Morgan v. Commonwealth, Department of Transportation, Bureau of Motor Vehicles , 702 A.2d 1 ( 1997 )

JIULIANTE, Senior Judge.

The Department of Transportation (Department) appeals from the November 20, 1996 order of the Court of Common Pleas of Clearfield County (trial court) sustaining Toni S. Morgan’s statutory appeal from the Department’s three-month suspension of the registration of her 1994 Toyota Corolla.¹ We reverse.

By official notice dated and mailed March 11, 1996, the Department advised Morgan that her vehicle registration privilege was being suspended for three months as a result of a lapse in insurance coverage. (R.R. 7a.) Pursuant to that notice, Morgan sent a March 29, 1996 letter to the Department requesting reconsideration of her registration suspension. (R.R. 62-64a.)²

The court found that Morgan was advised by her attorney’s office that the Department would act on her March 29th letter prior to the expiration of the thirty-day appeal period for filing her statutory appeal with the trial court.³ Thus, in reliance on the information her attorney’s office gleaned from the Department, Morgan did not file an appeal with the trial court until her April 15, 1996 petition for allowance of appeal nunc pro tunc. (R.R. 2-10a.) The trial court granted her petition, stating that it “was convinced that justice required that she be given an opportunity to be heard.” (Trial Court’s February 11,1997 Opinion at 2.)

With regard to the merits of Morgan’s statutory appeal, the trial court found that Morgan did not knowingly or intentionally refuse to pay her insurance premium. It reviewed Morgan’s difficulties with her former husband in attempting to comply with the Department’s January 19, 1996 request that she present proof of insurance within a specified time.⁴ (Trial Court’s February 11, 1997 Opinion at 3.) Thus, relying upon Department of Transportation, Bureau of Driver Licensing v. Shepley, 161 Pa.Cmwlth. 314, 636 A.2d 1270 (1994),⁵ the court sustained Morgan’s appeal on the merits.

The Department presents two issues for our review:⁶ 1) whether the court erred in granting Morgan’s petition for allowance of appeal nunc pro tune; and 2) whether the trial court erred in permitting a collateral attack upon an insurance cancellation. Our scope of review of a trial court’s order granting or denying a party leave to file an appeal nunc pro tunc is limited to determining whether the court abused its discretion or committed an error of law. Kulick v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 1148 (Pa.Cmwlth. 1995), petition for allowance of appeal denied, 544 Pa. 616, 674 A.2d 1077 (1996).

The Department argues that the trial court erred in granting the petition for allowance of appeal nunc pro tune because Morgan’s misreading of the reconsideration language in the March 11, 1996 registration suspension notice and reliance on the information from her attorney’s office regarding the speed with which the Department would review her reconsideration letter did not amount to a breakdown in the administrative process sufficient to permit allowance of an appeal nunc pro tunc. We agree.

As the trial court notes in its opinion, Morgan bore the burden of establishing that she failed to file a timely appeal as a result of extraordinary circumstances involving fraud or breakdown in the administrative or judicial process. Kulick. Here, the court found as a fact that the Department led Morgan to believe that she would receive a response to her request for reconsideration prior to the expiration of the appeal period. (October 8, 1996 Hearing, N.T. 24-25; R.R. 36-37a.) From that finding, the court determined that Morgan established an administrative breakdown sufficient to prove grounds for allowance of an appeal nunc pro tunc. We conclude that the court erred in finding an administrative breakdown.

A secretary from the attorney’s office representing Morgan, Linda Ziembo, testified that she called the Department to check on the status of the March 29, 1996 letter for reconsideration. The court accepted her testimony that a Department representative advised her that Morgan probably would get a response to her letter prior to the expiration of the thirty-day appeal period. (N.T. 22; R.R. 34a.) Nowhere in the record, however, does it indicate that the Department advised Ziembo that the March 29, 1996 letter would toll the thirty-day appeal period and the court did not make a finding to that effect. Thus, we conclude that the court erred in finding an administrative breakdown and that it had no jurisdiction to entertain Morgan’s appeal. Department of Transportation, Bureau of Traffic Safety v. Warenczuk, 160 Pa.Cmwlth. 6, 636 A.2d 1225 (1991), aff'd, 534 Pa. 623, 633 A.2d 1167 (1993), cert. denied, 511 U.S. 1092, 114 S.Ct. 1854, 128 L.Ed.2d 478 (1994).

Although we need not reach the Department’s second issue, we note that Morgan should have lost on the merits as well. This Court overruled Shepley, the case relied upon by the trial court, in O’Hara v. Department of Transportation, Bureau of Motor Vehicles, 691 A.2d 1001 (Pa.Cmwlth.1997). In O’Hara we cited with approval the following language from Stone v. Department of Transportation, Bureau of Driver Licensing, 166 Pa.Cmwlth. 643, 647 A.2d 287 (1994):

While we ... have sympathy for [the insured’s] predicament, we agree with [the trial court] that the [Law] is clear. [DOT] is required to suspend the operating privilege of the owner or registrant of a vehicle, when [DOT] determines that that person has operated the vehicle without insurance. There is no requirement that [DOT] establish that the person was at fault or that the person intended to operate the vehicle without insurance. Neither is [DOT] required to prove that the owner or registrant actually received notice of an imminent lapse of insurance.

647 A.2d at 288 (emphasis added). In addition, we concluded that a vehicle owner’s exclusive remedy for an allegedly improper insurance cancellation is under the Insurance Act⁷, and that “[i]f the insured does not challenge the termination of insurance, the insured has waived that issue.” O’Hara, 691 A.2d at 1004.

Accordingly, we reverse the trial court’s order and direct the Department to reinstate the three-month registration suspension of the 1994 Toyota Corolla.

ORDER

AND NOW, this 20th day of August, 1997, the order of the Court of Common Pleas of Clearfield County dated November 20, 1996 is hereby reversed.

1 . Under Section 1786(a) of the Motor Vehicle Financial Responsibility Law (Law), "[e]very motor vehicle of the type required to be registered under this title which is operated or currently registered shall be covered by financial responsibility.” 75 Pa.C.S. § 1786(a). The penalty for failing to carry this coverage is set forth in Section 1786(d) of the Law:

(d) Suspension of registration and operating privilege.—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.

75 Pa.C.S. § 1786(d).

2 . Although the letter is dated March 29, 1995, Morgan testified that the date should have been 1996. (October 8, 1996 Hearing, N.T. 7-8; R.R. 19-20a.)

3 . Section 5571(b) of the Judicial Code, 42 Pa. C.S. § 5571(b).

4 . (R.R. 60a.)

5 . On March 17, 1997, approximately a month after the trial court issued its February 11, 1997 decision, we overruled Shepley.

6 . In a July 8, 1997 order, this Court precluded Morgan from filing a brief in this matter.

7 . Act of June 5, 1968, P.L. 140, as amended, 40 P.S. §§ 1008.1-1008.11.