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HomeMy WebLinkAbout02-1557IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LEACH'S AUTOMOTIVE SERVICE, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, VEHICLE INSPECTION DIVISION, Respondent CIVIL ACTION No. 7 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Appeal and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against yon by the Court without further notice for any money claimed in the Appeal or for any other claim or relief requested by the Petitioner. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LEACH'S AUTOMOTIVE SERVICE, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, VEHICLE INSPECTION DIVISION, Respondent CIVIL ACTION No. 02-/5'-5'-7 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomra medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propriedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LEACH'S AUTOMOTIVE SERVICE, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, VEHICLE INSPECTION DIVISION, Respondent CIVIL ACTION No. 0 -f5'5' APPEAL FROM PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. BUREAU OF MOTOR VEHICLES, VEHICLE INSPECTION DIVISION FINAL ORDER OF SUSPENSION OF OFFICIAL INSPECTION STATION AND NOW, this 2nd day of April, 2002, comes the Petitioner, Leach's Automotive Service by and through its attorney, s, Elliott Reihner Siedzikowski Egan & Balaban, and files this Appeal from the March 5, 2002 Pennsylvania Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division Final Order of Suspension of Official Inspection Station, and in support thereof avers as follows: JURISDICTION 1. This Court has jurisdiction over this Appeal pursuant to 42 Pa.C.S. § 762(a)(3). PARTIES 2. Petitioner herein is Leach's Automotive Service, an official inspection station, OIS # 1608, owned and operated by Richard M. Leach, Jr., located at 609 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Respondent is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division. BACKGROUND 4. On March 5, 2002, Petitioner's Certificate of Appointment, OIS #1608 was suspended for sixty (60) days, pursuant to Section 4724 of the Pennsylvania Motor Vehicle Code (75 Pa.C.S.A. § 4724(a)) for a faulty inspection on a 1986 Subaru, sticker #AI2-1290957, a copy of which is attached hereto, made a part hereof and marked Exhibit "A". 5. Petitioner has been continuously licensed as an official inspection station since April 1, 1971 and has never been cited by Respondent for any violations whatsoever. 6. At all times Petitioner has conducted the business of an official inspection station honestly and in the best interests of the public and the citizens of the Commonwealth of Pennsylvania. 7. At all times Petitioner has conducted the business of an official inspection station in accordance with the provisions of the Pennsylvania Motor Vehicle Code and the applicable Rules and Regulations. 8. At all times Petitioner has provided proper supervision of employees who conduct state inspections in accordance with the provisions of the Pennsylvania Motor Vehicle Code and the applicable Rules and Regulations. 9. On Saturday, October 26, 2001, the date the inspection was performed on the 1986 Subaru, sticker #AI2-1290957, by Timothy J. Leach, Operator #21-219-234, Richard M. Leach, Jr., the station owner/manager/supervisor was on the premises (609 Market Street, Lemoyne, PA 17043) and was without knowledge of the violation. 10. In spite of Richard M. Leach, Jr. having provided proper supervision on Saturday, October 26, 2001 of Timothy J. Leach, the employee who committed the violation, such supervision could not have prevented such violation. 11. Timothy J. Leach, the employee who committed the violation when inspecting the 1986 Subaru, sticker #AI2-1290957, conducted himself in such a covert manner that it was impossible for Richard M. Leach, Jr., the station owner/manager/supervisor to have discovered the faulty inspection. 12. The facts, circumstances and the law in this matter do not support a finding and order for a sixty (60) day suspension of Petitioner's Official Certificate of Inspection, OIS #1608. 13. Petitioner has in the past, and including the day in which the 1986 Subaru, sticker #AI2-1290957 was inspected by Timothy J. Leach, as well as on an ongoing basis, continues to comply with the appropriate provisions of 75 Pa.C.S. § 101-9821. 14. 67 Pa. Code § 175.51 (b) permits Petitioner to consent to the acceptance of a one (1) point assessment in lieu of a sixty (60) day suspension, if Petitioner was without knowledge of the violation and should not have known of the violation. 15. Petitioner has established herein above its entitlement to a one (I) point assessment and hereby agrees and consents to a one (1) point assessment in lieu ora sixty (60) day suspension, pursuant to 67 Pa. Code § 175.51(c)(1). WHEREFORE, Petitioner respectfully requests that this Honorable Court grant its appeal, rescind the sixty (60) day suspension and impose a one (1) point assessment on Petitioner pursuant to 67 Pa. Code § 175.51(c)(1) and for such other and further relief as this Court may deem just and appropriate under the circumstances. Respectfully submitted, ELLIOTT REIHNER SIEDZIKOWSKI EGAN & BALABAN By: William R. Balaban, Esquire Pa. I.D. # 19667 Michael V. Brown, Esquire Pa. I.D. #79984 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 717-234-3282 (voice) 717-233-4264 (fax) Attomeys for Petitioner G:\ERSE&B\CLIENTS\08230~PennDo6Appeal 4 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION HARRISBURG, PA 17104 Richard M. Leach, Jr. Leach's Automotive Service - OIS # 1608 609 Market Street Lemoyne, PA 17043 PA 17043 Vehicle Inspection Division Post Office Box 69003 Harrisburg, PA 17106-9003 Phone: (717) 787-2895 STATION: 1608 CERTIFIED MAIL: 7001 2510 0002 2368 4456 MAIL DATE: March 5, 2002 ............... -.:~ ORDER OF SUSPENSION.OF- O.I?~!C~L IN$P_ECTIO~iSTATION. 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 two (2) months for faulty inspection on a 1986 Subaru (sticker #AI2-1290957) by Timothy J. Leach, Oper. #21-219- 234. The;suspension(s) will mn concurrently, for a total suspension of two (2) months. This suspension is to mn. consecutively with any other suspension(s) imposed by the Department for any violation considered separately. THE ~JSPENSION WILL BE EFFECTIVE 40 DAYS FROM THE M~II, DATE OF THIS ORDER. At the end of the 40 days, you are ordered to surrender to the Quality Assurance Officer, who is a representative of the Depa~aent of Transportation, your Certificate(s) of App6intment, and all safety inspection stickers. Two (2) wcek~ prior to the expiration of your suspension, you may contact your Quality Assurance Officer for reappointment. A complete and thorough investigation may be conducts! 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 M_AH. DATE OF THIS ORDER. If you do file an appeal, a signed and time-stamped copy of the appealmust 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 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, 3~a Floor Harrisburg, PA 17104-2416 Sincerely, Kurt J. Myers, Director Bureau of Motor Vehicles VERIFICATION I, Richard M. Leach, Jr., hereby verify on behalf of Leach's Automotive Services that the facts set forth in the foregoing Appeal From Pennsylvania Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division Final Order of Suspension of Official Inspection Station are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: April 2, 2002 CERTIFICATE OF SERVICE AND NOW, this 2nd day of April, 2002, I, Michael V. Brown, hereby certify that I served a tree and correct copy of the foregoing Appeal from Pennsylvania Department of Transportation, Bureau of.Motor Vehicles, Vehicle Inspection Division, Final Order of Suspension of Official Inspection Station by way of First Class U.S. Mail, postage prepaid, on the parties designated below: Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2416 Counsel for Respondent Dated: April 2, 2002 Michael V. Brown IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LEACH'S AUTOMOTIVE SERVICE, Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES VEHICLE INSPECTION DIVISION, Respondent CIVIL ACTION ORDER ANDNOW, this ~ ILdayofAprll, 2002, uponconslderatlonofPetltloner,sA ..... ppeal from Respondent's March 5, 2002 Final Order of Suspension of Official Inspection Station; of IT IS HEREBY ORDERED that a hearing on said appeal shall be held on the o7 2~(~day ~ ,2002 at ~ :~9 /~. M. in Court Room No. / BY THE COURT: ~NVA'~,$NN~ta ,kLNNO0 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LEACH'S AUTOMOTIVE SERVICE, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, VEHICLE INSPECTION DIVISION, Respondent CIVIL ACTION No. APPLICATION FOR SUPERSEDEAS AND NOW, this 2nd day of April, 2002, comes the Petitioner, Leach's Automotive Service by and through its attorneys, Elliott Reihner Siedzikowski Egan & Balaban, and files this Application for Supersedeas and in support thereof avers as follows: 1. This Court has authority to entertain this Application for Supersedeas pursuant to Pa. R.A.P. No. 1732. 2. Respondent, the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division, suspended Petitioner's Certificate of Appointment OIS #1608 on March 5, 2002 for a period of sixty (60) days commencing April 15, 2002. A copy of Respondent's Order is attached hereto, made a part hereof and marked Exhibit "A". 3. Petitioner timely appealed Respondent's Order to the Court of Common Pleas of Cumberland County this same day and Petitioner incorporates by reference said Appeal as if set forth in its entirety herein. 4. The undersigned attorney for Petitioner has contacted and been in touch with Elaine Blass, Esquire a member of Respondent's Office of Chief Counsel and has been informed that Respondent does not oppose this Application for Supersedeas. WHEREFORE, Petitioner prays this Court to enter a supersedeas of the March 5, 2002 Order of Suspension of Official Inspection Station and for such other relief as may be just under the circumstances. Respectfully submitted, ELLIOTT REIItNER SIEI)ZIKOWSKI EGAN & BALABAN Dated: April 2, 2002 By: William R. Balaban, Esquire Pa. I.D. # 19667 Michael V. Brown, Esquire Pa. I.D. # 79984 27 North Front Street P.O. Box 1284 Harrisburg, PA t7108-1284 717-234-3282 (voice) 71%233-4264 (fax) Attorneys for Petitioner G:~ERSE&B\CLIENTS\08230~PennDot~Application 2 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION HARRISBURG, PA 17104 Richard M. Leach, Jr. Leach's Automotive Service - OIS # 1608 609 Market Street Lemoyne, PA 17043 PA 17043 Vehicle Inspection Division Post Office Box 69003 Harrisburg, PA 17106-9003 Phone: (717) 787-2895 STATION: 1608 CERTIFIED MAIL: 7001 2510 0002 2368 4456 MAIL DATE: March $, 2002 ORDER OF SUSPEblSION OF_ O~J?IC~ iNSP]gCTI, Q~iSTATION AL ..... ~,~ ..... You me hereby notified ~t yo~ Ce~fieate of Ap~ent ~ ~ Official SafeW ~fion Station ~ ~nd~, p~u~t to S~fion 4724 of~e Ve~ele Co&. No ve~ele safeW ~cfions may ~ ~o~ at yo~ station dung ~e sm~ion. ~u~t m ~~ re~fio~, your Ce~fieate of Ap~ent ~11 ~ sus~nd~ for ~o (2) mon~ for faul~ ~etion on a 1986 Sub~ (sticker ~2-129~57) by T~o~y 1. ~aeh, ~. g21-219- 234. ~E S~SPENSION ~L Bg ~~ 40 DAYS FROM T~ ~H. DA~ OF T~ O~E~ At ~e end of~e 40 ~ys, you ~ oMered to s~nder to ~e ~i~ Assumce O~cer, who is a rep~enmfive of~e Dep~ent of T~fion, yo~ Ce~ifieate(s) of Ap~M~en~ ~d all s~eW ~fion sfick~. Two (2) w~ prior to ~e exp~fion of yo~ sus~ion, you ~y ~nmct yo~ ~W Ass~ce O~cor for ~M~ent. A ~' complete ~d ~orough Mv~figafion may ~ conducted to de--Me if you ~e qualifi~ for r~ent. You ~ve ~e fi~t to appel ~s Depm ~en~ Ord~ of S~ion to ~e Co~ of Co--on PI~ of~e Co~W ~ which ~e above refe~nced Ms~cfion station is l~at~, ~ T~ 00) DAYS OF ~ ~H~ DA~ OF THIS O~ER. If you do ~e ~ a~, a si~ed ~d ~e-s~ cepy of ~e ~p~l m~t ~ ~ed u~n ~e Dep~em at ~e m~l~g ad&~s l~t~ ~low. ~G OF ~ ~PE~ ~ES NOT A~O~TIC~LY STAY ~ SUSPENSION. ~ order br yo~ pfi~loges to ~ r~ pen~g ap~, a si~ ~der of Su~ed~ ~om ~o Co~ ~g ~e ~m:~ont to stay ~e su~ion m~t ~ so.ed upon ~e D~em at · o m~Mg ad.ess 1~ ~low. MAn,lNG ADDRESS: Depm haent of Transportation Chief Counsel's Office Riverfmnt Office Center 1101 S Front Street, 3rd Floor Harrisburg, PA 17104-2416 Sincerely, Kurt I. Myers, Director Bureau of Motor Vehicles IEX IIBIT VERIFICATION I, Richard M. Leach, Jr., hereby verify on behalf of Leach's Automotive that the facts set forth in the foregoing Application for Supersedeas are tree and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. Rich~~d~4~~r~/'~ Dated: April 2, 2002 CERTIFICATE OF SERVICE AND NOW, this 2nd day of April, 2002, I, Michael V. Brown, hereby certify that I served a tree and correct copy of the foregoing Application for Supersedeas by way of First Class U.S. Mail, postage prepaid, on the parties designated below: Department of Transportation Chief Counsel's Office Riverfront Office Center 1101 S. Front Street, 3rd Floor Harrisburg, PA 17104-2416 Counsel for Respondent Michael V. Brown' Dated: April 2, 2002 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LEACH'S AUTOMOTIVE SERVICE, Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF MOTOR VEHICLES VEHICLE INSPECTION DIVISION, Respondent CIVIL ACTION ORDER GRANTING PETITIONER'S APPLICATION FOR SUPERSEDEAS AND NOW, this l~_day~ of April, 2002, upon consideration, of Petitioner ' s Application for Supersedeas to Respondent's March 5, 2002 Order of Suspension of Official Inspection Station and Respondent being unopposed to said Application; IT IS HEREBY ORDERED that this Order act as a supersedeas to the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division's March 5, 2002 Order and that Petitioner's privileges to operate as an Official Inspection Station, OIS # 1608 be fully restored pending final determination of this Appeal. BY THE COURT: LEACH'S AUTOMOTIVE SERVICE, Plaintiff Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, VEHICLE INSPECTION DIVISION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY' PENNSYLVANIA CIVIL ACTION - LAW / NO. 02-1557 CIVIL TERM ORDER OF COURT AND NOW, this 21st day of June, 2002, upon considerati~ from Elaine N. Blass, Esq., attorney for Plaintiff, the hearing pi June 27, 2002, is rescheduled to Monday, September 30, 21 Courtroom No. 1, Cumberland County Courthouse, Carlisle, Penm BY THE COURT, esley Oler r~). William R. Balaban, Esq. Michael V. Brown, Esq. 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 Attorney for Plaintiff n of the attached letter :viously scheduled for )02, at 9:30 a.m., in 'lvania. Elaine N. Blass, Esq. Assistant Counsel Department of Transportation Vehicle & Traffic Law Division Riverf~ont Office Center - Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Defendant :rc Jun-20-2OOZ 75:5T From-OFFICE OF CHIEF COUNSEL ?1T-?0~-1122 T-713 P.002/003 F-OTB COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSP¢ ~RTATION OFFICg OF CfflEF COUNSEL VEHICLE & TRAFIqC LAW DIVISIOI R~VERFRONT OFFICE C~NTER- THIRD .OOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104, VOICE: (717) 757-2530 TELEFAX: (717) 70~-1122 The Honorable $, Wesley Oler, The Court of Common Pleas of Cumberland Co~nW Cumberland County Courthouse 1 Courthouse Square Carlisle, PA. 17013-3387 By ?'acMmile at (72 7) 240-6460 and U.S. Mail June 20, 20(] Dear Judge Oler, th- '-- .On .be.h,a! fof~e De~ar~m, en.t ofyra~sportation' ~am respectfully requesting a continuance of e aear~, g ~.tms matter, lne nearm/g is scheduled for June 27, 2002 at 9:30 A.M.. This matter is an appem otthe suspension imposed by the Department on the inspectio~ station's Certificate of Authorization. Counsel for Leach's Automotive, William Balaban and lV~chael V. Brown, do not oppose this request for continuance. There have been no previous request~ for a continuance. · ., I am requesting this continuance to travel on a family vacation durin yam my spouse and daughters. I was unable ro make an earlier request for c arrangements were made just last week, due to uncertainty as to whether' college in Massachusetts, could join us. Both Counsel for the Petitioner and I agree to a continuane~ to Mork the date suggested by Ms. Ruth Coulson. Thank you tbr your attention to this request. ; the final week of June ~nrinuance, since travel ay daughter, attending September 30, 2002, f Pennsylvania, ~hicles, NO. 02-1557 Re: Leach's Automotive Service v. Commonwealth Department of Transportation, Bureau of Motor ~ Civil. Jun-20-2DD2 15:S? From-OFFICE OF CHIEF COUNSEL T-?13 P.003/003 F-O?6 Sincerely, Elaine N. Blass Assistant Counsel Vehicle & Traffic Pennsylvania Deparl tw Division ment of Transportation LEACH'S AUTOMOTIVE SERVICE, Plaintiff Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, VEHICLE INSPECTION DIVISION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-1557 CIVIL TERM ORDER OF COURT AND NOW, this 18th day of September, 2002, upon consideration of the attached letter from William R. Balaban, Esq., attorney for Plaintiff, the hearing previously scheduled for September 30, 2002, is rescheduled to Monday, December 16, 2002, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, /~illiam R. Balaban, Esq. Michael V. Brown, Esq. 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 Attorney for Plaintiff ,~qesley O1~., ~ ~.J. Elaine N. Blass, Esq. Assistant Counsel Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center - Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Defendant :rc LAW OFFICES EuloTr S nZIKOWSK! F, GAN& BAr. AIJAN UNION MEETING CORPORATE CENTER V P.O. BOX 3010 925 HARVEST DRIVE BLUE BELL, PENNSYLVANIA 19422 215-977-1000 WILLIAM R. BALABAN WRB~ERSE.COM GOVERNORS' ROW 27 NORTH FRONT STREET P.O. BOX 1284 HARRISBURG, PENNSYLVANIA 17108-1284 PHONE <~ 717-234-3282 FAX * 717-233~,264 SUITE 300 400 SPRUCE STREET SCRANTON, PENNSYLVANIA 18503 570-346-7569 38 NORTH SIXTH STREET READING, PENNSYLVANIA 19601 610-374-6756 September 17, 2002 VIA FACSIMILE (717-240-6460) AND U.S. FIRST CLASS MAIL The Honorable J. Wesley Oler, Jr. The Court of Common Pleas of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Leach's Automotive Service v. Commonwealth of Pennsylvania Department of Transportation, Bureau of Motor Vehicles No. 02-1557-Civil Dear Judge Oler: On behalf of Leach's Automotive Service, I am respectfully requesting a continuance of the hearing in this matter. The hearing is scheduled for Monday, September 30, 2002 at 9:30 a.m. This matter is an appeal of the suspension imposed by the Department of the inspection station's Certificate of Authorization. Counsel for the Department of Transportation, Elaine N. Blass, does not oppose this request for continuance. There has been one previous request for a continuance (copy attached). I am requesting this continuance because a sister of one of the attorneys in our office recently underwent a serious operation which has caused that attorney to be out of the office to assist in family matter as well as to assist in the operation of her sister's law office; thus we are unable to prepare for this matter in a timely fashion. The Honorable J. Wesley Oler, Jr. September 17, 2002 Page 2 After speaking with Ruth Coulson, Monday, December 16, 2002, is the possible date suggested; otherwise, whatever date would the Court would suggest in 2003. Respectfully yours, By: ELLIOTT REIHNER SIEDZIKOWSKI EGAN & BALABAN William R. Balaban, Esquire Enclosure CCi Elaine N. Blass, Esquire (w/o Enclosures) Richard M. Leach, Jr. (w/o Enclosures) G:~ERSE&B\CL1ENTS\08230\PennDot\olcrlt/ LEACH'S AUTOMOTIVE : SERVICE, : Petitioner : : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, BUREAU: OF MOTOR VEHICLES, : VEHICLE INSPECTION : DIVISION, : Respondent : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-1557 CIVIL TERM IN RE: APPEAL OF FINAL ORDER OF SUSPENSION ORDER OF COURT AND NOW, this 16th day of December, 2002, upon consideration of the appeal from the Pennsylvania Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division Final Order of Suspension of Official Inspection Station, and following a proceeding, which has not been completed, the record shall remain open. It is noted that at the time of adjournment on today's date the Appellee, the Department of Transportation, had completed presentation of its case in chief, and the Appellant, Leach's Automotive Service, had presented some testimony, but had not completed its presentation. It is further noted that at the time of adjournment on today's date Richard M. Leach, Jr., who had been called as a witness on behalf of the Appellant, was being subjected to cross examination by Appellee's counsel. It is further noted that at the time of adjournment on today's date Commonwealth's Exhibits 1, 2, 3, 4, 5, and 6 had been identified and admitted. No other exhibits had been identified or admitted. Counsel are requested to contact the Court's secretary to schedule an additional full day of hearing in this case. By the Court, J~esley 01~.~ Jr., /Michael V. Brown, Esquire 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 For the Petitioner /Elaine N. Blass, Esquire Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 For the Respondent OI-OX-03 :mae LEACH'S AUTOMOTIVE : SERVICE, : Petitioner : : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, BUREAU: OF MOTOR VEHICLES, : VEHICLE INSPECTION : DIVISION, : Respondent : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-1557 CIVIL TERM IN RE: ORAL MOTION ORDER OF COURT AND NOW, this 16th day of December, 2002, upon consideration of an oral motion made on behalf of the Petitioner requesting that the Court deem the factual allegations of the Petition To Appeal admitted by reason of an absence of an answer on the part of the Respondent, the motion is denied. By the Court, chael V. Brown, Esquire 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 For the Petitioner .:mae ,~Elaine N. Blass, Esquire Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 For Respondent LEACH'S AUTOMOTIVE : SERVICE, : Petitioner : COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, BUREAU: OF MOTOR VEHICLES, : VEHICLE INSPECTION : DIVISION, : Respondent : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-1557 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE J. WESLEY OLER, JR., J., Cumberland County Courthouse, Carlisle, Pennsylvania, on December 16, 2002, in Courtroom Number One. APPEARANCES: Michael V. Brown, Esquire For Petitioner Elaine N. Blass, Esquire For Respondent ORIGINAL VINVA'IA~eNN.~d INDEX TO WITNESSES FOR THE PETITIONER DIRECT CROSS REDIRECT RECROSS Richard M. Leach 64 89 FOR THE RESPONDENT Thomas Monko 16 48 54 57 INDEX TO EXHIBITS FOR THE PETITIONER MARKED ADMITTED FOR THE RESPONDENT Ex. No Ex. No Ex. No Ex. No Ex. No Ex. No 1 - packet of documents 2 - investigation report 3 - sticker 4 - inspection record 5 - inspection record 6 - application 9 14 19 24 26 26 26 33 35 39 58 61 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Please be seated. This is the time and place for a hearing on an appeal from the Pennsylvania Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division, Final Order of Suspension of Official Inspection Station filed on behalf of Leach's Automotive Service. The Respondent in the case is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division. This action appears at number 02-1557 Civil Term. We will let the record indicate that the Petitioner, Leach's Automotive Service, is represented by William R. Balaban, Esquire, and Michael B. Brown, Esquire. The Respondent is represented by Elaine Blass, Esquire. I believe, Mr. Brown, on behalf of the Petitioner, you wanted to make a motion. MR. BROWN: Yes, Your Honor. Thank you. For the record, my name is Michael Brown. I represent the Petitioner/Appellant, Leach's Automotive Services. On April 2nd, 2002, the Petitioner/Appellant filed its petition to appeal in this matter. The petition was endorsed with a notice to plead, properly verified by Mr. Leach. No answer was filed to the petition. Underneath the Rules of Appellate Procedure, Rule 1515, a respondent to a petition may file an answer, 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and in this case a notice to plead was properly endorsed, and no answer was forthcoming. Therefore, under the rules of appellate procedure we would respectfully request your Honorable Court to deem admitted the allegations contained therein. We would also note that under petition practice underneath the rules of administrative procedure or administrative agencies underneath one PA code, petitions are normally accompanied by an answer, and there are rules relating to that underneath one PA code that also require that if an answer is not forthcoming, that admissions can be deemed. THE COURT: response? MS. BLASS: Thank you, Your Honor. Ms. Blass, do you have a Yes, Your Honor. Good morning. My response on behalf of the Department is that neither of the rules alluded to by counsel are required in the filing of an answer in a statutory appeal, which this is. This is a statutory appeal from a final order of the Department. It is a hearing de novo. The Commonwealth Court has indicated in a number of decisions that the rules of civil procedure do not apply to statutory appeals. Moreover, the rules of appellate procedure by their own terms do not apply to statutory appeals. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Finally, since this is not an administrative proceeding, the rules of administrative procedure before government agencies are likewise inapplicable. Finally the Department's aware of no decision of the Common Pleas Courts or the Commonwealth Court requiring the filing of an answer, and it is not so required in the Vehicle Code or the Judicial Code, to my knowledge. Honor. THE COURT: Thank you. Thank you, Your Mr. Brown, do you have any specific case law in support of your position? MR. BROWN: No, Your Honor. I recognize that this is a de novo proceeding, and it's precisely because it's a de novo proceeding that my motion's before the Court. The only thing out there right now in front of this Court for this proceeding is the petition appeal. That's the only document of record before this Court, and although I have no case law to support my position, I find it inconceivable that the courts of this great state of ours, this great Commonwealth would not have a procedural mechanism in place by which to proceed with an appeal. And to the extent that there are no rules that can govern this proceeding, I have no other alternative but to request that the allegations set forth in our verified petition to appeal be deemed admitted. Thank you, Your Honor. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Ail right. Thank you. We will enter this order: AND NOW, this 16th day of December, 2002, upon consideration of an oral motion made on behalf of the Petitioner requesting that the Court deem the factual allegations of the Petition To Appeal admitted by reason of an absence of an answer on the part of the Respondent, the motion is denied. (End of order.) MR. BROWN: THE COURT: MS. BLASS: Thank you, Your Honor. Are counsel ready to proceed? Yes, Your Honor, we are. I would like to offer for admission into evidence this morning a packet of documents that have been certified by the Secretary of Transportation who is certifying that the custodian of records, Kurt Myers, is the lawful custodian of these motor vehicle records, and it is further certified by Kurt Myers that he, in fact, is producing true and correct copies of the records which are within his custody in accordance with the Judicial Code at 6109. The packet contains -- I'd like to enumerate them briefly. Exhibit Number 1 is an Official Notice of Suspension dated March 5th, 2002, to Richard M. Leach, Jr., doing business as Leach's Automotive Service. This Notice of Suspension imposes a 2 month suspension on Leach's 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Automotive Service for a faulty inspection on a 1986 Subaro, sticker number AI2-1290957, wherein that faulty inspection was performed by Timothy J. Leach, operator number 21-219-234. The second exhibit is another Notice of Suspension from the Department dated March 5th, 2002, to Timothy J. Leach. It imposes -- by the way, the prior notice was a suspension of the certificate of appointment of Leach's as an official inspection station. The second notice, Exhibit 2, imposes a suspension on certification of Timothy Leach as an official safety inspector as a result of a faulty inspection on the 1986 Subaro with the same sticker number as previously mentioned. The suspension is for 2 months. The third document in Exhibit 3 is entitled Consideration of Point Assessment in Lieu of Suspension for Station 1608, which is Leach's Automotive. It is signed by the Inspection Manager, Chris Singer, and it indicates that points will not be offered, and she indicates her reasoning to us. The mechanic who committed the violations was in charge of the inspection activities at the time the violations occurred. The next exhibit is a letter dated January 24th, 2002, to Richard M. Leach, Jr., of Leach Automotive, indicating a departmental hearing has been scheduled for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 February 11, 2002, and requesting his presence. Exhibit Number 5 of the packet is a violation history for Leach's Automotive Service, compiled from the records in the Bureau of Motor Vehicles indicating the appointment date, the violation date, and the appeal date. Similarly, there's a violation for Timothy J. Leach from the records of the Bureau of Motor Vehicles indicating his certification date as an inspection mechanic, his violation date, and the appeal date. I would offer these records for admission into evidence. THE COURT: Commonwealth's Exhibit 17 MS. BLASS: THE COURT: Are you having them marked as Yes, Your Honor. All right. We'll take a moment and have the stenographer mark those items as Commonwealth's Exhibit 1. MR. BROWN: THE COURT: first. Your Honor -- Wait. Let's get them marked (Whereupon, Commonwealth's Exhibit No. 1 was marked for identification.) THE COURT: Commonwealth's Exhibit 1. They have now been marked as Mr. Brown. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BROWN: Your Honor, Petitioner certainly does not object to the offering of these documents as being certified records of the Department of Transportation. However, to the extent that they are being offered for any purpose other than the fact that they are official records of the Department of Transportation, we specifically object to the fourth page of the exhibit, which is marked at the bottom as Exhibit Number 3. The header of this page is entitled Consideration of Point Assessment in Lieu of Suspension. This document's undated, and although counsel has indicated who the signatory is on this document, I have no way of verifying that fact. I acknowledge that this is a record that's on file with the Department of Transportation. However, without the author of this particular document being present to testify to it, I object to its admission into evidence for any probative value. THE COURT: In other words you don't want me to assume that the fact asserted on that page is correct? MR. BROWN: The only factual assertions I can develop from this page, Your Honor, is that this is a record of the Department of Transportation entitled Consideration of Point Assessment that was executed by an unknown person for station number 1608, and it has the box 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no checked, and it does not bare a date, although it indicates that it should, and other than that, it appears to assert some type of a legal conclusion, and that's all I can glean from this document, Your Honor, and on that basis I would object to its admission for any probative weight whatsoever, other than the fact of its being a record of the Department of Transportation. THE COURT: MS. BLASS: Ms. Blass. Yes, Your Honor. Under the Judicial Code 6103 and 6109 these documents have been properly certified by the head of the agency and the custodian of the records. If my reading of those provisions are correct, what is contained therein is a true and accurate copy. It is deemed to be prima facie evidence of the truth of the facts contained therein. Counsel has not provided any evidence that this is not an authorized employee of the Department or that this is not a Department document. THE COURT: What is the fact, Mr. Brown, in that that you do not want me to assume is correct? MR. BROWN: Your Honor, again, next to the signature line on this page, what I would assume to be the signature line, is the phrase the mechanic who committed the violations was in charge of the inspection activities at the time the violations occurred. To me, Your Honor, 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that would be a legal conclusion, not a factual assertion. THE COURT: on that de novo today? Your Honor. Am I going to receive evidence MR. BROWN: I would assume that you would, For that purpose, I don't see a need for this document to be admitted as setting forth that this is, in fact, the case. The conclusion that's set forth here. I think that that's the purpose of today's proceeding. MS. BLASS: Your Honor, a further ground for not excluding this document I think is contained in the case of Strickland versus Department of Transportation at 574 A.2d. 110 wherein the same issue was before the Commonwealth Court on appeal, whether the mechanic was authorized or in other.words was in the scope of employment, and performed the inspection, and the Commonwealth Court specifically upheld the findings of the trial court that the employee was within the scope. However, the Court remanded the case to the Department of Transportation because the record contained no indication that there was a consideration of point assessment. This record does fill that lack by providing that record of point -- it is a consideration of point assessment. We would submit to the Court that although that statement may have legal ramifications, it is a factual statement, and for Strickland it is required. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, is it your position that on the basis of this packet I could make a finding that the fact that Mr. Brown has recited from that page is true? If I receive no other information whatsoever? MS. BLASS: I think this is true as certified by the -- as indicated by the individual. Whether Your Honor could make a finding as to the res gestae of the case, I think that would require further testimony which will be offered here, but as to this particular official of the Department, she has examined the administrative hearing notes with the particular intent of determining whether points shall be assessed under the regulations, and that consideration of point assessment is found at 67 Pa. Code 175 point -- I believe it's 51; 67 Pa. Code 175.51(b) Assignment of Points. So that document was created in pursuance of the regulations to determine whether points should be offered. THE COURT: Well, I think Mr. Brown's objection is more to the factual representation in the page. MR. BROWN: THE COURT: Your Honor -- Do you have any objection, Mr. Brown, to my using the document solely for the purpose that Ms. Blass is indicating, that is to show that the Department didn't act arbitrarily? 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BROWN: Your Honor, I have no objection whatsoever to having the document -- the document admitted for the purpose of showing that the Department tried to -- or attempted to effect a consideration of point assessment. THE COURT: All right. For that limited purpose, I'll permit the item, and as far as the question of whether the fact asserted therein is true or not, I'll have to rely on the hearing testimony and other evidence. MS. BLASS: THE COURT: Thank you, Your Honor. Commonwealth's Exhibit 1 is admitted with that understanding. (Whereupon, Commonwealth's Exhibit No. 1 was admitted.) MR. BROWN: Thank you, Your Honor. MS. BLASS: Your Honor, before calling our first witnesses, I'd like to present to the Court a stipulation that's been apparently discussed or agreed to in some regard by the parties as to the faulty inspection. I believe counsel in prior discussion before the hearing is willing to stipulate, A, to the fact that a faulty inspection was performed by Timothy Leach on this particular 1986 Subaro, and I believe counsel for the Petitioner has also -- is also willing, as I have requested, that that faulty inspection include each and every violation that was referenced in Quality Assurance 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Officer Thomas Monko's investigative report. THE COURT: MR. BROWN: Okay. Your Honor, counsel for the Petitioner/Appellant certainly does stipulate to items 1 through 7 on page 2 of the station's -- the station investigation report continuation form. I believe that counsel for the Department will be offering that as an exhibit at some point during today's proceedings. THE COURT: MS. BLASS: Is that a part of the packet? It is not, Your Honor. I'm going to offer it as an authenticated exhibit through the Quality Assurance Officer for the faulty inspection violation specified, but in addition for two additional facts because it contains a statement of Timothy Leach and a statement of a party not here before the Court. All right. Has this been THE COURT: marked as an exhibit? MS. BLASS: It is marked by the Commonwealth. It has not yet been offered, Your Honor. THE COURT: All right. Well, I can't really accept the stipulation until it's in the record. MS. BLASS: MR. BROWN: May I call Mr. Monko? Reserve the stipulation until the end of the Department's case in chief, Your Honor? THE COURT': I really don't have a 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stipulation to work from without the document in the record unless you wanted to read the things that are being stipulated to. MS. BLASS: Your Honor, if you would permit, I would prefer us to simply have testimony directly on that point after identifying the witness. THE COURT: MS. BLASS: Ail right. I'd like to call Quality Assurance Officer Thomas Monko. Whereupon, THOMAS MONKO having been duly sworn, testified as follows: MS. BLASS: Your Honor, do I have the Court's permission to establish the identity of Mr. Monko, in addition to authenticating -- THE COURT: MS. BLASS: permission to identify him? THE COURT: I'm sorry. May I have the Court's Yes. BY MS. BLASS: Q DIRECT EXAMINATION Mr. Monko, would you state your name for the record and indicate your title? A Thomas J. Monko. Q And how are you employed, sir? 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I'm employed as a Quality Assurance Officer for Dauphin and Cumberland Counties. Q And what is a Quality Assurance Officer? A I am responsible to supervise, approve, handle complaints on official inspection stations in these counties. THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS: Harrisburg, Pennsylvania. THE COURT: State? BY MS. BLASS: Q THE WITNESS: THE COURT: And you are employed by who? Parsons Engineering. Parsons what? Engineering. Oh, Parsons Engineering. 979 East Park Drive, So you don't work for the No, I don't. Okay. Mr. Monko, do you serve in the capacity, however, as an authorized agent of the Department to conduct inspection audits and investigations? A Yes, I do. Q How long have you served as a Quality Assurance Officer? A Four years. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Are you, yourself, a Certified Inspection Mechanic? A Q certified? A years. Q Yes, I am. And for what period of time have you been so I've been certified for a period of 28 Can you just briefly tell us approximately how many audits of stations in your county wide area you perform every month? A Once a year I'm responsible to audit 450 inspection stations located in both counties. I audit on the average of maybe about five a day. Q In the course of your auditing responsibilities, do you also conduct safety re-inspections of vehicles? A Q Yes, I do. And could you indicate what your profession was prior to becoming a Quality Assurance Officer? A I was a Pennsylvania State Policeman for 26 years. I did general patrol duties, and also I specialized in vehicle inspection, as far as I was a field investigator for 15 years and I headed the program for 12 years, which I was in charge of 17 inspection station supervisors. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I was responsible for training them, providing input as far as writing regulations for the inspection program for the State Police Bureau of Patrol, and also, when I retired in 1993, I was the Safety Director for Rohrer Bus Service for 4 1/2 years, and while at the State Police I was stationed in the Bureau of Criminal Investigation as an auto theft investigator. Q Mr. Monko, I'd like to hand you a document that has been marked as Commonwealth Exhibit Number 2. I'd like you to take a look at this copy. Could you identify the document by title? A This is a copy of the Pennsylvania Official Safety Inspection Station Investigative Report. It's a PET 10-01 form. This is the form that we use as far as when we conduct an audit or a complaint. It's a general purpose form that we use in our job duties. Q And did you prepare this form? A Yes, I did. Q And this is your handwriting on the form? A Yes, it is. Q What station did this concern? A This station concerns Leach's Automotive Official Inspection Station 1608 located at 609 Market Street, Lemoyne, Pennsylvania, which is located in Cumberland County, Pennsylvania. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of 2001. Q Mr. Monko, what is the date of your report? The date of my report is November the 20th Q Was this report prepared in conjunction with a complaint or an audit? A This was a complaint. Q And who provided that complaint to you? A I received a telephone call from a Service Manager, Inspection Mechanic, a Mr. George Englehart, from 645 Beinhour Road, Etters, Pennsylvania. He is employed -- he was employed by All Tune Lube, Enola, Pennsylvania, Official Inspection Station D089. Q What particular vehicle did Mr. Englehart's complaint concern? A It involved a 1986 Subaro Station Wagon, which was bearing registration from Pennsylvania E, Edward; L, Lincoln; E, Edward; 5-0-0-2, and it was displaying Inspection Sticker AI21290957. Q What was the nature of the complaint from Mr. Englehart to you? A Well, Mr. Englehart was very concerned about the vehicle being hazardous, that it should not be at the inspection station, that it was in a very poor condition as far as one of the wheels was ready to fall off, and also that the -- there was some body damage -- or body rust that 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was very serious. Q Mr. Monko, as a result of receiving this complaint from Mr. Englehart, what did you do? A I proceeded to the station, and made a re-inspection of the vehicle. At that time I had noticed the inspection sticker that I previously mentioned, and I have it here as far as the blue sticker displayed on the vehicle. When I checked the back of the sticker out, all we had was the month of expiration, which was 10 of '02, the station number, 1608. There was no indication of what wheels were pulled for State Inspection as far as for There was no Vehicle Identification the brake check. Number listed. The odometer reading was listed on the back of the sticker. It was 142267. The date of inspection was 10/26/02, and I found out later that the inspection mechanic's signature was Tim Leach. Q Okay. To your understanding, however, did that sticker contain an error in terms of the date of inspection? A Q Pardon? Did that sticker, to your understanding, contain an error as to the date of inspection? A Yes, it did. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What was the actual date of inspection? A I had later found out, when I had went down to the station and got the duplicate copy of the official inspection record, it shows that this sticker that I had mentioned was listed as sticker number 0-7, and it was issued on October 27th, 2001. Q Now, Mr. Monko, again, I want to refocus to you regarding -- and discuss this report first, for the purposes of authenticating it and its contents. Did you at some point observe or examine the vehicle yourself? A Yes, I did. Q Okay. What did you determine? A I determined that the actual mileage on the vehicle on November the 20th of 2001, when I checked it, was 140520. The MV-431 sheet, the inspection record, showed the mileage logged as 142682. As I previously mentioned, the mileage on the back of the sticker was 142267. The sticker and the MV-431 recorded mileage was more than what was on the vehicle odometer on that date of November the 20th of 2001. At that time I checked the vehicle out. I had called Mr. Leach and asked him, you know, to have the inspection mechanic come up, that I would want him present when I re-inspected the vehicle, and which he did come up, as far as -- and I did show him the defects on the vehicle. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q To go back to your testimony a moment ago, in other words, based on the mileage noted on the sticker versus the mileage you noted at re-inspection, there was a discrepancy. There was more mileage on the sticker than there was at the time you re-inspected the vehicle; is that correct? A Q That's correct. And, again, there were two different mileages listed as between the sticker and the MV-431; is that correct? A That's correct. Q What defects did you notice -- note in the vehicle when you inspected it? MR. BROWN: Your Honor, for the record, the witness is going to testify to a number of different inspection violations. We're willing to stipulate to all of the inspection violations. I believe this is what we were trying to do before, and for the record now, if it will help speed up the testimony, the violations by Tim Leach that are alleged in this document, we do stipulate to. THE COURT: MS. BLASS: Ail right. Ms. Blass. We will accept that stipulation and join in that stipulation. THE COURT: Ail right. Are you moving for 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the admission then of the report? MS. BLASS: I am at this point, Your Honor, although I do have a little more testimony from Mr. Monko regarding the document. So I would move that this be admitted into evidence as Commonwealth Exhibit Number 2. THE COURT: MR. BROWN: THE COURT: Mr. Brown. No objection, Your Honor. All right. Commonwealth's Exhibit 2 is admitted, and the stipulation is accepted. (Whereupon, Commonwealth's Exhibit No. 2 was admitted.) BY MS. BLASS: Q As a result of inspecting this vehicle and noting these defects listed in your report of 11/20/02, what action did you take, Mr. Monko, regarding the owner of the vehicle? A Well, I contacted the owner of the vehicle, and I explained to him, as far as the condition of the vehicle and that it should not be driven on a highway, that it was very dangerous. The bearing had fallen off and a wheel was ready to fall off and the owner agreed, as far as he would not drive the vehicle, and that he would have the vehicle taken to a salvage yard, which he did do. Q Mr. Monko, there is a statement contained in your official investigative report from Timothy Leach. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 When did Mr. Leach make this statement to you that's contained in your report? A When Mr. Leach was present with me when I showed him the defects, he more or less said to me that I do not know what happened with the differences in the mileage on the sticker, the car, and the inspection sheet. I was probably in a hurry and forgot to write what wheels I pulled and what VIN number. I just did some brake work on this car a few months ago. As for the holes in the frame and panels, I told the owner this was the last time for this car. He and his wife do not drive this car too long. It doesn't look good. Q Do you have with you here the inspection sticker that you referred to earlier? Yes, I do. I have it right here. And does that indicate the signature of the A inspection mechanic on it? A There is a signature. Tim Leach, that was his signature. From talking to Mr. MS. BLASS: I'd like to offer the inspection sticker itself as Commonwealth's Exhibit Number 3. MR. BROWN: Your Honor, Petitioner's counsel would appreciate the opportunity to review the sticker prior to its admission. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Certainly. it has been marked yet either. MS. BLASS: Honor. And I don't think I don't think it has, Your (Whereupon, Commonwealth's Exhibit Number 3 was marked for identification.) MR. BROWN: Thank you, Your Honor. No objections. THE COURT: Commonwealth's Exhibit 3 is admitted. (Whereupon, Commonwealth's Exhibit .No. 3 was admitted into evidence.) BY MS. BLASS: Q Mr. Monko, as part of your investigation, did you obtain a particular inspection record from Leach's Automotive that recorded the inspection in question? A Yes, I did. Q I'd like to show you a copy of what's been marked as Commonwealth's Exhibit Number 4. (Whereupon, Commonwealth's Exhibit Number 4 was marked for identification.) BY MS. BLASS: Q Mr. Monko, do you actually have the original inspection record? A I have the duplicate copy of the original 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 form. MS. BLASS: Your Honor, I was not aware that -- Mr. Monko probably told me. I did not harken to it. He does have a copy of the original inspection record. we substitute that in lieu of the copy itself? THE COURT: Mr. Brown. MR. BROWN: He has the original inspection record? MS. BLASS: inspection record. THE WITNESS: MR. BROWN: no objection whatsoever, Your Honor. He has a copy of the original May THE COURT: MS. BLASS: I have the duplicate copy. For purposes of clarity, I have Ail right. I'd like to withdraw what was marked as Commonwealth's Number 4 and substitute the actual duplicate copy of the inspection record for this particular inspection as Commonwealth's 4. THE COURT: We'll just take a moment off the record and get that exhibit scratched out so we don't have two items marked as Exhibit 4. (Whereupon, Commonwealth's Exhibit No. 4 was re-marked for identification.) THE COURT: For the record, Mr. Monko, can you identify Commonwealth's Exhibit 4? 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: This is the official inspection record of Station 1608 located in Cumberland County, and on this record -- this is where all of the inspections are done as far as our recordings for the time period that the campaign is in effect, and the sticker in question is logged in on this report. It's listed as 0-7 dated 10/27/01. BY MS. BLASS: Q What is the name of the owner of the vehicle, by the way? A The owner's name is Jack S. Putt, P-u-t-t, 101 Bungalo Road in Enola, Pennsylvania. Q Mr. Monko, do you have any knowledge as to what day 10/27/01 was? A Not at the time, no, I didn't. Q Okay. Do you currently have knowledge as to what day of the week 10/27/01 was? A Yes, I do. Q What day of the week was that? A That is a Saturday in October of 2001. Q The information that is noted on the inspection record before you, is that required to be reported as part of the station's duty under the inspection regulations? A That is correct. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Does the form report -- or have a place of logs to indicate whether various vehicle systems were checked such as tires, wheels, steering, exhaust, fuel, et cetera? A Yes, it does. Q And does it indicate whether or not a road test was performed? A Yes, it does. Q In terms of this particular inspection number 7 for registering Jeff Putt, were all the various systems checked in terms of the required duty of the mechanic? A According to what is logged in here with the check marks and required brake and tire reading, it is. Q What is the mileage listed on the inspection record, please? A was 142682. The mileage is -- current odometer reading THE COURT: that microphone, if you will. THE WITNESS: BY MS. BLASS: Q You'll have to speak right into Oh, the mileage is 142682. And again, from your prior testimony, you indicate that that mileage is different from the mileage on the sticker? 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's correct. Q Should there be a discrepancy between the mileage in the inspection record and the mileage on the sticker issued for the inspection? A No. It should be the same mileage. Q However, in this instance it was -- was the inspection record recording more mileage on the sticker or less? A Q It was recording more mileage. Okay. There is a place on the entry for the indication of a mechanics initials, is there not? A Yes, there is. Q Okay. What initials are indicated for inspection number 7? It shows T.L. Do you have an idea or knowledge as to whose A initials they are? A Q Now I do. It was identified as Tim Leach. And how do you know that those are Tim Leach's initials? A I had asked to see his inspection card and his driver's license when I made the report out. Q And you compared the initials with his signature; is that correct? A Yes, I looked. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was there a second vehicle inspection performed by a mechanic with the initials T.L. on that Saturday, October 27th? A Yes, there was. Q Okay. And what inspection number is that? A That's listed as inspection number 08. Q Were there two additional inspections performed on that Saturday besides the ones indicated with T.L.? A Yes, there were. There was inspection number 09 and inspection number 10. Q Can you tell us whose initials are indicated for those two inspections? A Well, from what I see here it's R.L. Q As to both? A For both inspections, 9 and 10. Q So based on what you've testified as to the inspection record -- strike that, please. In light of what you are observing about the inspection record, Mr. Monko, how many inspections were performed on that Saturday, October 27th? A From what I have here, there are a total of 4 inspections performed on October 27th. Q Okay. Two were performed by who? A Two were performed by Tim Leach, and two 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were performed by R.L. Q In what order were the inspections done among the four of them? Can you indicate that? A Tim Leach had done inspection number 7 and inspection number 8. Inspection number 9 and inspection number 10 are logged in as R.L. on the 431 sheet. THE COURT: noted on the sheet? THE WITNESS: THE COURT: Is the time of the inspection No, it's not. Is there any requirement that they be chronologically recorded? THE WITNESS: sticker sequence. THE COURT: BY MS. BLASS: Q Yes, they have to log them in Okay. Mr. Monko, I'd like to direct your attention to the right side of this inspection record. Is there an indication as to what sticker was issued for the particular four inspections that we're discussing? A Yes, there is. Q Can you indicate whether or not -- would you please read into the record the sticker numbers for the four inspections, beginning with number 7 through 107 A Number 7 was issued on 10/27/01, sticker number AI21290957. Inspection number 8, issued 10/27/01, 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sticker number AI21290958. Inspection number 9, issued 10/27/01, sticker number AI21290959. Inspection number 10, issued 10/27/01, sticker number AI21290960. Q Based on the requirements and regulations that stickers must be used in chronological order as they are issued, do you have an opinion or not as to whether the sticker issued by Tim Leach for inspection number 7 and 8, those stickers, were issued prior to the inspection stickers issued for inspections number 9 and 107 Do you have an opinion as to that question? A It's my opinion that they default in chronological order as far as those stickers were issued by Tim Leach first. MS. BLASS: Again, I'd like to offer this, Commonwealth's Number 4. THE COURT: You're moving for its admission? MS. BLASS: Yes, I am. THE COURT: Mr. Brown. MR. BROWN: No objection, Your Honor. THE COURT: All right. Commonwealth's Exhibit 4 is admitted. (Whereupon, Commonwealth's Exhibit Number 4 was admitted into evidence.) BY MS. BLASS: 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Mr. Monko, I'm handing you copies -- MS. BLASS: With the Court's permission, may I have a moment to count those please, if I might? BY MS. BLASS: THE COURT: Certainly. Q Mr. Monko, I'm handing you a document with 12 pages in it, would you be kind enough to identify that, please? A official inspection station 1608, which is Leach's Automotive in Lemoyne, Pennsylvania, Station 1608. Those are copies of inspection records; is Q that correct? A Q These are additional inspection sheets from Yes, they are. Is there a final document in that packet which is not an inspection record? A Yes, there is. Q Did you prepare that final handwritten document? A Yes, I did. Q Would you be kind enough to put your signature on it at this point? THE COURT: Is this something that you're going to move for admission? MS. BLASS: Yes, Your Honor. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Why don't we get it marked while we're referring to it. (Whereupon, Commonwealth's Exhibit Number 5 was marked for identification.) BY MS. BLASS: Q Did I contact you by telephone -- THE COURT: Wait. There's been no reference on the record to what this item is. marked as Commonwealth's Exhibit 5? MS. BLASS: THE COURT: It has, Your Honor. Ail right. Has it been And again, Mr. Monko, what is Commonwealth's Exhibit 5? THE WITNESS: Commonwealth Exhibit 5 is a listing of the official inspection records from Station 1608, and the last page of this Exhibit 5 is a handmade paper that I had made out with the number of inspections that were conducted for a certain time period, and I signed the sheet here this morning. Ail right. THE COURT: BY MS. BLASS: Mr. Monko, did I contact you by telephone Q after the hearing in this case was scheduled, and ask you to obtain certain inspection records from Leach's Automotive? A Yes, you did. 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 obtain? Q Do you recall which records I asked you to A You had asked me to go back to the station and check on the MV-431 sheets for a certain time period as far as to see how many inspections were conducted on Saturdays. Q A And what time period did I request? The time period was from September 1st, 2001, to and including October 27, 2001. MR. BROWN: Your Honor, I'm going to object at this point on the grounds of relevancy. I don't understand what bearing the number of Saturday inspections has on this particular matter. We're dealing with one Saturday in particular, October 27th of 2001. THE COURT: Ms. Blass. MS. BLASS: Your Honor, they are being offered to show a course of conduct in terms of inspections being performed at the station wherein the Department would offer that Timothy Leach regularly performed Saturday inspections, that they were within a regular course of the scope of employment, and that, in fact, on a number of -- on quite a few instances Richard Leach was also present and performed inspections at that time or following Mr. Leach's. MR. BROWN: Your Honor, for purposes of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 speeding up these proceedings, we are happy to stipulate that Leach's Automotive Services conducts normal Saturday business hours for its shop from 7 -- is it 7 in the morning? Eight in the morning to noon for the shop and 8 to 5 for the gas pumps, and that inspections are conducted on the premises from 8 to noon regularly. THE COURT: MR. BROWN: THE COURT: On Saturdays. On Saturdays. Is that satisfactory for your purposes or do you want to present the evidence that you've submitted? MS. BLASS: I will accept that representation, stipulation from counsel, but I did want particular testimony to show that on each of the Saturdays for which the records are available, that Mr. Leach had performed Saturday motor vehicle inspections. THE COURT: I'll let you present the case the way you want to present it. So I'll overrule the objection. BY MS. BLASS: Q Mr. Monko, for the sake of expediency or quickness in presenting the information, have you, prior to the hearing, reviewed these inspection records covering the period from 9/1/01 to 10/27/017 A Yes, I did. 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And these concern inspections performed at Leach's Automotive on Saturdays; is that correct? A That's correct. Q Based on your prior review of these records, are there indications as to each Saturday involved that the initials T.L. are indicated as to inspections performed on each Saturday? A Yes, there are. There are some notations. Q I'd like to direct your attention to a number of the -- strike that, Your Honor, please. Mr. Monko, have you had occasion to review these inspection records to determine whether Richard Leach, Jr., performed inspections on Saturdays? A There are initials here as far as R.L. on the inspection sheets too. Q Okay. Would you be good enough, please, to indicate the date of inspection and as to whether the initials R.L. is indicated as to that date? A In addition to the previous testified in October, with R.L. I have one listed as October 20th, 2001, sticker number AI20773350. There is another one listed with the initials of R.L. on October 13th, 2001, sticker number AI20773327. There's another one listed on October the 6th, 2001, with the initials R.L., sticker number AI20773295. I have another one listed on October the 6th, 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2001, with the initials of R.L., AI20773294. I have one on 9/29/01, sticker number AI20773257. MR. BROWN: Your Honor, if I may, again, counsel's willing -- perfectly willing to stipulate that there are several dates in these impending documents which the initials R.L. appear, including October 27th, and going back to what appears to be September the 10th, and as early back as September the 4th, Your Honor. We acknowledge and stipulate that the initials R.L. do appear on these documents. THE COURT: MS. BLASS: THE COURT: MS. BLASS: Is that satisfactory? Yes, it is, Your Honor. Okay. We would move for the admission of the document, if it's not already moved. THE COURT: Mr. Brown, do you have any objection to the admission of Commonwealth's Exhibit 5? MR. BROWN: No, Your Honor. THE COURT: Commonwealth's Exhibit 5 is admitted. (Whereupon, Commonwealth's Exhibit No. 5 was admitted into evidence.) BY MS. BLASS: Q of a safety inspection station, is it normal procedure, to Mr. Monko, when you conduct an investigation 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your knowledge, that the Department will schedule an administrative hearing following that investigation? A The Department has the final say as far as in my report, whether there's no action taken, a departmental hearing, or any other action that they would deem necessary. Q Do you know whether there was a departmental hearing here conducted in the case of Leach's in which you were present? MR. BROWN: Objection, Your Honor. This is a de novo proceeding. Obviously, we're here on an appeal, and obviously that would indicate that there was at one time a hearing at some point. We're willing to stipulate to that. However, this is a de novo proceeding so the -- any prior proceeding would not be germane to this unless there's a transcript that's going to be offered. BY MS. BLASS: MS. BLASS: THE COURT: We'll accept that. Ail right. Q Mr. Monko, I've asked you to review a number of documents, your reports and station records, but I'm also going to ask you, in the course of your investigation of this faulty inspection, did you have occasion to speak directly to Timothy Leach about the circumstances surrounding the inspection? 4O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I did. Q Okay. Did he make any statements to you regarding the circumstances that resulted in the faulty inspection? A of that in my prior testimony here. Okay. There were no other statements he Q made to you? A Q Yes, he did, and I previously made mention Not that I recall. In the course of your investigation, did you have occasion to speak with Richard Leach, Jr., about the circumstances leading to the faulty inspection? A Yes, I did. I called Mr. Leach. I first had talked to him, and I had asked him if he would want to come up to look at the vehicle. Q In the course of that conversation, did Mr. Leach tell you whether or not he was present at the station at the time of the inspection? A Not at the initial contact, as far as when I called him from the inspection station when I re-inspected the vehicle, he did not say that he was there at the time of the inspection. This was brought out later on at the departmental hearing. MR. BROWN: Objection, Your Honor. Move to strike. The Department's testifying to a prior proceeding. 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This is a de novo review. THE COURT: Well, isn't an admission of a party always admittable wherever it occurs? MR. BROWN: an admission of a party. The witness didn't testify to The witness testified that it was brought out during a hearing. THE COURT: Do you want to be a little more specific, Ms. Blass, as to who said what? You can ask the question. MR. BROWN: Once again, Your Honor, Mr. Leach is here to testify today. The Quality Assurance Officer's here to testify today. This is a de novo proceeding, and relative to testimony from a prior proceeding, I would object to it, to the extent that we do not have a transcript to confirm what was or was not said at said proceeding. THE COURT: If this gentleman was at the hearing, he could say what he heard. If this is an admission of a party. I don't know if it is because I don't know who Richard Leach is in relation to the station. Is there no stipulation as to what his capacity is at the station? MR. BROWN: We certainly are prepared to stipulate as to Mr. Leach's capacity at the station. I did not know that we were at that point in the proceeding, 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and I didn't understand that to be the testimony to be proffered by this witness, Your Honor. If that's the case, I would withdraw my objection, if he's going to testify as to Mr. Leach's involvement with Leach's Automotive and what his capacity is at Leach's Automotive. THE COURT: MS. BLASS: Ms. Blass. Your Honor, I wanted to elicit from Mr. Monko statements that were made in two regards in the course of investigation of the faulty inspection and at the administrative hearing. I do apologize for not phrasing those questions more specifically, but that was my intent at this point in the case. THE COURT: Is there something on the record as to what sort of an entity Leach's Automotive Service is, or is there going to be, and is there going to be something as to what capacity Mr. Richard Leach occupies with the entity? MS. BLASS: I think there may be from Petitioner's witnesses. I think Mr. Monko, based on his experience with the station, can indicate in what capacity Richard Leach is related to the station. THE COURT: Mr. Brown, do you have any objection to his being asked that question? MR. BROWN: I have no objection to that, Your Honor. 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY THE COURT: Q THE COURT: Okay. First, do you know what sort of entity Leach's Automotive Service is? Do you know whether it's a corporation, a fictitious name, a sole proprietorship or what? A Q No, I do not. Okay. And do you know what capacity Richard J. Leach occupies with the entity? A Well, he is employed as an inspection mechanic. He does carry a mechanic certification card, and my involvement with him is usually he acts in the capacity of, I would say, like a service manager, that he coordinates the company's business with the other mechanics as far as assigning them work and handling customers. THE COURT: Ms. Blass. BY MS. BLASS: Q whether or not Mr. Leach is the owner of Leach's Automotive? A Not offhand from official records I don't. Q I'd like to show you a copy of a document. Would you identify it for the record, please? A This is a MV-427 form. This is the official inspection station application form when an Mr. Monko, do you know or not -- do you know 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 individual would want to become an official inspection station. This is the form that they complete, and on the second page there is a signature of the applicant, and it does show that it's Richard M. Leach, Jr. MR. BROWN: Your Honor, we're perfectly willing to stipulate that Mr. Richard M. Leach is the sole proprietor of Leach's Automotive. THE COURT: Okay. I've been saying Richard J. Leach. Is that incorrect? MR. BROWN: THE COURT: It's M. It's M. Leach. Okay. And the entity is just a sole proprietor? MR. BROWN: It's a fictitious name, Your Honor. It's a sole proprietorship. THE COURT: All right. Ms. Blass, are you willing to stipulate to all of that? MS. BLASS: I don't think I am, Your Honor, respectfully because the issue in this case is -- we have no other information as to the nature of the entity other than counsel's representation, and there was prior testimony in the administrative hearing indicating a partnership connection between the two individuals. So I respectfully am declining to stipulate to that fact. THE COURT: Can you stipulate that Richard M. Leach is at least a part owner? 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BLASS: I'm sorry. I didn't hear you. THE COURT: Can you stipulate that he is at least a part owner of the business? MS. BLASS: Based on this document which I'm willing to offer, he's indicated as the owner. THE COURT: Well, I think that's what Mr. Brown had proposed the stipulation would be, but you say you don't want to stipulate to that. at least that he is a part owner? MS. BLASS: THE COURT: satisfactory? MR. BROWN: So can you stipulate Yes, Your Honor. Mr. Brown, is that We'll stipulate for now that he's at least a part owner, and develop the rest of the testimony, Your Honor. THE COURT: All right. Thank you. BY MS. BLASS: Q May I refer you back to the administrative hearing in this case that was conducted in February of 20017 Do you have some recollection of the hearing, Mr. Monko? A A hearing was conducted February llth of 2002, and at that time it was -- we just more or less read my report and some questions were asked of Mr. Leach and the mechanic. 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Q So'Richard Leach was at the hearing, as was Timothy Leach; is that correct? A That's correct. Q Do you recall any testimony by Richard Leach, Jr., explaining the circumstances that resulted in the faulty inspection? A No, I do not, not at that time. Q Do you -- apart from the administrative hearing, but in the course of your investigation, do you recall any explanation that was made to you by Richard Leach, Jr., as to the circumstances leading to the faulty inspection? A Q A Yes, I do. Can you relate that communication? During the course of the investigation, I cannot put a date and time on it, but Richard and I had, you know, spoke about the violation, and he had stated that he's in and out of the garage. He lives close by, and he's at the garage on Saturdays, as far as he cannot watch everything that goes on in the garage with the amount of work, looking over an inspection mechanic's shoulder all the time. Q Mr. Monko, did Mr. Leach indicate to you how many -- during your conversation, how many mechanics were working on a typical Saturday? 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't recall if that was discussed. Q Let me ask you, during what period of time have you served as Quality Assurance Officer with supervision over this particular station? A From January of 1990 up to the current. Q And has Mr. Leach been present at the station during that entire time? A Yes. Every time I went to do my routine audit, Mr. Leach was there. Q Have you understood, to your knowledge, that he was acting in the capacity of the owner of that business? A I would take it. I mean he was the spokesman when I would go in. I would talk to Mr. Leach personally, and ask him to get the records and the stickers out, which he gets everything out for me. MS. BLASS: Thank you. No further testimony. a moment. BY MR. BROWN: THE COURT: MR. BROWN: Mr. Brown. Yes, Your Honor. If I may have THE COURT: Certainly. MR. BROWN: Thank you, Your Honor. CROSS EXAMINATION 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Mr. -- is it Monko? Monko, yes. Monko. Mr. Monko, my name's Michael Brown. I represent the Petitioner, Appellant, Leach's Automotive Service. You indicated in your testimony that for a number of years you've been doing inspection station reports, reviews, and business; is that right? A That's correct. Q Okay. And how familiar are you with Leach's Automotive Services? A I served as their Quality Assurance Officer for the past 4 years. Q Past 4 years. And how often would you say you've stopped by Leach's Automotive Services? I would say I've been there maybe 5 or 6 A times. Q A Q Five or six times? Yes. And what was the last time you stopped by Leach's Automotive? A The last time I stopped by was to check out the inspection. We had an inspection complaint, oh, maybe about a month or two ago, that the individual never showed up. Q Okay. And do you recall -- and you stopped 49 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by the station at that time? A Yes. Q And do you recall the sign over the door as you entered the station? A Pardon? Q Do you recall seeing the sign over the door as you entered the service station? No. I didn't pay attention to what sign's A over the door. Q Okay. Do you recall ever seeing a sign on the premises that said Richard Leach, Proprietor? A I don't recall seeing that sign. All I look for is the official state inspection sign. That's what I'm interested in when I come in. I look for the Keystone sign, and that it's properly displayed. Q Okay. Have you ever met or do you know any of the mechanics that work at Leach's Automotive Services? A Yes. I've met, you know, all of the mechanics there as far as I usually check their driver's license and inspection licenses during my routine audit. Q Ail right. So you've met Theodore Sweger, one of the mechanics there? Do you recall that name? A Offhand -- I have thousands of mechanics as far as it's kind of hard to -- Q How about Richard Leach? 50 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Richard Leach, yes. Can you identify him for me? Yes, he is sitting between -- He's sitting right next to me? Yes. How about Tim Leach? Tim Leach, yes. Which one's Tim Leach? Tim is the individual in the white shirt. With the goatee? Pardon? Q The individual with the goatee? gentleman I'm pointing to right now? The the tie. A The individual with the white shirt on and Q Do you know the gentleman next to him? A I know he's employed at Leach's Automotive Service, but right offhand I don't know his name. Q Ail right. If I were to represent to you his name is Thomas Leach, would that refresh your recollection? A works there. Q Okay. the name of Randy Leach? Well, I would have to -- well, I know he Have you ever met an individual by 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Again, I say that, you know, I've met other mechanics in there, but I have 650 inspection stations, and it's hard for me to remember each individual mechanic. Q Okay. All right. Going back to an exhibit that you had been testifying to previously. I believe it's Commonwealth Number 5. You testified to a number of instances where there were initials. A Yes. Q If I were to represent to you that there are two individuals at Leach's Automotive Service Center by -- one by the name of Thomas Leach and one by the name of Timothy Leach, would you be able to tell me by looking at Commonwealth Exhibit Number 5 which exhibits -- which initials T.L. are for Thomas Leach and which are for Timothy Leach? A Q No, I wouldn't. Okay. And if I were to represent to you that there is a mechanic employed by Leach's Automotive Services by the name of Randolph Leach, and then there's an owner mechanic operator by the name of Richard Leach, would you be able to tell me by looking at Commonwealth Exhibit Number 5 which initials R.L. relate to either of those individuals? A Q No, I wouldn't. Okay. Now, you had some testimony that 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 after you received a complaint from Mr. Englehart that you had contacted Richard Leach; is that right? A Yes, that's correct. Q Why did you call Richard Leach? A Well, I had called the inspection station, and I talked to -- Mr. Leach answered the telephone, and I told him, you know, what had happened, and I asked if he would want to come up to view the inspection, and he got the inspection sheet out for me, and he told me that -- what inspection mechanic performed the inspection, that that mechanic, Tim Leach, was on the day off and he would contact him and have him come up to the station, which he did come up and view the violations. Q All right. And joining the other five or six times that you've visited the Leach's Service Center over the last four years, do you remember who you dealt with primarily? A I dealt with Richard Leach. Q Okay. Any idea why you dealt with him? A Well, I had previously stated that he is more or less like the coordinator of all the work, and he handles the inspection stickers and he gets the records out for me when I come in to do my routine audit. Q When you are inspecting other stations, what type of employee typically handles that type of stuff? 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A If it's a dealership, they usually have the service manager. If it's a -- just a sole proprietor it's the owner, mechanic. Basically it's the service manager who I deal with in a large dealership and the owner of the station when I come in to do a routine audit. Q So the person you typically deal with in these types of dealings is the person you usually understand to be the supervisor, the manager, or the owner; is that right? A Q That's correct. Okay. Do you recall having dealings with Timothy Leach prior to this inspection issue from October 27th, 20017 A No, I've never had any dealings with him. Q You don't recall him ever greeting you at the station to give you books or records or anything? A To my knowledge, no. MR. BROWN: Mr. Monko, thank you very much. I don't have any further questions for you. THE COURT: Ms. Blass. REDIRECT EXAMINATION BY MS. BLASS: Q Mr. Monko, is it a requirement that an inspection station indicate to the Department what certified mechanics are employed at that particular 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 station? A They are required to display a mechanics certification form in view of the public listing the certified mechanics that are employed and their operator's number and class of mechanic and expiration date of their mechanic certification. Q And an inspection mechanic may be certified to inspect different classes of vehicles. For example, an inspection mechanic may be certified to inspect motorcycles and another may be certified to inspect trucks. Is that not correct? A Q Yes, that's correct. As to the -- MR. BROWN: Your Honor, I'm going to object to this line of questioning on the grounds of relevancy, again. I don't understand how this has any bearing on the events of October 27th of 2001. Ms. Blass. Your Honor, the inspection THE COURT: MS. BLASS: record will indicate, I think with some clarity, what types of vehicles here are passenger vehicles. They indicate the make and model of the vehicle. We have no basis as to determine whether these inspection mechanics we referred to are actually listed as the inspection mechanics at the station or what classes of vehicles they have been 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certified to inspect. THE COURT: MS. BLASS: BY MS. BLASS: Q You can ask the question. Okay. Did you note -- it was mentioned on cross examination that there is a -- in addition to Tim and Richard Leach, there is a Thomas Leach and a Randy Leach. To your knowledge, are these certified inspection mechanics? A Q Well, to my knowledge they were. Have you seen them listed in the roster of inspection mechanics at Leach's? A I know there are names, probably about five or six names on the roster. I don't know them by first name as far as who's on there. I just write them in on my audit report as far as who's certified to conduct inspections at the station. Q When you reviewed the inspection records that I asked you to obtain, did you have any doubt in your mind, when you saw the initial T.L., that that referred to Timothy Leach? A That's -- when I went there with that intention, I was looking for T.L., as far as on the inspection 431 sheets. Q Okay. T.L. referring to Timothy Leach? 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Timothy Leach, yes. Q And when you reviewed the inspection records to determine if the initials R.L. was there, were you trying to review those records to determine if those inspections were done by Richard Leach? A That's correct. Q Was there any information that was presented to you to indicate that -- in this record, that T.L. is Thomas Leach? A questions. No. Ail -- it just has the initials T.L. MS. BLASS: Thank you. No further BY MR. BROWN: Q THE COURT: Mr. Brown. RECROSS EXAMINATION Mr. Monko, one last question. I'm sorry to take up your time. Was there any information to indicate to you that the initials R.L. were anyone other than Richard Leach? A as far as that day, I had just taken R.L. was Richard Leach. Q And on that particular day you were just looking to see where there was an initial for T.L., assuming that that was probably Tim Leach; is that right? No. Without me looking at the MV-433 form 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's correct. MR. BROWN: THE COURT: MS. BLASS: Thank you, sir. Ms. Blass. Your Honor, I would like to review for a moment the latter document that I presented to Mr. Monko to determine whether it shall be offered. Your Honor, I'm going to offer this because it has an indication as to the number of mechanics, and I'm going to ask Mr. Monko to identify it and indicate that. Commonwealth's Number 6. MR. BROWN: THE COURT: Your Honor -- Wait. Let's get it marked first. (Whereupon, Commonwealth's Exhibit Number 6 was marked for identification.) MR. BROWN: THE COURT: No objections, Your Honor. Ail right. Did the witness actually identify what this is? MS. BLASS: MR. BROWN: I can't recall, Your Honor. Your Honor, I believe from prior testimony the witness stated that that was the application for the service station appointment. THE COURT: Okay. as to what that item is, which has been marked Commonwealth's Exhibit 6? Is that the stipulation 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BLASS: Your Honor, I think further testimony will elucidate that this is actually an application for change of trade name as indicated on the face of the form. THE COURT: Okay. I don't know. I haven't seen it. So I don't know what it is. You really need a witness to identify it if you can't agree as to what it is. MR. BROWN: I will stipulate that that is a change of name from Leach's Service to Leach's Automotive Service, I believe it says, and it's signed by Richard M. Leach. MS. BLASS: MR. BROWN: Yes. And I believe the witness even testified to the latter part of that stipulation, Your Honor. THE COURT: MS. BLASS: Ms. Blass. We would agree that it is so identified. I would like to ask Mr. Monko the indication with reference to the mechanics on the form. BY MS. BLASS: THE COURT: Okay. Q an MV-427 that we have identified as indicating a request for change of trade name from Leach's Automotive. Mr. Monko, I'm going to offer you a copy of 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, that is correct. It's from Leach's Sunoco, they wanted to change their trade name to Leach's Automotive Service. Q Do you have any knowledge, based on your own recollection of dealing with the station, as to when that application might have been submitted to the Department? A This was submitted March the 29th of 1977. MS. BLASS: I'm going to withdraw it. I will withdraw the exhibit. THE COURT: You're going to withdraw it? MS. BLASS: Yes, Your Honor. I'm sorry. Please accept my apology for that vacillation. THE COURT: MS. BLASS: midstream here. testify as to it. BY MS. BLASS: Q That's all right. I'm trying to think in I will, nonetheless, have Mr. Monko Mr. Monko, how many mechanics are listed on I would like to It is being offered or it's not that application dated March 19777 A Question Number 13 lists 3 certified mechanics were presently certified. MS. BLASS: Thank you. offer it as Commonwealth's Number 6. THE COURT: Mr. Brown. MR. BROWN: 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 being offered? admission. THE COURT: I think it is being moved for MS. BLASS: MR. BROWN: It is. I have no objection to the moving of that document as an exhibit, Your Honor. THE COURT: Exhibit 6 is admitted. Ail right. Commonwealth's (Whereupon, Commonwealth's Exhibit Number 6 was admitted into evidence.) MS. BLASS: THE COURT: The Department rests. Okay. Why don't we take a short recess. You may step down, Mr. Monko. I have an adoption hearing at 11:15, and then after that I can resume this hearing until the lunch hour. (Whereupon, a recess was taken at 11:00 a.m., and court reconvened at 11:20 a.m.) AFTER RECESS THE COURT: MR. BROWN: Mr. Brown. Yes, Your Honor. Your Honor, at this point I would like to revisit a prior motion that I had made based upon the testimony that we've heard today before the Court. Thus far in evidence before the Court and in the docket and record in this matter we have the petition, appeal of Leach's Automotive Services, and then 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we have the case in chief, the testimony put on today by the Department of Transportation, and that's all that we have so far, Your Honor. We have a stipulation of an underlying action by Timothy Leach, Auto Mechanic, and we have unchallenged allegations by the Petitioner that the Petitioner, Leach's Automotive Services, did not know of the conduct of Mr. Leach. That's set forth directly in our appeal. THE COURT: I know, but you still need to prove it on the record. I mean I can't just take your allegations as being true. MR. BROWN: Thank you, Your Honor. THE COURT: All right. I think you were making a motion to sustain the appeal. MR. BROWN: Yes, Your Honor. THE COURT: Okay. Now, Ms. Blass, do you have an objection to that? MS. BLASS: I'm going to object to the motion because it is clearly the burden of the station owner to show proper supervision, and but for that supervision the violation would not have occurred. That is the standard that's been sanctioned by the Commonwealth Court in terms of whether a station should be afforded points as opposed to a suspension. 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Ail right. I think it's correct that I can't just rely on the allegations in the petition. So I'll deny the motion. MR. BROWN: Thank you, Your Honor. Your Honor, at this point Petitioner would like to call Richard Leach to the stand. Whereupon, RICHARD M. LEACH having been duly sworn, testified as follows: MS. BLASS: Your Honor, I would like to make a motion to sequester Timothy Leach until the testimony of Richard Leach is completed. THE COURT: Mr. Brown. MR. BROWN: Your Honor, I would like to have an offer of the reason for the sequestration of Mr. Leach. MS. BLASS: I can provide that offer, Your Honor. Mr. Leach is -- the issue here is whether Mr. Leach is an employee or owner of the -- or manager of the station. He has already served his suspension. He did not take an independent appeal of that suspension, and I think there will be a tendency for, even unconscious or unintentional bolstering of the testimony to occur should the person in question be allowed to hear the testimony of Mr. Leach. THE COURT: Mr. Brown. 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BROWN: As counsel's pointed out, Mr. Leach has served the suspension as a mechanic, not as an owner, operator, or as Leach's Automotive Services. To the extent that everybody understands that that's the case, and if counsel feels that Mr. Leach is going to throw some sort of untoward testimony towards the Court, unfairly bolstering the testimony of Leach's Automobile Services or their owner, Mr. Richard Leach, counsel certainly understands that and would consent to Mr. Leach being out -- being sequestered. However, to the extent that the Commonwealth wants to form any type of a position relative to any interest that Mr. Leach may have, other than that of an employee, this is Mr. Tim Leach at this point, I believe that by requesting him to be sequestered the Commonwealth would waive that position. THE COURT: Well, I'm not sure that it would be a waiver, but I'll permit the sequestration, and ask that the witnesses of the Petitioner be sequestered. MS. BLASS: Thank you, Your Honor. (Whereupon, the witnesses were sequestered.) MR. BROWN: THE COURT: May I approach, Your Honor? You may. DIRECT EXAMINATION BY MR. BROWN: 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Sir, could you state your name for the record, please? address? A Richard M. Leach. Are you Junior or Senior? I'm Junior. And is Mr. Richard Leach, Sr., alive? No. My father's dead now. Mr. Leach, could you please state your A 607 Market Street, Lemonye. And do you know why you're here today? Yes. They're looking up on our station license for doing inspections. Q that station? A Q A Q that business? A Q A Q A Okay. That station -- what's the name of Leach's Automotive Service. Okay. And is that your business? Yes, it is. Okay. And do you own a hundred percent of Yes, I do. Do you share profits with anybody? No, I don't. Do you share losses with anybody? No, I don't. 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So you own Leach's Automotive Services? Yes, sir. Okay. Do you issue W-2 forms at tax time to your employees? A Yes. Q Is there anybody at Leach's Automotive Service that doesn't get a W-27 A No. Q Does Timothy Leach receive a W-2 from Leach's Automotive Service? A Yes. Q And in what capacity is he employed with Leach's Automotive Services? A He works for me as a mechanic in the shop. He's my brother. Okay. But he works for me as a mechanic just like Q anybody else. Q A Q A Q Is he a manager? No. Is he a supervisor? No. Do you understand him to exercise any supervisory authority whatsoever? A No, none whatsoever. 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Do you understand him to be any type of a management employee? No. I make all the decisions. Does he have the authority to order A materials? A Q A He can only order parts. That's all. Can any mechanic at the -- Yes. Any mechanic can order the parts that he needs for a job once he clears it with me. Q Okay. And does Timothy Leach have to clear it with you when he orders parts? A Yes, he has to clear it with me. Q Do you have any employee on your payroll who acts in a management capacity other than yourself? A My brother Thomas. Q Okay. And in what capacity does he act? A If I'm not there, than he's in charge. One of us is always at the garage. Q And do you share profits with your brother Thomas? A No. Q Ail right. brother Thomas? A No. Q Ail right. Do you share losses with your Do you pay him a salary? 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I pay him a salary. Do you pay Tim Leach a salary? Yes. All right. The reason why we're here today 27th, 2001. A Q here today? A concerns events happening or occurring on or about October Are you familiar with that fact? Yes, um-hum. And what can you tell me about why we're Well, apparently they think that I'm not doing my duties as a manager. Not overseeing what's to be done, what's going on in the shop. Q Okay. Are you aware that Timothy Leach may have engaged in practices that were deemed violative of the inspection laws of the Commonwealth of Pennsylvania? A Yes, sir. Q Okay. And were you aware that those -- that he would have committed those acts on October 27th, 20017 A Q A called me. Q 20th? I didn't know it at the time. Okay. When did you come to know -- I didn't know about it until Mr. Monko Would that have been on or around November 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q did he say? A Yes. Of 20017 Yes. All right. When Mr. Monko called you, what Do you recall? He told me that there was a car in question at another shop. There was some violations, that Tim's name was on the back of the sticker, and would I ask Tim to come to the car because they wanted to examine the car with him there, and he needed to be there present. Q Just to backtrack a little bit, if you don't mind. Leach's Automotive Services, is that a fictitious name? A Yes. Q Is's not a corporate name, is it? You're not incorporated? A It's a family business that I started all the way back actually in '71. I'm way older than my brothers so as they came along and got out of school, they came to work for me. Actually my mom and dad actually worked for me years ago. They're both passed on now, but my brother Tim and my brother Thomas, my son Randy, my uncle retired a few years ago, and it's been a family affair, and we have a couple other fellows that work for us too. 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q When you say family affair, is it a family owned business or is it a -- or are they family employees or what do you mean? A Well, they're family employees, but I mean I consider -- we're all in this together. I mean we work together day in and day out. It's one for all, all for one. Some day I'll be gone and hopefully I'll pass it on to them. THE COURT: Who is the owner of the fictitious name? BY MR. BROWN: Q building? A Q A proprietor. THE WITNESS: THE COURT: THE WITNESS: I am, sir. And are you the sole owner? Yes, sir. And, Mr. Leach, the main entrance to your Yes. Is there a sign above the door? Yes, there is. It says Richard M. Leach, Q Ail right. How long would you estimate that that sign has been there, not moved, no altered, not changed, how long's it been there? A That particular sign's been there since about 1976; '77, '76. 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Ail right. talking about vehicle inspections? A Q Once again we're Yes. Could you run me through the procedure that's followed by the typical mechanic under your operation? A I assign the work to a mechanic. I see -- there's different types of work to be done. I'll assign the work to one of the mechanics. If it's a State Inspection, when the car gets into the shop and they have a chance to look at it, I'll go over anything that's in question with them. When the car is up on the rails, I like to look underneath it myself. I try to give every car that comes in there some of my personal attention as long as -- and, you know, do all of my other jobs too, as far as customers and ordering parts and writing up bills. Q And what's the procedure that's to be followed by the mechanic in the event that they're going to do an inspection? A Well, he has to verify the registration. They have to test drive the vehicles. They have to check the car physically for all the inspection rules. If there's anything in question, they have to write it on paper, bring it to me, we go to the car, we go over 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 everything together, and then if need be, we contact the customer. Q And is that standard policy at Leach's Automotive Services? A Yes, sir. Q And let me ask you this. When an inspection is completed, how does a mechanic report the inspection? What's the process? A Well, when the inspection's done, the mechanic has to log in a State Inspection sticker in the inspection book. Then they bring the information to me. I'll put it on the computer and write the customer a receipt. Occasionally, if the computer's down, if we're overwhelmed by work, sometimes we may write a hand ticket. Okay. You say sometimes you might write a Q hand ticket? A Q Yes. What's the normal course of procedure? I'm not sure I was clear on that. A The normal course of procedure is to log in everything on the computer. Q Okay. And when you say you would assign work, a customer comes to you first; is that right? A The customer makes an appointment. He comes to me first. 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Is it possible they might call and get one of the mechanics on the telephone? witness. MS. BLASS: THE COURT: Objection. He's leading the Ail right. I'll sustain the objection. on this particular day. MR. BROWN: THE COURT: background. BY MR. BROWN: Q Really, I'm mostly interested in what happened Certainly, Your Honor. I know you do want to set some Mr. Leach, on the day in question, October 27th, 2001, are you at -- at this time do you have a recollection as to the inspections that may have happened on that day? A Q I didn't know Yes. Okay. And do you have any particular recollection relative to inspections that may have been performed by Timothy Leach? I know the one in question. A it at the time. Q A Ail right. What do you know about it? Well, with all the information, I mean I know he performed an illegal inspection behind my back. You know, if you want to be sneaky enough, you can. I 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mean, even though I'm as careful as I can possibly be, if somebody wants to be sneaky and sneak around behind your back, things can be done in any shop, not just mine. Q Now, did you work on October 27th, 20017 A I work every day. Q Okay. A I live right beside the shop. I'm there all the time. My house is right beside the shop 20 feet away. I'm there all the time. Q Can you tell me whether or not this inspection was performed while you were on the premises? A To the best of my knowledge, it wasn't. I mean I may have -- I might go out for a sandwich. I might run over to the house, get something to eat, and come right back. I might go deliver a car. I mean there's numerous things that can pull me away for a short period of time, but it's not like I don't manage the shop. I mean I don't baby-sit them. They're grown men. They have their responsibilities, and everybody knows what that is, but I oversee everything. I don't -- nobody just runs loose. Q All right. In this particular instance there was some testimony earlier that this was a vehicle, and bear with me one second. I just want to make sure I have the right vehicle and make. A Subaro? A Yes. 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And did you by any chance -- did you receive any request from the customer at all to this car? A No. Q You didn't? A No. I don't recall this car. Q All right. Did you know that this car was being inspected prior to the inspection? A No, I don't. Q All right. You've testified that the normal procedure is for the people to enter inspection information into your computer; is that right? A I put the information on the computer. Q All right. How do you get the information? A By my techs. They have to give me the information written down -- when it comes time to write the bill, they bring me the information, which I start out giving them the registration card and the insurance card and the list of things to be done to that vehicle. When it comes time to write that car up, to create a bill, they give that information back to me so that I can log it into the computer. Q All right. And did Timothy Leach give you any information relative to this Subaro on the 27th? A No. Q Did he give you any information on the next 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 business day? A No. Q When was the first time you found out that he had inspected a Subaro? A Not until Mr. Monko called me. Q Okay. Are you aware -- were you on the premises at 12 noon on October 27th? noontime. A Yes. Did you work? Yes, I work every day. Okay. So -- On the weekends we usually just work until Q Okay. On October 27th, 2001, a Saturday, did you leave at 12 noon or did you work later than 12 noon? A I know I left around lunchtime. I don't know exactly the time. It might have been a little bit after. Every little detail, I don't remember, for that day. Q All right. I don't know if you have the exhibits in front of you that were used earlier today. MR. BROWN: May I approach the witness, Your Honor? THE COURT: Certainly. 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BROWN: Your Honor, let the record reflect that I'm approaching the witness with what's been premarked and I believe admitted, Commonwealth Exhibit 5. BY MR. BROWN: THE COURT: Ail right. Q and tell me when you're ready to proceed? A Okay. I'm ready. Q Mr. Leach, looking at the first page of Commonwealth Exhibit Number 5, that's been previously identified as an inspection record from I believe your service station; is that correct? A Yes. Q Okay. Can you identify for me from the first page there which inspection we're talking about today? A Q Could you take a look at that, Mr. Leach, That would be number 7. Number 7. Okay. Now, inspections are done in chronological order; is that right? A Yes, as they're completed. Q Okay. So based upon this document, was the previous testimony today correct by Mr. Monko that 8, 9, and 10 would have been completed after 7? A Yes. That means they were logged in after 7. 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And do you see the initials R.L. by inspection numbers 9 and 107 A Yes. Q Okay. No. Is that you? That's my son Randy. A Q How do you know? A I know his signature. Q Okay. A I know my signature. Q So you didn't initial that, your son did? A That's correct. Q Okay. Now, did you know about the inspections that were -- the inspection number 107 A Yes. Q Did you know about that inspection before it occurred? A Yes. How did you know about it? I assign the work. Okay. And would that inspection have occurred before or after the shop closed for the day? A Typically the mechanics work until noon on Saturdays. We don't always -- we don't always finish up by noon. In the past we've always worked until some of the work got done if people needed their cars back. 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Randy's not one to get to work on time on Saturdays. Sometimes he's a little bit late, but he doesn't mind staying a little bit over and finishing his work. Q Ail right. How about inspection number 9? Did you know about that inspection on October 27th, 20017 A Yes. I assigned these jobs. Q Ail right. So you knew about 9 and 10 on that day? Q on this form? A Q A Q A Q A Q A Yes. Q And you knew those inspections were going to be done before they actually got done? A Yes. You knew about it before they were written Yes. Okay. Yes. How about inspection number 8? I assigned that job. Who did you assign it to? Tim. Okay. Are his initials there? Yes. Okay. And did you know about that before -- did you know the inspection was going to occur beforehand? A Yes. 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. What about number 7? That's the one I'm not familiar with. Okay. You didn't know anything about it? No, I didn't. How do you track -- how do you track the work that gets done in the shop every day? A On the computer, for the most part. Q All right. Do you track it by way of the inspection record? A No, it's not -- the State Inspection record doesn't really tell me everything that was done to the car. The car might be in for numerous things. So if the car got a tune-up or if it got anything that was unrelated to a State Inspection, it wouldn't be on this record. So this record, as far as what I need at the end of the day, it doesn't have any bearing as far as the end of the day sales that are on the computer or on the register. Q Well, so if I understand you correctly, there's other work other than what's on the inspection report? A Q basis? A tire changes. Yes. That's done in your facility on a daily Correct. There is oil changes. There's There is just numerous things that wouldn't 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be on here. This is only State Inspection related items. Q So the last vehicle listed on here could have been the first one in that morning? A It could have been. Q Okay. All right. What procedures do you have in place to control or prevent your employees from running one by you? A Well, everybody has to -- of course, everybody has to sign for their stickers in the book. Since this happened, we actually make them create their own work order, a handwritten work order, even if it's just -- even if it's only a State Inspection, if there's nothing else on it, they have to create their own work order, handwritten, put their initials on it, and present it to me when the job is done so I know every little thing that was done on the car, and they sign for it. Q Anything else? A Everything's logged in the computer. Now there's no exceptions. We don't use any handwritten tickets for inspections anymore. There is no exceptions. Q Even if it gets too busy? A If it gets too busy, they'll have to wait. We don't -- I will not accept a handwritten receipt for a customer's inspection, even though it's legal. The law only says that I have to give the customer a receipt for a 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 State Inspection. We absolutely make it mandatory now that every inspection is logged into the computer. There's no exceptions. Q All right. A Before it was okay to write a hand ticket if we would get busy, and just slip it into the paid file when it was done, but that's -- I don't allow that at all anymore. I'm just trying to rule out every possibility of making a mistake. Q Okay. Now, for my point of view, part of supervision would be training. employees at all? A Q A Do you train your Yes. How do you train them? We have meetings. We go to seminars. go to professional seminars, training seminars. Q All right. Do you have your employees go to seminars on conducting State Inspections? Well, the State Inspections, they have to A pass the test. Q A Q A They have to pass a test? Yes. Okay. They have to go to school and pass a test before they're certified to do the State Inspections. We 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Are you aware of whether or not Mr. Timothy Leach is certified to do inspections or has passed the test? A Q Yes. He's certified. Okay. In the course of your business, do you -- you said you have -- I think you said you had meetings or you do your own training or how was that? How did that work? A Well, the State -- the State makes them go to classes, to school, teaches them how to do a proper inspection, makes them take a test before they're certified, and then they get a license to do State Inspections. Q All right. Do you do any training in-house? A Yes. When new things crop up, we do it with in-house. Q like that? A Refresher courses would only refer to new things that come out. I mean they're constantly adding little things here and there. So we, among ourselves -- I mean there's only six of us, but, yes. Q How many total employees are there at Leach's? What about like refresher courses and things 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A of us can do inspections. pumpers, gas jockeys. Q Okay. A We sell gas. Q All right. authorized mechanics? A Q Total, counting myself, nine, but only six The other three are gas So you have six, I guess, That's correct. And are all of your mechanics aware of your He is asking for a Mr. Brown, do you want to policies relative to State Inspections? MS. BLASS: Objection. standardized, as to other individuals. THE COURT: rephrase the question? MR. BROWN: BY MR. BROWN: Q I'll rephrase, Your Honor. To the best of your understanding, Mr. Leach, do you have any knowledge concerning your employees understanding of your policies? A No. THE COURT: That's basically the same You can ask him whether he's instructed his Thank you, Your Honor. question. employees in a certain way. MR. BROWN: BY MR. BROWN: 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Mr. Leach, have you given your employees any instructions concerning your policies and procedures? A Yes. Q What type of instructions have you given them? A Just what I just said. that they cannot do any handwritten tickets. everything has to be logged into the computer. no exceptions. Q Okay. Everybody knows They know There is And on October 27th, on or around that date, of 2001, did you have any instructions to your employees relative to inspections? A Well, they -- I mean everybody knew back then if we needed to write a hand ticket, that was okay. I mean that's State legal. That's all you're required to do, but we have changed our policy within our business so that we don't have problems. Q And was it your testimony before that there was a policy in effect, concerning your knowledge, on inspections? A Q A Q Yes. And what was that? I'm not sure I'm following you. Did you testify earlier today that you had to know about an inspection ahead of time? 85 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time. A Yes, I do have to know about it ahead of Q Did you have to know about it back in October of 20017 A Yes. Q Did you have to know about it today? A Yes. Q And if an employee of yours today wanted to do an inspection they have to tell you ahead of time? A That' s correct. Q And -- THE COURT: Off the record for a moment. (Whereupon, a discussion was held off the record.) BY MR. BROWN: Q Mr. Leach, was Timothy Leach disciplined as a result of the actions that occurred in October? A Yes. He was entitled to a week's vacation with pay. He was already on vacation when Mr. Monko contacted me. I did not -- I did not pay him for that week. He got the week off with no pay. Q Okay. Do you have any -- do you have any prior violations? A No. I don't think so. I mean we've been there for -- I've actually been in business since 1971. 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I've never been called into court for anything like this ever. Q And in your mind is there anything that you could have done to prevent Mr. Timothy Leach from doing this faulty inspection? A Not that I can think of. I mean as I look back on it now, you can always make changes. It's not that you can't make something better than what it already is. I thought our procedure was fine then. Like I said, we've changed some things to make it even tougher. I think I did everything possible at the time to manage them correctly. I mean he went behind my back on this. Q All right. And, Mr. Leach, if you're suspended for two months, what's going to happen to your business? A This is a family business. I mean six families there depend on this work to feed their families. That's how they make a living. I mean if we was to lose our State Inspection license for two months, it would be devastating. I would have to put people out of work. I don't know how long they may be off. I don't know if we could survive. Two months is a long time to go without doing State Inspections when 75 percent of your work stems from State Inspections. It may be other work involved, but 87 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 our work mostly starts with State Inspections. Without a license for two months, it would be devastating. I don't know if we could survive, but for sure, people would be laid off without jobs. Q And finally, Mr. Leach, personally or through counsel, are you aware of whether or not you requested to consent to the assignment of points in lieu of a suspension? A Q I don't think I was offered points. Ail right. Did you request, through counsel, the ability to have points assigned? A Since this all came up, I requested that. MR. BROWN: Thank you, Mr. Leach. No further questions, Your Honor. THE COURT: Okay. I just have a couple, if I might, before we recess. BY THE COURT: Q Do you have an appointment book? A You mean for inspection? Q For anything? A Oh, yeah. At the shop. Q Well, was this car on the appointment book? A The one that got rejected? Q Yes. A No. 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q own the car? A No. The Subaro was not on the appointment book? No. Are these regular customers of yours that I don't know these people. Q You don't. Did you get paid for it? money come into the business for it? A There was a receipt in the drawer, a handwritten receipt for that car. Q And was it paid by check? A Actually it was paid by cash. Q Do you know how much? A With tax, the receipt said $21.20. Did $20.00, plus $1.20 tax. THE COURT: the moment. Thank you. It was Okay. You can step down for We'll recess until 12:45. (Whereupon, a recess was taken at 11:55 a.m., and court reconvened at 12:40 p.m.) AFTER RECESS THE COURT: Let's see. you're still under oath. Ms. Blass. stand.) BY MS. BLASS: Mr. Leach, I think (Whereupon, Richard Leach resumed the CROSS EXAMINATION 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Mr. Leach, I'd like to ask you a couple questions relating to Timothy Leach's employment. A Okay. Q Did you actually hire him as a certified mechanic at your station? A Well, when he first came to work for me, he wasn't old enough to be certified. He just started working out of school. He didn't get certified until a little bit later. Q of employment? A Yes. Q What are his duties, his current duties at the inspection station? By current I mean from the period in question when the inspection -- the faulty inspection occurred, that period of time what were his duties? A Well, his duties as far as working for me, is that what you're referring to? Q Yes. A You mean his daily duties. Do whatever I assigned him to do, whether it be a State Inspection, an oil change, fixing a flat tire, whatever I assign him to do, that's what he's required to do. Q Okay. And what are his hours of employment? A From 8 to 5 Monday through Friday, and then And you're responsible for setting his hours 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when it's his Saturdays to work, typically from 8 to noon, or if you have to stay a little bit to finish something up than that's what you're required to do, but I try to get them out by noontime. Does he work every Saturday that you're Q aware of? A No. No, he doesn't work every Saturday. The guys make extra money -- I try not to make everybody work every Saturday. They divide it up a little bit. We don't take a lot of work on for Saturdays. Usually just smaller jobs, nothing big so that the guys can have two days off. They split the weekends up. Sometimes they'll switch around. Sometimes they'll work two or three weekends in a row, and then other times they'll switch around with other guys in the shop. As long as the hours are covered, that's the main requirement. Q And your station does have Saturday hours, right, from about 8 to 12 noon; is that correct? Yes. We're actually open until 3 in the A afternoon. Q The inspection records -- I'd like to show you what's been marked, I believe, as Commonwealth Exhibit Number 5. It's a series of inspection records for Saturdays in the months of September and October of 2001. 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Would you take a look at those for a minute? A Okay. Q Mr. Leach, isn't it true that on a regular basis inspections were performed at your station on Saturdays? A Yes. Q And I'd like you to look at the very first page under inspection number 7. Whose initials are indicated under that designation of mechanics initials at inspection 7? A Q beneath it? A Q Timothy's. Okay. And how about the inspection directly That's Timothy's. Okay. I'd like you to take the second page in that packet, and refer to the inspection that's indicated with a check mark. A Which number? Q Well, just go to the second -- A You mean the X? Q Yes. A Okay. Q Is there an indication there that T.L. has performed a Saturday inspection? A Yes. 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. A Okay. Q Okay. And go to the next page after that. Can you see a check mark near an inspection performed at the station on that Saturday? A Well, I see four of them you have checked off there. them? Q What are the dates of those inspections? The 13th -- yeah, that's 10/13. Right. Do any of those indicate T.L. on Q A Q Okay. indicating T.L.? A Q A A Yes. Q Okay. I'm going to ask you to look at one more record, please, the following page, something that's checked with an X. An inspection that's checked with an X. A Okay. What is the date, sir? 10/6. Are there any of those inspections On 10/67 Yes. It's hard to read this one. I'm not sure what the initial is on that one. Q Okay. Well, then please turn to the following page, and find another inspection, if you would, 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that has an X next to it. A Is that 10/057 Q A see, 10/67 Q A Q inspection? A Q Okay. No. That's T.L. Does it have an X next to it? Oh, down at the bottom here, let's Yes. Yes. Does that indicate T.L. performed the Yes. So just from the review of the records that you hold in your hand now, for the month of October there are at least three other Saturdays besides the one in question in which T.L., who you indicate is Tim Leach, performed a Saturday inspection. Is that not correct? A That's correct. Q Is it safe to say, therefore, that a Saturday inspection was part of his regular course of duties, isn't it? A Yes. Q Okay. You referred earlier to the fact that you have various policies to make sure that procedures are followed. Are they written policies? A Well, all the inspection requirements are written policies from the State. As far as for me to 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them? Q regulations. A Okay. I'm not talking about the inspection Q I'm talking about your particular policies at your station. Are they written? A No. Q Okay. They're all oral? A Yes. Q Okay. So how do you apprise mechanics of them if they're oral? How do you inform your mechanics of your policies if they're all oral? A Well, we have small meetings from time to time. EverybOdy knows what's required. We have discussions. I mean I tell them what's required of them. As far as inspections go, the regulations don't change. It stays the same unless the State changes it, which we receive information from the State, and each mechanic is made aware of that. Q Mr. Leach, going back to this particular inspection on -- I believe it was 10/17 -- 10/27/01. Therefore, there was another inspection mechanic who performed inspections on that day; is that correct? A Randy, yes. Q Now, what other duties did Timothy Leach 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have to perform on that particular Saturday besides inspecting vehicles? A Whatever may pop up or come rolling in the door. I don't remember specifics, but if somebody comes in possibly with an oil change, a tire change, a flat repair, car's not running right, whatever, he may be asked to do that. Q the station besides performing inspections? A Sure. Q And then after 12 p.m. on Saturday his duties consisted of what? A After 12:00, if he has something that he hasn't finished up he has to stay and at least finish it up for the customer, if it's something small. Q I'd like you to refer to the very first page of the packet that I gave to you. That inspection number 7. I think you referred to this earlier, but the inspection of Jeff S. Putt at number 7. Now, that's recorded, according to the Department's requirements, on the inspection sheet, is it not? A Yes. Q Okay. And all the required information is filled out for that inspection, isn't it? A Yes, it is. So he had a number of assorted duties around 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So, in fact, Mr. Timothy Leach did, in fact, complete the inspection sheet in the way that it was required by the Department's regs.? A Yes, he did. Q Okay. Even though your testimony was that he didn't notify you of the inspection for the purposes of the computer; is that true? A That's correct. Q Okay. That inspection was -- the fee for that inspection was $21.207 A That is correct. Q Okay. And that is a benefit that accrued to the station, did it not? It would be, providing that if we collected A the money. Q Do you have any understanding that you didn't collect it? A There's small discrepancies every day, but it's a family owned business. I don't trace every little thing down. There's discrepancies in the receipts every single day. As long as I'm sure somebody's not stealing from me, I don't go looking for them. Q $21.20, Okay. Whether or not we actually collected the I couldn't tell you absolutely for sure whether we 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did or whether we didn't. Nonetheless, it is charged on the inspection Q record? A Q Yes, it is. As a fee. Now, the entry that Timothy Leach made for number 7 is complete, just as the entry that he made for inspection number 8, is it not? A That's correct. Q Is Mr. Leach currently performing inspections for you at Leach's Automotive? A No, he isn't. Q Why is he not? A He got a DUI shortly after this. He's not inspecting cars right now. Q And when was the effective date of his DUI suspension? A I don't know. A couple months ago. Q You're not sure though? A I don't know off the top of my head. Q Well, isn't he required -- wouldn't it be important to know that since he has to conduct road tests on the vehicles? A He's not allowed to drive now. Q Yes, but do you know from when he was suspended? 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Do I know the date? Yes? No. I'd like you to confirm something. Even if he -- Mr. Leach -- Timothy Leach had not given you the required information, he did adequately complete the inspection record for inspection number 7? A That's right. Q Okay. What did you mean when you said that he went behind your back? A I mean that I didn't assign this job to him, to bring it in and do a State Inspection on this car. I didn't assign this to him. He took that upon himself. Q Okay. A Okay. So he didn't come to me and say, is it okay if I pull this car in and do a State Inspection. He just took it upon himself to do it. Q All right. Nonetheless though, he did it, and he did it according to the required inspection procedure, did he not, Mr. Leach? A Yes. And I'm not arguing. I mean we already pleaded guilty to everything that you're asking me. He did a bad inspection. He should get reprimanded. Q I'm not interested in that aspect of it, sir. Did he perform the inspection on the premises of your 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 station? A As far as I know he did. Q Okay. Do you have any idea what time of the day he performed the inspection? A Well, it would have been after I left. It would have been afternoon. Q Okay. Did he use the tools and equipment in your station to perform the faulty inspection question? A Since I didn't see him do it, I don't know. Q Okay. Do you have any knowledge that he took the car off the premises to do the inspection? A No. I don't have any knowledge of that, but I don't know that he didn't. Q In fact, you didn't even observe this vehicle being inspected in any regard; is that correct? A That's correct. MS. BLASS: Just a moment, Your Honor. BY MS. BLASS: Q Mr. Leach, did you attend an administrative hearing that the Department held in February of 2002? A Yes. MR. BROWN: Objection, Your Honor. This is again a de novo proceeding, and any prior proceeding on this matter's really not germane. THE COURT: Ms. Blass. 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BLASS: Your Honor, I believe this line of testimony is designed to show there was an admission made against interests. According to what was recorded at the administrative hearing, I think it's proper cross examination that I bring that statement to the -- THE COURT: You may ask him if he said something at the hearing that's inconsistent with what he's saying today. MR. BROWN: Your Honor, again, I would just like to note my objection for the record of cross examination of testimony at a hearing without the transcript of the testimony. THE COURT: Do you have any authority for that proposition? MR. BROWN: Not on hand in front of me, Your Honor, but to the extent that she's going to be asking if he made a specific quote, I have no objection to the witness being asked the question, so long as it's not represented that it's the actual quote that was made without the transcript. THE COURT: your question? BY MS. BLASS: Q at the hearing. Ail right. Ms. Blass, what's My question is, Mr. Leach, you were present Did you identify yourself as the Senior 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Partner of Leach's Automotive? A I don't know how I identified myself. Was it a year ago? I don't know. Q Is it your answer that you don't recall? A I don't recall. Q So you could have said to the hearing officer at the administrative hearing that you were the senior partner? A What would have been his question to me? Q To identify your title in the station? A Would they have been his exact words? Q He identified -- according to our records, you were indicated -- A If he would have asked me if I'm the owner, I would have said yes. I mean I don't know -- I can't remember exactly what he asked me. Q Okay. So you may have told the hearing officer you were the senior partner; is that correct? A It depends on how he asked me the question. Q If he asked you what your title was? A If he asked me what my title is, I would have said I'm the owner of Leach's Automotive Service. Q Did you hear Mr. Timothy Leach respond to a question in which he indicated he was the limited partner of Leach's Automotive? 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. A Not to my knowledge. I can't remember. Okay. So you just simply don't remember? I don't remember saying that -- him saying Q Do you recall the hearing officer asking you a series of questions at the administrative hearing? A Yes. Q Okay. I'm going to ask you a question that's recorded in the administrative hearing notes. According to the administrative hearing notes -- MR. BROWN: A point an inquiry, Your Honor. Are we talking about a transcript of the proceedings? MS. BLASS: This is not a transcript. These are administrative notes of hearing. THE COURT: I'm going to sustain the objection. You can ask him whether he said a certain thing, but you can't attribute a question to somebody else. BY MS. BLASS: Q Mr. Leach, did you -- in answer to a question at the administrative hearing, did you indicate that you are normally present at the time that inspections are being performed? A Yes, I am. No. Was that your answer, I'm saying? I can't recall. 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ago. Q Okay. I can't recall anything that happened a year Q You can't recall anything? Very little. Okay. So you wouldn't -- you don't know whether or not you told the hearing officer that you were not present, and that Tim Leach was in charge? So you don't know whether you said that or not to the hearing officer? A I don't know if I said that or not, but I wasn't present when he inspected that car. Q I'm asking you not whether you were present at the time of the inspection. I'm asking you whether or not you told the hearing officer at the administrative hearing that Tim Leach was in charge? A I wouldn't have told him that Tim was in charge. If he asked me is Tim in charge at the garage, I would have said no. Q So -- A Go ahead. Q So if the administrative hearing notes indicate that you said that Tim was in charge, then these notes are incorrect? A Those notes are incorrect if they say Tim 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said he was in charge. Q Did you say to the hearing officer -- respond to the hearing officer that you were not present because you are normally not present on Saturdays? A I'm there every Saturday assigning work and checking work that's done. That doesn't mean that I won't leave to go pick up a part or whatever, test drive a car, but I am there. Q But on this day in question you told Mr. Monko that you were in and out all day? That's possible. I may have been in and A out all day. Q A You may have been or you don't recall? I'm telling you it was a year ago. I am not a hundred percent sure exactly where I was every moment of the day, but I was at work, and I was in charge of issuing work. Q The regulations require that you're responsible for all inspections done on the premises; isn't that correct? A That's right, but it doesn't say that I have to baby-sit each mechanic. Q I'm not asking you that. The regulations also say that you're responsible for every sticker issued to a vehicle; isn't that correct? 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the question. MR. BROWN: Objection, Your Honor. THE COURT: There's been an objection to The objection is sustained. THE WITNESS: Would you mind reading that? THE COURT: We are obviously not going to finish, unfortunately, and this means we're going to go into April of 2003. order: You can step down. We'll enter this AND NOW, this 16th day of December, 2002, upon consideration of the appeal from the Pennsylvania Department of Transportation, Bureau of Motor Vehicles, Vehicle Inspection Division Final Order of Suspension of Official Inspection Station, and following a proceeding, which has not been completed, the record shall remain open. It is noted that at the time of adjournment on today's date the Appellee, the Department of Transportation, had completed presentation of its case in chief, and the Appellant, Leach's Automotive Service, had presented some testimony, but had not completed its presentation. It is further noted that at the time of adjournment on today's date Richard M. Leach, Jr., who had been called as a witness on behalf of the Appellant, was being subjected to cross examination by Appellee's counsel. It is further noted that at the time of 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adjournment on today's date Commonwealth's Exhibits 1, 2, 3, 4, 5, and 6 had been identified and admitted. No other exhibits had been identified or admitted. Counsel are requested to contact the Court's secretary to schedule an additional full day of hearing in this case. (End of order.) THE COURT: Thank you very much, and Court is adjourned. 1:05 p.m.) (Whereupon, the proceedings adjourned at 107 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. Michele A. Eline Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date nth Judicial District 108 LEACH'S AUTOMOTIVE SERVICE, PETITIONER COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, · BUREAU OF MOTOR VEHICLES, · RESPONDENT · · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02-1557 CIVIL TERM ORDER AND NOW this ~ day of May, 2003, it appearing that the Department of Transportation, Bureau of Motor Vehicles, and Petitioner Leach's Automotive Service have duly considered and entered into a Stipulated Agreement in the above-captioned case, the Court ORDERS, ADJUDGES, AND DECREES as follows: 1. By an official notice, dated and mailed March 5, 2002, the Department of Transportation, Bureau of Motor Vehicles (Bureau), notified Richard M. Leach, d/b/a Leach's Automotive Service (Leach's Automotive), O.I.S. #1608, that the Certificate of Appointment of Leach's Automotive as an official safety inspection station was suspended for a period of two months, as the result of a violation of faulty inspection· The suspension took effect on April 14, 2002. 2. The suspension was imposed pursuant to 75 Pa. C.S. §4724(a) and the Department's regulations at 67 Pa Code §175.51(a). 3. Leach's Automotive filed a timely appeal of this suspension on April 2, 2002 in the Court of Common Pleas of Cumberland County at Docket Number 02-1557. The Honorable J. Wesley Oler, Jr. entered an Order, dated April 9, 2002, granting Leach's Automotive's Application for Supersedeas to stay the above-noted order of suspension. By a separate Order, dated April 9, 2002, the Court scheduled a heating on June 27, 2002. 4. The heating was thereafter continued once at the request of the Bureau and once at the request of Leach's Automotive. By an Order, dated September 18, 2002, the heating was re-scheduled to December 16, 2002. 2002· A heating was held before this Honorable Court on December 16, 6. The heating in this matter was not completed on December 16, 2002. The Court adjourned the heating and by an Order, dated December 16, 2002, directed that the heating be re-scheduled to a future date. By an Order, dated December 17, 2002, the heating was re-scheduled to April 7, 2003. 7. The April 7, 2003 hearing has been cancelled at the request of the parties in light of the settlement of this matter. 8. In lieu of the two-month suspension for a first violation of faulty inspection imposed on Leach's Automotive by the Bureau's order dated March 5, 2002, the Bureau agrees to the following: (a) Leach's Automotive will be awarded a credit of one month toward serving the two month suspension, leaving a suspension of one month to serve. (b) Leach's Automotive will begin serving the remaining one month of suspension on Monday, August 4, 2003. (c) Leach's Automotive's authority to conduct official safety inspections will be restored on Tuesday, September 2, 2003. Leach's Automotive agrees to the following: (a) to accept the two month suspension for a first violation of faulty inspection with a one month credit toward the suspension for faulty inspection, as set forth in Paragraph 8(a). (b) to serve the remaining one-month suspension, as set forth in Paragraphs 8(b) and 8(c). (c) pursuant to 67 PA Code §175.51(g), the violations of faulty inspection will be recorded on Leach's Automotive's safety inspection record and will be considered a first violation for the purpose of a determining a subsequent violation in the same category within a three year period from the date of the violation. 10. Leach's Automotive waives any and all rights to appeal this matter. We have read and approved the above-noted terms and conditions of this Stipulated Agreement. Stipulated to by: M~haeJ ~Brown, Esquire J Attorney for Leach's Automotive DATE: Elaine N. Blass, Esquire Attorney for Department of Transportation, Bureau of Motor Vehicles By The Court: (esley Ol{~,~J~., J. '~ Cc: Michael V. Bro~, Esq., Elliott Rei~ Sie~zikows~ Eg~ & B~ab~, 27 No~ Front S~eet, P.O. Box 1284, H~sb~g, PA. 17108-1284. Elaine N. Blass, Esq., Dep~ent of Tr~spo~ation, Office of Chief Co~sel, Riv~ont Office Center, 1101 S. Front S~eet, H~sb~g, PA 17104-2516