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HomeMy WebLinkAbout11-0318~. is '•^: I'~ .~ ~ ~',~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA - T in re: Appeal of Suspension Order : ~ ~ _31~ ~ `~~ Issued to D & J Truck Repair, Inc. No. : The Honorable APPEAL FROM ORDER OF SUSPENSION OF CERTIFICATE OF APPOINTMENT AS AN OFFICIAL INSPECTION STATION NOW COMES Appellant in the above captioned matter, namely, D & J Truck n,, t:: a-.t ~ .,.~.5 .~- . ~~ ; ; F ....~..~,.. .may ~ ~ _ 1 ~ ti. xa,~ ~I R,~ .. Repair, tnc., by and through counsel, namely, James K. Reed, Esquire, and in support of this appeal states the following: FIRST The Petitioner/Appellant herein is D & J Truck Repair, Inc. a/k/a D and J Truck Repair, Inc. (D & J Truck Repair), a business corporation authorized to transact business within the Commanwealth of Pennsylvania, and having a principal place of business situate at 25 Hershey Road, Shippensburg, Cumberland County, Pennsylvania 17257. SECOND Respondent/Appellee in this appeal is the Department of Transportation, Commonwealth of Pennsylvania (Department of Transportation), believed to have an address of Riverfront Office Center, 1101 South Front Street, 3~d Floor, Harrisburg, Pennsylvania 17104. A~ ~~~a~~~ 3~a~ ~as3~gg THIRD By correspondence dated December 15, 2010, D & J Truck Repair received a notice from the Department of Transportation that the Certificate of Appointment of D & J Truck Repair as an official safety inspection station is being suspended for four months, effective January 19, 2011. A true and correct copy of this notice is attached hereto, labeled Exhibit A, and incorporated herein for informational purposes only. That is, D & J Truck Repair disputes and contests all factual averments set forth within the attached Exhibit A notice for those reasons, without limitation, averred hereinafter. FOURTH As specifically provided within the attached Exhibit A notice, D & J Truck Repair has the right to file an appeal to the Court of Common Pleas regarding this four month suspension. FIFTH D & J Truck Repair appeals the said Order of Suspension on grounds which include, but are not limited to, the following: A. D & J Truck Repair was never issued a citation alleging any faulty inspection of equipment or parts, as alleged in the attached Exhibit A notice, most particularly including a citation alleging a faulty inspection of a 1996 GMC, VIN- 1 GBLP37J4T3311110, AIO-7074400 (the 1996 GMC). B. D & J Truck Repair was never provided the opportunity for a hearing or any other form of due process regarding the allegation of faulty inspection of equipment or parts concerning the 1996 GMC vehicle. C. As a matter of fact, D & J Truck Repair did not, in any respect, conduct a faulty inspection of any equipment or parts regarding the alleged 1996 GMC vehicle or, for that matter, any other vehicle. D. D & J Truck Repair was issued a single citation alleging "displayed list of tech's that was not current". A copy of that citation is labeled Exhibit B, attached hereto, and incorporated herein for informational purposes only. In fact, as set forth on Exhibit C, attached hereto, a few of the certificate expiration dates for the D & J Truck Repair technicians were not appropriately "updated". However, according to the schedule of penalties as published by the Department (Exhibit D, attached), it appears that the violation by D & J Truck Repair for not updating the list of repair technicians does not constitute the type of "fraudulent record keeping" or the type of "improper record keeping" which calls for a suspension, as opposed to a warning for the first offense. E. D & J Truck Repair was denied due process of law, in that no citation was issued or hearing was held regarding the alleged violation for faulty inspection of equipment and/or parts. F. The suspension is against the evidence and/or the weight of the evidence with respect to the violations alleged, as well as the law and the regulations published by the Department of Transportation. G. The suspension is excessive and constitutes an abuse of discretion, in light of the facts and the regulations published by the Department of Transportation. SIXTH D & J Truck Repair respectfully requests the Court enter a supersedeas staying the suspension until the Court makes a full and final determination of the suspension directed by the Department of Transportation, and in support of that request for supersedeas states the following: A. D & J Truck Repair employs a total of nine employees, and if this suspension occurs for four months at least two, and perhaps three, employees must be laid off. B. D & J Truck Repair performs approximately 110, or more, inspections each month. Therefore, it can be seen that a substantial portion of the business of this company involves performing inspections. C. Some of the companies for which D & J Truck Repair performs inspections on a regular basis include the following: Adams Electric Company, Comcast, D.L. Martin Trucking, H.J. Tanner, Cumberland Valley Co-op, John H. Myers Company, LamTech, and Specialty Carriers. Ceasing inspection operations for four months may possibly impact these additional businesses. D. D & J Truck Repair will incur a very substantial loss of income if it's inspection license is suspended for four months. E. D & J Truck Repair has been in business for more than twenty-three (23) years, and has never had its inspection certification certificate suspended. WHEREFORE, it is respectfully requested that the Court enter an Order granting this appeal, removing the suspension and striking same, and also, enter an Order superseding and suspending revocation of the inspection license of D & J Truck Repair until a full and final determination of the matters set forth in this appeal (supersedeas). ,,-~R~"s`pec~f` sul~5itte , s K. Reed, Esq. 101 Opal Court Hagerstown, MD 21740 Supreme Court ID #50075 (301) 714-1141 I verify that the statements made in the attached Appeal From Order of Suspension of Certificate of Appointment as an Official Inspection Station are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. J Truck Re a'r, Inc. Date: January ~~, 2011 By Donald L. Mohler, President /'~ ~` pennsylvania DEPARTMENT OF TRANSPORTATION Donald L. Mohler D and J Truck Repair Inc-OIS#X485 25 Hershey Road Shippensburg, PA 17257 Vehicle Inspection Division Post Office Box 69003 Harrisburg, PA 17106-9003 Phone: (717)787-2895 STATION: X485 CERTIFIED MAIL: 7004 2510 0001 4165 1834 MAIL DATE: December 15, 2010 ORDER OF SUSPENSION OF OFFICIAL INSPECTION STATION You are hereby notified that your Certificate of Appointment as an Official Safety Inspection Station is suspended, pursuant to Section 4724 of the Vehicle Code. No vehicle safety inspections may be performed at your station during the suspension. Pursuant to Departmental regulations, your Certificate of Appointment will be suspended for two (2) months for faulty inspection of equipment or parts (I 996 GMC, VIN-1 GBLP3'~J4T3311110, AIO-7074400) by Richard D. Davenport Jr., Oper 19-071-188 and two (2) months for improper record keeping, including the lesser offense of careless record keeping. The suspension(s) will run consecutively, for a total suspension of four (4) months. This suspension is to run consecutively with any other suspension(s) imposed by the Department for any violation considered separately. THE SUSPENSION WILL BE EFFECTIVE January 19, 2011. At this time, you are ordered to surrender to the Quality Assurance Officer, who is a representative of the Department of Transportation, your Certificate(s) of Appointment, and all safety inspection stickers. Two (2) weeks prior to the expiration of your suspension, you may contact your Quality Assurance Officer for reappointment. A complete and thorough investigation maybe conducted to determine if you are qualified for reappointment. 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 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 restored 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: Sincerely, Department of Transportation Chief Counsel's Office ~(~{ ~~C..~~ , ,~[/Q.~/~,~,~.-~ Riverfront Office Center 1 101 S. Front Street, 3rd Floor Anita M. Wasko, Director Harrisburg, PA 17104-2416 Bureau of Motor Vehicles Vehicle Inspections ~ 1101 S. Front Street ~ Harrisburg, PA 17104 ~ 717-787-2895 Exhibit A 01/04/2011 15:42 FAg 717 530 8330 DJ TRUCK REPAIR f~j001 ' ~`~ ~~ eoele,clew~~i~c(oi= Pr%wt~rl.vArti~ GTA710N NO. • R ~38.~~183•--g '~ ="3~~'0 ~ ~c crr~noH i suwoNS ~ a •~/b " " ~ .S'+: .SH tPPErJt s~ FA. l7;~.S7 ~ Nw~Ear ,~ e. ao~. e. Ar s 0.~`-^ a. ew w~ te~w ^ PA "~ F e. eeee.uraee.ar. 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M aeclYn d polo fart' resup In lte ' auepeneiou d yell- dIIVkID pthlape. AMo, ytw ddrkp plMlepe 4~VN.L ~ SUSPE#Dt~ l you plead Sub or an lountl partly of ardin ufNnose lntlar Mw Vuliide Cotie,,NlogeOYlp hut•not IYnled ia, 75 PaC.3. ~ 1a71, 3311, 8315. 9967, 9710, .17$i1r 71i~h ~, '. euluaglat toawipbns a 75 PiC.B. g 1507, . vbgllo0 of 75 Pars, ~ 3961 ade~ oopeekp fn en Rtdlw watt tone ud an acudeet report k sel»niCed try the poke, atd r.violnlwi ct 75 Pa.G.3. 4 9912 when ootamttq to en ~~ ~ ~ ~ `~• aP 7~da1TA DEIaENOANT R ACR. weo r6 IRw, tnnooq ~ ~ ' ~r~ I .. ^ Exhibit B MV-443 (3-06) iPENNDUT CommonzveaCth o, f ~1'ennsyCvania DEPARTMENT OF TRANSPORTATION OFFICIAL INSPECTfON STATION NUMBER )C ~ l1 ~ CURRENT LIST OF CERTIFIED SAFETY INSPECTION MECHANICS MECHANIC CERTIFICATION EXPIRATION DATE CLASS 1. ~'rrt/~4~~ Q, AA~LAr~'c ~ 5r; .Sl-~~-tom .~Z-1~-,,`;~ ~ ~ 3. S~~t,'(~,ycL- ~c8t3S /C - ~l - I ~ 4' - /S / ~ ~ ~,` 6. 1~ jj~ tit"~ fx w ~/hA-ST~%~ ~ °-,~ Y • ~~ S ~ /3 - ~ ~. ~ 7. ti.~._ 8 -- .-- ---~-T---- 10. NAME OPERATOR'S LICENSE EXPIRATION DATE 11 12 13. 14 15. 16. ciPD~ Exhibit C 01/12/2011 07:54 FA% 717 530 8330 DJ TRUCK REPAIR i~J003 Subs Q - 3c~duM Ot Fit Md 3u~tsion SUBCHAPTER D SCHEDULE OF PENALTIES AND SUSPENSION: Okla! inspertlan 3tst~ons and Certffled A~chanlcs .. . (a) Schedule • The complete operation of an otfiaial inspection statlon is the respone~betty of the owner. ' Feiturs 'to comply with the ai~propriats provisions of 75 Pa. C.S. §101-9821 (reletln~ fo the Vehicle Code) will tse considered sufficient cause tar suspension of inspection privllsges. A violator ~ also subject to criminal prosecution. DURATION OF SUSPENSION Srd an t st 2nd l3ubatqurnt TYPE OI< V10iLATiON .~_.~._. Vlohtiion Vlol~tiort Vloldion (t) CATE~iON1f 1 (i) issuance or possession cf altered. forged, stcNn or countetteit certification of irTapectlon t year Permanent (>i) Furnish, lend, give, sell or naceive a certflcate of ir~pection without iruipection 1 year Perntaneht (iif) Fautly inspectiog of equipment or parts 2 months 1 year 3 years pq C/(1.'EQOAY 2 m Fraudulent record keeping 1 year Permanent (a~ Im~prcper record keeping 2 months 1 year S years (.Failure to verify repistratior~, title, rnanu- faotunr's statement of orig n, financial reSpon- sibllty information. or inspE.~ctirq a vehicle with an expired registration or when va!'Kl proof of financial responsibility h:~s not been wbmitted 2 months 4 months 1 year (in) Fallon to affix certificate or` inspsdion immediately upon suoc~ssiul completion of the inspection 2 months 4 months 1 year (v) imrxop~rly assignin0 certificate of inspecton 2 months 4 mpntht 1 year . (vi) Failure to produce records. cxrtifi~es of ir>:pection, signature cards, oertiflcate of appointment, or mechanic .;ant upon demand ' by sape~n station aupetvisa ar authorized 2 months 6 months or 1 year or representative of the Department until produced unto produced unto produced ,. p.~ WbloN aup~olicn Exhibit D 01/12/2011 07:54 FAg 717 530 8330 DJ TRUC$ REPAIR ~ 004 i~ ~ /A~ ~ - ~~~1~~~~~~~llilil~~ ~1~ 1st ~ SufbsegW nt `~/M~(~'' a ~~ ~ -.M ~l~~ `rte. - -~~• w ~,~tl• (vii) Improper otsrtlfk~e of inspection seourlty 1NuNrq 4 months 1 you (viii) Careless reca+c keeping blaming A months 8 moths ;3} CATE40RY $ • (i) Inspection by ntschonic with tt~wpertded. re- vaked, carrttslled or recalled opetetirtg privilege 2 months B months 1 yea (ii) lrtepeotinO more than three motOrcydes or two ~ . Other vehiotes per hour 4 months 8 months 1 you (iii) Inapeotion by trnaertified mechanic 4 months 6 morrttts 1 year (4) CATEGORY 1 (i) Miesta3bment of fact 2 mOnthe 4 monlha 1 year {ii) Performing or ir>d~atirt9 vinnecessary repatts for the putpaee' of passing ar- inspection 4 months 6 months 1 year ('ui) Perfottnirg ropepcs fOr the purpose of peesing an irr8pection without vehicle owr>ar authorization 4 months 6 motrth~S 1 yea (iv) Unclean inspection area 2 montl+s 4 months 6 months (v) Required tools or equipment missing Warning if tools 2 months or 6 months or or broken are repaired a until tools are until .tools are replaced; h not, repaired Or' repaired Or sueperrsiOn u frtil replaced, replaced. tools are repaired whichever is wtiichwer is or replaced greater groatsr (vi) i38d check Warnitq if amount 2 rttonths or 6 months or dW is paid within urrtil amount until amount 10 days from due is paid. due is paid, dale ratified. whiohwer whichever If not, suspension is greater is greater until amount due . is paid (vii) Failure tv n~ort discorttinuarroe of buelness 1 year 3 years Permanent (viii) Failure to ratify the Department Ot changes of ownership. location or other charges afhctitrg an official inspection station 4 months 6 months - t year (ix) Failure to give S wrltt~n receipt c-r work order b custOme~. or td list requirod itrfarmatlort on work order 2 months 4 months . 1 year t~irMea Egiu~nr "'d e~ps~+lbn 19~pi+istla~s D -2 01/12/2011 07:53 FAg 717 530 8330 DJ TRUCK REPAIR r X1002 ~; - I, i ~ ' Oniclal Mapegfon Soft Requb~mettts - der 8 . (t) ff a rtaturai person, the appticetnt shall be 18 years of age or older. (2) If the applicant is a corporation, partner- ship or association, the application shall be signed by an officer, partner, associate or another pertum specifically authoriasd to sign the application. (i) The person who signs the application shall be 16 years of age or older_ (il) Except in '.he case of an executive officer, partner or assoofate, written evidence cf the autfwrigr of the per- sorMfor example, station manager to sign the application shall be attached thereto and attested to by a partner, or a oorpa~•ation or association officatr_ (a) invetWprttipn - An inspection station super- visor will oonduc~ an investigation of each applicant to detFrmine fuM compliance with the Vehicle Code and this chapter. (b) English Comprehension -The applicant and each inspection mechanic shall be sufficiently versed in the English language to read and understand this title. (c) Iesuence of CertHlate -Upon approval of the application try the Bureau, a certificate of appointment shall be issued to the applicant for the place of business located within this Commonweaitti, as set Earth in the appli- cation. No inspections shall be made unless a certificate of appontmern has been issued t0 and Is prominerttfy displayed at the official inspection stati•yn. After appointment, the owner of each inspection station shall praminsntly display all signs required by the Bureau, including the following: (~) A certifi~;ate of appointment for each type of si.ation approved for the location. (2) A sign dearly stating the fee for the certificate of inspection separate from the fee for inspection, The fee for in- spscUon shall lye the same whether the vehicle passes or fails. The fee for in- speCtior snail include the cost of labor for the inspection, includ+ng pulling wheels, but it shall not include the cost of parts. repairs or adjustments. The sign shag clearly indicate the fee for different types of v~ehk~es-for extimpfe. passenger cars, trucks, trailers--~to the extent that the fee varies among ve- hicles: FIe9t and Commonwealth station: are exempt from this require ment. (3)" A cun~ertt list of csrtitied inspection me- cftartics, Form TS-443. (4) An offit~al inspecticxt station sign oublde the garage. clearly vis~fe"to the public. This sign shall have a keystone design which iS 24 inches high and 21 incites wide. The station number plate shall be 2~. inches high and i3Mi incites wide. The background shall be navy blue with gold lettering. ff hung from a bracket the sign shall be double faced. A previowly isswd sign will still bs permitted. Fleet and Commonwealth stations are exempted from this naquirernent. .~ (e) f3erteral-The following requirements apply to inspection uses: (t) Exaspt as provided in sk~ection (b) (1.) (iii) and (3), the inspection area shelf 6e entirely within a sound," enclosed buil- ding, shall be" in good repair; and shall be kept in good condition. (~) Any anticipated alterations or change affecting the condition or Size of the inspection area sha0 be reported to the inspection station supervisor at once. (9) The floor shelf be of a hard surface and in Sourui condition, part floors will not be approved. (4) The floor of the inspection area shall be level. No more than 19G sbpe from front to rear ar side to side is acceptable. " (5) The inspection area shell be free from obstructions.. including shelves, wprk benches, partitions, displays, machinery and stairways. if the inspection area or any part is located outside the building. the arse shaali also be kept ci®ar of snow or other submtancss which would Curtail or interfere with inspections. (6) Hoists and lifts are permitted in the inspectbn area it a thorough and proper inspection can bs performakt. Vehkle $gNipnl~nr ont 1na~B~ctlOn RQ~litlov-! ~-~ y FILED-OFFICE OF THE PROTHONOTARY 2011 JAN 21 PN 4: 04 CUMBERLAND COUNTY PENNSYLVANIA 2011 AN 14 M943 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA in re: Appeal of Suspension Order Issued to D & J Truck Repair, Inc No. dbj (-2,) 0 0 : The Honorable ORDER ISSUING RULE AND SUPERSEDEAS "a4dd_ IV , 2011, an appeal having been filed in the above captioned .17- Lq matter regarding the suspension of a Certificate of Appointment as an Official Inspection Station; IT IS HEREBY ORDERED AND DECREED that a hearing on the said appeal shall be held commencing at b :Ov o'clock 4.m. on 2011 in the assigned Courtroom of the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania; IT IS FURTHER ORDERED AND DECREED that a Rule is hereby issued upon the Department of Transportation. Commonwealth of Pennsylvania, to show cause why the above appeal should not be sustained, and the suspension quashed; and, further, IT IS ORDERED AND DECREED that a supersedeas is granted, and, therefore, 3 the Order of Suspension issued by the Department of Transportation under date of December 15, 2010 to D & J Truck Repair, Inc. is stayed and suspended until a full and final determination of this appeal by final Order of this Court. By the urt, J. F? wi Tan, C Cramer- Cope Ma led jjjvIl1 orb IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA In re: Appeal of Suspension Order, Civil Action -Law Issued to D&J Truck Repair, Inc. C-) .. a The Honorable .? --• No. 2011-318 : r-rj r- r tom- ? ?` ? yC Q no a -4 ? = - MOTION TO CONTINUE APPEAL HEARING C ? C: cz) o --f' _ AND NOW COMES the Appellant, D&J Truck Repair, by and througk the atmmey, James K. Reed, Esquire, who respectfully represent the following unto this Honorable Court: 1. That an appeal was filed in the above-captioned matter regarding the suspension of a Certificate of Appointment as an Official Inspection Station. 2. That on January 14, 2011, this Honorable Court issued a Rule and Supersedeas and scheduled a hearing on the matter for May 26, 2011 at 10:00 a.m. 3. That your undersigned counsel has prepaid vacation plans for May 20, 2011 through June 2, 2011. 4. That your undersigned has contacted the Pennsylvania Department of Transportation who does not oppose this continuance. WHEREFORE, Appellant respectfully requests that this matter be continued until the next available date. Respectfully Submitted, i j 1 i' es K. Reed, Esquire ' 1101 Opal Court Hagerstown, MD 21740 (301) 714-1141 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day of ?- 011, I mailed a copy of the foregoing by first-class mail to Department of Transportation, AT : Chris Johnson, Riverfront Office Center, 1101 S. Front Street, 3`d Floor, Harrisburg, PA 17104-2416 s K. Reed, Esquire VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 42 Pa. C.S. A. Section 1024 relating to unsworn falsification to authorities. Date:_ o? --) 1( (::: k /Z'-? J 0?1 K. Reed, Esquire COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION : M ?'? OFFICE OF CHIEF COUNSEL BY: CHRISTOPHER J. JOHNSON -? -.1 Assistant Counsel CD -0 Attorney I.D. No. 204296 i z RIVERFRONT OFFICE CENTER, 3d FLOOR ., . 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, } DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES } VS. } DONALD MOHLER d/b/a } NO. 2011-318 D & J TRUCK REPAIR, INC., OIS #X485, ORDER AND NOW, on this 17`" day of June, 2011, the appeal filed at the above referenced docket number is WITHDRAWN and DISCONTINUED, and the suspensions are REINSTATED, effective July 1, 2011, to be run concurrently for a total suspension time of (2) months, with the Petitioner receiving credit for time served. Attes James K. Reed, Esq., 1101 Opal Court, Hagerstown, MD 21740 Christopher J. Johnson, Esq., PennDOT Office of Chief Counsel, Riverfront Office Center, 1101 S. Front Street, Harrisburg, PA 17104-2516 BY THE COURT: