The URL can be used to link to this page

Home My WebLink About11-15758 FILE-u-CF F IC- t,rif 4 t -' -?11 FEB 10 PM 12: ^l t,UMBERLAili'J C0U'Ti 1'i, PENNSYLVANIA Philip L. Zulli, Esquire Attorney ID No.: 47499 155 Grandview Road Hummelstown, Pennsylvania 17036 (717) 566-8585 (717) 566-2373 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES Plaintiff VS. Dwight A. Foster, individually and and t/a Foster's Automotive Petitioner CIVIL ACTON - LAW No.: I I . 1 5 7,5- &d STATUTORY APPEAL FROM FINE & SUSPENSION OF EMISSIONS INSPECTION PRIVILEGES (STATION'S APPEAL) STATUTORY APPEAL FROM ORDER IMPOSING FINE AND SUSPENSION OF CERTIFICATE OF APPOINTMENT AS OFFICIAL EMISSIONS INSPECTION STATION NOW COMES, Dwight A. Foster, by and through his attorney, Philip L. Zulli, Esq., and files this appeal from the suspension and fines of his Certificate of Appointment as an Official Emissions Inspection Station pursuant to Section 4724(b) of the Vehicle Code pd? 9a .00 and Section 933(a)(1)(ii) of the Judicial Code: 1. Dwight A. Foster is a citizen of the Commonwealth, residing at 1220 Kunkle's Mill Road, Lewisberry, York County, Pennsylvania 17339. 2. 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 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 Certificate of Appointment 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 FINE AND 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 suspensions and fines 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. I Matthew 23:4 (KJV) February 10, 2011 Respectfully submitted, 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 (fax) Zulli@msn.com Attorney ID No.: 47499 Jan 19 11 12:18p DWIGHT 717-766-7306 p.1 pennsylvania .: DEPARTMENT OF TRANSPORTATION Vehicle Inspection Division Dwight A. Foster 1,. O. Box 69003 Poster's Automotive-01Si#M692 Harrisburg, PA 17106-9003 117 E. Strawberry Avenue Phonc: (717) 787-2895 Mmhaniesbulrg, PA 17055 STATION #: M692 CERTIFIED MAIL: 7004 2510 0001 4165 2282 MAIL DATE: January 12, 2011 ORDER OF FINE AND SUSPENSION OF OFFICIAL 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 inspec ions may ortne a y ur station during the suspension. Pursuant to Departmental regulations, your Certificate of Appointment will be suspended for two (2) inonths and $250.00 fine for improper inspection (2002 Toyota, VIN- 4T1BF28B12U217816, IMO-3444933 and 1997 Honda, VIN-1HGEJ8145VL093091, IN10- 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) imposed by the Department for any violation considered separately. THE FINE ANY) RUSPE)tSION WILL BE EFFECTIVE February 16, 2011. At this time, you are ordered to surrender to the Quality Assurance Officer, who is a representative of the Department of Transportation, your Emission Certificates(s) of Appointment, emission inspection stickers and nther related emission items. Your emissions inspection equipment will be locked out from ptrfom-&g official emissions 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, Post Office Box 69003, Harrisburg, PA 17106-9003. , You have the right to appeal this Departments; 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 MAIL DATE OF TMS ORDER. If you do file an appeal, a signed and tithe-stamped copy of the appeal must be served upon the Department at the mailing address listed below. FILING OF AN APPEAI. DOES NOT AUTOMATICALLY STAY TIIE SUSPENSION fn order for your privileges to he restored pending appml, a signed Order of Supersedeas from the Cnurt direating the Department to stay the suspension and the Cane, must be sensed upon the Department at the mailing address listed below. MALLLNG ADRESS: Departnicnt of Tramportntinn, Chief Counsel's Office, Riverlront Office Center, 1101 S. Front Street 3rd Floor, Harrisburg. PA 17104-2416 MALLING ADDRESS: Sinoorrly, Department of Trar+.aport tion ChicfC:ounsel'&Officc Riverh-ont Office Center 1101 S. Front Street, ird Flmr Anita M. Wasko, Director I larrishurg, PA 17104-2416 Bureau of-Motor Vehicles Vehicle Inspections 11101 S. Front Street 1 Harrisburg, PA 17104 1 7:7-787-2895 ,?-X-? I F> (-T- A- Jan-21 11 14,52a DWIGHT 717-766-7306 p.2 T 10 3P 1r T INSPECTION HEARINGS PURPOSE This fad sheet outlines the Department's policy and pmoodures for kq)W n hearings. The Inspection headngs? are- informal Departmental hearings; they are not administrative prooeedings subject to the Pennsylvania Ad'ninistrative Code. The prnoeedirgs of inspeoon hearings. may not be transcrlbed or recorded in anY fashion.. The rules of evidence do not apply to these t*adngs; however, only relevant evidence wN be oonsidered. A PennDOT inspection hearing is held In addition to. any summary cdn 9d Prooeecing that may be held before a Di &kt Magistrate regarding any citations than a Suft Trooper Issued. Pursuant to Sodom 4724 and 472$ of the Vef" Code, the Departrnarrt is responsible for deddhg whether to suspend inspection p+Aeges, regardless d any decision by a DW#Ict Magistrate or' Court of Common Pieas In a summary criminal case. An inspection hearing usually lasts about 30 minutes unless oompiiWed, teohnieai ins :arise anchor marry witnesses are present. An attorney nW aomnpany .his or her client tDthe hearing, but rrary not give testimony on behalf of a clent or questioct anyone other than the, diem. The Departrnertt is unable to accommodate requasis .for spedflc dates and limes for hearings; however, tf emergency otroursrstartces exist. the Oeparflrrent may reschedule a Department hearing only ONCE. To request. an emergency rescheduling, call (717) 705-0812 or (717) 783-6646 no less than five ?(5j. business days before the odginapy ac uAded hewing date. The Department may deny a resdx duing request if tt dog not. oomph/ with •the above condl om If. ft.. station- owner or oontaot person whose' name. appears on the hearing notion letter is unable, to attend the hearing, he or she may designate a servioe manager or another person in authortiy who is employed at the aeon to attend the headno. If the addressee of the letter axerdses this optloh, he or she must provide the hearing offioer with a Ietter:auffWA ng the designee to give testimony on the- station's behalf. ft such a lefty is not presented to the hearing offto0r,- the designed may not give t,edimony at the hearnng. The Depatfit118tit Will notify the Station's owner, or ofcld omW person and any affeded modmi% of its final.-dedsiofr after the headng. AN d$Cslo s will. be provided to vesting and either malted by the Depadment or delivered in person. March 2000 Bureau of LWw Vehicles - kwpm*on Dhrtsron P.O. Box 60697, Harrtsburg, PA 17106.6697 Visit us at our w+ebslts at www.rdot srt@taJnun ,_x 0 1 _? FT- VERIFICATION The undersigned having read the foregoing Appeal from Suspension and Fine 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 A. Foster, for imself and as Owner, Foster's Automotive February 10, 2011 a n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA : CIVIL ACTON - LAW DEPARTMENT OF TRANSPORTATION : BUREAU OF MOTOR VEHICLES Plaintiff/Respondent VS. No.: DWIGHT A. FOSTER, individually STATUTORY APPEAL and t/a FOSTER'S AUTOMOTIVE FROM SUSPENSION AND FINE OF EMISSIONS INSPECTION PRIVILEGES Defendant/Petitioner (STATION'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- P Floor Harrisburg, PA 17104 Philip L. Z4[li, ire Attorney ID No.. 7499 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 (Fax) DATE: February 10, 2011 l 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.. ?. 7-5 e? V) STATUTORY APPEAL FROM SUSPENSION AND FINE OF EMISSIONS INSPECTION PRIVILEGES (STATION'S APPEAL) CERTIFICATE OF CONCURRENCE 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 7 ""3 Department Counsel stated that the Department DOES NOT OPPOSE the gr in g?f a t riCo rn ;?T? M supersedeas. r- _ _s -<> o c , Christopher Johnson i T.- Assistant Counsel, ra c' Office of Chief Counsel 2t: Department of Transportation = ti Riverfront Office Center, 1101 So. Front Street- 3rd Floor Harrisburg, PA 17104 717-787-2830 DATE: February, 2011 r G Philip L. Zulh, Es uir Attorney ID No.: 9 155 Grandview Road Hummelstown, PA 17036 (717) 566-8585 (717) 566-2373 (Fax) 3 N PLEAS OF CUMBERLAND COUPW, IN THE COURT OF COMMON _ f 3 COMMONWEALTH OF PENNSYLVANIA C? ? COMMONWEALTH OF PENNSYLVANIA CIVIL ACTON - LAW DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES= cu . Plaintiff/Respondent ; No.. ?s75- VS. DWIGHT A. FOSTER, individually . and t/a FOSTER'S AUTOMOTIVE Defendant/Petitioner STATUTORY APPEAL FROM SUSPENSION AND FINE OF EMISSIONS INSPECTION PRIVILEGES (STATION'S APPEAL) 't': -? ;y C- ORDER AND NOW, this 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 inspection station is scheduled for M. in Courtroom e , 2011, at /l 1' OD 6-.. number, Cumberland County 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 inspection station pending final determination by this Court. BY THE COURT Fare: 717-566-2373, Zulli @msn.com - eti oner o n- l.? I P? Christopher Johnson, Esq., Office of Chief Counsel, Riverfront Office Center, 1101 So. Front Street, P fed Harrisburg, PA 17104, Phone 717-787-2830, Fax 717-705-1122- Department Counsel J. Distribution: Philip L. Zulli, Esq., 155 Grandview Rd., Hummelstown, PA 17036, Phone 717-566-8585, P 'ti r unsel 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.L/ vs. } COMMONWEALTH OF PENNSYLVANIA, } EMISSION INSPECTION STATION DEPARTMENT OF TRANSPORTATION APPEAL AGREED ORDER AND NOW, this /I- day of 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. BY THE COURT: 111nL J. Distribution: ?j Christopher J. Johnson, Esq., PennDOT, Office Harrisburg, PA 17104 Chief Counsel, 1101 S. Front Street, 3d Fl., ? Philip L. Zulli, Esq., 155 Grandview Avenue, Hummelstown, PA 17036 v '? c s ??c1 led l"x" n - ?Y