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Home My WebLink About10-0197BLUE MOUNTAIN CAR CARE, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PA V. NO. 2010 - 07 ?rv`t COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CIVIL DIVISION BUREAU OF MOTOR VEHICLES, C o ° Respondent (SUSPENSION OF -rj INSPECTION PRIVILEGE) c `; t Cn' ' N -: A Q APPEAL FROM SUSPENSION 1> fS OF CERTIFICATE OF APPOINTMENT s 1+ , AS AN OFFICIAL EMISSION INSPECTION STATION oo Petitioner, Blue Mountain Car Care, by its attorneys, McNees Wallace & Nurick LLC, and pursuant to 75 Pa.C.S. §4724(b), files this appeal from the Order of Suspension of Official Emission Inspection Station and avers the following in support thereof: 1. Petitioner is Blue Mountain Car Care ("Blue Mountain"), a licensed Pennsylvania Emission Inspection Station with its principal place of business at 198 Newville Road, Newburg, Cumberland County, Pennsylvania, 17240. 2. Respondent is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, with offices at Riverfront Office Center, 1101 S. Front Street, Harrisburg, Pennsylvania 17104-2416. 3. By Order dated and hand-delivered December 16, 2009, Blue Mountain was notified that its Certificate of Appointment to operate as an official emission inspection station was being suspended. A true and correct copy of the notice is attached hereto as Exhibit "A". 4. The Order states that Blue Mountain's Certificate of Appointment as an official emission inspection station was being fined $2,500 and suspended effective immediately for one year for the alleged violation of furnishing certificate of inspection without conducting an inspection. * qa. oo po A-m( &*80sq ET*a358y5 5. Blue Mountain is in the business of repairing and inspecting vehicles. 6. The one-year suspension imposed upon Blue Mountain's inspection privilege for the alleged violations of furnishing certificate of inspection without conducting an inspection is improper as Blue Mountain did not engage in or permit such conduct. 7. Blue Mountain has been greatly prejudiced by the lack of due process and will suffer irreparable harm due to the suspension if a supersedeas is not immediately granted pending appeal, as Blue Mountain is in the business of operating an official Pennsylvania emission inspection station. 8. Blue Mountain satisfies the requirements of Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983); therefore, the issuance of a supersedeas is proper. a. There is a strong likelihood that Blue Mountain will prevail on the merits of its appeal. b. Without the granting of the supersedeas, which will allow Blue Mountain to restore its inspection privilege pending appeal, Blue Mountain will suffer irreparable injury as emission inspections will not be able to be performed by Blue Mountain, who is in the business of repairing and inspecting vehicles. C. The granting of a supersedeas in this matter will not substantially harm the Department of Transportation. In fact, PennDOT has confirmed via e-mail that it does not oppose the granting of a supersedeas in this matter. A true and correct copy of this e-mail is attached as Exhibit "B". d. The granting of a supersedeas in this matter will not harm or adversely impact the public interest. 2 9. Blue Mountain appeals this suspension to the Court of Common Pleas of Cumberland County pursuant to 75 Pa. C.S. §4724(b), and requests that a Supersedeas be granted pending a hearing on the merits. WHEREFORE, Petitioner, Blue Mountain Car Care, requests that a supersedeas be entered staying the imposition of suspension pending appeal and that this matterbe scheduled for hearing pursuant to 75 Pa.C.S. §4724(b). Respectfully submitted, McNEES W LLACE & NURICK LLC By Barbara K Darkes v Attorney I. D. No. 77419 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 237-5381 Attorneys for Petitioner Blue Mountain Car Care Date: January 5, 2010 EXHIBIT A Dec 30 09 02:53p C . Whisler 7174230127 P.5 os-2 (10.08) pennsylvania i' DEPARTMENT OF TRANSPORTATION www.dot.state.pa.us December 16, 2009 Corey J. Whisler Blue Mountain Car Caro-0IS# P274 198 NewviIle Road Newburg, PA 17240 ORDER OF FINE AND SUSPENSION OF gFFICUL EMISSION INSPECTION STATION You are hereby notified that your Certificate of Appointment as an Official Emission Inspection Station is suspended, pursuant to Section 4724 of the Vehicle Code. No vehicle emission inspections may be performed during the suspension. Pursuant to Departmental regulations, your Certificate of Appointment is suspended for one (1) year and $2500.00 fine for furnish, lend, give, sell or receive a certificate of emission inspection without inspection (fail to test vehicles with DLC communications (14) by Dustin A. Whisler, Oper 25-656-119 and (9) by Corey J. VlMsler, Oper 21-866-609). (See attached list). The suspension(s) will run consecutively, for a total suspension of one (1) year $2,500.00 fine. This suspension is to run consecutively with any other suspension(s) imposed by the Department for any violation considered separately. You are ordered to surrender to the bearer of this notice, who is a representative of the Department of Transportation, your Certificate(s) of Appointment, all emission inspection stickers, other related emission items and a check or money order made out to the Commonwealth of Pennsylvania. Your emissions inspection equipment will be locked out from performing official etissions testing for the duration of this suspension. Two (2) weeks prior to the expiration of your suspension, you may contact your Quality Assurance Officer for reappointment. A complete and thorough investigation may be conducted to determine if you are qualified for reappointment. In addition, your privileges will not be restored until all fines imposed are paid in full. A check or money order may be submitted to the Department of Transportation, Vehicle Inspection Division, P. O. Box 69003, Harrisburg, PA 17106-9003. You have the right to appeal this Departmental Order of Suspension and Fine, to the Court of Common Pleas of the County in which the above referenced inspection station is located, WITHIN THIRTY (30) DAYS OF THE 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 restored pending appeal, a signed Order of Supersedeas from the Court directing the Department to stay the suspension and the fine, 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 Vehicle Inspections 1 1101 S. Front Street I Sincerely, Anita M. Wasko, Director Bureau of Motor Vehicles Harrisburg, PA 17104 1717-787-2895 EXH?B?? B Darkes, Barbara From: Johnson, Christopher J [chrijohnso@state.pa.us) Sent: Tuesday, January 05, 2010 2:43 PM To: Darkes, Barbara Subject: RE: Blue Mountain Car Care The Department does not oppose the supersedeas on Blue Mountain Car Care, or the two inspectors involved, Corey and Dustin Whisler. Christopher J. Johnson i Assistant Counsel Governor's Office of General Counsel Department of Transportation Office of Chief Counsel I Vehicle & Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street I Harrisburg, PA 17104-2516 Phone: 717.787.2830 1 Fax:717.705.1122 PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege. From: Darkes, Barbara [mailto:BDarkes@mwn.com] Sent: Tuesday, January 05, 2010 11:42 AM To: Johnson, Christopher J Subject: RE: Blue Mountain Car Care Thank you. From: Johnson, Christopher J [mailto:chrijohnso@state.pa.us] Sent: Tuesday, January 05, 2010 11:21 AM To: Darkes, Barbara; Haeckler, Matthew Subject: RE: Blue Mountain Car Care I will check on this and get back to you today. Thanks Christopher J. Johnson ( Assistant Counsel Governor's Office of General Counsel Department of Transportation Office of Chief Counsel I Vehicle & Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street I Harrisburg, PA 17104-2516 Phone: 717.787.2830 1 Fax:717.705.1122 PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege. From: Darkes, Barbara [mailto:BDarkes@mwn.com] Sent: Tuesday, January 05, 2010 11:08 AM To: Johnson, Christopher J; Haeckler, Matthew Subject: FW: Blue Mountain Car Care Importance: High Hello - any word on this?? Barb From: Darkes, Barbara Sent: Monday, January 04, 2010 9:02 AM To: Johnson, Christopher J; Haeckler, Matthew Subject: Blue Mountain Car Care Christopher and Matt: Good morning and Happy New Year. We have been retained by: Blue Mountain Car Care (OIS#P274) Corey J. Whisler (C)IM 21866609) Dustin Whisler (OIM 25656119) to represent them relative to an appeal from notices of suspension dated 12/16/09 in which their station and mechanic licenses have been suspended for one year. I anticipate filing the appeal and requesting a supersedeas early this week. Please let me know whether PennDOT opposes the issuance of orders of supersedeas for any of these licensees. Thank you. Barb Barbara A. Darkes McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg PA 17108-1166 Direct Telephone: 717.237.5381 Direct Fax: 717.260.1677 BDarkes@mwn.com McNees Wallace & Nucick 3,Lc The foregoing message may be protected by the attorney-client privilege. If you believe it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, then delete it. Thank you. 2 CERTIFICATE OF SERVICE AND NOW, this 5ch day of January, 2010, 1 hereby certify that I have served a true and correct copy of the within document, via facsimile and certified United States mail, return receipt requested and postage prepaid as follows: Matthew X. Haeckler, Assistant Counsel Christopher Johnson, Assistant Counsel PA Department of Transportation Office of Chief Counsel Motor Vehicle Section Riverfront Office Center 1101 S. Front Street - 3rd Floor Harrisburg, PA 17104-2416 Fax No. (717) 705-1122 McNEES LLACE & NURICK LLC By: 1, rbara arkes Attorney I.D. # 77419 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5381 Attorneys for Petitioner Blue Mountain Car Care 'JAN 0 ~ ~~~~ BLUE MOUNTAIN CAR CARE, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PA /~ v. NO. -2010- 197 C evil ~rti COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CIVIL DIVISION BUREAU OF MOTOR VEHICLES, Respondent (SUSPENSION OF INSPECTION PRIVILEGE) ORDER AND NOW, this ~~day of ~ , 2010 u on consid r erati~n ~f the Appeal of Blue Mountain Car' Care, from the suspension of its Certificate of Appointment as an Official Emission Inspection Station, a de now hearing is scheduled for the .~~ n ~ctayof ~~~~/. 2010, at ~~ 3~' o'clock ~.m. in Court Room No. ~ ofthe Cumberiand County Courthouse. A supersedeas of the fine and suspension is granted pending the hearing- ~U~ N~~~~ ~~ ~.~~~ ~~-, aP ~,~,s~.(~,~, ~,~s .n~~1~L ~~s/~d ~~ BY THE COURT: n ~ 't (J.) ;. _ -~, ~~ .-~ -- ~- -~ -~ ~ -`-. ~j, T : ~.; ti ` ..- ~, t. ~. t BLUE MOUNTAIN CAR CARE, : IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent N0.2010-197 CIVIL TERM ORDER OF COURT AND NOW, this ls` day of March, 2010, upon consideration of the attached letter from Barbara A. Darkes, Esq., attorney for Petitioner, and with no objection from Christopher Johnson, Esq., Assistant Counsel for PennDot, the hearing previously scheduled for March 22, 2010, at 2:30, is rescheduled to Wednesday, May 19, 2010, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. ~bara A. Darkes, Esq. 100 Pine Street ~ ~ ~_ P.O. Box 1166 ~--? ~ -.~ --~ ~.... cr: ~...., 'r Harrisburg, PA. 17108-1166 = ~:~ ~' ~ r .~~ ~ h,~ Attorney for Petitioner ~ ~~~ t? ~-_ -`; ; ,__ _- - ---- ~ ~ f!'k i. -.__ ~ .. ~4 ~--~ C.J :::J "'r~ ~ BY THE COURT, Christopher J. Johnson, Esq. Assistant Counsel Department of Transportation Office of Chief Counsel Vehicle & Traffic Law Division Riverfront Office Center, 3`d Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent :rc ovai~s m5~~L 1 3l,l~v ~' I McNees Wallace & Nurick Llc ~i~iit~~~~~%~~i~~ 100 Pine SEreet • PO Bax 1166 y Fiarrishurg, P~ 171f,8-1116 Tel: 7i7.232.$Q00 « Fix: 717.2~7.a~E30 February 19, 2010 Hon. J. Wesley Oler, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Barbara A. Darkes Direct Dial: 717.237.5381 Direct Fax: 717.260.1677 bdarkes@mwn.com RE: Blue Mountain Car Care v. PennDOT, Docket No. 197-2010 Corey Whisler v. PennDOT, Docket No. 198-2010 Dustin Whisler v. PennDOT, Docket No. 194-2010 Dear Judge Oler: The above-referenced cases are scheduled for hearing on March 22, 2010, starting at 2:30 p.m. Subsequent to this scheduling, I was advised by my client that he is scheduled to be out of town untih March 2~;=2010, and is only flying back into the area that afternoon. I have discussed this schedaliri`g'svith counsel for PennDOT, Christopher Johnson, who has indicated that he does not opp'ds~`a continuance of-this m~tter:=-'In fact, attached is a-mail communication from Attorney Johnson confrming that PennDOT does not oppose the continuance. In consideration of the above, we request that the hearings currently scheduled for March 22, 2010, be continued. Thank you for your consideration in this matter. Sincerely, McNEES W LLACE & NiJRICK LLC By FEB 2 2 arbara A. Darkes 201Q www.mwn.com FIARRISBURG, PA ~ LANCASTER, PQ ~ STATE COLLEGE, PA ~ HAZLETON, Pa • COLUMBUS, OH • WASHINGTON, OC BLUE MOUNTAIN CAR CARE, : IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent NO.2010-197 CIVIL TERM ORDER OF COURT AND NOW, this 27d' day of May, 2010, upon agreement of counsel, a continuation of hearing in the above matter is scheduled for Wednesday, June 2, 2010, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, ,/Barbara A. Darkes, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA. 17108-1166 Attorney for Petitioner °' ~F ~~ ~~ _~ ~. Wesley Ol ~' Jr.; J. ,% , r., n ca ; C' ._r -- ~~ _l ~ .~, .~, --~ ;-~~+ - ~ - ;,m ` ~= --: ; - ~.. _ ~ _. r G ~ _ ;~ <Y ~ristopher J. Johnson, Esq. Assistant Counsel Department of Transportation Office of Chief Counsel Vehicle & Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent ~ofJi~..4 /-'t~t~ :rc I s~z2~~v ~~