IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Cabon/Cabon's Central : Auto Service, : Appellant :

: v. : No. 147 C.D. 2016
: Submitted: August 12, 2016 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Motor Vehicles :
BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK , Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON FILED: October 17, 2016

Robert Cabon/Cabon’s Centra l Auto Service (Cabon) asks whether the Court of Common Pleas of Allegheny County (trial court) erred in dismissing
its statutory appeal of two consecutive one

- year suspensions of its Certificate of Appointment (Certificate) as an official emission inspect ion station as well as a fine of $ 5,0 00 imposed by the Department of Transportation, Bur eau of Motor Vehicles (PennDOT). Cabon asserts the trial court’s decision is not su pported by
substantial evidence and the trial court erred as a matter of law. He al so contends
PennDOT did not follow requi red procedures to justify an order upholding the suspension and fines. Upon review, we affirm

.

I. Background By official notice dated March 13, 2015, PennDOT notified Cabon of the imposition of two consecutive one

- year suspensions of his Certificate and two2

fines of $2,500 each for : (1) furnishing, lending, giving, selling or receiving a certificate of inspection without inspectio n ; and , (2) fraudulent record keeping. See Section 4724 of the Vehicle Code, 75 Pa. C.S. §4724.

Cabon appealed to the trial court. T he Honorable Robert C. Gallo ( now retired) held a hearing. After the hearing, Judge Gallo entered an o rder dismissing Cabon’s appeal. Cabon appealed to this Court, and the trial court directed it to file a concise statement of the errors complained of on appeal, which
it did. The trial court , through Senior Judge Lester G. Nauhaus, then issued an opinion pursuant to Pa. R.A.P. 1925(a), in which it set forth the following findings

.

At the hearing, PennDOT presented the testimony of Quality
Assurance Officer Aaron Dacko ( QAO Dacko)

. QAO Dacko testified he was employed with Parsons Subcontracting (Parson s ) , through PennDOT, as a quality assurance officer for 10 years. He has also been certified by Penn DOT as an official emissions inspector for 10 years

. QAO Dacko conducts audits and investigates inspection emissions stations to ensure inspection stickers are properly
issued. Tr. Ct. Hr’g, Notes of Testimony (N.T.), 10/8/15, at 8; Reproduced Record (R.R.) at 8a.

An Onboard Diagnostic (OBD) test i s required for emission s inspection s on all vehicles with a model year of 1996 or newer. N.T. at 8

- 9; R.R.

a t 8a

- 9a. The specific requirements to properly perform the OBD test are found in 67 Pa. Code §177.203. The OBD test requires a station’s technician to plug a cable from an emissions analyzer into the vehicle being tested so that the vehicle3

and the analy zer may communicate with each other. Id. The analyzer records the
Vehicle Iden tification Number (VIN) of the vehicle that receive s the inspection
sticker.

PennDOT investigated Cabon because its station number was listed

on a monthly printout that showe d six discrepancies be tween a) the VINs Cabon’s
technicians inputted or scanned in to the analyzer from information on the owner’s vehicle registration card, and b) the VIN s from the vehicles that were actually
connected to the analyzer. These VIN s should match , and when they do not , th at information is listed in the printout. N.T. at 9 ; R.R. at 9a

.

The trial court explained t he printout was Parson’ s business record.
Cabon objected to its admission, claiming it was a PennDOT record and there was

no PennD OT witness present to testify. N. T . at 21 ; R.R. at 21a. The trial c ourt explained it properly admitted the printout in light of QAO Dacko ’s testi mony that Parsons owns and operates the server that transmits all of the records from every
emissions analyze r to Harrisburg. Parson s stores and process es all the data recorded from the analyzer for the printout. N. T . at 11 ; R.R. at 11a. Parsons does not prov ide the analyzers to inspection stations; rather, “[t] hey are independent analyzers and manufacturers. ” N.T. at 27; R.R. at 27a. The printout contains a table that lists the m ake, year, model and VINs of vehicles from the vehicle owners’ registration cards, which are scanned or typed into the analyzer by the technician, and the OBD test VIN and model numbe rs of vehicles that a re connected to the analyzer. The printout also contains the inspection s tation number, and the t ech nician’s identification (ID) number

. The t ech nician ID4

number indicates which technician entered his number into the analyzer to begi n the emission s testing process. N. T . at 12; R.R. at 12a.

Cabon’ s station number is 1449. T he printout listed six vehicles for
which Cabon ’s station issued emissions inspection stickers in which there were discrepancies between the VINs Cabon’s technic ians entered or scanned from the vehicle owners’ registration cards and the VINs recorded by the analyzer from the vehicles actually connected during the OBD test. In other words, relying on QAO Dacko’s testimony and its documentary evidence, including th e monthly printout,
PennDOT claimed Cabon issued emissions inspection stickers to six vehicles that did not undergo the required OBD emissions testing. As such , the printout listed
six mismatches for Cabon’s station with two technician ID numbers.

Dan K ardell (Kardell) was the technician assigned to two of the vehicles; the other four vehicles use d the technician ID number for the station’s

owner, Robert Cabon. N.T. at 18

- 19

. 1 Kardell performed inspections for 17 years, and Robert Cabon performed inspections for 19 years. N.T. at 60

- 61 ; R.R. at 60a

61a . Neither Kardell nor Robert Cabon was previously involved with an inspection station violation. Further, it was stipulated that Robert Cabon was recovering from surgery during the relevant period; thus , he was not personally

1 On direct examination, QAO Dacko testified Robert Cabon’s technician identification (ID) number was used in connection with four of the emissions inspections; however, on cros s

examination , QAO Dacko acknowledged that Robert Cabon’s technician ID number was not the technician ID number used in connection with these four inspections. Tr. Ct. Hr’g, Notes of Testimony (N.T.), 10/8/15, at 18

- 19, 28

- 29 ; Reproduced Record (R.R.) at 1 8a

- 19a, 28a

- 29a

. Nevertheless, the printout described above identified Cabon as the official inspection station that performed these four inspections , R.R. at 151a, and Cabon did not deny that these four inspections were performed at its station.5

involved in any of the inspections. N. T . at 38

- 39; R.R. at 38a

- 39a. For his part,
Kardell denied that he ever connected the analyzer to a ve hicle other than the one subject to inspection

. N.T. at 39 ; R.R. at 39a

.

T hrough Kardell’s testimony
, Cabon asserted a defective analyzer probably ca used the VIN mism atches. Kardell testified that numerous times daily
the connection with the remote computer (the P ennDOT computer) would
terminate because the remote computer did not respond in a timely manner. N.T. at 42; R.R. at 42a. T his would result in an error code. Kardell testified he previously observed a situation in which a VIN was in the analyzer and the error code appe ared, which caused the same VIN to remain in the analyzer until it was cleared, and it could potentially remain there for the next vehicle tested . N.T. at
43

- 44 ; R.R. at 43a

- 44a

.

In its Pa. R.A.P. 1925(b) Statement, Cabon claimed the trial c ourt erred by finding in favor of PennDOT , asserting the trial court’s finding wa s against the weight of the evidence and the evidence was insufficient to sustain the trial court’ s finding.

The trial court observed that t h is case i nvolved a matte r of credibility,
and t he trial c ourt, as trier of fact, was free to make all credibility determinations.
It is well

- established that the fact

- finder exclusively weighs the evidence, assess es the credibility of witnesses and may choose to believe all, par t, or none of the testimony. Commonwealth v. Sanchez , 36 A.3d 24 (Pa. 2011).6 Here, t he trial court explained that it reviewed the evidence admitt ed

at the hearing, and it determined the evidence supported a determination that
Cabon committed the two viol ation s PennDOT charge d : furnishing, lending, giving, selling or receiving a certificate of inspection without inspection and fraudulent recordkeeping. In particular, t he printout show ed the di screpancy between the VIN s. The trial court further stated Cabon’s explanation as to the
cause of the discrepancy was merely a theory that was unsubstantiated by the
evidence presented at the hearing

. Thus, the trial court stated that this Court should affirm the trial court’s order that dismissed Cabon’s appeal of the suspension and fines. This matter is now before us for disposition.

II. Issues On appeal, 2 Cabon asserts: the trial court’s decision is not supported
b y substantial evidence; the trial court erred as a matter of law ; and, PennDOT did not follow the requisite procedures for the suspension and fines to be upheld.

III. Discussion A. Contentions
Cabon first argues the trial court’s order d id not include any findings or analysis. Rather, its determination was limited to a single sentence that Cabon’s appeal was dismissed aft er due consideration. Cabon further contends the trial
court’s o pinion notes Robert Cabon was recovering from surgery when the inspections at issue were conducted; th us , he was not personally involved i n any of

2 Our 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 findi ngs we re supported by substantial evidence. McCarthy v. Dep’t of Transp. , 7 A.3d 346 (Pa. Cmwlth. 2010).7

the inspections

. Cabon points out that Kardell performed inspections for 17 years , and Robert Cabon had a license to perform inspect ions for 19 years. T he trial
court’s o pinion indicates neither of these individuals was involved in prior
violati ons. In fact, Kardell testified this wa s the first time he was aware that Cabon

was accused of connecting the analyzer to the wrong vehicle. Robert Cabon
confirmed this fa ct.

Cabon maintains QAO Dacko , PennDOT’s sole witness , admitted he
had no personal knowledge that Robert Cabon, Kardell, or anyone else actually
connected the analyzer to the wrong vehicle. Rather, PennDOT based its entire case on the printout it submitted to suggest the wrong vehicle was connected to the analyzer

. QAO Dack o also admitted that the error code referenced by Kardell
would occur with some frequency indicating the PennDOT computers were not connecting. Further, QAO Dacko admitted that when the error code occur red, the previous VIN remain ed in the analyzer for th e next vehicle . Cabon contends t his testimony wa s significant as the allegations we re based on a mismatch of the VIN s in the printout

.

Cabon also contends Kardell testified about the difficulty the station experienced with the connection to the remote PennDOT computer. It offered a photograph of the analyzer into evidence to show the connection would termina te when the remote PennDOT computer did not timely respond. Kardell testified
when this occurred, the VIN of the last vehicle inspected would rema in in the analyzer

. Cabon argues it offered Kardell ’s testimony to explain why the printout
PennDOT presented was in accurate. It contends Kardell’s testimony was not8

inconsistent with QAO Dacko’ s testimony that the last VIN would remain in the analyzer w hen an error occurred.

Further, K ardell confirmed the period at issue coincide d with the period in which the computer pro blem existed. Kardell testified he observed the error message many times , and it appeared when Parson ’ s represen tatives were present. Cabon contends t he analyzer at its station was in use since 1996. Cabon argues t his fact prompted the trial court to ask QAO Dacko whether analyzers we r e inspected or calibrated. QAO Dacko responded that the analyzers we re serviced by t he manufacturer based on complaints from station owner s

.

Cab on maintains t he issues here also involve the question of whether
the trial court’s findings we re adequately supported. It argues t he evidence presented establishes it was in business for many years and this wa s the first time it

w as accused of violations of this nature. Cabon asserts Section 4724(c) of the
Vehicle Code provides that a c ourt, on appeal from a suspension, may consider the
volume of inspections conducted by a station and provide the owne r of the station

an opportunity to correct any inaccurate records. 75 Pa. C.S. § 4724(c). Cabon
contends n o evidence was presented that it received this opportunity

.

Cabon further maintains PennDOT di d not present any evidence that it

sa tisfie d its obligation to offer Cabon points in lieu of suspension , as it must do
when a station owner has no knowledge of an employee’ s violations, as long as proper supervision is shown. See McCarthy v. Dep ’ t of Transp

. , 7 A.3d 346 (Pa.
Cmwlth. 2010) ; 67 Pa. Code §175.51(b)

.9 Cabon argues t he fines and suspensions here were based on two
conclusions : that the wrong vehicle was connected to t he analyzer and t hat its
records were fraudulent. Cabon asserts a finding of fraud requires more than speculation based on computer printouts of VIN mis match es

. Rather, fraud requires proof of intent. It contends QAO Dacko’ s testimony that he had n o such
evidence and the fact that Robert Cabon, the station owner , was home recovering from surgery, require the trial c ourt’s o rder be reversed as it wa s not supported by
sufficient evidence. Cabon asserts t he charges here mirror those in Snyder v.
D epartmen t of T ransportation, Bureau of Motor Vehicles , 970 A.2d 523 (Pa. Cmwlth. 2009) , in which, it argues, this Court noted that PennDOT did not explain how a mechanic’s innocent mistake could constitute proof of charges similar to
those at issue here.

B. Analysis

The trial court’ s role in an inspection certificate appeal is limited “solely to a de novo determination of whether the person charged with the violation has indeed committed the violation for which the sanction was imposed.” Snyder , 970 A.2d at 527 (quoting Dep’t of Transp., Bureau of Traffic Safety v. Verna , 351 A.2d 694, 695 (Pa. Cmwlth. 19 76)). Matters of witness credibility are exclusively within the province of the trial court. Firestone Tire & Serv. Ctr., O.I.S. # 798 v. Dep’ t of Transp. , 871 A.2d 863 (Pa. Cmwlth. 2005).

The Vehicle Code requires PennDOT to license and regulate vehic le inspection stations. Section 4724(a) of the Vehicle Code states, in relevant part:

(a) General rule.

-- [PennDOT] shall supervise and inspect official inspection stations and may suspend the certificate of10 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 [PennDOT]. ...

75 Pa. C.S. §4724(a). We construe this provision as imposing strict liability on a station owner for all acts of its employees conducted within the scope of their employment. McCarthy ; Dep’ t of Transp

. , Bureau of Traffic Safety v. Stahl , 460
A.2d 1223 ( Pa. Cmwlth. 1983). For an act to fall within the “sco pe of

em ployment,” the employee’ s conduct must: (1) be of the kind he was employed t o perform; (2) occur within authorized time and space limits; (3) and must be done at least in part to serve the employer. McCarthy , 7 A.3d at 351 (cit ations omitted)

. The statio n owner can defend an enf orcement action by showing the employee acted outside the scope of his employment. Id.

Pursuant to Section 177. 427(3) of PennDOT’s regulations: “A person may not ... [f] urnish, loan, give or sell certificates of emission inspectio n and approval to any

... other person except upon an emission inspection performed in accordance with this chapter. ” 67 Pa. Code §177.427(3); see also 67 Pa. Code § 177.602 (a) (setting forth penalty for f urnish ing , lend ing, giving , sell ing or receiv ing of certificate of emission inspection without inspection ). In 2014, the year Cabon conducted the emissions inspections at issue here, an OBD test was required for emissions inspections on all vehicles with a model year of 1996 or
newer. N.T. at 8

- 9; R.R. at 8a

- 9a.

In addition, “ f

raudulent recordkeeping” is defined as:11 A recordkeeping entry not in accordance with fact, truth or required procedure that falsifies or conceals one or more of the following : (i) That a certificate of inspection was issued without compliance with the required inspection procedure

. (ii) The number of inspections performed.
(iii) The individuals or station that performed the inspection.

67 Pa. Code §177.601 (emphasis added)

.

Each of the above violations is punishable by a one

- year suspension and a fine of $2,500 for a first offense. 67 Pa. Code § 177.602 (a).

Here, the trial court determined PennDOT properly suspended Cabon’s Certificate and imposed fines for providing emissions inspection stickers without performing ins pections and fraudulent record keeping. The record supports the trial court’s de terminations as to these violations

.

More specifically , the trial court credited the testimony of QAO Dacko, who served as a quality assurance officer with Parsons, a PennDOT subcontractor, for 10 years. N.T. at 8; R.R. at 8a. QAO Dacko has been certified by PennDOT as an official emissions inspector for 10 years. Id. QAO Dacko explained that in 2014, the year at issue, emissions inspections on vehicles with model years of 1996 or newer required an OBD test, which requires the technician

to connect a cable from the analyzer to the vehicle being tested

. N.T. at 8

- 9; R.R.
at 8a

- 9a. QAO Dacko further explained that in June 2014, he conducted an12

investigation into possible violations by Cabon after receiving a monthly printout that showed certain instances in which Cabon conducted emissions inspections where the VINs from the vehicle owners’ registration cards did not match the VINs
of the vehicles that were connected to the analyzer. N.T. at 9; R.R. at 9 a . QA O Dacko identified the printout, which the trial court admitted over Cabon’s objection. R.R. at 9a

- 10a. The printout listed six vehicles for which the VINs on the vehicle owners’ registration cards did not match the VINs for the vehicles that were connected to Cabon’s analyzer and for which Cabon issued emissions
stickers

. N.T. at 12

- 15, 17

- 20; R.R. at 12a

- 15a, 17a

- 20a; see R.R. at 151a. 3 Thus, Cabon reported that six vehicles passed emissions inspections , which wer e not the vehicles actually inspected. As such, no error is apparent in the trial court’s
de termination that PennDOT proved Cabon was subject to a suspension of its Certificate for one year and a fine of $2,500 for furnishing emissions inspection
stickers to six vehicles without co nducting the required testing

. See 67 Pa. Code § 177.602 (a)

.

Fur ther, while Cabon maintains Kardell explained that the mis matches on the printout arose because of a n error that occurred resulting in the VIN for the

3 In particular, the printout shows the technician typed or scanned the following information from the vehicle registration cards: 2002 Chevrolet Impa la, VIN 2G1WF55E829375887; 2001 Ford Ranger shortbed truck, VIN 1FTZR15E01PA28056; 2010 Chevrolet Impala, VIN 2G1WD5EM7A1206535; 2001 Toyota Camry Solara, VIN 2T1CF22P71C456215; 1996 Mazda UMR, VIN 1YVGE31C3T5577701; and , 1997 Pontiac G rand AM, VIN 1G2NE52 T1VM549125. In contrast, the following OBD test information was transmitted to the analyzer (for each vehicle respectively): 2010 G6, OBD VIN 1G2ZA5EB6A4108780; 2002 Silverado, OBD VIN 1GCGK29U52Z134625; 2006 Equinox, OBD VIN 2CNDL73F466118324; 2012 Toyot a Venza, OBD VIN 4T3BK3BB6CU067091; 2005 Xterra, OBD VIN 5N1AN08W75C609070; 2012 Civic, OBD VIN 2HGFB2F90CH580387. R.R.151a

.13

prior vehicle remaining in the analyzer , the trial court did not credit Kardell’s testimony. Rather, it credited the testimony of QAO Dacko and PennDOT’s documentary evidence

. I n any event, as the trial court recognized , Kardell only
testified that this error “could” or “possibly could” occur, and Kardell only inspected two of the six vehicles at issue. N.T. at 39, 43, 44; R.R. at 39a, 43a , 44a

. Further, Kardell could not say that this error occurred on the two vehicles he inspected, see N.T. at 56

- 57; R.R. a t 56a

- 57a, and Cabon did not offer evidence that this error occurred on the remaining four vehicles at issue.

In addition, our review of QAO Dacko’s testimony, together with PennDOT’s documentary evidence, reveals support for the trial court’s
determinat ion that Cabon also committed a violat ion for fraudulent recordkeeping. In particular, QAO Dacko testified the emissions inspection records generated by Cabon for the six vehicles at issue were false in that they reported that the vehicles passed emission s inspections when, in fact, they had not ( in light of the fact that the analyzer was connected to a different vehicle in each instance )

. N.T. at 20

- 25;
R.R. at 20 a

- 25a , 153a

- 58a.

C ontrary to Cabon’s assertions, a charge of fraudulent recordkeeping
does not requir e proof of intent. See Orji v. Dep’t of Transp. (Pa. Cmwlth., No. 153 C.D. 2013, filed November 8, 2013), 2013 WL 5973937 (unreported). 4 Rather, the applicable regulation defines fraudulent recordkeeping , in part, as “[a] recordkeeping entry not in accordance with fact, truth or required procedure that

4 Pursuant to Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code § 69.414, an unreported panel decision of this Cour t, issued after January 15, 2008, may be cited for its persuasive value.14

falsifies or conceals

... [t]hat a certificate of inspection was issued without compliance with the required inspection procedure.” 67 Pa. Code §177.601(i). Further, “[a ] n entry made to mislead anyone inspecting the record into believing
that the record was correct is deceitful. ” Firestone Tire & Serv. Ctr. , 871 A.2d at 867 (citation omitted). Here, as set forth above, the record supports the trial court’s determination that Cabon generated emissions inspections records that indicated six vehicles passed emissions tests, when, in fact, they had not

. U nder the express language of Section 177.601 (i) , Cabon’s record of the se six emissions inspection s was fraudulent. See M cCarthy

.

Nevertheless, Cabon argues PennDOT should not have suspended its Certificate in light of the fact that its owner, Robert Cabon, was at home recovering from surgery when the violations at issue occurred, and, therefore , he

was not personally invo lved in any of the inspections at issue. Contrary to this assertion, and as set forth above, in McCarthy , this Court explained that Section 4724(a) of the Vehicle Code, “ has been construed to impose strict liability on a
station owner for all acts of its employees conducted within the scope of their employment. ” McCarthy , 7 A.3d at 350 (citation omitted). To that end, the applicable regulation on the station owner’s liability is set forth in 67 Pa. Code §177.421. It states, in pertinent part:

(a) Personal liability. It is the responsibility of the owner of an emission inspection station to:

* * * *
(6) Assume full responsibility, with or without actual knowledge, for :15 (i) Every emission inspection conducted at the emission inspection station

. (ii) Every emission inspection waiver delivered by a certified repair technician at the emission inspection station. (iii) Every certificate of emission inspection issued to the emission inspection station.
(iv) Every violation of the Vehicle Code or this chapter related to emission inspections committed by an employee of the emission inspection station

. (v) Maintaining an adequate supply of current certificates of emission inspection and inserts for issuance.

67 Pa. Code § 177.421(a)(6) (emphasis a dded). Thus, the regulation imposes strict liability on station owners for “[e] very emission inspection conducted at the emission inspection station ” as well as “[e]very violation of the Vehicle Code [or its attendant regulations] related to emission insp ections committed by an employee of the emission inspection station. ” Here, Cabon make no assertion that Kardell acted outside the scope of his employment. Therefore, Robert Cabon, as station owner, is subject to strict liability for the violations of hi s employees. See McCarthy

.

In short, because the record supports the trial court’s factual determinations, and those findings, in turn, support the trial court’s legal determinations, we will not disturb the trial court’s decision

.

Moreover , this case is distinguishable from Snyder , relied on by
Cabon. I n Snyder , we declined to disturb a trial court’s factual finding that a
mechanic made “ an unintentional mathematical error” in calculat ing a vehicle’ s16

mileage driven since the prior emissions inspection when he issu ed a 5,000

- mile exempt emissions sticker. Thus, in Snyder , “[the mechanic] did not admit that he furnished a certificate of inspection without performing an inspection or that he
committed fraudulent record keeping, the two charges against him. In fact, he did not furnish a certificate of inspection; rather, he furnished a certificate of exemption from inspection. ” Id. at 528. Unlike Snyder , the trial court here did not credit Kardell’s testi mony or afford any weight to Cabon’s documentary evidence.
I nstead, it credit ed QAO Dacko ’s testimony and PennDOT’s documentary evidence, which reveal ed Cabon did, in fact, issue emissions inspections stickers
for s ix vehicles without conducting the required emi ssions inspections on those vehicles as well as generating fraudulent record s to that effect. Thus , Synder does not compel the result Cabon seeks here.

Nevertheless , Cabon relies on Section 4724(c) of the Vehicle Code , which states:
[PennDOT] prior to suspending a certificate of appointment of

an official inspection station on the grounds of careless recordkeeping or the court on appeal from a suspension may consider the volume of inspections conducted by the inspection station and provide to the owner or operator of the inspection station the opportunity to correct any inaccurate records.

75 Pa. C.S. §4724(c).

Here, the trial court expressly considered the volume of inspections Cabon conducted. Tr. Ct., Slip Op., at 4 . However, it did not permit Cabon an opportunity to correct its records. This is not surprising in light of the trial court’s determinations that Cabon committed violations by providing emissions17

inspection s stickers without performing the required insp ections and fraudulent recordkeeping. Additionally, Section 4724(c) of the Vehicle Code expressly states

a court may consider the volume of inspections conducted by the in spection station and provide the owner or operator of the inspection station with th e opportunity to correct any inaccurate records

. Id. Thus, this provision is discretionary.

Finally , while Cabon points out that in McCarthy , this Court stated
that in all inspection certificate suspension cases, PennDOT must at least consider
the use of the points system (in lieu of suspension) and provide evidence of this consideration, and it did not do so here, our review of the record here reveals
Cabon did not raise this i ssue in either its appeal of PennDOT’s suspension notice 5 or at the hearing before the trial court. See N.T. at 1

- 73; R.R. at 1a

- 73a (hearing transcript); R.R. at 78 a

- 8 0 a (petition for appeal). Therefore, this issue is waived.
See Pa. R.A.P. 302(a) (i ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal )

.

5 Although Cabon notes that its petition for appeal of PennDOT’s suspension notice generally asserted the suspension and fine violated its due process rights, R.R. at 79a, the petitio n contain ed no assertion that PennDOT did not follow required procedure by considering an offer of points to Cabon in lieu of suspension

. R.R. at 78a

- 80a. Further, although Cabon points out that the trial court’s opinion (authored by a differ ent trial judge than the judge who presided over the hearing) mentioned that PennDOT did not present evidence as to whether it consider ed an offer of points in lieu of suspension, as set forth above, Cabon did not raise this issue in its petition for appea l of PennDOT’s suspension notice or at the hearing before the trial court. See N.T. at 1

- 73; R.R. at 1a

- 73a (hearing transcript); R.R. at 78a

- 80a (petition for appeal).18 Accordingly , we affirm.

ROBERT SIMPSON, Judge

Judge McCullough did not participate in the decision in this case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Cabon/Cabon's Central : Auto Service, : Appellant :

: v. : No. 147 C.D. 2016
: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Motor Vehicles :
O R D E R

AND NOW , this 17 th day of October , 2016, the order of the Court of Common Pleas of Allegheny County is AFFIRMED

.

ROBERT SIMPSON, Judge