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COMMONWEALTH PENNSYLVANIA v. PLACIDO SORTINO (07/19/83)

decided: July 19, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
PLACIDO SORTINO, APPELLANT



Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Commonwealth of Pennsylvania v. Placido Sortino, No. 1980-C-10640.

COUNSEL

Thomas J. Hines, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

John E. Gallagher, for appellee.

Judges Blatt, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 75 Pa. Commw. Page 542]

On May 1, 1980, at 10:00 A.M., a Pennsylvania State Trooper conducted an unannounced examination of the records of inspection maintained by Placido Sortino at his inspection station. The Trooper discovered that the records listed inspections of twenty-eight vehicles as having been performed on "5/ /80" without specification of the day of the month. Also, other required information was missing in the records for various of the twenty-eight vehicles. Sortino admitted that some of the inspections were performed during the last few days of April, 1980, before the May inspection campaign began, however, he stated that the stickers for all of the vehicles were affixed on May 1 and that the vehicles remained on his premises from the time they were inspected until the stickers were affixed.*fn1

[ 75 Pa. Commw. Page 543]

The Department of Transportation, Bureau of Traffic Safety (Bureau) suspended Sortino's inspection station privileges for 79 years and 6 months on the basis of 28 counts of "faulty inspection" and 28 counts of "fraudulent record keeping."*fn2 67 Pa. Code § 175.221(8)(ii) and (iv) (Code) (now § 175.51(a)). After a de novo hearing the Court of Common Pleas of Northampton County found the evidence insufficient to sustain either charge but did find that the evidence would support a charge of careless record keeping.*fn3 The trial court reduced the suspension to one year. The Bureau appeals.

In its appeal to this Court the Bureau contends that the trial court erred when it found that the evidence did not support a "faulty inspection" violation. The trial court concluded that the Bureau failed to establish that the inspections were faulty on the basis that no certified mechanic was present.*fn4 We agree that the Bureau has failed to show by implication or otherwise that Sortino, a certified mechanic, did not perform all of the inspections. Nor did the evidence

[ 75 Pa. Commw. Page 544]

    prove that Sortino was not present during the inspections.

In another effort to charge Sortino with faulty inspection the Bureau argues that Sortino committed fraudulent record keeping and thus that conduct can constitute a faulty inspection. The trial court reasoned that since faulty record keeping is itself a violation of the Vehicle Code, 75 Pa. C.S. § 4731,*fn5 the Bureau was precluded from taking action for violation of the more general offense of faulty inspection on the same evidence. At the time relevant to this appeal, Section 175.221(1) of the Code listed the violations which were considered sufficient cause for the suspension of all inspection station privileges. "Fraudulent record keeping" and "faulty inspection" were listed as two separate violations under Section 175.221(1).

The provisions of the Statutory Construction Act apply to regulations such as Section 175.221(1), and are thus applicable in construing the law in this case. Statutory ...


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