IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Javier Perez-Diaz, :

Appellant : No. 474 C.D. 2021

:

 v. : Submitted: February 4, 2022 

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Motor Vehicles :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION BY JUDGE McCULLOUGH FILED: July 11, 2023

Javier Perez-Diaz (Perez-Diaz) appeals from the March 25, 2021 order of 

the Court of Common Pleas of Berks County (trial court) that denied and dismissed his 

appeal from a cumulative six-month suspension of Perez Car Renew & Towing’s (the 

Station) certificate of appointment as an official safety inspection station. The 

Commonwealth of Pennsylvania, Department of Transportation (Department), Bureau 

of Motor Vehicles (Bureau), imposed the suspension pursuant to Section 4724 of the 

Vehicle Code (Code), 75 Pa. C.S. § 4724, based on an inspection performed on 

November 1, 2018, by Perez-Diaz’s employee, Paul Velez (Velez). Upon review, we 

affirm. 

I. BACKGROUND AND PROCEDURAL HISTORY

Perez-Diaz owns and operates the Station in Temple, Pennsylvania. 

Pursuant to certifications issued by the Bureau, the Station has performed vehicle 

inspections as an official safety inspection station. On August 28, 2019, the Bureau 
2

issued an order which suspended the Station’s certificate of appointment as an official 

safety inspection station. (Reproduced Record (R.R.) at 14a-15a.) In this order, the 

Bureau advised Perez-Diaz that the suspension was being imposed because on 

November 1, 2018, the Station had passed a vehicle with the following items failing 

inspection: “emergency brake cable mounts broken, hole in frame unibody, exhaust 

leaking, struts leaking oil, fail bounce test, [and] no battery tie down, indicating vehicle 

passed in MV[-]431.” (R.R. at 14a.) The Bureau cited violations of 67 Pa. Code §

175.51(a) for faulty inspection of equipment or parts, improper recordkeeping, and 

improperly assigning certificate of inspection, and imposed three consecutive twomonth suspensions. The cumulative six-month suspension took effect on October 9, 

2019. Id. 

On September 17, 2019, Perez-Diaz timely filed an appeal of the sixmonth suspension of the Station’s certificate of appointment with the trial court. On 

December 8, 2020, the trial court held a hearing de novo. At the hearing, the Bureau 

presented the testimony of Brian Sweikert, a Quality Assurance Officer. Sweikert 

testified that he received a complaint about issues with a 2004 Hyundai Elantra 

(Vehicle) with a brand-new inspection sticker. (R.R. at 43a.) The purchaser took the 

Vehicle to a garage, which found that there were “holes in the frame,” and “other major 

issues and other concerns,” and that it should not have passed inspection. Id. Sweikert 

spoke to the purchaser of the Vehicle, who agreed to take it to another business for

Sweikert to inspect it. Sweikert’s inspection took place on December 18, 2018, and 

the original inspection was completed on November 1, 2018. (R.R. at 48a.) Sweikert 

testified that “[t]he results of my inspection showed that the battery tie down was 

missing, the struts were leaking and/or severely damaged. Holes in the frame. The ebrake cables detached from the vehicle, and exhaust leak.” (R.R. at 49a.) Sweikert 
3

determined that the safety inspection sticker on the Vehicle had been issued by the 

Station. (R.R. at 50a-52a.) Sweikert stated that with the specific deficiencies he found 

during his inspection of the vehicle, the Vehicle should have failed inspection. (R.R. 

at 54a-62a.) Sweikert stated the difference in the mileage listed on the inspection 

sticker and the mileage on the day he performed the reinspection was within 93 to 97 

miles. (R.R. at 64a.) Sweikert testified that it was not possible for the rust hole in the 

Vehicle’s unibody to have become as large as it was “in 90-some miles or 43 days.” 

(R.R. at 65a.) Sweikert further testified that each one of the deficiencies he found 

would have required failure of the safety inspection. Id. Photos and documents from 

Sweikert’s investigation of the Vehicle’s deficiencies were admitted into evidence 

without objection. (R.R. at 81a, 114a-143a.) 

Sweikert visited Perez-Diaz’s Station on February 21, 2019, and viewed 

the MV-341 vehicle inspection log, which showed none of the deficiencies found in 

the reinspection for the Vehicle. (R.R. at 68a-89a.) Sweikert questioned Perez-Diaz 

about the inspection, and he indicated that Velez, his employee at the time, performed 

the inspection; however, Velez was no longer working at the Station as he had resigned 

the week prior. (R.R. at 76a.) As to the Bureau’s decision to suspend Perez-Diaz’s 

certification, Sweikert testified that after a Bureau meeting it was determined that 

Perez-Diaz would not be offered points in lieu of suspension. (R.R. at 83a.) 

On March 25, 2021, the trial court denied and dismissed Perez-Diaz’s 

appeal and directed the suspension to be reinstated. (R.R. at 192a.) The trial court 

noted in its order that 

it is not within the [trial court’s] authority to levy what it may 

consider a more appropriate penalty absent a different finding 

than what the [Department] reached. The [trial court] is not 

privy to [the Department’s] reasoning for choosing to run 

three two-month suspensions consecutively rather than 

concurrently or offering the alternative point penalty as 
4

permitted under 67 Pa. Code § 175.51. After hearing, 

however, the [trial court] finds the incident occurred (which 

resulted in three separate citations), and that the law now 

dictates this outcome. 

Id. On April 26, 2021, Perez-Diaz timely appealed to this Court. The trial court 

complied with Pennsylvania Rule of Appellate Procedure 1925. In its opinion, the trial 

court indicated that it determined the Department met its burden to demonstrate that 

there were violations for faulty inspection of equipment or parts, improper record 

keeping, and improper assignment of certificate of inspection. The trial court noted 

that, although it found Perez-Diaz’s testimony credible that he was unaware of Velez’s 

actions, 

67 Pa. Code §175.29(a)(6) creates strict liability for a station 

owner to be fully responsible for the actions of his 

employees “without or without actual knowledge” in 

regards to:

(i) Every inspection conducted by an employe of the 

inspection station.

(ii) Every inspection conducted on the premises.

(iii) Every certificate of inspection issued to the 

inspection station.

(iv) Every certificate of inspection issued by the 

inspection station. 

(v) A violation of the Vehicle Code[

1

] or this chapter 

related to inspections committed by an employe of 

the inspection station. 

(Trial Court Opinion at 6; R.R. at 206a.) 

1

75 Pa. C.S. §§ 101-9701. 
5

II. ISSUES

On appeal,2 Perez-Diaz presents three issues for our review. First, PerezDiaz argues the trial court erred in determining that the Station’s certificate of 

appointment should be suspended because Velez’s inspection of the Vehicle was 

performed without his knowledge or consent. Second, Perez-Diaz contends the trial 

court erred in determining the regulation found at 67 Pa. Code § 175.29(a)(6), which 

was promulgated in accordance with 75 Pa. C.S. § 4724(a), are constitutional. Third, 

Perez-Diaz asserts the trial court erred in determining he was not entitled to a point 

assessment rather than the imposed suspension. 

III. DISCUSSION

A. Strict Liability 

Perez-Diaz contends that his employee, Velez, was acting outside the 

scope of his employment when he committed the three inspection violations because 

Velez was not hired “to perform insufficient or improper inspections.” (Appellant’s 

Br. at 12). 

We begin with a review of the relevant law. Pursuant to the Vehicle Code,

the Department is required to license and regulate vehicle inspection stations. In 

pertinent part, section 4724(a) states: 

The [D]epartment shall supervise and inspect official 

inspection stations and may suspend the certificate of 

appointment issued to a station which it finds is not properly 

equipped or conducted or which has violated or failed to 

comply with any of the provisions of this chapter or 

regulations adopted by the [D]epartment. 

2 Our scope of review in an inspection certificate suspension case “is limited to determining 

whether the trial court committed an error of law or whether the trial court’s findings are supported 

by substantial evidence.” Fiore Auto Service v. Department of Transportation, Bureau of Motor 

Vehicles, 735 A.2d 734 (Pa. Cmwlth. 1998), appeal denied, 739 A.2d 545 (Pa. 1999). Questions of 

witness credibility are solely within the province of the trial court. Department of Transportation, 

Bureau of Traffic Safety v. Karzenowski, 508 A.2d 618, 620 (Pa. Cmwlth. 1986). 
6

75 Pa. C.S. § 4724(a). This provision of the Code “has been construed to impose strict 

liability on a station owner for all acts of its employees conduct[ed] within the scope 

of their employment.” McCarthy v. Department of Transportation, 7 A.3d 346, 350 

(Pa. Cmwlth. 2010) (citing Department of Transportation, Bureau of Traffic Safety v. 

Stahl, 460 A.2d 1223 (Pa. Cmwlth. 1983)); 67 Pa. Code § 175.29 (relating to 

obligations and responsibilities of stations). 

Section 175.51(a) of the Vehicle Code states that “[t]he complete 

operation of an official inspection station is the responsibility of the owner.” 67 

Pa. Code § 175.51(a) (emphasis added). To that end, the station owner’s obligations 

and responsibilities as an official inspection station are set forth in 67 Pa. Code §

175.29. The station owner’s liability is set forth in Section 175.29(a), which states, in 

pertinent part:

(a) Personal liability. It is the responsibility of an inspection 

station to do all of the following: 

. . . . 

(6) To assume full responsibility, with or without 

actual knowledge, for: 

(i) Every inspection conducted by an employe of 

the inspection station.

(ii) Every inspection conducted on the premises.

(iii) Every certificate of inspection issued to the 

inspection station.

(iv) Every certificate of inspection issued by the 

inspection station. 

(v) A violation of the Vehicle Code or this chapter 

related to inspections committed by an employe 

of the inspection station. 

67 Pa. Code § 175.29(a)(6) (emphasis added).

For an act to fall within the “scope of employment,” the employee’s 

conduct must: (1) be of the kind he was employed to perform; (2) occur within the 
7

authorized time and space limits; and (3) and be done at least in part to serve the 

employer. Stahl, 460 A.2d at 1225; see also Strickland v. Department of 

Transportation, 574 A.2d 110 (Pa. Cmwlth. 1990) (holding employer liable for his 

employees’ actions in performing faulty vehicle inspections because the employees 

were hired to perform vehicle inspections, the inspections occurred during regular 

business hours, and the employer received financial remuneration for the employees 

performing the inspections). The station owner can defend an enforcement action by 

showing that the employee acted outside the scope of his employment. McCarthy, 7 

A.3d at 351. 

Applying this three-pronged test to this case, Velez was acting within the 

scope of his employment. First, Velez conducted the inspection of the Vehicle at the 

Station. Second, the inspection occurred within the Station during normal work hours 

while Velez was present and scheduled to be working at the Station. Last, the MV-431 

sheet shows that the owner of the Vehicle paid the Station $259.30 for performing the 

inspection and making repairs to the vehicle. By obtaining payment from the vehicle 

owner for the inspection and repairs, Velez’s conduct was done at least in part to serve 

Perez-Diaz and the Station. Strickland, 574 A.2d at 113; Shuman’s Estate v. Weber, 

419 A.2d 169, 173 (Pa. Super. 1980). 

Because Velez’s conduct was done within the scope of his employment, 

the general law of agency has application here and Perez-Diaz does have strict liability

for the conduct of his employees relative to the inspection of motor vehicles. 

Department of Transportation, Bureau of Traffic Safety v. Searer, 413 A.2d 1157, 1159

(Pa. Cmwlth. 1980). Therefore, as the trial court stated, we conclude that “the 

Department was entitled to hold [Perez-Diaz] responsible for Mr. Velez’s violations.” 

(Trial Court Opinion at 7). 
8

B. Constitutionality of Department’s Regulations

Next, we address Perez-Diaz’s argument that the regulation at 67 Pa. Code 

§ 175.29(a)(6), which was promulgated in accordance with 75 Pa. C.S. § 4724(a), is 

unconstitutional as the implications of such regulation allow broad discretion to the 

Department. (Appellant’s Br. at 13). Perez-Diaz argues that under section 4724(a), 

the adoption of section 175.29(a)(6) provides the Department with “broad discretion in 

the implementation of punishment” of the regulations. (Appellant’s Br. at 14). PerezDiaz argues that the regulation interferes with his right to run a business and earn 

income, which he asserts are fundamental rights, and, therefore, we must utilize the 

strict scrutiny test. (Appellant’s Br. at 13). 

In its Pa.R.A.P. 1925(a) opinion, the trial court did not address this 

argument as Perez-Diaz waived the issue by not raising it before the trial court. The 

trial court further stated that even if Perez-Diaz properly preserved the issue, he did not 

identify “the bases for his challenge or state how or why the statute is constitutionally 

infirm,” and for that reason, the trial court did not address the issue. (Trial Court 

Opinion at 7-8.) However, we conclude that Perez-Diaz did properly raise the issue in 

his brief before the trial court. (R.R. at 149a.) 

From what this Court can surmise from Perez-Diaz’s brief, he argues that 

the Department’s broad discretion in the implementation of punishment has interfered 

with his ability to run a business and earn an income. (Appellant’s Br. at 14.) PerezDiaz cites to no authority to support the proposition that he has a fundamental right to 

operate the Station or how 75 Pa. C.S. § 4724(a) is unconstitutional, and instead, he 

merely cites to authority regarding the strict scrutiny test. (Appellant’s Br. at 13-14). 

Previously, our Supreme Court has held that no one has a “fundamental right” to 

operate an official safety inspection station. Commonwealth v. W.J. Harris and Son, 

170 A.2d 591, 592 (Pa. 1961). As an inspection station owner’s certificate of 

appointment to conduct vehicle inspections is a privilege and not a fundamental 
9

right, legislation affecting it must be evaluated under a rational basis analysis. Cf. 

Department of Transportation, Bureau of Driver Licensing v. Middaugh, 244 A.3d 

426, 434 (Pa. 2021). Once a violation of the inspection provisions of the Code has 

taken place, the Department has not only the power set by 75 Pa. C.S. § 4724, but the 

duty to suspend the certificate of appointment. Searer, 413 A.2d at 1159. Thus, we 

utilize the rational basis test, not strict scrutiny as Perez-Diaz argues, in reviewing his

constitutional claim. 

In Probst v. Department of Transportation, Bureau of Driver Licensing, 

the Supreme Court set forth the following two-step analysis: 

First, we determine whether the challenged statute seeks to 

promote any legitimate interest or public value. If so, we then 

determine whether the classification adopted in the legislation 

is reasonably related to accomplishing that articulated stated 

interest or interests. In undertaking this analysis, we are free 

to hypothesize reasons the legislature might have had for the 

classification, and will not declare a genuine classification

void even if we might question the soundness or wisdom of 

the distinction. Furthermore, we keep in mind that because a 

presumption of constitutionality attaches to any lawfully 

enacted legislation, the burden is upon the party attacking a 

statute to rebut the presumption of constitutionality by a clear, 

palpable, and plain demonstration that the rational basis test 

is not met. 

849 A.2d 1135, 1133 (Pa. 2004) (internal citations omitted). Applying the first step, 

the Bureau is protecting the public from unsafe vehicle inspections by imposing a 

suspension of an inspection station’s certificate of appointment when that station has 

committed a violation of inspection regulations. W.J. Harris, 170 A.2d at 592; Searer, 

413 A.2d at 1159. As to the second step, imposing a suspension is “reasonably related 

to accomplishing the articulated state interest” of protecting the public from unsafe 

vehicle inspections because it encourages the station owner to perform all future

inspections in strict conformity with vehicle inspection regulations for the safety of the 
10

vehicle owner and public. Probst, 849 A.2d at 1144. There is no doubt that 

encouraging a station owner to provide safe inspections to the station’s customers is a

“legitimate interest or public value.” Id. Therefore, we conclude that 67 Pa. Code §

175.29(a)(6) passes the two-step rational basis test.

Lastly, regarding the constitutionality of 67 Pa. Code § 175.29(a)(6) as 

promulgated by 75 Pa. C.S. § 4724(a), we note that there is “a presumption of 

constitutionality attaching to any lawfully enacted legislation” and “[s]hould the 

constitutionality of such legislation be challenged, the challenger must meet the burden 

of rebutting the presumption of constitutionality by a clear, palpable, and plain 

demonstration that the statute violated a constitutional provision.” McKeown v. 

Department of Transportation, Bureau of Driver Licensing, 869 A.2d 556, 560 (Pa. 

Cmwlth. 2004) (citing James v. Southeastern Pennsylvania Transportation Authority, 

477 A.2d 1302, 1304 (Pa. 1984)). For state police power to be exercised reasonably, 

it must be in “the interests of the public generally,” “the means are reasonably 

necessary for the accomplishment of the purpose, and must “not be unduly oppressive 

upon individuals.” George Washington Motor Lodge Co. v. Department of 

Transportation, 545 A.2d 493, 495 (Pa. Cmwlth. 1988). The requirements contained 

in § 175.29(a)(6) support the “interests of the [motoring] public generally,” are 

“reasonably necessary for the accomplishment of the purpose” of protecting the public 

from unsafe vehicle inspections, and are not “unduly oppressive upon individuals.” Id. 

This is because the requirements of section 175.29(a)(6) are directed towards one 

person, generally the inspection station owner who is also the holder of the certificate 

of appointment, because he/she are in the best position to oversee vehicles inspections 

and ensure that they are performed in accordance with the Department’s regulations. 

Section 175.29(a)(6) necessitates the attentiveness of the station owner in overseeing 

vehicles’ inspections performed by the station employees to effectuate the safety of not 

only the vehicle owner but for anyone in the vicinity of the vehicle during its operation. 
11

We conclude that Perez-Diaz failed to show that both 67 Pa. Code §

175.29(a)(6) is an unreasonable exercise of state police power, George Washington 

Motor Lodge Co., 545 A.2d at 496, and that its promulgating statute 75 Pa. C.S. §

4724(a) is a “clear, palpable, and plain” violation of the constitution, McKeown, 869 

A.2d at 560. 

C. Points v. Penalty 

Finally, Perez-Diaz argues that when the Department explained why the 

point assessment was not offered, it set forth a “list of ambiguous charges,” which are 

not applicable to the case. (Appellant’s Br. at 16). Perez-Diaz contends that the 

testimony at the trial court’s hearing directly contradicted the Department’s reasons for 

choosing suspension over points. 

In relevant part, 67 Pa. Code § 175.51(b)(1) provides: 

(b) Assignment of points. The Department will permit 

the station owner to consent to the acceptance of a point 

assessment for the station in lieu of suspension, if the 

station owner, manager, supervisor or other 

management level employe was without knowledge of 

the violation, and should not have known of the 

violation.

(1) The station owner bears the burden of 

proving that the station owner provided 

proper supervision of the employe who 

committed the violation, but that the owner’s 

supervision could not have prevented the 

violation. 

67 Pa. Code § 175.51(b)(1) (emphasis added). Thus, the regulation authorizes the 

assessment of points in lieu of suspension, and it imposes a burden upon a station owner 

to establish eligibility. 

In cases where the owner of a licensed inspection station has no 

knowledge of an employee’s violation of state regulations, the Department must 
12

consider offering points in lieu of suspension of the owner’s certificate and provide 

evidence of such consideration. McCarthy, 7 A.3d at 353; 67 Pa. Code § 175.51(b)(1) 

(stating that if a station owner had no knowledge of an employee’s violation, the 

Department may permit the acceptance of a point assessment in lieu of suspension). 

The evidence must explain why the Department chose or declined to offer points in 

lieu of suspension. Id. However, “the point system is only an option when an employee 

performs a faulty inspection without the knowledge of the station manager despite the 

station manager’s proper supervision.” Castagna v. Department of Transportation, 

Bureau of Motor Vehicles, 831 A.2d 156, 162 (Pa. Cmwlth. 2003) (emphasis added). 

The station owner bears the burden of proving that he properly supervised the employee 

who committed the violation but that such supervision could not have prevented the 

violation. McCarthy, 7 A.3d at 352; 67 Pa. Code § 175.51(b)(1). In Kerbeck v. 

Department of Transportation, Bureau of Traffic Safety, 459 A.2d 908, 909 (Pa. 

Cmwlth. 1983), we found that the station owner’s testimony, rather than proving 

supervision of the employee, had instead established the lack of supervision of the 

employee who committed the offense. There, the station owner testified that he “hired 

what [he] believe[d] to be competent people, and that was [his] way to supervise [the 

Station] by hiring competent people to do the job.” Id. 

Here, Perez-Diaz failed to explain what procedures, if any, he had in place 

to supervise Velez’s performance of the vehicle inspections. Like the station owner in 

Kerbeck, Perez-Diaz’s testimony established that he did not provide Velez with any 

supervision, namely because “the reason [he] hired [Velez] was because he was a state 

inspector.” (R.R. at 100a.) Perez-Diaz testified that he considered himself responsible 

only for the inspections he performed, and not those performed by Velez. (R.R. at 

109a-110a.) He further testified that he did not spot check or supervise Velez 
13

performing inspections. (R.R. at 100a, 103a-104a.) Because Perez-Diaz offered no 

evidence regarding his procedure for overseeing or reviewing Velez’s work, he failed 

to satisfy his burden of proof regarding proper supervision. 

Moreover, the Bureau’s evidence at the hearing demonstrated that it 

considered, but rejected, point assessment in this case. In a form titled, “Consideration 

of Point Assessment in Lieu of Suspension,” a Department representative authorized 

and signed on August 1, 2019, the Department’s reason for refusing to offer Perez-Diaz 

a point assessment, which it described as the “Owner/Manager unable to establish if 

supervision was provided at the time of the violation(s).” (R.R. at 4a.) This is the only 

reason on the form that the Department representative authorized for suspending the 

Station’s license in lieu of points.

3

 Because the record demonstrates that the 

Department considered the point assessment option, and explained its reason for 

declining it, the Department has satisfied its burden. See McCarthy, 7 A.3d at 353 

(“[I]n all inspection certificate suspension cases, the Department must at least consider

the use of the points system and provide evidence of this consideration.”) (emphasis in 

original). But see Strickland, 574 A.2d at 114 (vacating and remanding to the trial 

court for reconsideration of penalty where the record was silent as to whether the 

Department considered or offered the point-assessment option). 

Accordingly, we conclude that Perez-Diaz’s testimony established that he 

did not provide Velez with supervision at the Station, and, therefore, did not satisfy his 

burden of proof. Furthermore, we conclude that the record reflects that the Department 

considered the assessment of points in lieu of suspension. 

3

In his brief, Perez-Diaz argues the Department set forth numerous reasons why point 

assessment was not offered in the list of “ambiguous charges” on its “Consideration of Point 

Assessment in Lieu of Suspension.” (Appellant’s Br. at 16-17.) We note that the only reason selected 

by the Department representative to authorize suspension over points was “Owner/Manager unable 

to establish if supervision was provided at the time of the violation(s).” (R.R. at 4a.) 
14

IV. CONCLUSION

For the foregoing reasons, we affirm the trial court’s order. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Javier Perez-Diaz, :

Appellant : No. 474 C.D. 2021

:

 v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Motor Vehicles :

ORDER

AND NOW, this 11th day of July, 2023, the March 25, 2021 order of 

the Court of Common Pleas of Berks County is AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge