The opinion of the court was delivered by: Judge Pellegrini
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
In these consolidated appeals dealing with safety inspections, the Department of Transportation, Bureau of Motor Vehicles (Department) seeks review of two orders of the Court of Common Pleas of Allegheny County (trial court) sustaining statutory appeals by an official safety inspection station, Snyder Brothers Auto Works, OIS #4556 (the Station), and one of its mechanics, Joseph W. Wolski (Mechanic),*fn1 from, respectively, a 26-month suspension of the Station's certificate of appointment as an official safety inspection station and a one-year suspension of Mechanic's certification as an official safety inspector.*fn2
The Department suspended for 26 months the Station's appointment and for one year the Mechanic's certification to carry out official safety inspections. It did so because an inspection sticker had been placed on a vehicle without carrying out the inspection in violation of 67 Pa. Code §175.51(a)(1)(ii).*fn3 The charge was based on an "inference that the department drew, that no inspection had been done...." (Reproduced Record 49a.) Both the Station and the Mechanic appealed to the trial court.
Before the trial court, the Mechanic testified that he had performed the inspection on the vehicle but had missed that a coil spring had separated from the frame of the vehicle. Recognizing that it had not proven that the Mechanic had not performed an inspection, only that the Mechanic had missed a vehicle defect, the Department's counsel argued that "the case laws says that because faulty inspection is a lesser included offense, the [trial] court can, if it finds that a faulty inspection occurred. order the Department to impose an appropriate suspension for a faulty inspection."*fn4 (R.R. 49a.) Declining the Department's invitation, the trial court sustained the appeals.
On appeal, the Department is not challenging the trial court's primary determination that the Station and the Mechanic did not furnish a safety inspection sticker without an inspection. Also unchallenged are the trial court's determinations that the Department failed to prove that most of the alleged defects were present at the time of the inspection and failed to prove intentional conduct by any defendant. Moreover, the Department does not contend that the Mechanic failed to claim prejudice when it raised the issue of whether a faulty inspection is a lesser included offense.
The only issue the Department raises is that because the Mechanic admitted that he conducted a faulty inspection, the trial court erred in failing to direct the imposition of a two-month suspension for conducting a faulty safety inspection, though not charged because it was a lesser-included offense. In making that argument, the Department properly relies on our decision in Dept. of Transp., Bureau of Traffic Safety v. Karzenoski, 508 A.2d 618 (Pa. Cmwlth. 1986) (and its progeny), where we held that a mechanic's due process right to adequate notice was not violated when found guilty of a faulty inspection when only charged with placing an inspection sticker on a vehicle without conducting an inspection because it is a lesser-included offense. The central issue in this appeal then is whether Karzenoski should be overruled because a faulty inspection is not a lesser-included offense of not conducting an inspection at all.
In addition to an opportunity to be heard and a chance to defend oneself before a fair and impartial tribunal, procedural due process*fn5 demands that a person receive adequate notice of the charges with which the accused is required to defend. Soja v. Pennsylvania State Police, 500 Pa. 188, 455 A.2d 613 (1982); Lawson v. Dept. of Public Welfare, 744 A.2d 804 (Pa. Cmwlth. 2000). Generally, "adequate notice for procedural due process purposes requires at a minimum that the notice contain a sufficient listing and explanation of the charges against an individual." Dunn v. Dept. of Transp., Bureau of Driver Licensing, 819 A.2d 189, 193 (Pa. Cmwlth. 2003). Due process also requires that notice of what is being charged be made against the accused and be given in sufficient time to prepare a defense as to all issues raised by the state. Id; Fiore v. Bd. of Finance and Revenue, 534 Pa. 511, 633 A.2d 1111 (1993).*fn6
In the context of inspection cases, we have borrowed from criminal law the concept of a lesser-included offense. That standard addresses whether the due process requirement of adequate notice has been met when one offense was not specifically charged. Recently, our Supreme Court in Commonwealth v. Sims, 591 Pa. 506, 919 A.2d 931 (2007), conducted a through review of the law of a lesser-included offense, albeit in the criminal context. It adopted the "statutory-elements approach" which it explained requires an identification of the elements of both the greater charge and the lesser charge and determines whether it is possible to commit the greater offense without committing the lesser offense. If it is not possible, then the lesser offense is considered a lesser-included offense of the greater crime. Id. at 576-79.
It then articulated under the statutory elements approach a determination not only to the statutory elements of the crime but also "with an eye to the specific allegations levied in the case" which it explained that the charging documents had to put the defendant on notice that the offense would be an issue at trial stating:
Just as it requires a criminal statute to give fair warning of the conduct proscribed, see, e.g., Commonwealth v. Magliocco, 584 Pa. 244, 883 A.2d 479, 487 (2005), due process requires that the criminal information provide fair notice of every crime of which a criminal defendant is accused, see Commonwealth v. Khorey, 521 Pa. 1, 555 A.2d 100, 108 (1989); Pa.R.Crim.P. 560(C) (providing that "[t]he information shall contain the... citation of the statute... or other provision of law that the defendant is alleged therein to have violated"). To comport with due process, the notice provided must be sufficiently specific so as to allow the defendant to prepare any available defenses should he exercise his right to a trial. Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270, 273 (1974). Such notice ensures that, if the Commonwealth prevails at trial, the defendant's conviction is not arbitrary or oppressive. See Commonwealth v. Kratsas, 564 Pa. 36, 764 A.2d 20, 27 (2001) (noting that the fundamental fairness embodied in the Due Process Clauses of the United States and Pennsylvania Constitutions entitles "every individual to be free from arbitrary or oppressive government conduct"). It is these due process concerns that the proper definition of lesser-included offenses must take into account.
Due process, under the lesser-included offense standard, is satisfied then if (1) if it is not possible to commit the greater offense without committing the lesser offense or (2) just as for unrelated offenses, the notice of charges is sufficiently specific to allow the defendant to know that he or she has prepared for trial on the lesser-included offense.
Applying that articulation of the standard to this case, the greater offense -- not conducting an inspection -- can only be made out if no inspection had been conducted, making it impossible for a faulty inspection to be a lesser-included offense of failing to inspect the vehicle at all. Because it was not a lesser-included offense, the Department's charging document -- notification of suspension -- did not notify the Station or the Mechanic that a "faulty ...