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HomeMy WebLinkAbout2007-2278 Civil STANELY M. DEIMLER, JR. : IN THE COURT OF COMMON PLEAS d/b/a/ LEMOYNE AUTO SERVICE : OF CUMBERLAND COUNTY, PENNSYLVANIA d/b/a/ DEIMLER’S AUTOMOTIVE : Petitioner : : V. : OFFICIAL EMISSION INSPECTION STATION : SUSPENSION APPEAL COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION : Respondent : NO. 07-2277 CIVIL TERM STANLEY M. DEIMLER, JR. : IN THE COURT OF COMMON PLEAS d/b/a/ LEMOYNE AUTO SERVICE : OF CUMBERLAND COUNTY, PENNSYLVANIA d/b/a/ DEIMLER’S AUTOMOTIVE : Petitioner : : V. : OFFICIAL EMISSION INSPECTION STATION : SUSPENSION APPEAL COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION : Respondent : NO. 07-2278 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., February 26, 2008 – The Appellant has filed an appeal to the Commonwealth Court of this Court’s order affirming the Pennsylvania Department of Transportation’s (hereinafter PennDOT) suspension of the Appellant’s personal certification as an Official Emissions Inspector and Deimler Automotive d/b/a Lemoyne Auto Service’s Certificate of Appointment as an Official Emissions Inspection station. The Court heard the Appellant’s appeal de novo on November 19, 2007. Deimler now appeals from the Order of Court affirming the suspensions. 1 Appellant filed a “Concise Statement of Matters Complained” on January 30, 2008. Specifically, the appellant alleges the following: 1.The Court erred in allowing the Commonwealth to enter into evidence allegations of past convictions. This appears to have had a significant impact on the Court’s decision. 2.The Court erred in allowing the Commonwealth to present (hearsay) testimony, which draws upon inferences and conclusions against the petitioner as taken from out of court statements purportedly made by the same person “Andrew”; who is alleged to have done the inspection, despite “Andrew” having provided an affidavit to the contrary, which was not allowed in support of Petitioner. 3.Petitioner clearly and unequivocally testified he performed the inspection, which remains undisputed. The Court however erred by arbitrarily deciding against Petitioner and/or by giving prejudicial weight to improper evidence as introduced by the Commonwealth, despite Petitioner’s impeachment thereof. Whereas, Petitioner’s statement to the contrary is uncontroverted. 4.Petitioner’s testimony casts doubt upon the Commonwealth’s assertions as to what the Commonwealth could or should have been able to clearly see from their vantage point, and therefore Petitioner can find no proper or just reason the Court rejected Petitioner’s testimony. 5.The Court erred in accepting the Commonwealth’s allegation that “Andrew” signed the inspection sticker, despite Petitioner’s rebuttal, and void of any independent opinion to confirm either. 6.The Court erred, knowing that Petitioner is/was a pro se 1 Defendant, by not properly framing the issues. This opinion in support of the judgment of sentence is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 1 Petitioner’s Concise Statement of Matter’s Complained. 2 STATEMENT OF FACTS On September 6, 2006, Joyce Park, employee of Parsons Commercial Technology Group, Pennsylvania Emissions Team, an engineering firm that is contracted by PennDOT to perform covert audits of Emission Inspection Stations, conducted an undercover audit of the test 23 procedures at Appellant’s shop. Park’s 1995 Mercury Tracer was set to pass the test. Park did not have an appointment and upon arriving at the shop was informed by several people that were 4 seated in the waiting area and several employees that Appellant Deimler was not there. 5 A young man, later identified as Andrew Smith, offered to do the test for her. Andrew 6 asked Park to drive her car into the bay for him because he did not have a driver’s license. She 7 did so and then continually observed Smith’s activity from the office and bay area of the garage. In order to perform an emission test on a 1995 vehicle, the mechanic would have to check 8 underneath the hood and underneath the vehicle to see the catalytic converter. Andrew never 9 opened the hood of the vehicle, never placed the car on a lift, and never looked under the car. Park testified that there was a lot of horse play at the shop, the phone kept ringing and Andrew 10 told her that the calls were for Stanley. During this horse play, Andrew scraped off Park’s old emissions sticker from her windshield, put on a new emissions sticker, and put the old one on another boy’s back. Andrew then printed a VIR (Visual Emissions Inspection Report), and signed something on it. Park then paid for her emissions test and pulled her vehicle out of the 2 N.T. 6. 3 N.T. 8. 4 N.T. 9-10. 5 N.T. 9-10, 12. 6 N.T. 10. 7 N.T. 10. 8 N.T. 10. 9 N.T. 11, 13. 10 N.T. 11. 3 shop. Park never saw the Appellant during the test and did not meet Appellant until the day of the de novo court hearing. Park testified that in order to issue a new emissions sticker, Smith would have to type into the computer what he was doing and then the computer would prompt him to check each 11 part that needs to be checked and type in a response. In order to issue a new sticker, each of 12 the computer prompted questions would have to be answered in the affirmative. However, some of the items may not apply to a vehicle and an answer of “NA” would have to be entered. In Park’s car there was no air injection system, so Andrew should have entered “NA” for that 13 question, instead he entered “PASS.” Park watched as Andrew signed the form under the name of “Stanley Deimler, Jr.” as the person who performed the inspection on the emissions inspection 14 report. Once Park left the shop, she checked if Andrew Smith was a listed inspector and the 15 only authorized inspector listed for the shop was “Stanley Deimler, Jr.” The Court then heard testimony from Kristin Defrehn, a quality assurance officer with the 16 Parsons Pennsylvania Emissions Team. As a quality assurance officer, Defrehn is responsible for auditing garages through their books and stickers; she also follows up on customer 17 complaints, covert reports and makes sure that everything is in compliance. Defrehn met 18 Petitioner when she did a change of location and change of trade name for him. Defrehn 19 received the report from Park on Petitioner’s shop and began to investigate it. Defrehn checked 11 N.T. 14. 12 N.T. 16. 13 N.T. 20. 14 N.T. 15. 15 N.T. 17. 16 N.T.21. 17 N.T. 22. 18 N.T. 22. 19 N.T. 23. 4 20 the records, and spoke with and obtained a signed written statement from Andrew Smith. In his statements, he told Defrehn that Appellant logged the information into the computer and that 21 he, Andrew Smith, looked at all the components as prompted by the computer. He also stated that Appellant signed the VIR report and that Appellant had been training Smith how to perform 22 emissions testing. Defrehn testified that a person cannot be trained on the job to become a certified emissions inspector but actually has to go to school and take a sixteen (16) hour course after 23 which the candidate would have to pass a test. After Defrehn submitted her report, an informal hearing was held at the Pennsylvania Emissions Team in Harrisburg, which Appellant and Smith 24 both attended. The purpose of the hearing was to allow Appellant to present his side of the 25 story. Smith and Appellant were sequestered. Andrew Smith testified that Appellant signed the sticker and the VIR report. Smith stated he did open the hood and did check under the car. Unlike his previous statement to Defrehn, at the informal hearing Smith said he entered the 26 information into the computer not Appellant. Appellant’s testimony at this informal hearing consisted of stating “no comment” or “I agree with what he [Smith] says” to every question 27 posed. After the hearing, the hearing examiner wrote up a report, but the final decision 28 regarding the suspensions of the certificates was made by PennDOT. On March 26, 2007, PennDOT suspended Appellant’s station privileges pursuant to §4724 of the Vehicle Code, 75 Pa.C.S.A. §4724 and PennDOT Regulations, §177.602(a)(iii). 20 N.T. 24. 21 N.T. 24. 22 N.T. 24. 23 N.T. 25. 24 N.T. 26. 25 N.T. 27. 26 N.T. 27. 27 N.T. 27. 28 N.T. 28. 5 The Appellant was suspended for both fraudulent record keeping and inspection by an uncertified inspector. As a result, PennDOT imposed the following penalties: Violation (Regulation Section) Term of Susp. Fine nd Fraudulent recordkeeping (2 offense) Permanent $5,000.00 (67 Pa.Code § 177.602(a)(iii)) nd Inspection by uncert. inspector (2 offense) 6 months $1,000.00 (67 Pa.Code § 77.602(a)(vii)) Total (served consecutively) Permanent $7,500.00 By separate order on the same date, Appellant’s personal certified official inspection mechanic privileges were suspended for 1 year pursuant to 75 Pa.C.S.A. §4726 (relating to certification of mechanics) and 67 Pa.Code §177.603(iii) (relating to fraudulent recordkeeping). Appellant appealed these suspensions to this Court and the case was heard de novo on November 19, 2007. Appellant took the stand and testified that he was at the shop on 29 September 6, 2006, when the covert operation took place. He stated that Park must not have seen him come in and look under her hood because “it don’t take very long to actually do a 3031 check…” Appellant testified that “I was there. I did sign it.” Appellant maintained that Park must not have been watching when he came through a side door and did the inspection while 32 teaching Andrew Smith how to perform an emissions inspection. After the hearing, this Court found by a preponderance of the evidence that the Department of Transportation had sustained its burden of proof and the Appellant’s appeals were dismissed. DISCUSSION The scope of review in vehicle inspection certificate suspension cases is limited to determining whether the trial court committed an error of law or whether the trial court’s 29 N.T.32. 30 N.T. 32. 31 N.T. 32. 32 N.T. 32-34. 6 findings are supported by substantial evidence. Firestone Tire and Service Center v. Com., 871 A.2d 863 (Pa. Cmwlth. 2005). In cases involving alleged violations of the Vehicle Code and the regulations interpreting the same, PennDOT has the burden of proving such violations by a preponderance of the evidence. Id. A. Evidence of Past “Convictions.” PennDOT’s Exhibit No. 1 was admitted to the record and established that the Appellant’s station had previously been suspended for fraudulent recordkeeping and inspection by uncertified inspector in violation of 67 Pa.Code §177.602(a)(iii)(vii). As stated by the Counsel for PennDOT, these records were admitted for the sole purpose of establishing the predicate for the enhanced penalties the Appellant received as a result of his new violations. Appellant Deimler was specifically asked if he had any objection to the admittance of these exhibits and his 33 answer was “no.” As has often been stated, a pro se litigant is granted the same rights, privileges, and considerations as those accorded a party represented by counsel; however, a pro se status does not entitle a party to any particular advantage because of his or her lack of legal training. First Union Mortgage Corp. v. Frempong, 744 A.2d 327 (Pa. Super. 1999). In this case, short of the Appellant stipulating to his prior penalties, it was necessary for the Commonwealth to establish the prior suspensions in order to prove that Appellant’s current suspensions were second offenses, allowing for enhanced penalties. B.Hearsay Testimony . At no time during the de novo hearing did the Appellant object to any hearsay testimony. The only substantial hearsay testimony heard by the Court was the testimony of Kristin Defrehn who testified about the information she received from Andrew Smith and the testimony given at the informal hearing by Andrew Smith and the Appellant. The testimony given by Andrew 33 N.T. 5-6. 7 Smith at the informal hearing before the Pennsylvania Emissions Team totally supported the Appellant’s position at the de novo Court hearing. Basically, Ms. Defrehn said that Andrew Smith stated that (1) Stan Deimler signed the sticker and the VIR, (2) the hood of Park’s car was opened, (3) he did check under the car, (4) Appellant Deimler had entered the inspection information into the computer, and (5) he was being trained by Deimler to do emissions testing. Interestingly, Appellant did not produce Smith at trial and wanted to introduce “a notarized copy” of Andrew Smith’s statement into the record. PennDOT’s counsel properly objected and admission of the notarized statement of Andrew Smith was not admitted to the record. In any regard, the testimony given by Defrehn regarding Andrew Smith’s testimony at the informal hearing in no way harmed the Appellant. Frankly, the Court viewed the testimony as unreliable, given the clear and detailed testimony of the undercover auditor, Joyce Park and the obvious relationship Andrew Smith would have had with the Appellant. On this record, this hearsay testimony, un-objected to by the Appellant, does not constitute error. C. Sufficiency of the Evidence. Appellant’s points 3, 4 and 5 in his “Concise Statement of Matters Complained” essentially challenge the sufficiency of the evidence presented by PennDOT. Again, PennDOT had the burden of proving the Appellant’s violations by a preponderance of the evidence. Firestone Tire and Service Center v. Com., 871 A.2d 863 (Pa. Cmwlth. 2005). However, questions of witness credibility are solely within the province of the trial court. Tropeck v. Com., Dept. of Transp. 847 A.2d 208 (Pa. Cmwlth. 2004). As is always the case in both civil and criminal proceedings, the finder of fact is allowed to assess a witness such, as the Appellant, to determine if he has a significant interest in the outcome of the case or a motive that might affect the credibility of his testimony. Pa. SSJI (Civ) 1.44e. Clearly, no one who testified at this 8 hearing had a greater interest and motivation to color his testimony than the Appellant. As is always the case, the trier of fact is free to believe all, part, or none of the evidence and must decide the credibility of the witnesses and reconcile conflicts in the evidence. Campbell v. Com., Dept. of Transp., 329 A.2d 867 (Pa. Cmwlth. 1974); Shaw v. Com., Dept. of Transp., 553 A.2d 108 (Pa. Cmwlth. 1989) This Court was persuaded by the detail provided by Joyce Park in relating the particulars of her emissions inspection: Things like remembering the phone ringing continuously, the horse play between Andrew Smith and the other boy in the garage, to the point of noting that her old inspection sticker was placed on the back of the other boy. In short, this Court finds as a matter of fact that Stanley Deimler was not present for this inspection, that Andrew Smith was not a certified emissions inspection mechanic, that Andrew Smith did not look under the hood or under the car, and that he placed the inspection information in the computer and signed the VIR under Stanley Deimler’s name. The Appellant’s lack of credibility can be established by the fact that at the unofficial hearing he chose to answer questions put to him by stating “no comment” and “I agree with what he [Smith] says.” There is absolutely no reason in the world to testify in this fashion if what you are trying to explain is that you personally did the inspection in the proper fashion, signed the form and personally entered the inspection information into the computer. Equally compelling is the fact that Appellant maintains that he was “training” Smith to become an emissions inspector. As testified to by Defrehn, one cannot get on the job training to be an emissions inspector. A person must attend an approved training course and pass a test. 67 Pa.Code § 177.408 (c). Moreover, the fact that Smith did not possess a valid Pennsylvania driver’s license specifically 9 excludes him from ever becoming a certified emissions inspector under 67 Pa.Code §177.408 (c)(2). The Commonwealth clearly sustained its burden with substantial evidence. The Court finds that the Appellant’s testimony was simply not credible especially in light of the financial interest he has in this case. D. Appellant’s Pro Se Status. In paragraph 6 of his “Concise Statement of Matters Complained,” the Appellant states, “the Court erred, knowing the Petitioner is/was a Pro Se Defendant, by not properly framing the issues.” An examination of this record shows that the Court did not frame any issues, but simply listened to the testimony. The Court was cordial with the Appellant, at various times asked if he objected to evidence introduced by PennDOT, and allowed him to fully testify regarding his position and make a closing argument. Again, the law in this area is very simple. A pro se litigant is entitled to the same rights, privileges and considerations as those accorded a party represented by counsel. First Union Mortgage Corp. v. Frempong, 744 A.2d 327 (Pa. Super. 1999). This pro se litigant was afforded those rights, privileges and considerations by this Court. Unfortunately for the Appellant, his pro se status does not entitle him to any particular advantage because of his lack of legal training. In short, there was no error committed by the Court based on the Appellant’s pro se status. By the Court, _____________________________ M. L. Ebert, Jr., J. 10 Christopher J. Johnson, Esquire Attorney for PennDOT Stanley M. Deimler, Jr. Appellant/Petitioner 11