author: RAU, J.,

text:
    PennDOT v. Poe

      Marc A. Werlinsky, for Commonwealth.

      Kia Poe, pro se.
    November 7, 2007
   RAU, J.,

I. INTRODUCTION

In this suspension of registration case, the Pennsylvania Department of Transportation appeals this court’s decision that defendant Kia Poe had uninterrupted liability coverage, a decision based on documentation which PennDOT itself would have accepted as proof of insurance and buttressed by additional credible testimony. PennDOT belatedly objects to evidence that was admitted at trial, and also challenges the Honorable Judge Alan Silberstein’s decision to permit the defendant-appellee to proceed nunc pro tunc.

This case stems from a suspension action under 75 Pa.C.S. §1786(d)(l), which requires PennDOT to suspend the registration of any vehicle found not to have had liability insurance. In June 2006 PennDOT sent Kia Poe a form letter stating that it believed she had lost her liability coverage as of March 21, 2006. (Trial tr. 3:8-10; pi. exhibit C-l no. 4.) Ms. Poe testified that she attempted to provide PennDOT with proof of uninterrupted insurance, but accidentally sent in the wrong insurance card. (Trial tr. 5:19-23.) When Ms. Poe learned of her mistake she went back to PennDOT and was told that she had the correct paperwork, but that PennDOT would no longer accept it because she had filed an appeal. (Trial tr. 6:7-12,7:1-6.) This court found that the documentation Ms. Poe possessed, in combination with her testimony, constituted clear and convincing evidence that Ms. Poe had uninterrupted insurance as required by section 1786(d)(1).

PennDOT now appeals this court’s decision, arguing that Ms. Poe’s evidence does not satisfy the clear and convincing standard and involved hearsay. It also takes the position that Judge Silberstein should not have permitted Ms. Poe, who filed for appeal two days late, to proceed nunc pro tunc.

II. FACTUAL BACKGROUND

AIG National Insurance Co., Ms. Poe’s automobile insurer, notified PennDOT that coverage on Ms. Poe’s Ford Focus had ended on March 21, 2006. (Trial tr. 3:8-10; def.’s exhibit P-2.) The automated notice PennDOT received contained no explanation for the supposed termination of Ms. Poe’s coverage, (Pl.’s ex-Mbit C-l no. 2,) and PennDOT was aware that Ms. Poe might be covered despite the notice. (Pl.’s exhibit C-l no. 4.) There was credible testimony that Ms. Poe had opted for a different deductible (Trial tr. 9:1-2), which could have resulted in a notice to PennDOT even if coverage was to continue. Recognizing that such things could occur, PennDOT sent Ms. Poe a form letter instructing her to submit proof that she had insurance after March 21, and explaining what would constitute adequate evidence. (Trial tr. 4:3, pi. exhibit C-l no. 4.) Among the documents which would serve as sufficient proof was an “[ijnsurance identification card.” (Pl.’s exhibit C-l no. 4.) Ms. Poe was in possession of two such cards, one valid from September 21, 2005 to March 21, 2006 and another from March 21, 2006 to September 21, 2006. (Def.’s exhibit P-1.)

Ms. Poe accidentally sent PennDOT the former card, which only stated that she was insured up to March 21, 2006, rather than the latter card, which reflected her continuing coverage from that date forward. (Trial tr. 4:9-11.) She testified that she realized her mistake when she received another form letter from PennDOT stating that her registration was being suspended. (Trial tr. 4:8-10, pi’s exhibit C-l no. 1.) Ms. Poe appealed 32 days after the suspension notice had been sent, two days after the 30-day time limit. (Pl.’s exhibit C-l no. 1.)

There was further credible testimony from Ms. Poe that after filing her appeal she contacted PennDOT directly in an effort to present both the correct insurance card and a letter from her insurance company. (Trial tr. 6:7-9.) The insurance card indicated that she had new insurance starting the very date that PennDOT believed her coverage was to end, and AIG had told her that the letter “should be sufficient because they checked off the coverage.” (Trial tr. 9:4-6.) PennDOT employees informed her that her documentation was “acceptable.” (Trial tr. 7:1-6.) Nevertheless, they re&sed it on the ground that she had already appealed. (Trial tr. 6:11-12.)

III. PROCEDURAL HISTORY

Ms. Poe filed her appeal on August 23, 2006, and attended a nunc pro tunc hearing on September 15, 2006. The now-retired Judge Silberstein granted her request to proceed nunc pro tunc, and with that her late appeal was forgiven. After trial on August 3, 2007, this court found that there was clear and convincing evidence that Ms. Poe had insurance throughout the relevant period and sustained her appeal of the agency’s decision. On August 24,2007 PennDOT filed an appeal and the statement of errors complained of required under Pa.R.A.P. 1925(b).

IV. LEGAL DISCUSSION

In a suspension of registration case under 75 Pa.C.S. § 1786, “[Penn]DOT bears the initial burden of showing that a lapse in the required financial responsibility has occurred.” Fell v. PennDOT, 925 A.2d 232, 237 (Pa. Commw. 2007). It is undisputed that PennDOT proved its prima facie case, and thereby established a rebuttable presumption that Ms. Poe’s vehicle was without insurance. 75 Pa.C.S. § 1786(d)(3)(ii); Fell, 925 A.2d at 237. Thus, the burden shifted to Ms. Poe to “prove that financial responsibility was continuously maintained on the vehicle ....” Fell, 925 A.2d at 237. To do so, she had to offer “clear and convincing evidence that the vehicle was insured at all relevant times.” Section 1786(d)(3)(ii). This court found that Ms. Poe did so.

PennDOT raises, in effect, three issues for appeal. First, it challenges the sufficiency of the evidence supporting this court’s finding that there was clear and convincing evidence of uninterrupted liability coverage. Second, it argues that the insurance card indicating that Ms. Poe had insurance for her automobile from March 21,2006 to September 21,2006 was hearsay and as such was inadmissible. Third, PennDOT appeals the now-retired Judge Silberstein’s decision to allow Ms. Poe to proceed nunc pro tunc. (Pl.’s s. of errors complained of on appeal, ¶¶1, 2.) It is not this judge’s role to address what reasons Judge Silberstein may have had in making his decision to grant Ms. Poe’s filing of the appeal two days late. Nonetheless, this opinion will address whether there is sufficient evidence in the record that would justify a nunc pro tunc filing based on a breakdown in the system and blameless mischance. Id.

A. This Court Found Clear and Convincing Evidence That Ms. Poe Had Uninterrupted Liability Coverage

This court did not err in finding that there was clear and convincing proof that Ms. Poe had uninterrupted liability coverage because it was entitled to rely on the credible evidence presented at trial, including — but not limited to — evidence which PennDOT itself conceded was “acceptable” proof of insurance. (Trial tr. 7:1-6.) This court’s review of PennDOT’s conclusions regarding the status of Ms. Poe’s insurance is de novo. See e.g., 75 Pa.C.S. §1786(d)(3) (“An owner whose vehicle registration has been suspended... shall have the same right of appeal under section 1377 (relating to judicial review) as provided for in cases of the suspension of vehicle registration for other purposes.”); 75 Pa.C.S. §1377(a) (giving the court hearing the appeal the power to, among other things, hear evidence); Gary Barbera Dodge Inc. v. PennDOT, 549 Pa. 100, 107-108, 700 A.2d 922, 926 (1997) (“Barbera’s appeal was taken pursuant to 75 Pa.C.S. §1377(a)... As with driver’s license suspension and revocation appeals under section 1550, the common pleas court’s consideration of the matter is de novo.” (emphasis omitted)). As a court conducting a de novo review, this court was entitled to arrive at its own conclusions, consistent with the law, as to what constituted clear and convincing evidence. The “Commonwealth Court’s review of a trial court order sustaining a statutory appeal from a suspension of registration is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether the court committed a reversible error of law or abused its discretion.” Fagan v. PennDOT, 875 A.2d 1195, 1197 n.1 (Pa. Commw. 2005).

The Commonwealth Court has provided guidance as to what constitutes clear and convincing evidence of uninterrupted liability insurance coverage. First and foremost, it has stated the general rule that “[i]n establishing whether the coverage was continuous ... the licensee must present clear and convincing evidence which is defined 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, 925 A.2d at 239 (internal quotation and alteration marks omitted). Furthermore, the Commonwealth Court has noted some forms of evidence which standing alone are inadequate as a matter of law to satisfy the clear and convincing standard. These include uncorroborated testimony that a motorist’s vehicle had uninterrupted coverage, Fagan, 875 A.2d at 1199, and insurance cards by themselves, Capone v. PennDOT, 875 A.2d 1228, 1231 (Pa. Commw. 2005).

Far from relying solely on uncorroborated testimony or insurance cards alone, Ms. Poe offered absolutely credible testimony backed by relevant documentary evidence showing that she had uninterrupted insurance coverage. Ms. Poe credibly testified that she had the requisite proof of insurance all along. (Trial tr. 5:19-21.) Fler testimony was supported by her further statements that she had contacted PennDOT directly in an attempt to resolve its concerns, even identifying the persons to whom she had spoken. (Trial tr. 7:1-2.) Her efforts to resolve her dispute with PennDOT outside of court bolstered her testimony that she had the required insurance. In addition, Ms. Poe was the only person involved in the case who had an explanation for why AIG had referred her to PennDOT: she testified that she had “changed the deductible” on her policy, and the change in the terms of her policy may have generated a notification. See generally, 40 Pa.C.S. §991.2006(6) (requiring an insurer canceling coverage to explain that it will notify PennDOT of a loss of coverage, but that the motorist must show evidence of new coverage him or herself); 75 Pa.C.S. § 1786(e) (requiring an insurer canceling coverage to report the cancellation to PennDOT); 67 Pa. Code §221.3(a) (imposing the same requirement); (Trial tr. 9:1-2.).

Ms. Poe’s testimony was corroborated by the insurance cards which PennDOT itself, in its form letter to her, stated it would consider adequate proof of coverage. (Pl.’s exhibit C-l no. 4.) Indeed, the insurance cards here were ideal for PennDOT’s purposes. The alleged date of end of coverage was not in the middle of a term covered by an insurance card, when an insured might have gotten a card at the beginning of the term of coverage and then ceased payment. See generally, Jennings v. PennDOT, 715 A.2d 552, 555 n.6 (Pa. Commw. 1998) (explaining why insurance cards, without more, are not proof of insurance). Rather, the cards reflect a routine renewal of the policy in traditional six-month intervals, with the termination notice to PennDOT explained by the rollover in coverage periods combined with an alteration to the policy. Furthermore, the cards stood unrebutted, with PennDOT offering no evidence that they were incorrect beyond the routine electronic notification that was a part of its prima facie case.

The strength of the evidence Ms. Poe offered distinguishes this case from similar cases in which the evidence was legally inadequate to meet the clear and convincing standard. In Fagan v. PennDOT, the Commonwealth Court was asked to decide a case in which Joan Fagan testified that her insurance company had agreed to overlook a late payment, but could not say who she had spoken to at her insurer and had no documentation except a cancellation notice and a refund check from the insurer. 875 A.2d at 1197, 1199. By contrast, Ms. Poe is not alleged to have been delinquent in her payments and testified credibly as to whom she had spoken with at PennDOT while trying to comply with statutory requirements. (Trial tr. 7:1-6.) In addition, the only letter in the record from her insurance company reflects no payment problems whatsoever. (Def.’s exhibit P-2.) The factual differences between this matter and Fagan distance the two and warrant a different view of the evidence here.

Similarly, Capone v. PennDOT does not prevent Ms. Poe’s evidence from being considered clear and convincing. Capone involved the registration for a Pontiac Sunbird suspended under section 1786. The owners appealed, but conceded that the insurance premiums for the Sunbird had not been paid because the bank account from which the premiums were automatically withdrawn did not have sufficient funds. 875 A.2d at 1230. Hence, the Capones’ efforts to prove that they had liability insurance were undermined by their own admission that the insurance company had cause to terminate their coverage. By contrast, there is no evidence whatsoever indicating that Ms. Poe has ever missed a payment. Rather, the unrebutted testimonial evidence is that the only significant recent change in her insurance status was her choice of a different deductible. (Trial tr. 9:1 -2.) The differing contexts in which the two cases were decided distinguish Capone from this case.

Finally, this matter is also distinguishable from Fell v. PennDOT In Fell, a motorist’s check to his insurance company was temporarily dishonored in April of 2005. 925 A.2d at 234. He resubmitted the check, and payment went through in early May. Id. at 235. He also made a claim to his insurer that month. Id. at 235. However, his insurer had already reported to PennDOT that his coverage was to end on May 14, 2005. Id. at 234, 235 n.5. At trial, Mr. Fell introduced evidence of the May premium payment, the May claim, and a July payment to his insurer. He also provided an insurance card for the relevant period. The Commonwealth Court found that the documentary evidence provided by Mr. Fell “preceded the cancellation date by several weeks.” 925 A.2d at 239 n. 12. Hence, there was inadequate evidence showing that Mr. Fell was still insured in mid-May, after he had submitted his claim. Furthermore, Mr. Fell did not dispute that he made a late payment. Indeed, he admitted that he had received a letter from his insurer instructing him to pay, and he had never proved that the checks he sent were adequate and complete payments such as would reinstate his policy. Id. at 240 n.13. Moreover, Mr. Fell’s own documentation reflected inexplicably small payments to AIG, which AIG may or may not have accepted. Id. There was therefore a gap in Mr. Fell’s evidence, filled only by an insurance card from a policy whose premiums might not have been paid, for the veiy period in which PennDOT alleged he had been uninsured. Id. at 240.

Whereas Mr. Fell admitted that he fell behind in his payments and thereby triggered the notice to PennDOT, Ms. Poe gave the unrebutted and absolutely credible explanation that her policy was altered — but never interrupted — by a change in its deductible, which resulted in a notice to PennDOT without negligence or failure on her part. (Trial tr. 9:1-2.) As a result, Ms. Poe’s evidence is not weakened by past mistakes as Mr. Fell’s was. Fler case is therefore distinguishable from Fell, and her evidence should be seen in the better light it deserves.

Hence, the critical point of separation between Fagan, Fell, and Capone on the one hand and Ms. Poe’s case on the other is the sheer weight of the evidence Ms. Poe had on her side. In none of those cases did the petitioner have an unrebutted rendition of events that supported continuous insurance coverage while fully explaining the automated notice of termination received by PennDOT. Instead, those petitioners were arguing in a context of payment problems which made failure to keep up with premiums the most likely explanation for why their coverage had been terminated, and there was convincing evidence against them as well as in their favor. See Fell, 925 A.2d at 234 (discussing the record regarding a bad check); Capone, 875 A.2d at 1230 (recording Mr. Capone’s admission that premiums had gone unpaid); Fagan, 875 A.2d at 1197 (pointing out that Ms. Fagan missed the initial premium payment). Ms. Poe stands in an entirely different position than Mr. Fell, Ms. Fagan or the Capones did.

Yet, in distinguishing the specifics of this case from those of other cases it is important not to lose sight of the overall impact of Ms. Poe’s evidence. Ms. Poe was able to provide a “clear, direct, weighty, and convincing” explanation for what had happened and why it had happened that way. Fell, 925 A.2d at 239. The insurance cards, the letter from AIG, and Ms. Poe’s credible testimony — most notably with regard to the reason why PennDOT received the original notice of termination of coverage — faced PennDOT’s allegations squarely and provided a straightforward description of what had actually transpired. PennDOT rested solely on the presumption that the automated notice to PennDOT created and provided no testimony rebutting that of Ms. Poe’s explanation for the termination notice. At the conclusion of the trial, this court found Ms. Poe’s evidence of uninterrupted insurance coverage clear and convincing and that it compellingly defeated the initial presumption.

The Commonwealth Court commented in Fell that “[t]his case [Fell] is not one involving potential deficiencies or peculiarities in the manner in which automobile insurance suspensions for non-payment are addressed.” Id. at 240 n. 15. Ms. Poe’s case does seem to be one relating to “deficiencies or peculiarities” — specifically, a peculiarity whereby a change in Ms. Poe’s deductible resulted in a notification of termination of coverage when in fact her insurance continued uninterrupted. She established that she was insured for the relevant period by unrebutted, entirely credible testimony which was supported by relevant documents of the very type that PennDOT itself requests from drivers who may not be insured. Individual aspects of Ms. Poe’s evidence would have been legally insufficient taken separately, or in a context in which there was additional evidence of a failure to remain current on insurance obligations. In the matter at hand, however, Ms. Poe’s testimony and documents stood unchallenged. Based on the totality of the evidence presented at trial, there was substantial evidence supporting this court’s determination that there was clear and convincing evidence of uninterrupted insurance coverage.

B. PennDOT Waived Any Objection to the Admission of the Insurance Cards by Failing To Object to Their Admission in a Timely Manner at Trial

Since PennDOT did not object to the admission of Ms. Poe’s insurance cards when they were offered and admitted into evidence during the trial, PennDOT cannot on appeal take issue with their introduction into evidence. The Supreme Court of Pennsylvania has stated that “[a] rule of evidence is waived if it is not invoked when the evidence is offered, and the rule, having been waived, cannot subsequently be invoked on appeal.” Commonwealth v. Kuterbach, 458 Pa. 318, 319, 326 A.2d 283, 283 (1974). See also, Takes v. Metropolitan Edison Company, 548 Pa. 92, 98, 695 A.2d 397, 400 (1997) (“It is axiomatic that in order to preserve a trial objection for review, trial counsel is required to make a timely, specific objection during trial.”). Consistently with Kuterbach, the Commonwealth Court has found an objection not to be timely where a party “failed to object to . . . testimony when offered.” In re The Condemnation by the County of Allegheny of a Certain Parcel of Land in Robinson Township, Allegheny County, 70 Pa. Commw. 642, 645, 453 A.2d 744, 745 (1982). “[A] clear showing of an abuse of discretion” is required to disturb this court’s decision to admit the insurance cards. In re PennDelco School District, 903 A.2d 600, 607 (Pa. Commw. 2006).

In this matter, PennDOT raised no objection to Ms. Poe’s insurance cards at the time of their admission into evidence. (Trial tr. 6:3-6.) The closest that PennDOT came to objecting to the insurance cards was after they were admitted and during oral argument when its attorney stated that “I cannot examine the financial responsibility card and I would say that. . . this is a hearsay document.” (Trial tr. 10:5-7.) This statement was made after Ms. Poe had concluded her case. By that time, it was too latq. Kuterbach, 458 Pa. at 319, 326 A.2d at 283; In re Condemnation, 70 Pa. Commw. at 645, 453 A.2d at 745.

A party cannot wait for an opportune moment and then weave its objections into a broader dialogue with the court. If PennDOT had an objection to the admission of Ms. Poe’s insurance cards as evidence, it was obliged by the Pennsylvania Supreme Court’s rules to raise it when the evidence was offered. Kuterbach, 458 Pa. at 319, 326 A.2d at 283. Even at that later stage in the hearing when PennDOT’s counsel referred to the document as hearsay, he did not object to the earlier admission of the insurance cards nor ask the court to rescind its earlier admission of the documents.

Moreover, PennDOT should be bound as Ms. Poe’s party-opponent by its statements in the letter sent to Ms. Poe that “acceptable proof of insurance” includes an “insurance identification card.” (Pl.’s exhibit C-1 no. 4.) See generally, Pa.R.E. 803(25)(D) (stating the hearsay exception for admissions by a party-opponent). PennDOT admitted that insurance cards were acceptable evidence of insurance coverage in form letters, during agents’ conversations with Ms. Poe and by failing to object to their admission at trial. It was not until PennDOT appealed this court’s decision that PennDOT first suggested that the court’s admission of the insurance cards constituted trial error. By failing to object earlier, PennDOT waived this evidentiary issue for appeal. Id.

C. Ms. Poe’s Filing of Her Appeal Two Days Late Should Be Excused Because Delays in the Notification Process Confounded Her Efforts To Comply With the Law

Ms. Poe’s petition to proceed nunc pro tunc was granted by the Honorable Judge Alan Silberstein, now retired. Although this judge did not decide this issue and has no insight as to Judge Silbertstein’s reasoning, based on all of the evidence now available Ms. Poe had a good excuse for filing two days late under the law. A trial court’s decision to grant a nunc pro tunc petition is reviewed for abuse of discretion. Union Electric Corporation v. Board of Property Assessment, 560 Pa. 481, 485, 746 A.2d 581, 583 (2000)

The Pennsylvania Supreme Court has explained that nunc pro tunc petitions can be granted where there is “fraud or some breakdown in the court’s operation through a default of its officers.” Bass v. Commonwealth, 485 Pa. 256, 259, 401 A.2d 1133, 1135 (1979), quoting Nixon v. Nixon, 329 Pa. 256, 260, 198 A. 154, 157(1938). In applying this principle to administrative agencies, that court has stated that “there is a breakdown in the court’s operations where an administrative board or body is negligent, acts improperly or unintentionally misleads a party. Thus, where an administrative body acts negligently, improperly or in a misleading way, an appeal nunc pro tunc may be warranted.” Union Electric Corporation, 560 Pa. at 487, 746 A.2d at 584.

The record in this case is replete with indications that PennDOT unintentionally misled Ms. Poe. Ms. Poe was instructed, in a two-page form letter involving three different charts, to submit an “[insurance identification card” within three weeks. (Pl.’s exhibit C-l no. 4.) She did so. Over a month after the mailing of the first letter, she was told that the card she had offered was not useful to PennDOT. This new letter gave her 30 days from July 20,2006, the date when the letter was mailed, to appeal. (Pl.’s exhibit C-l no. l.)Ms. Poe appealed 32 days later, which was almost certainly within 30 days of when the letter was actually received. She then returned to PennDOT in an effort to set matters right, only to be told that specifically because she had appealed according to the instructions in PennDOT’s letter, it was no longer possible for her to resolve the issue administratively through direct communication. (Trial tr. 6:11-12.) The letter bore no indication that Ms. Poe was being put to the choice of working out the dispute amicably or insisting on her rights. (Pl.’s exhibit C-l no. 1.)

PennDOT’s letters are clear enough to a reader trained in the law, but they do not include information that would keep laypeople like Ms. Poe from stumbling into error. Furthermore, at every stage of the process, Ms. Poe attempted to follow directions, and then was told only too late that her efforts had come to naught. When she received PennDOT’s first letter Ms. Poe sent an insurance card. Ms. Poe’s first warning that she had sent the wrong insurance card was her suspension notice. In response to the suspension, Ms. Poe appealed using the address on the notice, and then sought to resolve the misunderstanding. At that point she learned that, although she had been following instructions given to her by PennDOT, she had closed the door to an amicable resolution by filing an appeal with the court. The overall effect was to mislead an unrepresented party into thinking she had successfully complied with the law.

The record evokes a number of instances when PennDOT unintentionally misled Ms. Poe with its letters. Each time she received a letter from PennDOT, Ms. Poe took an action in response which was essentially reasonable but somehow problematic. This pattern of unavailing but repeated efforts to meet PennDOT’s requirements suggests that PennDOT’s actions unintentionally misled Ms. Poe and resulted in her filing two days late. Union Electric Corporation, 560 Pa. at 485, 746 A.2d at 584 (appeal nunc pro tunc may be permissible if administrative agency’s actions unintentionally mislead a litigant).

From the time she first received notice, Ms. Poe was actively attempting to demonstrate to PennDOT that her insurance had not lapsed, but simply been modified. Her filing of the appeal ultimately foreclosed her ability to resolve the matter administratively notwithstanding PennDOT’s agents’ admission that she finally had presented acceptable proof. If Ms. Poe is now precluded from having her case resolved by the courts because the appeal was two days late, procedural obstacles and confusing instructions will have unfairly penalized an innocent litigant who had continuous insurance and sincerely attempted to resolve the mistake in a timely manner. Ironically, if Ms. Poe had not appealed the matter to the court, the entire matter would have been resolved in her favor months ago with the insurance card evidence that PennDOT now protests. Having been stripped of her administrative remedy by her appeal to the courts, Ms. Poe should not again be refused a fair resolution of her case. Complex procedural requirements should not ultimately frustrate a just outcome for Ms. Poe.

V. CONCLUSION

KiaPoe submitted credible, unrebutted evidence showing that her automobile liability insurance coverage had been uninterrupted, and that AIG’s notice to PennDOT of termination of coverage was a spurious result of alterations to her policy. Hence, there was substantial evidence supporting this court’s finding that there was clear and convincing evidence that Ms. Poe complied with 75 Pa.C.S. § 1786(a), requiring that she carry liability insurance. PennDOT’s effort to object on appeal to a part of Ms. Poe’s evidence, an insurance card establishing that she had coverage continuing from March 21, 2006, was waived by its failure to object to the admission of the cards at trial. This court’s decision in favor of Ms. Poe was therefore both factually supported and legally correct.

      . Plaintiff’s exhibit C-l no. 2, the electronic notification, contains the following entry: “Term Reason: 5 Not Ident.”

      . This court’s docket gives a date of September 15 for the nunc pro tunc hearing, while the transcript is dated December 15. Given the dates of later events in the case, the September 15 date seems the more likely of the two.

      . At trial, PennDOT seemed to take the position that the question was whether or not the evidence was clear and convincing to PennDOT, not to this court. (Trial tr. 3:1-2, 4:23-24, 5:1-2, 17, 7:20-24, 8:1-7, 12-15.) This position is entirely inconsistent with the basic structure of American justice. In an adversarial system like that employed in American courts, the defendant never bears the burden of convincing his or her accuser of his or her position. Rather, the court or a jury finds the facts which determine who is in the right. See McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991) (defining the adversarial system, and distinguishing the adversarial system from the inquisitorial system used in other countries and during criminal investigations). PennDOT’s position would reduce the role of this court to that of a mediator, maintaining civility between the parties and encouraging them to resolve the matter between themselves. That is entirely contrary to the task the law instructs this court to perform in appeals from PennDOT’s suspension decisions. See 75 Pa.C.S. § 1337(a) (empowering courts to conduct de novo appeals from PennDOT suspension of registration decisions).

      . The court would take this opportunity to commend 75 Pa.C.S. §1786(e) and 67 Pa. Code §221.3(a) to the attention of the legislature. These statutes have created serious difficulties by requiring insurance companies to notify PennDOT only of the end of coverage, and not of the beginning of new coverage. Consequently, if a citizen simply changes insurance policies or carriers but has uninterrupted insurance coverage, a notice of termination is sent to PennDOT but no corresponding notice of new coverage is sent. Upon receipt of this termination notice and with no information of other insurance coverage, PennDOT sends out a notice to the licensee requiring prompt proof of insurance coverage. This has resulted in situations wherein hundreds of law-abiding citizens making normal changes to their insurance policies have their registration revoked because they were unable to navigate through the process of confirming their liability insurance with PennDOT. If insurance companies were required to notify PennDOT of the beginning of new coverage as well as the end of an old policy, these citizens would never be at risk of unwarranted punishment.

      . One further notes that Ms. Fagan’s case was built on hearsay statements from her insurer. By contrast, Ms. Poe relies in part on statements made by PennDOT, her party-opponent in this case. See generally, Pa.R.E. 803(25)(D) (creating a hearsay exception for admissions of a party-opponent); Harris v. Toys “R” Us-Penn Inc., 880 A.2d 1270, 1275 (Pa. Super. 2005) (stating the elements of Pa.R.E. 803(25) (D)).

      . Defendant’s exhibit P-2, the letter from AIG, relates to a policy effective from December 23,2006 to December 23,2007. However, a box is checked for “no lapse in coverage” and for “financial responsisibility filing” the “no” box is checked. Given AIG’s statement to Ms. Poe that the letter was “sufficient,” it seems likely that the notations on the letter indicate that there has never been a lapse of coverage. (Trial tr. 9:4-6.)

      . This court is of course aware that, under 75 Pa.C.S. § 1786(d)(5), complaints regarding the actions of insurance companies are not before this court. This court does not intend to pass judgment on Ms. Poe’s insurer, which must act in conformity with the regulatory scheme in place. The question of what caused the insurer to generate the notice of termination is commented upon only insofar as it has relevance to the congruence of this case with those previously heard by the Commonwealth Court.

      . Needless to say, PennDOT must carry through its responsibilities according to the law, and is obliged to pursue cases according to the dictates of 75 Pa.C.S. §1786. Nevertheless, the court notes that there is something Kafkaesque about the idea that the more involvement Ms. Poe has with a legal system designed to protect her rights, the harder it becomes for her to show that she had insurance. Had Ms. Poe declined to appeal her suspension and simply gone to PennDOT with the card showing insurance beginning March 21, it is at least possible that her suspension would have been lifted then and there. Yet, because she exercised her legal rights according to PennDOT’s instructions, (pl.’s exhibit C-l no. 1,) PennDOT now argues that the insurance card, her previous card, a letter from AIG, and credible testimony combined are insufficient proof. If PennDOT’s position is correct, then the petitioner takes one step forward and two steps back by filing an appeal, and ends up unfairly penalized for pursuing legal remedies.

      . PennDOT did raise several other hearsay objections in proximity to the admission of the insurance cards, notably to statements made by PennDOT employees. (Trial tr. 6:11-14,18-23.) None of those were to the cards themselves, however, and the court’s rulings on those objections have not been appealed.

      . By the time PennDOT made this statement there were two insurance cards and a letter from AIG admitted into evidence. PennDOT did not create a clear record as to which particular piece of evidence was being characterized as hearsay. See generally, 74 Am.Jur.2d Trial §424 (“The matter objected to must be distinctly and sharply brought to the court’s attention.”).

      . The record does not specify where the letter originated, but the letterhead reflects a Harrisburg return address, and Ms. Poe lives in Philadelphia. (Pl.’s exhibit C-l no. 1.)


source: Caselaw Access Project

author: GRINE, P.J.,

license: Public Domain

text:
    Commonwealth v. Fusco

      Carolyn Fenton, for Commonwealth.

      Stephen Fleming, for defendant.
    January 29, 2008
   GRINE, P.J.,

Presently before the court is defendant Paul Fusco’s notice of appeal of this court’s verdict of September 25, 2007. Defendant was found guilty of two counts of driving under the influence (75 Pa.C.S. §3802 §§A1 and 75 Pa.C.S. §3802 §§C) and four summary traffic offenses (75 Pa.C.S. §3309 §§1,75 Pa.C.S. §3301 §§A, 75 Pa.C.S. §3361, and 75 Pa.C.S. §3714 §§A).

Anon-jury trial was held on September 25,2007. There were three witnesses who testified at trial: Trooper Jeffrey Ebeck, John Fusco and Paul Fusco.

In his statement of matters complained of on appeal, defendant claims that there was insufficient evidence at trial to convict him. Defendant claims that he consumed alcohol after the crash and before Trooper Ebeck arrived. Additionally, defendant claims that his blood sample was not tested within two hours after he drove.

As to the claim that defendant consumed alcohol after the accident, there was no evidence at trial that defendant did so. Trooper Ebeck asked defendant if he had consumed alcohol following his accident, and defendant told Trooper Ebeck that he did not consume any alcohol. Additionally, when asked at the time of trial, defendant claimed that he did not remember drinking any alcohol after the accident. He testified that he remembered disposing of the alcohol by throwing it over a fence. Therefore there is no evidence in the record to support defendant’s claim in his statement of matters complained of on appeal that he consumed alcohol after the accident.

As to defendant’s claim that the blood test results were invalid because they were tested more than two hours after the car was driven, this court disagrees. The blood was drawn within two hours of when the car was driven by defendant. Defendant claims that, according to phone records, the accident occurred between 12:44 a.m. and 12:56 a.m. Defendant’s blood was drawn at 2:55 a.m. Defendant claims that the error arises when the blood was not tested until 3:24 a.m. However, since the blood was drawn within a two-hour period of defendant’s accident, when the blood was tested is irrelevant.

Additionally, even if the blood draw and test were outside the two-hour time period, 75 Pa.C.S. §3802(g) (1) allows the Commonwealth to show that there was good cause for the blood test to be completed outside of the two-hour window. Here, Trooper Ebeck did not receive the call until 1:30 a.m. and did not arrive until 1:43 a.m. Defendant was unable to establish at what time he called 911. Trooper Ebeck checked out the scene, gave defendant a field sobriety test, which he failed, and then took him to the hospital for a blood draw. Since he was limited by the time at which he received the call, he did his best to have the blood draw completed within the two-hour period. In fact, he did complete the blood draw within the two-hour time period, and was limited by hospital resources in also getting the blood tests completed within the two-hour time period.

For the foregoing reasons, the court believes its verdict of September 25, 2007 was properly entered.


author: BANACH, J.,

text:
    Commonwealth v. Tillet

      Robert Rosner, for Commonwealth.

      John Karoly, for defendant.
    November 29, 2007
   BANACH, J.,

On January 25, 2006, the Commonwealth charged the petitioner, Joel Tillet, and his co-defendant, Rondell McNeil, with a variety of offenses related to an alleged fraudulent insurance claim. After a preliminary hearing held on April 10, 2006, Magisterial District Judge Edward Hartman bound over charges of insurance fraud and criminal conspiracy to commit false reports to law enforcement. On October 18, 2006, after a series of continuances due in part to the death of Mr. Tibet’s original attorney, the court held a hearing on the defendants’ petition for writ of habeas corpus. After a hearing on the matter, submission of briefs, and legal analysis, this court denied the defendants’ petition. Anon-jury trial was held from January 9 to January 11, 2007. Defendant McNeil was acquitted of all charges and the petitioner in this appeal, Mr. Tibet, was found guilty of insurance fraud. On March 19,2007, the petitioner was sentenced to 12 months of probation supervision and to make restitution to Ohio Casualty Insurance Company in the amount of $25, 690.97 and the District Attorney’s Offices of Lehigh County in the amount of $150 for particular investigative costs. The petitioner filed his notice of appeal with the Superior Court on April 4, 2007 and submitted appellant’s Pa.R.A.P. 1925(b) statement on May 25, 2007.

SUMMARY OF FACTS

On March 19,2003, petitioner Joel Tibet reported his 1998 Lincoln Navigator had been stolen from outside of an apartment located at 1346 North Fourteenth Street, Whitehall, Lehigh County, Pennsylvania. Officer Michael Arnold of the Whitehall Township Police Department responded to the scene and took the report. The petitioner indicated that he had driven his vehicle to 1346 Fourteenth Street and parked the car in the parking lot. He went inside of the apartment of a friend, and when he returned to the vehicle’s location, the vehicle was no longer there. He stated that he locked the vehicle and possessed keys to the vehicle. The petitioner did not mention that there were any other drivers of the vehicle. On March 19,2003, the petitioner also filed an insurance claim with the Ohio Casualty Insurance Company. The vehicle was not recovered. Payment for the insurance claim was made in the amount of $17,680.97, with an additional $8,000 paid by the insurance company to cover the loss of vehicle enhancements and accessories in the car when it was stolen. On April 11, 2003, the petitioner filed an affidavit of vehicle theft with the insurance company, which required that he explain some details regarding the vehicle and the circumstances surrounding its disappearance. Of particular importance in this case, the petitioner indicated that he parked the vehicle at the home of his friend and co-defendant, Rondell McNeil, at approximately 12:30 a.m. The petitioner also wrote that he locked the car and enabled its alarm system. He further indicated that he was the last person to see the vehicle before it was noted missing at approximately 8 a.m. that morning. The petitioner endorsed the document, acknowledging that the information provided was true and accurate.

Subsequently, on February 25,2004, Steven Williams, an attorney with the insurance company, interviewed the petitioner under oath about the circumstances of the vehicle theft. The petitioner stated to Attorney Williams that he was the primary driver of the vehicle, and that on the night of the theft he stayed at Mr. McNeil’s house.

On December 14 or 15,2005, and on January 25,2006, the petitioner was interviewed by Detective Richard London of the Lehigh County Insurance Fraud Task Force. In these interviews, the petitioner admitted to lying to the police and the insurance company in earlier discussions about the theft. He also indicated that he was not present at the location of the vehicle theft on the night of the incident, that he did not stay at Mr. McNeil’s residence, and that he was with his girlfriend when the vehicle was stolen from Mr. McNeil’s residence. The petitioner also noted that Mr. McNeil was the primary driver of the vehicle. The petitioner admitted that he and Mr. McNeil fabricated a stoiy about the details of the theft, and that they agreed upon a story prior to contacting either the police or the insurance company. The defendants invented the story because Mr. McNeil was concerned that his prior criminal record would make him a suspect in the case.

DISCUSSION AND CONCLUSION OF LAW

The petitioner alleges five errors by this court in his appeal. First, the petitioner alleges that the court erred when it did not dismiss the criminal charges due to a violation of the corpus delicti rule. Second, the petitioner alleges that there was insufficient evidence to convict the petitioner of insurance fraud. Third, the petitioner argues that the misrepresentation at the crux of the criminal charges was de minimis at best and did not rise to a level of material misrepresentation to satisfy the criminal statute requirements. Fourth, the petitioner alleges that the court erred in allowing the Commonwealth to amend the information at the time of trial. Fifth, the petitioner alleges that the restitution imposed was improper and without legal or factual foundation. See Pa.R.A.P. 1925(b) stmt., pp. 1-2.

The Corpus Delicti Rule

The petitioner argues that the court “erred by not dismissing the criminal surcharges pretrial considering the only evidence available to the Commonwealth to meet their burden was an alleged statement made by the [petitioner].” Id. at p. 1, ¶1.

The corpus delecti rule begins with the proposition that a criminal conviction may not be based upon the extrajudicial confession of the accused unless it is corroborated by independent evidence establishing the corpus delecti. See Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). “The [corpus delecti] rule is intended to prevent a defendant from being convicted of a crime solely on the basis of his own statements, without independent proof that a crime has in fact been committed.” Commonwealth v. Shoff, 273 Pa. Super. 377, 379, 417 A.2d 698, 699 (1980) (citations omitted); see also, Commonwealth v. Fried, 382 Pa. Super. 156, 160, 555 A.2d 119, 120 (1989) (suggesting that the purpose of the rule is to prevent the use of hasty and unguarded confessions to convict an individual when no crime has been committed). The corpus delecti, literally “the body of the crime,” is defined as a wrong committed by criminal means, and consists of the occurrence of a loss or injury, and some person’s criminal conduct as the source of that loss or injury. Ware at 365, 329 A.2d at 274. The criminal responsibility of a particular, identifiable person, e.g., the accused, is not a requirement of the rule. See Commonwealth v. Elder, 305 Pa. Super. 49, 51, 451 A.2d 236, 237 (1982).

Under Pennsylvania law, the application of the corpus delecti rule occurs in two distinct phases. The first phase involves the court’s application of a rule of evidence governing the threshold question of the admissibility of the confession. In this first phase of the rule’s application, the court must determine whether the Commonwealth has proven the corpus delecti of the crimes charged by a mere preponderance of the evidence. If the court is satisfied that, on the evidence presented, it is more likely than not that a wrong has occurred through criminal agency, then the confession and/or admissions of the defendant are admissible. See Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978). The second phase of the rule’s application occurs after a confession has already been admitted into evidence. After the court has made its initial determination that the Commonwealth has proved the corpus delecti by a preponderance of the evidence and has ruled the confession to be admissible, the corpus delecti rule additionally requires that the Commonwealth prove to the jury’s satisfaction beyond a reasonable doubt the corpus delecti of the crimes charged. Commonwealth v. Lettrich, 346 Pa. 497, 502, 31 A.2d 155, 157 (1943); Commonwealth v. May, 451 Pa. 31, 301 A.2d 368 (1973); Tallon at 475-76, 387 A.2d at 81; Fried at 160, 555 A.2dat 121.

Notably, the order of proof is within the trial court’s discretion, such that the Commonwealth may be permitted to introduce the confession first, so long as the corpus is eventually established. See Commonwealth v. Small-wood, 497 Pa. 476, 442 A.2d 222 (1982). Additionally, a statement need not constitute an admission to each element of the crime because the criminal responsibility of the accused for the loss or injury is not a component of the rule. Id. See also, Commonwealth v. Buck, 426 Pa. Super. 26, 626 A.2d 176 (1993). Similarly, it is not fatal to the Commonwealth’s case that the testimony offered to establish a corpus delecti is circumstantial and not direct. See Commonwealth v. Leslie, 424 Pa. 331, 337, 227 A.2d 900, 902(1967).

In the present case, the petitioner was convicted of insurance fraud. At trial, the Commonwealth established that the petitioner gave several statements regarding the circumstances surrounding the disappearance of his vehicle. Officer Arnold testified that when he arrived at the scene, the petitioner provided him information that (a) he was the owner of the vehicle; (b) the petitioner drove it to the spot from which it was stolen; (c) the vehicle was locked when he parked it; (d) the petitioner was inside of a friend’s apartment at the time of the theft; and (e) he maintained possession of the key to the vehicle. Further evidence was presented that the petitioner filled out an insurance claim form and gave information to Edward Duffy, an investigator for the Ohio Casualty Insurance Company at the time. The information provided by the petitioner was much the same as the information provided to the police officer at the time of the theft, with some additional statements. The petitioner told Mr. Duffy that he went to see a friend and that he drove his vehicle to the location himself. He further explained that he possessed the only key to the vehicle. When he spoke to the attorney for the insurance company, Attorney Williams, the petitioner provided similar information and expanded on where he parked in the parking lot. Attorney Williams testified that the petitioner reported that he backed into a parking spot in the parking lot of the Spring Ridge Apartment complex and that he locked the vehicle, put the key in his pocket, and went inside of his friend’s apartment. Furthermore, the petitioner told Attorney Williams that Mr. McNeil drove the vehicle in question on very rare occasions and that Mr. McNeil was not the primary driver. Attorney Williams further explained to the court that the insurance company’s investigation is directed by the information that they are provided regarding when, where, and how a vehicle was stolen. 1/10/07 Tmscpt. p. 9,11.8-18. Having received and relied on this information from the petitioner, the Ohio Casualty Insurance Company paid the petitioner a total of $25,690.97. Juan Burgos, a neighbor of Mr. McNeil, provided testimony that during 2003, he observed Mr. McNeil operating a black Lincoln Navigator while living at the Spring Ridge apartments. Mr. Burgos also described observing a prior incident when the Lincoln Navigator in question was being broken into and the alarm sounded. Mr. Burgos stated that he alerted Mr. McNeil as to the incident, believing Mr. McNeil to have some connection to the vehicle. Based on the evidence demonstrating that there was some indication that the Lincoln Navigator was primarily used by Mr. McNeil (contrary to the petitioner’s original statement) and that the insurance company relied on the petitioner’s initial statements to its detriment (payment of $25,690.97), the court determined it was more likely than not that a wrong had occurred through criminal agency, and allowed the admission of the petitioner’s confession.

Detective London testified that he met with the petitioner in December 2005. After the detective told the petitioner that he had noticed inconsistencies in his prior statements, the petitioner disclosed that, in fact, he had lied to the police and the insurance company when giving details regarding the Navigator’s disappearance. The petitioner admitted to being at his girlfriend’s house on the south side of Allentown (and not at Mr. McNeil’s apartment). 1/11/07 Trnscpt. pp. 64-66,11. 23-13; p. 83, 11. 18-20. He further revealed that Mr. McNeil was the regular operator of the vehicle. Id. at p. 66,11. 14-20.

The second requirement of the corpus delecti rule, that the Commonwealth prove to the jury’s satisfaction beyond a reasonable doubt the corpus delecti of the crimes charged, was also demonstrated in the course of the trial. The court, sitting as the fact-finder in the non-jury trial, found that the Commonwealth’s evidence proved that the petitioner gave false statements to the insurance company and the police investigators during the initial stages of the investigation into the theft of the Lincoln Navigator. At the conclusion of trial, the court returned a verdict of guilty of insurance fraud and acquitted the petitioner of criminal conspiracy to commit false reports to law enforcement.

Sufficiency of the Evidence and Materiality ofMisrepresentation

The petitioner argues that the evidence presented in the course of the trial was insufficient to establish that the petitioner had committed insurance fraud. The petitioner also asserts that “[t]he alleged misrepresentation, which forms the basis for the criminal surcharge, was de minimis, at best, and does not rise to the level of a material misrepresentation which is actionable under [the] criminal statute.” Pa.R.A.P. 1925(b) stmt., P- 2, ¶3.

A person commits insurance fraud if he or she:

“Knowingly and with the intent to defraud any insurer or self-insured, presents or causes to be presented to any insurer or self-insured any statement forming a part of, or in support of, a claim that contains any false, incomplete or misleading information concerning any fact or thing material to the claim.” 18Pa.C.S. §4117(A) (2).

At the time of trial, Officer Michael Arnold of the Whitehall Township Police Department testified that he prepared an auto theft supplemental form in relation to the stolen vehicle report taken in connection with the disappearance of the petitioner’s vehicle. Officer Arnold testified that to complete the report, he asked the petitioner various questions. The officer asked the petitioner for his location at the time of the theft. The petitioner responded that he was inside of his friend’s apartment and that he was in possession of the vehicle at the time of the theft. Officer Arnold also stated that the petitioner never acknowledged another driver of the vehicle.

The petitioner argues that “[t]he evidence presented at trial does not establish beyond a reasonable doubt that the [petitioner’s] statement to Ohio Casualty that the car in question was stolen, is fraudulent.” Pa.R.A.P. 1925(b) stmt., p. 1, ¶2. In essence, the petitioner argues that the criminal information charges the petitioner with a general material misrepresentation, i.e., falsely reporting petitioner’s 1998 Lincoln Navigator stolen. The petitioner claims that evidence presented regarding the petitioner’s specific misrepresentations in support of the generalized insurance claim of a stolen car ought not to be considered as a violation of the insurance fraud statute as it is written in the criminal information.

The court relies on the definition of insurance fraud stated above, and specifically on the portion of the definition that states that any material misrepresentation “in support of a claim” (emphasis added) would constitute insurance fraud. During the first day of trial, the court summarized the focus of the crime of insurance fraud as charged against this petitioner as follows:

“I understood this to be that I’m asked to decide whether or not statements were made in the claim upon which the insurance company relied and those statements were in some way materially false which caused the insurance company to act differently than they may have acted if they had gotten proper information initially. And I will boil it down to this. . . . My belief is, he says he was at McNeil’s apartment and was there all night and when he comes out in the morning, the car is gone. When, in fact, that wasn’t the case. That, for some reason, McNeil had it or it was at McNeil’s location, but Tillet wasn’t there when the car was stolen and, in fact, finds out about it and then makes the claim. That’s what I understand happened, in short, unless I am mistaken and I could be mistaken.” 1/9/07 Tmscpt. pp. 148-49,11. 13-23, 4-17.

After the court’s recitation of the charge against the petitioner, the Commonwealth and both defense counsel made no substantive correction to the court’s interpretation of the criminal information or the allegation against the petitioner. The court determined that the evidence showed that the petitioner did “knowingly and with the intent to defraud” presented statements regarding the surrounding circumstances of the vehicle’s disappearance to Ohio Casualty in support of his claim of a stolen 1998 Lincoln Navigator, and that those statements were false.

The petitioner also disputes whether those statements were “material” to the resolution of the claim.

While there seems to be no appellate authority for criminal cases addressing materiality in the context of insurance fraud, there are a host of civil cases that have tackled the definition. For the purpose of defining “material” as it appears in the statute, these cases are relevant and instructive. For example, the Pennsylvania Superior Court, deciding an insurance fraud case, held in Tudor Insurance Company v. Township of Stowe, 697 A.2d 1010, 1016 (Pa. Super. 1997), that a false statement was material if “the insurer relied to its detriment on the false statement in issuing the insurance policy.” Likewise, in TJS Brokerage & Co. Inc. v. Hartford Cas. Ins. Co., 2001 WL 1808039, *3 (C.P. Philadelphia Aug. 14, 2001), a common pleas court cited a federal court decision applying Pennsylvania law to an insurance fraud question. The federal trial court held that a false statement is material if it concerns a subject relevant and germane to the insurer’s investigation as it was then proceeding, or if a reasonable insurance company, in determining its course of action, would attach significance to the fact misrepresented. See Saracco v. Vigilant Ins. Co., 2000 WL 202274, at *5 (E.D. Pa. Feb. 22, 2000). See also, Hepps v. General Am. Life Ins., 1998 WL 564497, at *3 (E.D. Pa. 1998); Parasco v. Pacific Indem. Co., 920 F. Supp. 647, 654 (E.D. Pa. 1996). While Pennsylvania courts are not bound by federal court opinions, decisions of federal courts construing Pennsylvania law have persuasive authority. See Hutchison v. Luddy, 163 A.2d 826, 837 n.8 (Pa. Super. 2000).

Similarly, other courts have considered materiality in the context of an insurer’s post-loss investigation — the circumstances in this case. For example, in Parasco, 920 F. Supp. at 654, the court held that “the materiality requirement is satisfied if the false statement concerns a subject relevant and germane to the insurer’s investigation as it was then proceeding,” citing Fine v. Bellefonte Underwriters Ins. Co., 725 F.2d 179, 183 (2dCir. 1984). The Parasco court also acknowledged the definition of materiality as discussed in Long v. Insurance Co. of North America, 670 F.2d 930, 934 (10th Cir. 1982). That court said, “[A] misrepresentation will be considered material if a reasonable insurance company, in determining its course of action, would attach importance to the fact misrepresented.” Id.

Likewise, the Pennsylvania Superior Court has discussed materiality under circumstances where a fraud occurs in the inducement of the insurance contract. “Information is said to be material if knowledge or ignorance of it would naturally influence the judgment of the insurer in issuing the policy, in estimating the degree and character of the risk, or in fixing the premium rate.” A. G. Allebach Inc. v. Hurley, 373 Pa. Super. 41, 52, 540 A.2d 289, 295 (1988), citing Baldwin v. Prudential Insurance Co., 215 Pa. Super. 434, 437, 258 A.2d 660, 662 (1969). See also, Rohm and Haas Company v. Continental Casualty Company, 566 Pa. 464, 477, 781 A.2d 1172, 1179 (2001) (adopting the Allebach materiality standard). This court can find no case law mandating that the definition of “material” should change just because the fraud or misrepresentation occurs after the execution of the contract, rather than prior.

Additionally, the Parasco court recognized that materiality is measured at the time the insured made the representation. 920 F. Supp. at 654. This is so because in hindsight, the significance of an untruth may turn out to be greater or less than expected. Flindsight, however, is irrelevant to the materiality of an insured’s misrepresentation to an insurer. See TJS Brokerage, 2001 WL 1808039 at n.4, citing Longobardi v. Chubb Ins. Co. of New Jersey, 582 A.2d 1257, 1262-63 (N.J. 1990). Furthermore, because the Parasco court relied on Fine, this court also finds the Second Circuit’s discussion of when materiality is relevant to be enlightening:

“Is a false statement material only if it relates to a matter or subject which ultimately proves to be decisive or significant in the ultimate disposition of the claim, or is it sufficient that the false statement concerns a subject reasonably relevant to the insurance company’s investigation at the time? The law is clear that the materiality of false statements during an insurance company investigation is not to be judged by what the facts later turn out to have been. The purpose of a provision requiring an insured to submit to an examination under oath is to enable the insurance company to acquire knowledge or information that may aid it in its further investigation or that may otherwise be significant to the company in determining its liability under the policy and the position it should take with respect to a claim. Thus the materiality requirement is satisfied if the false statement concerns a subject relevant and germane to the insurer’s investigation as it was then proceeding.” 725 F.2d at 183.

In this instance, the Commonwealth presented evidence and testimony which indicated that the petitioner offered different versions of the events surrounding the theft of the vehicle. Testimony from Officer Arnold and retired insurance inspector for the Ohio Casualty Insurance Company, Edward Duffy, indicated that the petitioner initially provided statements that he was the primary driver of the vehicle and that he had left the vehicle outside of his co-defendant’s apartment. The petitioner later made a statement to Detective Richard London of the Lehigh County Insurance Fraud Task Force indicating that he, in fact, had not been at the co-defendant’s residence and had lied to both the police officer and the insurance company when he reported the car stolen. See 1/11/07 Trnscpt., pp. 64-65, 11. 23-16. The petitioner further acknowledged that he deceived the insurance company and the police in order to avoid further inquiry into the circumstances of the theft. Testimony was also presented regarding the way in which the information provided by the petitioner was used in the insurance company’s investigation of the vehicle theft. Attorney Steven Williams, representing the insurance company, testified that information about the circumstances surrounding how a vehicle was stolen and the way in which it was discovered stolen is important in determining what parties may have been at the root of the vehicle’s disappearance. He indicated that based on surrounding information, the investigation may proceed in a certain way. For example, Attorney Williams testified that the petitioner stated that he had possession of the keys to the vehicle and that co-defendant McNeil only drove the vehicle occasionally. Attorney Williams stated that had the petitioner given him information that McNeil was actually the primary driver, he “would have directed [his] investigation in a different manner, [a]cquired more information as to why that person had possession of the vehicle and similar questions. 1/10/07 Trnscpt. p. 9, 11. 8-18; p. 6, 11. 15-21; p.7, 11. 16-21. Due to the fact that the false statements initially provided by the petitioner to the police officer and the insurance investigator were provided knowingly and with the intent to defraud, either to protect his co-defendant or for another reason, and because the court accepted the testimony that a reasonable insurance company would have proceeded in a different fashion had they been provided the true circumstances of the theft, the statements that the petitioner falsely provided were material to the claim.

ORDER

And now, November 29, 2007, it appearing that the petitioner has filed a notice of appeal in the above-captioned matter; and it further appearing that the accompanying memorandum opinion satisfies the requirements of Pa.R.A.P. 1925(a); it is hereby ordered that the clerk of courts, criminal, transmit the record in the above-captioned matter to the Superior Court forthwith.

      . 18 Pa.C.S. §4117(A)(2).

      . This charge should be listed under 18 Pa.C.S. §903, however it is listed under 18 Pa.C.S. §4117(A)(2) in the criminal information.