Mozzafari v. Butler

760 A.2d 909, 2000 Pa. Commw. LEXIS 570
CourtCommonwealth Court of Pennsylvania
DecidedOctober 12, 2000
StatusPublished

This text of 760 A.2d 909 (Mozzafari v. Butler) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mozzafari v. Butler, 760 A.2d 909, 2000 Pa. Commw. LEXIS 570 (Pa. Ct. App. 2000).

Opinion

McCLOSKEY, Senior Judge.

Sina Mozzafari (Petitioner) petitions for review of the final decision and order of [910]*910Johnny Butler, Secretary of Labor and Industry for the Commonwealth of Pennsylvania (Secretary Butler), affirming the proposed order of a hearing examiner suspending Petitioner’s elevator inspection commission for a period of six months. We now affirm.

Petitioner is a Pennsylvania Department of Labor and Industry (Department) commissioned elevator inspector, holding Commission No. 1726. On April 16, 1997, Petitioner conducted an inspection of a passenger elevator located at the Green Street Elementary School in Reading, Pennsylvania.1 In a report submitted to the Department, Petitioner noted no deficiencies in that inspection. On August 29, 1997, in response to a request from the school’s elevator maintenance contractor, the Department conducted an inspection of that same elevator and found an extreme rusting condition on the starter channel and the cylinder assembly. Due to the imminent safety hazard presented, the Department sealed the elevator out of service.

The Department then began to review a number of Petitioner’s more recent elevator inspections. On September 30, 1997, Petitioner reported that he had inspected fourteen elevators at St. Joseph’s University (StJoe’s) located in Philadelphia, Pennsylvania. Petitioner noted only one deficiency on these elevators. However, twenty days later, the Department re-inspected these same elevators and noted sixty deficiencies. The Department again sealed one elevator out of service due to an imminent safety hazard. During the re-inspections, the Department determined that Petitioner did not have access to the machine rooms for any of his elevator inspections, nor did he have access to the seven dormitory buildings at St. Joe’s for which he had issued elevator inspection certificates.

On October 7-9, 1997, Petitioner reported that he had inspected forty-three elevators and lifting devices at Lehigh University in Bethlehem, Pennsylvania. Petitioner submitted reports to the Department indicating that he found no deficiencies in any of the elevators or devices. Twenty days later, the Department inspected sixteen of these same elevators and devices and found 101 deficiencies. Once again, one elevator was sealed out of service due to an imminent safety hazard. Due to the condition of the elevators and devices inspected and the numerous deficiencies, the Department determined that Petitioner could not have properly inspected the same.

On January 12, 1998, the Department, through the Elevator Division of its Bureau of Occupational and Industrial Safety (Bureau), issued an order to show cause why Petitioner’s elevator inspection commission should not be revoked for incomplete and unsatisfactory elevator inspections. The order to show cause detailed Petitioner’s inspections and findings, or lack thereof, as well as the Department’s re-inspections and findings. Additionally, the Bureau attached copies of Petitioner’s inspection reports and the Department’s re-inspection reports to the order to show cause. Petitioner filed an answer with new matter essentially denying the Bureau’s allegations, noting the difference in dates between his inspections and the Department’s inspections and requesting an opportunity to review the Department’s inspection reports.

Secretary Butler thereafter appointed a hearing examiner and the case proceeded with several hearings.2 At the hearings, the Bureau presented into evidence Petitioner’s inspection reports and the Department’s re-inspection reports. The Bureau also presented the testimony of the Department’s inspectors who conducted the re-inspections. Thomas Kopec, a commis[911]*911sioned state elevator inspector since 1992, performed the re-inspection at the Green Street Elementary School in Reading. Mr. Kopec testified regarding the extreme rusting condition and deterioration that he observed on the starter channel and the cylinder assembly of the elevator at this school. Mr. Kopec indicated that he then sealed this elevator out of service, with the permission of the facilities manager for the Reading School District, as a result of the unsafe rusting condition. Mr. Kopec also indicated that the rusting condition was not such that it could have occurred since the last inspection, but had to be progressing with years of service.

The Bureau also presented the testimony of Joseph Paul Marchioni, Jr., a central district supervisor for the Department and a plans examiner for the Bureau’s Elevator Division. Mr. Marchioni was Mr. Ko-pec’s supervisor. Mr. Marchioni visited the Green Street Elementary School and also observed the severe corrosion on the underside of the elevator. Mr. Marchioni confirmed that Department records show that Petitioner had inspected this elevator on April 16, 1997, and found no deficiencies. Mr. Marchioni indicated that the Bureau thereafter decided to conduct re-inspections of Petitioner’s more recent inspections.

Mr. Marchioni also indicated that he participated in the re-inspection of fourteen elevators at St. Joe’s in Philadelphia, where Petitioner noted only one deficiency regarding car leveling. Mr. Marchioni noted numerous deficiencies in these elevators, including an unlocked machine room door, a lack of dielectrical matting in front of a controller, missing electrical covers in the pit, machine room and on the car top, missing high voltage warning labels, a missing front panel controller cover, missing sight guards, improperly installed cros-by clamps on hoist ropes and improperly functioning car top inspection controls.

Further, the Bureau presented the testimony of Anthony Kaiser, III, another commissioned state elevator inspector. Mr. Kaiser performed the re-inspection at Le-high University in Bethlehem. Mr. Kaiser did not re-inspect all forty-three elevators and lifting devices. Instead, Mr. Kaiser only inspected fourteen elevators and two lifting devices. Mr. Kaiser indicated that he found numerous deficiencies, including improperly numbered mainline disconnect switches, leaks in the hydraulic packing, a lack of dielectric floor matting in machine rooms, missing plate fastenings, loose handrails, an unlocked landing door on a wheelchair lift, diameter loss and breaks on hoisting cables and a governor cable, loose sight guards, improperly functioning car doors and a missing safety astragal on a car door.

At the final hearing in this matter, Petitioner testified on his own behalf. With respect to the elevator at the Green Street Elementary School in Reading, Petitioner admitted that he had made a mistake and that he should have seen the corrosion. With respect to St. Joe’s, Petitioner stated that he had placed a call from a dormitory on campus and, thus, had to have access to such a building to do so. However, on cross-examination, Petitioner indicated that the call could have been placed from another building on campus, i.e., the Language Center, and not from a dormitory.

Following this final hearing, the parties submitted briefs and proposed findings. Thereafter, the hearing examiner issued his proposed report suspending Petitioner’s elevator inspection commission for a period of six months. In the course of his decision, the hearing examiner made the following, relevant findings of fact:

15. The Department’s inspection revealed 60 deficiencies some of which could have occurred during the twenty days between inspections but not all.
16.

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Bluebook (online)
760 A.2d 909, 2000 Pa. Commw. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mozzafari-v-butler-pacommwct-2000.