Mateskovich v. Commonwealth, Department of Transportation , 2000 Pa. Commw. LEXIS 359 ( 2000 )

PELLEGRINI,¹ Judge.

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) sustaining the statutory appeal of Jason Mateskovich (Licensee) from a six-month suspension of his operating privilege imposed by the Bureau pursuant to Section 1338.1(a) of the Public School Code of 1949 (Code).²

On February 27, 1998, Licensee was charged with a violation of Section 1333 of the Code, 24 P.S. § 13-1333, relating to compulsory attendance. Licensee was convicted of that offense on May 18, 1998, and the conviction was certified to the Department which suspended Licensee’s operating privilege for a period of 90 days pursuant to Section 1338.1 of the Code.³ On November 13,1998, Licensee was again charged with violating Section 1333 of the Code and a hearing was held before another district justice. The district justice then certified to the Department that Licensee had been convicted on April 21, 1999. By notice dated May 11, 1999, the Department notified Licensee that his operating privilege was being suspended for six months pursuant to Section 13-1338.1 of the Code. Licensee then filed an appeal with the trial court.

At a de novo hearing on Licensee’s statutory appeal, the Department offered into evidence a packet of documents, duly certified under seal, which included certified copies of the district justices’ certifications of Licensee’s May 18, 1998 and April 21, 1999 convictions. Licensee challenged the accuracy of the record, testifying that the hearing on his November 13, 1998 citation was held on February 9,1999, and that at that hearing, the district justice did not find him guilty on the second citation.⁴ Finding that Licensee’s testimony was credible and that it constituted clear and convincing evidence that the second conviction did not take place, the trial court sustained Licensee’s appeal and this appeal followed.⁵

On appeal, the Department contends that the trial court erred in sustaining Licensee’s appeal because Licensee’s testimony that he was not convicted of a second offense for truancy on April 21, 1999, was insufficient to overcome the presumption of the certified record of the conviction from the district justice. Once the Department entered the certified record into evidence, it created a rebuttable presumption that Licensee was convicted of the offense. Department of Transportation, Bureau of Driver Licensing v. Diamond, 151 Pa.Cmwlth. 351, 616 A.2d 1105 (1992), petition of allowance of appeal granted, 535 Pa. 640, 631 A.2d 1011 (1993), appeal dismissed, 539 Pa. 382, 652 A.2d 826 (1995). To overcome this presumption, Licensee was required to show by clear and convincing evidence that the record was erroneous. Id.⁶

In this case, Licensee’s testimony that the district justice did not find him guilty of the November 13, 1998 citation is not clear and convincing evidence that the certified record is erroneous. To meet this burden, Licensee would have to challenge the regularity of the record or provide other direct evidence as to why the court record was incorrect, i.e., testimony of court personnel that the records were incorrect and that the conviction was never entered by the district justice. See Diamond (a certified copy of an acquittal is sufficiently clear and convincing to rebut the presumption of a conviction which arises from the introduction of the Department’s certified record); Fine v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 364 (Pa.Cmwlth.1997) (certified copy of trial court order reversing Licensee’s conviction was sufficiently clear and convincing to rebut presumption); Department of Transportation, Bureau of Driver Licensing v. Emery, 135 Pa.Cmwlth. 274, 580 A.2d 909 (1990) (letter presented by Licensee that contained signature and official seal of district justice and stated that Licensee was found not guilty was clear and convincing evidence sufficient to rebut evidence of conviction); In the Matter of Appeal of Richard Michael George, 101 Pa.Cmwlth. 241, 515 A.2d 1047 (1986) (computer printout of driver’s record that Licensee received from DOT that did not reflect one of the convictions upon which suspension was based did not rebut correctness of certified record).

Accordingly, because the trial court erred in sustaining Licensee’s appeal, the decision of the Court of Common Pleas of Allegheny County is reversed and the six-month suspension of Licensee’s operating privilege is to be reinstated.

ORDER

AND NOW, this 29th day of June, 2000, the order of the Court of Common Pleas of Allegheny County dated September 23, 1999, No. 534 SA 1999, is reversed and the six-month suspension of the operating privilege of Jason M. Mateskovich is to be reinstated.

McCLOSKEY, Senior Judge, dissents and files an opinion.

1 . This opinion was reassigned to the author on May 16, 2000.

2 . Act of March 10, 1949, P.L. 30, added by Act of November 17, 1995, P.L. 1110, as amended, 24 P.S. § 13-1338.1(a).

3 . Section 1338.1 of the Code provides, in pertinent part:

(a) The Department of Transportation shall suspend for 90 days the operating privilege of any child upon receiving a certified record that the child was convicted of violating section 1333. If the department receives a second or subsequent conviction for a child's violation of section 1333, the department shall suspend the child’s operating privilege for six months.

24 P.S. § 13-1338.1(a).

4 . Also before the trial court, Licensee's counsel stated that he represented his client before the district justice at a hearing on February 9, 1999, not April 21, 1999, and that the district justice did not find his client guilty on that date. However, because an attorney’s statements at trial are not evidence, counsel’s statements cannot be considered. See Grover v. Department of Transportation, 734 A.2d 941 (Pa.Cmwlth. 1999).

5 .Our scope of review of a trial court’s decision regarding a driver’s license suspension is limited to determining whether necessary findings are supported by competent evidence of record and whether the trial court committed an error of law or an abuse of discretion. Carter v. Department of Transportation, Bureau of Driver Licensing, 700 A.2d 1069 (Pa.Cmwlth.1997).

6 . "Clear and convincing evidence” has been defined as "evidence that is so clear and direct as to permit the trier of fact to reach a clear conviction, without hesitancy, as to the truth of the facts at issue.”' Sharon Steel Corporation v. Workmen's Compensation Appeal Board (Myers), 670 A.2d 1194, 1199 (Pa.Cmwlth.), petition for allowance of appeal denied, 544 Pa. 679, 678 A.2d 368 (1996).