IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Victor Vega and :
VPR Motors-OIS# EM67, :
Appellants :
:
v. : No. 283 C.D. 2018
: Submitted: September 14, 2018
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Motor Vehicles :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: October 5, 2018
Victor Vega (Vega) and VPR Motors (Station), OIS# EM67, appeal
from an order of the Court of Common Pleas of Luzerne County (trial court)
denying a motion to set aside the Department of Transportation, Bureau of Motor
Vehicles’ (PennDOT) Order of Suspension of the Station’s Certificate of
Appointment as an Official Emission Inspection Station for two years and
imposing a $5,000 fine for (1) fraudulent recordkeeping1 and (2) affixing an
1
67 Pa. Code § 177.292(a).
inspection sticker without conducting an inspection.2 For the following reasons,
we affirm.
I.
On June 9, 2015, PennDOT issued an Order of Fine and Suspension
of Official Inspection Station (Suspension Order) to the Station, providing, in
pertinent part:
You are hereby notified that your Certificate of
Appointment as an Official Emission Inspection Station
is suspended, pursuant to Section 4724 of the Vehicle
Code.[3] Pursuant to Departmental regulations, your
Certificate of Appointment is suspended for one (1) year
and fined $2,500 for furnish, lend, give, sell or receive a
certificate of emission inspection without inspection and
one (1) year and fined $2,500 for fraudulent record
keeping. . . .[4]
The suspension(s) will run consecutively, for a total
suspension of two (2) years and $5,000. This suspension
will run consecutively with any other suspension(s)
imposed by the Department for any violation considered
separately. The suspension shall commence upon service
of this notice.
2
67 Pa. Code § 177.427(3).
3
Section 4724 of the Vehicle Code, 75 Pa.C.S. § 4724.
4
The four vehicles that correspond to the missing stickers are: (1) 2004 Chevrolet, VIN
– KL1TD52694B164042, sticker IM44400890; (2) 1999 Dodge, VIN - 1B3EJ46X2XN549695,
sticker IM44400891; (3) 1999 Jeep, VIN - 1J4GW68NXXC806821, sticker IM44400892; and
(4) 2005 GMC, VIN - 1GKDT13S752240884, sticker IM44400893.
2
(Reproduced Record (R.R.) at 4a.) The Station appealed the suspension and fine to
the trial court.
At the de novo hearing, Marvin Langtry (Langtry), a PennDOT
quality assurance officer whose responsibilities included safety and emission
inspections, as well as re-inspections of motor vehicles, was qualified as an expert
witness for safety and emission inspections of motor vehicles. Langtry testified
that he performed an audit of the Station. He found that:
During the course of the audit . . . four emission stickers
were not recorded, showing as not used on our sticker
reconciliation. And through further investigation, was
able to track them down to the four vehicles we have
listed here.
Through work orders provided by the station with the
sticker numbers being documented as to what stickers
were issued to which vehicles. And then further, based
on a previous vehicle inspection history search in the
computer system, which shows that none of these
vehicles were recorded as being tested as of that day for
this year.
(R.R. at 32a – 33a.)
Langtry also testified as to the procedure an inspector should perform
when doing an emission inspection of a vehicle:
A: First thing would be for him to verify the registration
is current and valid. He would then proceed to visually
inspect the vehicle, being that it is a visual emission
inspection county, Luzerne, which is just a visual
3
inspection of the components to verify that they are there
and connected, and also to perform a gas cap test – gas
cap integrity test, I’m sorry.
Q: And then once those steps are done, how is it that the
department manages the stickers and the numbers on the
stickers?
A: The technician would scan the registration in the
emission analyzer. And as he proceeds through it, it’s
going to ask questions, are certain components present,
are they connected. It’s going to prompt him for the
mileage, to verify that the vehicle information is correct.
It also prompts him to remove the vehicle gas cap, place
it on the tester and proceed with the test.
Q: Is it going to prompt him to enter the number of the
emission sticker?
A: It is. Once the test was passed, it’s going to prompt
them to enter an emission sticker and the expiration date.
(R.R. at 33a.) Langtry stated that the four stickers were placed on the vehicle, but
were not entered according to this procedure. Furthermore, Langtry stated,
regarding the order of an emission inspection:
Q: So is a safety inspection done as part of an emissions
inspection?
A: No. An emissions inspection is required to be done
before a safety inspection.
Q: Okay. So these vehicles that are in question today, the
emission inspection was not properly performed and then
yet they were still given a safety inspection as well?
A: That’s correct.
4
Q: Under the statute and regulations, is it a violation of
any inspector to put a sticker on a vehicle that was not
properly inspected?
A: It is.
Q: For both the emissions and/or safety?
A: It is.
Q: And would it be a violation as well to – a record-
keeping violation to then put those stickers in to the MV
431 and on to the work orders if they were not properly
done?
A: It is a violation, yes.
(R.R. at 33a.) In addition to Langtry’s testimony, PennDOT presented the four
repair work orders corresponding to the vehicles and stickers that Langtry testified
showed fraudulent recordkeeping because they indicated that emission inspections
had been performed when they had not been.
Vega, the owner of the Station, testified that at the time of the
inspections at issue, he was recovering from knee surgery and his employee, Gary
Smith (Smith), now deceased, performed the inspections instead of Vega. Vega
also described a meeting with Langtry regarding Smith’s improper recording:
A: I told him . . . that I didn’t know how – why [Smith]
did it, because everything was documented as if
everything was good. Two of the vehicles were actually
owned by [the Station]. Everything was documented as
if the inspection went through, the sticker number, what
passes, what fails.
5
I think he panicked and he never showed back up. Mr.
Langtry knew this because he visited the shop numerous
times after that and even over the phone to speak to Mr.
Smith and he never presented himself.
Q: So did you believe that these particular inspections
were done properly?
A: By the record keeping, what we have there, we
discovered that they weren’t entered on there. But
judging by the work order, it looks like everything was –
on paper it looks like everything was done properly.
(R.R. at 35a.) However, when pressed, Vega conceded that Smith did not properly
perform the inspections:
Q: So it’s your understanding then that by not entering
these stickers in to the computer system for [PennDOT],
he did not thoroughly perform or completely perform the
inspections?
A: After it was presented to me – after Mr. Langtry, yes,
I know that now.
(R.R. at 36a.)
Vega also stated that he did not believe the Station committed any
violations because he did not have knowledge that Smith improperly affixed
inspection stickers without conducting the inspection.
Based on Langtry’s testimony, PennDOT’s documentary evidence and
Vega’s own testimony, the trial court denied the Station’s appeal, finding that a
certificate of emission inspection was affixed to each of the four vehicles despite
6
the failure of the emission inspector (Smith) to comply with the requirement for
entering required inspection data into the VIID.5 It also upheld the fraudulent
recordkeeping violation because the work orders showed that the emission
inspections had been performed when they had not been. This appeal followed.6
II.
PennDOT’s authority to revoke a station’s inspection license comes
from Section 4724(a) of the Vehicle Code, which provides:
The department shall supervise and inspect official
inspection stations and may suspend the certificate of
appointment issued to a station or may impose a
monetary penalty or may issue a warning against the
station which it finds is not properly equipped or
conducted or which has violated or failed to comply with
any of the provisions of this chapter or regulations
adopted by the department.
5
The “VIID” is the “Vehicle Inspection Information Database,” which is defined as:
The vehicle database established to collect inspection test data and
to provide emission inspection test standards to emission
inspection stations for the purpose of conducting the appropriate
emission inspection.
67 Pa. Code § 177.3.
6
Our scope of review 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. McCarthy v.
Department of Transportation, 7 A.3d 346, 350 (Pa. Cmwlth. 2010).
7
75 Pa.C.S. § 4724(a) (emphasis added). PennDOT found that the Station had
violated 67 Pa. Code 177.427(3) and 67 Pa. Code 177.292(a).
As to the charge of affixing an emission sticker without conducting an
inspection, Section 177.427(3) provides that a person may not “[f]urnish, loan,
give or sell certificates of emission inspection and approval to any official
emission inspection station or other person except upon an emission inspection
performed in accordance with this chapter.” 67 Pa. Code § 177.427(3). Moreover,
67 Pa. Code § 177.291(c) provides that a certificate of emission inspection “may
not be marked and affixed to a vehicle until it has successfully passed emission
inspection requirements of Chapters 45 and 47 of the Vehicle Code (relating to
other required equipment; and inspection of vehicles) and this chapter.”
Regarding the fraudulent recordkeeping charge, the term “fraudulent
recordkeeping” is defined as “[a] recordkeeping entry not in accordance with fact,
truth or required procedure that falsifies or conceals . . . [t]hat a certificate of
inspection was issued without compliance with the required inspection procedure.”
67 Pa. Code § 177.601(i). Section 177.292(a) provides that “[f]raudulent recording
of required data or other forms and cards will be considered cause for suspension
of inspection privileges.” 67 Pa. Code § 177.292(a). As to what constitutes proper
recording, subsection (b) provides:
The emission inspection inspector shall enter required
data for loading into the VIID and record required
information on the proper and applicable report forms
and place his signature in the appropriate columns
designated. This shall be done immediately following
the emission inspection.
8
67 Pa. Code § 177.292(b). Furthermore, 67 Pa. Code §175.42(c)(2) provides that
“[a] work order signed by the inspecting mechanic as required under this section
shall be available for inspection upon request by the inspection station supervisor
or an authorized representative of the Department.”
A.
PennDOT has the burden of proving violations by a preponderance of
the evidence.7 Tropeck v. Department of Transportation, Bureau of Motor
Vehicles, 847 A.2d 208, 211 (Pa. Cmwlth. 2004). This does not mean that
PennDOT needs to present “concrete” evidence that a vehicle inspection was
performed improperly. PennDOT merely needs to prove that it is more likely than
not that a vehicle inspection was performed improperly. Id. We have held:
Because firsthand testimony concerning the vehicle
condition at the time of official inspection is not likely to
be available except when the police employ preplanned
test inspections, there must be reliance upon credible
opinion testimony to meet the needs of the situation.
Milanovich v. Commonwealth, 445 A.2d 1337, 1338 (Pa. Cmwlth. 1982).
On appeal, the Station contends that the trial court erred by finding
that it kept fraudulent records or that it affixed emission stickers to vehicles that
had not been properly inspected because PennDOT failed to present substantial
7
In the Station’s brief, it alleges that PennDOT failed to meet its burden of proof beyond
a reasonable doubt. This is a misstatement of PennDOT’s burden which is only to prove the
violations by a preponderance of the evidence.
9
evidence that the missing stickers were affixed to vehicles without a proper
inspection. However, in this case, all the evidence establishes the contrary.
Langtry, a PennDOT quality assurance officer, testified that he
discovered four stickers were not recorded and was able to track them down to the
exact four vehicles to which they were affixed. Furthermore, he found that there
was no record of an emission test ever being conducted on those vehicles.
Moreover, despite the emission inspection not being performed, the vehicles were
still given a safety inspection. This is substantial evidence for PennDOT to meet
its burden to establish that the Station violated 67 Pa. Code § 177.427(3) by
affixing emission stickers to vehicles without performing the requisite inspections.8
8
The Station also argues that since Vega was recovering from knee surgery when the
violations occurred due to the actions of a Station employee (Smith), Vega and the Station
cannot be culpable. However, 67 Pa. Code § 177.421(a)(6)(i),(iii) and (iv) provides that it is the
responsibility of the owner of an emission inspection station to:
Assume full responsibility, with or without actual knowledge, for:
(i) Every emission inspection conducted at the emission
inspection station.
***
(iii) Every certificate of emission inspection issued to the
emission inspection station.
(iv) Every violation of the Vehicle Code or this chapter
related to emission inspections committed by an employee of the
emission inspection station.
10
B.
As to the trial court’s finding that the Station engaged in fraudulent
recordkeeping by keeping fraudulent work orders, each of the four work orders at
issue shows the numbers for the emission and safety certificates of inspection that
Smith affixed to each vehicle. We agree with PennDOT’s observation that anyone
looking at those work orders would conclude that a safety inspection and an
emission inspection had been properly completed on these four vehicles, including
Vega, who testified that “judging by the work order, it looks like everything was –
on paper it looks like everything was done properly.” (R.R at 35a.) Because the
Station’s work orders concealed the fact that certificates of inspection were issued
without the required inspections having been conducted, the trial court did not err
in finding that PennDOT presented substantial evidence to support a suspension
based upon a fraudulent recordkeeping violation.9
Accordingly, for the foregoing reasons, we affirm the order of the trial
court.
_________________________________
DAN PELLEGRINI, Senior Judge
9
Alternatively, the Station alleges that the trial court erred because it did not reduce the
length of the suspensions and fines imposed. A trial court can modify a suspension imposed by
PennDOT after a de novo hearing if it makes different findings of fact and conclusions of law.
Department of Transportation, Bureau of Traffic Safety v. Kobably, 384 A.2d 1213 (Pa. 1978).
In this case, though, the trial court agreed with PennDOT and did not make alternative findings
of fact or conclusions of law and, therefore, could not have lessened the suspensions and fines,
even if it had wanted to do so.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Victor Vega and :
VPR Motors-OIS# EM67, :
Appellants :
:
v. : No. 283 C.D. 2018
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Motor Vehicles :
ORDER
AND NOW, this 5th day of October, 2018, the order of the Court of
Common Pleas of Luzerne County dated November 21, 2017, is affirmed.
_________________________________
DAN PELLEGRINI, Senior Judge