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EDWARD R. FISHER AND EDWARD R. FISHER v. COMMONWEALTH PENNSYLVANIA (10/23/80)

decided: October 23, 1980.

EDWARD R. FISHER AND EDWARD R. FISHER, T/D/B/A FISHER'S GARAGE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Edward R. Fisher and Edward R. Fisher, t/d/b/a Fisher's Garage v. Bureau of Traffic Safety, Department of Transportation, Commonwealth of Pennsylvania, Nos. 3218 and 3220 S 1979.

COUNSEL

David A. Wion, Reynolds, Bihl and Schaffner, for appellants.

Harold H. Cramer, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, Transportation, and Harvey Bartle, III, Acting Attorney General, for appellee.

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

Author: Macphail

[ 54 Pa. Commw. Page 331]

As a result of incidents occurring on May 17, 18 and 20, 1979, the motor vehicle inspection license of Fisher's Garage was suspended by the Department of Transportation (Department) for six months for fraudulent record keeping and for three months for faulty inspection. The official inspection mechanic's license issued to Edward R. Fisher (Fisher) was suspended for the same periods and for the same reasons. An appeal from the Department's actions was taken

[ 54 Pa. Commw. Page 332]

    to the Dauphin County Court of Common Pleas where Judge Caldwell of that Court held the suspensions for fraudulent record keeping invalid but affirmed the suspensions for faulty inspection. Fisher has appealed the latter part of that order to this Court.

On May 17, 1979 a motor vehicle previously rejected for inspection by Fisher was returned to his garage for a reinspection. After that inspection was concluded and an official inspection certificate had been affixed to the vehicle, Fisher noticed an excessively loud noise emanating from the vehicle as it was being driven away. Suspecting an exhaust leak, Fisher made telephone contact with the operator of the vehicle and asked him to return it to the garage. Within two hours, the vehicle was returned and it was verified that indeed there was an exhaust leak.*fn1 Fisher told his customer that either he (Fisher) or the customer could fix the leak, but if the customer did the repairs, the inspection sticker would have to be removed. The customer elected to do the work himself and the inspection sticker was thereupon removed from the car. Three days later, the customer returned to Fisher's Garage with a garage supervisor from the Pennsylvania State Police. Noting three specific defects on the vehicle -- the exhaust leak, a cracked windshield and an insecure trailer hitch -- the trooper then charged Fisher with a faulty inspection. From the testimony before the trial court, it is clear that although Fisher did the paper work and actually signed the inspection certificate, in fact, his mechanic did most of the work and road-tested the vehicle. Department regulations provide that the inspection shall be performed by one certified inspection mechanic and that the vehicle shall be road-tested.

[ 54 Pa. Commw. Page 333]

Judge Caldwell found from the evidence that there was an exhaust defect which could have been detected by Fisher if he had road-tested the vehicle as he was required to do before passing it for inspection. Pointing to our decision in Department of Transportation, Bureau of Traffic Safety v. Snyder, 37 Pa. Commonwealth Ct. 359, 391 A.2d 3 (1978) which held that a mechanic's failure to fully comply with regulations of the Department results in a faulty inspection, the trial judge sustained the suspensions for faulty inspection.

Fisher's sole contention in his appeal to this Court is that the trial court erred when it relied upon an allegedly independent basis for finding a faulty inspection, to wit, the failure of Fisher to road-test the vehicle. Fisher argues that the Department is somehow "locked in" by the trooper's findings of the leaking exhaust, the cracked windshield and the insecure trailer hitch as the bases for the faulty inspection charge. The argument is tenuous at best.

First, the charge against Fisher was a faulty inspection. The trooper's observations of what was wrong with the vehicle, as contained in his written report, were supportive of that charge but did not constitute the charge. The trooper's report also mentioned that another mechanic performed parts of the inspection ...


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