The URL can be used to link to this page

Home My WebLink About10-0199DUSTIN A. WHISLER, IN THE COURT OF COMMON PLEAS Petitioner CUMBERLAND COUNTY, PA V. NO. 2010 - ?q9 C wil^IP.?'n^ COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CIVIL DIVISION BUREAU OF MOTOR VEHICLES, Respondent (SUSPENSION OF c 4 o INSPECTION PRIVILEGE) -, + +I c C1 APPEAL FROM SUSPENSION 5 , -? -` OF CERTIFICATION AS AN OFFICIAL EMISSIONS INSPECTOR co ..< Petitioner, Dustin A. Whisler, by his attorneys, McNees Wallace & Nurick LLC, an d pursuant to 75 Pa.C.S. §4726(c), files this appeal from the Order of Suspension of his Certification as an Official Emissions Inspector, and avers the following in support thereof: Petitioner is Dustin A. Whisler ("Mr. Whisler"), a licensed Pennsylvania Emissions Inspector working for Blue Mountain Car Care 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, Mr. Whisler was notified that his Certification as an official emissions inspector was being suspended. A true and correct copy of the notice is attached hereto as Exhibit "A". 4. The Order states that Mr. Whisler's Certification as an official emissions inspector was being suspended effective immediately for an alleged violation of furnishing certificate of inspection without conducting an inspection. 49a.00 Pp ATTq co 8osq/ M(O e d.3684-7 5. Mr. Whisler is employed by Blue Mountain Car Care to repair and inspect vehicles. 6. The one-year suspension imposed upon Mr. Whisler's inspection privilege for the alleged violations of furnishing certificate of inspection without conducting an inspection is improper as Mr. Whisler did not engage in or permit such conduct. 7. Mr. Whisler 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 Mr. Whisler's employment involves conducting emission inspections. 8. Mr. Whisler 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 Mr. Whisler will prevail on the merits of his appeal. b. Without the granting of the supersedeas, which will allow Mr. Whisler to restore his inspection privilege pending appeal, Mr. Whisler will suffer irreparable injury as emission inspections will not be able to be performed by Mr. Whisler whose employment requires him to conduct emission inspections. C. The granting of a supersedeas in this matterwill 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. Mr. Whisler appeals this suspension to the Court of Common Pleas of Cumberland County pursuant to 75 Pa. C.S. §4726(c), and requests that a Supersedeas be granted pending a hearing on the merits. WHEREFORE, Petitioner, Dustin A. Whisler, requests that a supersedeas be entered staying the imposition of suspension pending appeal and that this matter be scheduled for hearing pursuant to 75 Pa.C.S. §4726(c). Respectfully submitted, McNEES WALLACE & NURICK LLC By Bar A. Darkes Attorney I. D. No. 77419 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 237-5381 Attorneys for Petitioner Dustin A. Whisler Date: January 5, 2010 EXHIBIT A Dec 30 09 02:52p C . Whisler 7174230127 p,4 os-2 (ro-08) nsyLvania IV pen DEPARTMENT OF TRANSPORTATION www.dot.state.pa.us December 16, 2009 Dustin A. %isler RE: Oper#25-656-119 1211 Centerville Road Newville, PA 17241 (Blue Mountian Car Care-OIS#P274) ORDER OF SUSPENSION OF OFFICIAL LWSSSIONS INSPECTOR You are hereby notified that your certification as an Official Emissions Inspector is suspended, pursuant to Section 4726 of the Vehicle Code. No vehicle emission inspections may be performed during the suspension. Pursuant to Departmental regulations, your certification as an Official Emissions Inspector is suspended for one (1) year for furnish, lend, give, sell or receive a certificate of emission inspection without inspection (fail to test (14) vehicles with DLC communications. (See attached list).. The suspension(s) will run consecutively, for a total suspension of one (1) year. This suspension is to run consecutively with any other suspension(s) imposed by the Department for any violation(s) considered separately. You are ordered to surrender to the bearer of this notice, who is an authorized representative of the Department of Transportation, your Emissions Inspector Certification Card. Upon the completion of your suspension, your inspector certification card will be returned to you. You have the right to appeal this Departmental Order of Suspension 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 Suoersed ass from the Court directing the Department to stay the suspension must be served upon the Department at the mailing address listed below. MAILING ADDRESS: Sincerely, Department of Transportation Chief Counsel's Office s {mot . r ??_-_ Riverfront Office Center 1101 S. Front Street, 3rd Floor Anita M. Wasko, Director Harrisburg, PA 17104-2416 Bureau of Motor Vehicles Vehicle Inspections 1101 S. Front Street I Harrisburg, PA 17104 1717-787-2895 EXHIBIT B Parkes, 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 ( Harrisburg, PA 17104-2516 Phone: 717.787.2830 1 Fax:717.705.1122 }yww._.dot.statexa u.5 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 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: Parkes, 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 (OIM 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 5Darkes(o)-mwn.com McNees Wallace & N crick ttt 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. CERTIFICATE OF SERVICE AND NOW, this 5th 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 WALLACE & NURICK LLC By: $arbara A. Dances Attorney I.D. # 77419 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5381 Attorneys for Petitioner Dustin A. Whisler JAN 0 ~ 7Q1(~ DUSTIN A. WHISLER, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA (1 NO. 2010 - ~qq Cwi l t CIVIL DIVISION (SUSPENSION OF INSPECTION PRIVILEGE) ORDER AND NOW, this day of ~ ?h . , 2010 upon consideration of the Appeal of Dustin A. Whisler, from the suspension of his Certification as an Official Emissions Inspector, a de novo hearing is scheduled for the~~dayof ~. ~' , 2010, at 3~1o~lock~.m. in Court Room No. ~ ofthe Cumberland County Courthouse. A supersedeas is granted pending the hearing.~-~, (~, t ex~~,~ K~ ~~, ~ ; ~ ~ 1~ ~ `~'v, BY THE COURT: ~. ° `~ r ;'' ~ (J.) i % ' ~'' ~ G /1-c~ n E'` -c~`:. r? ~; ~.;,' ~~ . ;ham ~... -'~. N O G.'.] ,.i }. I C77 ~w f .) ~.. ~~ _~ -, .~ +~ ...3 1- t7 '` ~ E.~ °~ ~P,~ .n.~~., /~~~o ~~ y ORDER OF COURT AND NOW, this 1St day of March, 2010, upon consideration of the attached letter DUSTIN A. WHISLER, 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 N0.2010-199 CIVIL TERM 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 3:30, is rescheduled to Wednesday, May 19, 2010, at 10:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. /Barbara A. Darkes, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA. 17108-1166 Attorney for Petitioner J. fV ~.,_ G'7 .. t,. f -- « `rl - - :r.: n --r- ' rt :-`J ,~- -r i7~ '~' 'r ~ ,~ art -- c ,. y ~`=; `;~ c.•.~ o BY THE COURT, w /Lnristopher 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 :rc ~~~~~5 ,~.~.~ Lam, 3~r ~ V ~~ -McNees Wallace & Nurick tic viii irii~s~t%~~ii~ 100 Pine Street + PO Box 1166 • ~3arr+.si~urg, P;~ 171 G8-1106 Tei: 717.232.$000 • Fax: 7i7.237.:i3±;0 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. 999-2010 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 untihMarch 2'~;~2010, and is only flying back into the area that afternoon. I have discussed this schedulirg~with counsel for PennDOT, Christopher Johnson, who has indicated that he does not oppcSs~`i~ coitinuance`of this m~tter:=`In fact, attached is a-mail communication from Attorney Johnson confirming 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 & PJURICK LLC By arbara A. Darkes ~ F ~ 8 2 2 2010 BAD/jlh Enclosure - c: (wienci.t Christopher Johnson; Assistant Cadnsel Corey `JVhisfer'- ~ _~ ~; • _ _ . Dustin VVhisier , ., ,; • = .:. ; . + - _ '_~. , www.mwn.com E{ARRiSBURG, PA • LANCASTER, PA • STATE COLLEGE, PA ~ HAZt.ET()N, PA • COLUMBUS, Oli • WASHINGTON, ~C DUSTIN A. WHISLER, 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 AND NOW, this 27`" day of May, 2010, upon agreement of counsel, a ~? N f ~~ ~ = _~ -~"' ~;~q ~, - ~~ .:; ' ___, , , f =. ~ ~+ . s_.=_. ~.,, _ 4+ =~ ~ ~ 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. NO. 2010-199 CIVIL TERM ORDER OF COURT J. / Barbara A. Darkes, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA. 17108-1166 /Attorney for Petitioner / Christopher 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 eon ~ ~ .~, l~.C, :rc S•/ 22 / t0 `--r BY THE COURT,