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J.C. PENNEY CO. v. COMMONWEALTH PENNSYLVANIA (09/10/79)

decided: September 10, 1979.

J.C. PENNEY CO., INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lancaster County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. J.C. Penney Co., Inc., Trust Book No. 44, Page 29.

COUNSEL

W. Jeffrey Sidebottom, with him Barley, Snyder, Cooper & Barber, for appellant.

Gary Niarini, with him Bradley L. Mallory, Assistant Attorney General, Harold H. Cramer, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 45 Pa. Commw. Page 522]

J.C. Penney Co., Inc. (Appellant), has appealed to this Court from an order of the Lancaster County Court of Common Pleas sustaining the suspension of its certificate of appointment as an official inspection station for violating Section 834(e) of The Vehicle Code (Code), Act of April 29, 1959, P.L. 58, as amended, formerly 75 P.S. § 834(e).*fn1 Specifically, Appellant was charged with falsifying inspection records.

The pertinent facts are not in dispute. Nicholas Fulginiti admittedly falsified the inspection records kept by Appellant at its auto service center in Lancaster, Pennsylvania. As soon as Fulginiti's misdeed was discovered by his immediate supervisor, Gary Black, he was fired. There is nothing in the evidence to indicate that Black or anyone else in a supervisory capacity above Fulginiti had any actual knowledge whatsoever of the falsification before the discovery by Black.

Section 819(b) of the Code, formerly 75 P.S. § 819(b),*fn2 provides:

Provided, however, That if the servant or employee of any such inspection station shall without the authorization, knowledge or consent of his employer, violate any of the provisions of this act in reference to the inspection of vehicles, such violation or violations shall not be the cause of the suspension of the certificate of appointment, as herein provided, but such employee shall be subject to prosecution as hereinafter provided.

[ 45 Pa. Commw. Page 523]

Appellant's position is that at the time the records were falsified, Fulginiti was either a servant or employee*fn3 of Appellant and that his employment status was such that neither his act nor his knowledge of his act was imputable to Appellant. The burden of proving that Appellant comes within the statutory language of Section 819(b) is upon Appellant. Commonwealth v. W. J. Harris and Son, 403 Pa. 598, 170 A.2d 591 (1961).

After a de novo hearing, the trial court concluded:

However, Fulginiti was more than a mere 'employee.' He enjoyed almost absolute control over inspection records. If we were to pronounce Fulginiti an 'employee' the Court would have no logical basis with which to distinguish Mr. Black or any other administrative personnel up to and including the store manager. Either Fulginiti must be considered something other than an 'employee' or J. C. Penney must be deemed to have granted him such broad powers that ...


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