Opinion
Argued May 7, 1976
July 28, 1976.
Motor vehicles — Suspension of certificate of appointment as an official inspection station — Suspension of certification as an official inspection mechanic — The Vehicle Code, Act 1959, April 29, P.L. 58 — Scope of appellate review — Modification of penalty — Sufficient evidence.
1. Action suspending a certificate of appointment as an official inspection station and a certification as an official inspection mechanic under The Vehicle Code, Act 1959, April 29, P.L. 58, will not be reversed because only some violations supporting the suspension action were established by the Commonwealth rather than the total number of violations charged. [502-3]
2. In reviewing an order suspending a certificate of appointment as an official inspection station, the court cannot alter the suspension action if violations are proved justifying disciplinary action. [503]
Argued May 7, 1976, before President Judge BOWMAN and Judges MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 85 C.D. 1976, from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania v. John Kobaly, Nos. 2459 of 1975 and 2086 of 1975.
Motor vehicle inspection station certificate suspended by the Secretary of Transportation. Certificate holder appealed to the Court of Common Pleas of Westmoreland County. Appeals dismissed. RIAL, J. Certificate holder appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Richard H. Albert, with him Redlich, Cassol, Redlich Morocco, and DeCello, Bua Manifesto, for appellant.
John L. Heaton, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
John Kobaly was notified by the Bureau of Traffic Safety on June 3, 1975 of the suspension of his certification as an official inspection mechanic, and on July 24, 1975 of the suspension of his Certificate of Appointment to make inspections for the following alleged violations of The Vehicle Code: eleven instances of faulty inspection forbidden by Section 819(f) and four instances of making fraudulent records proscribed by Section 819(h). Each suspension was for a period of three years. By appealing the Bureau's actions to the Court of Common Pleas of Westmoreland County Kobaly obtained a supersedeas of the suspensions and a trial. The lower court dismissed his appeal and affirmed the three-year suspension. This appeal followed.
Act of April 29, 1959, P.L. 58, as amended, 75 Pa.C.S.A. § 101 et seq.
At the hearing in the court below, the only witness, a Pennsylvania state trooper, related eight separate instances of faulty inspections made at Mr. Kobaly's station on October 28, 1974 while the trooper had the place under surveillance. Mr. Kobaly's official records of inspections were also admitted. Mr. Kobaly presented no evidence and does not seriously dispute the accuracy of the Commonwealth's evidence of the faulty inspections. He contends that the lower court's affirmance of the suspensions of both his mechanic and station license was erroneous because the Commonwealth established only eight, not eleven, faulty inspections, and because there was no evidence of faulty record keeping. He says that because the Commonwealth failed to prove everything it claimed as a cause of suspending his licenses, neither can be suspended. We disagree.
In Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Kobaly, 22 Pa. Commw. 46, 354 A.2d 272 (1976), involving this appellant, we upheld another suspension imposed by the Bureau for alleged violations of both Section 819(f) and Section 819(h) although the lower court found that no violation of Section 819(h) had been proved.
In the cited case we held that the lower court has no authority to alter the Bureau's suspension action if any violation is proved and that the function of the lower court was only that of determining from the facts whether any disciplinary action could be imposed. Certainly, the eight violations which were proven at the hearing, supported as they were by substantial evidence, support the Bureau's action in this case.
We first determined this as the function of the trial court in operator's license suspension cases ( Commonwealth v. Massey, 3 Pa. Commw. 304, 281 A.2d 371 (1971)), appealed under Section 620 of the Code. The provision governing appeals from suspensions of certificate of appointment, Section 819(b) of the Code, contains identical language concerning the role of lower courts on appeal.
Affirmed.