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HomeMy WebLinkAbout02-5176OCT COVER'S AUTO WRECKERS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2002 ~ ~,5~'~/'"~ CIVIL DIVISION (SUSPENSION OF INSPECTION PRIVILEGE) AND NOW, this ~'~ day ORDER of , 2002 upon consideration of the Appeal of Cover's Auto Wreckers, from the suspension of its Certificate of Appointment as an Official de novo hearing is scheduled for the/,.~-, day of Safety Inspection Station, a ,,~,, at 4;~D o'clock~_.m, in Court Room No. / of the Cumberland County Courthouse. A supersedeas is granted pending the hearing. BY THE COURT: (J.) COVER'S AUTO WRECKERS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2002 CIVIL DIVISION (SUSPENSION OF INSPECTION PRIVILEGE) APPEAL FROM SUSPENSION OF CERTIFICATE OF APPOINTMENT AS AN OFFICIAL SAFETY INSPECTION STATION Petitioner, Cover's Auto Wreckers, by its attorneys, McNees Wallace & Nurick LLC, and pursuant to 75 Pa.C.S. §4724(b), files this appeal from the Order of Suspension of Official Safety Inspection Station and avers the following in support thereof: 1. Petitioner is Cover's Auto Wreckers ("Cover's"), a licensed Pennsylvania Safety Inspection Station with its principal place of business at 335 Newburg Road, Newburg, Cumberland County, Pennsylvania, 17240. 2. Respondent is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, with offices at Riverfront Office Center, 1101 S. Front Street, Harrisburg, Pennsylvania 17104-2416. 3. By order dated and hand-delivered October 17, 2002, Cover's was notified that its Certificate of Appointment to operate as an official safety inspection station was being suspended. A true and correct copy of the notice is attached hereto as Exhibit "A". 4. The Order states that Cover's Certificate of Appointment as an official safety inspection station was being suspended effective immediately for a total period of two years, one year for each of the alleged violations - fraudulent recordkeeping and furnishing certificate of inspection without conducting an inspection. 5. Cover's is in the business of repairing and inspecting vehicles. 6. Cover's has been greatly prejudiced by the lack of due process and will suffer irreparable harm due to the suspension if a supersedeas is not immediately granted pending appeal, as Cover's is in the business of operating an official Pennsylvania safety inspection station. 7. The two year suspension imposed upon Cover's inspection privilege for the alleged violations of fraudulent recordkeeping and furnishing certificate of inspection without conducting an inspection is improper as Cover's did not engage in or permit such conduct. 8. Cover's appeals this suspension to the Court of Common Pleas of Cumberland County pursuant to 75 Pa. C.S. ~4724(b), and requests that a Supersedeas be granted pending a hearing on the merits. 9. Cover's satisfies the requirements of Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983); therefore, the issuance of a supersedeas is proper. There is a strong likelihood that Cover's will prevail on the merits of its appeal. b. Without the granting of the supersedeas, which will allow Cover's to restore its inspection privilege pending appeal, Cover's will suffer irreparable injury as safety inspections will not be able to be performed by Cover's, who is in the business of repairing and inspecting vehicles. c. The granting of a supersedeas in this matter will not substantially harm the Department of Transportation. In fact, PennDOT has verbally advised counsel for Cover's that it does not oppose the granting of a supersedeas in this matter. d. The granting of a supersedeas in this matter will not harm or adversely impact the public interest. WHEREFORE, Petitioner, Cover's Auto Wreckers, requests that a supersedeas be entered staying the imposition of suspension pending appeal and that this matter be scheduled for hearing pursuant to 75 Pa.C.S. §4724(b). Date: October 25, 2002 Respectfully subn ~d, BY / (/B--~arbaOCra ,~. Darkes, ~Esquire Attorney I. D. Ne. 77419 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 237-5381 Attorneys for Petitioner Cover's Auto Wreckers Exhibit A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION HARRISBURG, PA 17104 October 17, 2002 John L. Cover Cover's Auto Wreckers - OIS#M-633 335 Newburg Road Newburg, PA 17240 ORDER OF SUSPENSION OF OFFICIAL INSPECTION STATION You ,xre hereby notified that your Certificate of Appointment ~,~ an Official Safety Inspection Station is suspended, pursuant to Section 4724 of the Vehicle Code. No vehicle safety inspections may be pcrl'ormed during the suspen~on. Pursuant to Departmental regulations, your Certificate of Appointment will be suspended for one (1) year for furnishing certificate of inspection without an inspection to a 1988 Ford Taurus (sticker #AI2-3859961) and one (1) year for fi'audulent reco~ keeping. Further, the Department is including in thls off~n~.*e, the lesser included offenses of improper record keeping and car~less record keeping. The suspension(s) will run consecutive[y, for a total suspensioll of two (2) years. This suspension is to nm consecutively with any other suspension(s) imposed by the Department for any violation considered separately. You are ordered to surrender to the bearer of this notice, who i$ a representative of the Departmenl orTrmtsportation, your Certificate(s) 0f Appointment and all safety inspection stickers. Two (2) weeks pr*or to the expirat'on of your suspension, you may contact your Quality Assurance Officer lbr reappointment. A complete and through invc~igation may be conducted to determine if you ere qualified for reappointment. You have the right to appeal tbia Deparm~ental Order of Suspension to the Court of Conunon Pleas of the County in which the abovc referenced inspection station is located, WITHIN TIIIRTY (30) DAYS OF · 'HE DATE OF THIS ORDER. If you do file an appeal, a signed and time-~tamped copy of tho appeal mst be served upon the Department at the maillng address listed below. FILING OF AN APPEAL DOgS NOT AUTOMATICALLY STAY THE SUSPENSION. In order for your privileges to be restored pending appeal, a signed Order of Supcrsedeas from tho Court d~recting the Department to sh'~y the suspension must be sewed upon the Depa~ment at the mailing address listed below. MAILING ADDRESS: Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3r~ Floor tlarrisburg, PA 17104-2416 Sincerely, Kurt J. Myers, Director Bureau of Motor Vehicles CERTIFICATE OF SERVICE AND NOW, this 25~h day of October, 2002, I hereby certify that I have served a true and correct copy of the within document, via facsimile and certified United States mail, return receipt requested and postage prepaid as follows: Matthew X. Haeckler, Assistant Counsel in Charge PA Department of Transportation Office of Chief Counsel Motor Vehicle Section Riverfront Office Center 1101 S. Front Street - 3rd Floor Harrisburg, PA 17104-2416 Fax No. (717) 705-1122 ' ~,~rbar~. E~'ar~J's, Esquire Attorney I.D. # 77419 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5381 Attorneys for Petitioner Cover's Auto Wreckers COOVER'S AUTO WRECKERS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5176 CIVIL TERM IN RE: PETITIONER'S APPEAL FROM SUSPENSION OF CERTIFICATE OF APPOINTMENT AS AN OFFICIAL SAFETY INSPECTION STATION ORDER OF COURT AND NOW, this 5th day of February, 2003, upon consideration of the attached letter from Elaine Blass, Esq., assistant counsel for Respondent, the hearing previously scheduled for February 13, 2003, is rescheduled to Monday, May 19, 2003, at 9:30 a. m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, {///W~sley Ole ,r~.h~., ' J. Barbara A. Darkes, Esq. 100 Pine Street P.O. Box 1168 Harrisburg, PA 17108 Attorney for Petitioner Elaine Blass, Esq. Assistant Counsel Commonwealth of Pennsylvania Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center - Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent :rc COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE& TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 VOICE: (717) 787-2830 TELEFAX: (717) 705-1122 February 4, 2003 The Honorable J. Wesley Oler, Jr. The Court of Common Pleas of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Re: Cover's Auto Wreckers v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, No. 2002-5176. Dear Judge Oler, The hearing in this matter is presently scheduled before Your Honor on Thursday, February 13, 2003. I am respectfully requesting a continuance of this hearing to a future date. I have spoken to Attorney Barbara A. Darkes, counsel for Cover's Auto Wreckers, and she concurs in this request. Your Honor has granted a supersedeas pending the hearing Settlement negotiations are currently pending between Cover's Auto Wreckers and the Department's Bureau of Motor Vehicles. In addition, Mr..James Pague, a mechanic employed by Cover's Auto Wreckers, has experienced the death of his wife during the past two weeks. Attomey Darkes and I both anticipated calling Mr. Pague as a witness. Lastly, I will be unavailable for trial on February 13th, due to previously requested leave from this office. Thank you for your consideration of this request Cc: Barbara A. Darkes, Esq. Sincerely, Elaine Blass Assistant Counsel Vehicle & Traffic Law Division COVER' S AUTO WRECKERS, Petitioner Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5176 CIVIL TERM IN RE: PETITIONER'S APPEAL FROM SUSPENSION OF CERTIFICATE OF APPOINTMENT AS AN OFFICIAL SAFETY INSPECTION STATION AMENDED ORDER OF COURT AND NOW, this 12th day of February, 2003, the order of court previously issued in this matter on February 5, 2003, is amended to reflect Plaintiff's name as Cover's Auto Wreckers. In all other respects, the order shall remain the same. BY THE COURT, Barbara A. Darkes, Esq. 100 Pine Street P.O. Box 1168 Harrisburg, PA 17108 Attorney for Petitioner Elaine Blass, Esq. Assistant Counsel Commonwealth of Pennsylvania Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center - Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent COVER'S AUTO WRECKERS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 5176- 20O2 CIVIL DIVISION (SUSPENSION OF INSPECTION PRIVILEGE) ORDER AND NOW this ~'__~__ day of April, 2003, it appearing that the Department of Transportation, Bureau of Motor Vehicles, and Petitioner Coveffs Auto Wreckers, have duly considered and entered into a Stipulated Agreement in the above-captioned case, the Court ORDERS, ADJUDGES, AND DECREES as follows: 1. By an official notice of suspension, dated and hand-delivered on October 17, 2002, the Department of Transportation, Bureau of Motor Vehicles (Bureau) notified Cover's Auto Wreckers, O.I.S. # M-633 ("Cover's"), that its Certificate of Appointment as an Official Safety Inspection Station was being suspended for a total period of two years: one-year, as the result of a violation of furnishing a certificate of inspection without performing an inspection, and one-year, as the result of a violation of fraudulent record-keeping, to run consecutively. The two one-year suspensions commenced immediately. 2. The suspensions were imposed in accordance with Section 4724(a) of the Vehicle Code and the Department's regulations at 67 Pa Code §175.51(a). 3. On October 25, 2002, Cover's filed a timely appeal from these suspensions in the Court of Common Pleas of Cumberland County, which appeal was docketed at number 5176-2002. By Order entered October 25, 2002, a supersedeas was entered restoring Cover's Certificate of Appointment as an Official Safety Inspection Station pending appeal and scheduling a de novo hearing for February 13, 2003. At the request of counsel, that hearing was continued and is currently scheduled for May 19, 2003, at 9:30 a.m. been cancelled. The May 19, 2003, hearing scheduled in this matter has 5. In lieu of the two year suspension imposed by the Bureau's order dated October 17, 2002, the Bureau has agreed to the following: (a) the two one-year suspensions are imposed concurrently, for a total suspension of one year. (b) Cover's is awarded credit of six months toward serving the one-year suspension, leaving a suspension of six months to serve. (c) Cover's will begin serving the remaining six months of suspension on Friday, August 15, 2003. (d) Cover's Certificate of Appointment as a Certified Safety Inspection Station will be restored Monday, February 16, 2004. 6. Cover's Auto Wreckers agrees to the following: (a) to accept the two one-year suspensions for first violations of furnishing certificate of inspection without conducting an inspection and fraudulent recordkeeping. (b) pursuant to 67 PA Code §175.51(g), the violations of furnishing certificate of inspection without conducting an inspection and fraudulent recordkeeping are first violations and will remain on Cover's record as such for the term of three years from the date of the violation. (c) Petitioner waives any and all rights to appeal this matter 7. I have read and approved the above-noted terms and conditions of this Stipulated Agreement. AttornL~/for 's Auto Wreckers Elaine N. Blass DATE: Attorney for Department of Transportation, Bureau of Motor Vehicles By The?~ouK: ~, ' ~e~ley O~n,{Jr., '