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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ATHANAS MIHADAS, d/b/a MEINEKE
:
DISCOUNT MUFFLERS/BRAKE,
:
Appellants :
:
v.
:
No. 1045 C.D. 1999
:
SUBMITTED: October 8, 1999
COMMONWEALTH OF
:
PENNSYLVANIA, DEPARTMENT OF
:
TRANSPORTATION
:
BEFORE:
HONORABLE JAMES GARDNER COLINS, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION BY
SENIOR JUDGE McCLOSKEY
FILED: November 22, 1999
Athanas Mihadas, d/b/a Meineke Discount Mufflers/Brakes (Mihadas)
appeals from an order of the Court of Common Pleas of Erie County (trial court),
dismissing his appeal from an order of The Commonwealth of Pennsylvania,
Department of Transportation, Bureau of Motor Vehicles (DOT), which suspended
his certificate of appointment as an official safety inspection station and his
certification as an official safety mechanic. We affirm.1

1 Final orders of DOT suspending certificates of appointment to operate an official
inspection station pursuant to 75 Pa. C.S. §4724(b) are initially appealable to the courts of
common pleas, with secondary review by the Commonwealth Court. 42 Pa. C.S. §933. Final
orders of DOT relating to certification of inspection mechanics under 75 Pa. C.S. §4726(c), on
the other hand, are not appealable to the courts of common pleas pursuant to 42 Pa. C.S. §933.
Accordingly, appeals from these orders are properly taken directly to the Commonwealth Court.
Nevertheless, we note that this issue was not raised below; thus, it has been waived and the
jurisdiction of this Court has been perfected. See Section 704 of the Judicial Code, 42 Pa. C.S.
§704.

On May 8, 1998, a 1987 Pontiac Sunbird (vehicle) owned by Alice
Flemmings (Flemmings) was taken to the Meineke Discount Mufflers/Brakes
station (station) owned by Mihadas. Flemmings arranged for Mihadas to repair
numerous problems with the vehicle and to do whatever was needed, including an
inspection. On June 4, 1998, after several previous unsuccessful attempts to
arrange a time to pick up the vehicle, Flemmings was informed that the vehicle
was ready.
After arriving at the station, Flemmings saw Michael Welsch
(Welsch), the manager of the station, scratch the 1997 inspection sticker off of the
vehicle and replace it with a 1998 inspection sticker. At this time, Welsch was not
a certified inspection station mechanic. Additionally, Welsch informed Flemmings
that the vehicle needed a replacement speedometer. He stated that a replacement
speedometer was not currently available, but would be available on June 8, 1998.
Flemmings understood that if she failed to return the vehicle to the station for the
speedometer, she would have to forfeit the vehicle and pay fines and the remaining
balance to Mihadas. Flemmings signed a statement memorializing this agreement.
The next day, Flemmings noticed that the vehicle was running poorly.
Flemmings filed a complaint with Consumer Protection against Mihadas and the
station and then contacted the Pennsylvania State Police (State Police). The State
Police arranged for Flemmings to have the vehicle reinspected at a service station
by the name of Briggs and Hagenlocher (Briggs). The vehicle failed the inspection
conducted by Briggs' certified safety inspection mechanic, Andrew Wells (Wells).
Wells documented ten defects that resulted in the vehicle's failure to pass
inspection. These defects would have existed on June 4, 1998, the date the vehicle
was allegedly inspected by Mihadas.
Additionally, on June 15, 1998, Officer Frederick Mercer (Mercer)
reinspected the vehicle. Mercer is a former State Police Officer and is currently a
2

Quality Assurance Officer with Protectaire, a company under contract with DOT to
provide for the administration and supervision of all official inspection stations.
Mercer found many of the same defects found by Wells, as well as several others.
Mercer removed the vehicle's inspection sticker which had been signed by
Mihadas. Upon further investigation of the vehicle's inspection by Mihadas,
Mercer discovered numerous inconsistencies and inaccuracies in the inspection
forms completed at Mihadas' station.
Subsequently, on September 30, 1998, DOT imposed a one year
suspension on Mihadas' certificate of appointment as an official safety inspection
station for providing a faulty inspection of the vehicle. Additionally, DOT
imposed a two-month suspension on Mihadas' certificate of appointment as an
official safety inspection station for improper record keeping and the lesser
included offense of careless record keeping. These suspensions were to run
concurrently, for a total suspension of one year.
Also on September 30, 1998, DOT imposed a two-month suspension
on Mihadas' certification as an official safety inspection mechanic for faulty
inspection of the vehicle. DOT also imposed a two-month suspension on Mihadas'
certification as an official safety inspection mechanic for faulty record keeping and
the lesser included offense of careless record keeping. These suspensions were to
run concurrently, for a total suspension of two months.
Thereafter, on October 22, 1998, Mihadas appealed DOT's
suspensions of his certificate of appointment as an official safety inspection station
and certification as an official safety inspection mechanic to the trial court.2

2 We note that these two matters were consolidated on appeal to the trial court.
3

Additionally, Mihadas filed a request for supersedeas which was granted by the
trial court.
Subsequently, the trial court held a de novo hearing on the matter.
Mihadas testified on his own behalf and presented the testimony of Vito Randazzo,
a certified inspection station mechanic of fifteen years, and Welsch. DOT
presented the testimony of Flemmings, Wells and Mercer.
By order dated March 31, 1999, the trial court dismissed Mihadas'
appeal. On April 20, 1999, Mihadas filed the instant appeal with this Court.
Thereafter, on June 10, 1999, the trial court issued an opinion in support of its
March 31, 1999, order. The trial court stated that it found the testimony of the
witnesses presented by Mihadas to be not credible. Further, the trial court found
the evidence presented by DOT to be overwhelming in support of its case that
Mihadas had conducted a faulty inspection and engaged in improper record
keeping. Thus, the trial court explained that DOT had sustained its burden of
proof.
On appeal to this Court,3 Mihadas contends that the trial court erred in
denying his appeal. Specifically, Mihadas argues that the trial court erred when it
permitted Officer Frederick Mercer to testify as an expert.
This contention is unavailing. The law is well-settled that whether a
witness may be permitted to testify as an expert is a decision that is within the
sound discretion of the trial court. Bennett v. Graham, 552 Pa. 205, 714 A.2d 393
(1998). Such decisions will not be disturbed on appeal without a showing of abuse
of discretion by the trial court. Id. Additionally, the law is settled that in order to

3 Our review is limited to a determining whether the trial court's findings of fact are
supported by competent evidence and whether it committed an error of law or abuse of discretion
in reaching its decision. Department of Transportation, Bureau of Driver Licensing v.
DiMichele, 575 A.2d 678 (Pa. Cmwlth. 1990).
4

qualify as a expert in a given field, a witness must have a reasonable pretension to
specialized knowledge on the subject matter in question. Id.
Here, a thorough review of the record reveals that Officer Frederick
Mercer had experience, education and training which rendered him capable of
rendering opinions relating to inspection violations, the requirements of DOT's
safety inspection regulations and other vehicle safety inspection matters. (R.R. at
32a-34a). Thus, we cannot say that the trial court abused it's discretion when it
implicitly determined that Mercer had specialized knowledge and qualified him to
testify as an expert regarding vehicle safety inspections.
Next, Mihadas asserts that the trial court erred when it considered the
weight of the evidence. Specifically, Mihadas argues that the trial court failed to
properly consider the weight of his testimony as well as that of his witnesses and,
in so doing, shifted the burden of proof to him.
We do not agree. The law is well-settled that questions of credibility
and the resolution of conflicts in the evidence presented are within the province
of the trial court. Incarvite v. Department of Transportation, Bureau of Driver
Licensing, 732 A.2d 39 (Pa. Cmwlth. 1999). Furthermore, if such findings by
the trial court are supported by competent evidence this Court will not disturb
them on appeal. Id.
In the instant case, the record reveals that the trial court
resolved questions of credibility in favor of DOT. (R.R. at 88a). Furthermore,
the trial court found the testimony presented by Mihadas regarding details of the
vehicle's inspection, as well as the way such was carried out and documented, to
be not credible. (R.R. at 88a). It was within the discretion of the trial court to
make such credibility determinations and the record as a whole shows support
therefor. (R.R. at 5a-85a). As such, we cannot say that the trial court erred when
it considered the evidence and found the testimony of Mihadas and his witnesses
to be not credible.
5

Finally, DOT asserts that Mihadas' appeal is frivolous and requests
the imposition of reasonable attorneys fees pursuant to Pa. R.A.P. 2744.
Specifically, DOT contends that because Mihadas' appeal merely challenges the
trial court's discretion to make credibility determinations, findings of fact and
admit expert testimony, the appeal is frivolous and the imposition of counsel fees
proper.
We do not agree with DOT's assessment that Mihadas' appeal is
frivolous. This Court has defined a frivolous appeal as one in which "no
justiciable question has been presented and . . . [that] is readily recognizable as
devoid of merit in that there is little prospect of success." Hewitt v.
Commonwealth of Pennsylvania, 541 A.2d 1183, 1184-1185 (Pa. Cmwlth. 1988),
petition for allowance of appeal denied, 520 Pa. 620, 544 A.2d 511 (1989).
Mihadas' basis for this appeal is that the trial court erred in permitting
a witness to testify as an expert and in failing to properly consider the evidence he
presented. Although we conclude that Mihadas' assertions are not persuasive, we
do not believe that his appeal was frivolous. Thus, DOT's request for attorney's
fees must be denied.
Accordingly, the order of the trial court is affirmed.

JOSEPH F. McCLOSKEY, Senior Judge
6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ATHANAS MIHADAS, d/b/a MEINEKE
:
DISCOUNT MUFFLERS/BRAKE,
:
Appellants :
:
v.
:
No. 1045 C.D. 1999
:
COMMONWEALTH OF
:
PENNSYLVANIA, DEPARTMENT OF
:
TRANSPORTATION
:
O R D E R
AND NOW, this 22nd day of November, 1999, it is hereby ordered
that the order of the Court of Common Pleas of Erie County is AFFIRMED.

JOSEPH F. McCLOSKEY, Senior Judge