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McCarthy v. Commonwealth of Pennsylvania Dep't of Transportation

November 5, 2010

JOHN MCCARTHY T/D/B/A MCCARTHY TIRE SERVICE CO., INC. (O.I.S. B238)
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, APPELLANT



The opinion of the court was delivered by: Judge Leavitt

Submitted: June 11, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

The Department of Transportation (Department), Bureau of Motor Vehicles (Bureau) appeals an order of the Court of Common Pleas of Luzerne County (trial court) dismissing the Department's suspension of John McCarthy's inspection station certification. In lieu of a one year suspension, the trial court ordered points be assigned against McCarthy. Concluding that the trial court did not err, we affirm.

The facts in this case are as follows. McCarthy Tire Service Co., Inc., which is owned by McCarthy, conducts vehicle emission inspections. On December 4, 2008, the Bureau's Quality Assurance Officer,*fn1 James Lachette, conducted a covert investigation of McCarthy Tire Service by presenting it with a vehicle with a faulty emissions system. Lachette watched as the mechanic, Walter Krolikowski, inspected the vehicle and hooked it up to an analyzer computer and printed out a report of the computer's readings. Krolikowski then informed Lachette that the vehicle had failed the inspection and gave Lachette a copy of the report showing "William J. Rollman" to be the person that had conducted the inspection. In the course of their conversation, Lachette realized that Krolikowski, in fact, was not "William J. Rollman." Lachette later researched Krolikowski and learned that his inspection certification had expired some time before he did the December 4, 2008, inspection.

On February 4, 2009, the Bureau sent McCarthy, Krolikowski, and the real William Rollman separate violation notices. McCarthy's notice identified the following violations:

Inspection by emission inspector with expired inspector certification (on a 1998 Toyota, VIN-JT3HP10VOW01793494) by Walter Krolikowski, Oper 11-924-757 and fraudulent record keeping by William J. Rollman, Oper 19-647-568.

R.R. 7a (emphasis added). A hearing was held by the Department on February 19, 2009. The hearing did not result in any sanctions on Rollman. However, sanctions were imposed upon Krolikowski and McCarthy.

On May 5, 2009, the Department informed McCarthy that because of Krolikowski's fraudulent recordkeeping, McCarthy's Certificate of Appointment as an Official Emission Inspection Station (inspection certificate) would be suspended for one year and McCarthy would have to pay a $2,500 fine. This penalty was authorized under 67 Pa. Code § 177.602(a)(iii).*fn2 The Department went on to explain that it had imposed a suspension, instead of points, because McCarthy "had knowledge" of Krolikowski's misconduct and because McCarthy was "responsible for ensuring that all personnel are properly certified to perform inspections." R.R. 53a.

McCarthy appealed the Department's ruling, and a de novo hearing was held before the trial court. McCarthy called no witnesses, and the Department called just one, Lachette. At the hearing McCarthy argued that because the Department did not provide him with sufficient notice, he had been denied due process. Specifically, the Department's notice complained of Rollman's fraudulent recordkeeping, not Krolikowski's.*fn3 In a December 31, 2009, opinion, the trial court sustained McCarthy's appeal and set aside the suspension of McCarthy's inspection certificate. In doing so, the trial court explained:

Petitioner was without knowledge and could not have known that [he was] in violation. The Department had the burden of proving the foregoing on the Petitioner. Here, the Department failed to meet its burden with regard to knowledge of the violation.

R.R. 68a. The trial court then concluded:

the owner and management were unaware that the violation took place. Furthermore, both sides agreed that at the time of inspection, no owners or general managers were present in the office. [Thus,] an assignment of points is a more appropriate sentence then the harsher imposition of a suspension.

R.R.69a. The Department now appeals to this Court.

Our scope of review in an inspection certificate suspension case is limited to determining whether the trial court committed an error of law or whether the trial court's findings are supported by substantial evidence. Castagna v. Department of Transportation, Bureau of Motor Vehicles, 831 A.2d 156, 160 n.4 (Pa.Cmwlth. ...


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