           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,             :
Department of Transportation              :
                                          :
                   v.                     :   No. 1410 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 September 24,
2014 Decision of the Commonwealth of Pennsylvania, Department of
Transportation (Department), imposing a permanent suspension of Northeast’s
Certificate of Appointment as an Official Emission Inspection Station and a
$10,000.00 fine for second offenses of furnishing emission certificates of
inspection without conducting emission inspections and fraudulent recordkeeping.
Northeast contends the trial court erred in finding that the Department met its
burden of proof and that the offenses in question constitute second offenses.
Because we find no error in the trial court’s determinations, we affirm.
      Northeast is an automobile repair and vehicle inspection station located at
6101 Roosevelt Boulevard in Philadelphia.          On September 24, 2014, the
Department issued an Official Notice (September Notice), permanently suspending
Northeast’s Certificate of Appointment as an Official Emission Inspection Station
and imposing a fine of $10,000.00 for furnishing emission certificates of inspection
without conducting emission inspections and fraudulent recordkeeping, second
offenses. (R.R. at 184a.) Northeast appealed the suspension to the trial court.1
        The trial court held a hearing2 on this matter on June 17, 2015, where the
Department called Quality Assurance Officer Jay Hawkins (Hawkins) as a
witness.3 Hawkins is employed by Parsons Corporation, which contracts with the
Department to perform investigations and audits of safety and emission inspection
stations. Hawkins testified that he conducted an investigation of Northeast on June
4, 2014, after noticing some record anomalies from the emission tests being
conducted by Northeast.4           He explained that the vehicle information database
(VID)5 revealed that the same power control module identification number (PCM
ID)6 and parameter identification number (PID)7 combinations were showing up

        1
            Supersedeas was denied for the suspension imposed by the September Notice. (R.R. at
20a.)
        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 notices dated April 29, 2014 (April Notice), and May 29, 2014 (May Notice),
imposing two one-year suspensions of Northeast’s Certificate of Appointment as an Official
Emission Inspection Station and two $2,500.00 fines for first offenses of furnishing a certificate
of inspection without performing an inspection and fraudulent recordkeeping, which is before the
Court in Department of Transportation v. Northeast Community (Pa. Cmwlth., No. 1409 C.D.
2015, filed Aug. 16, 2017). The May Notice involved the first offenses of these violations.
        3
          Hawkins’s testimony is found at pages 141a-175a of the Reproduced Record.
        4
          Hawkins was there to examine “stickers, records, pools, [and] equipment” to determine
“whether it’s functioning properly,” as well as investigate the reported anomaly. (R.R. at 147a.)
        5
          The VID consists of “a population of every emissions test that is produced in the
Commonwealth of Pennsylvania from each and every stations analyzer.” (R.R. at 144a.)
        6
          The PCM is the internal vehicle computer that runs the vehicle’s emissions equipment.



                                                2
repeatedly in the tests performed by Northeast.8 He testified that, similar to a
vehicle identification number (VIN) number, each computer is different for each
vehicle. He added that the PCM ID and the PID together are similar to DNA. He
stated that Northeast has “access to their [sic] records from their analyzer” and that
both Parsons and the Department can also access the same VID records. (R.R. at
145a.)
         Hawkins began his investigation by having a mechanic9 test a 1999 Isuzu
Rodeo and a 2008 Toyota Scion in order to determine that the equipment was
functioning properly. The results for the Isuzu Rodeo revealed that the on-board
computer (OBD) VIN10 number did not automatically show up on the report.
Hawkins testified that this is normal because “[a]ll vehicles produced before 2005
were not required to produce a [OBD] VIN. All vehicles after 2005 were required
to produce a [OBD] VIN when hooked up to the emission analyzer.” (Id. at 148a.)
The OBD VIN was displayed automatically on the results for the Toyota Scion
because the vehicle was manufactured after 2005. These tests were not conducted
to determine the passing or failing of emission tests, but were intended to ensure
that the analyzer was working correctly. These tests revealed that Northeast’s
equipment was calibrated correctly, and the test was administered properly.



_____________________________
(continued…)
       7
         The PID count “is the actual number of that computer in each vehicle that controls the
emissions components.” (R.R. at 145a.)
       8
         Hawkins testified that both of these numbers “can go from zero to ninety-nine. . . . And
they can also have alpha digits mixed into it.” (R.R. at 159a.)
       9
         The mechanic was identified as Joselito Galarza, identification number 27-112-163.
       10
          The OBD VIN is “read from the onboard computer from the analyzer on 2005 and
newer vehicles.” (R.R. at 156a.)



                                               3
Hawkins completed his investigation by conducting a questionnaire and writing a
report on the infractions he thought had occurred.
      Hawkins testified that he reached his conclusions based on a monthly record
audit. This report revealed that between July 25, 2013, and April 11, 2014, 1,578
emission tests were administered by Northeast. Of those 1,578 tests, 562 were
performed on vehicles manufactured after 2005, the OBD VIN numbers were
blank, and each of the vehicles had PCM IDs of 10 and PID counts of 15.
Hawkins explained that, in order for all of these results to be the same, Northeast
must be testing the same vehicle repeatedly while manually inputting different VIN
numbers, a process known as “clean screening.” Hawkins testified that this is a
problem because “the vehicles that were obtaining these stickers were not tested
properly. They weren’t tested at all.” (Id. at 162a.) Thus, he stated that the
“[s]tickers were issued fraudulently.” (Id. at 174a.)
      Following cross-examination, in which he acknowledged that some vehicles
would have the same PCM ID and PID count numbers, Hawkins clarified on
redirect that those cars would be “sister related,” such as two BMWs. (Id. at 171a.)
If manufactured after 2005, he explained that the vehicles certainly would report
different OBD VINs when being tested. Hawkins stated that the combination of
absent OBD VINs and repeated PCM IDs and PID counts on the 562 emission
tests constituted the basis for his conclusion that these were fraudulent tests. He
further explained that, when he gave Northeast’s owner and the technicians
involved a questionnaire to respond to, the station owner and his technicians who




                                          4
performed the 562 tests11 claimed that they were being done correctly and that no
wrongdoing had occurred.
       The trial court credited Hawkins’s testimony. The trial court sustained the
Department’s September Notice, permanently suspending Northeast’s Certificate
of Appointment as an Official Emission Inspection Station and levying the fines.12
       Northeast now appeals the trial court’s Order, asserting that the trial court
erred in finding that: (1) the Department met its burden in proving that Northeast
furnished certificates of inspection without performing an inspection and
committed fraudulent recordkeeping; and (2) the violations contained in the
September Notice constitute second offenses where the Department failed to meet
its burden of proving that first offenses had occurred. These questions are before
this Court for review.13 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).



       11
          Of the technicians, Jose Tavares, operator # 25-869-048, performed 97 tests; Joselito
Galarza, operator # 27-112-163, performed 192 tests; and Jonas Amancio, operator # 26-663-
138, performed 273 tests.
       12
          The trial court issued a single opinion that addressed Northeast’s appeals of both the
May Notice and the September Notice.
       13
           “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)).



                                               5
                                         I
      Northeast contends that the trial court erred in finding that the Department
met its burden in proving that Northeast furnished a certificate of 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.




                                         6
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
A.2d 208, 212 (Pa. Cmwlth. 2004); Kot v. Dep’t of Transp., 562 A.2d 1019, 1020
(Pa. Cmwlth. 1989).
      Northeast argues that the trial court erred in crediting Hawkins’s testimony
because he initially stated that the PCM IDs and PID counts are the DNA of a
vehicle and provide a “unique” combination of numbers for each vehicle, (R.R. at
153a), but conceded on cross-examination that other vehicles could have the same
PCM ID and PID count combinations, including, as evidenced in Exhibit C-5,
vehicles in Northeast’s garage. Northeast argues that if the trial court intended to
credit all of Hawkins’s testimony, that testimony is inconsistent. Northeast further
asserts that there was no testimony concerning fraudulent recordkeeping and that
the relevant law refers to records kept by the station rather than records entered
into the VID. For these reasons, Northeast argues that the Department failed to
meet its burden of proof.
      The Department contends that Hawkins’s testimony is not contradictory
because he testified that the 562 test results were fraudulent based on the absence
of the OBD VIN for the vehicles manufactured after 2005, as well as the identical
PCM IDs and PID counts. Therefore, the Department argues that the trial court
could reasonably infer from Hawkins’s credited testimony that the violations
occurred. The Department asserts that it is not required to provide evidence that
excluded all other possible interpretations in order for the evidence to meet its
burden of proof.



                                          7
       In performing our review, we may examine the trial court’s findings to
determine if they are supported by substantial, competent evidence. Riley v. Dep’t
of Transp., Bureau of Driver Licensing, 946 A.2d 1115, 1119 n.1 (Pa. Cmwlth.
2008).14 “Substantial evidence is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion.” Keslosky v. Old Forge Civil
Serv. Comm’n, 73 A.3d 665, 671 (Pa. Cmwlth. 2013) (citing Agostino v. Twp. of
Collier, 968 A.2d 258, 269 (Pa. Cmwlth. 2009)). Questions regarding the weight
of the evidence and witness credibility rest “solely within the province of the trial
court.” Castagna v. Commonwealth, 831 A.2d 156, 160 n.4 (Pa. Cmwlth. 2003).
Accordingly, the trial court, as fact-finder, may “accept or reject any testimony in
whole or in part . . . .” DiCola v. Dep’t of Transp., Bureau of Driver Licensing,
694 A.2d 398, 400 (Pa. Cmwlth. 1997). Provided the evidence in the record is
“adequate to support the finding found by the trial court, as fact[-]finder, we are
precluded from overturning that finding and must affirm . . . .” Dep’t of Transp.,
Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 875 (Pa. 1989). This Court
must review all evidence in the record “in the light most favorable to the party that
prevailed before the trial court.” McDonald v. Dep’t of Transp., Bureau of Driver
Licensing, 708 A.2d 154, 156 (Pa. Cmwlth. 1998).


       14
            This Court has previously stated the following:

       It is irrelevant whether the record contains evidence to support findings other than
       those made by the fact[-]finder; the critical inquiry is whether there is evidence to
       support the findings actually made. Hoffmaster v. Workers’ Comp[.] Appeal
       B[d.] (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). If there
       is, an appellate court may not disturb the findings. Gen[.] Elec[.] Co[.] v.
       Workers’ Comp[.] Appeal B[d.] (Myers), . . . 849 A.2d 1166, 1171 ([Pa.] 2004).

Keslosky v. Old Forge Civil Serv. Comm’n, 73 A.3d 665, 671 (Pa. Cmwlth. 2013).



                                                  8
      The trial court specifically credited Hawkins’s testimony, and that testimony
is not contradictory. Rather, Hawkins explained that the matching PCM ID and
PID counts together with the absence of an OBD VIN on vehicles manufactured
after 2005 indicate that a vehicle other than the vehicle purportedly being tested
was used for the emission tests.      Hawkins testified that there were 562 tests
recorded in this manner. If the same vehicle was used for all 562 tests, then each
of the vehicles that received stickers for those tests were not actually tested. (R.R.
at 162a.)    Therefore, Northeast “[f]urnish[ed] . . . certificates of emission
inspection and approval [without performing] an emission inspection . . . .” 67 Pa.
Code § 177.427(3).
      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 practices 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).
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 credited testimony supports that Northeast entered the first vehicle’s
information into its computer and then performed these tests on a second vehicle,



                                          9
thereby uploading the results of these falsified tests into the VID, which maintains
a record of all tests performed in the Commonwealth. The VID is accessible by
both Northeast and the Department. Upon intentionally entering false information
to perform these tests, 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 §
177.601. Therefore, the Department met its burden in proving both that Northeast
furnished emission certificates of inspection without actually conducting
inspections and engaged in fraudulent recordkeeping.
       Northeast alternatively argues that the trial court was free to modify the
penalty imposed, and the charge should have been reduced to careless
recordkeeping, noting that the trial court itself used “careless” in its opinion.15
(Northeast’s Br. at 14 (citing Trial Ct. Op. at 9).) 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.


       15
          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.



                                             10
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. Notwithstanding the use of the word “careless” in
its opinion, the trial court found that Northeast “had committed the violation of
fraudulent recordkeeping . . . .” (Trial Ct. Op. at 5 (emphasis added).)
Accordingly, any argument that the trial court could change the penalty issued is
unpersuasive under these circumstances.

                                               II
       Northeast argues that the violations from the September Notice should not
constitute second offenses16 because the Department failed to meet its burden of
proof that first offenses for furnishing an emission certificate of inspection without
conducting an emission inspection and fraudulent recordkeeping had occurred.
However, this Court has affirmed the order of the trial court determining that the
Department met its burden of proof related to its May 29, 2014 Notice suspending
Northeast’s Certificate of Appointment as an Official Emission Inspection Station
and imposing fines for these violations in Department of Transportation v.
Northeast Community (Pa. Cmwlth., No. 1409 C.D. 2015, filed Aug. 16, 2017),
which constitutes its first offenses of the violations; therefore, the Department has
met its burden. Accordingly, the trial court did not err in finding that the violations
referenced in the September Notice both constitute second offenses.




       16
          Second offenses for both furnishing a certificate of inspection without performing an
actual inspection and fraudulent recordkeeping both carry a penalty of a permanent suspension
and a $5,000.00 fine. 67 Pa. Code § 177.602(ii)-(iii). First offenses for both violations carry a
penalty of a one-year suspension and a $2,500.00 fine. Id.



                                               11
For the aforementioned reasons, we affirm the Order of the trial court.




                                _____________________________________
                                RENÉE COHN JUBELIRER, Judge




                                  12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,         :
Department of Transportation          :
                                      :
                v.                    :   No. 1410 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
