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Karen Roscioli v. Commonwealth of Pennsylvania

February 23, 2012

KAREN ROSCIOLI
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, APPELLANT JOSEPH L. ROSCIOLI
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, APPELLANT



The opinion of the court was delivered by: Anne E. Covey, Judge

Submitted: January 27, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles (DOT) appeals from the August 17, 2011 order of the Court of Common Pleas of Lackawanna County (trial court) reversing DOT's order suspending the registration privileges of Karen and Joseph L. Roscioli for three months. There are two issues before this Court: (1) whether Mr. and Mrs. Roscioli proved that their insurance was not cancelled on November 28, 2010, or that they obtained new insurance effective that same date; and (2) whether the trial court should have held the matter in abeyance pending an appeal to the Insurance Commissioner. We vacate and remand.

On November 28, 2010, West American Insurance Company (West American) cancelled a car insurance policy issued to Mr. and Mrs. Roscioli that covered their four vehicles.*fn1 West American reported the cancellation of the policy to DOT. On March 20, 2011, DOT mailed a notification to Mr. and Mrs. Roscioli advising that the registration of their four vehicles was being suspended for three months, effective April 24, 2011. Mr. and Mrs. Roscioli appealed the suspensions to the trial court.*fn2 On August 17, 2011, the trial court held a hearing and granted the appeals of Mr. and Mrs. Roscioli. DOT appealed to this Court.*fn3

DOT argues that the trial court erred in finding that Mr. and Mrs. Roscioli met their burden in proving that they had car insurance on November 28, 2010. We agree.

Section 1786(d)(1) of the Vehicle Code requires DOT to "suspend the registration of a vehicle for a period of three months if it determines the required financial responsibility was not secured . . . ." 75 Pa.C.S. § 1786(d)(1). In order to sustain a suspension on these grounds, DOT must prove that: "the vehicle is registered or of a type that is required to be registered under this title; and . . . 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 . . . ." 75 Pa.C.S. § 1786(d)(3)(i), (ii). This Court has held that:

DOT may satisfy its burden by certifying that it received documents or electronic transmissions from the insurance company informing DOT that the insurance coverage has been terminated. Once DOT meets that burden, two presumptions arise: (1) that the cancellation was effective under 75 Pa.C.S. § 1377(b)(2)[;] and (2) that the vehicle in question lacks the requisite financial responsibility under 75 Pa.C.S. § 1786(d)(3)(ii).

Choff v. Dep't of Transp., Bureau of Motor Vehicles, 861 A.2d 442, 446-47 (Pa. Cmwlth. 2004) (citations and footnote omitted). DOT met its burden by admitting into evidence the certified notice from West American of the termination of Mr. and Mrs. Roscioli's insurance. Said certification gave rise to the presumptions that Mr. and Mrs. Roscioli's cancellation was effective, and that they were at least temporarily uninsured.

These presumptions can be overcome "by . . . clear and convincing evidence that the vehicle was insured at all relevant times." Section 1786(d)(3)(ii) of the Vehicle Code.*fn4 Section 2006 of Article XX of the Insurance Company Law of 1921 (Article XX)*fn5 provides: "A cancellation . . . by an insurer of a policy of automobile insurance shall not be effective unless the insurer delivers or mails to the named insured at the address shown in the policy a written notice of the cancellation . . . ." If a cancellation is ineffective for lack of notice under Article XX, DOT has no authority to impose a suspension. Eckenrode v. Dep't of Transp., Bureau of Driver Licensing, 853 A.2d 1141 (Pa. Cmwlth. 2004).

At the hearing before the trial court, Mrs. Roscioli testified that she never received a cancellation notice from West American. She further testified that she received four financial responsibility cards from West American showing an effective date of November 28, 2010. In addition, she testified that she had paid an insurance bill from West American in November of 2010, and the next payment was not due until December 30, 2010, at which time Mr. and Mrs. Roscioli already had purchased insurance from Liberty Mutual Insurance Company (Liberty Mutual).*fn6

Although Mrs. Roscioli testified that Liberty Mutual had insured their vehicles as of December 30, 2010, she had no documentation to support said testimony.

This Court has defined clear and convincing evidence 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 v. Dep't of Transp., Bureau of Motor Vehicles, 925 A.2d 232, 239 (Pa. Cmwlth. 2007) (quoting Fagen v. Dep't of Transp., Bureau of Motor Vehicles, 875 A.2d 1195, 1199 (Pa. Cmwlth. 2005)(quotation marks omitted)).

[U]ncorroborated testimony is insufficient to meet the strict evidentiary standard required to overcome the statutory presumption. Additionally, a financial responsibility insurance card is insufficient to prove coverage on a particular date because if insurance coverage is cancelled or terminated, the policyholder would still have the proof of ...


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