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COMMONWEALTH PENNSYLVANIA v. JEFFREY A. COX (06/14/84)

decided: June 14, 1984.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
JEFFREY A. COX, APPELLEE



Appeal from the Order of the Court of Common Pleas of Crawford County in the case of Jeffrey A. Cox v. Commonwealth of Pennsylvania, No. 823-1982.

COUNSEL

Nancy J. Norkus, Assistant Counsel, with her, Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Clifford J. Kirvan, for appellee.

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

Author: Macphail

[ 83 Pa. Commw. Page 261]

This is an appeal by the Department of Transportation (DOT) from an order of the Court of Common Pleas of Crawford County sustaining an appeal from a decision of the Bureau of Traffic Safety (Bureau) suspending the certificate of appointment of Mr. Cox's service station as an official inspection station.

From a stipulation of facts which constituted the evidentiary record before the court of common pleas, we learn that one Dan Covell occasionally contracted to do body work in Cox's service station in return for which the two of them would split the profits on Covell's work. As part of this business association, Covell was permitted by Cox to fill in Cox's official inspection report sheets even though he, Covell, was not authorized to perform inspections.

Sometime in the month of January, 1982, Covell stole an inspection sticker from Cox's files, placed it on his own automobile and then wrote the name of one of Covell's former customers in the official inspection

[ 83 Pa. Commw. Page 262]

    report sheet which would indicate that that person had been issued the stolen inspection sticker. The fraud was discovered and Cox was notified that his certificate had been suspended for 1 year for fraudulent record keeping.

The learned trial judge, after reviewing the relevant statutory law and the regulations adopted by DOT concluded that the Bureau's suspension order was incorrect because 1) Covell was not an employee of Cox and 2) even if he was an employee, Covell's actions were not within the scope of his employment.

Since there is no dispute as to the underlying facts of the case, our appellate review is limited to a determination of whether the court of common pleas erred as a matter of law. J.C. Penney, Co. v. Department of Transportation, Bureau of Traffic Safety, 45 Pa. Commonwealth Ct. 520, 405 A.2d 1041 (1979).

DOT is authorized by Section 4724(a) of the Vehicle Code (Code), 75 Pa. C.S. § 4724(a), to suspend a certificate of appointment issued to a station which violates or fails to comply with the Code or regulations adopted by DOT. 67 Pa. Code § 175.42(a) provides that fraudulent recording of an inspection sheet will be considered cause for the suspension of inspection privileges. 67 Pa. Code § 175.221(1), at the time of the DOT's suspension order, authorized a 1 year suspension for fraudulent record ...


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