Loading...
HomeMy WebLinkAbout14-1360IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC : CIVIL ACTION — LAW and EQUITY Appellants NO. 1 y _ /36 /w 1 ..ra=y 8c: COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION, : " co Appellee - ry • ▪ Appeal from PennDot Determination • • pursuant to 75 Pa.C.S. §4724 Petition for Appeal from an Order of Fine and Suspension of Official Emission Inspection Station Certification NOW COMES, the Appellant (Petitioner), by and through its attorney, Sheffield Law, LLC, and files this Appeal from an Order of Fine and Suspension of Official Emission Inspection Station issued by the Appellee, the Commonwealth of Pennsylvania Department of Transportation, PennDot, such suspension having been issued by letter dated February 4, 2014. Appellant (Petitioner) respectfully sets forth the following: 1. Appellant is Total Lube Center Plus, Inc., a duly organized corporation under the laws of the Commonwealth of Pennsylvania and doing business in Cumberland County, Pennsylvania at 118 Walnut Bottom Road, Shippensburg. 2. Appellee is the Department of Transportation of the Commonwealth of Pennsylvania, PennDot, with a mailing address of Department of Transportation, Chief Counsel's Office, Riverfront Office Center, 1101 S. Front Street, 3rd Floor, Harrisburg, PA 17104 -2416. ,x /0,3. 7sf,d/ C # //o 9 ie3- 302 Vef 3. By letter dated February 4, 2014, a copy of which is attached hereto and incorporated herein as Exhibit No. 1, PennDot issued an Order of Fine and Suspension of Official Inspection Station in which PennDot immediately suspended Total Lube Center Plus, Inc.'s Certificate of Appointment as an Official Emission Inspection Station pursuant to 75 Pa.C.S.A. § 4724. 4. PennDot's power to issue such suspensions and fines is governed by 67 Pa.C.S.A. Chapter 177 Subchapter F titled "Schedule of Penalties and Hearing Procedures ". 5. 67 Pa.C.S.A. § 177.651 is titled "Notice of alleged violation and opportunity to be heard prior to immediate suspension" and this section requires that prior (emphasis added) to an immediate suspension the Department shall (emphasis added) within 3 days, provide written notice of the alleged violation and (emphasis added) the opportunity to be heard. 6. In the matter sub judice, Total Lube Center Plus, Inc. was never afforded an opportunity to be heard, and in fact was never even issued a citation of any kind. The matter stems from an incident in which the President of Total Lube Center Plus, Inc., Timothy L. Vaughn, who also works as an emissions technician, was cited for issuing an inspection certificate without performing an inspection and fraudulent record keeping regarding a situation in July of 2013. 7. Mr. Vaughn's matter has never been heard by any administrative review board or any Court of Common Pleas. Mr. Vaughn's citation was scheduled for a Departmental Hearing on November 11, 2013, but Mr. Vaughn got lost on his way to the hearing and was unable to be at the hearing. 8. Mr. Vaughn appealed the decision of the Departmental Hearing, as he was never actually heard. A letter acknowledging receipt of Mr. Vaughn's appeal and request for hearing regarding the matter was issued January 15, 2014 and is attached hereto as Exhibit No. 2. 9. A Scheduling Conference was scheduled to be held on January 31, 2014 regarding Mr. Vaugn's appeal. At that Conference apparently the Commonwealth was unready to proceed. 10. Mr. Vaughn's underlying citation has not been finally adjudicated, nor has it actually even been fully heard, and it is currently under appeal. 11. Regardless of Mr. Vaugn's personal status however, Total Lube Center Plus, Inc., a separate entity from Mr. Vaughn, was never even issued a citation or ever given an opportunity to be heard, in direct violation of 67 Pa.C.S.A. § 177.651. 12. The penalty imposed on Total Lube Center, Inc. was based upon an allegation that an inspection was issued without an inspection taking place, and Mr. Vaughn and Total Lube Center Plus, Inc. explicitly deny that a sticker was issued without an inspection taking place. In fact, an inspection did take place, an engine error code was found, the engine error code was repaired, and after the engine code was repaired the emission machine failed to operate properly. 13. The emission machine failed to operated properly most likely due to a software or hardware flaw in the equipment required and programmed by PennDot or an agent of PennDot. 14. Additionally, PennDot alleged that Mr. Vaughn kept "fraudulent" paperwork regarding this incident, which Mr. Vaughn and Total Lube Center, Inc. explicitly deny. The paperwork kept was consistent with the requirements of documenting inspections and properly indicated what had transpired. There was absolutely nothing "fraudulent" in the way Mr. Vaughn recorded the incident. 15. PennDot does not detail in any of its allegations exactly what conduct by Mr. Vaughn arose to the level of fraud. 16. Pa.C.S.A. 67 § 177.602 is a schedule of penalties and is attached hereto as Exhibit No. 3. In the schedule of penalties, there is identification of fraudulent record keeping, improper record keeping, and careless record keeping but there is no definition as to what the differences are, but the penalties for a first offense range from a year suspension and $2,500 fine to a warning and no fine. 17. In the schedule of penalties there is identification of issuing an emission certificate without an inspection, which is alleged in this matter but fervently denied by Mr. Vaughn and Total Lube Center Plus, Inc., and there is also identification of an improper inspection. Again, there is no definition as to what the difference is precisely, but the penalties range from a one year suspension and $2,500 fine to a warning and no fine. 18. Total Lube Center Plus, Inc. has been in continuous business inspecting vehicles and providing other services to the public since 2005 and has performed an average of approximately 1,700 inspections annually. 19. Total Lube Center Plus, Inc. has had no other citation violations during their entire period of conducting business and maintains an A+ rating from the Better Business Bureau. 20. Total Lube Center Plus, Inc. employs eight safety inspection technicians, of which five are also emissions inspection technicians. All the technicians have in excess of a year seniority with Total Lube Center Plus, Inc, with five of the technicians having been with Total Lube Center Plus, Inc. since its beginning of operations. No technicians, prior to this incident, had any citations issued against them from PennDot. 21. Given Mr. Vaugn's long history as an emissions technician without any infractions and the long history of Total Lube Center Plus, Inc. as an Official Inspection Station without any infractions and a longstanding outstanding reputation in the community, it is overly harsh to say the least to conclude without an actual hearing that Mr. Vaughn and Total Lube Center Plus, Inc. all of a sudden are guilty of the highest offenses possible under the statutory code and immediately, without a hearing, subject to the highest penalty. 22. The penalty imposed in this matter against Total Lube Center Plus, Inc., would effectively cause the business to be closed and for all eight technicians to possibly be left unemployed. 23. The allegations against Mr. Vaughn are under appeal and issuance of an immediate suspension and fine against Total Lube Center Plus, Inc. are premature and excessive. 24. The Order of Fine and Suspension of Official Emission Inspection Station issued by PennDot against Total Lube Center Plus, Inc. is in need of a full hearing and judicial review by the Court of Common Pleas pursuant to 75 Pa. C.S.A. § 4724(b). WHEREFORE, Total Lube Center Plus, Inc., respectfully requests this Honorable Court to schedule a hearing in this matter and that the Order of Fine and Suspension be set aside in its entirety. Respectfully submitted, is Sh - ffiel s , P.O. Box 218 Shippensburg, PA 17257 (717) 262 -0025 phone (717) 262 -0079 fax CERTIFICATE OF SERVICE I certify that I have this day served a true and correct copy of the foregoing document by U.S. First Class Mail, postage prepaid, on the following person(s): Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104 -2416 Dated: March 4, 2014 C ris Sheffield, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC CIVIL ACTION — LAW and EQUITY Appellants : NO. VS. COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION, : Appellee • Appeal from PennDot Determination • • pursuant to 75 Pa.C.S. §4724 VERIFICATION I, Timothy L. Vaughn, President of Total Lube Center Plus, Inc., verify that the statements made in this Petition are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: imothy L. Vaughn, President Total Lube Center Plus, Inc. OS -2 (10 -08) pennsylvania *' DEPARTMENT OF TRANSPORTATION www.dot.state.pa.us February 4, 2014 Timothy J. Vaughn Total Lube Center Plus Inc -OIS# BB28 118 Walnut Bottom Road Shippensburg, PA 17255 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 inspections may be performed during the suspension. Pursuant to Departmental regulations, your Certificate of Appointment is suspended for for one (1) year and a $2,500.00 fine for furnish, lend, give, sell or receive a certificate of inspection without inspection and one (1) year and a $2,500.00 fine for fraudulent record keeping. On June 2, 2012 Inspector Timothy Lee Vaughn Operator #19979879 inspected a 2003 VW Jetta VIN #3VWSK69M53M158988 and issued emission sticker IM24737564. The suspension(s) will run consecutively, for a total suspension of two (2) years and $5,000.00 fine . This suspension is to run consecutively with any other suspension(s) imposed by the Department for any violation considered separately. You are ordered to surrender to the bearer of this notice, who is a representative of the Department of Transportation, your Certificate(s) of Appointment, all emission inspection stickers, other related emission items and a check or money order made out to the Commonwealth of Pennsylvania. Your emissions inspection equipment will be locked out from performing 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, P. O. Box 69003, Harrisburg, PA 17106 -9003. You have the right to appeal this Departmental 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 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 and the fine, 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 Harrisburg, PA 17104 -2416 Sincerely, Anita M. Wasko, Director Bureau of Motor Vehicles Vehicle Inspections 1101 S. Front Street Harrisburg, PA 17104 1 717 - 787 -2895 e t-i- h 6 )--r /\jo COMMONWEALTH OF PENNSYLVANIA GOVERNOR'S OFFICE OF GENERAL COUNSEL January 15, 2014 Timothy Lee Vaughn 120 Fogletown Road Belin, PA 15530 RE: TIMOTHY LEE VAUGHN INTENT TO SUSPEND OFFICIAL EMISSION INSPECTOR CERTIFICATION NO. 19979879 NO. 005 A.D. 2014 Dear Mr. Vaughn: Receipt of your appeal and request for hearing regarding the Department's intent to suspend your Official Emission Inspector Certification is hereby acknowledged. You will be notified by separate mail of the time and date for the hearing. Any correspondence or documents to be filed with this Office must contain the caption as listed above and must consist of an original and two copies. Any documents not meeting these requirements will be returned, without docketing, as deficient. As Administrative Docket Clerk, 1 am responsible for providing the Department Hearing Officer with copies of any documents that have been filed; however, you are responsible for serving Department staff counsel, Donald J. Smith, at the Office of Chief Counsel, 1101 South Front Street, Harrisburg, Pennsylvania 17104 -2516, as well as any other interested parties. Your documents must contain a proof of service on all parties. Please see 67 Pa. Code, Chapter 491 for more information. Please feel free to contact me if I can answer any questions. Sincerely, Patricia A. Smith Administrative Docket Clerk Department of Transportation' Office of Chief Counsel 1 Administrative Docket P.O. Box 8212 1 Harrisburg, PA 17105 -8212 1 717.772.8397 1 Fax: 717.772.2741 1 www.dot.state.pa.us CX (4 tlo. cc: Eric J. Jackson, Department Hearing Officer Donald J. Smith, Assistant Chief Counsel Anita M. Wasko, Director, Bureau of Motor Vehicles Pennsylvania Code § 177.602. Schedule of penalties for emission inspection stations. Page 3 of 70 (a) Schedule of penalties. The complete operation of an official emission inspection station shall be the responsibility of the owner. Failure to comply with the appropriate provisions of the Vehicle Code or this chapter will be considered sufficient cause for suspension of emission inspection privileges. In addition, violators are also subject to criminal prosecution. Every general, fleet or Commonwealth emission inspection station shall be subject to the following schedule of penalties and suspension: Kw. 3 Duration of Suspension Type of Violation 1st Offense 2nd Offense 3rd and Subsequent Offenses Category 1 (Fraudulent Activities) (i) Issuance or possession of altered, forged, stolen or counterfeit certificate of emission inspection 1 year and $2,500 fine Permanent and $5,000 fine (ii) Furnish, lend, give, sell or receive a certificate of emission inspection without inspection 1 year and $2,500 fine Permanent and $5,000 fine (iii) Fraudulent recordkeeping 1 year and $2,500 fine Permanent and $5,000 fine Category 2 (Improper Activities) (iv) Faulty inspection 3 months and $1,000 fine 1 year and $2,500 fine 3 years and $5,000 fine (v) Inspecting more subject vehicles per hour per emission inspection inspector than permitted by § 177.408(g) 3 months 6 months 1 year (vi) Failure to produce records upon demand by Department quality assurance officer or other authorized Commonwealth representative or agent 3 months or until produced, whichever is greater 6 months or until produced, whichever is greater 1 year or until produced, whichever is greater (vii) Inspection by uncertified inspector 3 months 6 months and $1,000 fine 1 year and $2,500 fine (viii) Improper recordkeeping 2 months 6 months 1 year (ix) Improper inspection Warning 2 months and $250 fine 6 months and $500 fine (x) Requiring or indicating unnecessary repairs for purpose of inspection 3 months 6 months 1 year (xi) Misstatement of fact 1 month 3 months 1 year 1 month 3 months 1 year Kw. 3 , Pennsylvania Code Page 4 of 70 (xii) Improper assigning of certificate of inspection (xiii) Failure to verify registration or emission inspecting a vehicle with an expired registration 2 months 4 months 6 months (xiv) Failure to affix certificate of inspection immediately upon successful completion of the inspection 2 months 4 months 6 months Category 3 (Careless Activities) (xv) Inspection by emission inspector with suspended, revoked, cancelled, expired or recalled vehicle operating privilege (xvi) Inspection by emission inspector with expired inspector certification (xvii) Improper use of emission inspector certification (xviii) Improper security of certificate of inspection (xix) Unclean inspection area (xx) Careless recordkeeping (xxi) Missing or broken tools 2 months Warning Warning Warning Warning Warning Warning, if repaired or replaced; if not, suspension until tools are repaired or replaced 4 months 4 months 2 months and $250 fine 3 months Warning Warning 1 month or until tools are repaired or replaced, whichever is greater 6 months 6 months 6 months and $500 fine 1 year 3 months 3 months 6 months or until tools are repaired or replaced, whichever is greater (xxii) Bad Check Category 4 (Negligent) Warning, if amount due is paid within 10 days from date notified. If not, suspension until amount is paid 3 months or until amount due is paid, whichever is greater 6 months or until amount due is paid, whichever is greater (xxiii) Failure to report discontinuance of business (xxiv) Failure to notify the Depai tuient of changes of ownership, location or other changes affecting an official inspection station (xxv) Failure to make emission inspection test printout available to customer 1 year 3 months Warning 2 years 6 months Warning and $100 fine Permanent 1 year 1 month IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC : CIVIL ACTION — LAW and EQUITY Appellants NO. VS. COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION, : Appellee CD 1 CD : Application for Stay of an Order of Fine and : Suspension of Official Emission Inspection Station : Pursuant to 75 Pa.C.S.A. § 4724 Application for Stay Pending Appeal from an Order of Fine and Suspension of Official Emission Inspection Station Certification NOW COMES, the Appellant (Applicant), by and through its attorney, Sheffield Law, LLC, and files this Application for Stay of the Order of Fine and Suspension of Official Emission Inspection Station issued by the Appellee, the Commonwealth of Pennsylvania Department of Transportation, PennDot, such suspension having been issued by letter dated February 4, 2014. Appellant (Applicant) respectfully sets forth the following: 1. Appellant (Applicant) is Total Lube Center Plus, Inc., a duly organized corporation under the laws of the Commonwealth of Pennsylvania doing business in Cumberland County Pennsylvania at 118 Walnut Bottom Road, Shippensburg. 2. The Appellee is the Pennsylvania Department of Transportation, PennDot, with a mailing address of Department of Transportation, Chief Counsel's Office, Riverfront Office Center, 1101 S. Front Street, 3rd Floor, Harrisburg, PA 17104-2416. 3. On February 4, 2014, PennDot issued an "Order of Fine and Suspension of Official Emission Inspection Station" via letter to Total Lube Center Plus, Inc., a copy of said letter is attached hereto and incorporated herein as part of Exhibit "A ", the Appeal filed contemporaneously herewith by Appellant in this matter, Total Lube Center Plus, Inc. 4. The Order from PennDot set forth an immediate suspension of Total Lube Center Plus, Inc.'s Certificate of Appointment as an Official Emission Inspection Station for a period of two years (two consecutive one year suspensions) and a $5,000 fine (two separate $2,500 fines combined). 5. Total Lube Center Plus, Inc. was not afforded an opportunity to be heard prior to the issuance of the Order of Fine and Suspension. 6. An opportunity to be heard prior to any such suspension is necessary pursuant to 67 Pa. Code § 177.651, which requires within three days of written notice of alleged violations and the opportunity to be heard prior to the immediate suspension. (Emphasis added) 7. Contemporaneous with the filing of the Application, Total Lube Center Plus, Inc. has filed a "Petition for Appeal from an Order of Fine and Suspension of Official Emission Inspection Station" with the Cumberland County Court of Common Pleas pursuant to 75 Pa.C.S.A. § 4724(b) setting forth a meritorious appeal. 8. Total Lube Center Plus, Inc. has been in continuous business inspecting vehicles and providing other services to the public since 2005 and has performed an average of approximately 1,700 inspections annually. 9. Total Lube Center Plus, Inc. has had no other citation violations during their entire period of conducting business and maintains an A+ rating from the Better Business Bureau. 10. Total Lube Center Plus, Inc. employs eight safety inspection technicians, of which five are also emissions inspection technicians. All the technicians have in excess of a year seniority with Total Lube Center Plus, Inc, with five of the technicians having been with Total Lube Center Plus, Inc. since its beginning of operations. No technicians, prior to this incident, had any citations issued against them from PennDot. 11. If the matter is not stayed, irreparable harm will be done to Total Lube Center Plus, Inc. and the eight technicians who work in the business. The technicians will most likely be unable to continue to be employed by Total Lube Center, Inc. and the business most likely would be required to close. 12. Given Total Lube Center Plus, Inc.'s long history of complying with the regulatory and statutory requirements of vehicle inspections and respected business operations, there is no adverse effect to the public interest in granting a stay of the suspension until the matter can be heard. WHEREBY, Total Lube Center Plus, Inc. respectfully requests that this Honorable Court issue an Order staying the Order of Fine and Suspension of Official Emission Inspection Station until such time as the Court has had a full and fair opportunity to consider the appeal and Total Lube Center Plus, Inc. has had the opportunity to be heard. Respectfully submitted, ris Sheffield, Esq. P.O. Box 218 Shippensburg, PA 17257 (717) 262 -0025 phone (717) 262 -0079 fax CERTIFICATE OF SERVICE I certify that I have this day served a true and correct copy of the foregoing document by U.S. First Class Mail, postage prepaid, on the following person(s): Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2416 Dated: March 4, 2014 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC : CIVIL ACTION — LAW and EQUITY Appellants NO. VS. COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION, : Appellee : Appeal from Penn Dot Determination : pursuant to 75 Pa.C.S. §4724 ORDER SCHEDULING HEARING For Appeal of Order of Fine and Suspension of Official Emission Inspection Station AND NOW, this day of March, 2014, the Petition for Appeal from an Order of Fine and Suspension of Official Emission Inspection Station Certification having been read and considered, IT IS HEREBY ORDERED, that a hearing on this matter his hereby set for the day of , 2014, in Courtroom No. in the Cumberland County Court of Common Pleas, at By the Court, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC : CIVIL ACTION — LAW and EQUITY Appellants NO. vs. COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION, : Appellee Appeal from PennDot Determination pursuant to 75 Pa.C.S. §4724 Petition for Appeal from an Order of Fine and Suspension of Official Emission Inspection Station Certification NOW COMES, the Appellant (Petitioner), by and through its attorney, Sheffield Law, LLC, and files this Appeal from an Order of Fine and Suspension of Official Emission Inspection Station issued by the Appellee, the Commonwealth of Pennsylvania Department of Transportation, PennDot, such suspension having been issued by letter dated February 4, 2014. Appellant (Petitioner) respectfully sets forth the following: 1. Appellant is Total Lube Center Plus, Inc., a duly organized corporation under the laws of the Commonwealth of Pennsylvania and doing business in Cumberland County, Pennsylvania at 118 Walnut Bottom Road, Shippensburg. 2. Appellee is the Department of Transportation of the Commonwealth of Pennsylvania, PennDot, with a mailing address of Department of Transportation, Chief Counsel's Office, Riverfront Office Center, 1101 S. Front Street, 3rd Floor, Harrisburg, PA 17104 -2416. 3. By letter dated February 4, 2014, a copy of which is attached hereto and incorporated herein as Exhibit No. 1, PennDot issued an Order of Fine and Suspension of Official Inspection Station in which PennDot immediately suspended Total Lube Center Plus, Inc.'s Certificate of Appointment as an Official Emission Inspection Station pursuant to 75 Pa.C.S.A. § 4724. 4. PennDot's power to issue such suspensions and fines is governed by 67 Pa.C.S.A. Chapter 177 Subchapter F titled "Schedule of Penalties and Hearing Procedures ". 5. 67 Pa.C.S.A. § 177.651 is titled "Notice of alleged violation and opportunity to be heard prior to immediate suspension" and this section requires that prior (emphasis added) to an immediate suspension the Department shall (emphasis added) within 3 days, provide written notice of the alleged violation and (emphasis added) the opportunity to be heard. 6. In the matter sub judice, Total Lube Center Plus, Inc. was never afforded an opportunity to be heard, and in fact was never even issued a citation of any kind. The matter stems from an incident in which the President of Total Lube Center Plus, Inc., Timothy L. Vaughn, who also works as an emissions technician, was cited for issuing an inspection certificate without performing an inspection and fraudulent record keeping regarding a situation in July of 2013. 7. Mr. Vaughn's matter has never been heard by any administrative review board or any Court of Common Pleas. Mr. Vaughn's citation was scheduled for a Departmental Hearing on November 11, 2013, but Mr. Vaughn got lost on his way to the hearing and was unable to be at the hearing. 8. Mr. Vaughn appealed the decision of the Departmental Hearing, as he was never actually heard. A letter acknowledging receipt of Mr. Vaughn's appeal and request for hearing regarding the matter was issued January 15, 2014 and is attached hereto as Exhibit No. 2. 9. A Scheduling Conference was scheduled to be held on January 31, 2014 regarding Mr. Vaugn's appeal. At that Conference apparently the Commonwealth was unready to proceed. 10. Mr. Vaughn's underlying citation has not been finally adjudicated, nor has it actually even been fully heard, and it is currently under appeal. 11. Regardless of Mr. Vaugn's personal status however, Total Lube Center Plus, Inc., a separate entity from Mr. Vaughn, was never even issued a citation or ever given an opportunity to be heard, in direct violation of 67 Pa.C.S.A. § 177.651. 12. The penalty imposed on Total Lube Center, Inc. was based upon an allegation that an inspection was issued without an inspection taking place, and Mr. Vaughn and Total Lube Center Plus, Inc. explicitly deny that a sticker was issued without an inspection taking place. In fact, an inspection did take place, an engine error code was found, the engine error code was repaired, and after the engine code was repaired the emission machine failed to operate properly. 13. The emission machine failed to operated properly most likely due to a software or hardware flaw in the equipment required and programmed by PennDot or an agent of PennDot. 14. Additionally, PennDot alleged that Mr. Vaughn kept "fraudulent" paperwork regarding this incident, which Mr. Vaughn and Total Lube Center, Inc. explicitly deny. The paperwork kept was consistent with the requirements of documenting inspections and properly indicated what had transpired. There was absolutely nothing "fraudulent" in the way Mr. Vaughn recorded the incident. 15. PennDot does not detail in any of its allegations exactly what conduct by Mr. Vaughn arose to the level of fraud. 16. Pa.C.S.A. 67 § 177.602 is a schedule of penalties and is attached hereto as Exhibit No. 3. In the schedule of penalties, there is identification of fraudulent record keeping, improper record keeping, and careless record keeping but there is no definition as to what the differences are, but the penalties for a first offense range from a year suspension and $2,500 fine to a warning and no fine. 17. In the schedule of penalties there is identification of issuing an emission certificate without an inspection, which is alleged in this matter but fervently denied by Mr. Vaughn and Total Lube Center Plus, Inc., and there is also identification of an improper inspection. Again, there is no definition as to what the difference is precisely, but the penalties range from a one year suspension and $2,500 fine to a warning and no fine. 18. Total Lube Center Plus, Inc. has been in continuous business inspecting vehicles and providing other services to the public since 2005 and has performed an average of approximately 1,700 inspections annually. 19. Total Lube Center Plus, Inc. has had no other citation violations during their entire period of conducting business and maintains an A+ rating from the Better Business Bureau. 20. Total Lube Center Plus, Inc. employs eight safety inspection technicians, of which five are also emissions inspection technicians. All the technicians have in excess of a year seniority with Total Lube Center Plus, Inc, with five of the technicians having been with Total Lube Center Plus, Inc. since its beginning of operations. No technicians, prior to this incident, had any citations issued against them from Penn Dot. 21. Given Mr. Vaugn's long history as an emissions technician without any infractions and the long history of Total Lube Center Plus, Inc. as an Official Inspection Station without any infractions and a longstanding outstanding reputation in the community, it is overly harsh to say the least to conclude without an actual hearing that Mr. Vaughn and Total Lube Center Plus, Inc. all of a sudden are guilty of the highest offenses possible under the statutory code and immediately, without a hearing, subject to the highest penalty. 22. The penalty imposed in this matter against Total Lube Center Plus, Inc., would effectively cause the business to be closed and for all eight technicians to possibly be left unemployed. 23. The allegations against Mr. Vaughn are under appeal and issuance of an immediate suspension and fine against Total Lube Center Plus, Inc. are premature and excessive. 24. The Order of Fine and Suspension of Official Emission Inspection Station issued by PennDot against Total Lube Center Plus, Inc. is in need of a full hearing and judicial review by the Court of Common Pleas pursuant to 75 Pa. C.S.A. § 4724(b). WHEREFORE, Total Lube Center Plus, Inc., respectfully requests this Honorable Court to schedule a hearing in this matter and that the Order of Fine and Suspension be set aside in its entirety. Respectfully submitted, —11 is , E P.O. Box 218 Shippensburg, PA 17257 (717) 262 -0025 phone (717) 262 -0079 fax CERTIFICATE OF SERVICE I certify that I have this day served a true and correct copy of the foregoing document by U.S. First Class Mail, postage prepaid, on the following person(s): Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104 -2416 Dated: March 4, 2014 C ris Sheffield, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC CIVIL ACTION — LAW and EQUITY Appellants : NO. vs. COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION. : Appellee : Appeal from PennDot Determination : pursuant to 75 Pa.C.S. §4724 VERIFICATION I, Timothy L. Vaughn, President of Total Lube Center Plus, Inc., verify that the statements made in this Petition are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: 2. I Timothy L. Vaughn, President Total Lube Center Plus, Inc. OS -2 (10 -08)) pennsytvaffla DEPARTMENT OF TRANSPORTATION www.dot.state.pa.us February 4, 2014 Timothy J. Vaughn Total Lube Center Plus Inc -OIS# BB28 118 Walnut Bottom Road Shippensburg, PA 17255 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 inspections may be performed during the suspension. Pursuant to Departmental regulations, your Certificate of Appointment is suspended for for one (1) year and a $2,500.00 fine for furnish, lend, give, sell or receive a certificate of inspection without inspection and one (1) year and a $2,500.00 fine for fraudulent record keeping. On June 2, 2012 Inspector Timothy Lee Vaughn Operator #19979879 inspected a 2003 VW Jetta VIN #3VWSK69M53M158988 and issued emission sticker IM24737564. The suspension(s) will run consecutively, for a total suspension of two (2) years and $5,000.00 fine . This suspension is to run consecutively with any other suspension(s) imposed by the Department for any violation considered separately. You are ordered to surrender to the bearer of this notice, who is a representative of the Department of Transportation, your Certificate(s) of Appointment, all emission inspection stickers, other related emission items and a check or money order made out to the Commonwealth of Pennsylvania. Your emissions inspection equipment will be locked out from performing 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. k 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, P. O. Box 69003, Harrisburg, PA 17106 -9003. You have the right to appeal this Departmental 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 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 and the fine, 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 Harrisburg, PA 17104 -2416 Sincerely, Anita M. Wasko, Director Bureau of Motor Vehicles Vehicle Inspections 1 1101 S. Front Street Harrisburg, PA 17104 1 717 - 787 -2895 COMMONWEALTH OF PENNSYLVANIA GOVERNOR'S OFFICE OF GENERAL COUNSEL January 15, 2014 Timothy Lee Vaughn 120 Fogletown Road Belin, PA 15530 RE: TIMOTHY LEE VAUGHN INTENT TO SUSPEND OFFICIAL EMISSION INSPECTOR CERTIFICATION NO, 19979879 NO. 005 A.D. 2014 Dear Mr. Vaughn: Receipt of your appeal and request for hearing regarding the Department's intent to suspend your Official Emission Inspector Certification is hereby acknowledged. You will be notified by separate mail of the time and date for the hearing. Any correspondence or documents to be filed with this Office must contain the caption as listed above and must consist of an original and two copies. Any documents not meeting these requirements will be returned, without docketing, as deficient. As Administrative Docket Clerk, I am responsible for providing the Department Hearing Officer with copies of any documents that have been filed; however, you are responsible for serving Department staff counsel, Donald J. Smith, at the Office of Chief Counsel, 1101 South Front Street, Harrisburg, Pennsylvania 17104 -2516, as well as any other interested parties. Your documents must contain a proof of service on all parties. Please see 67 Pa. Code, Chapter 491 for more information. Please feel free to contact me if I can answer any questions. Sincerely, Patricia A. Smith Administrative Docket Clerk Department of Transportation I Office of Chief Counsel 1 Administrative Docket P.O. Box 8212 I Harrisburg, PA 17105 -8212 1 717.772.8397 I Fax: 717.772.2741 1 www.dot.state.pa.us cc: Eric J. Jackson, Department Hearing Officer Donald J. Smith, Assistant Chief Counsel Anita M. Wasko, Director, Bureau of Motor Vehicles Pennsylvania Code § 177.602. Schedule of penalties for emission inspection stations. Page 3 of 70 (a) Schedule of penalties. The complete operation of an official emission inspection station shall be the responsibility of the owner. Failure to comply with the appropriate provisions of the Vehicle Code or this chapter will be considered sufficient cause for suspension of emission inspection privileges. In addition, violators are also subject to criminal prosecution. Every general, fleet or Commonwealth emission inspection station shall be subject to the following schedule of penalties and suspension: E)( 141 t7- Ki o . 3 Duration of Suspension Type of Violation I 1st Offense 2nd Offense 3rd and Subsequent Offenses Category 1 (Fraudulent Activities) i(i) Issuance or possession of altered, forged, stolen or counterfeit certificate of emission inspection 1 year and $2,500 fine Permanent and $5,000 fine (ii) Furnish, lend, give, sell or receive a certificate of emission inspection without inspection 1 year and $2,500 fine Permanent and $5,000 fine (iii) Fraudulent recordkeeping 1 year and $2,500 fine Permanent and $5,000 fine Category 2 (Improper Activities) (iv) Faulty inspection 3 months and $1,000 fine 1 year and $2,500 fine 3 years and $5,000 fine (v) Inspecting more subject vehicles per hour per emission inspection inspector than permitted by § 177.408(g) 3 months 6 months 1 year (vi) Failure to produce records upon demand by Department quality assurance officer or other authorized Commonwealth representative or agent 3 months or until produced, whichever is greater 6 months or until produced, whichever is greater 1 year or until produced, whichever is greater (vii) Inspection by uncertified inspector , months months and $1,000 fine 1 year and $2,500 fine (viii) Improper recordkeeping 2 months 6 months 1 year (ix) Improper inspection Warning 2 months and $250 fine 6 months and $500 fine (x) Requiring or indicating unnecessary repairs for purpose of inspection 3 months 6 months 1 year (xi) Misstatement of fact 1 month 3 months 1 year 1 month 3 months 1 year E)( 141 t7- Ki o . 3 Pennsylvania Code Page 4 of 70 (xii) Improper assigning of ;certificate of inspection (xiii) Failure to verify registration or emission inspecting a vehicle with an expired registration 2 months 4 months 6 months '(xiv) Failure to affix certificate of inspection immediately upon successful completion of the inspection 2 months 4 months 6 months Category 3 (Careless Activities) (xv) Inspection by emission inspector with suspended, revoked, cancelled, expired or recalled vehicle operating privilege 2 months 4 months 6 months (xvi) Inspection by emission inspector with expired inspector certification Warning 4 months 6 months i(xvii) Improper use of em ssion inspector certification Warning 2 months and $250 fine 6 months and $500 fine (xviii) Improper security of certificate of inspection Warning 3 months 1 year (xix) Unclean inspection area Warning Warning 3 months (xx) Careless recordkeeping Warninz, c, Warning 3 months 1(xxi Missing or broken tools Warning, if repaired or replaced; if not, suspension until tools are repaired or replaced 1 month or until tools are repaired or replaced, whichever is greater 6 months or until tools are repaired or replaced, whichever is greater (xxii) Bad Check Warning, if amount due is paid within 10 days from date notified. If not, suspension until amount is paid 3 months or until amount due is paid, whichever is greater 6 months or until amount due is paid, whichever is greater Category 4 (Negligent) (xxiii) Failure to report discontinuance of business 1 year 2 years Permanent (xxiv) Failure to notify the Department of changes of ownership, location or other changes affecting an official inspection station 3 months 6 months 1 year (xxv) Failure to make emission inspection test printout available to customer Warning Warning and $100 fine 1 month IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC : CIVIL ACTION — LAW and EQUITY Appellants NO. /36 0 VS. COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION, : Appellee : Appeal from PennDot Determination : pursuant to 75 Pa.C.S. §4724 ORDER SCHEDULING HEARING For Appeal of Order of Fine and Suspension of Official Emission Inspection Statio AND NOW, this 1 day of March, 2014, the Petition for Appeal from an Order of Fine and Suspension of Official Emission Inspection Station Certification having been read and considered, IT IS HEREBY ORDERED, that a hearing on this matter his hereby set for the day of , 2014, in Courtroom No. County Court of Common Pleas, at 9' Q , By the Court, in the Cumberland IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC : CIVIL ACTION — LAW and EQUITY Appellants NO. //{— /3d (/)e/ /� vs. COMMONWEALTH OF PENNSYLVANIA : JUDGE DEPARTMENT OF TRANSPORTATION, : Appellee : Application for Stay of an Order of Fine and : Suspension of Official Emission Inspection Station : Pursuant to 75 Pa.C.S.A. § 4724 ORDER OF STAY PENDING APPEAL AND NOW, this 7111 day of March, 2014, the Application for Stay Pending Appeal From an Order of Fine and Suspension of Official Emission Inspection Station Certification having been read and considered, IT IS HEREBY ORDERED, that a Stay is issued on Total Lube Center Plus, Inc.'s suspension and fine dated February 4, 2014, until such time that a hearing is held in this matter and further determination is made by the Court. PennDot is directed to stay the suspension and fine against Total Lube Center Plus, Inc. until further Order of the Court. f-- cj tJ < IeS n 'kL 2/Vic/ J jql By the Court, \t' J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC. OIS # BB28, vs. COMMONWEALTH OF PENNSYLVANIA, NO. 2014-1360 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 abovenreferenced matter is hereby CONTINUED and RESCHEDULED for the Z©' ' day of /-� cn u S T , 2014, at Of :00 GC .m., in Courtroom No. , Carlisle County Courthouse, Carlisle, PA. Attest: BY THE COURT: hristopher J. Johnson, Esq., PENNDOT, Office of Chief Counsel, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516 ✓Chirs Sheffield, Esq., PO Box 218, Shippensburg, PA 17257 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC CIVIL ACTION — LAW and EQUI',Y t.., wT' Appellants - --- NO. 2014-1360 vs. COMMONWEALTH OF PENNSYLVANIA : JUDGE EBERT DEPARTMENT OF TRANSPORTATION, : Appellee : Appeal of Suspension of Official Emission : Inspection Station - 75 Pa.C.S.A. § 4724 MOTION TO CONTINUE AND RESCHEDULE HEARING NOW COMES, Appellants, Total Lube Center Plus, Inc., and respectfully set forth the following: 1. A hearing in this matter is scheduled for August 20, 2014. 2. The parties have agreed to continue and reschedule the hearing in an attempt to resolve the matter short of a hearing. 3. Below signed counsel is not available from October 23 through November 7, 2014. WHEREFORE, it is requested that this Honorable Court Continue and Reschedule this matter. Respectfully Submitted, is 11 Attorney for Appellants Supreme Court ID 82548 P.O. Box 218 Shippensburg, PA 17257 CERTIFICA'I'h OF SERVICE I certify that I have this day served a true and correct copy of the foregoing document by U.S. First Class Mail, postage prepaid, on the following person(s): Department of Transportation Chief Counsel's Office ATTN: Christopher J. Johnson, Esq. Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2416 Dated: August 14, 2014 IN TILE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC CIVIL ACTION - LAW and EQUITY Appellants vs. : NO. 2014-1360 COMMONWEALTH OF PENNSYLVANIA : JUDGE EBERT DEPARTMENT OF TRANSPORTATION, : Appellee : Appeal of Suspension of Official Emission : Inspection Station - 75 Pa.C.S.A. § 4724 AGREED ORDER AND NOW, this 10ay of August, 2014, by agreement of the parties, the hearing on the appeal filed in the above referenced matter is hereby Continued and Rescheduled for the 1141 -day of b..a.e.-Nlair , 201 , at cl1:00 1>_.m., in Courtroom No. 4 - Carlisle County Courthouse, Carlisle, PA. BY THE COURT: Attest: Christopher J. Johnson, Esq., PENNDOT, Office of Chief Counsel, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516 /hris Sheffield, Esq., PO Box 218, Shippensburg, PA 17257 fr/ci ,c3P ei/iy 1/ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES ORDER NO. 14-1360 Civil Term INSPECTION STATION SUSPENSION APPEAL AND NOW, this 20th day of August, 2014, the appeal filed in the above -captioned matter is CONTINUED AND RESCHEDULED for the 16th day of October, 2014, at 9:00 a.m., in Courtroom No. 5 of the Cumberland County Courthouse. BY THE COURT: ATTEST: Chris Sheffield, Esq., Sheffield Law, LLC, P.O. Box 218, Shippensburg, PA 17257 Philip M. Bricknell, Esq., Office of Chief Counsel, Department of Transportation, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516 &p; es mac, / ' C) ' t N) —4c.. (D-1 TOTAL LUBE CENTER PLUS, INC. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. COMM. OF PENNSYLVANIA DEPART. OF TRANSPORTATION BUREAU OF MOTOR VEHICLES : NO. 14-1360 CIVIL ORDER OF COURT AND NOW, this 6th day of October, this Court having previously continued the hearing in this case until December 17, 2014, at 2:00 p.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania, IT IS HEREBY ORDERED AND DIRECTED that the Order of Court dated August 20, 2014, signed by Judge Masland is VACATED. The hearing will be held on Wednesday, December 17, 2014. Zris Sheffield, Esquire Attorney for Plaintiff Xhristopher Johnson, Esquire Attorney for PennDot bas fa_ /Op.& By the Court, rso rr r— CD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TOTAL LUBE CENTER PLUS, INC. OIS # BB28, vs. COMMONWEALTH OF PENNSYLVANIA, NO. 2014-1360 INSPECTION STATION DEPARTMENT OF TRANSPORTATION SUSPENSION APPEAL AND NOW, on this AGREED ORDER 17th day of December, 2014, the appeal is hereby WITHDRAWN and DISCONTINUED, with the Department havingagreed to rescind the suspension and fines for furnishing an emission inspection sticker without inspection and fraudulent record keeping, and to instead impose a warning for a first offense of improper inspection. BY THE COURT: Attest: Christopher J. Johnson, Esq., PENNDOT, Office of Chief Counsel, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516 " Chirs Sheffield, Esq., PO Box 218, Shippensburg, PA 17257 is/iifiy L