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COMMONWEALTH PENNSYLVANIA v. JOE L. MAY (07/22/87)

decided: July 22, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
JOE L. MAY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lebanon County, in case of Joe L. May v. Commonwealth of Pennsylvania, Department of Transportation, No. 85-01014.

COUNSEL

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellant.

Harry W. Reed, Jr., Davis, Katz, Buzgon, Davis, Reed & Charles, Ltd., for appellee.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 107 Pa. Commw. Page 585]

This is an appeal by the Department of Transportation (DOT) from an order of the Court of Common Pleas of Lebanon County that reversed the imposition by DOT of a two-year suspension of the certificate of appointment and privilege to inspect motor vehicles of official inspection station No. 3034, d/b/a Joe May's General Services. The suspension was imposed after DOT determined that Joe May (Appellee) had engaged in violations of DOT Regulation 175.51(a)(1)(ii), 67 Pa. Code § 175.51(a)(1)(ii), which provides for a mandatory one-year suspension for furnishing a sticker without conducting an inspection, and Regulation 175.51(a)(1)(iii), 67 Pa. Code § 175.51(a)(1)(iii), which provides for a one-year suspension for fraudulent record keeping.*fn1 On appeal the trial court did not find violations of either regulation and thus sustained Appellee's appeal. DOT appeals to this Court.

The trial court found that on February 11, 1985 certain individuals, involved in the sale of a 1978 Volkswagen, were desirous of effecting a title transfer of ownership of the automobile and drove the car to Appellee's garage and requested an inspection. Appellee refused to issue an inspection certificate because the vehicle did not have valid license plates. Section 4727(a) of the Vehicle Code, 75 Pa. C.S. § 4727(a), requires that the vehicle be duly registered in the Commonwealth prior to being inspected. Sometime between February

[ 107 Pa. Commw. Page 58611]

and February 14, however, Appellee actually physically inspected the vehicle. The vehicle's owner/seller then took possession of the vehicle to "clean it up for the sale." On April 9, the buyer, apparently after he completed his installment payments to the seller, took possession, a fact unknown to Appellee. On April 16, the buyer brought the car to Appellee again and requested that he issue the inspection certificate. Appellee again refused because the vehicle did not have the proper license tag or transfer slip indicating ownership of the vehicle. Later on April 16, the buyer once again brought the car back to Appellee's station. Appellee however, had gone home for the day and refused to return to make the inspection. The following morning the buyer once more brought the car to Appellee, this time with the proper license documentation. Appellee issued the inspection certificate on that date without reinspecting the car because he assumed it had not been driven subsequent to his original February inspection. The buyer then drove directly to the state police barracks and reported Appellee's conduct of issuing the inspection certificate without an inspection. The state police went to Appellee's station and examined the car. The examination disclosed defects in the car that were attributable to an accident that had occurred after Appellee had physically inspected the car in February.

The trial court also found that it was a common practice in that county to enter as the date on the Official Inspection Report (OIR) under the column "Date of Inspection" the date upon which the sticker was attached to the vehicle, rather than the date upon which the inspection was actually performed, and that this was what Appellee did here. Further, the trial court determined that in entering the April date on the OIR, Appellee did not have a fraudulent intent or an intent to deceive. The trial court then stated, "we do not equate the date

[ 107 Pa. Commw. Page 587]

    of issuance of an inspection sticker and entry on the Official Inspection Report as the date the physical inspection work was performed." It further added, "we are at a loss to understand why May was accused of fraudulently entering the date of April 17, 1985 on the Official Inspection Report. That was the date the inspection procedure mandated by the Department's regulations . . . were [sic] completed." Based upon this reasoning, the trial court sustained Appellee's appeal.

Our scope of review is limited to determining whether there has been an error of law and whether the findings of fact are supported by substantial evidence. Department of Transportation v. Sortino, 75 Pa. Commonwealth Ct. 541, 462 A.2d 925 (1983). Credibility matters are for the trial court. Id. On appeal here DOT contends that an inspection is not a continuing process and, hence, that certification should only be placed on the vehicle immediately after an inspection discloses that the vehicle meets relevant standards. It further argues that when Appellee after his February inspection refused to affix the inspection certificate to the vehicle in question due to the inadequate proof of registration, that refusal had the legal effect of a rejection of the vehicle under applicable inspection regulations. See 67 Pa. Code § 175.80(a)(1)(iii). We agree, and therefore we must conclude that a new inspection of the vehicle was required. Although Regulation 175.41(d)(1), 67 Pa. Code § 175.41(d)(1), which provides in pertinent part that a "certificate of inspection shall be affixed only after completion of the entire inspection, including the road test," might on its face appear to ...


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