           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,            :
Department of Transportation             :
                                         :
                   v.                    :   No. 1409 C.D. 2015
                                         :   Submitted: May 5, 2017
Northeast Community,                     :
                         Appellant       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: August 16, 2017


      Northeast Community (Northeast) appeals from the Order of the Court of
Common Pleas of Philadelphia County (trial court), affirming the May 29, 2014
Decision of the Commonwealth of Pennsylvania, Department of Transportation
(Department), imposing two one-year suspensions of Northeast’s Certificate of
Appointment as an Official Emission Inspection Station and two $2,500.00 fines
for furnishing an emission certificate of inspection without conducting an emission
inspection (furnishing) and fraudulent recordkeeping. Northeast argues that the
trial court erred in admitting evidence that constituted hearsay, finding that the
Department met its burden of proof, and sustaining the suspensions that should
have been precluded by collateral estoppel. Because we find no error in the
admission of evidence, that the Department met its burden of proof, and that the
Department was not precluded from issuing the suspensions, we affirm.
       Northeast is an auto care and inspection station located at 6101 Roosevelt
Boulevard in Philadelphia. On April 29, 2014, the Department issued an Official
Notice (April Notice), stating that it was suspending Northeast’s Certificate of
Appointment as an Official Safety Inspection Station for one year for issuing
emission inspection sticker No. IM30579435 without a proper inspection and one
year for fraudulent recordkeeping.           The Department issued a second Official
Notice by certified letter on May 29, 2014 (May Notice), without withdrawing the
April Notice or otherwise indicating that it was intended to correct the error in the
April Notice, which incorrectly referenced Northeast’s Certificate of Appointment
as an Official Safety Inspection Station rather than Emission Inspection Station.
The May Notice suspended Northeast’s Certificate of Appointment as an Official
Emission Inspection Station for one year for furnishing a certificate of inspection
(emission sticker No. IM30579435) without inspection and one year for fraudulent
recordkeeping, and imposed a $2,500.00 fine for each violation.                      Northeast
appealed both the April Notice and May Notice suspensions to the trial court.1
       The trial court held a hearing on this matter on June 17, 2015.2 The hearing
included appeals from both the April Notice and the May Notice.                      Northeast

       1
         Supersedeas was granted for the suspensions imposed in the April Notice and May
Notice pending Northeast’s appeal before the trial court.
       2
          The trial court’s hearing addressed multiple appeals filed by Northeast that were
consolidated. Other witnesses were called, but their testimony was in relation to appeals from
other notices that are not presently before this Court. Northeast has separately appealed to this
Court from a notice dated September 24, 2014 (September Notice), permanently suspending
Northeast’s Certificate of Appointment as an Official Emission Inspection Station and issuing
two $5,000.00 fines for second offenses of furnishing a certificate of inspection without
performing an inspection and fraudulent recordkeeping, which is before the court in Department
(Footnote continued on next page…)


                                               2
argued that both Notices were issued based on the same sticker number for the
same alleged offenses, that the April Notice contained an error, which was the
suspension of its Safety Certificate for an emission violation, and that the May
Notice was issued inappropriately because the April Notice was not withdrawn
first. Northeast argued that, because the Department did not withdraw the April
Notice, the May Notice was barred by collateral estoppel. The Department argued
that the April Notice could be withdrawn at the hearing and that Northeast was not
prejudiced by allowing the trial court to sustain the appeal of the April Notice. The
Department, although not officially withdrawing the April Notice, did not present
any evidence in support of the April Notice, and Northeast requested that the
appeal of the April Notice be sustained based on lack of evidence, which the trial
court granted without objection.
      Relevant to Northeast’s appeal of the May Notice, the Department called
Officer Otto Lorintz (Lorintz) as a witness and presented documentary evidence.3
Lorintz testified as follows. Lorintz is employed as a covert insurance officer with
Dasher, a subcontractor for the Department, where he does covert inspections of
emission inspection stations. At approximately 9:00 a.m. on January 24, 2013,
Lorintz requested an emission test be performed on his 2002 Suzuki XL7 at Total
Corporation d/b/a station number EX57 (Getty station), located at 6301 Castor
Avenue in Philadelphia. After speaking with a technician, Lorintz decided to
return the following day with the proper forms for the test. The next day, Lorintz
performed an emission test at his office, which his Suzuki failed, before he
_____________________________
(continued…)
of Transportation v. Northeast Community (Pa. Cmwlth., No. 1410 C.D. 2015, filed Aug. 16,
2017). The May Notice involved the first offenses of these violations.
       3
         Lorintz’s testimony is found at pages 78a-131a of the Reproduced Record.



                                           3
returned to the Getty station. The results of this test were documented in Exhibit
C-1(8). At 9:25 a.m., he arrived at the Getty station to receive an emission test.
After Lorintz paid $100.00, the technician took his insurance and registration cards
and left the Getty station in Lorintz’s car. After approximately 20 minutes, the
technician returned the vehicle with new safety and emission inspection stickers
attached.4 Lorintz did not receive a work order or receipt. Lorintz testified that the
check engine light was on both before and after he submitted the vehicle for
testing.
        Upon leaving the premises, Lorintz called the Dasher office. The office
informed him that the new safety and emission stickers originated from station
number DK72, which is Northeast. Lorintz drove the 2 1/2 miles from the Getty
station to Northeast and back in approximately 10 minutes. Lorintz affirmed that
safety inspections typically require 30 to 40 minutes, while an emission test takes
at least 10 to 20 minutes. After getting gas, Lorintz returned to the Dasher office,
where he performed another failing emission test on the vehicle.
        Lorintz stated that, according to the Commonwealth of Pennsylvania
Vehicle Emissions Inspection Report (VIR), Northeast tested the Suzuki at 10:49
a.m.5       He pointed out that emission sticker number IM30579435 in the VIR
matched the emission sticker that was on the Suzuki when the technician returned
it to him after the purported emission test. On cross-examination, Lorintz clarified
that, according to the VIR, the emission inspection reportedly began at 10:49 a.m.


        4
          Although Lorintz apparently only requested an emission inspection, his vehicle was
returned to him with new safety and emission stickers. The safety sticker number was
AI31984930.
        5
          Lorintz initially misspoke, stating that the test began at 10:29 a.m. according to the VIR,
but clarified his response on cross-examination.



                                                 4
and was completed at 11:03 a.m.; however, during that time he was actually
getting gas. Lorintz asserted that in order for the VIR to indicate that his Suzuki
was being tested at the same time he was putting gas into the Suzuki’s tank,
Northeast engaged in “clean screening.”6 Lorintz issued a report of his findings.
The trial court found Lorintz’s testimony to be credible.
       Additionally, the Department offered the VIR as Exhibit C-2, (R.R. at 192a),
into evidence, to which Northeast asserted a hearsay objection. The Department
argued that the VIR qualified as an exception to the hearsay rule because it was a
business record. Lorintz testified that the VIR was created automatically when the
emission test was performed, may be accessed by Northeast at any time, and is
contained in his report. Lorintz has access to all of the documents in the VIR
system as an employee of Dasher. The trial court overruled Northeast’s objection
and admitted the document, stating it would give the document the appropriate
weight the trial court believed it deserved. Northeast did not present any evidence.
       Because the trial court had sustained Northeast’s appeal of the April Notice,
only the May Notice was at issue. Based on the evidence introduced at the
hearing, the trial court concluded that Northeast had committed the violations of
fraudulent recordkeeping and furnishing a certificate of inspection without actual
inspection. Therefore, the trial court entered the Order denying the appeal of, and
reinstating, the May Notice.7
       Northeast now appeals the trial court’s Order, asserting that the trial court
erred by: (1) admitting the VIR, Exhibit C-2, over Northeast’s objection that the

       6
          The term “clean screening” is used to describe the process of hooking up a second
vehicle to obtain a passing test result for the first vehicle.
       7
          The trial court issued a single opinion that addressed Northeast’s appeals of both the
May Notice and the September Notice.



                                               5
document constituted hearsay; (2) finding that Department met its burden in
proving that Northeast furnished a certificate of inspection without inspecting the
vehicle and committed fraudulent recordkeeping; and (3) finding that the May
Notice was not barred by collateral estoppel because the appeal of the April Notice
was sustained. These questions are before this Court for review.8 In performing
this review, we are cognizant that the Vehicle Code imposes an obligation on the
Department to supervise vehicle inspection stations and perform inspections
thereof and authorizes it to impose various penalties for violations of the Vehicle
Code or the Department’s regulations that are found during these inspections.
Section 4724(a) of the Vehicle Code, 75 Pa. C.S. § 4724(a).

                                              I
       When evaluating questions of evidence on appeal, we are aware that the
“trial court has broad discretion to determine whether evidence is admissible, and
we will not reverse a trial court’s ruling absent an abuse of discretion.” Hyer v.
Dep’t of Transp., Bureau of Driver Licensing, 957 A.2d 807, 810 n.4 (Pa. Cmwlth.
2008) (citing Commonwealth v. Cook, 676 A.2d 639, 647 (Pa. 1996)).

       Judicial discretion, broadly defined, is the option which a judge may
       exercise either to do or not to do that which is proposed to him. As a
       guide to judicial action, it means a sound discretion exercised with
       due regard for what is right and equitable under the circumstances and
       under the law. Abuse of discretion is not merely an error of judgment;
       however, if, in reaching a conclusion, the law is overridden or
       misapplied, or the judgment exercised is manifestly unreasonable or

       8
          “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.” McCarthy v. Dep’t of Transp., 7 A.3d 346, 350
(Pa. Cmwlth. 2010) (citing Castagna v. Dep’t of Transp., Bureau of Motor Vehicles, 831 A.2d
156, 160 n.4 (Pa. Cmwlth. 2003)).



                                              6
       the result of partiality, prejudice, bias, or ill will, as shown by the
       evidence or the record, discretion is abused.

Gillespie v. Dep’t of Transp., Bureau of Driver Licensing, 886 A.2d 317, 319 (Pa.
Cmwlth. 2005) (emphasis in original) (quoting Commonwealth v. Korn, 467 A.2d
1203, 1205 (Pa. Cmwlth. 1983)). With this standard in mind, we consider whether
the trial court erred in overruling Northeast’s hearsay objection and admitting
Exhibit C-2, the VIR.9
       This Court has defined hearsay as a “statement, other than one made by the
declarant while testifying at a trial or hearing, offered into evidence to prove the
truth of the matters asserted.” Hyer, 957 A.2d at 810 n.4 (quoting Rule 801(c) of
the Pennsylvania Rules of Evidence, Pa. R.E. 801(c)).10 Hearsay may not be
admitted unless it falls within an exception. Id. Rule 803 of the Pennsylvania
Rules of Evidence sets forth exceptions to hearsay, which includes the following:

       (6) Records of a Regularly Conducted Activity. A record (which
       includes a memorandum, report, or data compilation in any form) of
       an act, event or condition if:
       (A) the record was made at or near the time by--or from information
       transmitted by--someone with knowledge;
       (B) the record was kept in the course of a regularly conducted activity
       of a “business”, which term includes business, institution, association,
       profession, occupation, and calling of every kind, whether or not
       conducted for profit;
       (C) making the record was a regular practice of that activity;

       9
          The trial court did not address this issue in its opinion; however, because the trial court
did not direct Northeast to file a Concise Statement of Errors Complained of on Appeal pursuant
to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b), this
appeal is the first opportunity for Northeast to raise this issue.
        10
           Rule 801(c) defines hearsay as “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of
the matter asserted in the statement.” Pa. R.E. 801(c).




                                                 7
      (D) all these conditions are shown by the testimony of the custodian
      or another qualified witness, or by a certification that complies with
      Rule 902(11) or (12) or with a statute permitting certification; and
      (E) the opponent does not show that the source of information or other
      circumstances indicate a lack of trustworthiness.

Pa. R.E. 803(6).    These exceptions are based on “(1) the necessity for such
evidence, and (2) the circumstantial probability of its trustworthiness. 5 Wigmore,
Evidence § 1420 (3d ed. 1940). In the case of records kept in the regular course of
business the circumstantial guarantee of trustworthiness arises from the regularity
with which they are kept.” In re Indyk’s Estate, 413 A.2d 371, 373 (Pa. 1979)
(quoting Fauceglia v. Harry, 185 A.2d 598, 601 (Pa. 1962)). Therefore, “[a]s long
as the authenticating witness can provide sufficient information relating to the
preparation and maintenance of the records to justify a presumption of
trustworthiness for the business records of a company, a sufficient basis is
provided to offset the hearsay character of the evidence.” Id.
      Northeast argues that the VIR constituted inadmissible hearsay because it
was being offered for the truth of the matter asserted. The Department agrees that
the VIR contains hearsay, as the document was offered as proof that Northeast
purportedly performed the emission inspection on the 2002 Suzuki XL7 at 10:49
a.m. on January 25, 2013.      However, the Department avers that the VIR is
admissible under Pa. R.E. 803(6) and Section 6108 of the Uniform Business
Records as Evidence Act (Business Records Act), 42 Pa. C.S. § 6108. Section
6108 of the Business Records Act provides, in relevant part:


      (b) General rule.--A record of an act, condition or event shall, insofar
      as relevant, be competent evidence if the custodian or other qualified
      witness testifies to its identity and the mode of its preparation, and if
      it was made in the regular course of business at or near the time of the
      act, condition or event, and if, in the opinion of the tribunal, the

                                         8
       sources of information, method and time of preparation were such as
       to justify its admission.
       (c) Definition.--As used in this section “business” includes every
       kind of business, profession, occupation, calling, or operation of
       institutions whether carried on for profit or not.

42 Pa. C.S. § 6108 (first emphasis added).
       Northeast asserts that, because the VIR is a Department record governed by
Section 6103 of the Business Records Act,11 42 Pa. C.S. § 6103(a), it would not fall
under the business record exceptions because those exceptions do not provide that
records of a government agency are included therein. Northeast contends that, to
be admissible, the VIR would have to be authenticated by the attestation of the
custodian of documents and the seal of the officer.
       The trial court did not abuse its discretion in admitting the VIR. While the
definitions of “business” under both Rule 803(6)(b) and Section 6108(c) of the
Business Records Act do not specifically include government agencies, the
definitions are sufficiently broad as to encompass the Department. Moreover, the
business record exception in Section 6108(c) has been used previously to admit
government agency documents. See Commonwealth v. Carter, 932 A.2d 1261,
1268 (Pa. 2007) (holding that documents generated in the course of regularly

       11
            This section reads, in pertinent part:

       (a) General rule.--An official record kept within this Commonwealth by any
       court, magisterial district judge or other government unit, or an entry therein,
       when admissible for any purpose, may be evidenced by an official publication
       thereof or by a copy attested by the officer having the legal custody of the record,
       or by that officer’s deputy, and accompanied by a certificate that the officer has
       the custody. The certificate may be made by any public officer having a seal of
       office and having official duties with respect to the government unit in which the
       record is kept, authenticated by the seal of that office . . . .

42 Pa. C.S. § 6103(a).



                                                     9
conducted activity in a police laboratory are admissible under the business record
exception); Hill v. Dep’t of Corr., 64 A.3d 1159, 1170 (Pa. Cmwlth. 2013)
(holding that invoices reflecting the cost of standard materials purchased for
Pennsylvania’s prison population were admissible as business records);
Commonwealth v. Schoff, 911 A.2d 147, 157 (Pa. Super. 2006) (holding that a
Department of Social Services document was admissible as a business record).
       Additionally, Northeast argues that the VIR is not self-authenticating under
Rule 902(1) and (2) of the Pennsylvania Rules of Evidence, Pa. R.E. 902(1), (2),12
and is not admissible on those grounds. The Department agrees that the VIR is not
self-authenticating, but argues that it is admissible under Rule 901(b)(1), which
allows evidence to be authenticated by the “[t]estimony of a [w]itness with


       12
            This rule provides in pertinent part:

       The following items of evidence are self-authenticating; they require no extrinsic
       evidence of authenticity in order to be admitted:
               (1) Domestic Public Documents That Are Sealed and Signed. A
       document that bears:
               (A) a seal purporting to be that of the United States; any state, district,
       commonwealth, territory, or insular possession of the United States; the former
       Panama Canal Zone; the Trust Territory of the Pacific Islands; a political
       subdivision of any of these entities; or a department, agency, or officer of any
       entity named above; and
               (B) a signature purporting to be an execution or attestation.
               (2) Domestic Public Documents That Are Not Sealed But Are Signed
       and Certified. A document that bears no seal if:
               (A) it bears the signature of an officer or employee of an entity named in
       Rule 902(1)(A); and
               (B) another public officer who has a seal and official duties within that
       same entity certifies under seal--or its equivalent--that the signer has the official
       capacity and that the signature is genuine.

Pa. R.E. 902(1), (2).



                                                    10
[k]nowledge,”13 and that Lorintz’s testimony was sufficient to authenticate the
VIR.
       Lorintz attested to the VIR’s truthfulness and explained that the VIR is
created when the emission test is performed, he has access to the VIR as a Dasher
office employee, Northeast also has access to the VIR, and he included the VIR as
part of his report of the inspection, all of which the trial court judged to be
credible. The business record exception under both the Rules of Evidence and
Business Records Act permit either the custodian or a qualified witness to testify
about the record, and Lorintz is a qualified witness. The record is also devoid of
any evidence that the “source of information or other circumstances indicate a lack
of trustworthiness.” Pa. R.E. 803(6)(E). Therefore, the trial court did not abuse its
discretion in overruling Northeast’s objection and admitting the VIR under the
business record exception to hearsay.

                                                   II
       Northeast next contends that the trial court erred in finding that the
Department met its burden in proving that Northeast furnished a certificate of



       13
            Rule 901(a), (b)(1) on authenticating or identifying evidence states, in part:

       (a) In General. To satisfy the requirement of authenticating or identifying an
       item of evidence, the proponent must produce evidence sufficient to support a
       finding that the item is what the proponent claims it is.
       (b) Examples. The following are examples only--not a complete list--of evidence
       that satisfies the requirement:
                (1) Testimony of a Witness with Knowledge. Testimony that an item is
       what it is claimed to be.

Pa. R.E. 901(a), (b)(1).



                                                  11
inspection without inspection and committed fraudulent recordkeeping. Section
4724(a) of the Vehicle Code provides in relevant part:

      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. A schedule of all
      penalties, points and suspension may be established by the department
      by publishing a notice in the Pennsylvania Bulletin until the
      regulations governing these penalties are promulgated by the
      department. The department shall maintain a list of all stations
      holding certificates of appointment and of those whose certificates of
      appointment have been suspended. Any suspended certificate of
      appointment and all unused certificates of inspection shall be returned
      immediately to the department.

75 Pa. C.S. § 4724(a). Under the relevant law, “[a] person may not: . . . (3)
Furnish, 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).
Fraudulent recordkeeping is defined as follows:

      Fraudulent recordkeeping--A recordkeeping entry not in accordance
      with fact, truth or required procedure that falsifies or conceals one or
      more of the following:
      (i) That a certificate of inspection was issued without compliance with
      the required inspection procedure.
      (ii) The number of inspections performed.
      (iii) The individuals or station that performed the inspection.

67 Pa. Code § 177.601. When violations of the Vehicle Code and associated
regulations are alleged, the Department bears the burden of proving the violations
by a preponderance of the evidence, “i.e., that it is more likely tha[n] not” that the
violations occurred. Tropeck v. Dep’t of Transp., Bureau of Motor Vehicles, 847


                                         12
A.2d 208, 212 (Pa. Cmwlth. 2004); Kot v. Dep’t of Transp., 562 A.2d 1019, 1020
(Pa. Cmwlth. 1989).
      Northeast’s argument focuses primarily on the sufficiency of Lorintz’s
testimony and a reiteration of its argument against the admission of the VIR.
Northeast is really asking this Court to reweigh the evidence presented to the trial
court to determine that Lorintz’s testimony was not credible, and the VIR should
not have been considered, and conclude, therefore, that the Department failed to
meet its burden of proof. That is not the province of this Court, rather, “[t]he trial
court, as the finder of fact, has exclusive authority to weigh the evidence, make
credibility determinations, and draw reasonable inferences from the evidence
presented.” Rice v. Compro Distrib., Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006)
(citing Smith v. Tax Claim Bureau of Pike Cnty., 834 A.2d 1247, 1251 (Pa.
Cmwlth. 2003)).
      Lorintz credibly testified to the truthfulness of the VIR which shows that a
passing emission inspection was performed on Lorintz’s Suzuki at 10:49 a.m., at
the time Lorintz was getting gas. Moreover, Lorintz testified that he inspected his
Suzuki both before and after the Getty station purportedly performed its inspection,
and the Suzuki failed both times, as was intended. Lorintz presented the failing
test results. The new emission sticker, which evidenced that a test was performed
on the vehicle, was assigned to Northeast, and the Getty station employee was
gone in the vehicle for about 20 minutes. The trial court reasonably inferred based
on the testimony and evidence that the Suzuki was taken to Northeast, Northeast
issued the new stickers without testing the vehicle, and Northeast later entered the
vehicle’s information into the VIR before running an emission test on a different
vehicle that would pass the inspection. Therefore, the evidence presented met the



                                         13
Department’s burden of proof for furnishing an emission certificate of inspection
without actually conducting an inspection.
      Next, while the Department’s regulations do not contain a definition of
“fraudulent,” this Court has previously determined that fraudulent conduct “occurs
when an entry in the record . . . is false, entered intentionally and with the purpose
of deceiving.” Firestone Tire and Serv. Ctr., O.I.S. No. 798 v. Dep’t of Transp.,
871 A.2d 863, 867 (Pa. Cmwlth. 2005) (quoting Fiore Auto Serv. v. Dep’t of
Transp., Bureau of Motor Vehicles, 735 A.2d 734, 737 (Pa. Cmwlth. 1998)). Any
“declaration[s], artifice[s,] or practice[s] designed . . . to mislead anyone inspecting
the record into believing that the record was facially correct” and that a proper
inspection had occurred are inherently deceitful. Dep’t of Transp., Bureau of
Driver Licensing v. Midas Muffler Shop, 529 A.2d 91, 93 (Pa. Cmwlth. 1987)
(internal quotations omitted). Determining whether circumstances constitute fraud
is “largely an issue of fact” to be determined by the trial court. Dep’t of Transp. v.
Sortino, 462 A.2d 925, 927 (Pa. Cmwlth. 1983).
      The VIR includes the identifying information of Lorintz’s vehicle, and a test
time by Northeast of 10:49 a.m., which was well after he had left the Getty station.
In order for the VIR to show that a test was completed on Lorintz’s vehicle at that
time, Northeast would have had to have deliberately input the information
associated with Lorintz’s vehicle while conducting an emission test on a different
vehicle. By doing so, Northeast made “[a] recordkeeping entry not in accordance
with fact, truth or required procedure that falsifie[d] or conceal[ed] . . . [t]hat a
certificate of inspection was issued without compliance with the required
inspection procedure,” thus engaging in fraudulent recordkeeping. 67 Pa. Code §




                                          14
177.601. Therefore, the Department met its burden in proving the fraudulent
recordkeeping violation.
       Northeast alternatively argues that the trial court was free to modify the
penalty imposed, and the charge should have been reduced to careless
recordkeeping.14 A trial court may “alter the penalty if, in the trial de novo, it
makes findings of facts and conclusions of law different from that of the
[Department].” Dep’t of Transp., Bureau of Traffic Safety v. Kobaly, 384 A.2d
1213, 1215 (Pa. 1978). This is not the case here. In situations where the trial court
reaches the same conclusions as the Department,

       [t]he court may not . . . do more than (1) affirm the [Department’s]
       penalty because the law as applied to the facts heard de novo leads to
       a conclusion of a violation of the law or (2) reverse the
       [Department’s] penalty because the law as applied to the facts heard
       de novo does not lead to a conclusion of a violation of law.

Dep’t of Transp., Bureau of Traffic Safety v. Cormas, 377 A.2d 1048, 1050 (Pa.
Cmwlth. 1977). Even if the trial court was free to change the penalty, there is
nothing requiring that it do so. Accordingly, any argument that the trial court
could change the penalty issued is unpersuasive under these circumstances.

                                             III
       Finally, Northeast asserts that the trial court erred in finding the
Department’s May Notice valid in light of the Department’s April Notice alleging
the same violations.      Northeast argues that the Department should have been

       14
          Careless recordkeeping is defined as “[f]ailure to sign the emission inspection test
report, missing or omitting required documentation supporting the issuance of a waiver as
required by § 177.281 (relating to issuance of waiver) or data entry errors proven to have no
influence on the outcome of the inspection.” 67 Pa. Code § 177.601.



                                             15
collaterally estopped from imposing the suspensions and fines outlined in the May
Notice because the Department failed to withdraw the April Notice prior to issuing
the May Notice, and the trial court sustained Northeast’s appeal from the April
Notice. The Department contends that collateral estoppel does not apply because
the April Notice contains an obvious error, it was withdrawn at the hearing before
the trial court, and no hearing on the merits of the appeal was ever held.
      The May Notice was issued in order to correct a mistake in the April Notice,
although, unfortunately, the May Notice contained no indication of this.15 The
April Notice notified Northeast that its “Certificate of Appointment as an Official
Safety Inspection Station” was being suspended because Northeast had improperly
“issued emission inspection sticker IM30579435” to the 2002 Suzuki. (R.R. 193a
(emphasis added).) The May Notice corrected this error by suspending Northeast’s
“Certificate of Appointment as an Official Emission Inspection Station. (Id. at
184a (emphasis added).) “[T]his court has held that an administrative agency may,
on its own motion, correct typographical, clerical and mechanical errors, as well as
undisputed factual errors and factual misconceptions, provided proper notice and
explanation is given.” Johnson v. Workers’ Comp. Appeal Bd. (Budd Co.), 693
A.2d 1015, 1017 (Pa. Cmwlth. 1997); Kellams v. Pub. Sch. Employes’ Ret. Bd.,
391 A.2d 1139, 1141 (Pa. Cmwlth. 1978), aff’d, 403 A.2d 1315 (Pa. 1979)
(“Plaintiffs’ argument that the Commonwealth is estopped from correcting its
mistake simply is not the law in Pennsylvania.”).
      Even had the second notice not been issued to correct an error, collateral
estoppel would not apply. This Court has defined collateral estoppel as follows:


      15
           The discussion of these two notices at the hearing can be found at R.R. at 14a-20a.



                                                16
      [C]ollateral estoppel bars a subsequent lawsuit where (1) an issue
      decided in a prior action is identical to one presented in a later action,
      (2) the prior action resulted in a final judgment on the merits, (3) the
      party against whom collateral estoppel is asserted was a party to the
      prior action, or is in privity with a party to the prior action, and (4),
      the party against whom collateral estoppel is asserted had a full and
      fair opportunity to litigate the issue in the prior action.

J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002). The
issue with regard to the first notice, the April Notice, was the validity of the
Department’s suspension of Northeast’s safety inspection Certificate of
Appointment, while the issue with regard to the second notice, the May Notice,
was the validity of the Department’s suspension of Northeast’s emission
inspection Certificate of Appointment. Thus, each appeal addressed distinct legal
issues. Because the issues being decided were not identical, collateral estoppel
does not apply to bar the Department from issuing, and the trial court from
deciding, the validity of the May Notice. Accordingly, the trial court did not err in
finding the May Notice valid.
      For the aforementioned reasons, we affirm the Order of the trial court.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         17
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,         :
Department of Transportation          :
                                      :
                v.                    :   No. 1409 C.D. 2015
                                      :
Northeast Community,                  :
                       Appellant      :


                                   ORDER


     NOW, August 16, 2017, the Order of the Court of Common Pleas of
Philadelphia County, entered in the above-captioned matter, is hereby
AFFIRMED.



                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
