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COMMONWEALTH PENNSYLVANIA v. CHARLES CATANESE (09/23/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 23, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
CHARLES CATANESE, T/D/B/A CATANESE BROTHERS, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Charles Catanese, t/d/b/a Catanese Brothers, No. SA 294 of 1983.

COUNSEL

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

John H. Bingler, Jr., with him, Michael R. Bucci, Jr., Thorp, Reed & Armstrong, for appellee.

President Judge Crumlish, Jr., and Judges Rogers and Barry, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 100 Pa. Commw. Page 601]

The Department of Transportation, Bureau of Traffic Safety (Bureau), appeals an Allegheny County Common Pleas Court order which sustained the appeal of Charles Catanese, t/d/b/a Catanese Brothers (Catanese Brothers) from a twenty-one month suspension of its Certificate of Appointment as an official inspection station. We reverse and reinstate the suspension.

An investigation revealed that Charles Catanese, a mechanic for Catanese Brothers, had performed 272 vehicle inspections after being notified that he was not a certified inspection mechanic. Catanese Brothers was charged with 272 counts of violating 67 Pa. Code ยง 175.28(a), which requires that inspections be performed by a certified inspection mechanic. The Bureau, pursuant to Section 4724(a) of the Vehicle Code,*fn1 suspended Catanese Brothers' Certificate of Appointment for consecutive periods of three months for the first count, six months for the second count, and twelve months for the third count. Also, a one-year suspension for the remaining 269 counts was imposed, to run concurrently with the suspensions imposed for the first three counts.

A de novo appeal was heard before the common pleas court, which found that both Charles and Steve Catanese*fn2 had taken and passed the required mechanic certification courses in 1972 and 1973 and were entitled to be issued mechanic certification cards. The common pleas court vacated the Bureau suspension of Catanese Brothers' Certification of Appointment.

[ 100 Pa. Commw. Page 602]

The Bureau contends that the common pleas court's finding that Charles Catanese was a certified inspection mechanic is unsupported by substantial evidence. We agree.

The only record evidence to support the common pleas court's finding was an unsworn statement by Catanese Brothers' counsel. This statement is hearsay and not sufficient, by itself, to support a factual finding. Moreover, because the statement was the sole evidence upon which the court based its finding, we cannot say that the admission of this statement was harmless. Therefore, we strike this finding. Bob Wark's Arco v. Department of Transportation, Bureau of Traffic Safety, 71 Pa. Commonwealth Ct. 644, 455 A.2d 770 (1983).

Our conclusion that the common pleas court's finding pertaining to Charles Catanese's certification is not supported by substantial evidence does not, by itself, entitle the Bureau to a reversal of that court's order and a reinstatement of its suspension order. The Commonwealth has the burden of proving that the certificate holder committed the violations charged. Department of Transportation, Bureau of Traffic Safety v. Kobaly, 24 Pa. Commonwealth Ct. 140, 354 A.2d 272 (1976), rev'd on other grounds, 477 Pa. 525, 384 A.2d 1213 (1978). However, our review of the record satisfies us that the Bureau met its burden of proving that Catanese Brothers permitted an uncertified mechanic to perform numerous inspections.*fn3

[ 100 Pa. Commw. Page 603]

The common pleas court order sustaining the appeal of Catanese Brothers from the Bureau's suspension order is reversed and the Bureau's order is reinstated.

Order

The Allegheny County Common Pleas Court order, No. SA 294 of 1983 dated December 30, 1983, is reversed. The order of the Department of Transportation, dated May 23, 1983, which suspended the Certificate of Appointment as an official inspection station issued to Charles Catanese, t/d/b/a Catanese Brothers, for a period of one year and nine months, is reinstated.

Disposition

Reversed.


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