            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Apache's Auto Clinic,                       :
                                            :
                              Appellant     :
                                            :
                       v.                   : No. 1172 C.D. 2016
                                            : Submitted: April 21, 2017
Commonwealth of Pennsylvania,               :
Department of Transportation,               :
Bureau of Motor Vehicles                    :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                   FILED: July 24, 2017



               Apache’s Auto Clinic (Appellant) appeals from the June 28, 2016
order1 of the Court of Common Pleas of Philadelphia County (trial court) that
denied in part Appellant’s statutory appeal, reinstating two one-year suspensions of
Appellant’s Certificate of Appointment (Certificate) as an official emission
inspection station imposed by the Department of Transportation, Bureau of Motor
Vehicles (Department), pursuant to Section 4724(a) of the Vehicle Code (Code),




      1
          The order was dated June 27, 2016, but was entered June 28, 2016.
75 Pa. C.S. § 4724(a).2              The trial court modified the suspensions to run
concurrently.
                Appellant is an auto repair shop located in Philadelphia that is
certified to perform required state emissions inspections. By official notice dated
June 4, 2015, the Department notified Appellant that it was suspending Appellant’s
Certificate for one year effective immediately and imposing a $2,500.00 fine for
furnishing emission certificates of inspection without conducting emission
inspections (furnishing)3 and imposing a separate one-year suspension of its
Certificate and an additional $2,500.00 fine for fraudulent recordkeeping.4 The
suspensions were to run consecutively.
                On June 9, 2015, Appellant timely filed a statutory appeal to the trial
court, which held a hearing on June 8, 2016. In support of the suspension and
fines, the Department presented the testimony of Georgeann Jordan, a supervisor at
Parsons, a subcontractor with the Department which oversees the Department’s
safety and emissions program in southeastern Pennsylvania. Reginald Corbin,


        2
          Section 4724(a) of the Code provides that “[t]he department shall supervise and inspect
official inspection stations and may suspend the certificate of appointment issued to a 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.” 75 Pa. C.S.
§ 4724(a).

        3
         The penalty for a first offense of furnishing by an emission inspection station is a one-
year suspension and $2,500.00 fine. 67 Pa. Code §177.602(a)(1)(ii).

        4
           The penalty for a first offense of fraudulent recordkeeping by an emission inspection
station is a one-year suspension and $2,500.00 fine. 67 Pa. Code §177.602(a)(1)(iii). Fraudulent
recordkeeping is defined, in pertinent part, 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).



                                                   2
Appellant’s owner, and Charles Davis, a former emissions inspection mechanic for
Appellant, testified on behalf of Appellant.
              Jordan testified that she performed a clean-screening investigation of
Appellant’s records in the vehicle identification database (VID) covering a period
of approximately six months in 2014 and discovered some anomalies. She testified
that she tasked quality assurance officer Barnell Neville to go to Appellant’s
station, inform the owner of the violations, retrieve records, and interview the
owner and inspectors.        Jordan stated that based on her investigation and the
information she received from Officer Neville, she concluded that a donor vehicle
was being used to perform the anomalous inspections. Notes of Testimony (N.T.),
06/08/2016, at 7-14.
              Jordan then testified about the process of her investigation and
explained how she identified the anomalies in Appellant’s records in the VID. She
first noted that each of the vehicles with model years 2005 or newer should have
had an on-board vehicle identification number (OBD VIN) that was automatically
populated in the VID if the inspector had linked the vehicle in question to the
station’s analyzer via a data transfer cable. That column of information in Exhibit
C-25 was blank. Additionally, Jordan stated that vehicles newer than 2005, almost
without fail, have an Evaporative Emissions System (EVAP). She testified that the
zero present for each vehicle in the Exhibit C-2 column marked EVAP indicated
that the system does not exist in the vehicle linked to the analyzer for the
inspection. N.T. at 15-24; Reproduced Record (R.R.) at 109a-10a.


       5
         The Department’s Exhibit C-2 is a list of 37 vehicles with model years 2005 or newer
that Jordan compiled from Appellant’s records in the VID over the course of her investigation,
which was entered into evidence without objection. R.R. at 109a-10a.


                                              3
              Jordan also explained that the designation PCMID in the spreadsheet
refers to the car’s computer. She testified that there are about 40 different PCMIDs
and their designations vary – sometimes they are identified by letter, sometimes by
number. Exhibit C-2 listed the PCMID designation for all the vehicles in question
as “D.” N.T. at 25; R.R. at 109a-10a.
              Jordan testified that the number in the PIT column of the spreadsheet
is a count of the number of outlets on a vehicle that can be read by the computer.
She explained that newer and more sophisticated vehicles generally have higher
PIT counts, though not always. Exhibit C-2 showed that all of the vehicles in
question had a PIT count of 16. Finally, Jordan testified that an exhaust gas
recirculation (EGR) system would be present in some vehicles and not in others;
however, Exhibit C-2 showed that no EGR existed in any of the inspected vehicles
in question.      Thus, she testified, each vehicle effectively had the same
“fingerprint.” N.T. at 25-27; R.R. at 109a-10a.
              Jordan testified that she saw the same fingerprint in vehicles listed in
Exhibit C-3,6 though a vehicle manufactured in 2004 or before would not
necessarily have an OBD VIN.            Jordan’s investigation of Appellant’s records
showed that a total of 204 emissions inspections were completed during the
approximately six months of data she reviewed and approximately 130 vehicles
showed the same fingerprint. Jordan testified that she determined the inspections




       6
         The Department’s Exhibit C-3 is a list of 93 vehicles with model years 2004 or older
that Jordan compiled from Appellant’s records in the VID over the course of her investigation,
which was entered into evidence without objection. R.R. at 111a-16a.



                                              4
of the vehicles listed in Exhibit C-4,7 performed during the same period, to be
legitimate. N.T. at 37-40; R.R. at 109a-19a.
              Jordan testified that she then searched through VID records from
different emissions inspection stations to determine what vehicles would likely
generate the same fingerprint. She testified that she concluded that a 1996 or 1997
Honda Civic or CRV was being used as a donor vehicle. Jordan stated that
following a hearing at which Corbin and Davis were present, her impression was
that a 1997 Honda had, in fact, been used as a donor car. N.T. at 27-37.
              Following Jordan’s testimony, Appellant’s counsel moved for a
nonsuit alleging that the Department failed to meet its burden. The trial court
denied Appellant’s motion. N.T. at 57-59.
              Corbin testified that he neither had knowledge of fraudulent
inspections being performed at his shop nor did he give permission for any
fraudulent inspection to be performed. He stated that upon learning of possible
fraudulent inspections, he fired all of the inspectors under his employment. He
testified that he followed state law when it came to performing state inspections,
though he was not always on-site to supervise his employee inspectors. Corbin
averred that after Officer Neville left the shop, he conducted a shop meeting where
Davis admitted to using a donor car to complete inspections. Corbin stated that
Davis was promptly fired after his admission. N.T. at 61-69.
              Davis then testified that he did use a donor car to perform emissions
inspections. He stated that he did so without Corbin’s knowledge or consent and

       7
         The Department’s Exhibit C-4 is a list of 74 vehicles from both categories included in
Exhibits C-2 and C-3 – model years 2004 and older and model years 2005 and newer – that
Jordan compiled from Appellant’s records in the VID over the course of her investigation, which
was entered into evidence without objection. R.R. at 117a-19a.


                                              5
only used a donor car when Corbin was off-site. Davis testified that he told Corbin
about using the donor car for the first time at the shop meeting that followed
Officer Neville’s investigation. He admitted that he used a friend’s 1997 Honda
Civic to complete his emissions inspections when he was the only one in the shop.
Davis further admitted that when he performed the inspections with the donor car,
he used both his own inspector credentials and the credentials of other inspectors in
the shop, including Corbin’s. N.T. at 73-78.
               In its June 28, 2016 order, the trial court denied in part Appellant’s
statutory appeal.      The trial court modified the suspensions imposed by the
Department to run concurrently rather than consecutively.                   In its subsequent
opinion, the trial court specifically credited Davis’s testimony that he used a donor
car to falsify inspections records. The trial court also credited Corbin’s testimony
that he did not know about the fraudulent inspections and took remedial measures
immediately after learning of Davis’s wrongdoing. Nevertheless, the trial court
determined that Davis had committed the violations of furnishing and fraudulent
recordkeeping and that Appellant was liable for his actions. 8
               Appellant’s appeal to this Court followed.9 Appellant first argues that
the trial court erred in denying its motion for nonsuit and finding that the


       8
         The owner of an emissions inspection station is responsible for acts conducted by his
employees, with or without his knowledge, relating to the inspections conducted within the scope
of an employee’s employment. Strickland v. Department of Transportation, 574 A.2d 110, 113
(Pa. Cmwlth. 1990). Conduct considered within the “scope of employment must: (1) be of the
kind the actor was employed to perform; (2) occur substantially within the authorized time and
space limits; and (3) be actuated, at least in part, by a purpose to serve the master, though the
master need not specifically authorize the acts. Id.

       9
         Our scope of review in inspection certificate suspension cases is limited to determining
whether the trial court committed an error of law or whether its findings of fact are supported by
(Footnote continued on next page…)
                                                6
Department satisfied its prima facie burden of proof that Appellant engaged in
furnishing and fraudulent recordkeeping under the Code. We disagree.
              The Department has the burden of proving, by a preponderance of the
evidence, any alleged violations of the Code and the regulations interpreting the
same.    Firestone Tire and Service Center, O.I.S. No. 798 v. Department of
Transportation, 871 A.2d 863, 867 (Pa. Cmwlth. 2005).                “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).    The Department does not need to present “concrete” evidence of a
violation; the Department need only show that it is more likely than not that the
alleged violation occurred. Tropek v. Department of Transportation, Bureau of
Motor Vehicles, 847 A.2d 208, 212 (Pa. Cmwlth. 2004).
              The trial court is the ultimate finder of fact, and determinations as to
the credibility of witnesses and the weight assigned to the evidence are solely
within the purview of its authority. Reinhart v. Department of Transportation,
Bureau of Driver Licensing, 954 A.2d 761, 765, 766 (Pa. Cmwlth. 2008). Jordan’s
testimony outlined anomalies in Appellant’s VID information that indicated that
Appellant was using a donor car, which she was able to correctly identify as a 1997
Honda Civic.      Jordan testified that the report of the investigator she sent to
examine Appellant presented no rebuttal of her conclusions. After careful review

(continued…)

substantial evidence. Snyder v. Department of Transportation, Bureau of Motor Vehicles, 970
A.2d 523, 526-27 (Pa. Cmwlth. 2009).


                                            7
of the record, we conclude that Jordan’s testimony, together with the consistent
documentation reporting the anomalies, is sufficiently substantial so as to support
the findings of the trial court. More importantly, Davis’s admission that he did, in
fact, use a donor car provides direct evidence of the alleged violations that
corroborates Jordan’s expert opinion testimony.                In sum, there is sufficient
competent evidence to support the Department’s determination that Appellant
committed the alleged violations of furnishing and fraudulent recordkeeping.
               Appellant next argues that the trial court erred in failing to find
Appellant culpable of the lesser included offenses of improper inspection10 and
improper recordkeeping.11 We disagree.
               The Department’s regulations contain no definition of “improper” or
“fraudulent.” However, this Court previously concluded that improper acts do not
include the elements of fraud or deceit, whereas such elements are essential to a
charge of fraudulent conduct. Firestone, 871 A.2d at 867; Fiore Auto Service v.
Department of Transportation, Bureau of Motor Vehicles, 735 A.2d 734, 737 (Pa.
Cmwlth. 1998); Department of Transportation, Bureau of Driver Licensing v.
Midas Muffler Shop, 529 A.2d 91, 93 (Pa. Cmwlth. 1987). Declarations, artifices,
or practices designed to mislead anyone examining the record into believing that a
proper inspection was done and that the record is facially correct are inherently
deceitful. Midas Muffler, 529 A.2d at 93. Determining whether particular factual

       10
          Improper inspection is defined as a “failure to perform an emission inspection as
required by [the Code] or any other deviation in the testing procedure provided that it can be
demonstrated that the outcome of the inspection would have been the same if the inspection had
been performed.” 67 Pa. Code §177.601.

       11
           Improper recordkeeping is defined as “[a] recordkeeping entry that is not in accordance
with fact, truth or required procedure.” 67 Pa. Code §177.601.


                                                8
circumstances constitute fraud is “largely an issue of fact” to be determined by the
trial court. Department of Transportation v. Sortino, 462 A.2d 925, 927 (Pa.
Cmwlth. 1983).
             It is clear from the record that Davis’s actions of using a donor car to
complete inspections were intended to mislead any person, whether the
Department or Appellant, into thinking that he completed proper inspections of the
vehicles in question when he did not. Appellant is strictly liable for Davis’s
actions, which were made within the scope of his employment. Strickland. Again,
we conclude that the trial court properly found that Appellant committed the
violations of furnishing and fraudulent recordkeeping.
             Finally, Appellant asserts that the trial court erred in failing to
consider the imposition of points in lieu of suspension.           The Department’s
regulation at 67 Pa. Code §177.602(b) provides that if the station owner had no
knowledge of the violation, the Department may permit the station owner to
consent to the acceptance of a point assessment in lieu of suspension. In this case,
the trial court credited Davis’s and Corbin’s testimony that Corbin had no
knowledge that Davis was using a donor car for the inspections in question, that
Davis performed these inspections when Corbin was not on-site, and that Corbin in
no way authorized the use of a donor car for the inspections. Accordingly, the
Department’s regulation at 67 Pa. Code §177.602(b) is applicable in this case.
             We have previously interpreted that regulation as requiring the
Department to at least consider the use of the points system and provide evidence
of its consideration in all inspection cases.         McCarthy v. Department of
Transportation, 7 A.3d 346, 353 (Pa. Cmwlth. 2010). The Department stipulates
that the record is silent as to its consideration of points in this matter and requests


                                          9
that this Court vacate and remand to the trial court to consider whether the
Department considered imposing points.
            For the above reasons, we affirm the trial court’s order in part and
vacate and remand to the trial court for further proceedings in accordance with the
foregoing opinion.




                                      MICHAEL H. WOJCIK, Judge




                                        10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Apache's Auto Clinic,                    :
                                         :
                         Appellant       :
                                         :
                   v.                    : No. 1172 C.D. 2016
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Motor Vehicles                 :

                                     ORDER


            AND NOW, this 24th day of July, 2017, that portion of the order of
the Court of Common Pleas of Philadelphia County (trial court), entered June 28,
2016, reinstating the suspension is VACATED and this matter is remanded to the
trial court for proceedings consistent with this opinion; the trial court’s order is
AFFIRMED in all other respects.
            Jurisdiction relinquished.



                                         __________________________________
                                         MICHAEL H. WOJCIK, Judge
