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HomeMy WebLinkAbout01-03095 COpy COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee JN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARLES C. SUDERS, Appellant NO. 2001-3095 CIVIL TERM AND NOW, this ORDER OF COURT ~ '1 ft\. day ofJUL Y, 2001, having found the testimony of appellant to be credible, and having further found that he performed an inspection of the motorcycle in question, albeit an incomplete inspection, the action ofthe Department suspending his certification as an official safety inspection mechanic for furnishing a certificate of inspection without inspection is REVERSED. The Department's suspension of appellant's certification as an official safety inspection mechanic for one year for fraudulent record keeping is SUSTAINED. Edward E. Guido, J. Elaine Blass, Esquire For the Commonwealth H. Anthony Adams, Esquire For the Appellant Sheriff :sld ^'- "AI . .JUL 2'7200~ " COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER 1101 SOUTH FRONT STREET, 3RD FLOOR HARRISBURG,PENNSYLVANIA 17104 Telephone: (717) 787-2830 Telefax: (717) 705-1122 July 24, 2001 The Honorable Edward E. Guido Court of Common Pleas of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle,PA 17013-3387 Re: Statutory Appeal of Charles C. Suders v. Department of Transportation, Bureau of Motor Vehicles, No. 01-3095 Civil Term Dear Judge Guido, ,.,o"'( With the Court's indulgence, I am enclosing ~orrected bri~f 9'n behalf of the Department of Transportation, Bureau of Motor Vehic1eifm'tl"re'a6u-ve-captioned matter. The original brief was sent to Your Honor yesterday by facsimile and regular mail. My review of the brief after it was sent indicates typographical errors and omissions. Please accept my apology for submission to the Court without sufficient review a brief, which required such correction. I have today also served counsel for the Petitioner with the corrected brief. Thank you. Sincerely, ~ Elaine N. Blass, Esq. Assistant Counsel Motor Vehicle Section ~ ~ _.-. . - 1_ ,; I '- " ri~"-' - ~ " . " "~=!!i!i~" , 1":" .. 21'11'1'1 -I" JUl21.....IW....... . ~ . COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: ELAINE N. BLASS ASSISTANT,COUNSEL ATTORNEY IDENTIFICATION NO. 43097 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 < CHARLES C. SUDERS, IN THE COURT OF COMMON PLEAS Petitioner OF CUMBERLAND COUNTY vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent No. 01-3095 CIVIL TERM RESPONDENT'S BRIEF IN SUPPORT OF PETITIONER'S SAFETY INSPECTION VIOLATIONS STATEMENT OF THE CASE By an official notice, dated Apri120, 2001, the Department of Transportation, Bureau of Motor Vehicles (Bureau), suspended Petitioner's certification as an official safety inspection mechanic, pursuant to 75 Pa. C.S. ~4 726(b) 1 , for violations of furnishing I 75 Pa.e.S. ~ 4726(b) Supervision and suspension provides in pertinent part: "The department shall supervise mechanics certified under this section and may suspend the certification issued to a mechanic if it finds that the mechanic has improperly conducted inspections or has violated orfailed to comply with any of the provisions of this chapter or regulations adopted by the department." . 1 . - .~ ~- I. _.~"--~ '.~ , "-, , a certificate of inspection to a 1985 Honda motor cycle (Sticker No: AOO-0272803) without an inspection, 75 Pa.C.S.~ 4730(a),2 and fraudulent record-keeping,67 Pa. Code ~ 1 75.42(al The Bureau imposed a total suspension of two years: a one-year suspension for a first violation of furnishing the certificate of inspection without an inspection and a one-year suspension for a first violation of fraudulent record-keeping. The notice stated that the fraudulent record-keeping violation included the lesser included offenses of improper and careless record-keeping. Petitioner filed a timely statutory appeal on May 22, 2001. A de novo hearing was held on July 6, 2001. The Petitioner testified on his own behalf. The Bureau presented the testimony of Trooper Ronald Taylor, Ms. DarIa Meckley, the owner of the vehicle, and Mr. Gary A. Viertz, the certified inspection mechanic, who re-inspected the vehicle. The Bureau offered into evidence a packet of documents certified by the Secretary . of Transportation and attested to by the Director of the Bureau of Motor Vehicles. The packet included: the above-noted notice of suspension; a Review of Eligibility For Assessment of Points to Naugle Motors, Inc.; the notice informing the Petitioner of the Departmental hearing; and the Bureau of Motor Vehicle's record of Petitioner's violations. The Bureau offered into evidence as separate Exhibits a copy of the Motorcycle Inspection Record, Form MV-480, for the motor cycle safety inspection at issue; a copyofa Work Order from Naugle Motors, Inc.; and copies of the M & S.Cycle Work Order and M & S Cycle record of safety inspection information. The Bureau offered into evidence the original Certificate of Safety Inspection, which was affixed to the motorcycle. 2 75 Pa.C,S,~ 4730(a) provides: "No person shall (2) display or cause to be displayed on any vehicle or mass transit vehicle or have in possession any certificate of inspection knowing the same to be fictitious or stolen or issued for another yehicle or issued without an inspection having been made," 3 67 Pa. Code ~ l75.42(a) Fraudulent recording provides: "Fraudulent recording of an inspection report sheet will "-~ be considered cause for suspension of inspection privileges." 2 ~_. ,",,,;,,., ill~!Pj ~: -~ - " ,,' ',: ,I , I ~~~ ~~-": '. '~ " I '" -~ ....L 'r~~~;. ". < By an Order, dated July 6, 2001, the Court made the following Findings of Fact: (1) Petitioner did not properly perform the inspection of the subject motor vehicle in that Petitioner failed to road test it, to use any tool to measure the brakes, and to pull the vehicle into the garage to check the headlights, (2) Petitioner intentionally indicated on the Form MV-480 that he road tested the motorcycle, while knowing that he did not. The Court directed the parties to file memoranda oflaw by July 23,2001, in support of their respective positions in light of the Findings of Fact. -;.; 3 .":~-'_.~~ '-~ j,' ~ 1 _ _'__<'1 ,. J, , ~iltiKi;',:i , ., ARGUMENT I. Petitioner Violated 75 Pa.C.S. ~4730(a) and 67 Pa Code ~ 175.45(2) By Furnishing A Certificate of Safety Inspection To A Motor Cycle, Where the Petitioner Omitted Essential Safety Inspection Components That Determine A Vehicle's Safe Operating Condition. The Bureau respectfully submits that the Court's Findings of Fact, together with testimony of the motorcycle owner and the Petitioner, indicate that the inspection Petitioner performed on the motorcycle omitted essential safety inspection components, which the inspection regulations mandate. These safety inspection components are essential to determine whether the motorcycle is in safe operating condition. The Bureau contends that the evidence of record shows Petitioner cut comers by inspecting the , motorcycle outside the authorized inspection area, by never moving the vehicle from where it was initially parked outside the garage to the authorized inspection area, and by not performing a road test. The Bureau further submits that there is substantial evidence to establish that Petitioner did not properly take the required brake and tire readings, did not properly test headlight aim and candlepower, and had no knowledge of how the motorcycle'~ systems functioned on the road. . . Lacking these essential elements, Petitioner performed a seriously deficient inspection, for which the issuance of a certificate of inspection was not warranted or ~~ --. 4 . ~ " -""- ~,' '~ .1 I.. ~j Li -"i::~liCii"";-L~- '$l!;"e-- ; authorized, and thereby violated 67 Pa. Code ~175.4l. The Bureau contends that the .,: inspection Petitioner conducted was tantamount to not perfonning a valid motorcycle safety inspection. The Bureau submits that the Findings of Fact made by this Honorable Court support the Bureau's contention that Petitioner failed to perform the essential components of a required motorcycle inspection and that the inspection performed was seriously deficient. The Court has found that Petitioner did not properly perform the inspection of the motorcycle in that he failed to road test it, to use any tools to measure the brakes, and to pull it into the garage to check the headlights. Further, the Court found that Petitioner intentionally indicated on Form MV-480 that he road tested the motorcycle while knowing he did not. The regulations at 67 Pa. Code ~175.4l(a) provides: "Unauthorized display of certificate of inspection. No certificate of inspection or temporary inspection approval indicator may be marked or affixed to a vehicle unless the vehicle has successfully passed inspection , meeting the requirements of75 Pa.C.S. ~~101-9701(relating to Vehicle Code) and this chapter." Pursuant to Section 175.41(a), a certificate of inspection cannot be marked and affixed to a vehicle unless that vehicle has successfully passed inspection and met the requirements of the Vehicle Code. Section 175.41 (d)( 1 ) further provides that the ~.. . --., ~~ 5 ~. .- . ":"'':"" _" ~j I 1e,I ~ -~-' "~.:!'~, . certificate of inspection shall be affixed only after completion of the entire inspection including the road test. Department o/Transportation, Bureau 0/ Drive Licensing v. May, 528 A.2d 708,710 (Pa. Cmwlth. 1987). " It is undisputed that, to the extent that an inspection was performed, it was conducted in a public area of the inspection station premises. According to the best recollection of Bureau counsel, the vehicle owner, Ms. Meckley, testified that she parked the vehicle on the outside premises of the station and left the engine running, because the vehicle had previously stalled. The owner testified that she watched the vehicle the entire time from inside the station. Ms. Meckley testified that the vehicle was never moved from where she parked it, and that two different persons from the station came o~t to the vehicle. One person removed the old sticker and applied a new sticker. '----'.... 6 ~,IIi!:ir.t'.". ..- -'" ~M~- , inspection area.4 Section l75.26(a) requires that the inspection station be equipped with " to proper tools, lighting, and testing equipment and therefore that the mechanic have access to such tools and equipment. 5 Section l75.28(a) requires the performance of the road test, which permits monitoring of braking and steering systems, the odometer and speedometer, and "other questionable operating behavior." 6 The Bureau submits that an inspection cannot be regarded as a safety inspection, when these essential components are omitted. Because of these omissions, the Bureau submits that Petitioner could not reasonably determine whether the motorcycle's various systems -brakes, suspension, steering, lighting, for example-met the specific requirements of the motorcycle inspection regulations at 67 Pa. Code ~175.l4l et seq and thus were in safe operating condition. 4 67 Pa. Code 175.25(c) Inspection conducted in an inspection area: "An inspection shaB be conducted entirely within the inspection area with the exception of the road test." 5 See 67 Pa. Code 175.26(a) General requirements provides: "An inspection station shaB have tools and equipment in good operating condition sufficient to inspect each type of vehicle to be inspected. . .", to include a portable light, tread depth gauges, brake drum gauges, brake lining gauge, an approved headlight testing device, wrenches, screw drivers. . .. .' . 6 67 Pa. Code ~175.28(a) provides in pertinent part: 'The mechanic signin~ the inspection sticker shaB conduct and be responsible for the entire inspection of the vehicle including the road test. .." 67 Pa. Code 17 5.160( d)(perform a road test and reject if one or more of the following apply, including vehicle incapable of stopping, malfunction of steering or braking mechanism, other questionable operating behavior, speedometer and odometer inop~rable, vehicle cannot be driven forward. See also 67 Pa. Code 175.42(b) which provides that the certified mechanic who performed the road test shall place his signature in the appropriate column on -_ _ the inspection record. ~,~ ~~ 7 ',.-..,. . ~~~-..............,~- ~ - . ~~~~ ,,L l ~,' ,; J "~ :r r .' L~~', ~ .- ~l$~iiit't{!-'ii:, The evidence of record establishes that Petitioner did not use tools to gauge the < vehicle brake lining and tire tread readings. Without the use of tools, Petitioner cannot detennine if the brakes linings and tire treads are at a proper depth for safety, in accordance with 67,Pa. Code ~~175.60(b)(3)7 and 175.60(cl Brake readings and tire tread readings cannot be made by visual inspection and are not a matter of guesswork. Since Petitioner did not use required headlight testing equipment on the headlight, Petitioner could not determine if the motorcycle's headlight had proper candlepower and aim.9 Proper headlight candlepower and aim cannot be determined by visual inspection alone. Additionally, the requirement that the motorcycle inspec,tion be conducted entirely in the inspection area permits the station owner or manager to exert proper supervision over the mechanic, while the inspection is being conducted.1O The Bureau's certified packet of documents at Document No.2 is the Review of Eligibility For Assessment of points for the station. The Review of Eligibility indicates that Petitioner's employer, Naugle Motors, Inc., was eligible for points in lieu of a suspension, since the Bureau 7 Section 175.60(b)(3). See 67 Pa. Code 175.160(b)(3)( requiring rejection if drums orrotors scored deeper than .015 inch; if bonded or riveted linings are less than one-thirty-second of an inch; if inside of brake drum is greater thlin stated diameter)." 8 67 Pa. Code 175.160(c)( inspect tires and reject if a tire has two adjacent treads with less than two thirty-second inch remaining at any point). 9 67 Pa. Code ~ 175.160(a)(6)(i) and (xi)(indicating standards for headlamp adjustment). 10 67 Pa. Code ~175.29(a)(6) requires that the inspection station owner assume full responsibility, with or without knowledge, for eV,ery inspection conducted by an employee of the station, every inspection conducted on the premises, every certificate of inspection issued by the inspection station, and a violation of the Vehicle Code or regulations committed by an employee of the station. 8 . -", ,~~ ~~ : "- ~ . L,~" ',,'W _ ~. '_' _ ", ,~ " ,,~NI~iiHiii",;" , determined that the station owner was present at the time of violation, but was not aware of the infraction. See 67 Pa. Code ~175.151(b) (Department will permit station to consent to assessment of points in lieu of suspension, if station owner or other management employee was without knowledge of the violation and should not have known of the violation.). Thus, the inspection of the motorcycle outside the inspection area here allowed the inspection to be conducted without proper managerial supervision. " This case presents a unique pattern of facts, which has not previously been addressed by the Commonwealth's appellate Courts. Counsel for the Bureau could not discover a reported appellate decision, which addresses a violation of furnishing a certificate of inspection without an inspection, given the Findings ofI:'act made by the Court in the present case, and where there is substantial evidence that the inspection mechanic omitted essential items of inspection procedure-namely, the road test, use of required tools and testing equipment to gauge brakes, tires, and headlamps, and inspection in an authorized inspection area. The Bureau asserts, however, that taken together these omissions are serious deficiencies and violations of the inspection regulations. The Bureau submits that Petitioner can no more perform a valid safety inspection of the motorcycle in question without access to tools, testing, and supervision, .. outside the inspection area, and without a road test, than Petitioner could conduct a valid safety inspection in a retail parking lot. .--....~ 9 ~-" - - I" .: l I "~ _. ,~ "",'~:-:-'IL,"lOW.i~......,.J-\1!;~~k'$~' " < However, even though Petitioner failed to perform these essential required components, Petitioner issued a certificate of safety inspection to the motorcycle. The Bureau asserts that.Petitioner violated the Vehicle Code at 75 Pa.C.S.~ 4730(a)(2) and regulations at 67 Pa. Code ~ 175.45(2) by improperly furnishing a certificate of inspection without an inspection. The Bureau contends that the Bureau properly imposed a one-year suspension of Petitioner's certificate of authorization to safety inspect motor pursuant to 75 Pa.C.S.~ 4730(c) and 67 Pa. Code ~175.15l(I)(ii). 11. Petitioner Fraudulently Recprded On the Form MV-480 Inspection Information For The Brake Linings, Tire Tread, Lights And the Road Test In Violation of75 Pa.C.S. ~473l and Safety Inspection Regulations At 67 Pa Code ~175.5l(2)(i). The Bureau submits that Petitioner fraudulently recorded information on the Form MV -480 for four different required inspection procedures: brake readings, tire tread depth, the headlights, and the road test. The Bureau submits that Petitioner's recording of the information as to the brake and tire readings was fraudulent, because there is no evidence to indicate that Petitioner properly took the required brake readings and tire readings. Petitioner did not use the required tools and gauges. Thus, if any brake and tire readings were in fact taken, they were not conducted in compliance with the regulations. . ,. 10 -=~. ~ll--' '. ._'~'" ~ , I~_.",,,. . -~ r' ~ ~: f '-':I,' ,:-1 "'\11~1ll~~' , . Moreover, there is no affirmative evidence that Petitioner properly inspected the " head1amps, since he did not access head1amp testing equipment in the authorized inspection area. Yet, he placed a check mark on the MV-480 to indicate the vehicle's lights, wiring and switches were checked. Finally, it is undisputed that the road test was not performed and the Court so found. Therefore, the required inspection information for these above-noted procedures did not exist, yet Petitioner recorded inspection information relating to the brakes, tires, headlights and the road test. Therefore, the Bureau asserts that Petitioner intentionally and with a purpose to deceive recorded on the MV -480 inspection information that was factually false. Moreover, a discrepancy exists betwt\en the brake readings Petitioner recorded an the MV-480 and on the Naugle Motors Work Order. On the MV-480, at Inspection No. 63 the left front brake reading for the motorcycle is recorded as 6/32. The right rear brake reading is recorded as 7/32. The MV -480 appears to have been signed by the Petitioner. 11 By comparison, the Work Order indicates the brakes as "Fl 5/32 Rear 4/32." Additionally, the tire readings on the Form MV-480 appear to indicate 3/32. 11 67 Pa. Code l75.42(b) provides that the certified mechanic who performed the entire inspection shall place his signature in the appropriate column of the Form MY -480 immediately following the inspection., unless the inspection information is transferred to the MY-480 by a person other than the mechanic. The MY-480 in question appears to have been signed by Petitioner. Cf Pa. R.E. 90 I (b)(2)(illustrating that a document may be authenticated or identified by non-expert opinion on handwriting based on familiarity not acquired for purposes oflitigation). The Bureau invites the Court to compare the similarity of signature on the MY -480 with the Petitioner's signature, as verified in the Petition For Appeal. 11 - ..:,. 1, i~ --- .. I "'~~""'" .. . A further discrepancy exists between the brake readings on the MV-480 and the Naugle Motors Work Order and the brake readings, that were recorded upon re inspection of the motorcycle. Trooper Ronald Taylor's testimony, as recollected by Bureau counsel, indicates that the1;r.ooper took the motorcycle for re-inspection to M& S Cycle on July 13, 2000, the day after Ms. Meckley contacted the Trooper. The testimony indicates that M & S Cycle is an authorized motorcycle inspection station. The motorcycle was inspected by Mr. Allan Viertz, who testified at the hearing. Mr. Viertz indicated that the M & S Cycle document, which accompanied the Work Order, indicates that the front and rear brakes each measure 5/32 and the front and rear tires measure 5/32. The F~ndings of Fact made by Court support the Bureau's contention that Petitioner entered information on the MV-480, that Petitioner could not have obtained. The Court found that the Petitioner did not road test the vehicle and Petitioner intentionally indicated on the MY -480 that he performed the road test when he did not. The Court further found that Petitioner did not use any tool to measure the motorcycle's brakes. To the best recollection of Bureau counsel, Petitioner did not testify that he took the tire tread readings, nor did the vehicle owner testify that tire tread was measured, during the time that she observed the vehicle. Fraudulent record-keeping occurs when "the record-keeping entry [is] false, ---~-. 12 '.1 I,-,~~", ~:. I<_~......... ' ~'~""~~, ~~ . . l '., n_ _ , I ~ ~~ ~ , .....;. ,~ ~~*'ii'iMffo"' , " . entered intentionally and with the purpose of deceiving." Department of Transportation v. " Midas Muffler Shop, 529 A.2d 91,93 (Pa. Cmwlth. 1987). The Bureau submits that tht;re is substantial evidence that the entry of the brake and tire readings on the MY -480 was both intentional and false, as Petitioner recorded this information where no proper measurements of those readings were made by Petitioner; that Petitioner's indication that the road test was performed was, as found by the Court, done intentionally and with knowledge of falsity, i.e. that Petitioner indicated that he performed the road test knowing that he did not; and, further, that Petitioner indicated that the lights had been checked when, in fact, one of the main components of the motorcycle lighting system, the headlights, had not been properly tested. The Bureau further submits that the intent to deceive maybe founj.l here, in light of the Bureau's contention that Petitioner performed an inspection on the motorcycle that was seriously deficient and paid little heed to the required safety inspection procedures. The information Petitioner recorded on the MV- 480 portrays the inspection as properly and entirely completed. Therefore, the Bureau submits that it can be reasonable inferred that Petitioner fraudulently recorded information on the MY -480, given the extent of the false information entered on the MY -480, the kind of information that was falsely recorded, .. and the deficiency of the safety inspection. Petitioner falsely indicated that essential aspects of the motorcycle safety inspection were properly performed, when there is ". 13 J -il,~__e~ .L ~ ~. ~ ~" '.""'f~~ ~~.. _.._ ' ,'~. :, _ ,-:-, I ",L J 1.1 < ,~ ~ 'r J >i--..:. "~~: . . - ,-,- substantial evidence that they were not. This is not a case where a mechanic inadvertently recorded erroneous or inaccurate information. .. CONCLUSION In light of the Court's Findings of Fact and substantial evidence of record, the Court should affIrm the one-year consecutive suspensions imposed on Petitioner's certifIcate of authorization to safety inspect motor vehicles, as a result of the violations of furnishing a certifIcate of inspection without performing an inspection and fraudulent record-keeping. OJ ~-'-. . 14 ~, - ."'."" ~b_ " I j I! I " C ~ ',.'0 L liri\.G,\: . , . ., COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TR..i\KFIC LAW DIVISION BY: ELAINE N. BLASS ASSISTANT COUNSEL ATTORNEY IDENTIFICATION NO. 43097 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-28~0 CHARLES C. SUDERS, IN THE COURT OF COMMON PLEAS Petitioner OF CUMBERLAND COUNTY vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent No. 01-3095 CIVIL TERM PROOF OF SERVICE I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing corrected Respondent's Brief In Support of Petitioner's Safety Inspection Violations upon the person and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: --. 15 - ~ ~" .. " .~ Date: July 24, 2001 --. _~...."". ,I' , '"" I,. H. Anthony Adams, Esquire Attorney for Petitioner 128 East King Street Shippensburg,PA 17257 (717) 532"3270 ~l1.~ Elaine N. Blass, Attorney for Respondent 16 j,' ~ J (~. _' ;:-':.'~ _,' .J, ~"'~. ~'."..rl'mm." ., ---~~> - _1,_ '--I _' "1 ~".m'i~~,loll_~;:: ___en, ". -'X', JUt 27'1001'" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OR TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: ELAINE N. BLASS' ASSISTANT.,COUNSEL ATTORNEY IDENTIFICATION NO. 43097 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 CHARLES C. SUDERS, " IN THE COURT OF COMMON PLEAS Petitioner OF CUMBERLAND COUNTY vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent No. 01-3095 CIVIL TERM RESPONDENT'S BRIEF IN SUPPORT OF PETITIONER'S SAFETY INSPECTION VIOLATIONS STATEMENT OF THE CASE By an official notice, dated Apri120, 2001, the Department of Transportation, Bureau of Motor Vehicles (Bureau), suspended Petitioner's certification as an official safety inspection mechanic, pursuant to 75 Pa. C.S. 94726(b i, for violations of furnishing I 75 Pa.C.S. !l4726(b) Supervision and suspension provides in pertinent part: "The department shall supervise mechanics certifie~ under this section and may suspend the certification issued to a mechanic if it finds that the mechanic has improperly conducted inspections or has violated or failed to comply with any of the provisions of this chapter or regulations adopted by the department." 1 -~~ "~- ~ -~~ ",' ~__I~ " , .~ -'..'"i:'""(\t '"'~~",~", a certificate of inspection to a 1985 Honda motor cycle (Sticker No: AOO-0272803) without an inspection, 75 Pa.C.S.~ 4730(a),z and fraudulent record-keeping,67 Pa. Code ~ 1 75.42(al The Bureau imposed a total suspension of two years: a one-year suspension for a first violation of furnishing the certificate of inspection without an inspection and a one-year suspension for a first violation of fraudulent record-keeping. The notice stated that the fraudulent record-keeping violation included the lesser included offenses of improper and careless record-keeping. '- Petitioner filed a timely statutory appeal on May 22, 2001. A de novo hearing was held on July 6, 2001. The Petitioner testified on his own behalf. The Bureau presented the testimony of Trooper Ronald Taylor, Ms. Darla Meckley, the owner of the vehicle, and Mr. Gary A. Viertz, the certified inspection mechanic, who re-inspected the vehicle. The Bureau offered into evidence a packet of documents certified by the Secretary . of Transportation and attested to by the Director of the Bureau of Motor Vehicles. The packet included: the above-noted notice of suspension; a Review of Eligibility For Assessment of Points to Naugle Motors, Inc.; the notice informing the Petitioner of the Departmental hearing; and the Bureau of Motor Vehicle's record of Petitioner's violations. The Bureau offered into evidence as separate Exhibits a copy of the Motorcycle Inspection Record, FormMV-480, for the motor cycle safety inspection at issue; a copy ofa Work Order from Naugle Motors, Inc.; and copies of the M & S Cycle Work Order and M & S Cycle record of safety inspection information. The Bureau offered into evidence the original Certificate of Safety Inspection, which was affixed to the motorcycle. 2 75 Pa.C.S.~ 4730(a) provides: "No person shall (2) display or cause to be displayed on any vehicle or mass transit vehicle or have in possession any certificate of inspection knowing the same to be fictitious or stolen or issued for another vehicle or issued without an inspection having been made." 3 67 Pa. Code ~175.42(a) Fraudulent recording provides: "Fraudulent recording ofan inspection report sheet will - ~h _ _ be considered cause for suspension of inspection privileges." 2 . ~,-- " --I, 1 "'" , I "" '.....I~~~ " By an Order, dated July 6, 200 I, the Court made the following Findings of Fact: (I) Petitioner did not properly perform the inspection of the subject motor vehicle in that Petitioner failed to road test it, to use any tool to measure the brakes, and to pull the vehicle into the garage to check the headlights, (2) Petitioner intentionally indicated on the Form MY -480 that he road tested the motorcycle, while knowing that he did not. The Court directed the parties to file memoranda of law by July 23, 200 I, in support of their respective positions in light of the Findings of Fact. "" --'...~... ',. 3 """""'"'v J I.' I...., . ",-~ 1- I ~'''I~__'~ '"' ' .;.~ - ~"'~.lf'.!iOOJil:~. .' ARGUMENT I. Petitioner Violated 75 Pa.C.S. *4730(a) and 67 Pa Code * 175.45(2) By Furnishing A Certificate of Safety Inspection To A Motor Cycle, Where the Petitioner Omitted Essential Safety Inspection Components That Determine A Vehicle's Safe Operating Condition. The Bureau respectfully submits that the Court's Findings of Fact, together with testimony of the motorcycle owner and the Petitioner, indicate that the inspection Petitioner performed on the motorcycle omitted essential safety inspection components, which the inspection regulations mandate. These safety inspection components are essential to determine whether the motorcycle is in safe operating condition. The Bureau contends that the evidence of record shows Petitioner cut comers by inspecting the . motorcycle outside the authorized inspection area, by never moving the vehicle from where it was initially parked outside the garage to the authorized inspection area, and by not performing a road test. The Bureau further submits that there is substantial evidence to establish that Petitioner did not properly take the required brake and tire readings, did not properly test headlight aim and candlepower, and had no knowledge of how the motorcycle's systems functioned on the road. . --- - , Lacking these essential elements, Petitioner performed a seriously deficient . inspection, for which the issuance of a certificate of inspection was not warranted or ~-. 4 authorized, and thereby violated 67 Pa. Code ~ 175.41. The Bureau contends that the ., inspection Petitioner conducted was tantamount to not performing a valid motorcycle safety inspection. The Bureau submits that the Findings of Fact made by this Honorable Court support the Bureau's contention that Petitioner failed to perform the essential components of a required motorcycle inspection and that the inspection performed was seriously deficient. The Court has found that Petitioner did not properly perform the inspection of the motorcycle in that he failed to road test it, to use any tools to measure the brakes, and to pull it into the garage to check the headlights. Further, the Court found that Petitioner intentionally indicated on Form MV-480 that he road tested the motorcycle while knowing he did not. The regulations at 67 Pa. Code ~175.4I(a) provides: "Unauthorized display of certificate of inspection. No certificate of inspection or temporary inspection approval indicator may be marked or affixed to a vehicle unless the vehicle has successfully passed inspection , meeting the requirements of75 Pa.C.S. ~~101-9701(relating to Vehicle Code) and this chapter." Pursuant to Section 175.41(a), a certificate of inspection cannot be marked and affixed to a vehicle unless that vehicle has successfully passed inspection and met the requirements of the Vehicle Code. Section 175.41 (d)(1 )further provides that the --. 5 , ,~-"' "- ."~ '"" ..L " ~ . "~ ~.., '-MUl! '..wWQ: 2> certificate of inspection shall be affixed only after completion of the entire inspection ;: including the road test. Department of Transportation, Bureau of Drive Licensing v. May, 528 A.2d 708,710 (Pa. Cmwlth. 1987). .'.~. It is undisputed that, to the extent that an inspection was performed, it was conducted in a public area of the inspection station premises. According to the best recollection of Bureau counsel, the vehicle owner, Ms. Meckley, testified that she parked the vehicle on the outside premises of the station and left the engine running, because the vehicle had previously stalled. The owner testified that she watched the vehicle the entire time from inside the station. Ms. Meckley testified that the vehicle was never moved from where she parked it, and that two different persons from the station came out to the vehicle. One person removed the old sticker and applied a new sticker. The Bureau asserts that conducting a safety inspection in an authorized inspection area, where there is access to the use of required inspection tools and testing devices, and the performance of a road test are essentials components of every required motor vehicle inspection, pursuant to the inspection regulations at 67 Pa. Code, Chapter 175. The inspection regulations mandate these essential features of an inspection, whether the .. vehicle in question is a motorcycle, passenger vehicle, truck or other vehicle requiring a safety inspection. Section 175.25 (c) requires inspection of the vehicle in the authorized '-,....~.... 6 rl"~- ~~ ~, ~ j,.. I ~'. -' ,,+' "'0 inspection area.4 Section 175.26(a) requires that the inspection station be equipped with to proper tools, lighting, and testing equipment and therefore that the mechanic have " access to such tools and equipment. 5 Section 175.28(a) requires the performance of the road test, which permits monitoring of braking and steering systems, the odometer and , speedometer, and "other questionable operating behavior." 6 The Bureau submits that an inspection cannot be regarded as a safety inspection, when these essential components are omitted. Because of these omissions, the Bureau submits that Petitioner could not reasonably determine whether the motorcycle's various systems -brakes, suspension, steering, lighting, for example-met the specific requirements of the motorcycl~ inspection regulations at 67 Pa. Code ~175.141 et seq and thus were in safe operating condition. 4 67 Pa, Code 175.25(c) Inspection conducted in an inspection area: "An inspection shall be conducted entirely within the inspection area with the exception of the road test." 5 See 67 Pa. Code 175,26(a) General requirements provides: "An inspection station shall have tools and equipment in good operating condition sufficient to inspect each type of vehicle to be inspected. . .", to include a portable light, tread depth gauges, brake drum gauges, brake lining gauge, an approved headlight testing device, wrenches, screw drivers,c' " 6 67 Pa. Code ~175.28(a) provide; in pertinent part: "The mechanic signing the inspection sticker shall conduct and be responsible for the entire inspection of the vehicle including the road test, .." 67 Pa. Code 175, 160( d)(perform a road test and reject if one or more of the following apply, including vehicle incapable of stopping, malfunction of steering or braking mechanism, other questionable operating behavior, speedometer and odometer inop~rable, vehicle cannot be driven forward. See also 67 Pa. Code 175.42(b) which provides that the certified mechanic who performed the road test shall place his signature in the appropriate column on the inspection record. --. 7 -- ,.= - . l .... . , l'.."ihi.<7t; The evidence of record establishes that Petitioner did not use tools to gauge the ,. vehicle brake lining and tire tread readings. Without the use of tools, Petitioner cannot determine if the brakes linings and tire treads are at a proper depth for safety, in accordance with 67-.Pa. Code ~~175.60(b)(3f and 175.60(cl Brake readings and tire tread readings cannot be made by visual inspection and are not a matter of guesswork. Since Petitioner did not use required headlight testing equipment on the headlight, Petitioner could not determine if the motorcycle's headlight had proper candlepower and aim.9 Proper headlight candlepower and aim cannot be determined by visual inspection alone. Additionally, the requirement that the motorcycle inspection be conduct~d entirely in the inspection area permits the station owner or manager to exert proper supervision over the mechanic, while the inspection is being conducted.lO The Bureau's certified packet of documents at Document No.2 is the Review of Eligibility For Assessment of points for the station. The Review of Eligibility indicates that Petitioner's employer, Naugle Motors, Inc., was eligible for points in lieu of a suspension, since the Bureau 7 Section 175.60(b)(3). See 67 Pa. Code 175.160(b)(3)( requiring rejection if drums or rotors scored deeper than .015 inch; if bonded or riveted linings are less thim one-thirty-second of an inch; if inside of brake drum is greater than stated dianieter).' . . 8 67 Pa. Code 175.160(c)( inspect tires and reject if a tire has two adjacent treads with less than two thirty-second inch remaining at any point). 9 67 Pa. Code ~ 175.160(a)(6)(i) and (xi)(indicating standards for headlamp adjustment). 10 67 Pa. Code ~175.29(a)(6) requires that the inspection station owner assume full responsibility, with or without knowledge, for ev,ery inspection conducted by an employee of the station, every inspection conducted on the premises, every certificate of inspection issued by the inspection station, and a violation of the Vehie]e Code or regulations committed by an employee of the station. 8 '-~ "-, L ~ ~~J _ ,_ .-.1 l-~ ,I = -~~'l/fI1L\ll~lf\ determined that the station owner was present at the time of violation, but was not aware of the infraction. See 67 Pa. Code ~175.15l(b) (Department will permit station to " consent to assessment of points in lieu of suspension, if station owner or other management employee was without knowledge of the violation and should not have known of the violation.). Thus, the inspection of the motorcycle outside the inspection area here allowed the inspection to be conducted without proper managerial supervision. This case presents a unique pattern of facts, which has not previously been addressed by the Commonwealth's appellate Courts. Counsel for the Bureau could not discover a reported appellate decision, which addresses a violation of furnishing a certificate of inspection without an inspection, given the Findings of Fact made by the Court in the present case, and where there is substantial evidence that the inspection mechanic omitted essential items of inspection procedure-namely, the road test, use of required tools and testing equipment to gauge brakes, tires, and headlamps, and inspection in an authorized inspection area. The Bureau asserts, however, that taken together these omissions are serious deficiencies and violations of the inspection regulations. The Bureau submits that Petitioner can no more perform a valid safety inspection of the motorcycle in question without access to tools, testing, and supervision, outside the inspection area, and without a road test, than Petitioner could conduct a valid safety inspection in a retail parking lot. 9 ~~"--"<,. "~ " .L....<.~"".....I_ "~ 1 ~~ "I - ~" -J,;'""'. ~~t: M~~~~~/ ~; However, even though Petitioner failed to perfonn these essential required components, Petitioner issued a certificate of safety inspection to the motorcycle. The Bureau asserts that-Petitioner violated the Vehicle Code at 75 Pa.C.S.~ 4730(a)(2) and regulations at 67 Pa. Code ~ 175.45(2) by improperly furnishing a certificate of inspection without an inspection. The Bureau contends that the Bureau properly imposed a one-year suspension of Petitioner's certificate of authorization to safety inspect motor pursuant to 75 Pa.C.S.~ 4730(c) and 67 Pa.Code ~175.151(I)(ii). II. Petitioner Fraudulently Recorded On the F~nn MY -480 Inspection Infonnation For The Brake Linings, Tire Tread, Lights And the Road Test In Violation of75 Pa.C.S. ~4731 and Safety Inspection Regulations At 67 Pa Code ~175.51(2)(i). The Bureau submits that Petitioner fraudulently recorded infonnation on the Fonn MV -480 for four different required inspection procedures: brake readings, tire tread depth, the headlights, and the road test. The Bureau submits that Petitioner's recording of the infonnation as to the brake and tire readings was fraudulent, because there is no evidence to indicate that Petitioner properly took the required brake readings and tire readings. Petitioner did not use the required tools and gauges. Thus, if any brake and tire readings were in fact taken, theywere not conducted in compliance with the regulations. 10 ~ ~~"'"'~"~. ~~ .<. '" I __~" L ~ -_ol ~ , .~ ~ ~ -'J ~L"'",;\![~",.C Moreover, there is no affirmative evidence that Petitioner properly inspected the " headlamps, since he did not access headlamp testing equipment in the authorized inspection area. Yet, he placed a check mark on the MV-480 to indicate the vehicle's lights, wiring and switches were checked. Finally, it is undisputed that the road test was not performed and the Court so found. Therefore, the required inspection information for these above-noted procedures did not exist, yet Petitioner recorded inspection information relating to the brakes, tires, headlights and the road test. Therefore, the Bureau asserts that Petitioner intentionally and with a purpose to deceive recorded on the MV -480 inspection information that was factually false. Moreover, a discrepaJ;lcy exists between the brake readings Petitioner recorded an the MV-480 and on the Naugle Motors Work Order. On the MV-480, at Inspection No. 63 the left front brake reading for the motorcycle is recorded as 6/32. The right rear brake reading is recorded as 7/32. The MV -480 appears to have been signed by the Petitioner. 11 By comparison, the Work Order indicates the brakes as "FI 5/32 Rear 4/32." Additionally, the tire readings on the Form MV-480 appear to indicate 3/32. II 67 Pa. Code 175.42(b) provides that the certified mechanic who performed the entire inspection shall place his signature in the appropriate column of the Form MV-480 immediately following the inspection., unless the inspection information is transferred to the MV -480 by a person other than the mechanic. The MV-480 in question appears to have been signed by Petitioner. Cf Pa. R.E. 90 I (b)(2)(illustrating that a document may be authenticated or id,9ntified by non-expert opinion on handwriting based on familiarity not acquired for purposes of litigation). The Bureau invites the Court to compare the similarity of signature on the MV-480 with the Petitioner's signature, as verified in the Petition For Appeal. 11 --- -'-, """"'. I " . i ~~... I' j ... - - -c. ., 70" ,~--,.' __ ,_ A further discrepancy exists between the brake readings on the MY-480 and the Naugle Motors Work Order and the brake readings, that were recorded upon re inspection of the motorcycle. Trooper Ronald Taylor's testimony, as recollected by Bureau counsel, indicates that the 1rooper took the motorcycle for re-inspection to M& S Cycle on July 13, 2000, the day after Ms. Meckley contacted the Trooper. The testimony indicates that M & S Cycle is an authorized motorcycle inspection station. The motorcycle was inspected by Mr. Allan Viertz, who testified at the hearing. Mr. Viertz indicated that the M & S Cycle document, which accompanied the Work Order, indicates that the front and rear brakes each measure 5/32 and the front and rear tires measure 5/32. The Findings of Fact plade by Court support the Bureau's contention that Petitioner entered information on the MV -480, that Petitioner could not have obtained. The Court found that the Petitioner did not road test the vehicle and Petitioner intentionally indicated on the MY -480 that he performed the road test when he did not. The Court further found that Petitioner did not use any tool to measure the motorcycle's brakes. To the best recollection of Bureau counsel, Petitioner did not testifY that he took the tire tread readings, nor did the vehicle owner testifY that tire tread was measured, during the time that she observed the vehicle. Fraudulent record-keeping occurs when "the record-keeping entry [is] false, --.....~,~ 12 iiL'l" < ,.","-~"" ~,. '.1.'._11. ~ I ~ ,~"'".... .~ . -' " entered intentionally and with the purpose of deceiving." Department of Transportation v. Midas Muffler Shop, 529 A.2d 91,93 (Pa. Cmwlth. 1987). The Bureausubmits that there is substantial evidence that the entry of the brake and tire readings on the MV -480 was both intentional and false, as Petitioner recorded this information where no proper measurements of those readings were made by Petitioner; that Petitioner's indication that the road test was performed was, as found by the Court, done intentionally and with knowledge of falsity, i.e. that Petitioner indicated that he performed the road test knowing that he did not; and, further, that Petitioner indicated that the lights had been checked when, in fact, one of the main components of the motorcycle lighting system, the headlights, had not been properly tested. The Bureau further submits that the intent to deceive may be found here, in light of the Bureau's contention that Petitioner performed an inspection on the motorcycle that was seriously deficient and paid little heed to the required safety inspection procedures. The information Petitioner recorded onthe MV- 480 portrays the inspection as properly and entirely completed. Therefore, the Bureau submits that it can be reasonable inferred that Petitioner fraudulently recorded information on the MV-480, given the extent of the false information entered on the MV -480, the kind of information that was falsely recorded, and the deficiency of the safety inspection. Petitioner falsely indicated that essential aspects of the motorcycle safety inspection were properly performed, when there is --'....~ 13 iiti' , J~~,;, .' "'" ~ """""""''' " ~. ~ "" ^ ~ ~ ~ ~ ,~ L ,I , ,I .1 .'.F substantial evidence that they were not. This is not a case where a mechanic inadvertently recorded erroneous or inaccurate information. ",; CONCLUSION In light of the Court's Findings of Fact and substantial evidence of record, the Court should affIrm the one-year consecutive suspensions imposed on Petitioner's certificate of authorization to safety inspect motor vehicles, as a result of the violations of furnishing a certificate of inspection without performing an inspection and fraudulent record-keeping. !! ~-. 14 '~..' ~ ~-~-~-, I,:",' I , : I I,:_~ .' ,',., Ji2, . , .' COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DNISION -'~'! BY: ELAINE N. BLASS ASSISTANT COUNSEL ATTORNEY IDENTIFICATION NO. 43097 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 CHARLES C. SUDERS, IN THE COURT OF COMMON PLEAS Petitioner OF CUMBERLAND COUNTY vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent No. 01-3095 CIVIL TERM PROOF OF SERVICE I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing corrected Respondent's Brief In Support of Petitioner's Safety Inspection Violations upon the person and in the manner indicated below, which service satisfies the . requirements of Pa.R.A.P. 121: . First Class Mail; Postage Pre-Paid; Addressed as Follows: '- 15 :~ :'-:-:''''~- ._-~-~,._~" . . .-- Date: July 24, 2001 ." .- ~'''''''::''''''~ -'- " ~ l_ '. H. Anthony Adams, Esquire Attorney for Petitioner 128 East King Street Shippensburg,PA 17257 (717) 532-3270 ~. ;3euo Elaine N. Blass, Attorney for Respondent 16 f _I_~ ,.i .-~_ _I --t4iR!!!.Ci '- ,:a - 1:.liIfijj~~- .... ~ "~ ~~ '-j' , - ,.-- ,j I , ,--~ ~ ~'=, ";""",,"-'~ I_~- . f , " " ...~ Jut2;J200' COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEIDCLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER 1101 SOUTH FRONT STREET, 3RD FLOOR HARRISBURG, PENNSYLVANIA 17104 Telephone: (717) 787-2830 Telefax: (717) 705-1122 July 23,2001 The Honorable Edward E. Guido Court of Common Pleas of Cumberland County Cumberland County Courthouse I Courthouse Square Carlisle,PA 17013-3387 Re: Statutory Appeal of Charles C. Suders v. Department of Transportation, Bureau of Motor Vehicles, No. 01-3095 Civil Term Dear Judge Guido, The Department of Transportation, Bureau of Motor Vehicle's Brief in the above-noted matter is enclosed for your consideration. Thank you. Sincerely, ~JL~ Elaine N. Blass, Esq. Assistant Counsel Motor Vehicle Section ~ ,...~."""~ - , ~ " ,Ill'. , ' [.- , t-.! ,,," -,J' '-j --,-~"..",."L"'--Itr:- <I I." JUL 2'12001 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHJIEF COUNSEL VEIDCLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER 1101 SOUTH FRONT STREET, 3RD FLOOR HARRISBURG, PENNSYL VANIA 17104 Telephone: (717) 787-2830 Telefax: (717) 705-1122 July 23, 2001 The Honorable Edward E. Guido Court of Common Pleas of Cumberland County Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013-3387 By Facsimile: (717)-240-6462 Re: Statutory Appeal of Charles C. Suders v. Department of Transportation, Bureau of Motor Vehicles, No. 01-3095 Civil Term Dear Judge Guido, This afternoon, I spoke with your staff assistant and indicated that, through my own oversight, I had erroneously read your briefing Order, dated July 6,2001, as requiring that the parties' briefs be submitted as of July 23, 2001. To the contrary, on receiving this afternoon the brief of Petitioner's Counsel and reviewing the Order, I realized that the filing ofthe briefs was required by July 23,2001. I apologize for this oversight of a deadline clearly stated in your Order. I requested permission to send the brief today by facsimile to your chamber to show timely submittal, with the original brief to follow by mail. Your staff assistant indicated that the brief could be sent today by facsimile. I have also spoken this afternoon to Mr. Anthony Adams to indicate that I will also sent to him this afternoon the briefby facsimile. Thank you for this allowance. -- H ' '" . ' . Cc: H. Anthony Adams, Esquire , 1 Sincerely, ~400 Elaine N. Blass, Esq. Assistant Counsel Motor Vehicle Section ~ I, ." ; ~ " ,",- ",~,," ' , "'" --lid:~;J; ~1Wiillifu,_MilM!l!I1!;d;,jbli>li.~kHMt!~'c\!;i!"'i"'ilB'I*U,_,,,,...\fbiW\~h"'*'~U~";h"j;c;,~."w-lii!~,lliifrMlf:.!1;>;W<;i;:~""lli&dI"'~ ,.......iiI:~g;~"-'-'~ : ji ~, <::_5 () c-- )tT K ,."""~_""'_"_~=r_~'_,"""",, ~~_ ~_'" __ ~_~,A~ ..~_p~", ,~_~ __"~ "s"""~, ,,,,,"__~^'~'\,,,,,,? ~'-'~,,,,~,",-,~-,,,.",~, ,,, ,~_ ,>l_"^ H,O" ,,'~, .~~^ illf" ~~ !,--lIiiii:ial;u irt.. ",' 'i .' '. II> . _.. , :..... . ~-=., -~ - -"',,. -" ~ .'"--Cr,"-' -,:=-,.' I ~,,; -' _L - ,-, ,--" '(:.;:,-;;~'';~~ ,~ ,0;,,;,,1- ,1-\, >.. '"". __ "" '>' -; \- -;_~_,";~~'-~~__;6:.':;'::i,-;-j;;;,~-_,,~ '-; ; '>-,-;;,c,,~-"'r, ,r' , , l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY - PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ; NO. 0/- 8MS CWu -r..u.-- VS. : CIVIL ACTlON CHARLES C. SUDERS, PETmONER PETITION FOR APPEAL Now comes the Petitioner, Charles C. Suders, by and through his Attorney, H. Anthony Adams, and sets forth the following. 1. Petitioner is Charles C. Suders, an adult individual, with an address of 750 Baltimore Road, Shippensburg, Cumberland County, Pennsylvania. 2. Respondent is the Commonwealth of Pennsylvania Department of Transportation, doing business in Harrisburg, Pennsylvania. 3. On or about April 20, 2001 the Commonwealth of Pennsylvania suspended the certificate of appointment as an official safety inspection mechanic which had previously been issued to Petitioner. 4. The suspension was given as a result of a finding of the alleged furnishing of a certificate of inspection without actual inspection to for 1985 Honda Motorcycle, fraudulent record keeping, improper record keeping and careless record keeping. ~' -__L-.,' '_-,_, "~',-, - '".c~ ",'. " 0-'_'" ,-l;,_j,_,_-_,'--~L-~-'_.' -,~, I__,f_" 'k" --,,~;-l A~-I_,_ ,-,-' I~~";"! ,'",''' .,;;:-_;_ ;.;;,<';"';ii",,";-:~,- '- ""'j';!;l I ; ""' \ 5. The suspension is not warranted in as much as, the findings of fraudulent record keeping and faulty inspection are not supported by the evidence and the motorcycle was inspected although not within the garage enclosed area. 6. The Petitioner has lost and will continue to lose customers, money and goods will as a result of the actions of the Commonwealth of Pennsylvania and requests that the Court stay the suspension pending a hearing. Wherefore, Petitioner prays your Honorable Court dismiss the action against him and issue a stay pending a hearing. Respectfully submitted, \~- H~Anthony dams, Esquire Attorney for Petitioner 128 E. King Street Shippensburg, PA 17257 (717)-532-3270 ,,- "'- "-li_,~_1 o""-"'-~'","",----"" '-'-"1_-''__0 "._'.'U,,~;;.'''' --,',"~""" ",'-~;,~io-",,"-~~_,_ -L ,; --"~Jii;~, ...... .. I verify that the statements made in this Petition are true and correct. I understand that false statements herein are made subject to the penalties of Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date:S/'f5{O( ~~ Charles C. Suders .~....'. "iiii.&~il~~"~ ~ii.>..' Co - ~j'~' ~~". ~__ ',.;,!,<~,;"J)JL-J,;)J~J( ,tI. '1:." .~~~-I~~-"-L-,1".'" ~-- ~-,---- ~< -,.-^ ,,- -, ~~ II ~_,,~~,f_',",,'.w', "",,_~_, C." .w.>,,, " ~ . I lanNJ..,~~""". . ."." . (J ~~ ~~ - -- ~C> l, . ",J"" " fl! 1- -.so,. is. ~ t . vt. ~g~ f 0- ~ 't " 0__0 . <- . '- () .--', c= ;;:""" ~ -0 c n1 , " " z :z: ! ""0 en h:, -< ~ .. > c- L.. () 'C;::' I.D " -"" c: , ....::., '0 ~T-o -) _'-.1 -, CJ -<( " ,-" - ".^ --" - ,-- -"'''-''-''.--~!';''1 '" _r [, . ,,-,..1-;- ,,";.". '<_ - ,,-i-,_, ".-.h"-"-i"~--', '---', ~i>"l' ,;I",,-,_,,~_,,~___ c- ,,~ "Cn",---~ '"c ;7_-;.-'""'":.';~-;'~r';.-'_B:",,,,---;, ,", ...L -~ ~-,,, j .;::i ".. MAY 2 4 2fJ01 tfJ , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY - PENNSYLVANIA COMMONWEALTH OF, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ; NO. bl - J09:S Cw~lY~ VS. : CIVIL ACTION CHARLES C. SUDERS, PETITIONER ORDER OF COURT AND NOW, this..3/ ~y of /nAY, 2001, after consideration of the facts set forth in the attached Petition and upon the motion of H. Anthony Adams, Attorney for Petitioner, a hearing is scheduled for the~ day of \.J',., ,,, , 2001, at/a :.aOo'c!ock A-m., in Courtroom Number L, of the - ". County Courthouse, t;;llil 1il1!11!1i'1~!J, Pennsylvania. ~'Mb,,-,,\c-O l.A.A,';)JoE.. rtM>- He. By the C ~\,D \ ~ \~ ". ,~ , ,-~ ~,-- ,-,. ,-J-_,_ ~.'C ,__~< .' ~, .'._-",,- . .~ -- ~ -. I ," , ,~ -""":~J'I!1!~: "C:' ,~-,~"-"'~/., . . ' "~"," '"~ -~,---",--,-,-,,,,-. ,._ I ".~,_ ,..m' Ci ~ 1 " ',' ":\ 1'1- r~ -; ;" ~'- ;' :S~1,'~~r---:-__7_~-r:'~_~'''_-~~~' '!Jil _;_,.JI{llI_~~'" 'nTI' fJI >3 ,,"""-',.., ,--, ~ ~, , r,. ~""'- . '~~~........ , 1-- ;',,1 "~. . "' , ~ ~.. ~~:~illIiiIMllllru,~, '4!_! " COPY . JUt 2752000 COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: ELAINE N. BLASS ASSISTANT€OUNSEL ATTORNEY IDENTIFICATION NO. 43097 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 CHARLES C. SUDERS, < } IN THE COURT OF COMMON PLEAS Petitioner } OF CUMBERLAND COUNTY vs. } COMMONWEALTH OF PENNSYL VANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Respondent } No. 01-3095 CIVIL TERM RESPONDENT'S BRIEF IN SUPPORT OF PETITIONER'S SAFETY INSPECTION VIOLATIONS STATEMENT OF THE.CASE By an official notice, dated April 20, 2001, the Department of Transportation, Bureau of Motor Vehicles (Bureau), suspended Petitioner's certification as an official safety inspection mechanic, pursuant to 75 Pa.C.S. 94726(b)l, for violations of furnishing 1 75 Pa.C.S. 94726(b) Supervision and suspension provides in pertinent part: "The department shall supervise mechanics certified under this section and may suspend the certification issued to a mechanic if it finds that the mechanic has improperly conducted inspections or has violated or failed to comply with any of the provisions of this .~~. chapter or regulations adopted by the department." 1 :),f::iiili iI. ~., ':".,...~~ .'- .' " I" "D!!V . . " a certificate of inspection to a 1985 Honda motor cycle (Sticker No: AOO-0272803) without an inspection, 75 Pa.C.S.9 4730(a),z and fraudulent record-keeping,67 Pa. Code 9175.42(ai. The Bureau imposed a totalsuspension of two years: a one-year suspension for a first violation of furnishing the certificate of inspection without an inspection and a one-year suspension for a first violation of fraudulent record-keeping. The notice stated that the fraudulent recd-keeping violation included the lesser included offenses of improper and careless record-keeping. ., Petitioner filed a timely statutory appeal on May 22, 2001. A de novo hearing was held on July 6, 2001. The Petitioner testified on his own behalf. The Bureau presented the testimony of Trooper Ronald Taylor, Ms. Daria Meckley, the owner of the vehicle, and Mr. Gary A. Viertz, the certified inspection mechanic, who re-inspected the vehicle. The Bureau offered into evidence a packet of documents certified by the Secretary of Transportation and attested to by the Director of the Bureau of Motor Vehicles. The packet included: the above-noted notice of suspension; a Review of Eligibility For Assessment of Points to Naugle Motors, Inc.; the notice informing the Petitioner of the Departmental hearing; and the Bureau of Motor Vehicles record of Petitioner's violations. The Bureau offered into evidence as separate Exhibits a copy of the Motorcycle Inspection Record, Form MV-480, the record of the motor cycle safety inspection at issue; a copyofa Work Order from Naugle Motors; and a copies of the M & S Cycle Work Order and M & S Cycle record of safety inspection information. The Bureau offered into evidence the original Certificate of Safety Inspection, which was affixed to the motorcycle. 2 75 Pa.C.S.~ 4730(a) provides: "No person shall (2) display or cause to be displayed on any vehicle or mass transit vehicle or have in possession any certificate of inspection knowing the same to be fictitious or stolen or issued for another vehicle or issued without an inspection having been made." 3 67 Pa. Code ~ l75.42(a) Fraudulent recording provides: "Fraudulent recording of an inspection report sheet will ~"'-be considered cause for suspension of inspection privileges." 2 .< . " - ~~: ~u~,_u". u~ ,L.., "_ ~i_ ~ . .' . ~ I I ' " .1 , ; .1 ,~. ~~,: '. " By an Order, dated July 6, 2001, the Court made the following Findings of Fact: (1) Petitioner did not properly perfonn the inspection of the subject motor vehicle in that Petitioner failed to road test it, to use any tool to measure the brakes, and to pull the vehicle into the garage to check the headlights, (2) Petitioner intentionally indicated on the F onn MY -480 that he road tested the motorcycle, while knowing that he did not. The Court directed the parties to file memoranda oflaw by July 23,2001, in support of their respective positions in light of the Findings of Fact. --~ ---*~.~. 3 J" ~~ lliIl.iIJJ. ~ " " ." _~~~J__. _.~ ! - I ": ' '."': .,' nitiilL'_; " .' ARGUMENT 1. Petitioner Violated 75 Pa.C.S. ~4730(a) and 67 Pa Code ~ I 75.45(2)By Furnishing A Certificate of Safety Inspection To A Motor Cycle, Where the Petitioner Omitted Essential Safety Inspection Components That Determine A Vehicle's Safe Operating Condition. The Bureau respectfully submits that the Court's Findings of Fact together with testimony of the motorcycle owner and the Petitioner, indicate that the inspection Petitioner performed on the motorcycle omitted essential safety inspection components, which the inspection regulations. These components are essential to determine whether the motorcycle is in safe operating condition. The Bureau contends that the evidence of record shows Petitioner cut comers by inspecting the motorcycle outside the authorized inspection area, by never moving the vehicle from where it was initially parked outside the garage to the authorized inspection area, and by not performing a road test. The Bureau submits that there is substantial evidence to establish that Petitioner did not properly take the required brake and tire readings, did not properly test headlight aim and candlepower, and had no knowledge of how the motorcycle's systems functioned on the road. Lacking these essential elements, Petitioner performed a seriously deficient inspection, for which the issuance of a certificate of inspection was not warranted or ~. -,""" 4 ~ -, ......" iL& '1 .J" , ,-I ~ ~- ~ ~"'... '. ~*1!.:'" authorized and violated 67 Pa. Code ~ 175 AI. 4 The Bureau contends that the inspection " Petitioner conducted was tantamount to not performing a valid motorcycle safety inspection. The Bureau submits that the Findings of Fact made by this Honorable Court support the Bureau's contention that Petitioner failed to perform the essential components of a required motorcycle inspection and that the inspection performed was seriously deficient. The Court has found that Petitioner did not properly perform the inspection of , the motorcycle in that he failed to road test it, to use any tools to measure the brakes, and to pull it into the garage to check the headlights. Further, the Court found that Petitioner intentionally indicated on Form MV-480 that he road tested the motorc~cle while knowing he did not. The regulations at 67 Pa. Code ~175Al(a) provides: "Unauthorized display of certificate of inspection, No certificate of inspection or temporary inspection approval indicator may be marked or affixed to a vehicle unless the vehicle has successfully passed inspection, meeting the requirements of 75 Pa.C.S. ~ ~ 1 0 1-970 1 (relating to Vehicle Code) and this chapter." Pursuant to Section 175Al(a), a certificate of inspection cannot be marked and affixed to a vehicleuniessthat vehicle has successfully passed inspection and metthe 4 67 Pa. Code S 175.41 (a) provides: "Unauthorized display of certificate of inspection. No certificate of inspection or temporary inspection approval indicator may be marked or afflxed to a vehicle unless the vehicle has successfully .--..passed inspection, meeting the requirements of75 Pa.C.S.s SIOI-9701(relating to Vehicle Code) and this chapter." 5 c, . ~~ ~" , _ ~, L_I',~ " L~ , , L I.. _c. >"1"'-""1(: requirements of the Vehicle Code. Section 175.41 (d)(1)further provides that the .; certificate of inspection shall be affixed only after completion of the entire inspection including the road test. Department of Transportation, Bureau of Drive Licensing v. May, 528 A.2d 708,710 {Pa. Cmwlth. 1987). It is undisputed that, to the extent that an inspection was performed, the inspection was conducted in a public area of the inspection station premises. . According to the best recollection of Bureau counsel, the vehicle owner, Ms. Meckley testified that she parked the vehicle on the outside premises of the station and left the engine running, because the vehicle had previously stalled. The owner testified that she was watched the vehicle the entire time from inside the station. Ms. Meckley testified that the vehicle was never moved from where she parked it, and that two different persons from the station came out to the vehicle. One person removed the old sticker and applied a new sticker. The Bureau asserts that conducting a safety inspection in an authorized inspection area, where there is access to the use of required inspection tools and testing devices, and performance of a road test are essentials components of every required motor vehicle inspection, pursuant to the inspection regulations at 67 Pa. Code, Chapter 175. The .inspection regulations mandate these essential features of an inspection whether the vehicle in question is a motorcycle, passenger vehicle, truck or other vehicle requiring a ~-j 6 Yllillii/'~. "<0 . ~ " - .1 [. , -~[,- , L ..'."""-...":1:\-:< safety inspection. Section 175.25 (c) requires inspection of the vehicle in the authorized inspection area.s Section l75.26(a) requires that the inspection station be equipped with ., to proper tools, lighting and testing equipment and therefore that the mechanic have access to such tools-and equipment. 6 Section l75.28(a) requires the performance of the road test, which permits monitoring of braking and steering systems, the odometer and speedometer, and "other questionable operating behavior." 7 The Bureau submits that an inspection cannot be regarded as a safety inspection, when these essential components are omitted. Because of these omissions, the Bureau submits that Petitioner could not reasonably determine whether the motorcycle's various systems -brakes, suspension, steering, lighting, for example-met the specific requirements motorcycle inspection regulations at 67 Pa. Code ~ 175.141 et seq and were in safe operating condition. 567 Pa. Code I 75.25(c) Inspection conducted in an inspection area: "An inspection shall be conducted entirely within the inspection area with the exception of the road test." 6 See 67 Pa. Code 175.26(a) General requirements provides: "An inspection station shall have tools and equipment in good operating condition sufficient to inspect each type of vehicle to be inspected. . .", to include a portable light, tread depth gauges, brake drum gauges, brake lining gauge, an approved headlight testing device, wrenches, screw drivers. 7 67 Pa. Code ~ 175.28(a) provides in pertinent part: "The mechanic signing the inspection sticker shall conduct and be responsible for the entire inspection of the vehicle including the road test. .." 67 Pa. Code 175 .160( d) (perform a road test and reject if one or more of the following apply, including vehicle incapable of stopping, malfunction of steering or braking .mechanism, other questionable operating behavior, speedometer and odometer inoperable,:vehicIe cannot be driven forward. See also 67 Pa. Code 175.42(b) which provides that the certified mechanic who performed the road test shall place his signature in the appropriate column on the .-......_ .inspection record. 7 -:&till ~-,. ~ ~~-~ - ,"-- " - , , I I" _ _ ~ "ri_ti>: The evidence of record establishes that Petitioner did not use tools to gauge the 0'; vehicle brake and tire readings. Without the use of tools, Petitioner cannot determine if the brakes and tires are at a proper depth for safety, in accordance with 67 Pa. Code ~~175.60(b)(3)8 and l75.60(ct Brake readings and tire depth readings cannot be made by visual inspection and are not a matter of guesswork. Since Petitioner did not use required headlight testing equipment on the headlight, Petitioner could not determine if headlight have proper candlepower and aim. 10 Proper headlight candlepower and aim cannot be determined by visual inspection alone. Additionally, the requirement that the motorcycle inspection be conducted entirely inthe inspection area permits the station owner or manager to exert proper supervision over the mechanic while the inspection being conducted.l! The Bureau's certified packet of documents at No.2 is the Review of Eligibility For Assessment of points for the station. The Review of Eligibility indicates that Petitioner's employer, Naugle Motors Inc., was eligible for points in lieu of a suspension, since the station owner was present at the time of violation, but was not aware of the infraction. See 67 Pa. Code ~ 175 .151 (b) 8 Section 175.60(b)(3). See 67 Pa. Code 175.160(b)(3)( requiring rejection if drums or rotors scored deeper than .015 inch; if bonded or rivete.d linings,.,-e less than one-thirty-secondof an inch; if inside of brake drum is greater than stated diameter). . 967 Pa. Code 175.160(c)( inspect tires and reject if a tire has two adjacent treads with less than two thirty-second ..inch remaining at any point). 10 67 Pa. Code ~175.160(a)(6)(i) and (xi)(indicating standards for headlamp adjustment). II 67 Pa. Code ~ 175.29(a)(6) requires that the inspection station owner assume full responsibility, with or without knowledge, for every inspection conducted by an employee of the station, every inspection conducted on the premises, every certificate of inspection issued by the inspection station, and a violation of the Vehicle Code or '..-"--regulations committed by an employee of the station. 8 . . "L".~, --'1'- " l' " :--: ,-".,,"~~~'~:~.~~ -"' ~!fj/ (Department will permit station to consent to assessment of points in lieu of suspension if station owner or other management employee was without knowledge of the violation and should not have known of the violation.). Thus, inspection of the motorcycle outside the inspection area here allowed the inspection to be conducted without proper managerial supervision. " This case presents a unique pattern of facts, which has not previously been addressed by Commonwealth's Courts. Counsel for the Bureau could not discover a reported appellate decision, which addresses a violation of furnishing a certificate of inspection without an inspection, given the Findings of Fact made by the Court in the present case, and where there is substantial evidence that the inspection mechanic omitted essential items of inspection procedure-namely, the road test, use of required tools and testing equipment to gauge brakes, tires, and headlamps, and inspection in an authorized inspection area. The Bureau asserts, however, that taken together these omissions are serious deficiencies and violations of the inspection regulations. The Bureau submits that Petitioner can no more perform a valid safety inspection of the motorcycle in question without access to tools, testing, and supervision, outside the inspection area, and without a road test, than Petiti()nercould conduct a valid safety inspection in a retail parking lot. 9 iiil&i.lllI!l ._l ..~" ~ .. ~::' -_:~_ ,i . ---,-" ~-..:" ,___'_, --. "..~"I ",I, '1" ,~- ~l": However, even though Petitioner failed to perform these essential required " components, Petitioner issued a certificate of safety inspection to the motorcycle. The Bureau asserts that Petitioner violated the Vehicle Code at 75 Pa.C.S.~ 4730(a)(2) and regulations at 67 Pa: Code ~ 175.45(2) by improperly furnishing a certificate of inspection without an inspection having been made. The Bureau contends that the Bureau properly imposed one-year suspension of Petitioner's certificate of authorization to safety inspect motor pursuant to 75 Pa.C.S.~ 4730(c) and 67 Pa. Code ~175.151(I)(ii). II. Petitioner Fraudulently Recorded On the Form MV-480 Inspection Information For The Brake Linings, Tire Depth, Lights And the Road Test In Violation of75 . Pa.C.S. ~4731 and Safety Inspection Regulations At 67 Pa Code ~ 175.51(2)(i). The Bureau submits that Petitioner fraudulently recorded information on the Form MV-480 for four different required inspection procedures: brake readings, tire tread depth, the headlights, and the road test. The Bureau submits that Petitioner's recording of the information was fraudulent, because there is no evidence to indicate that Petitioner properly took the required brake readings and tire readings. Petitioner did not use the required tools and gauges. Thus if any brake and tire readings were in fact taken they were not conducted in compliance with the regulations. Moreover, there is no affIrmative evidence that Petitioner properly inspected the headlamps, since he did not access -..~~ -', 10 '~- ~. ,. ~ "-::" .'-".~ - _ ,_ _ _ '~ . I: , ^' 1_, ~ 1 : -..LL.:~::~':~:':~>." ==- ";i-;;j! headlamp testing equipment in the authorized inspection area. Yet, he placed a check ~: mark on the MV-480 to indicate the vehicle's lights, wiring and switches were checked. Finally, it is undisputed that the road test was not performed and the Court so found. Therefore, the required inspection information for these above-noted procedures did not exist, yet Petitioner recorded inspection information relating to the brakes, tires, headlights and the road test. Therefore, the Bureau asserts that Petitioner intentionally and with a purpose to deceive recorded on the MV -480 inspection information that was factually false. Moreover, there is a discrepancy between the brake readings Petitioner recorded an the MV-480 and on the Work Order. On the MV-480, the left front brake reading for the motorcycle at Inspection No.63 is recorded as 6/32. The right rear brake reading is recorded as 7/32. The MV -480 appears to have been signed by the Petitioner. 12 By comparison, the Work Order indicates the brakes as "Fl 5/32 Rear 4/32." Additionally, the tire readings on the Form MV-480 appear to indicate 3/32. A further discrepancy exists between the brake readings on the MV -480 and the 12 67 Pa. Code 175.42(b) provides that the certified mechanic who performed the entire inspection shall place his .signature in the appropriate column of the Form MV-480 immediately following the inspection., unless the inspection information is transferred to the MY -480 by a person other than the mechanic. The MV -480 in question appears to have been signed by Petitioner. Cf Pa. R.E. 901(b)(2)(illustrating that a document may be authenticated or identified by non-expert opinion on handwriting based on familiarity not acquired for pwposes of litigation). The Bureau invites the Court to compare the similarity of signature on the MV-480 with the Petitioner's signature, as ..-....-verified in the Petition For Appeal. 11 BfG:. ~~~ '0 - ~- -: ~~ :~':' ~,--._".~," I" J ; 1 ~.','-'-"'~~="-",,--,,,,". _.-,-,,:.L:~ . ,I.. .'~" L'l~-_ Naugle Motors Work Order and the brake readings, that were recorded upon re inspection .. ofthe motorcycle. Trooper Ronald Taylor's testimony, as recollected by Bureau counsel, indicates that the Trooper took the motorcycle for re-inspection to M& S Cycle on July 13,2000, the day after Ms. Meckley contacted the Trooper. Testimony indicates that M & S Cycle is an authorized motorcycle inspection station. The motorcycle was inspected by Mr. Allan Viertz, who testified at the hearing. Mr. Viertz indicated that the M & S Cycle document that accompanied the Work Order indicates the front and rear brakes as each measuring 5/32 and the front and rear tires as 5/32. The Findings of Fact made by Court support the Bureau's contention that Petitioner entered information of the MV-380, that Petitioner could not have obtained. The Court found that the Petitioner did not road test the vehicle and Petitioner intentionally indicated on the MV -480 that he performed the road test when he did not. The Court has further found as a Fact that Petitioner did not use any tool to measure the motorcycle's brakes. To the best recollection of Bureau counsel, Petitioner did not testify that he took the tire depth readings nor the vehicle owner testify that tire tread depth was measured, while she observed the vehicle. Fraudulent record-keeping occurs when "the record-keeping entry [is] false, entered intentionally and with the purpose of deceiving." Department of Transportation v. .- 12 "n "' ~~ ._ - 1- j,' .1 l, '. ~ i~ 1 ,I .... ~~ .. Midas Muffler Shop, 529 A.2d 91,93 (Pa. Cmwlth. 1987). The Bureau submits that there is substantial evidence that the entry of the brake and tire readings on the MY -480 was both intentional and false, as Petitioner recorded this infonnation where no proper measurements of those readings were made by Petitioner; that Petitioner's indication that the road test was perfonned was, as found by the Court, done intentionally and with knowledge of falsity, i.e. that Petitioner indicated that he perfonned the road test knowing that he did not; and, further, that Petitioner indicated that the lights had been checked when, in fact, one of the main components of the motorcycle lighting system, the headlights, had not been properly tested. The Bureau further submits that the intent to deceive may be found here, in light of the Bureau's contention that Petitioner perfonned an inspection on the motorcycle that was seriously deficient and paid little heed to the. required safety inspection procedures. The infonnation Petitioner recorded on the MV- 480 portrays the inspection as properly and entirely completed. The Bureau submits that it can be reasonable inferred that Petitioner fraudulently recorded infonnation to record on the MV-480, given the extent of the false infonnation entered on the MY -480, the kind of infonnation that was falsely recorded and the. deficiency of the safety inspection. .. Petitioner falsely indicated that essential aspects of the motorcycle safety inspection were properly perfonned, when there is substantial evidence that they were not. This is not a case where a mechanic inadvertently recorded -. 13 .'J " L2"'_ " ~ "-~~ w ' ,.'",- , i I " ,~ ,.~. -d_ ~ ,- ..-~"", 1t)~'i: erroneous or inaccurate information. .; CONCLUSION In light of the substantial evidence of record and the Court's Findings of Fact, the Court should affirm the one-year consecutive suspensions imposed on Petitioner's certificate of authorization to safety inspect motor vehicles, as a result of the violations of furnishing a certificate of inspection without performing an inspection and fraudulent record-keeping. 14 CJ.."",- .h .'"''l--''' [, ' '~" .,' I" '~!ifdimk:C . COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: ELAINE N. BLASS ASSISTANT COUNSEL ATTORNEY IDENTIFICATION NO. 43097 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 J,UL zJ2001.s-~ CHARLES C. SUDERS, } IN THE COURT OF COMMON PLEAS Petitioner } OF CUMBERLAND COUNTY vs. } COMMONWEALTH OF PENNSYL VANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Respondent } No. 01-3095 CIVIL TERM RESPONDENT'S BRIEF IN SUPPORT OF PETITIONER'S SAFETY INSPECTION VIOLATIONS STATEMENT OF THRCASE By an official notice, dated April 20, 2001, the Department of Transportation, Bureau of Motor Vehicles (Bureau), suspended Petitioner's certification as an official safety inspection mechanic, pursuant to 75 Pa.C.S. S4726(b)l, for violations of furnishing 1 75 Pa.C.S. * 4 726(b) Supervision and suspension provides in pertinent part: "The department shall supervise mechanics certified under this section and may suspend the certification issued to a mechanic if it finds that the mechanic has improperly conducted inspections or has violated or failed to comply with any of the provisions of this chapter or regulations adopted by the department." 1 ~ " 1-,..;[ "' . ,c, ,-",.,.. ,-,' !-' ,>-"" .'.', ~ ,_, ","_-' 0,,: . a certificate of inspection to a 1985 Honda motor cycle (Sticker No: AOO-0272803) without an inspection, 75 Pa.C.S.~ 4730(a),2 and fraudulent record-keeping,67 Pa. Code ~175.42(al The Bureau imposed a total suspension of two years: a one-year suspension for a first violation of furnishing the certificate of inspection without an inspection and a one-year suspension for a first violation of fraudulent record-keeping. The notice stated that the fraudulent recd-keeping violation included the lesser included offenses of improper and careless record-keeping. Petitioner filed a timely statutory appeal on May 22, 2001. A de novo hearing was held on July 6,2001. The Petitioner testified on his own behalf. The Bureau presented the testimony of Trooper Ronald Taylor, Ms. Daria Meckley, the owner of the vehicle, and Mr. Gary A. Viertz, the certified inspection mechanic, who re-inspected the vehicle. The Bureau offered into evidence a packet of documents certified by the Secretary of Transportation and attested to by the Director of the Bureau of Motor Vehicles. The packet included: the above-noted notice of suspension; a Review of Eligibility For Assessment of Points to Naugle Motors, Inc.; the notice informing the Petitioner of the Departmental hearing; and the Bureau of Motor Vehicles record of Petitioner's violations. The Bureau offered into evidence as separate Exhibits a copy of the Motorcycle Inspection Record, Form MY -480, the record of the motor cycle safety inspection at issue; 'a copy ofa Work Order from Naugle Motors; and a copies of the M & S Cycle Work Order and M & S Cycle record of safety inspection information. The Bureau offered into evidence the original Certificate of Safety Inspection, which was affixed to the motorcycle. 2 75 Pa.C.S.~ 4730(a) provides: "No person shall (2) display or cause to be displayed on any vehicle or mass transit vehicle or have in possession any certificate of inspection knowing the same to be fictitious or stolen or issued for another vehicle or issued without an inspection having been made." 3 67 Pa. Code ~ 175.42(a) Fraudulent recording provides: "Fraudulent recording of an inspection report sheet will be considered cause for suspension of inspection privileges." 2 . I I I " ;: i.~" .',r "1'" ...~ ),i;:, By an Order, dated July 6, 2001, the Court made the following Findings of Fact: (1) Petitioner did not properly perform the inspection of the subject motor vehicle in that Petitioner failed to road test it, to use any tool to measure the brakes, and to pull the vehicle into the garage to check the headlights, (2) Petitioner intentionally indicated on the Form MY -480 that he road tested the motorcycle, while knowing that he did not. The Court directed the parties to file memoranda oflaw by July 23,2001, in support of their respective positions in light of the Findings of Fact. 3 ,~~ '''". -L'~'''"-,, i~> " ",.~;:" ARGUMENT 1. Petitioner Violated 75 Pa.C.S. ~4730(a) and 67 Pa Code ~ I 75.45(2)By Furnishing A Certificate of Safety Inspection To A Motor Cycle, Where the Petitioner Omitted Essential Safety Inspection Components That Determine A Vehicle's Safe Operating Condition. The Bureau respectfully submits that the Court's Findings of Fact together with testimony of the motorcycle owner and the Petitioner, indicate that the inspection Petitioner performed on the motorcycle omitted essential safety inspection components, which the inspection regulations. These components are essential to determine whether the motorcycle is in safe operating condition. The Bureau contends that the evidence of record shows Petitioner cut comers by inspecting the motorcycle outside the authorized inspection area, by never moving the vehicle from where it was initially parked outside the garage to the authorized inspection area, and by not performing a road test. The Bureau submits that there is substantial evidence to establish that Petitioner did not properly take the required brake and tire readings, did not properly test headlight aim and candlepower, and had no knowledge of how the motorcycle's systems functioned on the road. Lacking these essential elements, Petitioner performed a seriously deficient inspection, for which the issuance of a certificate of inspection was not warranted or 4 "" ,..,-, j ,~,I " -'.- '-, ~,"",,-,'. ;, 1,''- authorized and violated 67 Pa. Code S 175 AI. 4 The Bureau contends that the inspection Petitioner conducted was tantamount to not performing a valid motorcycle safety inspection. The Bureau submits that the Findings of Fact made by this Honorable Court support the Bureau's contention that Petitioner failed to perform the essential components of a required motorcycle inspection and that the inspection performed was seriously deficient. The Court has found that Petitioner did not properly perform the inspection of . the motorcycle in that he failed to road test it, to use any tools to measure the brakes, and to pull it into the garage to check the headlights. Further, the Court found that Petitioner intentionally indicated on Form MV-480 that he road tested the motorcycle while knowing he did not. The regulations at 67 Pa. Code s175Al(a) provides: "Unauthorized display of certificate of inspection. No certificate of inspection or temporary inspection approval indicator may be marked or affixed to a vehicle unless the vehicle has successfully passed inspection, meeting the requirements of75 Pa.C.S.s SlOl-9701(relating to Vehicle Code) and this chapter." Pursuant to Section 175AI(a), a certificate of inspection cannot be marked and affixed to a vehicle unless that vehicle has successfully passed inspection and met the 467 Pa. Code ~ 175.41(a) provides: "Unauthorized display of certificate of inspection. No certificate of inspection or temporary inspection approval indicator may he marked or affixed to a vehicle nnless the vehicle has successfully passed inspection, meeting the requirements of75 Pa.C.S.~ ~ IOl-9701(relating to Vehicle Code) and this chapter." 5 L~ ic J'~' ^ ;" '",,-^,'-'''-j c_ ,"~'it~ requirements of the Vehicle Code. Section 175.41 (d)( 1 )further provides that the certificate of inspection shall be affixed only after completion of the entire inspection including the road test. Department of Transportation, Bureau of Drive Licensing v. May, 528 A.2d 708,710 (Pa. Cmwlth. 1987). It is undisputed that, to the extent that an inspection was performed, the inspection was conducted in a public area of the inspection station premises. According to the best recollection of Bureau counsel, the vehicle owner, Ms. Meckley testified that she parked the vehicle on the outside premises of the station and left the engine running, because the vehicle had previously stalled. The owner testified that she was watched the vehicle the entire time from inside the station. Ms. Meckley testified that the vehicle was never moved from where she parked it, and that two different persons from the station came out to the vehicle. One person removed the old sticker and applied a new sticker. The Bureau asserts that conducting a safety inspection in an authorized inspection area, where there is access to the use of required inspection tools and testing devices, and performance of a road test are essentials components of every required motor vehicle inspection, pursuant to the inspection regulations at 67 Pa. Code, Chapter 175. The inspection regulations mandate these essential features of an inspection whether the vehicle in question is a motorcycle, passenger vehicle, truck or other vehicle requiring a 6 ~ ~~ , ,~. 1 ---' -(. ,~ -.~ 'm:'Ji;' safety inspection. Section 175.25 (c) requires inspection of the vehicle in the authorized inspection area.s Section l75.26(a) requires that the inspection station be equipped with to proper tools, lighting and testing equipment and therefore that the mechanic have access to such tools and equipment. 6 Section 1 75.28(a) requires the performance of the road test, which permits monitoring of braking and steering systems, the odometer and speedometer, and "other questionable operating behavior." 7 The Bureau submits that an inspection cannot be regarded as a safety inspection, when these essential components are omitted. Because of these omissions, the Bureau submits that Petitioner could not reasonably determine whether the motorcycle's various systems -brakes, suspension, steering, lighting, for example-met the specific requirements motorcycle inspection regulations at 67 Pa. Code S 175.141 et seq and were in safe operating condition. 567 Pa. Code 115.25(c) Inspection conducted in an inspection area: "An inspection shall be conducted entirely within the inspection area with the exception of the road test." 6 See 67 Pa. Code 175.26(a) General requirements provides: "An inspection station shall have tools and equipment in good operating condition sufficient to inspect each type of vehicle to be inspected. . .", to include a portable light, tread depth gauges, brake drum gauges, brake lining gauge, an approved headlight testing device, wrenches, screw drivers. 7 67 Pa. Code !i 175.28(a) provides in pertinent part: "The mechanic signing the inspection sticker shall conduct and be responsible for the entire inspection of the vehicle including the road test. .." 67 Pa. Code 175 .160( d)(perform a road test and reject if one or more of the following apply, including vehicle incapable of stopping, malfunction of steering or braking mechanism, other questionable operating behavior, speedometer and odometer inoperable, vehicle cannot be driven forward. See also 67 Pa. Code 175.42(b) which provides that the certified mechanic who performed the road test shall place his signature in the appropriate column on the inspection record. 7 ;",,1 -. ;" , ,---,'" ~i ",., ", 'w.: The evidence of record establishes that Petitioner did not use tools to gauge the vehicle brake and tire readings. Without the use of tools, Petitioner cannot determine if the brakes and tires are at a proper depth for safety, in accordance with 67 Pa. Code ggI75.60(b)(3)8 and 175.60(cl Brake readings and tire depth readings cannot be made by visual inspection and are not a matter of guesswork. Since Petitioner did not use required headlight testing equipment on the headlight, Petitioner could not determine if headlight have proper candlepower and aim.1O Proper headlight candlepower and aim cannot be determined by visual inspection alone. Additionally, the requirement that the motorcycle inspection be conducted entirely in the inspection area permits the station owner or manager to exert proper supervision over the mechanic while the inspection being conducted.Il The Bureau's certified packet of documents at No.2 is the Review of Eligibility For Assessment of points for the station. The Review of Eligibility indicates that Petitioner's employer, Naugle Motors Inc., was eligible for points in lieu of a suspension, since the station owner was present at the time of violation, but was not aware of the infraction. See 67 Pa. Code gI75.151(b) 8 Section 175.60(b)(3). See 67 Pa. Code 175.160(b)(3)( requiring rejection if drums or rotors scored deeper than .015 inch; ifbonded or riveted linings are less than one-thirty-second of an inch; if inside of brake drwn is greater than stated diameter). 967 Pa. Code 175.160(c)( inspect tires and reject if a tire has two adjacent treads with less than two thirty-second inch remaining at any point). 1067 Pa. Code ~175.160(a)(6)(i) and (xi)(indicating standards forheadlamp adjustment). 11 67 Pa. Code ~ 175.29(a)(6) requires that the inspection station owner assume full responsibility, with or without knowledge, for every inspection conducted by an employee of the station, every inspection conducted on the premises, every certificate of inspection issued by the inspection station, and a violation of the VehicIe Code or regulations committed by an employee of the station. 8 - ," L ~. ,~' I , ,- '~....,..o;~~; (Department will permit station to consent to assessment of points in lieu of suspension if station owner or other management employee was without knowledge of the violation and should not have known of the violation.). Thus, inspection of the motorcycle outside the inspection area here allowed the inspection to be conducted without proper managerial supervision. This case presents a unique pattern of facts, which has not previously been addressed by Commonwealth's Courts. Counsel for the Bureau could not discover a reported appellate decision, which addresses a violation of furnishing a certificate of inspection without an inspection, given the Findings of Fact made by the Court in the present case, and where there is substantial evidence that the inspection mechanic omitted essential items of inspection procedure-namely, the road test, use of required tools and testing equipment to gauge brakes, tires, and headlamps, and inspection in an authorized inspection area. The Bureau asserts, however, that taken together these omissions are serious deficiencies and violations of the inspection regulations. The Bureau submits that Petitioner can no more perform a valid safety inspection of the motorcycle in question without access to tools, testing, and supervision, outside the inspection area, and without a road test, than Petitioner could conduct a valid safety inspection in a retail parking lot. 9 "'.1 I "'~'_ ,. ,I -- '"';'}~{ However, even though Petitioner failed to perform these essential required components, Petitioner issued a certificate of safety inspection to the motorcycle. The Bureau asserts that Petitioner violated the Vehicle Code at 75 Pa.C.S.~ 4730(a)(2) and regulations at 67 Pa. Code ~ 175.45(2) by improperly furnishing a certificate of inspection without an inspection having been made. The Bureau contends that the Bureau properly imposed one-year suspension of Petitioner's certificate of authorization to safety inspect motor pursuantto 75 Pa.C.S.~ 4730(c) and 67 Pa. Code ~175.151(I)(ii). II. Petitioner Fraudulently Recorded On the Form MV-480 Inspection Information For The Brake Linings, Tire Depth, Lights And the Road Test In Violation of75 Pa.C.S. ~4731 and Safety Inspection Regulations At 67 Pa Code ~175.51(2)(i). The Bureau submits that Petitioner fraudulently recorded information on the Form MV-480 for four different required inspection procedures: brake readings, tire tread depth, the headlights, and the road test. The Bureau submits that Petitioner's recording of the infonnation was fraudulent, because there is no evidence to indicate that Petitioner properly took the required brake readings and tire readings. Petitioner did not use the required tools and gauges. Thus if any brake and tire readings were in fact taken they were not conducted in compliance with the regulations. Moreover, there is no affirmative evidence that Petitioner properly inspected the headlamps, since he did not access 10 1 ~ 1,1. ~_"-" '~c_,~,~, ,."tiM, headlamp testing equipment in the authorized inspection area. Yet, he placed a check mark on the MV-480 to indicate the vehicle's lights, wiring and switches were checked. Finally, it is undisputed that the road test was not performed and the Court so found. Therefore, the required inspection information for these above-noted procedures did not exist, yet Petitioner recorded inspection information relating to the brakes, tires, headlights and the road test. Therefore, the Bureau asserts that Petitioner intentionally and with a purpose to deceive recorded on the MV -480 inspection information that was factually false. Moreover, there is a discrepancy between the brake readings Petitioner recorded an the MV-480 and on the Work Order. On the MV-480, the left front brake reading for the motorcycle at Inspection No.63 is recorded as 6/32. The right rear brake reading is recorded as 7/32. The MV -480 appears to have been signed by the Petitioner. 12 By comparison, the Work Order indicates the brakes as "Fl 5/32 Rear 4/32." Additionally, the tire readings on the Form MV-480 appear to indicate 3/32. A further discrepancy exists between the brake readings on the MV -480 and the 1267 Pa. Code 175.42(b) provides that the certified mechanic who performed the entire inspection shall place his signature in the appropriate column of the Form MV -480 immediately following the inspection., unless the inspection information is transferred to the MV-480 by a person other than the mechanic. The MV -480 in question appears to have been signed by Petitioner. Cf Pa. R.E. 901(b )(2)(ilIustrating that a document may be authenticated or identified by non-expert opinion on handwriting based on familiarity not acquired for purposes of litigation). The Bureau invites the Court to compare the similarity of signature on the MV -480 with the Petitioner's signature, as verified in the Petition For Appeal. 11 . . ,.1,' I, . I ;,,, J I, _ ~ "~, . =" =- , ~ , . Naugle Motors Work Order and the brake readings, that were recorded upon re inspection of the motorcycle. Trooper Ronald Taylor's testimony, as recollected by Bureau counsel, indicates that the Trooper took the motorcycle for re-inspection to M& S Cycle on July 13,2000, the day after Ms. Meckley contacted the Trooper. Testimony indicates that M & S Cycle is an authorized motorcycle inspection station. The motorcycle was inspected by Mr. Allan Viertz, who testified at the hearing. Mr. Viertz indicated that the M & S Cycle document that accompanied the Work Order indicates the front and rear brakes as each measuring 5/32 and the front and rear tires as 5/32. The Findings of Fact made by Court support the Bureau's contention that Petitioner entered information of the MV-380, that Petitioner could not have obtained. The Court found that the Petitioner did not road test the vehicle and Petitioner intentionally indicated on the MV -480 that he performed the road test when he did not. The Court has further found as a Fact that Petitioner did not use any tool to measure the motorcycle's brakes. To the best recollection of Bureau counsel, Petitioner did not testify that he took the tire depth readings nor the vehicle owner testify that tire tread depth was measured, while she observed the vehicle. Fraudulent record-keeping occurs when "the record-keeping entry [is] false, entered intentionally and with the purpose of deceiving." Department of Transportation v. 12 I . , ..1' 1-,,1 '" . ,'~ . "L "-!mlfifl'rJj~',i , . Midas Muffier Shop, 529 A.2d 91,93 (Pa. Cmwlth. 1987). The Bureau submits that there is substantial evidence that the entry of the brake and tire readings on the MV-480 was both intentional and false, as Petitioner recorded this information where no proper measurements of those readings were made by Petitioner; that Petitioner's indication that the road test was performed was, as found by the Court, done intentionally and with knowledge of falsity, i.e. that Petitioner indicated that he performed the road test knowing that he did not; and, further, that Petitioner indicated that the lights had been checked when, in fact, one of the main components of the motorcycle lighting system, the headlights, had not been properly tested. The Bureau further submits that the intent to deceive may be found here, in light of the Bureau's contention that Petitioner performed an inspection on the motorcycle that was seriously deficient and paid little heed to the required safety inspection procedures. The information Petitioner recorded on the MY- 480 portrays the inspection as properly and entirely completed. The Bureau submits that it can be reasonable inferred that Petitioner fraudulently recorded information to record on the MY-480, given the extent of the false information entered on the MV -480, the kind of information that was falsely recorded and the deficiency of the safety inspection. Petitioner falsely indicated that essential aspects of the motorcycle safety inspection were properly performed, when there is substantial evidence that they were not. This is not a case where a mechanic inadvertently recorded 13 d I ,". , ' erroneous or inaccurate information. CONCLUSION In light of the substantial evidence of record and the Court's Findings of Fact, the Court should affIrm the one-year consecutive suspensions imposed on Petitioner's certificate of authorization to safety inspect motor vehicles, as a result of the violations of furnishing a certificate of inspection without performing an inspection and fraudulent record-keeping. 14 ,.-~ - *J~~~t_j ,1'. ' " I 1...,._",,",~ "~ , , J UL 2"S ,000 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: ELAINE N. BLASS ASSISTANT COUNSEL VEHICLE AND TRAFFIC LA W DIVISION ATTORNEY IDENTIFICATION NO. 43097 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 CHARLES C. SUDERS, Petitioner } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, PA vs. } COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, } BUREAU OF MOTOR VEHICLES, Respondent } No. 01-3095 Civil Term PROOF OF SERVICE I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Bureau's Brief In Support Of Petitioner's Safety Inspection Violations upon the person and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: H. Anthony Adams, Esquire Attorney for Petitioner . . j . . Date: July 23, 2001 "" , ~ , 128 East King Street Shippensburg, P A 17257 (717) 532-3270 ~Yl~ Elaine N. Blass, Attorney for Respondent i I I -. ,"~~, '~' , .' c .' , ;, 11 ~ ~ ~~ ~'~ -", - ~i' ,~, '; J. L :..LL" . ~, ~ 0 -, ",,,,,,,-- ~T>-flj'i'; JUt 232001''' . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY - PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, : NO. 01-3095 CIVIL TERM VS. : CIVIL ACTION CHARLES C. SUDERS, PETmONER BRIEF OF DEFENDANT The Defendant, Charles C. Suders was ordered by the Department of Transportation to serve two consecutive periods of suspension pursuant to Section 4726 of the Vehicle Code. One suspension was ordered for fraudulent record keeping. This suspension and order is not at issue. The second suspension was ordered for furnishing a certificate of inspection without performing an inspection. After hearing in this matter, Judge Edward Guido found that an inspection was in fact performed but it was faulty and not complete. An order including findings of fact was issued and is attached hereto. Question Presented: Can an inspection mechanic be found to have furnished a certificate of inspection if he in fact performs an inspection albeit an incomplete/faulty inspection? Argument: This case is controlled by and squarely on point with Commonwealth of Pennsylvania v. Altier, 557 A2 1167 (19889). Conclusion: The order finding violation of issuing a certificate of inspection without inspection should be reversed. cl~ H. Anthony Adams Attorney for Charles C. Suders _u - "'.Ji, l,_ -- i '-~"""(1!lIJali'k; . COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CHARLES C. SUDERS, Appellant NO. 01-3095 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of July, 2001, after hearing, we make the following findings of fact: 1. That Appellant did not properly perform the inspection of the subject motor vehicle in that he failed to road test it, to use any tool to measure the brakes, and to pull it into the garage to check the headlights. 2. We further find that he intentionally indicated on Form MV-480 that he road tested the motorcycle while knowing that he did not. The parties are directed to submit memoranda of law in support of their respective positions in light of the findings of fact in this case, Said memoranda to be filed by July 23, 2001. We will then issue an appropriate order. By the Court, Edward E. Guido, J. Elaine Blass, Esquire Attorney for Appellee Sheriff HillE COpy FROl'/1 RECORD In T ootlm.:my whereof, I here ur.tlJ Siiit my r.snd and the seal oi said ~ Cat1lskl, PI!. This ~~ ~ daY. ~ t"tJ1 10M" () 1../ '~rJl I I Prothonlltarf H. Anthony Adams, Esquire /Attorney for Appellant srs ~~-"" ~ . 557 A.2d 1167 (Cite as: 125 Pa.Cmwlth. 493, 557 A.2d 1167) Commonwealth Court of Pell11sylvania. COMMONWEALTH ofPell11sylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Joseph E. ALTIER, Sr., Appellee. 1170 C.D. 1988, 1171 C.D. 1988 Submitted on Briefs Dec. 20, 1988. Decided May I, 1989. Department of Transportation suspended the official inspection station certification of an inspection station, and also suspended the mechanic's certificates of its owner and an employee. Owner and employee appealed. The Common Pleas Court, Lackawanna COll11ty, Carlson M. O'Malley, J., reversed the suspensioIlS, and Department appealed. The Commonwealth Court, Nos. 1170 and 1171 C.D. 1988, Crumlish, Jr., President Judge, held that owner's admittedly incomplete inspections did not substantiate a failure-to-inspect violation. Affirmed. West Headnotes Licenses <$=38 238k38 In regard to inspection mechanic's alleged failure to inspect three specific vehicles which later proved to have been inspected, mechauic's admittedly incomplete inspections did not substantiate failure-to- iuspect violation. 75 Pa.C.S.A. ~~ 4724(a), 4726. **1167 *494 Harold H. Cramer, Asst. COWlSel, John L. Heaton, Chief COWlSel, Harrisburg, for appellant. James A. Sposito, Scranton, for appellee. Before CRUMLISH, Jr., President Judge, and COLINS, J. and BLATT, Senior Judge. OPINION CRUMLISH, Jr., President Judge. The Department of Transportation, Bureau of Motor Vehicles (DOT), appeals two Lackawall11a County Common Pleas Court orders [FNI] reversing its suspensions of Joseph Altier, Sr., and Joseph Altier, I. i 1 ,,~ - ,~ ~);,i .. Page 6 Jr.'s inspection mechanic certificates. We affIrm. FNt. The appeals were consolidated pursuant to this Court's July 26, 1988 Order. Following an administrative hearing, DOT permanently suspended the offIcial inspection station certification [FN2] of Pioneer Auto and the mechanic's certificate [FN3] of *495 its owner, Joseph Altier, Sr. DOT also suspended Altier, Jr.'s mechanic's certificate for one year. The suspensions were imposed for furnishing certificates of inspection without an inspection and for fraudulent recordkeeping. The common pleas court concluded that the suspensions were not properly imposed because the violations stemmed from the Altiers' alleged failure to inspect three specific vehicles which later proved to have been inspected. DOT contends that the common pleas court erred in reversing the suspensions because the Altiers' admittedly incomplete inspections otherwise established fraudulent record- keeping violations. We disagree. FN2. Section 4724(a) of the Vehicle Code, 75 Pa. C.S. ~ 4724(a). FN3. Section 4726 of the Vehicle Code, 75 Pa. C.S. ~ 4726. In a de uovo appeal, the trial court is limited to determining whether the person charged has committed the violatiou for which the sanctiou was imposed. Department of Transportation, Bureau of Traffic Safety v. Verna, 23 Pa. Commonwealth Ct. 260, 351 A.2d 694 (1976). If the trial court makes fmdings of fact or conclusions of law differing from those made by DOT, the court may then modify the imposed penalty. Department of Transportation, Bureau of Traffic Safety v. Kobaly, 477 Pa. 525, 384 A.2d 1213 (1978). The violation at issue here, fraudulent recordkeeping, occurs when a recorded entry is false, entered intentionally aud with deceit. Department of Transportation, Bureau of Driver Licensing v. Midas Muffier Shop, **1168 108 Pa. Commonwealth Ct. 199, 529 A.2d 91 (1987). In this case, the common pleas court found that the Altiers admitted noting in their offIcial inspection records that they had performed complete inspections despite their failure to remove the tires while inspecting the brakes. However, the court reasoned that this admitted infraction could not "jump back and fill the void" on the failure-to-inspect charge, which the court found to be meritlcss. (opinion, p. 8.) While Copr. @West2001 No Claim to Orig. U.s. Govt. Works ~'lWl!1f"= - ~ . ~". -- . 557 A.2d 1167 (Cite as: 125 Pa.CmwIth. 493, *495, 557 A.2d 1167, **1168) our review of the caselaw reveals situations where the trial court has pemrissihly *496 reduced a fraudulent record-keeping charge to the lesser improper record- keeping violation, Department of Transportation v. Sortino, 75 Pa. Commonwealth Ct. 541,462 A.2d 925 (1983), we find no authority for upholding DOT's attempt to substantiate a failure-to-inspect violation by using an admission of incomplete recordkeeping elicited for the first time at the hearing. ,. - ^. ,,~' ~~ --~, Page 7 Accordingly, we affIrm. ORDER The orders of the Lackawanna County Common Pleas Court, Nos. 87 Civil 3542 and 87 Civil 3543, dated April 22, 1988, are affmned. END OF DOCUMENT Copr. @West2001 No Claim to Orig. U.S. Gov!. Works -~ ~-"- _ c.~" ' "~' I '---, ,'< .i.., ~-'''--''''''''"~~,;i~: COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA J v. CHARLES C. SUDERS, Appellant NO. 01-3095 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of July, 2001, after hearing, we make the following findings of fact: 1. That Appellant did not properly perform the inspection of the subject motor vehicle in that he failed to road test it, to use any tool to measure the brakes, and to pull it into the garage to check the headlights. 2. We further find that he intentionally indicated on Form MV-480 that he road tested the motorcycle while knowing that he did not. The parties are directed to submit memoranda of law in support of their respective positions in light of the findings of fact in this case, Said memoranda to be filed by July 23, 2001. We will then issue an appropriate order. By the Court, Edward E. Guido, J. Elaine Blass, Esquire Attorney for Appellee H. Anthony Adams, Esquire Attorney for Appellant ~ ~ "7-ID_ol q... Sheriff \{ll1ndchf,'u.P-uJ -,_/0..0 I srs J ,;f__ , ..., ._ IJII,", ,- ..-~ >",'''~, """ """0';'"__" -, "" ~~, "'-" .'_,M' ~" -''t' =~' - .,,-'::I,',j.'<-b~,"," r'-'~ --1 TInFfft~~:~~"" '1''1'''j''''' , ~ i ,~, ' ~ ~ ',\ : ,;-; 1""1\("/":--"'("-:,'",_.,'-:':",;., ., vl..,,1"""-- " I~''-,'"L\ 1:,,\\\ln P't\\\\~~:-i -\ F', I" < ,(7- "\J .. ,Jl~~~MQW~.jl!j!f#fj;mW$\'N'!'.ffic;~-l\",'jI;f",~I<f'.~:'~,t1,<-"'!"'T>'M,fr'W{li'i'~lJilE~&'l~\iiiJ~:~~+,2IWlfJJLJ~\\iJ,~ - -= ,_ I li~W-"'tf,,~ MV-131 (9/95) CERTIFICATION AND ATTESTATION DATE: July 5, 2001 I hereby certify that Kurt J. Myers, Director of the Bureau of Motor Vehicles, of the Pennsylvania Department of Transportation, is the legal custodian of the Motor Vehicle records of the Pennsylvania Department of Transportation. IN TESTIMONY WHER THIS DEPARTMENT ON THE A JUDICIAL CODE, TITLE 4 SET MY HAND AND SEAL OF l;l~~ECTION 6103 OF THE ,E-;:o;.JS- SEAL JATION " ^'~+5;jff _ -~~J I hereb true and correct pho that the copies conf 1) April 20, 2Q& mechanic Chdr- Points for the Departmental notification to ins hearing, and 5) Ce Suders, O.I.M. #19-1 " Vehicles, Harrisburg, Pee ,,"2:,1, . IN TESTIMONY WHEREOF, I HA 4fE~T.p.J) ET ~liIAND ~~~ ON THE ABOVE DATE, IN ACCORDANCE WITH SECTION 610'!"OF " JU~ CODE. ~ C;~~/ -.... SEAL KURT J~ ~~~S, DIRECTOR BUREAU OF MOTOR VEHICLES r ~cles to 'ment of nic of a 8, 2000, nd place of c Charles C. ureau of Motor 1>>(Y'r+m.eNt- EXHIBIT \ 7 -1tJ"M 6.\2.:S ~ """""'... ~= . . I, , ..,_I i 1 L" "~""""x L~lIit~~ij'- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION HARRISBURG 17104 April 20, 2001 Mr. Charles C. Suders Opr. #19-184~227 750 Baltimore Road Shippensburg, PA 17257 (Naugle Motor, Inc. - O.I.S. #6919) ORDER AND SUSPENSION OF OFFICIAL INSPECTION MECHANIC You are hereby notified that your certification as an offi- cial safety inspection mechanic is suspended, persuant to Section 4726 of the Vehicle Code. No vehicle safety in- spections may be performed during the suspension. Pursuant to Departmental regulations, your certification as an offi- cial safety inspection mechanic will be suspended one (1) year for furnishing certificate of inspection without an in- spection to a 1985 Honda Motorcycle (sticker#AOO-0272803) and one (1) year for fraudulent record keeping. Further, the Department is including in this offense, the lesser in- cluded offenses of improper record keeping and careless re- cord keeping. .. The suspension(s) will run concurrently X consec- utively, for a total suspension of two (2) years.- This sus- pension is to run consecutively with any other suspension (s) imposed by the Department for any other violation con- sidered separately. You are ordered to surrender to the bearer of this notice, who is a representative of the De- partment of Transportation, your Safety Mechanic Certif- ication Card. Upon the completion of your suspension, your mechanic cer- tification card will be returned to you. CONTINUED ON NEXT PAGE (Page 1 of 2) ~o( H.'it. J ",...IIil- -~ " , ,',-'~ ,-, <>.' .,~,< "I LJ " ~ CONTINUED FROM PREVIOUS PAGE (Page 2 of 2) You have a right to appeal this departmental Order of Sus- pension to the Court of Common Pleas of the County in which the above referenced inspection station is located WITHIN THIRTY (30) DAYS OF THE MAIL DATE OF THIS ORDER. If you do file an appeal, a signed and time-stamped copy of the appeal must be served upon the Department at the mailing address listed below. FILING OF AN APPEAL DOES NOT AUTOMATICALLY STAY THE SUSPENSION. In order for your privileges to be re- stored pending appeal, a signed Order of Supersedeas from the Court directing the Department to stay the suspension must be served upon the Department at the mailing address listed below. MAILING ADDRESS: Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2416 ~~.. Kurt J. Myers, Director Bureau of Motor Vehicles -"--'"-- -~-" J. . , 1_ "_~ ~ I. ~"j-I ~" c", '0.' ,.,~~ '.~ - "'-illi!MI~~'" REVIEW OF ELIGIBILITY OF ASSESSEMENT OF POINTS STATION NUMBER: 6919 STATION NAME: Naugle Motor, Inc. HEARING DAT~: 12-19-00 IS STATION ELIGIBLE FOR POINTS? ~ C "~~..L:r--.7~~~ IF NO, EXPLAIN REVIE:W BY: APPROVED .'--. 6. u. #:.;;J- _I. .~ .:.-l "" 'I - ~.,~ " COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION HARRISBURG 17122 November 28, 2000 Mr. Charles C. Suders Oper. #19-184-227 750 Baltimore Road Shippensburg, PA 17257 (Naugle Motor, Inc. - OIS #6919) Dear Sir: The report{s) of 07-31-00 received from the Pennsylvania State Police indicates violation{s) of furnishing certif- icate of inspection without an inspection to a 1985 Honda Motorcycle (sticker #AOO-0272803) and fraudulent record keeping. A Departmental Hearing has been scheduled for December 19, 2000 at 1:00 p.m. at the Driver Exam Center, Riverfront Of- fice Center, 1st Floor, 1101 South Front street , Harrisburg, Pennsylvania 171Q4-2516. At the time of the hearing, you may present the testimony of any witnesses having informa- tion pertinent to the violation{s) in question. Failure to appear at the appointed time will be considered a waiver of your right to a hearing. A determination as to whether or not to suspend your safety mechanic certification will be make in your absence. In cases where the certificate appointee was not present at the station at the time of the violation, but had placed a manager or supervisor in charge of the operation of the sta- tion, it is important that the manager or supervisor appear at the Departmental hearing. ALL HEARING ATTENDEES SHOULD BRING THEIR OPERATOR'S LICENSE AND/OR MECHANIC CERTIFICATION CARD TO THE HEARING. (Continued on next page) '--, Gf.I-.~.3 :'u---''" '~>IW'" , ~ :,:~...Li ",' l ,. .1' ,:,1 .~ ''',.\: i_~ (Continuedfrbm previous page) If you have any questions, please contact tor Vehicles, Vehicle Control Division, 68697, Harrisburg, PA l7l06-8697, or 787-2895. the Bureau of Mo- Post Office Box telephone (717) .Sincerely, ~~ Kurt J. Myers, Director Bureau of Motor Vehicles ~-...-~ _ ~ ~" "J'., L l I ~ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT or TRANsPORTATION HARRISBURG 17122 November 28, 2000 Mr. William E. Naugle, III Naugle Motor, Inc. - O.I.S. #6919 608 W. King Street Shippensburg, PA 17257 Dear Sir: Thereport(s) of 07-31-00 received from the Pennsylvania State Police indicates violation(s) of furnishing certif- icate of inspection without an inspection to a 1984 Honda Motorcycle (sticker #AOO-0272803) and fraudulent record keeping by Charles C. Suders, Oper. #19-184-227. A Departmental Hearing has been scheduled for December 19, 2000 at 1:00 p.m. at the Driver Exam Center, Riverfront Of- fice Center, 1st Floor, 1101 South Front Street, Harrisburg, Pennsylvania 17104-2516. At the time of the hearing, you may present the testimony of any witnesses having informa- tion pertinent to the violation(s) in question. Failure to appear at the appointed time will be considered a waiver of your right to a hearing. A determination as to whether or not to suspend your safety inspection station certificate of appointment will be make in your absence. In cases where the certificate appointee was not present at the station at the time of the violation, but had placed a manager or supervisor in charge of the operation of the sta- tion, it is important that the manager or supervisor appear at the Departmental hearing. This is especially true if you believe that an assessment of points should be considered by the Department. ALL HEARING ATTENDEES SHOULD BRING THEIR OPERATOR'S LICENSE AND/OR MECHANIC CERTIFICATION CARD TO THE HEARING. (Continued on next page) . ~-....- &~~4. j-~._~~ ., , . 1< '" I-,~ '~" " ~":'<<,. ',=; ~1llII&~~:;' (Continued from previous page) If you have any questions, please contact tor Vehicles, Vehicle Control Division, 68697, Harrisburg, PA 17106-8697, or 787-2895. the Bureau of Mo- Post Office Box telephone (717) Sincerely, ~~~ Kurt J. Myers, Director Bureau of Motor Vehicles -~- -.......,- i', ,,' . , i!!l!l,lI!i!,l~}":~ DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES July 5, 2001 MECHANIC: Charles C. Suders ADDR ESS: 750 Baltimore Road Shippensburg, PA 17257 MECHANIC NUMBER: #19-184-227 VIOLATION ACTION TAKEN BY THE DEPARTMENT 12/24/79 - Certification Date Furnishing certificate of inspection without performing an inspection; fraudulent record keeping. 04/20/01 - Mechanic Charles C. Suders, O.I.M. #19-184-227, suspended 1 year for furnishing certificate of inspection without performing an inspection and 1 year for fraudulent record keeping. Suspensions to run consecutively for a total suspension of 2 years. Appealed to the Court of Common Pleas of Cumberland County at No. #01-3095 CIVIL. I hereby certify that I have caused a search to be made of the files of the Department of Transportation, and the above is a true record of the violation(s) and action(s) taken by the Department regarding the subject mechanic listed above, IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID. ~~ Kurt J. Myers Director of the Bureau of Motor Vehicles I hereby certify that Kurt J. Myers, Director of the Bureau of Motor Vehicles is the legal custodian of the Motor Vehicle Inspection Records of the Department of Transportation. As Director of the aforesaid Bureau, he has legal custody of the original or microfilm records which are reproduced herein. ~~~ Secretary of Transportation ,,~-=- ~. . DATE: June 21, 2001 "t ,- l 1 ~ - - ...' - ." ,->>.~:-........,;j~~:,i! COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SUBJECT: Charles C. Suders, O.I.M. #19-184-227 No. #01-3095-CIVIL (Safety Mechanic) (Cumberland County) 750 Baltimore Road Shippensburg, P A 17257 TO: The Commanding Officer Troop "H" Chambersburg, P A FROM: The Commissioner REFERENCE: cc: ~sistant Counsel njh O.R.315 (a) . Pennsylvania Official Safety Inspection Investigation Report No. H03-1I42187 dated July 31, 2000, wherein Trooper Ronald L. Taylor and was stationed at FChambersburg. (b) Please have Tpr. Taylor present themselves in the Court of Common Pleas of Cumberland County on July 6, 200 I at 10:30. a.m., Courtroom No.5, Carlisle, P A to testify. (c) The attorney who will be representing the Department is Elaine Blass, Assistant Counsel, Riverfront Office Center - 1101 S. Front Street - 3m Floor, Harrisburg, PA Phone No. 717- 787-2830. (d) Please have Tpr. Taylor confirm their presence at the scheduled hearing by calling the above-listed number at least one week in advance of scheduled hearing. 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CI r \9 - ... .. .. - <II ~ l!! ... - ... <II '" ... ..= u.. < ~L22 82~ L1L : 'ON 3NOHd , ~,' '~i. '" "i, ~. ~.J,' ...,,..-' .,- ... .. ' '1 '. J ,:;;~ 1 ;1 j ,i .1 ":1 " i ~;t ^. >:~';:ti~ .:] ", ,. T :~~ ..n M ~. I........... : .' "'" ~. . .1' ". . :-:'. ' .. , <II - ..ca . Q,. ',. .- ... .... ... '" ..... j.. .~~ ". . .,~<.' " , .. ./ . ! '. i .... ! ;;r.!' '~.' '~, <l <;) ~ I -; ..,. 1Jl WO~.::l II !L.il~ "L J 1,,- 1:,.,1 -'-,~,,- ,-"'-. C-~J "';",<.f,., '" c' - &;h, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARLES C. SUDERS, Appellant : NO. 2001-3095 CIVIL TERM AND NOW, this ORDER OF COURT ~ 1 ~ day of JULY, 2001, having found the testimony of , appellant to be credible, and having further found that he performed an inspection of the motorcycle in question, albeit an incomplete inspection, the action of the Department suspending his certification as an official safety inspection mechanic for furnishing a certificate of inspection without inspection is REVERSED. The Department's suspension of appellant's certification as an official safety inspection mechanic for one year for fraudulent record keeping is SUSTAINED. H. Anthony Adams, Esquire For the Appellant \?' Edward E. Guido, J. Elaine Blass, Esquire For the Commonwealth Sheriff :sld