The opinion of the court was delivered by: Judge Smith-ribner
Argued: February 25, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Maher S. Ahmed Mohamed (Petitioner) petitions for review of the action of the Department of Transportation (Department), Bureau of Motor Vehicles (Bureau) in suspending his certification as an Official Emissions Inspector (Inspector) for one year for allegedly furnishing inspection stickers for four vehicles without a proper inspection and for a consecutive one year for fraudulent recordkeeping. The statement of questions presented includes whether the Department was required to provide Petitioner with a formal hearing under the Administrative Agency Law, 2 Pa. C.S. §§501 - 508, 701 - 704, before suspending his certification; whether the Bureau's findings that he violated regulations by furnishing certificates to four vehicles without performing inspections and engaging in fraudulent recordkeeping are supported by substantial evidence; and whether the suspension order advised him of the conduct forming the basis for the action so that he could prepare an adequate defense.
Petitioner was certified by the Bureau as an Inspector, and he was employed by Keystone Auto Sales & Repairs, Inc. in Harrisburg. On May 2, 2007, Quality Assurance Officer Greg Stone conducted a routine records audit there and concluded that Petitioner performed faulty emission inspections on at least four vehicles. He did so by connecting the data link cable from the emission testing equipment to the onboard diagnostic computer of a vehicle other than the vehicle that was being tested in order to obtain a passing result. Stone reported two faulty inspections on March 24, 2007 and two on March 29, 2007. The record includes copies of notices advising Petitioner that a Departmental hearing was scheduled for November 14, 2007 in Harrisburg and stating that failure to appear would be considered a waiver of the right to a hearing and that a decision would be made in the Inspector's absence.
Petitioner did not appear at the scheduled hearing nor did anyone appear on his behalf. Stone read his May 2, 2007 report to the Hearing Examiner, although the proceedings were not recorded. On December 11, 2007, the Director of the Bureau sent Petitioner the order of his suspension pursuant to Section 4726 of the Vehicle Code, as amended, 75 Pa. C.S. §4726.*fn1 Petitioner filed his petition for review with this Court invoking its appellate jurisdiction pursuant to Section 702 of the Administrative Agency Law, 2 Pa. C.S. §702, and Section 763(a) of the Judicial Code, as amended, 42 Pa. C.S. §763(a). The Court granted supersedeas pending disposition of the petition for review.*fn2
Petitioner first argues that before the Bureau suspends an Inspector's certification the Bureau was required to provide a full due process hearing to the inspector that complied with the requirements of Subchapter A of Chapter 5 of the Administrative Agency Law, 2 Pa. C.S. §§501 - 508, relating to the practice and procedure of Commonwealth agencies. He asserts that when read together Section 501 of the Administrative Agency Law, as amended, 2 Pa. C.S. §501; Section 933 of the Judicial Code, as amended, 42 Pa. C.S. §933; and Section 4726(c) of the Vehicle Code, 75 Pa. C.S. §4726(c), lead to this conclusion.
Section 501 of the Administrative Agency Law provides in part:
(a) General Rule.-Except as provided in subsection (b), this subchapter shall apply to all Commonwealth agencies.
(b) Exception.-None of the provisions of this subchapter shall apply to:
(3) Proceedings before the Department of Transportation involving matters reviewable under 42 Pa.C.S. § 933 (relating to appeals from government agencies).
Section 933 of the Judicial Code provides in part:
(a) General rule.-[E]ach court of common pleas shall have jurisdiction of appeals from final orders of government agencies in the following cases:
(1) Appeals from Commonwealth agencies in the following cases:
(ii) Determinations of the Department of Transportation appealable under the following provisions of Title 75 (relating to vehicles):
Section 1377 (relating to judicial review). Section 1550 (relating to judicial review). Section 4724(b) (relating to judicial review). Section 7303(b) (relating to judicial review). Section 7503(b) (relating to judicial review).
Petitioner's suspension was pursuant to Section 4726 of the Vehicle Code, relating to certification of mechanics, which provides in subsection (c):
(c) Judicial review.-Any mechanic whose certificate has been denied or suspended under this chapter shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). The court shall set the matter for hearing upon 60 days' written notice to the department and take testimony and examine into the facts of the case and determine whether the petitioner is entitled to certification or is subject to suspension of the certification under the provisions of this chapter. (Emphasis added.)
In a footnote Petitioner quotes Section 4724(b) of the Vehicle Code, as amended, 75 Pa. C.S. §4724(b), which relates to judicial review of suspension of certificates of ...