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COMMONWEALTH PENNSYLVANIA v. SLOANE TOYOTA (05/04/89)

decided: May 4, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
SLOANE TOYOTA, INC., APPELLEE



Appeals from the Order of the Court of Common Pleas of Montgomery County, in the case of Sloane Toyota, Inc. v. Department of Transportation of The Commonwealth of Pennsylvania, No. 86-10218 and 86-10217.

COUNSEL

Donald H. Poorman, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.

Edward Rendell, with him, Deborah L. Gold, for appellee.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge Doyle dissents.

Author: Mcginley

[ 125 Pa. Commw. Page 580]

These are consolidated appeals by the Department of Transportation, Bureau of Motor Vehicles (DOT) from an order of the Court of Common Pleas of Montgomery County (trial court) which reversed the actions of DOT suspending two certificates of appointment as an official emissions station issued to Sloane Toyota, Inc. (Sloane).*fn1 We reverse and impose a modified penalty.

The trial court found that in 1985 Sloane, which had operated out of 527 North Easton Road (527 site) for the prior five years, acquired an adjacent contiguous gas station and lot at 501 North Easton Road (501 site). This second lot was held under the same and common ownership as the 527 site. Because of the volume of its business and because of difficulty with its emissions inspection equipment at the 527 site, Sloane investigated the possibility of purchasing an emissions inspection machine for the 501 site. Since May 15, 1984, long before purchasing the 501 site, Sloane had been a duly certified official

[ 125 Pa. Commw. Page 581]

    emission inspection station at the 527 site and had conducted tests there.

Ultimately, Sloane had a machine installed at the 501 site. Before or at the time the machine was installed, a representative of the company which sold the machine informed Sloane that an additional certification from DOT was not required because the 501 site was an extension of the 527 site and under the same ownership. Consequently, Sloane never applied to DOT for a certificate for the 501 site. When the company representative installed the machine he utilized the certificate control number from the machine at the 527 site and told Sloane that it could use the emission inspection stickers for the 527 site for cars inspected at the 501 site. Sloane then began doing inspections at the 501 site and performed inspections. The trial court specifically found that the inspections were performed according to government standards. By happenstance, William T. Mohr (Mohr), a DOT field investigator, discovered the non-registered machine. Mohr then checked the machine and determined that it had been properly calibrated and balanced in accordance with federal and state standards and would have been properly certified by DOT had an application for a certificate been made. The trial court further determined that Sloane had, in fact, only issued stickers to vehicles which passed the emissions test.

Subsequent to Mohr's visit, Sloane was notified that it could not transfer stickers from the 527 site to the 501 site and it immediately discontinued this practice until it received approval for the 501 site from DOT on November 21, 1985. Thereafter, DOT notified Sloane that its certificate to inspect and its mechanics certificates were being revoked for the 527 site for the furnishing of certificates of inspection without performing an inspection and that the certificates were being revoked for the 501 site for receiving certificates of inspection without authority.

[ 125 Pa. Commw. Page 582]

DOT regulations provide that for furnishing or receiving a certificate of inspection without permission the penalty is one year's suspension for a first offense and a permanent suspension for the second offense. 67 Pa. Code ยง 177.61(a). DOT viewed each of the 155 inspections as a ...


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