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HomeMy WebLinkAbout11-1574116 Fi?D-Crli:;L 2n,111 FEB 10 PM 12'. 27 Philip L. Zulli, Esquire Attorney ID No.: 47499 155 Grandview Road Hummelstown, Pennsylvania 17036 (717) 566-8585 (717) 566-2373 CUMBERLAND COUNT'( IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION : BUREAU OF MOTOR VEHICLES VS. Plaintiff/Respondent CIVIL ACTON - LAW No.: ZI ` j5`77 at- DWIGHT A. FOSTER, individually STATUTORY APPEAL and t/a FOSTER'S AUTOMOTIVE FROM SUSPENSION AND FINE OF EMISSIONS INSPECTION PRIVILEGES Defendant/Petitioner (INSPECTOR'S APPEAL) STATUTORY APPEAL FROM ORDER IMPOSING FINE AND SUSPENSION OF CERTIFICATE OF AUTHORIZATIONAS OFFICIAL EMISSIONS INSPECTOR NOW COMES, Dwight A. Foster, by and through his attorney, Philip L. Zulli, Esq., and files with this Honorable Court this appeal from the suspension and fine of his Certificate of Authorization as an Official Emissions Inspector pursuant to Section 4726(c) of the Vehicle Code as instructed by the Department in its official notice of fine and suspension: 1 2 Dwight A. Foster is a citizen of the Commonwealth, residing at 1220 Kunkle's Mill Road, Lewisberry, York County, Pennsylvania 17339. Foster is an official emissions inspector with the assigned number of 17154702, and is the sole owner of Foster's Automotive, an official emissions inspection station with 4Z 0 3-?,- 9? N-0 a. 5 y F. the assigned number of M692, located at 117 E. Strawberry Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. By Official Order dated and served on January 12, 2011, the Department of Transportation informed Petitioner as follows: "Pursuant to Departmental regulations, your Certification as an Official Emissions Inspector will be suspended for two ( 2 ) months and $250 fine for improper inspection (2002 Toyota, VIN 141BF28B12U217816, IMO-3444935 and 1997 Honda, VIN-1HGEJ8145VL091, IMO-3444919)." See attached Exhibit A. 4. Pursuant to said order, "THE SUSPENSION WILL BE EFFECTIVE February 16, 2011." 5. The suspensions and fines are not supported by fact or law. 6. The imposition of the $250 fine is ultra vires inasmuch as the Department does not have legislative authorization to impose fines. 7. The suspension is improper in that Petitioner exercised due diligence in operating the emissions analyzer; scanning the registration cards prior to emissions inspection; and following the prompts on the emissions analyzer screen; Petitioner properly conducted an inspection and did not issue certificates of emissions inspection without first conducting an emissions inspection in accordance with the information available to him; nor did he improperly record entries of inspection. 8. Petitioner is required by PennDOT to follow "the prompts displayed on the emission analyzer screen to enter the required inspection information." 9. Petitioner followed the prompts displayed on the emission analyzer screen. 10. The software of the emission analyzer providing the prompts is faulty and is the proximate cause of any error or omission, and this software is universal to all emission analyzers of the make and model used by petitioner and is not unique to petitioner's specific emission analyzer. 11. Other serious security issues exist with the Pennsylvania emissions inspection program's equipment and computerized storage of electronic data, inasmuch as: a. any inspector at any terminal, within any emissions inspection station within the Commonwealth, can directly access the central computerized database of all information pertaining to Pennsylvania vehicles, including year, make, model, vehicle title and registration numbers, and overwrite ANY specific identifying vehicle data with completely different data; and b. As a consequence, when any other station subsequently goes to perform an inspection upon that vehicle, it will receive any false information entered by another station, when the subsequent station "scans" the bar code on the vehicle's registration card; and c. PennDOT's system does not record or identify which terminal or station altered the data within the central database; and d. Hence, any information reported from said database is inherently unreliable. 12. That PennDOT, and/or its contracted vendors, have designed a system through which any inspector, at any terminal, at any station within Pennsylvania, can anonymously alter the data, within the central computer database for all vehicles within Pennsylvania, and thus for all other emission inspection terminals, at all emissions stations within the Commonwealth, and thus essentially re-write the information stored upon the central database, seriously undermines the credibility of the vehicle emissions testing equipment and the data that it holds in electronic form. 13. Furthermore, Petitioner is prepared to prove that the Commonwealth's training program for emission inspectors regarding how to operate the vehicle emissions testing equipment may be characterized as "inadequate at best; inaccurate at worst" and such contributes to inspectors not being adequately informed of certain glitches and problems with the vehicle emissions testing equipment and within the computer software thereof. 14. The deficiencies of the Commonwealth's vehicle emissions testing equipment, software and record retention have been brought to the Department's attention previously, but the Department does not take steps to correct the deficiencies of its program, but instead continues to hold the emissions inspectors to high standards, all the while failing to correct the known deficiencies within the Commonwealth's vehicle emissions inspection program. Indeed, the Department's approach is pharisaical: "For they bind heavy burdens and grievous to be borne, and lay them on men's [i.e. the inspectors'] shoulders; but they themselves will not move them with one of their fingers."' 15. Undersigned counsel telephoned counsel for the Department, Christopher Johnson, Tuesday, February 8, 2010, and inquired if the Department opposes the granting of a supersedeas, and Attorney Johnson advised undersigned counsel that the department DOES NOT OPPOSE the granting of a supersedeas pending final determination by this Honorable Court. WHEREFORE, Petitioner Dwight A. Foster of Foster's Automotive invokes his statutory right to appeal the suspension and fine and respectfully prays this Honorable Court for the following relief: 1. That this Honorable Court immediately stay imposition of the suspension and fine pending a trial de novo before this Honorable Court. 2. That Petitioner's Appeal from Suspension and Fine be sustained. Respectfully submitted, Philip L. lli, E Attorney ID No.: e99 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 (fax) Zulli@msn.com 1 Matthew 23:4 (KJV) jan. iy i i -i.[:ibp UV'VI(3H I 717-766-7306 p.2 enns tvania DEPARTMENT OF TRA1t1SPORTA-rm: Dwight A, Foster 117 E. Strawberry Avenue Mechanicsburg, PA 17055 (Fostees Automotive-018##.692) Vehicle Inspection Division P. O. Box 69003 Harrisburg, PA 17106-9003 Phone: (717) 787-2895 MECHANIC #: 17-154.702 CERTIFIED MAIL: 7004 2510 0001 4165 2299 M-4IL DATE: January 12, 2011 ORDER OF FINE AND SUSPENSION OF OFPTCIAL EN111SSiONS 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 ep emal regulations, your certification as an Official Emissions Inspector will be suspended for two (2) months and $250.00 fine forIimProae?, msyecdon(2002 Toyota, ITIN-4T1BF28812U217816, IMO-3444935 and [997 Honda, VLN-114GFIR 145VL093091, IMO-3444919). The suspension(s) will run consecutively, for a total suspension of two (2) months and $250.00 fine. This suspension is to run consecutively with any other suspension(s) unposed by the Department for any violation(s) considered separately. THE SUSPENSION WILI, BE EFFECTIVE February 16, 2011. You arc ordered to surrender to the bearer of this notice, who is an authorized representative of the Department of Transportation, your Emissions Inspector Certification Card and a check or money order made out to the, Commonwealth of Pennsylvania. Upon tite completion of your suspension, and all fines imposed are paid in full, your inspector certification card will be retuned to you. A check or money order maybe submitted to the, Department of Transportation, Vehicle Inspection Division, P. 0. Box 6901133; fTarrish??rg, PA 17106-9003, You have the right to appeal this Departmental Order of Suspension and fine, to the Court of Common Plew of the County in which the above rel`erence j 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, FILLNG OF AN APPEAL DOES NOT AUTOMATICALLY STAY THE SUSPENSION. In ord> r for your privileges to be restored pending appeal, a signed Order of Supersedeas front the Court directing the Department to stay the suspension and the fine, must be served upon the Deparment at the mailing address listed bela,%', i MAILING ADDRESS: Sincerely, Department of Transportation Chief Counsel's Office tGt..,{ r ???..... Riverfi-ont Office Center 1101 S. Front Street. 3rd Floor Anita M. Wasko, Director Harrisburg, PA 17104-2414 Bureau of Motor Vehicles Vehicle Inspections 1 1101 S. Front Street 1 1-la risburg, PA 17104 717-787-2895 Jan 21, 11 90:52a DWIGHT 717-766-7306 p.2 T T P.O. Box 68697, H"sbur0, PA 1Ti06-8687 Visit us at otir waWks at www dotstate.ba us INSPECTION HEARINGS. PURP06E This fact sheet outlines the Department's policy and procedures for insp of on hearings. The inspedion hearings' are- Informal Departmental hearings; they are not administrative prooeedings subject to the Pennsylvvania Administrative Code. The prooeediings of i ' n hearings. may not be transcribed . or re©=W m 'any fashion.. The rules of evidence do not apply to these hearings; however, only relevant evidence will be considered. A PennDOT won hearing Is hold in motion to _ any summary crimirad prao8eding that may be held before a District Magistrate regarding any city ws that' a State Trooper issued. Pursuant .to Sections 4724 and 4726 of the Venice Code, the Department is responsible for deciding whether to suspend inspection privileges, regardsess'of any decision by a DMict Magistrate O. Court of Common Pleas in a summary ortirunai case. An inspection hearing usually lasts about 36 minutes unless complicated, technical qu s .arise andlor many wftnesses are present. An attomey may accompany Ws or .her diets to the hbaring, but may not give testimony on behalf of a then or question anyone other than the- client The Department is unable to accommodate requests .for specific dates and limes for hearings; however, if emergency circumstances exist, the Department may reschedule a Deft hearing only ONCE. To request an emergency rescheduling, call (717 -705-0812 or (717) 783-6846 no less than fire -(6). business days before the originally scheduled heaOng date. The Department may deny a rescheduling request If it does not. oomply with the above c bndltion& if the.. station, owner or oontaot person whose name . appears on the - hearing not on teller is unable. to athmd the hearing, he or she may designate a service manager or-another person In autlhoft who is emptoyed at the station tp attend the hearing. ff to addressee of the letter exercises this option, he or she must provide the hearing oftloer with a letter _ecuftwA og the designee to 9ye testimony on the- station's behalf. if such a I~ is not presented to the heating of oer,. the designee may not give testimony at the hearing. The Department will notify the station's owner, or official oontedi person and any affected mechanic, of its final.•dedsiop after the hearing. All dedsions will. be provided in writing and either nWled by the Department or dellveied in perm. March ^000 VERIFICATION The undersigned having read the foregoing Appeal from Suspensions and Fines and states that the facts and language within are true and correct to the best of the undersigned signer's knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. §4904 of the Crimes Code (relating to unsworn falsification to authorities). Dwight . Foster, for himself and as Owner, Foster's Automotive February 10, 2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION : BUREAU OF MOTOR VEHICLES Plaintiff/Respondent •. VS. . DWIGHT A. FOSTER, individually and t/a FOSTER'S AUTOMOTIVE Defendant/Petitioner CIVIL ACTON - LAW No.. STATUTORY APPEAL FROM SUSPENSION AND FINE OF EMISSIONS INSPECTION PRIVILEGES (INSPECTOR'S APPEAL) CERTIFICATE OF SERVICE I certify that I am serving a copy of the foregoing Appeal upon the following party by personally delivering a copy today's date to the office of Christopher Johnson Assistant Counsel, Office of Chief Counsel Department of Transportation Riverfront Office Center, 1101 So. Front Street- 3rd Floor Harrisburg, PA 17104 Philip L. Zilli; I Attorney ID No. 499 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 (Fax) DATE: February 10, 2011 r, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES Plaintiff/Respondent VS. DWIGHT A. FOSTER, individually and t/a FOSTER'S AUTOMOTIVE Defendant/Petitioner CIVIL ACTON - LAW ° CO -n ll- )S?4 No.: -m' STATUTORY APPEAL FROM SUSPENSION AND FINE OF EMISSIONS INSPECTION PRIVILEGES (INSPECTOR'S APPEAL) CERTIFICATE OF CONCURRENCE e V e?.? -cz rn c:; I certify that I telephoned below counsel for the Department regarding Petitioner's request for a supersedeas pending final determination by this Honorable Court on February 8, 2011, and Department Counsel stated that the Department DOES NOT OPPOSE the granting of a supersedeas. Christopher Johnson Assistant Counsel, Office of Chief Counsel Department of Transportation Riverfront Office Center, 1101 So. Front Street- 3rd Floor Harrisburg, PA 17104 717-787-2830 Attorney 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 (Fax) DATE: February 10, 2011 a y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA m COMMONWEALTH OF PENNSYLVANIA CIVIL ACTON - LAW' DEPARTMENT OF TRANSPORTATION <_> BUREAU OF MOTOR VEHICLES < -? Plaintiff/Respondent 157 • No.: vs. DWIGHT A. FOSTER, individually and t/a FOSTER'S AUTOMOTIVE Defendant/Petitioner STATUTORY APPEAL FROM SUSPENSION AND FINE OF EMISSIONS INSPECTION PRIVILEGES (INSPECTOR'S APPEAL) ORDER AND NOW, this / Z-T day of February, 2011, a hearing de novo of Petitioner's appeal from imposition of fine and the suspension of his certificate of authorization as an official emissions inspector is scheduled for oeo 2011, at ?U M. in Courtroom number Cumberland County -lAi Courthouse, One Courthouse Square, Carlisle, Pennsylvania 17013-3387. Inasmuch as the Department does not oppose the granting of a supersedeas, the Department shall immediately stay imposition of the fine and suspension of Petitioner's Certificate of Appointment as emissions inspector pending final determination by this Court. BY THE COURT • , J. Distribution: hilip L. Zulli, Esq., 155 Grandview Rd., Hummels n, PA 17036, Phone 717-566-8585, Fax: 717-566-2373, Zulli@msn.com -Petitioner Counsel ?Christopher Johnson, Esq., Office of Chief Counsel, Riverfront Office Center, 1101 So. Front Street, A Harrisburg, PA 17104, Phone 717-787-2830, Fax 717-705-1122- Department Counsel (',pates at iq /if IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWIGHT A. FOSTER, individually and d/b/a } NO. 11-1574 FOSTER's AUTOMOTIVE 11-1575 VS. } COMMONWEALTH OF PENNSYLVANIA, } EMISSION INSPECTION STATION DEPARTMENT OF TRANSPORTATION APPEAL AGREED ORDER AND NOW, this 9' day of A(11 0 , 2013, upon agreement of the parties, the appeals filed in the above referenced afters are hereby settled and resolved as follows: A) The Department shall reinstate the suspensions of Petitioner's Certificate of Appointment as Official Emission Inspection Station and Official Emissions Inspector for the offense of Improper Inspection. B) The suspensions shall run concurrently, for a total time of one (1) month, effective March 1, 2013. There shall be no fine. Distribution: Christopher J. Johnson, Esq., PennDOT, Office Harrisburg, PA 17104 4 OL Chief Counsel, 1101 S. Front Street, 3d Fl., ? Philip L. Zulli, Esq., 155 Grandview Avenue, Hummelstown, PA 17036 Kx 4 Tom. BY THE COURT: