Opinion
No. 3033 C.D. 2001, 3034 C.D. 2001, 3035 C.D. 2001, 3036 C.D. 2001, 3037 C.D. 2001, 3038 C.D. 2001, 3039 C.D. 2001, 3040 C.D. 2001.
Submitted: February 26, 2003.
Filed: March 17, 2003. Order Filed: May 1, 2003.
Before: Honorable James Gardner Colins, President Judge; Honorable Doris A. Smith-Ribner, Judge; Honorable Jim Flaherty, Judge.
ORDER
NOW, May 1, 2003, having considered appellee's application for reconsideration the application is granted. Our opinion and Order filed March 17, 2003 are hereby withdrawn.
No additional briefs shall be filed in this matter.
Richard Eugene Jones and Benny Garro/Top Notch Automotive, Inc. appeal the order of the Court of Common Pleas of Philadelphia County denying their consolidated appeals and sustaining the suspension of Top Notch Automotive's certificate of appointment as an official emission inspection station and the suspension of Jones and Garro's certifications as official emission inspection mechanics.
By notice dated January 9, 2001, the Department of Transportation, Bureau of Motor Vehicles (PennDOT) notified Top Notch that as the result of a covert audit of its activities, its certificate of appointment as an official emission inspection station was being suspended pursuant to 75 Pa.C.S.A. § 4724 for two consecutive one-year periods for furnishing a certificate of inspection without having conducted the inspection and for fraudulent recordkeeping. As a result of a subsequent overt audit, Top Notch was notified by notice dated February 28, 2001 that its certificate of appointment was being suspended permanently for 1,751 counts of furnishing certificates of suspension without having conducted the inspections and for fraudulent recordkeeping.
Also as a result of the covert audit, Jones and Garro were notified by notices dated January 9, 2001 that their certifications as official emission inspection mechanics were suspended pursuant to 75 Pa.C.S.A. § 4726 for two consecutive one-year periods for furnishing a certificate of inspection without having conducted the inspection and for fraudulent recordkeeping. As a result of the overt audit, Jones and Garro's certifications were suspended permanently for 1,751 counts of furnishing certificates of suspension without having conducted the inspections and for fraudulent recordkeeping.
Top Notch, Jones, and Garro filed nine statutory appeals, which were consolidated. At a hearing before the trial court, PennDOT submitted certified documents containing the notices from PennDOT to each of the appellants. Edward Brodzik, a covert auditor for the Pennsylvania Emissions Team, testified that on December 13, 2000 he sought an emissions inspection at Top Notch Automotive and Garro offered to sell him a safety inspection sticker and emission inspection sticker for $150. He paid Garro $150 for the stickers, which Jones affixed to the car's windshield, and he left; he did not provide Garro with any automobile insurance information.
McRay Bostick, an independent auditor with the Emissions Team who performed the overt audit, testified that on December 13, 2000 he went to Top Notch Automotive to examine logs of safety inspections performed. He testified that the MV-431 log contained no entry for the covert vehicle, and that the analyzer log similarly contained no entry for the emission sticker issued to that vehicle. Bostick said that he then performed a complete audit that revealed 1,750 stickers unaccounted for. Bostick testified that he returned to Top Notch Automotive on January 3, 2001, at which time Garro reported 377 stickers stolen. According to Bostick, PennDOT records show that at least one of the stickers that Garro reported stolen was issued to a vehicle under Garro's technician number.
Garro testified that when Brodzik brought in the covert audit vehicle, he walked around the car, performed a visual inspection, and issued the stickers for $150 even though Brodzik did not have proof of insurance. On cross-examination Garro acknowledged that he never put the car on the lift, did not pull a wheel, and did not perform an emissions test; he testified that he did not know whether Jones performed the inspections because he left the station. Garro testified that when he renovated the office, the furniture and cabinets were placed outside for a day and the stickers were stolen. He did not know how many stickers were reported stolen or how many were unaccounted for; he denied selling inspection stickers. Jones testified that he affixed the stickers to the covert audit vehicle at Garro's direction even though he did not perform the inspections or record the inspections in the logs; he stated that he assumed that Garro performed the inspections.
Based on the evidence, the trial court granted Jones's appeal of the permanent suspension based on the charge of 1,750 counts of fraudulent record keeping and modified the one-year suspensions in connection with the covert audit to run concurrently. The court dismissed Garro and Top Notch Automotive's appeals.
On appeal to Commonwealth Court, the appellants argue first that the trial court lacked jurisdiction and second that the decision was against the weight of the evidence. On the first issue, the appellants argue that the trial court lacked jurisdiction because the matter was heard before the Honorable William King, Senior Judge of the Municipal Court of Philadelphia, who they allege was improperly assigned to the court of common pleas. We disagree.
Our review in an inspection certificate suspension case is limited to determining whether an error law was committed or whether the trial court's findings are supported by substantial evidence. Fiore Auto Service v. Department of Transportation, Bureau of Motor Vehicles, 735 A.2d 734 (Pa.Cmwlth. 1998), petitions for allowance of appeal denied, 559 Pa. 681, 682 739 A.2d 545 (1999).
First, the transcript of the proceedings in this matter indicates that these statutory appeals were heard by Municipal Court Judge Alan Silberstein, who is one of several judges certified to preside over statutory appeals of suspensions imposed by PennDOT as judges of the court of common pleas. A municipal court judge may be assigned temporarily to preside as a common pleas court judge pursuant to 42 Pa.C.S.A. § 4121(a), and the appellants do not raise any impropriety in Judge Silberstein's appointment. Moreover, even if we were to conclude that Judge Silberstein was not sitting properly as a judge of the court of common pleas when he heard the appellants' statutory appeals, we would proceed to the merits of this appeal in the interest of judicial economy.
See Niedermayer v. Department of Transportation, Bureau of Driver Licensing, 797 A.2d 409 (Pa.Cmwlth. 2002) (senior judge of municipal court no longer properly assigned to preside as common pleas court judge after the date of his mandatory retirement at age 70; we went on to address merits for the sake of judicial economy).
The appellants argue that the trial court's decision is against the weight of the evidence. More specifically, they argue that PennDOT produced no evidence to contradict Garro's testimony as to the nature of his recordkeeping or the testimony of both Garro and Jones that they did not fraudulently use or permit anyone else to use the missing inspection stickers, and that PennDOT failed to meet its burden of proof, having produced no evidence of their lax recordkeeping leading to the loss or theft of inspections stickers. PennDOT, in its brief, concedes that it failed to prove the charges of fraudulent recordkeeping. (Appellee's brief, p. 18.)
In automobile inspection certification suspension cases involving alleged violations of the Vehicle Code and regulations, PennDOT has the burden of proving the violations by the preponderance of the evidence. Fiore Auto Service v. Department of Transportation, Bureau of Motor Vehicles, 735 A.2d 734 (Pa.Cmwlth. 1998), petitions for allowance of appeal denied, 559 Pa. 681, 682 739 A.2d 545 (1999).
The testimony of covert auditor Brodzik, along with the corroborating testimony of Garro and Jones, establishes that both Garro and Jones furnished or sold a certificate of inspection without performing an inspection on December 13, 2000. Garro acknowledged having failed to perform the inspection and having failed to verify the registration, title, and financial responsibility information. Jones acknowledged affixing the certificate to the vehicle without having performed the inspection, without any knowledge that an inspection had been performed, and without having recorded the inspection. The penalty for a first violation of furnishing or selling a certificate of inspection without inspection is suspension of inspection privileges for one year. 67 Pa. Code § 175.51.
By regulation, PennDOT recognizes three categories of unlawful recordkeeping by inspection stations — careless, improper, and fraudulent — each carrying different penalties. Careless recordkeeping has been characterized as neglectful or inattentive, and improper recordkeeping as not in accordance with fact, truth, or proper procedure. Department of Transportation, Bureau of Driver Licensing v. Cappo, 527 A.2d 190, 193 (Pa.Cmwlth. 1987). Fraudulent recordkeeping occurs when the information is false, entered intentionally and with the purpose of deceiving. Fiore, 735 A.2d at 737. Because improper and careless recordkeeping are lesser included offenses under the charge of fraudulent recordkeeping, the reviewing court may impose the penalty for those offenses where PennDOT has failed to prove fraudulent recordkeeping. Department of Transportation, Bureau of Driver Licensing v. May, 528 A.2d 708 (Pa.Cmwlth. 1987), petition for allowance of appeal denied, 518 Pa. 643, 542 A.2d 1372 (1988).
In this case, audit inspector Bostick's testimony does not establish any element of deceit or intent to mislead. Although it is incomprehensible that an inspection station owner could be so utterly without knowledge as to the number or location of some 1,750 inspection stickers and whether they were used in connection with inspections, stolen, or lost, PennDOT's evidence falls short of establishing fraudulent recordkeeping. Bostick's testimony establishes that Garro ordered over 2,000 stickers between March and December 2000, of which he could not account for 1,750. His testimony also establishes that according to PennDOT's records the stickers issued to the covert audit vehicle were never entered into the log or into the emission analyzer, and that at least one of the emission stickers that Garro reported as having been stolen appeared in a PennDOT-generated report as having been issued under Garro's inspection station number.
As tempting as it is to impute deception and intent to mislead when confronted with recordkeeping that is so egregiously careless and improper, the evidence simply does not permit such an inference. Bostick admitted that he did not question Garro's need for so many stickers, and his testimony appears to be based exclusively on PennDOT's reports and Garro's records, and Garro's inability to explain those inconsistencies. Bostick admitted that he did not even question Garro about his need for so many inspection stickers.
In conclusion, against Jones, the evidence supports only the charge of furnishing a certificate of inspection without performing an inspection, which supports a one-year suspension. Against Top Notch and Garro, the evidence supports the charge of furnishing or selling a certificate of inspection without performing an inspection and multiple counts of careless and 1,750 counts of improper recordkeeping, as well as other lesser offenses included under fraudulent recordkeeping. See 67 Pa. Code § 175.51. Accordingly, we affirm the one-year suspension of Jones and Garro's certifications as official emission inspection mechanics and the one-year suspension of Top Notch Automotive's certificate of appointment in connection with furnishing or selling a certificate of inspection without performing an inspection. On the charges of fraudulent recordkeeping against Garro and Top Notch, we reverse and remand for calculation of penalties for the lesser included offenses PennDOT proved.
We note that for improper recordkeeping, the third and subsequent violations are punishable by suspension for three years. 67 Pa. Code § 175.51(a)(2)(ii). Multiple violations warrant separate penalties, which at the court's discretion may run consecutively or concurrently. McDonough v. Commonwealth, 489 A.2d 295 (Pa.Cmwlth. 1985); 67 Pa. Code § 175.51(h).
ORDER
AND NOW, this 17th day of March 2003, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed insofar as it sustained the one-year suspension of Jones and Garro's certifications as official emission inspection mechanics and the one-year suspension of Top Notch Automotive's certificate of appointment in connection with furnishing or selling a certificate of inspection without performing an inspection. The permanent suspensions for fraudulent recordkeeping are reversed, and this matter is remanded for calculation of penalties consistent with this opinion.
Jurisdiction is relinquished.