37 Pa. Commw. 614 | Pa. Commw. Ct. | 1978
Opinion by
This is an appeal by Charles E. Walker, Appellant, trading as Walker Pontiac, Inc., from the order of the court of common pleas which affirmed the three-month suspension by the Department of Transportation (PennDOT) of his privileges under a Certificate of Appointment of Official Inspection Station. We affirm.
Pursuant to an investigation by a Pennsylvania State Police Trooper in September, 1976, PennDOT charged Appellant with (1) failure to punch inspection stickers with his official inspection station number immediately upon receipt; (2) failure to display a commercial vehicle lighting chart; and (3) improper record keeping. Appellant requested a departmental hearing but was unable to attend due to illness, and the hearing proceeded ex parte. On December 17, 1976, PennDOT suspended his Certificate of Appointment for three months under the provisions of Sections 819 and 834 of The Vehicle Code (Code), Act of April 29, 1959, P.L. 58, as amended, 75 P.S. §§819, 834.
Appellant contends that the lower court erred in dismissing his appeal because (1) there was no competent evidence to support a dismissal; (2) because the offense of improper record keeping (the violation which the court found substantiated the dismissal) was not a safety violation; and (3) because the licensee did not authorize or know of his employee’s record keeping errors. We find no merit in any of the contentions.
Our review of lower court adjudications in inspection certificate suspension cases is limited to a determination of whether there has been an error of law or whether the findings of the lower court can be supported by competent evidence. Generally, the trial court’s order will not be disturbed absent a showing of manifest abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. Cormas, 32 Pa. Commonwealth Ct. 1, 377 A.2d 1048 (1977). We have reviewed the record and find competent evidence to support the suspension in the testimony of the investigating trooper.
Nor did the court err in basing its affirmance solely upon its finding of improper record keeping. Section 819(b) of the Code permitted the Secretary of Transportation to suspend a certificate if he found “that the business of an official inspection station in connection with the corrections, adjustments, repairs or inspection of motor vehicles ... is being improperly conducted,” and did not limit his power to suspend to cases involving conduct constituting a direct
Furthermore, the court did not abuse its discretion in ruling that Appellant had not brought himself within the proviso of Section 819(b) and case law interpreting it which protects licensees from suspension due to violations committed by employees without the licensee’s authorization, knowledge or consent. Although Appellant denied any knowledge of improper record keeping, the trooper’s testimony indicates that he had been given repeated warnings regarding prior defects in the record keeping which had been discovered in prior investigations, and therefore had reason to know of the illegal conduct. Constructive knowledge of this nature is sufficient to charge the violation to the licensee and prevent him from successfully resorting to the defense contained in the proviso. Department of Transportation, Bureau of Traffic Safety v. Stafford, 28 Pa. Commonwealth Ct. 157, 367 A.2d 816 (1977).
Finally, we reject Appellant’s contention that the suspension was improper because it followed an ex parte hearing and that the court should have remanded the case to PennDOT for further proceedings. Any procedural defect in the hearing examiner’s failure to provide Appellant an opportunity to be heard was cured when he availed himself of his right to, and did in fact participate in a de novo judicial review. Commonwealth v. Grindlinger, 7 Pa. Commonwealth Ct. 347, 300 A.2d 95 (1973).
Accordingly, we
Order
And Now, this 18th day of September, 1978, the order of the Court of Common Pleas of Allegheny
Since repealed by the Act of June 17, 1976, 75 Pa. C.S. §101 et seq.
Appellant has already served ten days’ suspension during tlie periods when he was awaiting reinstatement prior to the granting of supersedeas orders pending appeals to the court below and to us.