Opinion
No. 1222 C.D. 2011
03-07-2012
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles v. Glenn A. Kuszyk, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Glenn A. Kuszyk appeals from the May 31, 2011, order of the Court of Common Pleas of Montgomery County (trial court) upholding the decision of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles (DOT), to suspend Kuszyk's inspection certificate for two years and impose a $5,000.00 fine. We affirm.
Kuszyk is the owner of a vehicle repair shop and inspection station. In February 2006, Kuszyk's employee, David A. Fink, a licensed emissions inspector, issued emissions stickers for two vehicles by performing a technique called "clean screening," which is the process of hooking up a second vehicle to the emissions machine in order to obtain a passing test result for the first vehicle. Unbeknownst to Fink, the emissions machine tracked each vehicle's vehicle identification number (VIN) through the vehicles' internal computers, and both VINs appeared on a records audit performed by DOT.
In March 2006, Terry Landes, a DOT inspector, went to Kuszyk's station to interview Kuszyk and Fink about the two "clean screening" incidents. Landes informed Kuszyk about the improper procedure Fink had used to test the vehicles at issue. Before this meeting, Kuszyk had no knowledge of Fink's infractions. As a result of Landes's report, DOT scheduled a hearing on the fraudulent recordkeeping violations.
Upon learning of Fink's infractions, Kuszyk retrieved the emissions stickers and properly tested the two vehicles, both of which passed inspection.
"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.
Following a hearing on January 16, 2007, DOT suspended Kuszyk's certificate of appointment as an official inspection station for two years and fined Kuszyk $5,000.00.
Kuszyk timely appealed to the trial court, which conducted a de novo hearing on January 28, 2008. Landes testified that, to his knowledge, Kuszyk had no involvement in Fink's "clean screening" violations. (N.T., 1/28/08, at 16.) However, Landes also testified that Kuszyk, as the station owner, is responsible for the actions of his employees. (Id. at 51.) Kuszyk testified that, although Fink was acting within the scope of his employment when he conducted the "clean screening" violations, Kuszyk had no knowledge of Fink's infractions until speaking with Landes in March 2006. (Id. at 42-43.) Kuszyk also testified that he had no reason to believe that Fink would commit any fraudulent acts and that there was nothing he could have done to prevent Fink from committing the violations. (Id. at 43.)
The trial court believed Kuszyk's testimony regarding his lack of knowledge of Fink's violations and commended his effort to immediately correct the violations by properly testing the vehicles. However, the trial court concluded that Kuszyk failed to properly supervise Fink and, thus, was strictly liable for the violations. Therefore, the trial court upheld DOT's suspension of Kuszyk's inspection certificate. Kuszyk now appeals from that decision.
Section 4724(a) of the Vehicle Code states:
. . . [DOT] shall supervise and inspect official inspection stations and may suspend the certificate of appointment issued to a station. . . which has violated or failed to comply with any of the provisions of this chapter or regulations adopted by [DOT].75 Pa. C.S. §4724(a). This provision imposes strict liability on an inspection station owner for the acts of its employees conducted within the scope of their employment. McCarthy v. Department of Transportation, 7 A.3d 346, 350 (Pa. Cmwlth. 2010).
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 its factual findings are supported by substantial evidence. McCarthy, 7 A.3d at 350.
On appeal, Kuszyk asserts that DOT was required to offer him points in lieu of suspension because the evidence established that he had no knowledge of Fink's infractions and that he properly supervised Fink. We disagree.
In cases where the owner of a licensed inspection station has no knowledge of an employee's violation of state regulations, DOT must consider offering points in lieu of a suspension of the owner's license and provide evidence of such consideration. McCarthy v. Department of Transportation, 7 A.3d 346, 353 (Pa. Cmwlth. 2010); see 67 Pa. Code §177.602(b) (stating that, if a station owner had no knowledge of an employee's violation, DOT may permit the acceptance of a point assessment in lieu of suspension). The evidence must explain why DOT chose or declined to offer points in lieu of suspension. McCarthy, 7 A.3d at 353. However, "the point system is only an option when an employee performs a faulty inspection without the knowledge of the station manager despite the station manager's proper supervision." Castagna v. Department of Transportation, Bureau of Motor Vehicles, 831 A.2d 156, 162 (Pa. Cmwlth. 2003) (emphasis added). The station owner bears the burden of proving that he properly supervised the employee who committed the violation but that such supervision could not have prevented the violation. McCarthy, 7 A.3d at 352; 67 Pa. Code §177.602(b)(1).
Here, Kuszyk failed to explain what provisions, if any, he had in place to supervise Fink's performance of emissions inspections. Kuszyk testified that he did not oversee Fink's inspections and that Fink usually performed the inspections alone. (N.T., 1/28/08, at 36.) Kuszyk's only testimony regarding his level of supervision was that he "keep[s] a pretty tight ship." (Id. at 43.) As the trial court pointed out, however, other evidence admitted at the hearing indicated that the instant matter was not the first time DOT had charged Kuszyk with fraudulent recordkeeping, nor was it the last. The trial court noted, "While these earlier violations did not weigh into the determination currently on appeal, they do tend to suggest that [Kuszyk] did not run the 'tight ship' he asserted at the hearing . . . ." (Trial Ct. Op., 8/24/11, at 15 n.6.)
In 2005, DOT charged Kuszyk twice with recordkeeping violations, one by Fink and one by another employee. DOT suspended Kuszyk's certificate for one violation and assessed points for the other. (Trial Ct. Op., 8/24/11, at 15 n.6; see N.T., 1/28/08, Ex. C-1, at 12-14.) In 2007, Fink performed a third "clean screening." For that violation, DOT offered, and Kuszyk accepted, the assessment of points in lieu of suspension. (Trial Ct. Op., 8/24/11, at 4 n.4; see N.T. 1/28/08, Ex. C-1, at 5-7.)
In his brief, Kuszyk also argues that, because Fink was a certified emissions inspector, Kuszyk "had every reason to believe that [Fink] could properly perform inspections without the need for excessive oversight." (Kuszyk's Br. at 12.) However, because Kuszyk offered no evidence regarding his procedure for overseeing or reviewing Fink's work, he failed to satisfy his burden of proof regarding proper supervision.
In this regard, Kuszyk testified:
[T]hese people are licensed by [DOT]. I do everything under my power to keep an eye on it. I can't keep an eye on everything. They're responsible [sic] I tell them to do them right. And you don't know until an inspection officer comes out if something happens.(N.T. 1/28/08, at 47.)
Furthermore, DOT's evidence at the hearing demonstrated that it considered, but rejected, the point-assessment option in this case. In a January 29, 2007, document titled, "Consideration of Point Assessment in Lieu of Suspension," a DOT representative wrote that DOT's reason for refusing to offer Kuszyk a point assessment was "[n]o supervision." (N.T., 1/28/08, Ex. C-1, at 4.) Because the record demonstrates that DOT considered the point-assessment option, as well as its reason for declining it, DOT has satisfied its burden. See McCarthy, 7 A.3d at 353 ("[I]n all inspection certificate suspension cases, [DOT] must at least consider the use of the points system and provide evidence of this consideration.") (emphases in original). But see Strickland v. Department of Transportation, 574 A.2d 110, 114 (Pa. Cmwlth. 1990) (vacating and remanding to trial court for reconsideration of penalty where the record was silent as to whether DOT considered or offered the point-assessment option).
DOT admitted this document into evidence with no objection from Kuszyk. (See N.T., 1/28/08, at 2-3.) --------
Accordingly, because we conclude that the trial court properly upheld DOT's decision, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 7th day of March, 2012, we hereby affirm the May 31, 2011, order of the Court of Common Pleas of Montgomery County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge