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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdul Ibrahim,

:

Appellant

:

:

v.

: No. 1265 C.D. 2004

: Submitted: February 4, 2005
Commonwealth of Pennsylvania,
:
Department of Transportation, Bureau :
of Motor Vehicles

:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER

FILED: April 12, 2005

Abdul Ibrahim (Ibrahim) appeals from the order of the Court of
Common Pleas of Philadelphia County that denied his appeal from a two-month
suspension of his certification as an official emissions inspector and a $250 fine
imposed by the Department of Transportation, Bureau of Motor Vehicles (DOT)
for improper gas cap testing. Ibrahim questions whether the trial court's decision is
supported by substantial evidence; whether the penalties imposed by DOT are too
severe; whether the trial court should have considered an alternative penalty; and
whether he is entitled to a credit for the suspension period he already served.

Ibrahim is an owner of an inspection station in Philadelphia and a
mechanic certified by DOT to perform safety and emission inspections. By official
notice mailed on May 12, 2003, DOT informed Ibrahim of a two-month
suspension of Ibrahim's certification as an official emission inspector and a $250

fine for eighteen counts of improper gas cap tests1 during emission inspections.
The trial court conducted a de novo hearing wherein DOT presented the testimony
of Michelle Miller, a quality assurance officer employed by DOT's subcontractor,
Parsons Corporation, which oversees safety and emission inspections.

On February 19, 2003, Miller visited Ibrahim's inspection station for
an audit because results of gas cap tests performed by Ibrahim on eighteen vehicles
from January 6 to January 31, 2003 were marked as "Can't Remove" in the report
generated by the VIID (Vehicle Inspection Information Database).2 Miller testified
that a gas cap test must be conducted as part of the emission inspection and that
during an inspection the emission inspector is asked whether the gas cap is
accessible, whether it can be removed and whether it has an adapter that fits to the
tester. The trial court found that once the operator answers yes to these questions,
the operator is prompted to take the gas cap and screw it onto a tester "which
pressurizes it to make sure [that] it is fully pressurized ... thereby preventing fumes
from being emitted into the air." Tr. Ct. opinion at 3. Miller also testified that the
VIID-generated report showed that Ibrahim completed inspections of eighteen
vehicles and issued the emission stickers without the mandated gas cap tests.

1A gas cap test is "[a] fuel filler gas cap test, as specified in [67 Pa. Code]
§ 177.204(2)(iii) (relating to emission standards), that determines whether or not the vehicle's gas
cap is functioning as designed." 67 Pa. Code §177.3. Gas cap tests are administered on all 1975
and newer model year vehicles subject to enhanced emission tests. See 67 Pa. Code
§177.203(b)(3), then in effect.
2VIID is "[t]he vehicle database established to collect inspection test data and to provide
enhanced emission inspection test standards to enhanced emission inspection stations for the
purpose of conducting the appropriate emission inspection." 67 Pa. Code §177.3. The VIID-
generated reported contains the inspection information, such as the tests performed, the VIN
(Vehicle Identification Number), the gas cap test results and the emission sticker numbers, which
is sent online by the emission inspector during the emission inspection. N.T., p. 12.
2

Ibrahim did not dispute the accuracy of the information contained in
the VIID-generated report, and he acknowledged that the gas cap test is an
important part of the emission inspection and must be performed before issuing an
emission sticker. Ibrahim stated that he performed approximately 100 inspections
per month; that he could not remove the gas caps because they were attached to the
vehicles by strings or springs and could not be separated from the vehicles; and
that he performed the gas cap tests on "each and every" vehicle. N.T., p. 27. The
trial court found that even when gas caps were attached to the vehicles by strings
or springs Ibrahim, nonetheless, was required to perform the gas cap tests by
attaching adapters on vehicles as mandated by the Environmental Protection
Agency and that Ibrahim should have known the correct methods, practices and
procedures for performing the inspections.3

Ibrahim maintains that the trial court's decision is arbitrary and
unreasonable, that it is against the weight of the evidence and that it is not
supported by substantial evidence in the record. Ibrahim references Miller's
testimony that a vehicle can still pass the emissions test without a gas cap test,
notes that she did not see the vehicles that were not tested and contends that
without having seen the vehicles Miller could not determine that the gas caps could
not be removed. He notes that DOT "may suspend the certification issued to a

3This Court's review is limited to determining whether the trial court committed an error
of law or an abuse of discretion or whether the trial court's findings are supported by substantial
evidence. Zwibel v. Department of Transportation, Bureau of Driver Licensing, 832 A.2d 599
(Pa. Cmwlth. 2003). The party who prevailed before the trial court is entitled to benefit of most
favorable inferences to be drawn from the evidence, Department of Transportation, Bureau of
Driver Licensing v. Malizio, 618 A.2d 1091 (Pa. Cmwlth. 1992), and if sufficient evidence exists
in the record to support the trial court's findings, this Court must affirm the trial court's decision.
Mihadas v. Department of Transportation, 741 A.2d 249 (Pa. Cmwlth. 1999).
3

mechanic if it finds that the mechanic has improperly conducted inspections or has
violated or failed to comply with any of the provisions of this chapter or
regulations adopted by the [D]epartment." Section 4726(b) of Vehicle Code, as
amended, 75 Pa. C.S. §4726(b). Additionally, while noting that DOT must prove
the charges against him by a preponderance of the evidence, Ibrahim contends that
he never attempted to cover up results of the gas cap tests nor intentionally or
fraudulently misrepresented test results or kept fraudulent or incomplete records.

The trial court credited Miller's testimony that Ibrahim was required to
perform gas cap tests as an essential part of the emission inspection process and
that the tests were bypassed and never performed on the subject vehicles. Miller
also stated that "[t]here is no reason that [the gas caps] couldn't have been removed
because if you can't remove a gas cap, then you can't put gas in the car, which
would make it not be driven. The gas cap has to be removed." N.T., p. 16.
Without disputing his duty to perform the test on every vehicle as an essential part
of the emission inspection, Ibrahim presented conflicting testimony as to whether
he in fact performed the tests. He first testified that he could unscrew the gas caps
but could not separate them from the vehicles and that he performed the tests on all
vehicles after Miller showed him how to properly perform the inspection on
February 19, 2003. Later he testified that he performed the tests on each vehicle.

All questions of witness credibility and evidentiary weight are within
the sole province of the trial court, as fact finder, to decide. See Millili v.
Department of Transportation, Bureau of Driver Licensing, 745 A.2d 111 (Pa.
Cmwlth. 2000). The evidence presented by DOT and accepted by the trial court
constitutes substantial evidence to support the finding that Ibrahim improperly
conducted the emission inspections by failing to perform the mandated gas cap
4

tests. The regulation at 67 Pa. Code §177.603, provides that: "Emission inspectors
shall assume full responsibility for their acts as emission inspectors. Failure to
comply with the appropriate provisions of the Vehicle Code or this chapter will be
considered sufficient cause for suspension of emission inspection privileges."
Although Miller did not personally observe Ibrahim conduct the inspections, the
trial court could reasonably infer from her testimony and the VIID-generated report
that Ibrahim failed to perform the emission inspections as required. Ibrahim was
certified as to his training, qualifications and competency to perform the emission
inspections, and he should have known the proper procedures for conducting the
tests. Moreover, any argument that Ibrahim's conduct was not fraudulent is
irrelevant and immaterial as his inspector certification was suspended for failing to
perform eighteen gas cap tests, not for fraudulent inspections or record keeping.

Ibrahim next argues that DOT's penalty of a two-month suspension
and a $250 fine is too severe and that the trial court should have considered an
alternative penalty. DOT responds that Ibrahim waived these arguments due to his
failure to distinctively divide his arguments into separate parts of his brief as
required by Pa. R.A.P. 2119(a), which provides that "[t]he argument shall be
divided into as many parts as there are questions to be argued; and shall have at the
head of each part in distinctive type or in type distinctively displayed the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent." While Ibrahim included these arguments in
the section discussing his contention that the trial court's decision was arbitrary and
was not supported by substantial evidence, the Court nonetheless may consider the
arguments where defects in the brief do not preclude meaningful appellate review.
See Russell v. Unemployment Compensation Board of Review, 812 A.2d 780 (Pa.
5

Cmwlth. 2002). Thus the Court shall address the remaining arguments.

In a statutory appeal, the trial court determines de novo whether the
charged violation has occurred for which DOT imposed a penalty. Department of
Transportation, Bureau of Traffic Safety v. Cormas, 377 A.2d 1048 (Pa. Cmwlth.
1977). It is undisputed that Ibrahim previously was warned and assessed a $100
fine on April 2, 2003 for improper emission inspections. Under 67 Pa. Code
§177.603(2)(ix), the penalty for a second offense of improper emission inspection
is a two-month suspension and a $250 fine. Therefore, DOT properly imposed the
mandated penalty for Ibrahim's second offense. Likewise, the Court rejects
Ibrahim's argument that the court should have considered an alternative penalty.

This Court held in Strickland v. Department of Transportation, 574
A.2d 110 (Pa. Cmwlth. 1990), that DOT erred in failing to consider the alternative
penalty allowed under 67 Pa. Code §175.51(b), then in effect. That section
authorized DOT to permit a station owner to consent to a point assessment for the
station in lieu of suspension if the station owner, manager, supervisor or other
management level employee was without knowledge of the violation and should
not have known of such violation.4 The trial court found that Strickland had no
personal knowledge of his employees' improper actions regarding the emission
inspections occurring at a time when Strickland was away from the station.

4A similar provision is now found in 67 Pa. Code §177.602(b). Also by separate notice
mailed May 12, 2003, DOT suspended the certificate of appointment as an official emission
inspection station issued to Ibrahim's station for three months and imposed a $1000 fine for the
same offenses, but he did not appeal that suspension. Because the Department is better able to
determine credit issues, subject to appeal, the Court may not consider whether Ibrahim is entitled
to a credit against his suspension for the period of time that the station was closed and no
inspections were performed. Xenakis v. Department of Transportation, Bureau of Driver
Licensing, 702 A.2d 572 (Pa. Cmwlth. 1997).
6

In contrast, Ibrahim was the owner of the emission inspection station
and also was a certified emission inspector, and the current appeal involves his
suspension as an inspector but not a suspension of his station as was the case in
Strickland. See n4 supra. Therefore, Strickland does not apply inasmuch as the
violations here were not committed by employees of Ibrahim's station; rather they
were committed by Ibrahim during performance of his duties as an inspector. In
any event, the record shows that DOT considered but denied the alternative penalty
of point assessment. Finding no error by the trial court, this Court accordingly
affirms the trial court's order.

DORIS A. SMITH-RIBNER, Judge
7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdul Ibrahim,

:

Appellant

:

:

v.

: No. 1265 C.D. 2004

:
Commonwealth of Pennsylvania,
:
Department of Transportation, Bureau :
of Motor Vehicles

:

O R D E R

AND NOW, this 12th day of April, 2005, the order of the Court of
Common Pleas of Philadelphia County in the above-captioned matter is affirmed.

DORIS A. SMITH-RIBNER, Judge