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COMMONWEALTH PENNSYLVANIA v. EUGENE KARZENOSKI (04/28/86)

decided: April 28, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
EUGENE KARZENOSKI, T/A GENE'S SERVICE CENTER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of Eugene Karzenoski t/a Gene's Service Center v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, No. 83 Civil 3442.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Edward M. Murphy, for appellee.

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

Author: Blatt

[ 96 Pa. Commw. Page 609]

The Department of Transportation, Bureau of Traffic Safety (Department) appeals*fn1 the order of the Court of Common Pleas of Lackawanna County (trial court) setting aside the suspensions of the inspection privileges of Eugene Karzenoski, trading as Gene's Service Center*fn2 (appellee).

In the course of investigating a motor vehicle accident within the Borough of Dickson City on March 6, 1983, a Borough policeman observed that one of the vehicles, a 1974 Ford Maverick, had an inspection sticker affixed to its windshield by scotch tape. It further appeared that the sticker, which still retained its protective "onionskin" backing, had not been issued for the Maverick concerned, but for some other vehicle. The State Police were notified of the apparent discrepancy, and an investigation revealed that the sticker had

[ 96 Pa. Commw. Page 610]

    been issued by the appellee's service station in January 1983 for a 1970 Dodge truck apparently owned by a relative of the Maverick's owner.*fn3 As a result of the foregoing, the Department imposed a one year suspension upon the appellee for allegedly furnishing a sticker without an inspection to run concurrently with a six month suspension for alleged improper record keeping. 67 Pa. Code § 175.51(a)(1) (ii) and (iii).

In a de novo appeal to the common pleas court, the appellee testified that he had properly performed and recorded an inspection on the Dodge truck. On cross-examination, he testified that, as he was preparing to affix the sticker in the truck owner's presence, he was interrupted by loud knocking on his garage door and that, because his hands were greasy he feared that, in answering the door he would smear the sticker or drop it.*fn4 He testified further that he laid the sticker and the tool used to affix it on a vehicle near the truck as he went to answer the door, and that upon his return he observed the sticker affixed to the truck's windshield, presumably by the owner. He claimed not to have noticed that the sticker was affixed in any way but the proper manner as set forth in the applicable regulations. 67 Pa. Code § 175.41(d)(2). He admitted, however, that he did not personally affix the sticker as required, but said that he felt powerless to remedy the situation.

The trial court sustained the appeal, setting aside the suspensions and observing that the evidence failed to support the charges of furnishing a sticker without an

[ 96 Pa. Commw. Page 611]

    inspection and improper record keeping for recording the sticker as being issued for the truck. Also, the trial court ordered the Department to ...


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