            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
