R. Fulton v. DOT ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Fulton, :
Petitioner :
:
v. : No. 672 C.D. 2019
: Submitted: June 5, 2020
Department of Transportation, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: February 19, 2021
Robert Fulton (Fulton), pro se, petitions for review of an order of the
Department of Transportation (Department), (dated April 1, 2019, and issued
April 2, 2019), which denied exceptions and adopted the proposed report of Hearing
Officer Michael H. Kline (Hearing Officer), dated June 15, 2018 (Report).2 The
Report affirmed and reinstated a decision by the Department’s Bureau of Motor
Vehicles (Bureau) to suspend Fulton as a certified emission inspector pursuant to
Section 4726(b) of the Vehicle Code, 75 Pa. C.S. § 4726(b), permanently for
furnishing 3,086 certificates of emission inspection without inspecting the vehicles
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
2
Executive Deputy Secretary of Transportation Leo D. Bagley (Secretary) issued the
Department’s order.
and for fraudulent recordkeeping. For the reasons discussed below, we affirm the
Department’s order.
I. BACKGROUND
Fulton operated a vehicle inspection station at 1324 East Washington Lane in
Philadelphia. (Reproduced Record (R.R.) at 6a.) Fulton was the only certified
vehicle emission inspector at the station.3 (R.R. at 144a.) The Bureau notified
Fulton on November 10, 2014, that it intended to permanently suspend his inspector
certification.4 (R.R. at 6a.) The Bureau also notified Fulton of his right to request
an evidentiary hearing to challenge the permanent suspension. (Id.) Fulton, through
his attorney, requested a hearing on November 20, 2014. (R.R. at 8a.) The Hearing
Officer, after a series of continuances and Fulton’s loss of an attorney to represent
him, held a hearing on February 8, 2018. (R.R. at 84a.)
A. Bureau’s Case
The Bureau called Georgeann Jordan (Jordan) as its only witness at the
hearing. (R.R. at 119a-20a.) Jordan testified that she was the Regional Manager for
Parsons Corporation (Parsons), a company that subcontracts with the Department to
audit and investigate inspection stations in a seven-county area near Philadelphia.
(Id.) Jordan testified that, in her prior capacity as a Parsons’s Audit Manager, she
3
A “certified emission inspector” is “a person who holds a valid certification card issued
by the Bureau which certifies that the person is qualified and has passed the requirements to
perform emission inspections on subject vehicles in an appointed emission inspection station.”
67 Pa. Code § 177.3. For purposes of convenience, we will refer to a “certified emission inspector”
as simply an “inspector” throughout this opinion.
4
We note that on February 6, 2014, the Bureau previously cited Fulton for the same
violations at issue in the present proceeding. Those citations resulted in the suspension of his
certification as an inspector for one year for furnishing certificates of emission inspection without
conducting the inspections and for one year for engaging in fraudulent recordkeeping concerning
emission tests. The suspensions ran consecutively for a total suspension of two years ending on
January 6, 2016. (R.R. at 156a-57a, 218a, 221a.)
2
was involved in the investigation of Fulton’s emission station in 2013 and 2014.
(Id.) Jordan testified that she and another Parsons’s employee suspected that Fulton
conducted improper emission inspections at his station. (R.R. at 121a.)
Jordan first explained how Fulton should conduct emission inspections.
(R.R. at 123a.) Jordan testified that Fulton “would be expected to get the registration
information on the vehicle[] and test the car according to procedure on a certified
OBD-II machine.” (Id.) An OBD-II machine, also called an analyzer, is an emission
testing machine that the Department approves for emission inspections.5 (Id.)
The analyzer at issue here is “a two by four by four foot high box which contains a
Datalink connector, a bar scanner, a computer, a monitor and a keyboard.” (Id.)
Jordan testified that, as part of the emission inspection, Fulton should
check[] to see that the registration for the vehicle is correct. And that’s
[sic] the vehicle that he’s testing.
He then goes into the [analyzer] using his license, which will permit
him to go into the [analyzer], and he will begin an emission[]
inspection. He will be prompted through the screens, and he will enter
the information for the vehicle to be tested.
Then he will test the gas cap, do the test on the gas cap. And then he
will plug the . . . connector into the vehicle that is being tested. And
the information is pulled out from that.
If the vehicle passes [the] emission[] [inspection], he will be advised
so. He will then enter in the sticker number, put the sticker on the
vehicle and the test is completed. Also, there’s a vehicle inspection
report that’s printed out on each test. He’s also required to give a copy
of that vehicle inspection report to the consumer.
5
Throughout this opinion, for purposes of simplicity, we refer to the OBD-II machine used
by Fulton as an analyzer.
3
(R.R. at 124a.) Jordan testified that the records from a station’s emission inspections
are uploaded into the Department’s vehicle inspection information database (VIID).6
(R.R. at 121a.)
Jordan testified that, using the VIID, she reviewed Fulton’s emission
inspection records for the period of January 2013 to September 2013.
(R.R. at 121a-23a.) After downloading the data from the VIID, she created three
spreadsheets to analyze the data, sorting it into: (1) Legitimate Tests; (2) Fraudulent
Vehicle Emission Tests; and (3) Spot Checks.7 (R.R. at 122a-23a.) Jordan testified
that the data indicated that Fulton utilized a “clean screening” process when
conducting emission inspections. (R.R. at 132a-33a.) A clean screening process is
when an inspector uses a vehicle, known as the donor or substitute vehicle, on
multiple emission tests while a different vehicle’s information is used for the official
records. (R.R. at 133a.) According to Jordan, Fulton’s records indicated that he
clean screened vehicles and gave “passed” emission test stickers to customers even
though the vehicles were not properly tested. (Id.)
6
The VIID is “[t]he 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.
7
We note that at the February 8, 2018 hearing, the Legitimate Tests spreadsheet was
identified as Exhibit C-3. (R.R. at 223a-24a.) The Fraudulent Vehicle Emission Tests spreadsheet
was identified as Exhibit C-4. (R.R. at 225a-324a.) The Spot Check spreadsheet was identified
as Exhibit C-5. (R.R. at 325a-27a.) The Hearing Officer, without objection from Fulton, admitted
all three exhibits into evidence. (R.R. at 144a-46a.)
4
Jordan testified that the first indicator that Fulton used a clean screening
process was an “extreme” absence of an OBD8 VIN9 for the vehicles he tested that
were model year 2005 or newer. (R.R. at 125a, 132a.) An inspector must provide
certain vehicle information at the time of the emission inspection that can be input
into the analyzer in one of three ways: (1) manually typing everything; (2) using a
bar code reader; or (3) if the car was previously inspected, using the inspection report
already on the computer system. (R.R. at 127a.) During the emission inspection,
vehicles that are model year 2005 or newer are compatible with the OBD Datalink10
connecter that automatically draws the VIN into the analyzer. (R.R. at 128a.) Jordan
explained that the absence of OBD VINs indicated that the OBD Datalink connector
was not attached to the tested vehicles for the emission inspections. (R.R. at 132a.)
Jordan testified that the second indicator of a clean screening process involved
the parameter identification number (PID) count that represents the number of
portals that can be read on the vehicle’s computer. (R.R. at 129a.) There are
ninety-nine potential numbers that can be read as a PID, and, generally, the PID
count is a different number for different vehicle models. (R.R. at 129a-30a.) Jordan
explained that newer vehicles tend to have a higher PID count because they are more
8
OBD, or Onboard Diagnostics, is “[a] system of vehicle component and condition
monitors controlled by a central, onboard computer designed and programmed, among other
things, to signal the motorist when conditions exist which could lead to (or which has already
produced) a component or system failure.” 67 Pa. Code § 177.3.
9
The VIN is “[a] combination of numbers or letters, or both, which the manufacturer
assigns to a vehicle for identification purposes, or, if no VIN is present on the vehicle, which the
Department may assign for identification purposes.” 67 Pa. Code § 177.3.
10
The OBD Data Link Connector (DLC) is “[t]he interface which allows connection of the
vehicle’s OBD computer to an OBD scanner. Connecting an OBD scanner to the DLC allows
[inspection/maintenance] inspectors and vehicle repair technicians to read the readiness status of
the vehicle’s various onboard monitors and to read any diagnostic trouble codes recorded by the
OBD computer.” 67 Pa. Code § 177.3.
5
“technically[]sophisticated.” (R.R. at 130a.) The vehicles Fulton tested had an
identical PID count of twenty rather than a variety of numbers. (R.R. at 131a.)
Jordan testified that the third indicator of a clean screening process concerned
the test vehicles’ power control module identification number (PCM ID) that is an
identifier of the vehicle’s internal computer. (R.R. at 130a.) There are about forty
different labels of PCM IDs that are not specific to any make or model of vehicle,
but some vehicles could share the same PCM ID if they came from the same
manufacturer. (Id.) The vehicles Fulton tested had an identical PCM ID of ten,
which is an indicator that the same vehicle was being used for multiple tests as part
of a clean screening process. (R.R. at 131a.)
Jordan testified that the fourth indicator of a clean screening process related
to the test vehicle emission parameters. (R.R. at 130a.) During a vehicle emission
test, eight emission parameters are reviewed. (Id.) Each of the parameters are
identified by either a zero, one, or two. (R.R. at 130a-31a.) “Zero” indicates that
the function does not exist, “one” means that the function exists and is ready for
testing, and “two” means it is an unset monitor (i.e., the parameter exists but is not
ready for testing). (R.R. at 131a.) Jordan testified that generally, the combination
of numbers for these parameters will be different for each vehicle tested. (Id.)
Jordan testified that the vehicles Fulton tested had the same combination of numbers
for these eight emission parameters. (Id.)
Jordan testified that she investigated whether the analyzer could have
malfunctioned. (R.R. at 139a.) She spoke to repair technicians for every
manufacturer of Department-approved analyzers and showed the data to people who
wrote analyzer software in an effort to obtain opinions about whether an analyzer
malfunction could produce the same results. (R.R. at 139a-40a.) Jordan testified
6
that she ultimately concluded that there was not a good explanation that Fulton’s
data was due to an analyzer malfunction or software error. (Id.)
Jordan testified that she and another Parsons’s employee met with Fulton at
his station in January 2014. (R.R. at 140a.) She showed Fulton her investigation
information and asked him to explain the anomalies. (R.R. at 141a.) Fulton told her
that his analyzer was malfunctioning, that he contacted a technician to fix it, and
when the technician came to the station, the technician informed him that it was
“going to be a couple of thousand dollars to fix the machine,” so he did not have the
analyzer repaired. (R.R. at 141a-42a.) Jordan testified that the analyzer appeared to
be functioning when she was at the station. (R.R. at 142a.) Fulton neither had any
evidence of repair receipts nor did he provide her with any indication that anyone
repaired the analyzer. (R.R. at 143a.) She called the analyzer’s manufacturer and
inquired when Fulton’s analyzer was last repaired. (Id.) Jordan testified that the
company informed her that the last recorded repair on Fulton’s analyzer was
in 2007 or 2008. (Id.)
Jordan testified that, at the January 2014 visit to Fulton’s station, she asked
Fulton if he would test a vehicle that was right outside the door of his station because,
“[g]enerally, if there is a donor vehicle it doesn’t go far.” (R.R. at 142a.) Fulton
had an older Ford vehicle in the lot, but, when she asked him to test it using the
analyzer, he told her that the vehicle had transmission problems and could not be
tested. (Id.) She informed Fulton that, if his machine was malfunctioning at any
time, she would come back to his station with five vehicles and would test them to
see whether his analyzer was working properly. (R.R. at 142a-43a.) Jordan testified
that Fulton never called her about testing the five vehicles. (R.R. at 143a.)
The Bureau’s attorney asked Jordan what an inspector is supposed to do when the
7
analyzer is broken, and she replied “[i]f the [analyzer] is broken you can’t use it for
a[n] [emission] test.” (R.R. at 144a.) The Bureau concluded its direct examination
of Jordan and entered numerous documents related to her testimony into evidence.
(R.R. at 144a-46a.)
Fulton, during his cross-examination of Jordan, asked if she had received
messages on her answering machine from him. (R.R. at 152a.) Jordan admitted that
she had. (Id.) The Hearing Officer asked Jordan whether the inspection sticker
number is entered manually into the analyzer or is it something that is automatically
done. (R.R. at 153a.) Jordan replied that the inspection stickers are ordered by the
station, registered to the station, and upon completion of a successful test, the
analyzer will prompt the inspector to input the next sticker number that he wishes to
issue. (Id.) Jordan added that the information would be electronically included in
the VIID, but if there was an aborted test (e.g., the inspection began but was not
concluded) the data would not be sent to the VIID. (Id.) The Hearing Officer asked
Jordan a few clarification questions and then provided the Bureau’s attorney the
opportunity to ask redirect questions to Jordan. (R.R. at 156a-59a.)
Jordan, on redirect, testified that Fulton had “left a couple of . . . messages
on [her] answering machine,” but she “did not call him back.” (R.R. at 160a.)
Jordan testified that she could not recall why she did not return Fulton’s calls. (Id.)
Fulton, on recross-examination, asked Jordan whether another Parsons’s employee
tested his Ford vehicle with an analyzer when she was at his station in January 2014.
(R.R. at 161a.) Jordan replied that she sent the employee out to the old Ford to get
a VIN number, but he did not have an analyzer machine to test the vehicle. (Id.)
Fulton asked Jordan again why she did not return his answering machine messages,
8
and she reaffirmed that she could not recall why she did not return his messages.
(R.R. at 162a-63a.) The Bureau concluded its case. (R.R. at 165a.)
B. Fulton’s Case
Fulton testified on his own behalf that he had “a problem with the analyzer.”
(R.R. at 165a.) Fulton offered into the record Exhibit “A-1,” which included: (1) a
letter from Fulton to the Hearing Officer, dated February 6, 2018, listing his
arguments against the permanent suspension of his certification; (2) an “OBD
Readiness Testability Issues” report from the United States Environmental
Protection Agency (EPA), dated June 2012, that purportedly specified errors for
analyzers that occurred during the emission inspection process with various makes
and model years of vehicles; and (3) a photograph that Fulton took in
December 2014 of his analyzer’s monitor with the message “communication error
with IOBoard. Click retry to check communication again” on it. (R.R. at 166a,
197a-206a.)
Fulton testified that, during Jordan’s visit to his station, he demonstrated that
his analyzer was malfunctioning and that it was “affecting the data transmitted to
[the Department].” (R.R. at 167a.) He explained that the photograph of his analyzer
monitor showed the error message that constantly was there, although the machine
allowed the operator to hit the “retry” button. (Id.) When he hit the “retry” button,
the analyzer allowed him to issue an inspection sticker. (R.R. at 168a.)
The Bureau cross-examined Fulton after he concluded his testimony.
(R.R. at 175a.) Fulton testified that the EPA report that he submitted as evidence
generally applied to problems with analyzers but admitted that it did not address his
specific analyzer. (R.R. at 176a.) He did not know there was a problem with his
analyzer until Jordan came to his location in January 2014. (Id.) Fulton testified
9
that the error message that was on his analyzer’s monitor occurred before Jordan’s
January 2014 visit, that he pressed the “retry” button on the analyzer as many
as 3,000 times when conducting emission inspections, and that he never thought
“it was a problem.” (R.R. at 177a.)
Fulton testified on redirect examination that he averaged 5,000 to 7,000
vehicle emission inspections per year at his station. (R.R. at 183a.) Fulton explained
that four or five other garages near his station brought vehicles to him for emission
tests. (Id.) On recross-examination, Fulton admitted that he did not demonstrate to
Jordan that the analyzer was not working properly, but he did show her that one of
the analyzer’s cords was cracked. (R.R. at 188a.) At the conclusion of Fulton’s
case, the Bureau objected to Exhibit A-1 based on relevance, but the Hearing Officer
overruled the objection and admitted the document into evidence. (R.R. at 190a.)
The Hearing Officer, after addressing a few procedural matters, concluded the
hearing. (R.R. at 194a.)
C. The Report
The Hearing Officer’s proposed report found, in pertinent part, that:
8. . . . Jordan reviewed the [VIID] for all inspections conducted at
[Fulton’s] [s]tation between January 1, 2013[,] and
September 16, 2013. During this period, a total of 3,152 emission tests
were conducted. Of this number, four were visual tests; and 3,148 were
on board diagnostic (“OBD”) tests.
....
21. Of the 3,148 vehicles that . . . Fulton tested from January 1, 2013[,]
to September 16, 2013[,] using OBD tests, . . . Jordan determined
that 62 vehicles were legitimately tested.
22. . . . Jordan determined that the other 3,086 vehicles that . . . Fulton
tested from January 1, 2013[,] to September 16, 2013[,] using OBD
tests, were fraudulently tested using a donor vehicle.
....
10
37. . . . Fulton did not consider his recurrent need to hit the retry
button—as many as 3,000 times—as the result of the error message in
order to issue an emission sticker, as indicative of an analyzer
malfunction, because he was able to issue a sticker each time after
hitting the retry button.
38. By the time . . . Fulton was ready to issue the sticker, all the data
that was transmitted to the [VIID] from the vehicle connected to the
analyzer had already been captured in the analyzer and the [VIID].
39. If . . . Fulton continued to operate the analyzer while it was
malfunctioning and then furnished inspection stickers, he would be
performing fraudulent inspections.
40. The analyzer appeared to be functioning properly during . . .
Jordan’s visit to the [s]tation, though it was not actually used to test a
vehicle during the time.
....
44. The fact that the tests performed on the 62 cars listed in Exhibit C-3
[i.e., the Legitimate Test spreadsheet], which occurred during the same
time period as the tests on the cars listed in Exhibit C-4 [i.e., the
Fraudulent Vehicle Emission Test spreadsheet], appear to be legitimate
demonstrates that the analyzer was functioning normally as designed.
45. From January 1, 2013[,] to September 1[6], 2013, . . . Fulton
furnished 3,086 certificates of inspection (emission stickers)
to 3,086 vehicles that were not subject to emission testing.
....
48. By recording the 3,086 emission inspections as being done properly
and performed on the actual vehicle to be tested, when in fact a donor,
or substitute, vehicle was used, . . . Fulton made a recordkeeping entry
not in accordance with fact, truth[,] or required procedure, which
falsified or concealed that a certificate of inspection was issued without
compliance with the required inspection procedure.
(Id., Findings of Fact (FF) Nos. 8, 21, 22, 37-40, 44, 45, 48 (citations omitted).)
The Hearing Officer determined that Fulton “did not present a consistent explanation
for the malfunction in his analyzer, if a malfunction in fact existed,” noting that
“his testimony [was] riddled with inconsistencies and contradictions that reflect
adversely on his credibility.” (Report, FF No. 32; Discussion at 16.)
11
The Hearing Officer concluded that the Bureau satisfied its burden of proof
that Fulton violated 67 Pa. Code § 177.427(3), when he furnished, lent, gave, or sold
3,086 certificates of emission inspections without inspecting the vehicles. (Report,
Conclusions of Law (COL) Nos. 4, 5.) Similarly, the Hearing Officer concluded
that the Bureau satisfied its burden of proof that
Fulton violated 67 Pa. Code § 177.601, relating to fraudulent recordkeeping
by: (1) recording into the analyzer and the VIID the results of 3,086 emission tests
that were performed on a substitute vehicle instead of the vehicles that were
supposed to be tested; and (2) issuing certificates of inspection for
those 3,086 vehicles without complying with the required inspection procedure.
(Id., COL No. 7.) The Hearing Officer further concluded that the Bureau was
authorized pursuant to 67 Pa. Code § 177.603 to impose a permanent suspension of
Fulton’s inspector certification for violating either count a second time.
(Id., COL Nos. 6, 8.)
By order dated June 15, 2018, the Hearing Officer dismissed Fulton’s appeal
and affirmed the Bureau’s permanent suspension of his inspector certification.
(Report at 22.) Fulton filed exceptions to the proposed report on July 18, 2018.
(R.R. at 105a.) The Secretary denied Fulton’s exceptions and affirmed the Hearing
Officer’s proposed report on April 1, 2019. (R.R. at 106a.) This appeal followed.11
11
In Mohamed v. Department of Transportation, Bureau of Motor Vehicles, 40 A.3d 1186(Pa. 2012), the Supreme Court held that courts of common pleas did not have subject matter
jurisdiction of appeals from suspension of inspection mechanic certifications pursuant to
Section 933 of the Judicial Code, 42 Pa. C.S. § 933, relating to appeals from government agencies,
and former Section 4726(c) of the Vehicle Code, formerly 75 Pa. C.S. § 4726(c), relating to
certification of mechanics—judicial review. As a consequence, under that statutory framework,
Fulton properly filed his appeal with the Department at its administrative docket in accordance
with the Administrative Agency Law, 2 Pa. C.S. §§ 501-588, 701-704, and 67 Pa. Code § 491.3(relating to request for hearing). The Act of November 4, 2016, P.L. 1277, which became effective
12
II. ISSUES
On appeal,12 Fulton appears to argue that substantial evidence does not exist
to support the crucial findings of fact. Finding of fact number 48, which appears to
be the crucial finding based upon a culmination of many of the earlier findings,
provides:
By recording the 3,086 emission inspections as being done properly and
performed on the actual vehicle to be tested, when in fact a donor, or
substitute, vehicle was used, . . . Fulton made a recordkeeping entry not
in accordance with fact, truth[,] or required procedure, which falsified
or concealed that a certificate of inspection was issued without
compliance with the required inspection procedure.
(Report, FF No. 48.) In support of that argument, he contends that he followed the
emission inspection bylaws outlined in the vehicle Equipment & Inspection
Regulation handbook and that any questionable data must have been the result of the
analyzer malfunctioning, citing published reports of technical issues with analyzers
that consistently arise while performing emission inspections. (Fulton’s Brief at 8.)
Fulton also appears to argue that the Department’s suspension must fail because
Jordan refused to examine the analyzer during the January 2014 investigation at his
station. It is somewhat unclear whether Fulton advances this argument with regard
to his substantial evidence argument or whether this is a separate argument that
on January 3, 2017, repealed former Section 4726(c) and amended Section 4724(b) of the Vehicle
Code, 42 Pa. C.S. § 4724(b), relating to suspension of certifications of appointment—judicial
review, to require that an appeal of an inspection mechanic suspension must be filed in a court of
common pleas.
12
“Our scope of review in an inspection certificate suspension case is limited to
determining whether the [Department] committed an error of law or whether the [Department’s]
findings are supported by substantial evidence.” McCarthy v. Dep’t of Transp., 7 A.3d 346, 350
(Pa. Cmwlth. 2010).
13
Jordan’s alleged failure to examine the analyzer somehow causes the Department
not to be able to meet its burden of proof.13
III. DISCUSSION
Section 4726(a) of the Vehicle Code, 75 Pa. C.S. § 4726(a), authorizes the
Department to certify mechanics to perform inspections of motor vehicles.
The Department’s power to certify inspectors comes with the responsibility to
suspend or fine mechanics who do not comply with the statutory and regulatory
requirements governing the inspection of motor vehicles. See 75 Pa. C.S. § 4726(b).
It is axiomatic that an inspector’s failure to comply with the appropriate provisions
of the Vehicle Code14 or Department regulations for the emission inspection program
constitutes sufficient cause for the suspension of emission inspection privileges after
providing the inspector with an opportunity for an evidentiary hearing. 67 Pa. Code
§ 177.603. “In cases involving alleged violations of the Vehicle Code and the
regulations interpreting the same, the Department has the burden of proving such
violations by a preponderance of the evidence.” Fiore Auto Serv. v. Dep’t of Transp.,
Bureau of Motor Vehicles, 735 A.2d 734, 736-37 (Pa. Cmwlth. 1998) (footnote
omitted); see 67 Pa. Code § 491.10(b)(1). In other words, here, the Bureau must
prove “that it is more likely tha[n] not, that a vehicle inspection was performed
improperly.” Tropeck v. Dep’t of Transp., Bureau of Motor Vehicles, 847 A.2d 208,
212 (Pa. Cmwlth. 2004).
The Bureau, to support its decision in the matter before us, directs our
attention to a panel decision from this Court for its persuasive value and similarity
to Fulton’s case: Department of Transportation v. Northeast Community
13
Fulton’s arguments are not set forth with the Court’s standard of review in mind, and the
Court has attempted to ascertain Fulton’s arguments despite the shortcomings of his brief.
14
75 Pa. C.S. §§ 101-9805.
14
(Pa. Cmwlth., No. 1410 C.D. 2015, filed August 16, 2017).15 In Northeast
Community, the Department permanently suspended an official emission inspection
station’s certificate of appointment because the station, for a second time, furnished
emission certificates of inspection without conducting the emission inspections and
engaged in fraudulent recordkeeping. Id., slip op. at 2. The station appealed the
suspension to the Court of Common Pleas of Philadelphia County, which conducted
a hearing.
At the hearing before the trial court in Northeast Community, the Department
called as a witness a Quality Assurance Officer (QAO) employed by Parsons. Id.
The QAO testified that he reviewed the VIID and discovered that the same PCM ID
and PID combinations were repeatedly listed on the tests performed at the station.
Id., slip op. at 2-3. The QAO testified that “similar to a [VIN] . . . each computer is
different for each vehicle . . . [and] the PCM ID and the PID together are similar to
DNA.” Id. at 3.
The QAO explained that he began his investigation by having a mechanic test
a 1999 Isuzu Rodeo and a 2008 Toyota Scion using the station’s analyzer. Id.
The Isuzu Rodeo’s OBD VIN did not automatically show on the reports, but the
OBD VIN was displayed automatically for the Toyota Scion. Id. The QAO testified
that this was fine because the Toyota was manufactured after 2005. Id. The QAO
indicated that the tests “were not conducted to determine the passing or failing of
emission tests, but were intended to ensure that the analyzer was working correctly,”
and he concluded that the analyzer was calibrated correctly and the test was
administered properly. Id.
15
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), an unreported opinion of the Court filed after January 15, 2008, may be cited
only “for its persuasive value, but not as binding precedent.”
15
The QAO also reviewed the VIID report, which revealed that the station
administered 1,578 emission tests between July 25, 2013, and April 11, 2014, and
of those, the station performed 562 tests on vehicles manufactured after 2005.
Id., slip op. at 4. The OBD VIN numbers were blank and each of the vehicles had
PCM IDs of 10 and PID counts of 15. Id. The QAO explained that, in “order for all
of these results to be the same, [the station] must be testing the same vehicle
repeatedly while manually inputting different VIN numbers, a process known as
‘clean screening.’” Id. The QAO testified that this is a problem because the vehicles
that were obtaining these stickers were not tested properly, or at all, and the emission
stickers were issued fraudulently. Id. On cross-examination, the QAO admitted that
some vehicles could have the same PCM ID and PID count numbers and, on redirect,
explained that the vehicles would be “‘sister[-]related,’ such as two BMWs.” Id.The QAO 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. Id.The trial court in Northeast Community credited the QAO’s testimony and
sustained the Department’s permanent suspension of the station’s certificate of
appointment. Id., slip op. at 5. The station appealed the decision to this Court,
claiming, in relevant part, that the trial court erred when it determined the
Department met its burden of proof that the station furnished certificates of
inspection without performing an inspection and committed fraudulent
recordkeeping. Id. The station argued the QAO’s testimony was inconsistent and
contradictory because he initially testified that the PCM IDs and PID counts are the
“DNA of a vehicle” but later conceded that sister-related vehicles could have the
same PCM ID and PID count combinations. Id., slip op. at 7. The station also argued
16
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 [VIID].” Id. The Department countered that the QAO’s testimony was
“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.” Id. The Department asserted that the trial
court could reasonably infer from the QAO’s credited testimony that the violations
occurred and 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.” Id.We rejected the station’s argument that the QAO’s testimony was inconsistent
and contradictory, noting that the trial court specifically credited the QAO’s
testimony. Id., slip op. at 9. We concluded that the credited testimony supported
the finding that the station entered the first vehicle’s information into its computer
and then performed the tests on a second vehicle, “thereby uploading the results of
these falsified tests into the [VIID], which maintains a record of all tests performed
in the Commonwealth.” Id., slip op. at 9, 10. We determined that the station,
upon intentionally entering false information to perform the tests, 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.” Id., slip op. at 10 (quoting 67 Pa. Code § 177.601.) In affirming
the trial court’s order, we concluded that the Department met its burden in proving
17
both that the station furnished emission certificates of inspection without actually
conducting the inspections and that it engaged in fraudulent recordkeeping.16 Id.Our decision in Northeast Community is persuasive in terms of the
appropriateness of the methodology used to determine whether a clean screening
process was used during the emission testing process. Here, the Bureau, as it did in
Northeast Community, utilized the VIID to obtain records of Fulton’s station’s
vehicle emission tests for the relative time period and then dissected the obtained
data to determine how many vehicle emission inspections were conducted at the
station—3,148. Then, relying on factors that included review of the vehicles’ OBD
VIN number, PID count numbers, PCM ID number, and eight emission parameters
being tested, the Bureau provided testimony through Jordan and documentary
evidence that, of the 3,148 vehicles, only 62 vehicles were legitimately tested
resulting in 3,086 vehicles tested using a clean screening process.
As to Fulton’s argument that substantial evidence does not exist to support the
crucial findings of fact, Fulton essentially contends that he followed the emission
inspection bylaws outlined in the vehicle Equipment & Inspection Regulation
handbook and that any questionable data must have been the result of the analyzer
malfunctioning. The Hearing Officer and the Secretary, however, appear to have
credited the testimony of Jordan over Fulton, thereby rejecting Fulton’s testimony
that he followed the proper protocols and that any questionable data resulted from
the analyzer malfunctioning. In reaching this credibility determination, the Hearing
Officer observed that “Fulton’s testimony is riddled with inconsistencies and
16
We note that “fraudulent” is not defined in the Department’s regulations; however, we
previously determined fraudulent conduct “occurs when an entry in the record . . . is false, entered
intentionally and with the purpose of deceiving.” Fiore Auto Serv., 735 A.2d at 737. Determining
whether the circumstances constitute fraud is primarily a factual determination. Dep’t of Transp.
v. Sortino, 462 A.2d 925, 927 (Pa. Cmwlth. 1983).
18
contradictions that reflect adversely on his compliance with required inspection
procedures,” particularly as his testimony relates to the nature of the alleged analyzer
malfunction, the analyzer’s repair history, and the actual existence of a malfunction.
(Report at 16.) Fulton’s argument on this point amounts to nothing more than a
request for this Court to reweigh the same evidence that both the Hearing Officer
and the Secretary weighed in deciding his appeal, which we cannot do. See Sitoski
v. Dep’t of Transp., Bureau of Driver Licensing, 11 A.3d 12, 17 (Pa. Cmwlth. 2010)
(“Licensee essentially asks this Court to reweigh the evidence, find his evidence
credible, and conclude that the Department failed to establish its burden of proof.
However, this Court is not vested with the authority to do so.”). In addition to relying
on his own testimony, Fulton introduced the EPA Report into the record in an
attempt to establish that technical issues with analyzers may arise while performing
emission inspections. With regard to the EPA Report, however, Fulton admitted on
cross-examination that it did not address his analyzer specifically and only provided
that generally there are problems with analyzers and certain vehicles. (R.R. at 176a.)
Fulton failed to establish a direct connection between his analyzer and OBD
testability issues with any of the 3,086 vehicles that he tested. Thus, Fulton’s
contention on this point does not establish that substantial evidence does not exist to
support the crucial findings of fact.
Finally, Fulton contends that the Department cannot prevail in this matter
because Jordan failed to examine the analyzer at the station during the
January 2014 audit. First, as to Fulton’s contention that Jordan did not examine the
analyzer, we note that Jordan testified that the analyzer appeared to be working at
the time of her visit to the station, thereby suggesting some type of examination by
Jordan, which the Hearing Officer and Secretary noted in finding of fact
19
number 40.17 (R.R. at 142a.) Second, Fulton’s argument appears to be an attempt
to distinguish this matter from Northeast Community, wherein the Department’s
representative asked a mechanic to connect two vehicles to the station’s analyzer to
determine if it was calibrated properly and “to ensure that the analyzer was working
correctly.” Id., slip op. at 3. The Bureau’s failure to test the analyzer in the manner
described in Northeast Community, however, is not fatal to its case, because Jordan’s
testimony was sufficient to allow a fact finder to find that Fulton engaged in a clean
screening process. Our decision in Northeast Community does not require that such
a test be conducted. Thus, we reject Fulton’s contention that Jordan’s failure to
examine the analyzer dictates a different outcome.18
IV. CONCLUSION
Accordingly, we affirm the order of the Department.
P. KEVIN BROBSON, Judge
17
Furthermore, although Fulton initially testified that he demonstrated to Jordan during her
visit that the analyzer was malfunctioning and affected the data transmitted, (R.R. at 167a), he later
admitted that he had not demonstrated to her that the analyzer was not working properly.
(R.R. at 88a.) Rather, he only showed her that one of the analyzer’s cords was cracked. (Id.)
Again, this suggests some type of examination.
18
The Hearing Officer acknowledged that Jordan, on cross-examination, testified that prior
to the hearing Fulton left messages on her answering machine, which she did not return.
(R.R. at 160a.) We note that Jordan also testified that she cannot remember why she did not return
the calls. (Id.) Nothing in the record suggests the content of the messages—i.e., whether Fulton
specified the reason for his call, had questions regarding the hearing, or was seeking to schedule
further testing. Thus, Jordan’s testimony does not support or contradict Fulton’s assertion that he
sought to have the analyzer tested.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Fulton, :
Petitioner :
:
v. : No. 672 C.D. 2019
:
Department of Transportation, :
Respondent :
ORDER
AND NOW, this 19th day of February, 2021, the order of the Department of
Transportation, dated April 1, 2019, and issued April 2, 2019, is AFFIRMED.
P. KEVIN BROBSON, Judge