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HomeMy WebLinkAbout11-0319,' t k, i ' a e„-» IN THE COURT OF COMMON PLEAS ~' ` ` ~ ' ~` '~ .3b i t ,~L4 ~u l y AN+ ~: 1 S OF CUMBERLAND COUNTY, PENNSYLVA~;I~ ~ ?,~~ ~ ~_' ~. ~ ` In re: Appeal of Suspension Order Issued to Richard D. Davenport, Jr The Honorable APPEAL FROM ORDER OF SUSPENSION OF CERTIFICATE OF OFFICIAL SAFETY INSPECTOR NOW COMES Appellant in the above captioned matter, namely, Richard D. Davenport, Jr., by and through counsel, namely, James K. Reed, Esquire, and in support of this appeal states the following: FIRST The Petitioner/Appellant herein is Richard D. Davenport, Jr., a sui juris adult, holding an official safety inspector's certificate, and having an address of 4407 Byers Road, Chambersburg, Pennsylvania 17202, Mr. Davenport is an employee of D & J Truck Repair, Inc., which business filed a similar appeal regarding the matters hereinafter alleged. 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. (~ Q ~~~ 3 5 ~$~ ~ ~ THIRD By correspondence dated December 15, 2010, Mr. Davenport received a notice from the Department of Transportation that the Certificate he holds as an official safety inspector 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, Mr. Davenport 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, Mr. Davenport has the right to file an appeal to the Court of Common Pleas regarding this four month suspension of his official safety inspector's certification. FIFTH Mr. Davenport appeals the said Order of Suspension on grounds which include, but are not limited to, the following: A. Neither Mr. Davenport nor his employer, namely, D & J Truck Repair, were ever 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. Neither Mr. Davenport nor his employer, D & J Truck Repair, were ever 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, Mr. Davenport 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, in fact, issued a single citation alleging "displayed list of tech's that was not current". A copy of that citation is attached to the appeal filed by D & J Truck Repair, Inc. concurrently with this appeal filed by Mr. Davenport. However, Mr. Davenport, individually, was never issued any citation regarding any failure to maintain records or any other matter or thing. E. Mr. Davenport was denied due process of law, in that no citation was issued to him, individually, or any hearing ever held regarding any individual violation committed by him. F. The suspension of Mr. Davenport's individual inspection certificate is against the evidence and/or the weight of the evidence with respect to the violations alleged against his employer, 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 Mr. Davenport 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. Mr. Davenport makes his living as a mechanic, and in the course of his employment is required to perform several inspections on a daily, weekly, and/or monthly basis. B. Mr. Davenport has never had the opportunity to present any evidence or testimony at a hearing regarding the alleged violations for which the Department suspended his official inspector's certificate. 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 official safety inspector's certificate held by Mr. Davenport until a full and final determination of the matters set forth in this appeal (supersedeas). ectfully bmitte//d ~oC__ J K. Reed, Esq. `'~- 1 01 Opal Court Hagerstown, MD 21740 Supreme Court ID #50075 (301) 714-1141 1 verify that the statements made in the attached Appeal From Order of Suspension of Certificate of Official Safety Inspector 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. r ~ r Date: January jam, 2011 Richard D. Da np , Jr. ~` Pennsylvania DEPARTMENT OF TRANSPORTATION Richard D. Davenport Jr. 4407 Byers Road Chambersburg, PA 17202 (D and J Truck Repair Inc-OIS#X485) COO p~'l Vehicle Inspection Division P. O. Box 69003 Harrisburg PA 1 7 1 06-9003 Phone: (717) 787-2895 MECHANIC # 19-071-188 ~'.~,$ZIFIED MAIL: 7004 2510 0001 4165 1841 MAIL DATE: December 15, 2010 ORDER OF SUSPENSION OF OFFIC.~L SAFETY' IltiT`sFECTOR You are hereby notified that your certification as an Official Safety Inspector is suspended, pursuant to Section 4726 of the Vehicle Code. No vehicle safety inspections may be performed during the suspension. Pursuant to Departmental regulations, your certification as an Official Safety Inspector will be suspended for two (2) months for faulty inspection of equipment or parts (1996 GMC, VIN-1GBLP37J4T3311110, AIO-7074400) 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 Safety Inspector Certification card. Upon 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 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 TAE 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: Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor E [arrisburg, PA 1 7 1 04-24 1 6 Sincerely, --~~Gc ~ ,,GCid:r..4~.~--- Anita M. Wasko, Director Bureau of Motor Vehicles Vehicle Inspections ~ 1101 S. Front Street ~ Harrisburg, PA 17104 717-787-2895 Exhibit A OF THE PROTHOKO TAFY 2011 JAN 21 PM G: 03 CUMBERLAND COUNTY PENNSYLVANIA 2011 JAN 14 hi'l 9 42 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 3 In re: Appeal of Suspension Order Issued to Richard D. Davenport, Jr. No. Vi I T-&W : The Honorable ORDER ISSUING RULE AND SUPERSEDEAS i `(, 2011, an appeal having been filed in the above captioned 1 61 matter regarding the suspension of a Certificate issued to the above named official safety inspector; IT IS HEREBY ORDERED AND DECREED that a hearing on the said appeal shall be held commencing ate= 30 o'clock Dt-.m., on aLgew a (p - 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. the Order of Suspension issued by the Department of Transportation under date of December 15, 2010 to Richard D. Davenport, Jr. is stayed and suspended until a full and final determination of this appeal by final Order of this Court. By the ourt, V/ bW oPTMuaporicu m Iii Mann C. Cramer- Ailed filar l N jxA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA In re: Appeal of Suspension Order, Civil Action -Law Issued to Richard D. Davenport, Jr. The Honorable No. 2011-319 c 'r :rrn m -n- Z -a, - ?r~ MOTION TO CONTINUE APPEAL HEARING© ? , j> AND NOW COMES the Appellant, Richard D. Davenport, Jr., by thkWg 16ii attorney, James K. Reed, Esquire, who respectfully represent the following Ao Ns Ignorable Court: That an appeal was filed in the above-captioned matter regarding the suspension of a Certificate issued to the above named official safety inspector. 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 9:30 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, es K. Reed, Esquire 1101 Opal Court Hagerstown, MD 21740 (301) 714-1141 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this b?day of 6(L,'(w 011, I mailed a copy of the foregoing by first-class mail to Department of Transportation, A : Chris Johnson, Riverfront Office Center, 1101 S. Front Street, 3`d Floor, Harrisburg, PA 17104-2416 i es 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 falsi ' to authorities. ii Date: J es K. Reed, Esquire COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL -= == -j BY: CHRISTOPHER J. JOHNSON a" 'a C- - -11 Assistant Counsel `,r .e•? ` \: x'71, Attorney I.D. No. 204296 '\ RIVERFRONT OFFICE CENTER, 3d FLOOR `;- 1101 SOUTH FRONT STREET }- PENNSYLVANIA 17104-2516 HARRISBURG , (717) 787-2830 -? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, } DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES } vs. RICHARD D. DAVENPORT } } NO. 2011-319 ORDER AND NOW, on this 17'h 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. Attest: ? James K. Reed, Esq., 1101 Opal Court, Hagerstown, MD 21740 a?? Cop MIf pib ? Christopher J. Johnson, Esq., PennDOT Office of Chief Counsel, Riverfront Office Center, 1101 S. Front Street, Harrisburg, PA 17104-2516 BY THE COURT: