         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Garfield Gayle t/d/b/a                :
Gar’s Automotive O.I.S. #EF48         :
                                      :
            v.                        : No. 1740 C.D. 2016
                                      : Submitted: October 6, 2017
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Motor Vehicles,             :
                  Appellant           :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                     FILED: November 1, 2017


            The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Motor Vehicles (PennDOT) appeals from an order of the Court of
Common Pleas of Delaware County (trial court) sustaining Garfield Gayle’s
(Gayle), t/d/b/a Gar’s Automotive O.I.S. #EF48 (Station), appeal from PennDOT
permanently suspending its certificate of appointment as an official emission
inspection station and imposing a $5,000.00 fine.
                                          I.
             On December 29, 2015, PennDOT issued an Order of Fine and
Suspension of Official Emission 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. [75 Pa.C.S. § 4724.] No vehicle emission
             inspections may be performed during the suspension.
             Pursuant to Departmental regulations, your Certificate of
             Appointment is suspended permanently and [a]
             $5,000.00 fine [is imposed] for furnish, lend, give, sell or
             receive a certificate of emission inspection without
             inspection (35 vehicles were issued emission stickers
             without conducting an emission test, sticker numbers
             IM50651553-IM50651588).

             The suspension(s) will run consecutively, for a total
             suspension of permanent and $5,000.00 fine. This
             suspension will run consecutively with any other
             suspension(s) imposed by the Department for any
             violation considered separately.


(Reproduced Record (R.R.) at 8a.) On January 28, 2016, the Station appealed the
Suspension Order and the trial court granted its request for a supersedeas during
the pendency of the appeal.


             At a de novo hearing before the trial court, David Wolpert (QAO
Wolpert), a PennDOT quality assurance officer, testified that he performed a
routine audit of the Station on November 6, 2014, during which he discovered 36
emissions stickers were missing. He determined that they were missing because



                                          2
Gayle, the owner and operator of the Station, was unable to produce the stickers
and could not show from the Station Use Sticker Report (Report) printed out from
the Station’s emissions analyzer that the stickers had been affixed to vehicles after
an emissions test. QAO Wolpert “explained” that the vehicle emissions test

             shows the emission stickers that [Gayle] has issued to
             several vehicles. And I compared these sticker numbers
             to the number of stickers that he has purchased through
             [PennDOT]. On the back side, the second side of this
             report[,] it goes through the, like I said, the number of
             stickers he has used and I actually physically wrote this
             on the report saying that he was missing these series of
             sticker numbers, IM50651553 to 588[,] which is a series
             of 36 stickers that were not in the analyzer and that he
             could not produce as being used.


(R.R. at 28a-29a.) QAO Wolpert went on to explain that if the Station properly
conducted its emissions tests, it would have logged each of the stickers into the
emissions analyzer when the vehicle was tested, and failure to input vehicle
information into the analyzer constitutes improper testing of a vehicle.


             The Report was entered into evidence and lists all issued stickers in
their numerical and chronological order, with IM50651552 being the last.
Conspicuously, the Report provides that the Station issued IM50651552 on
November 5, 2014 – the day before the routine audit.


             QAO Wolpert testified that after the routine audit, he and Gayle had a
conversation about the missing sticker reports, during which Gayle answered two
questionnaires. He claimed that during that time, Gayle admitted to fraudulently


                                          3
issuing and affixing stickers to vehicles without running proper emissions tests.
According to QAO Wolpert, Gayle also never stated that the analyzer was
malfunctioning.


             QAO Wolpert testified that PennDOT then held an informal hearing,
which both he and Gayle attended. At the hearing, Gayle testified about the
broken analyzer, which QAO Wolpert acknowledged. Notwithstanding, QAO
Wolpert testified that he never returned to the Station to test the analyzer.


             Following QAO Wolpert’s testimony, Gayle testified that he did not
admit to fraudulently issuing emissions stickers to vehicles, but rather, he told
QAO Wolpert that the emissions analyzer had been malfunctioning. For this
reason, he had the analyzer serviced for repair on November 3, 2014, which was
three days prior to the routine audit. He also renounced the answers provided in
both questionnaires because they were filled out by QAO Wolpert on his tablet and
Gayle signed them without ever being provided an opportunity to review them.
Gayle testified that following the audit, he printed out vehicle emission inspection
reports (VIRs) for five of the missing stickers, which he submitted into evidence.


             Significantly, Gayle submitted into evidence the VIR for IM50651554
– numerically, the second sticker alleged to be missing – which had a “Test
Date/Time: 11/06/2014 @ 13:06.” (R.R. at 116a.) Because the time-stamp for all
of the provided VIRs took place after the audit, there was confusion and
conflicting testimony as to whether those annotations reflected the time of the
emissions test or the time they were printed.



                                           4
            Notwithstanding Gayle introducing several VIRs, 31 of the stickers
remained unaccounted for according to PennDOT. To this, Gayle offered the
following explanation:

            Q: Now during the time that your machine was down
            would you tell Her Honor what some of the readings
            would be and what you would have to do with your
            customer?

            A: The customer would come in for an inspection. I
            would plug the machine up and the interface would say
            no communication. However, it will still run the test.
            And at times it would come -- it would time out and the
            customer -- it would give me the opportunity to input a
            number and sometimes it would just time out. . . .

                                       ***

            Q: So when Mr. Walker testified that when the wireless
            vehicle interface is malfunctioning that you may see
            other readings on the screen. What are some of those if
            you remember?

            A: Basically it will -- it won’t allow you to issue a
            sticker number. It will just go through the test and it will
            time out or it will -- you have to keep trying at getting it
            to communicate.

            Q: And once you did that did there come a point at some
            point where you issued the sticker?

            A: Yes, I did.

            Q: And what happened that caused you to issue the
            sticker?

            A: I mean I did not know whether the vehicle passed or
            not per the machine’s outcome or --

            Q: Right.


                                         5
             A: -- the whole outcome of the test. So you know, I just
             proceeded, you know, and continued working and, you
             know, keep the shop going.

             Q: Now when a car’s being inspected and there is an
             actual problem would you as a mechanic see and repair
             that problem even if the machine didn’t say that it had to
             be repaired on the emissions or on the inspections?

             A: Yes.

             Q: Right. So if something was wrong you would require
             the person to fix it?

             A: Yes.


(R.R. at 71a, 72a-73a.) On cross-examination, he further explained:

             Q: Now those 36 vehicles that you affixed the stickers to
             that would mean that they passed the emission test,
             correct?

             A: Yes.

             Q: So did you list them as passed in the system, the
             analyzer?

             A: The analyzer did not allow me to because it was
             malfunctioning.

             Q: So they did not pass the test?

             A: Not all of them.

             Q: But you still gave them stickers?

             A: Yes.


(R.R. at 80a.)

                                         6
             At the hearing’s conclusion, the trial court sustained the Station’s
appeal and rescinded the suspension. As pertinent, the trial court found Gayle’s
testimony credible about the intermittent malfunctioning and subsequent repair of
the Station’s emission analyzer. The trial court also found that “it was unsure as to
what happened with the [emission analyzer] based upon its review of the
[a]nalyzer’s reports before and after Mr. Wolpert inspected [it] on November 6,
2014.” (R.R. at 144a.) Noting that the last accounted-for sticker was issued a day
before the audit and that Gayle printed the VIR for the first missing ticket –
IM50651554 – at 1:06 p.m. on the same day as the audit, the trial court further
concluded:

             Due to the failure of adequate explanation as to how the
             Analyzer functions, the Trial Court is unable to
             understand how PennDOT can ask for a sticker report
             before it was used. Therefore, the Trial Court does not
             know how Mr. Gayle could produce these alleged
             missing sticker number reports for emissions that have
             yet to have been performed.

                                       ***

             As the Trial Court stated at the conclusion of the hearing
             in this matter, it is unclear what happened based upon the
             aforementioned evidence and lack thereof. The Trial
             Court cannot speculate to render a decision. It would be
             improper for the Trial Court to find against Mr. Gayle
             when PennDOT failed to meet its burden of proof.
             Therefore, sustaining the appeal was the only proper
             alternative.




                                         7
(R.R. at 142a, 143a.) This appeal by PennDOT followed.1


                                               II.
              On appeal, PennDOT contends that the trial court erred when
sustaining the Station’s objection to the Suspension Order because, regardless of
certain ambiguities contained in the record, Gayle admitted that he issued some of
the stickers without conducting a proper emissions inspection.


              Section 4724(a) of the Vehicle Code provides:

              (a) General rule.--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.



       1
         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).




                                               8
75 Pa.C.S. § 4724(a). 67 Pa. Code § 177.427(3) provides that a person may not
“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).
As pertinent, for recordkeeping to be “fraudulent,” it must be:

               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.


67 Pa. Code § 177.601 (emphases added). The penalty for a second offense of
furnishing, lending, giving, selling or receiving a certificate of emission inspection
without an inspection2 is a permanent suspension and a $5,000.00 fine. See 67 Pa.
Code § 177.602(a). When violations of the Vehicle Code and its regulations are
alleged, PennDOT bears the burden of proving those violations occurred by a
preponderance of the evidence. Tropeck v. Department of Transportation, Bureau
of Motor Vehicles, 847 A.2d 208, 212 (Pa. Cmwlth. 2004).



       2
         During the hearing, PennDOT entered into evidence a settlement agreement between
PennDOT and the Station, whereby the Station “consent[ed] to [PennDOT’s] assessment for
violations of furnish, lend, give, sell, or receive a certificate of emission inspection without
inspection and fraudulent record keeping . . . . I accept that [PennDOT] has imposed two 1-year
suspensions for these violations to run concurrently effective March 20th, 2013.” (R.R. at 94a-
95a.) While it was disputed whether that settlement constituted a first offense, the trial court did
not reach this issue because of the manner in which it disposed of the case.




                                                 9
              While Gayle plainly admitted at the de novo hearing that he issued
stickers without properly conducting an inspection, what complicates this matter is
that his admissions may not apply to the missing stickers in question. As the trial
court reasoned, this is because the last sticker listed in the Report occurred the day
before the audit, and the VIR for the second missing sticker demonstrates that its
inspection occurred after the audit. Because both the Report and VIRs indicate
that the Station issued emission stickers in numerical order, and because the
second-lowest sticker missing was issued after the audit, the trial court was left to
speculate “how Mr. Gayle could produce sticker reports for emission testing that
has not occurred.” (R.R. at 143a.) Simply put, while the Station may have been
culpable for something, that does not absolve PennDOT of its burden of proving
the specific violations alleged.


              Accordingly, because substantial evidence supports the trial court’s
determination that PennDOT failed to demonstrate by a preponderance of the
evidence that the missing stickers were affixed to vehicles without a proper
inspection, the trial court’s order is affirmed.3



                                           _________________________________
                                           DAN PELLEGRINI, Senior Judge



       3
           In its brief, PennDOT contends that the prior settlement agreement between PennDOT
and the Station proves that it committed a prior furnishing violation. However, PennDOT failed
to raise this issue in its Concise Statement of Errors Complained of on Appeal, notwithstanding
the trial court’s Order Pursuant to Pa. R.A.P. 1925(b). (See R.R. at 128a-130a.) Regardless, we
need not reach this issue given the manner in which we resolve this appeal.



                                              10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Garfield Gayle t/d/b/a               :
Gar’s Automotive O.I.S. #EF48        :
                                     :
             v.                      : No. 1740 C.D. 2016
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Motor Vehicles,            :
                  Appellant          :




                                  ORDER


             AND NOW, this 1st day of November, 2017, it is hereby ordered that
the order of the Court of Common Pleas of Delaware County filed on October 6,
2016, is affirmed.



                                     _________________________________
                                     DAN PELLEGRINI, Senior Judge
