Commonwealth v. Catanese

515 A.2d 345, 100 Pa. Commw. 600, 1986 Pa. Commw. LEXIS 2554

• Court: Commonwealth Court of Pennsylvania
• Decided: September 23, 1986
• Docket: Appeal, No. 219 C.D. 1984
• Status: Published

Opinion

Opinion by

President Judge Crumlish, Jr.,

The Department of Transportation, Bureau of Traffic Safety (Bureau), appeals an Allegheny County Common Pleas Court order which sustained the appeal of Charles Catanese, t/d/b/a Catanese Brothers (Catanese Brothers) from a twenty-one month suspension of its Certificate of Appointment as an official inspection station. We reverse and reinstate the suspension.

An investigation revealed that Charles Catanese, a mechanic for Catanese Brothers, had performed 272 vehicle inspections after being notified that he was not a certified inspection mechanic. Catanese Brothers was charged with 272 counts of violating 67 Pa. Code §175.28(a), which requires that inspections be performed by a certified inspection mechanic. The Bureau, pursuant to Section 4724(a) of the Vehicle Code,¹ suspended Catanese Brothers’ Certificate of Appointment for consecutive periods of three months for the first count, six months for the second count, and twelve months for the third count. Also, a one-year suspension for the remaining 269 counts was imposed, to run concurrently with the suspensions imposed for the first three counts.

A de novo appeal was heard before the common pleas court, which found that both Charles and Steve Catanese² had taken and passed the required mechanic certification courses in 1972 and 1973 and were entitled to be issued mechanic certification cards. The common pleas court vacated the Bureau suspension of Catanese Brothers’ Certification of Appointment.

The Bureau contends that the common pleas courts finding that Charles Catanese was a certified inspection mechanic is unsupported by substantial evidence. We agree.

The only record evidence to support the common pleas courts finding was an unsworn statement by Catanese Brothers’ counsel. This statement is hearsay and not sufficient, by itself, to support a factual finding. Moreover, because the statement was the sole evidence upon which the court based its finding, we cannot say that the admission of this statement was harmless. Therefore, we strike this finding. Bob Wark’s Arco v. Department of Transportation, Bureau of Traffic Safety, 71 Pa. Commonwealth Ct. 644, 455 A.2d 770 (1983).

Our conclusion that the common pleas court’s finding pertaining to Charles Catanese’s certification is not supported by substantial evidence does not, by itself, entitle the Bureau to a reversal of that court’s order and a reinstatement of its suspension order. The Commonwealth has the burden of proving that the certificate holder committed the violations charged. Department of Transportation, Bureau of Traffic Safety v. Kobaly, 24 Pa. Commonwealth Ct. 140, 354 A.2d 272 (1976), revel on other grounds, 477 Pa. 525, 384 A.2d 1213 (1978). However, our review of the record satisfies us that the Bureau met its burden of proving that Catanese Brothers permitted an uncertified mechanic to perform numerous inspections.³

The common pleas court order sustaining the appeal of Catanese Brothers from the Bureaus suspension order is reversed and the Bureaus order is reinstated.

Order

The Allegheny County Common Pleas Court order, No. SA 294 of 1983 dated December 30, 1983, is reversed. The order of the Department of Transportation, dated May 23, 1983, which suspended the Certificate of Appointment as an official inspection station issued to Charles Catanese, t/d/b/a Catanese Brothers, for a period of one year and nine months, is reinstated.

1 75 Pa. C. S. §4724(a).

2 The Bureau imposed a separate suspension of Catanese Brothers’ certificate for inspections performed by Steve Catanese. This suspension is not at issue in this appeal.

3 We initially note that Catanese Brothers did not contest the feet that Charles Catanese performed the 272 inspections at issue. Catanese Brothers also concedes that Charles Catanese never was issued a mechanics certification card by DOT. Finally, the Bureau presented documentary and testimonial evidence to the effect that Charles Catanese was never listed as a certified inspection mechanic and that in 1974 or 1975 he took the inspection mechanic examination and failed. This evidence was uncontroverted by Charles Catanese when he testified at the July 22, 1983 hearing, and we already noted that the common pleas court took no evidence at its December 15, 1982 proceeding.