally attack the Court of Common Pleas of Allegheny County's judgment of not guilty. See Commonwealth v. Bursick, 526 Pa. 6, 584 A.2d 291 (1990); Orndoff v. Department of Transportation, Bureau of Driver Licensing, 654 A.2d 1 (Pa. Commw. 1994). Licensee had a right to appeal the district Justice's order, and the appeal must be de novo before the court of common pleas pursuant to Pa. R. Crim. P. 86(f). The Court of Common Pleas of Allegheny County's order states that Licensee was adJudged not guilty of the offense. Such a not guilty judgment overturns and replaces any determination by or plea before the district Justice.
Although PennDOT's initial submission of its records may have met its burden to establish a conviction, it is a rebuttable presumption; Licensee's submission of a certified copy of the appeal is sufficiently clear and convincing to rebut the presumption of a conviction. Department of Transportation, Bureau of Driver Licensing v. Diamond, 151 Pa. Commw. 351, 616 A.2d 1105, 1107-08 (Pa. Commw. 1992). Unlike in Wible, in this case, the plea before the district Justice was overturned on appeal, and the record of the plea was objected to by the Licensee. Accordingly, PennDOT did not meet its ultimate burden of proof because the presumption of a conviction was sufficiently rebutted by the record of the not guilty judgment in the Court of Common Pleas of Allegheny County.
Even if the record of the district Justice was insufficient to meet its burden of proof, PennDOT argues it was entitled to call Licensee to testify as an adverse witness. Because any competent witness, except the defendant in a criminal proceeding, may be compelled to testify pursuant to 42 Pa. C.S. § 5941(a), PennDOT could have called Licensee to testify in its case in chief or in proper rebuttal. PennDOT failed to call Licensee in its case in chief and his testimony was not proper rebuttal.
After PennDOT had submitted its documentary evidence and Licensee then submitted his documentary evidence that the district Justice conviction had been reversed, PennDOT attempted to call Licensee. Based on the transcript of the exchange, PennDOT's examination of Licensee would have been in rebuttal and would have gone to the factual basis for the criminal charge. *fn8 Because PennDOT is not permitted to collaterally attack the not guilty verdict on the criminal charge, the trial court did not err in refusing PennDOT's attempt to call Licensee as a witness. *fn9
Accordingly, we reverse the order of the trial court.
DAN PELLEGRINI, JUDGE
Senior Judge Silvestri Dissents.
AND NOW, this 16th day of May, 1997, the order of the Court of Common Pleas of Washington County, filed October 15, 1996, No. 2397 of 1996, is reversed.
DAN PELLEGRINI, JUDGE