Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania v. Donald J. Slipp and Donald Buick Pontiac, Inc., No. 86-11846.
Donald H. Poorman, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, and John L. Heaton, Chief Counsel, for appellant.
Gary Kleitman, Kleitman, Pincus & Haskins, for appellee.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.
[ 121 Pa. Commw. Page 231]
The Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT), appeals an order of the Court of Common Pleas of Montgomery County (trial court) which sustained the appeal of Donald J.
[ 121 Pa. Commw. Page 232]
Slipp and Donald Buick Pontiac, Inc. (Slipp) and set aside the three month suspension of Slipp's certificate of appointment as an official emission inspection station.
On March 18, 1986, Slipp was approved and licensed by DOT to perform emission inspections. As a result of a departmental hearing held on June 18, 1986, DOT notified Slipp on August 5, 1986, that Slipp's certificate of appointment was suspended for three months for improper record keeping pursuant to 67 Pa. Code § 177.38(a). Slipp appealed this action to the trial court and a hearing was held on January 5, 1987. At hearing, William T. Mohr (Mohr), a Field Investigator for DOT, testified that on April 7, 1986, he performed an audit of Slipp's inspection station and found that seventeen computer print-outs out of 525 print-outs documenting the results of emission testing were missing and one was improperly recorded. (It contained a handwritten entry on the print-out by Slipp's mechanic, Screnci.) (Notes of Testimony, January 5, 1987, (N.T.) at 14-15, 28.) Upon cross-examination, Mohr testified that the information on the print-outs is also stored on a computer cartridge and that every three months the cartridge is changed and kept by DOT as a record of the inspections performed. (N.T. at 22-23.)
The trial court concluded that DOT had not shown any requirement that Slipp keep the computer printouts on hand, particularly in light of the fact that DOT maintained the same information on computer cartridges. (Opinion of the Court of Common Pleas of Montgomery County, July 9, 1987, at 4-5.) The trial court also ruled that the suspension was improper because DOT had not specifically defined "improper record keeping" and did not prove that it had supplied Slipp with a copy of the official emission inspection station regulations.
[ 121 Pa. Commw. Page 233]
DOT argues that its regulations require that emission inspection stations keep print-outs of emission tests at the station for a period of two years; that the absence of seventeen computer print-outs constitutes "improper record keeping" under the regulations and case law; and that there is no requirement that DOT supply Slipp with a copy of its regulations and even if there was, it was never established that Slipp had failed to receive a copy.
Slipp argues that it is not required to keep printouts at the station; that this was not "improper record keeping" because the computer cartridge containing the information is retained by DOT and regulations do not define "improper record keeping;" and that DOT is required to supply every emission ...