Opinion
October 9, 1986.
Motor vehicles — Suspension of motor vehicle operator's license — Points — Burden of proof — Frivolous appeals — Pa. R.A.P. 2744.
1. In a motor vehicle operator's license suspension case based upon an accumulation of points, once the Commonwealth produces records of convictions justifying the suspension, the burden shifts to the licensee to establish that he was not so convicted or the calculation of points from his convictions is erroneous. [242]
2. Evidence that a computer printout which apparently is only the first page of a two page document has recorded only two convictions, rather than the four established by the Commonwealth in a license suspension case, does not rebut a certified record of four convictions produced by the Commonwealth. [243]
3. Delay damages and attorney's fees can be assessed under Pa. R.A.P. 2744, when an appeal is frivolous. [243]
Submitted on briefs June 9, 1986, to President Judge CRUMLISH, JR., Judge BARRY, and Senior Judge ROGERS, sitting as a panel of three.
Appeal, No. 3686 C.D. 1984, from the Order of the Court of Common Pleas of Fayette County, in case of Re: In the Matter of Appeal of Richard Michael George, No. 213 of 1984, G.D.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of Fayette County. Suspension affirmed. CICHETTI, P.J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Joseph M. George, Buck, Margolis, Mahoney, George Port, for appellant.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Richard Michael George appeals a decision of the Court of Common Pleas of Fayette County affirming a suspension of his driver's license pursuant to Section 1539 of the Vehicle Code, 75 Pa. C. S. § 1539 (accumulation of 11 points or more).
In a license suspension case where the suspension is based on the accumulation of points, the Department of Transportation (DOT) must produce the records of convictions which justify the suspension. The burden then shifts to the motorist who must prove that he was not, in fact, convicted or that the records or calculations are incorrect. Commonwealth v. Siedlecki, 7 Pa. Commw. 130, 300 A.2d 287 (1973). There is no doubt that DOT has sustained its initial burden of proof by introducing into evidence certified records of all the necessary convictions. George, however, maintains that he has proved that the records submitted by DOT are incorrect and that we must, therefore, reverse the trial court's decision.
This Court stated in Siedlecki that "[t]o rebut the prima facie case of the Commonwealth, the operator must prove by competent and convincing evidence that he was not convicted." Id. at 134, 300 A.2d at 288 (emphasis deleted). The evidence submitted by George is neither competent nor convincing. He relies exclusively on a computer printout of his driver's record that he obtained from DOT which does not reflect one of the violations upon which his suspension was based. George does not really argue that he was not convicted of the violation in question. He merely asserts that because the violation was not reflected on this computer printout it must necessarily follow that the Commonwealth records are incorrect. This argument is, of course, absurd. As the trial court noted, this uncertified, informal summary of charges cannot possibly rebut the certified record introduced by DOT which also includes a copy of the citation given to George for the violation in question.
We further note that, although there may be many reasons why the December 12, 1981 violation is not listed on the document introduced into evidence by George, we find one explanation offered by DOT especially noteworthy. As DOT correctly points out, George's suspension was based on four violations while the printout lists only two. However, since the word "continued" appears on the bottom of the page, DOT suggests that the two missing violations may have been listed on a second page which was not introduced into evidence.
We are satisfied that this rather simple explanation resolves the controversy; hence, we necessarily reach the conclusion that the present appeal is frivolous. We feel disposed to remand this case pursuant to Pa. R.A.P. 2744, for determination of the delay damages and attorney's fees due to the Department of Transportation. However, since the Department has not requested such action, we will not in this case sua sponte do so. We wish to call the attention of the members of the bar to our concern in this area and alert them to the possibility of future sanctions if, in the future, the courts are misused by litigants.
The order is affirmed.
ORDER
NOW, October 9, 1986, the order of the Court of Common Pleas of Fayette County at No. 213 GD 1984, dated November 15, 1984, is affirmed.