Kinley v. Commonwealth

Opinion by

Judge MacPhail,

This is an appeal from an opinion and order of the Court of Common Pleas of Lycoming County, Civil Division, in which the Honorable Thomas C. Raup dismissed Alvin Kinley’s (Appellant) appeal from the order of the Department of Transportation, Bureau of Traffic Safety (Department) suspending for one year the certificate of appointment as an official inspection station issued to Appellant’s service station and his certification as an official inspection mechanic.

On March 7,1977 and March 14,1977, one Gerald J. Leek took his 1953 G.M.C. truck to be inspected at two different inspection stations, both of which rejected the vehicle. On March 14, 1977, after the second rejection, the vehicle was taken to Appellant’s garage where Appellant inspected it and issued an inspection sticker. On April 22,1977, an official inspection supervisor of the Pennsylvania State Police inspected the subject vehicle and found some of the same defects which accounted for the two rejections in March. The trooper removed the inspection sticker issued by the Appellant and issued a citation to Appellant. On April 23, 1977, the subject vehicle was again inspected and approved, this being the fourth official inspection station involved with the vehicle. The inspecting mechanic, from that station, testified that the items which were mentioned in the rejections had been recently repaired and that the vehicle “just passed.” Finally, on October 18,1977, tbe Department issued tbe order previously mentioned alleging violation of Section 819(f) of tbe Vehicle Code (Code),¹ Act of April 29, 1959, P.L. 58, as amended, formerly 75 P.S. §819(f), repealed by tbe Act of June 17, 1976, P.L. 162.

In tbe instant appeal, Appellant argues tbat there was insufficient proof of any violation of tbe Yebicle Code to warrant a suspension and that tbe trial judge should have recused himself wben it became known that another judge in tbe same court bad found tbe Appellant guilty of a criminal offense arising from tbe same factual situation.²

In tbe de novo bearing before tbe trial judge, tbe transcript of tbe summary criminal proceeding was made a part of tbe record by agreement of counsel because some of the witnesses summoned by tbe Appellant bad not appeared. Additional testimony was received by tbe trial court. Prom tbe entire record, it appears that Appellant and bis witnesses testified that tbe defects found in tbe two intial inspections were not present wben be inspected tbe vehicle. It also appears, from tbe record, that tbe truck’s owner testified that be corrected tbe defects on March 14 before be took bis vehicle to Appellant’s inspection station. Tbe trial judge, as tbe fact-finder, rejected that testimony and found tbe testimony of tbe Department’s witnesses to be credible. “In cases in which tbe court of common pleas is tbe fact-finder, our scope of review is limited to a determination of whether or not tbe court based its findings of fact on substantial evidence or committed an error of law.” Department of Transportation,, Bureau of Traffic Safety v. Stafford, 28, Pa. Commonwealth Ct. 157, 159, 367 A.2d 816, 817 (1977). Appellant argues strenuously that the results of the trooper’s examination of the vehicle 39 days after it had been approved for inspection must be rejected because the conditions he discovered could have occurred during that interval of time. The argument might be plausible if the conditions he discovered were not substantially identical to those identified in the March rejection inspections. We. have no difficulty whatsoever in concluding that the trial court’s findings were based upon substantial evidence.

The only error of law raised in this appeal is the refusal of the trial judge to recuse himself after counsel for the Department stated that the Appellant had been convicted of a summary offense arising out of the same circumstances.³ It must be carefully observed that Appellant did not object to the reference to the criminal proceeding for any reason other than it would prejudice the trial judge in the de novo hearing. In addressing Appellant’s motion for recusal the trial judge stated, “I don’t see how the mere fact of my knowledge of the judge’s determination, based upon the evidence produced there, which is less than will be presented here, should require recusing myself.” In Commonwealth v. Kane, 199 Pa. Superior Ct. 89, 91, 184 A.2d 405, 406 (1962) our Superior Court stated on the matter of recusal,

If the court feels it can hear and dispose of the case fairly and without prejudice, its decision will be final____When a judge’s disqualification is charged, the party must produce evidence tending to show bias, prejudice, or unfairness. (Citation omitted.)

Appellant has presented no evidence whatsoever tending to show bias, prejudice or unfairness on the part of the trial judge and we find none either in his opinion or his conduct at the hearing.

Accordingly, order affirmed.

Order

And Now, this 20th day of November, 1979, the order of the Court of Commom Pleas of Lycoming County dated May 1,1978, is affirmed.

1 The violation alleged here occurred before the enactment of the new Vehicle Code, in which a similar provision can be found at 75 Pa. C.S. §4727 (b).

2 In his initial brief to us, Appellant also argued that the Department had no authority under Sections 819 and 8S4 of the Code to suspend Appellant’s certificate of appointment as an inspection mechanic. In his supplemental brief, Appellant has withdrawn that issue from our consideration.

3 There are two judges in Lycoming County. The criminal action had been heard by President Judge Gbeevt.