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HomeMy WebLinkAbout14-3377A S E C T I 0 N -ter Supreme Coutt_'of;:Pennsylvania Cour`sof-C6moii'T1eas dam; 'r'..`1` i, Civil;CoverjSheet CUMBERLAND "���� County For Prothonotary Use Only: 4314Docket S�� /lip No: /i " 33%, The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: Petition Declaration of Taking Complaint W Writ of Summons • X Transfer from Another Jurisdiction ❑ Lead Plaintiff's Name: Commonwealth of PA Lead Defendant's Name: Graver's Garage Dollar Amount Requested: X within arbitration limits Are money damages requested? X Yes A No (check one) ® outside arbitration limits Is this a Class Action Suit? X Yes X No Is this an MDJ Appeal? X Yes m No Name of Plaintiff/Appellant's Attorney: Brandon S. O'Donnell, Esquire, Attorney for Graver's Garage a Self -Represented [Pro Se] Litigant) X Check here if you have no attorney (are Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) 0 Intentional El Malicious Prosecution El Motor Vehicle El Nuisance O Premises Liability O Product Liability (does not include mass tort) O Slander/Libel/ Defamation El Other: MASS TORT El Asbestos [� Tobacco • Toxic Tort - DES O Toxic Tort - Implant 0 Toxic Waste O Other: PROFESSIONAL LIABLITY Dental El Legal Medical • Other Professional: I CONTRACT (do not include Judgments) El Buyer Plaintiff 0 Debt Collection: Credit Card 0 Debt Collection: Other El Employment Dispute: Discrimination D Employment Dispute: Other O Other: REAL PROPERTY 0 Ejectment 0 Eminent Domain/Condemnation Ground Rent D Landlord/Tenant Dispute Mortgage Foreclosure: Residential El Mortgage Foreclosure: Commercial ▪ Partition El Quiet Title fJ Other: CIVIL APPEALS Administrative Agencies El Board of Assessment O Board of Elections lx Dept. of Transportation 0 Statutory Appeal: Other O Zoning Board El Other: MISCELLANEOUS • Common Law/Statutory Arbitration O Declaratory Judgment O Mandamus 0 Non -Domestic Relations Restraining Order Quo Warranto - Replevin Other: Updated 1/1/2011 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES APPELLEE V. CHARLES L. GRAVER GRAVER'S GARAGE — OIS #6272 APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA - NOTICE OF APPEAL OF OFFICIAL EMISSION INSPECTION STATION SUSPENSION AND APPLICATION FOR SUPERSEDEAS AND NOW, this 4th day of June, 2014, comes the Appellant, Charles L. Graver, by and through his attorney, Brandon S. O'Donnell, Esquire, of Abom & Kutulakis, LLP, hereby files the foregoing Notice of Appeal of Official Emission Inspection Station Suspension: 1. Appellant, Charles L. Graver, is an adult individual who owns Graver's Garage, Inspection Station # 6272, which is located at 4622 Carlisle Road (Rear), Gardners, Pennsylvania 17324. 2. Appellee, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, is a Commonwealth agency with offices in Harrisburg, Dauphin County, Pennsylvania. 3. On or about April 18, 2013, an audit was conducted at Graver's Garage, OIS #6272, where it was alleged that inspector, Charles L. Graver, Inspector Operator #12423453 issued an inspection sticker on a 2000 Ford Focus without communication. /03;:_ 25" 300gI 4. Inspector Charles Graver, received a notice of intent to suspend Official Emission Inspector mailed on April 28, 2014. (See attached Notice of Intent, attached as Exhibit A). 5. On May 28, 2014, Graver's Garage, OIS #6272, was visited by QA Officer, Kristin Defrehn, in order to pull Inspector Charles Graver's Inspection Certification. 6. While Ms. Defrehn was present, she presented Graver's Garage with a letter dated May 28, 2014, addressed to the Graver's Garage — OIS #6272. A true and correct copy of said letter is attached as Exhibit B. 7. Appellant, Graver's Garage, was cited on May 28, 2014, for allegedly committing a violation of §4724 of the Vehicle Code. 8. By letter dated May 28, 2014, Appellee notified Appellant, Graver's Garage, that the Certificate of Appointment as an Official Emissions Inspection Station was suspended for one (1) year and a fine of two thousand five hundred dollars ($2,500) was imposed. 9. The letter dated May 28, 2014, also notified Appellant, Graver's Garage, that it was receiving a suspension of one (1) year, to run consecutively, and an additional fine of two thousand five hundred dollars ($2,500), for fraudulent record keeping including improper and careless record keeping. 10. The total time of suspension and fines imposed by the letter dated May 28, 2014 is two (2) years and five thousand dollars ($5,000). 11. Official Inspector Charles Graver denies violating § 4724 of the Vehicle Code and he is currently appealing his April 28, 2014 conviction of that offense. 12. Appellant, Graver's Garage-OIS #6272, denies violating § 4724 of the Vehicle Code and thus are filing this appeal of the May 28, 2014 conviction of that offense. 13. Appellant, Graver's Garage — OIS #6272, currently has another employee, William E. Shartzer, who is duly licensed as an Emissions Inspector in the Commonwealth. A true and correct copy of Shartzer's Emissions Certification is attached as C. 14. Appellant, Graver's Garage-OIS #6272 contends it was improper for Appellee to suspend this license, based upon the acts of one employee in the business when another employee is duly licensed to perform Emissions Testing. 15. It is believed, and therefore averred, it was improper of Appellee to penalize Appellant Graver's Garage-OIS #6272 because another employee of the Garage is duly licensed to perform Emissions testing and Appellant Graver's Garage-OIS #6272 was not given any opportunity by Appellee to put a remedial plan in place. 16. It is believed, and therefore averred, this Honorable Court on appeal should give Appellant, Graver's Garage — OIS #6272 the opportunity to correct any inaccurate records without fine or suspension pursuant to 75 Pa.C.S.A. § 4724 (c) which states: a. (c) Limitation. --The department prior to suspending a certificate of appointment of an official inspection station on the grounds of careless recordkeeping or the court on appeal from a suspension may consider the volume of inspections conducted by the inspection station and provide to the owner or operator of the inspection station the opportunity to correct any inaccurate records. 17. It is believed, and therefore averred, the penalty imposed on Appellant by Appellee was too severe because Appellant has operated a responsible Official Emission Inspection Station for many years. 18. It is believed, and therefore averred, irreparable harm will be suffered by Appellant unless the Honorable Court reinstates Appellant's Certificate of Appointment as an Official Emissions Inspection pending a hearing on the matter. WHEREFORE, your appellant respectfully requests this Honorable Court to set a hearing and deny the Commonwealth's request that its license be suspended and reinstate Appellant's Certificate of Appointment as an Official Emissions Inspection Station supersedeas pending said hearing. Respectfully submitted, ABOM & KUTULAKIS Date: June 4, 2014, X19 Brandon S. O'Donnell, Esquire Attorney for the Appellant Attorney I.D. # 316575 2 West High Street Carlisle, PA 17013 (717) 249-0900 VERIFICATION I, Charles L. Graver, verify the statements made in the foregoing Notice of Appeal are true and correct to the best of my knowledge and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to Unsworn Falsification to Authorities. D0 VV.°, / ,t-ivti-e-/ ate Charles L. Graver, on behalf of Graver's Garage fbi2;sC. i:3i3 P e n n sylva n a DEPARTMENT OF TRANSPORTATION Charles L. Graver 4622 Carlisle Road Rear Gardners, PA 17324 Vehicle Inspection Division P. O. Box 69003 Harrisburg PA 17106-9003 Phone: (717) 787-2895 MECHANIC 12423453 CERTIFIED MAIL: 7004 2510 001 4167 3591 MAIL DATE: April 28, 2014 NOTICE OF INTENT TO SUSPEND OFFICAL EMISSION INSPECTOR During the audit conducted at Gravers Garage, OIS# 6272 on April 18, 2013, the following conduct was discovered to have occurred: • On February 20, 2013 inspector Charles L. Graver Operator #12423453 inspected a 2000 Ford Focus VIN #3FAFP3134YR219576 and issued inspection sticker number IM30628736 to the vechicle. The inspector passed the vehicle without communication. As a result, the Department intends to suspend your certification as an Official Emission Inspector pursuant to Section 4726 of the Vehicle Code. If you are suspended, no vehicle emission inspections may be performed during a period of suspension. Pursuant to Department regulations, the Department intends to suspend your certification as an Official Emission Inspector for one (1) year for furnish, lend, give, sell or receive a certificate of inspection without inspection and one (1) year for fraudulent record keeping including the lesser offenses of improper -and careless record keeping. The suspension(s) is to run consecutively for a total suspension of two (2) years. This suspension is to run consecutively with any other suspension(s) imposed by the Department for any violation considered separately. Credit for your suspension term will not begin until your certification card is surrendered to the Department. You may contact your Quality Assurance Officer to surrender your certification card or you may mail your certification card to the Vehicle Inspection Division, Post Office Box 69003, Harrisburg, PA 17106-9003. You have a right to request a hearing on the above referenced sanction(s) under 2 Pa.C.S. §§501-508 (relating to general rules of administrative practice and procedure of administrative agencies); 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) and 67 Pa. Code Chapter 491 (relating to administrative practice and procedure) by submitting a written request for a hearing within 30 days of the above mail date to the Administrative Docket Clerk, Office of Chief Counsel, 400 North Street, 9th Floor, Harrisburg, PA 17120-0096. A copy of this letter shall accompany the request. THIS IS YOUR OPPORTUNITY TO BE HEARD IN THIS MATTER. IF YOU FAIL TO REQUEST A HEARING ON THE ABOVE REFERENCED SUSPENSION(S) WITHIN 30 DAYS OF THE MAIL DATE OF THIS NOTICE, YOU WILL HAVE WAIVED YOUR RIGHT TO CHALLENGE THE SUSPENSION. ADDITIONALLY, THE ABOVE SANCTION(S) WILL ALSO BE FINAL AND YOUR CERTIFICATION AS AN OFFICIAL EMISSION INSPECTOR WILL BE SUSPENDED EFFECTIVE May 28, 2014. Sincerely, { ice-f-�Gc , ..Z!_A - -- Anita M. Wasko, Director Bureau of Motor Vehicles EXHIBIT OS -2 (10-08) pennsylvania • DEPARTMENT OF TRANSPORTATION www.dot.state.pa.us May 28, 2014 Charles L. Graver Gravers Garage-OIS# 6272 4622 Carlisle Road Rear Gardners, PA 17324 RECEIVED APR 2 8 2014 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 One (1) year and fined $2,500.00 for furnish, lend, give, sell or receive a certificate of inspection without inspection, and one (1) year and fined $2,500.00 for fraudulent record keeping including the lesser offenses of improper record keeping and careless record keeping. (on a 2000 Ford VIN #3FAFP3I34YR219576 and issued inspection sticker number 1M30628736) by Charles L. Graver Operator #12423453. The suspension(s) will run consecutively, for a total suspension of two (2) years and fined $5,000.00. 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 11101 S. Front Street I Harrisburg, PA 17104 1717-787-28 EXHIBIT CERTIFICATE OF SERVICE I, Shannon Freeman, of Abom & Kutulakis, LLP, hereby certify that I served a copy of the within Notice of Appeal upon the Appellee, by mailing a copy of said Notice by certified mail addressed as follows: Dated: June 4, 2014 Pennsylvania Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2416 f/l nnon Freemn COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW CHARLES L. GRAVER, GRAVER'S GARAGE - OIS #6272, Appellant : NO. 14-3377 CIVIL TERM IN RE: NOTICE OF APPEAL OF OFFICIAL EMISSION INSPECTION STATION SUSPENSION AND APPLICATION FOR S UPERSEDEEAS ORDER OF COURT AND NOW, this 16th day of June, 2014, upon consideration of the above - captioned Notice, a hearing is scheduled for Thursday, October 16, 2014, at 9:30 a.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, (rte Chris ylee L. Peck, J. hilip Bricknell, Esq. Assistant Counsel Department of Transportation Motor Vehicle & Traffic Safety Sections Office of Chief Counsel 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee VSandon S. O'Donnell, Esq. 2 West High Street Carlisle, Pa 1 7013 Attorney for Appellant :rc pzla_ IC:70//cf COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES APPELLEE v. CHARLES L. GRAVER GRAVER'S GARAGE — OIS #6272 APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION No. 14-3377tl `1 r cn _. f r TO THE HONORABLE CHRISTLEE PECK, JUDGE: APPLICATION FOR SUPERSEDEAS AND NOW, comes the Appellant, Charles L. Graver, Graver's Garage — OIS #6272 by and through its attorney, Brandon S. O'Donnell, Esquire, of Abom & Kutulakis, LLP, hereby files the foregoing Notice of Appeal of Official Emission Inspection Station Suspension: 1. Appellant, Charles L. Graver, is an adult individual who owns Graver's Garage, Inspection Station # 6272, which is located at 4622 Carlisle Road (Rear), Gardners, Pennsylvania 17324. 2. Appellee, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, is a Commonwealth agency with offices in Harrisburg, Dauphin County, Pennsylvania. 3. On May 28, 2014, Graver's Garage, OIS #6272, was visited by QA Officer, Kristin Defrehn, in order to pull Inspector Charles Graver's Inspection Certification. 4. While Ms. Defrehn was present, she presented Graver's Garage with a letter dated May 28, 2014, addressed to the Graver's Garage — OIS #6272 indicating the Garage license was suspended as well. 5. Ms. Defrehn pulled the Graver's Emissions Inspection Certificate on May 28, 2014. 6. On or about June 4, 2014, Appellant filed a Notice of Appeal of the Suspension of Graver's Garage Certificate and an Application for Supersedeas. 7. On or about June 16, 2014, the Honorable Christylee Peck issued an Order scheduling a Hearing for October 16, 2014 at 9:30 a.m. (See attached Order of Court, marked as Exhibit "A"). 8. The June 16t Order did not address the Application for Supersedeas. 9. Graver's Garage has an employee, William Shartzer, who is duly licensed as an Emissions Inspector in the Commonwealth. 10. Mr. Shartzer's license has not been suspended and he is still capable of performing Emissions Inspections. 11. Mr. Shartzer is unable to perform Emissions Inspections as Graver's Garage's Certificate as an Official Emissions Inspection Station has not been reinstated pending the hearing. 12. It is believed, and therefore averred, irreparable harm will be suffered by Appellant unless the Honorable Court reinstates Appellant's Certificate of Appointment as an Official Emissions Inspection pending the hearing on the matter set for October 16, 2014. WHEREFORE, your appellant respectfully requests this Honorable Court to reinstate Appellant's Certificate of Appointment as an Official Emissions Inspection Station supersedeas pending the October 16, 2014 hearing on the suspension. Respectfully submitted, ABOM & KUTULAKIS Date: July 14, 2014 Brandon S. O'Donn-ll, Esquire Attorney for the Appellant Attorney I.D. # 316575 2 West High Street Carlisle, PA 17013 (717) 249-0900 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW CHARLES L. GRAVER, GRAVER'S GARAGE - OIS #6272, Appellant : NO. 14-3377 CIVIL TERM IN RE: NOTICE OF APPEAL OF OFFICIAL EMISSION INSPECTION STATION SUSPENSION AND APPLICATION FOR S UPERSEDEEAS ORDER OF COURT AND NOW, this 16th day of June, 2014, upon consideration of the above - captioned Notice, a hearing is scheduled for Thursday, October 16, 2014, at 9:30 a.m , in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Chrisfylee L. Peck, Philip Bricknell, Esq. Assistant Counsel Department of Transportation Motor Vehicle & Traffic Safety Sections Office of Chief Counsel 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee m m c: r— c: ‘2.1) EXHIBIT B a on S. O'Donnell, Esq. est High Street Carlisle, Pa 1 7013 Attorney for Appellant :rc CERTIFICATE OF SERVICE I, Emily Filiberti, of Abom & Kutulakis, LLP, hereby certify that I served a copy of the within Application for Supersedeas, by mailing a copy of said Notice by certified mail addressed as follows: Dated: 21141/4 1141/4 Philip Bricknell, Esquire Assistant Counsel Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2416 Emil ili< Yer� ‚4 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES APPELLEE V. CHARLES L. GRAVER GRAVER'S GARAGE — OIS #6272 APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION No. 14-3377 Civil ORDER AND NOW, upon consideration of the Application for Supersedeas it is hereby ORDERED and DECREED that Appellee is to reinstate Appellant's Certificate of Appointment as an Official Emissions Inspection Station supersedeas pending the Hearing set for October 16, 2014 at 9:30 a.m. Distribution: /Brandon S. O'Donnell, Esquire 2 West High Street Carlisle, PA 17013 Attorney for Appellant Bricknell, Esquire Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2516 Attorney for Appellee Chris lee L. Peck J. C") -0Z rn (x) r- 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, } DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES } vs. } CHARLES L. GRAVER t/d/b/a GRAVER'S } No. 14-3377-CIVIL GARAGE, OIS #6272 AGREED ORDER AND NOW, on this 16th day of October, 2014, the appeal filed at the above docket number is hereby WITHDRAWN and DISCONTINUED, and the suspensions are REINSTATED, effective December 1, 2014, the Department agreeing to amend the record to impose a three (3) month suspension for the offense of faulty inspection and a two (2) month suspension for the offense of improper record keeping, for a total of five (5) months' suspension, with a total fine of$1000. The Department further agrees that the petitioner has served 75 days toward completion of the five months' suspension. BY THE COURT: g66K/ J. Attest: /'Brandon S. O'Donnell, Esq., 2 West High Street, Carlisle, PA 17013 i Christopher J. Johnson, Esq., PennDOT Office of Chief Counsel, Riverfront Office Center, 1101 S. Front Street, Harrisburg, PA 17104-2516 r- y r mrn c m P5 Iw2 /ed /e�f1G//r� NtT' cr cb <© -v CD n ACD 3CD cD