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HomeMy WebLinkAbout14-0448 01/9916401A 1 MARSHALL DENNEHEY WARNER COLEMAN AND GOGGIN Attorney for BY: Thomas J. O'Malley, Esq. Pep Boys - Manny, Moe & Jack OIS #T241 Identification No. 72121 and/or Scott L. Elliott 2000 Market St., Ste. 2300 Philadelphia, PA 19103 4. (215) 575 -2657 -:7 PEP BOYS - MANNY, MOE & JACK -OIS #T241: COURT OF COMMONA and /or Scott L. Elliott, Service Manager CUMBERLAND COUN�PA, 13 V. PENNSYLVANIA DEPARTMENT OF y ' 15 cl�) TRANSPORTATION NO. y j l � APPELLANT, THE PEP BOYS - MANNY, MOE & JACK —OIS #T -241 PETITION OF SUPERSEDEAS 1. An Order of Fine and Suspension of Official Emission Inspection Station was mailed by the Department of Transportation on or about January 3, 2014. Attached hereto and marked as Exhibit "A" is a true and correct copy of the Order of Suspension of Official Inspection Station. 2. According to said Order, the Commonwealth of Pennsylvania Department of Transportation is attempting to suspend appellant, The Pep Boys - Manny, Moe & Jack and/or Scott L. Elliott OIS #T241 Certificate of Appointment for a total suspension of (2) two months for improper recordkeeping, including a lesser offense of careless record keeping. 3. Your petitioner /appellant, Manny, Moe & Jack and /or filed an Appeal on or about January 23, 2014, attached and marked hereto as Exhibit "B" is a true and correct copy of the attested Notice of Appeal. 4. Pursuant to the Court Order signed by the Director of the Bureau of Motor Vehicles, your petitioner hereby prays that the Court of Common Pleas of Cumberland County, Caws 0�_ hereby directs that the Pennsylvania Department of Transportation to Stay said suspension at this time pending the instant Appeal. 5. Mr. Scott L. Elliott, Service Manager, sent from the Pep Boys to the Department of Transportation Chief Counsel's Office by certified and return receipt mail, a copy of the letter requesting an Appeal prior to the Notice of Appeal being filed in a timely fashion, as well. See attached hereto Exhibit "B." Respectfully Submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: THOMAS J. O'MALLEY, ESQUIRE Attorney for Appellant, The Pep Boys - Manny, Moe & Jack- OIS #T241 and /or Scott L. Elliott I` MARSHALL DENNEHEY WARNER COLEMAN AND GOGGIN Attorney for BY: Thomas J. O'Malley, Esq. Pep Boys - Manny, Moe & Jack OIS #T241 Identification No. 72121 2000 Market St., Ste. 2300 Philadelphia, PA 19103 (215) 575 -2657 PEP BOYS - MANNY, MOE & JACK -OIS #T241: COURT OF COMMON PLEAS and/or Scott L. Elliott, Service Manager CUMBERLAND COUNTY, PA V. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION NO. MEMORANDUM OF LAW IN SUPPORT OF APPELLANT, THE PEP BOYS - MANNY MOE & JACK —OIS #T -241 PETITION OF SUPERSEDEAS I. FACTS The petitioner, your appellant, The Pep Boys- Manny, Moe & Jack and /or Scott L. Elliott hereby incorporate its Petition for Supersedeas as though fully set forth herein. II. LAW Your petitioner /appellant, The Pep Boys- Manny, Moe & Jack- OIS #T241 and /or Scott L. Elliott has perfected its Appeal by filing a Notice of Appeal with the Prothonotary's office, Court of Common Pleas of Cumberland County, along with the relevant fee. Pursuant to the Order of Suspension, your petitioner has filed the instant Petition for Supersedeas in order to have the Department of Transportation stay the enclosed Suspension Order of Official Emission Inspection Station for Pep Boys Manny Moe Jack — OIS #T241 and /or Scott L. Elliott, 6100 Carlisle Pike, Mechanicsburg, PA 17055. According to 67 Pa.C.S.A. §175.5(1) entitled "Cause for Suspension," reads as follows: The violation of improper record keeping for a first time violator is two months. The Department of Transportation is attempting to have your appellant's license to conduct motor vehicle inspections -suspended for two months at the 6100 Carlisle Pike, Mechanicsburg, PA location. There has been no evidence produced to date that the Pep Boys store at 6100 Carlisle Pike, Mechanicsburg, PA 17055 has ever had a prior violation. Furthermore, your appliance is unaware of any other violations. Your appellant's the Pep Boys Manny Moe and Joe and /or Scott L. Elliott, are entitled to a hearing in order for due process to occur to investigate the Department of Transportations' allegations. According to 67 Pa.C.S.A. §175.5(1) the violation of careless record keeping exposes the appellant to a warning of a first violation and four month suspension for a second violation. Again, there is no evidence whatsoever of any prior violations of the motor vehicle code or the Department of Transportation guidelines. Consequently, your appellant hereby respectfully requests that the Suspension Order is stayed. Moreover, pursuant to 67 Pa.C.S.A. §175.5(1) (b) entitled "Assignment of Points" reads as follows: The Department will permit the station owner to consent to the acceptance of a point assessment of the station in lieu of suspension if the station owner, manager, supervisor or other management level employee was without knowledge of the violation, and should not have known of the violation. In the instant matter, your appellant should be given the opportunity to accept the assessment of points in lieu of suspension, in that there is no evidence whatsoever that any Pep Boys employee, had any knowledge Department of Transportation's violations. It is well settled in the Commonwealth that the Department of Transportation must consider the point system penalty alternative delineated above in regard to assessing any type of suspension of a license. Strickland v. Department of Transportation 574 A. 2d 110 (Pa. Cmwlth. 1990). III. CONCLUSION It is respectfully requested that the attached Order be entered hereto. Respectfully Submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: OMAS J. O MALLEY, ESQUIRE Attorney for Appellant, The Pep Boys - Manny, Moe & Jack- OIS #T241 CERTIFICATE OF SERVICE I, Thomas J. O'Malley Esquire, do hereby certify that a true and correct copy of the within Petition of Supersedeas was served upon all parties by first class mail on the date signed below at the following addresses: Pennsylvania Department of Transportation (PennDOT) Office of Chief Counsel, 3rd Floor Riverfront Office Center Harrisburg, PA 17104 -2516 By: THOMAS J. O'MALLEY, ESQUIRE Date: "�� es pennsylvania DEPARTMENT OF TRANSPORTATION Vehicle Inspection Division Scott L. Elliott Post Office Box 0 The Pep .Boys Manny Moe Jack - 01S #T241 6100 Carlisle Pike Harrisburg, PA ] 7 7106 6 -9003 Mechanicsburg, PA 17055 Phone: (717) 787 -2895 STATION: T241 CERTIFIED MAIL: 7004 2510 0001 4167 2976 ,MAIL DATE: January 3, 2014 ORDER OF SUSPENSION OF OFFICIAL INSPECTION j A`140 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 improper record keeping including the lesser offense of careless record keeping (During a routine audit Quality Assurance Officer Kristin DeFrehn discovered the folllowing violations; the voided stickers not kept for Quality Assurance Officer to verify, 115 vehicles out of 287 vehicles subject to anti tampering check for safety inspection, were not checked, cannot verity by work orders that these components were checked/inspectcd, out of 600 entries audited, 169 omissions /errors found in MV431 (brake /tire specs, sticker exp date, sticker »umbers, total cost, county, body, make, odometer, registration number, expired Insurance bonded /rivited). Stickers used out of sequence numberous times. Not all inspectors are using full signature on either MV431 or work orders, only using initials). The suspension(s) will run consecutively, for a total suspension of two (2) 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 EF'F'ECTIVE February 4, 2014. At this time, you are ordered to surrender to the Quality Assurance Officer, who is r. 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 may be 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 mailingtiddress listed below. FILING OF AN A.PPEA.1 r DOES NOT AUTOMATICALLY STAY THE SUSPENSION. i n order for your privileges to be restored nendina ap peal, as signed Order of Supersede from the Court d irecting the Department to stay the suspension must be served upon the Department at the mailing a ress listed below. MAILING ADDRESS: Sincerely, Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S, Front Street, 3rd Floor Anita M. Wasko, Director Harrisburg, PA 17104 -2416 Bureau of Motor Vehicles Vehicle Inspections 1 1101 S. EXHIBIT PA 17104 717 -787 -2895 1 A- Dept. of Transportation Chief counsel office; Riverfront office center 1101 S. Front st Y floor Harrisburg Pa 17104-2416 I am writing in regards to the order of suspension, for station T241 I Scott Elliott ant the new service manager at this station. I was put in place 4/13 the same day that the audit with these infractions took place. I have put some checks and balances in place to keep the clerical errors that caused these violations from happening. I am aware that this station has had a storied past with the last 4 service managers and I am trying to correct the past damage. I would like to appeal this suspension Sincerely Scott Elliott Service Manager _ Station t241 7013 DkOO 9001 5531 6381 Pep boys' o 22- 6100 carlisle pike Mechanicsburg pa 17055 ' O M 717- 691 -0860 a� - i I I EXHIBIT 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA The Pep Boys Manny Moe Jack OIS #T241 and /or Scott L. Elliott No. (Type your name) Vs. Suspension of Official Inspection Station Appeal Commonwealth of Pennsylvania Department of Transportation Bureau of Drivers Licensing APPEAL OF SUSPENSION OF OFFICIAL INSPECTION STATION AND NOW, this (enter toda�s date) January 23 , 2014 comes the Appellant, (Type your name) Pep Boys Manny Moe Jack -T241 and /or by his attorney, Thomas J. O'Malley, Esq. and states as follows: S coff L. Ellio 1. Appellant operate an official inspection station located at 6100 Carlisle Pike, Mechanicsburg, PA 17055. 2. PennDOT proposes, by Notice dated January 3, 2014 to suspend appellant's safety inspection service privileges for a period of two (2) months pursuant to Section 4724 of the Vehicle Code, which will take effect on February 4, 2014. 3. Under the attached Order, the appellant, Manny Moe & Jack and /or Scott L. Elliott, has the right to appeal this departmental order of suspension to the Court of Common Pleas of Cumberland County. 4. Appellant, Manny Moe & Jack and /or Scott L. Elliott request the appeal to be perfected and the order of suspension of ojficjal ins eciton stations, mail date: 01/23/14 is ap ealled. * A copy of the Notice sent by PennDOT is attached to this Appeal * * ** 3. The suspension of Appellant operating privileges is contrary to law in that: (Check those which apply) F] The police lacked reasonable grounds to stop Appellant and / or request Appellant to submit to a chemical test. F] Appellant did not knowingly or intelligently refuse a chemical test; The conviction on which Appellant suspension is based was overturned by successful appeal, OR is currently under appeal. (Attach a copy of the court docket this Appeal). IA I Other (Specify reason:) according to 67 Pa.C.S.A. §175.5 (1) entitled "Cause for Suspension" the appellant shall consent to the acceptance of a point assesment for the station in lieu of a suspension with regard to these particular facts. Moreover, it is well settled in the Commonwealth of Pennsylvania, Department of Transportation must consider the point system penalty delineated above in regard to assessing any type of suspension of a license. Strickland v. Department of Transporation, 57.4 A.2d 110 (Pa. Cmwlth. 1990). 1 -OR- The suspension of Appellant automobile registration is contrary to law in that: My failure to have insurance was for a period of less than 31 days AND I did not drive nor permit anyone else to drive my vehicle during the time it was without insurance. (Attach proof of insurance to this Appeal and either a notarized statement of PennDOT form MV -221 to document non - operation of the vehicle). Other (specify reason:) WHEREFORE, Appellant respectfully requests this Honorable Court to sustain the appeal from the suspension of operating privileges or automobile registration. Respectfully submitted, tA� • ' (Sign name here) Thomas J. O'Malley, Esq. (Type name here) VERIFICATION The undersigned hereby states that the statements made in the attached Appeal of Suspension or Registration are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements in the attached Appeal are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. �! Signatu re: Type Name: Thomas J. O'Malley, Esq. Address: 2000 Market St., Ste. 2300 City / State / Zip Code: Philadelphia, PA 19103 Telephone Number: (215) 575 -2657 Email address: tjomalley @ mdwcg.co 2 2r r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PEP BOYS - MANNY, MOE & JACK-OIS #T241 : TERM and/or Scott L. Elliott, Service Manager V. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION NO. !J ORDER AND NOW, to wit, this p�,� day of LIAMMA ' 2014, it is - hereby Appellants, The Pep Boys-Manny, Moe & Jack-OIS#T241/Sco�tttt L. Elliott's Motion for Supersedeas GRANTED pending a hearing on (-` at a.m. A copy of this Order shall be mailed to the Commonwealth of Pennsylvania Department of Transportation Chief Counsel's Office, Riverfront Office Center, 1101 South Front Street, P floor, Harrisburg, PA, 17104-2416. BY THE COURT J. CD � � r C) AC } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PEP BOYS — MANNY, MOE, & JACK, OIS # T241 and/or SCOTT L. ELLIOTT, Service Manager vs. COMMONWEALTH OF PENNSYLVANIA, NO. 2014-0448 INSPECTION STATION DEPARTMENT OF TRANSPORTATION SUSPENSION APPEAL AGREED ORDER AND NOW, this 2nd day of June, 2014, by agreement of the parties, the appeal filed in the above referenced matter is hereby CONTINUED and RESCHEDULED for the ZO day of A wt 4 , 2014, at 67:60 Counf Courthouse, Carlisle, PA. y C� .m., in Courtroom No. BY THE COURT: , Carlisle Attest: / ..Christopher J. Johnson, Esq., PENNDOT, Office of Chief Counsel, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516 ihomas J. O'Malley, 2000 Market street, Suite 2300, Philadelphia, PA 19103 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PEP BOYS — MANNY, MOE, & JACK, OIS # T241 and/or SCOTT L. ELLIOTT, Service Manager vs. COMMONWEALTH OF PENNSYLVANIA, NO. 2014-0448 INSPECTION STATION DEPARTMENT OF TRANSPORTATION SUSPENSION APPEAL AGREED ORDER AND NOW, this 20th day of August, 2014, by agreement of the parties, the appeal filed in the above referenced matter is hereby settled and dismissed as set forth herein. The parties have agreed that the petitioner will be assessed one (1) point in lieu of a two-month suspension, for the offense of improper record-keeping, and that the suspension currently under appeal shall be rescinded. It is further ordered that, by agreement of the parties, the appeal is hereby WITHDRAWN and DISCONTINUED. BY THE COURT: Attest: Christopher J. Johnson, Esq., PENNDOT, Office of Chief Counsel, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516 i Thomas J. O'Malley, 2000 Market street, Suite 2300, Philadelphia, PA 19103 C©fiies , . lam' f/a©/ ly