S. Sillah v. PennDOT ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Salim Sillah, :
:
Appellant :
:
v. : No. 1311 C.D. 2016
: Submitted: August 18, 2017
:
Commonwealth of Pennsylvania, :
Department of Transportation :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge1
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 16, 2018
Salim Sillah appeals from the March 31, 2016 order of the Court of
Common Pleas of Philadelphia County (trial court) denying his statutory appeal
from the order of the Department of Transportation, Bureau of Motor Vehicles
(Department) permanently suspending the Certificate of Appointment (Certificate)
issued to SJ Auto Repair-OIS #DE21 (SJ Auto Repair) as an official emission
1
This decision was reached before the conclusion of Judge Cosgrove’s service with this
Court.
inspection station and imposing a $5,000.00 fine, pursuant to Section 4724(a) of
the Vehicle Code.2 We affirm.
Sillah owns SJ Auto Repair, a shop located in Philadelphia that is
certified by the Department to perform required state emissions inspections. By
official notice dated March 24, 2014, the Department notified Sillah that it was
permanently suspending SJ Auto Repair’s certification3 as an emission inspection
station and imposing a $5,000 fine for furnishing an emissions certificate of
inspection without conducting an emissions inspection4 and for fraudulent record
keeping.5 Reproduced Record (R.R.) at 37a. The Department stated that the
penalty was imposed based on the following:
2
75 Pa. C.S. §4724(a). Section 4724(a) of the Vehicle Code provides that “[t]he
[D]epartment . . . may suspend the certificate of appointment issued to a station or may impose a
monetary penalty . . . against the station, . . . which has violated or failed to comply with any of
the provisions of this chapter or regulations adopted by the [D]epartment.”
3
Sillah also received official notice that the Department was permanently suspending his
certification as an official emission inspector pursuant to Section 4726(b) of the Vehicle Code,
75 Pa. C.S. §4726(b), which states that “[t]he [D]epartment . . . may suspend the certification
issued to a mechanic or may impose a monetary penalty if it finds that the mechanic has
improperly conducted inspections or has violated or failed to comply with any provisions of this
chapter or regulations adopted by the [D]epartment.” R.R. at 38a.
4
Section 177.427(3) of the Department’s regulations states that “[a] person may not . . .
[f]urnish, loan, give or sell certificates of emission inspection and approval to any official
emission inspection station or other person except upon an emission inspection performed in
accordance with this chapter.” 67 Pa. Code §177.427(3).
5
Section 177.601 of the Department’s regulations defines “fraudulent recordkeeping” as
“[a] recordkeeping entry not in accordance with fact, truth or required procedure that falsifies or
conceals one or more of the following: (i) [t]hat a certificate of inspection was issued without
compliance with the required inspection procedure[;] (ii) [t]he number of inspections
performed[; or] (iii) [t]he individuals or station that performed the inspection.” 67 Pa. Code
§177.601.
2
On January 18, 2012[, a] covert auditor was issued
sticker IM2-1914288 on a 2002 Oldsmobile, VIN-
1G3WS52H62F219503 by inspector Salim Sillah, Oper
25-537-457 passed. The covert vehicle was set to fail for
the [Malfunction Indicator Light (MIL)6] Bulb [in the
“key on, engine running” (KOER) position,] which the
inspector had told the covert auditor it would fail for the
check engine light on but still passed the vehicle after
several attempts with no communications to the Emission
test equipment[.]
Id.
On April 4, 2014, Sillah and SJ Auto Repair appealed pro se the
Department’s decision to the trial court, which held a hearing on January 20,
2016.7 Sillah’s counsel initially noted that Sillah had filed a pro se appeal of the
Department’s suspension of SJ Auto Repair’s Certificate under Section 4724 of the
Vehicle Code, and argued that the appeal was of the suspension of his certificate as
an official emissions inspector. R.R. at 3a-4a. However, counsel agreed that
Sillah wanted to proceed with respect to the Department’s suspension of SJ Auto
Repair’s Certificate under Section 4724. Id. at 4a.
6
The Department’s regulations define an MIL as “[d]ashboard light illuminated when a
vehicle’s onboard computer detects conditions likely to result in emissions exceeding standards
by 1½ times or greater. The MIL may display ‘Check Engine,’ ‘Service Engine Soon,’ or other
similar message, or a symbol or picture representing an automobile engine.” 67 Pa. Code
§177.3.
7
Section 4724(b) of the Vehicle Code states that “[a]ny person whose . . . certificate of
appointment has been . . . suspended under this chapter shall have the right to appeal to the court
vested with jurisdiction of appeals by or pursuant to Title 42 (relating to judiciary and juridical
procedure).” 75 Pa. C.S. §4724(b). In turn, Section 933(a)(1)(ii) of the Judicial Code vests
appellate jurisdiction in the trial court. 42 Pa. C.S. §933(a)(1)(ii).
3
In support of the suspension and fine, the Department presented
Exhibits C-18 and C-2,9 which were admitted without objection, and the testimony
of Karl Wagner, a Quality Assurance Officer Supervisor with Parson’s
Technologies, a subcontractor with the Department that enforces the Department’s
Emissions and Safety Inspection Division. Sillah testified and presented the
testimony of Rich Rhoades, a Master Certified Technician and automotive
vocational instructor.
Wagner testified that Parson’s Technologies investigated SJ Auto
Repair on January 18, 2012 as part of a covert audit. R.R. at 5a. He stated that
John Townsend, a covert operator, arrived at SJ Auto Repair with a 2002
Oldsmobile Intrigue and requested only an emissions test. Id. at 6a. Wagner
testified that he set the vehicle to fail emissions testing by installing an inducement
8
See R.R. at 15a. Exhibit C-1 is a certified packet of the following Department
documents: (1) the March 2014 notification of the suspension of SJ Auto Repair’s Certificate;
(2) the Department’s consideration of point assessment in lieu of suspension; (3) notification of
the report of the Quality Assurance Officer indicating violations and scheduling a hearing; (4)
notification of the date, time, and location of the hearing; (5) the Pennsylvania Emissions Team
Official Inspection Station Covert Audit Form (Audit Form); (6) the Vehicle Emissions
Inspection Station Report showing the test results of passing inspection; (7) the March 2014
notification of the suspension of Sillah’s certificate to inspect motor vehicles; and (8) the
Department’s disciplinary file for SJ Auto Repair and Sillah showing the imposition of one-year
suspensions and fines for prior violations in 2009 for furnishing a certificate of inspection
without conducting an inspection and for fraudulent recordkeeping. See R.R. at 60a-69a.
However, Sillah later interposed a hearsay objection to the admission of the Audit Form and the
trial court stated that it would not be considered in the disposition of the appeal. See id. at 18a.
Although Sillah later sought to withdraw his objection to the document, he acceded to the trial
court’s determination that the record was closed. Id. at 33a.
9
The Department’s Exhibit C-2 are the results of emissions tests on the 2002 Oldsmobile
Intrigue for inspections that were conducted before and after the inspection at SJ Auto Repair,
indicating that the vehicle failed the prior and subsequent inspections, and the emissions results
from the inspection at SJ Auto Repair indicating that the vehicle passed that inspection. R.R. at
70a-74a.
4
that illuminated the Malfunction Indicator Lamp (MIL), also known colloquially as
the “check engine light.” Id. Wagner stated that when a vehicle is started, an
inspector is to observe the MIL and then mark it as either passing or failing, as
indicated. Id. at 9a. He testified that if the MIL is illuminated, the inspector
should mark the vehicle as failing the initial visual inspection on the MIL
Command Status line, and if the MIL is off, the vehicle should be marked as
passing initial inspection.10 Id. He stated that in the instant case, the MIL status
line was left blank. Id. According to Wagner, this indicates that the inspector did
10
Section 177.203(b)(2)(ii) and (iv) of the Department’s regulations states, in relevant
part:
(2) Performing the OBD-I/M check. Following a determination of
readiness, the seven set procedure delineated below shall be used
when performing an OBD-I/M check:
***
(ii) Visually examine the vehicle instrument panel to determine if
the MIL illuminates briefly when the ignition key is turned to the
‘‘key on, engine off’’ (KOEO) position. A brief period of
illumination of the MIL at start-up is normal and helps confirm the
MIL bulb is in proper operating condition. This portion of the test
procedure is also known as the ‘‘bulb check.’’
***
(iv) Start the vehicle’s engine so that the vehicle is in the ‘‘key on,
engine running’’ (KOER) condition. The MIL may illuminate and
then extinguish during this phase. Continued illumination of the
MIL (MIL commanded on) while the engine is running is cause for
failure of the OBD-I/M check under §177.204(2) (relating to basis
for failure).
67 Pa. Code §177.203(b)(2)(ii) and (iv).
5
not successfully connect the Oldsmobile to the Department’s computer system On-
Board Diagnostic (OBD) Analyzer,11 and thus, the emissions testing was not
properly completed. Id. He testified that when a vehicle is unable to communicate
with the computer, the technician should attempt to communicate three times. Id.
at 10a. He stated that the technician at Parson’s was successful in prior attempts to
communicate with the computer. Id.
Wagner testified that if a vehicle is unable to communicate with the
computer system after three attempts, the technician is able to determine whether
the vehicle passes the emissions test by looking to see if the MIL is illuminated.
R.R. at 10a. He stated that the 2002 Oldsmobile Intrigue should have failed the
emissions inspection and not been issued a sticker because the vehicle was unable
to connect to the computer and the MIL was set to be illuminated. Id. at 11a, 12a.
On cross-examination, Wagner testified that there are instances when
the inspector has discretion to pass or fail the vehicle. R.R. at 12a. He confirmed
that there is a Bulletin that was issued by the Department, entered as Exhibit P-1,
which provides information about vehicle communications with the OBD Analyzer
and the computer system (the Bulletin). Id. at 13a. Wagner stated that the Bulletin
instructs inspectors to make three attempts to communicate with the vehicle. Id.
He testified that if the vehicle does not communicate after three attempts, it is at
the discretion of the inspector to pass or fail the vehicle. Id. Wagner stated that
11
Wagner explained that vehicles that are Model Year 1996 or later are equipped with a
plug that can connect to an OBD analyzer. R.R. at 9a. He stated that the OBD analyzer
electronically communicates with the emissions analyzer and that the information from the
emissions analyzer is communicated to the Department’s computer, which ultimately determines
the results of the emissions test. Id.
6
the decision to pass or fail a vehicle at this point would depend on whether the
MIL was illuminated while the vehicle was running. Id. at 14a.
Sillah’s expert witness, Rich Rhoades, testified that a vehicle can pass
inspection when a check engine light is illuminated. R.R. at 19a, 21a. He stated
that if there is a situation when the MIL light is on and the computer is not
communicating, it is possible for the vehicle to pass. Id. He explained that so long
as the technician follows the process outlined in the book published by the
Commonwealth, the vehicle could pass. Id. He stated that Exhibit P-1 indicates
that technicians are instructed following three attempts to communicate with the
computer, “[i]f the vehicle still does not communicate proceed with a non-
communication result.” Id. Rhoades testified that his interpretation of the
instructions in Exhibit P-1 is that a non-communication result could pass even
though the MIL light is illuminated. Id. He stated that the two expert witnesses
disagreed as to whether a vehicle can pass emissions inspection if there is a non-
communication result and the MIL light is illuminated. Id.
Sillah testified that he attempted to connect to the OBD computer
system three times and that he visually inspected the vehicle. R.R. at 27a. He
testified that he followed the instructions based on his interpretation of the
Bulletin, entered as P-1. Id. at 28a. He conceded that the MIL light remained
illuminated while the key was on and the vehicle’s engine was running. Id. at 26a.
On surredirect examination, Wagner testified that the inducement that caused the
MIL to be illuminated was still intact when the vehicle was returned to the
Parson’s Technologies facility. Id. at 29a.
7
On March 31, 2016, the trial court entered a one-sentence order
denying Sillah’s appeal and reinstating the Department’s suspension. R.R. 59a.12
Sillah then filed the instant appeal.13, 14
12
In its opinion filed in support of its order, the trial court stated, in relevant part:
Mr. Wagner and Mr. [Rhoades] disagreed about whether or
not the 2002 Oldsmobile Intrigue should have passed the
inspection. Mr. [Rhoades’] opinion was based, in significant part,
on Mr. Sillah’s testimony that the OBD in the 2002 Oldsmobile
Intrigue was unable to communicate with the analyzer. Mr.
[Rhoades] testified that the 2007 Bulletin permitted Mr. Sillah to
proceed with “a non-communication result” and, therefore, that
Mr. Sillah had the discretion to pass the vehicle.
The court, however, did not find Mr. Sillah’s testimony that
the OBD in the 2002 Oldsmobile Intrigue was unable to
communicate with the analyzer to be credible. The three Vehicle
Inspection/Maintenance Program Emission Reports [in Department
Exhibit C-2] for the inspections done immediately before and the
one report for the inspection done immediately after the inspection
at SJ Auto Repair showed that the OBD in the 2002 Oldsmobile
Intrigue was able to communicate with the analyzer. The court
finds that the four reports [are] more compelling than Mr. Sillah’s
testimony that the OBD on the 2002 Oldsmobile Intrigue was
unable to communicate with his analyzer. Mr. [Rhoades’]
suggestion that perhaps there was a problem with the cables used
by Mr. Sillah at SJ Auto Repair was insufficient to alter this
court’s finding. The court also concludes that the previously
mentioned regulations specify that a vehicle be deemed to fail an
inspection when its MIL light continued to be illuminated when the
key is on and the engine is running.
The actions of SJ Auto Repair through Mr. Sillah were
fraudulent. Mr. Sillah falsely recorded on the Vehicle
Inspection/Maintenance Program Emission Report that the 2002
Oldsmobile Intrigue passed inspection and that the vehicle’s OBD
was unable to communicate with the inspection station’s analyzer.
Additionally, he issued a sticker when none should have been
issued.
(Footnote continued on next page…)
8
Sillah first argues that the Department’s charges of failure to perform
an emissions inspection and fraudulent record keeping against SJ Auto Repair are
not supported by substantial evidence. However, Sillah did not raise these
substantial evidence claims in the Concise Statement of Errors Complained of on
Appeal that he filed in the trial court pursuant to Pa. R.A.P. 1925(b). See R.R. at
95a-96a. As the Supreme Court has explained:
Our jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-
line rule, which obligates an appellant to file and serve a
Rule 1925(b) statement, when so ordered; any issues not
raised in a Rule 1925(b) statement will be deemed
waived; the courts lack the authority to countenance
deviations from the Rule’s terms; the Rule’s provisions
(continued…)
. . . In the present case, Mr. Sillah on behalf of SJ Auto Repair
falsely and intentionally recorded the previously noted information
on the Vehicle Inspection/Maintenance Program Emission Report
with the intent of deceiving the Department. Counsel for SJ Auto
Repair noted that there was no evidence that Mr. Sillah took his
actions for money or a favor. While this appears to be true, actions
may be deceitful without them being motivated by money or favor.
R.R. at 108a-109a (footnotes omitted).
13
Although Sillah initially filed the appeal in the Superior Court, the Superior Court
granted his motion to transfer the appeal to this Court.
14
Our review in inspection certificate suspension cases is limited to determining whether
the trial court committed an error of law or whether its findings of fact are supported by
substantial evidence. Snyder v. Department of Transportation, Bureau of Motor Vehicles, 970
A.2d 523, 526-27 (Pa. Cmwlth. 2009). Substantial evidence is defined as “‘relevant evidence
that a reasonable mind, without weighing the evidence or substituting its judgment for that of the
fact finder, might accept as adequate to support the conclusion reached.’ Such evidence must be
legally credible; mere suspicion will not suffice.” Id. at 528 (citation omitted).
9
are not subject to ad hoc exceptions or selective
enforcement; appellants and their counsel are responsible
for complying with the Rule’s requirements; Rule 1925
violations may be raised by the appellate court sua
sponte, and the Rule applies notwithstanding an
appellee’s request not to enforce it; and, if Rule 1925 is
not clear as to what is required of an appellant, on-the-
record actions taken by the appellant aimed at
compliance may satisfy the Rule.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted). As a
result, these allegations of error have been waived for purposes of appeal.
Pa. R.A.P. 1925(b)(4)(vii); Hill.15
Sillah next claims that the trial court erred in limiting its review of the
statutory penalties imposed by the Department for SJ Auto Repair’s violations.
15
Moreover, these claims are without merit. In support of this claim, Sillah relies on: the
Department’s failure to present the testimony of the covert auditor; his own testimony that the
trial court found not credible; Rhoades’ testimony that was based upon Sillah’s discredited
testimony; and the Audit Form in Exhibit C-1 that the trial court did not consider based upon
Sillah’s hearsay objection. However, questions regarding the weight of the evidence and witness
credibility are “solely within the province of the trial court,” Castagna v. Department of
Transportation, Bureau of Motor Vehicles, 831 A.2d 156, 160 n.4 (Pa. Cmwlth. 2003), and the
trial court may “accept or reject any testimony in whole or in part.” DiCola v. Department of
Transportation, Bureau of Driver Licensing, 694 A.2d 398, 400 (Pa. Cmwlth. 1997). If there is
record evidence “adequate to support the finding found by the trial court, as fact finder, we are
precluded from overturning that finding and must affirm.” Department of Transportation,
Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 875 (Pa. 1989). Further, this Court must
review the evidence in a light most favorable to the Department, the prevailing party in the trial
court. McDonald v. Department of Transportation, Bureau of Driver Licensing, 708 A.2d 154,
156 (Pa. Cmwlth. 1998). As outlined above, Wagner’s testimony as corroborated by the
Department’s exhibits, and Sillah’s admission that the MIL light remained illuminated when the
key was on and the engine was running, sufficiently support the trial court’s conclusions
regarding SJ Auto Repair’s violations and the reinstatement of the Department’s suspension of
SJ Auto Repair’s Certificate and the imposition of a fine. Further, the Department was
empowered to permanently suspend SJ Auto Repair’s Certificate and impose the $5,000.00 fine
for each violation because it was SJ Auto Repair’s second violation of each provision. 67 Pa.
Code §177.602(a)(ii), (iii).
10
Specifically, Sillah asserts that the trial court improperly determined that it could
not alter the suspension and fine that the Department imposed.
A trial court may “alter the penalty [imposed by the Department] if, in
the trial de novo, it makes findings of fact and conclusions of law different from
that of the [Department].” Department of Transportation, Bureau of Traffic Safety
v. Kobaly, 384 A.2d 1213, 1215 (Pa. 1978). However, that is not the case herein.
Rather, as in this case, where the trial court reaches the same conclusions as the
Department following the trial de novo:
The court may not, as a parallel to exercising its
discretion as factfinder, do more than (1) affirm the
[Department’s] penalty because the law as applied to the
facts heard de novo leads to a conclusion of a violation of
the law or (2) reverse the [Department’s] penalty because
the law as applied to the facts heard de novo does not
lead to a conclusion of a violation of law.
Department of Transportation, Bureau of Traffic Safety v. Cormas, 377 A.2d 1048,
1050 (Pa. Cmwlth. 1977). See also Department of Transportation, Bureau of
Traffic Safety v. Slipp, 550 A.2d 838, 840 (Pa. Cmwlth. 1988) (“Where, in an
inspection license suspension case, the trial court makes new findings of fact but
reaches the same legal conclusions as [the Department], it may not alter the
[Department] penalty. On the other hand, if the court reaches a conclusion of law
different from that reached by [the Department], it clearly has the authority to
modify or correct the penalty imposed by [the Department].”) (citations omitted).
Because the trial court did not make conclusions of law different from those of the
Department with respect to SJ Auto Repair’s violations, Kobaly is distinguishable
and the court did not err in limiting its review of the penalty imposed by the
Department.
11
Finally, Sillah argues that the trial court erred in dismissing the appeal
of the suspension of his certification as an official emission inspector and the fine
imposed pursuant to Section 4726(b) of the Vehicle Code. However, as noted
above, at the trial court hearing, Sillah conceded that the appeal before that court
related solely to the suspension and the fine imposed on SJ Auto Repair’s
violations, R.R. at 4a, thereby withdrawing any purported appeal of the suspension
and fine imposed on his violations as an official emissions inspector.
Moreover, at that time,16 any appeal regarding the Department’s
suspension of Sillah’s certificate and the fine imposed should have been filed with
the Department pursuant to the Administrative Agency Law 17 with subsequent
appellate review by this Court. Mohamed v. Department of Transportation,
Bureau of Motor Vehicles, 40 A.3d 1186, 1195-96 (Pa. 2012). In fact, the
Department’s March 24, 2014 notice of the suspension and fine explained the
appeal process to Sillah as follows:
You have a right to request a hearing on the above
referenced sanction(s) under 2 Pa. C.S. §§501-508
(relating to general rules of administrative practice and
16
Section 4724(b) of the Vehicle Code was amended by the Act of November 4, 2016,
P.L. 1277, and now provides, in relevant part:
(b) Judicial review.—Any person whose mechanic certificate
issued under section 4726 (relating to certification of mechanics)
. . . has been . . . suspended or who has received a monetary
penalty under this chapter shall have the right to appeal to the court
vested with jurisdiction of such appeals by or pursuant to Title 42
(relating to judiciary and judicial procedure).
75 Pa. C.S. §4724(b).
17
2 Pa. C.S. §§501-508, 701-704.
12
procedure of administrative agencies); 1 Pa. Code Part II
(relating to general rules of administrative practice and
procedure) and 67 Pa. Code Chapter 491 (relating to
administrative practice and procedure) by submitting a
written request for a hearing within 30 days of the above
mail date to the Administrative Docket Clerk, Office of
Chief Counsel, 400 North Street, 9th Floor, Harrisburg,
PA 17120-0096. A copy of this letter shall accompany
the request.
THIS IS YOUR OPPORTUNITY TO BE HEARD IN
THIS MATTER. IF YOU FAIL TO REQUEST A
HEARING ON THE ABOVE REFERENCED
SUSPENSION(S) WITHIN 30 DAYS OF THE MAIL
DATE OF THIS NOTICE, YOU WILL HAVE
WAIVED YOUR RIGHT TO CHALLENGE THE
SUSPENSION. ADDITIONALLY, THE ABOVE
SANCTION(S) WILL ALSO BE FINAL AND YOUR
CERTIFICATION AS AN OFFICIAL EMISSION
INSPECTOR WILL BE SUSPENDED EFFECTIVE
[MARCH 24, 2014].
R.R. at 38a (emphasis in original). As a result, Sillah was informed of the proper
method to administratively appeal the Department’s suspension and fine and his
allegation of purported trial court error in this regard is without merit.18
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
18
Sillah does not argue that the trial court erred in failing to transfer the matter pursuant
to Section 5103 of the Judicial Code, 42 Pa. C.S. §5103 (relating to the transfer of erroneously
filed matters).
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Salim Sillah, :
:
Appellant :
:
v. : No. 1311 C.D. 2016
:
:
Commonwealth of Pennsylvania, :
Department of Transportation :
ORDER
AND NOW this 16th day of January, 2018, the order of the
Philadelphia County Court of Common Pleas dated March 30, 2016, is
AFFIRMED.
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Salim Sillah, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, : No. 1311 C.D. 2016
Department of Transportation : Submitted: August 18, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COSGROVE FILED: January 16, 2018
As I take issue with how the trial court addressed this matter below, I
dissent and would instead remand. After conducting a hearing on an appeal of the
Department of Transportation's suspension filed nearly two years earlier, the trial
court entered an order on a pre-printed form which merely checked a box where the
word "DENIED" was circled. This (as the Majority generously describes it) "one-
sentence order denying Sillah's appeal," hardly provides even a hint of the trial
court's reasoning or basis for its actions. (Majority, slip op. at 7.) Nonetheless, this
was all Sillah had upon which to base the present appeal, and his subsequent Concise
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925, which
the trial court directed him to file.
Only after that Statement was filed did the trial court outline its
perspective in an opinion. The Majority finds Sillah failed to raise his "substantial
evidence claims" in this Statement and thus are "waived for purposes of appeal.”
(Majority, slip op. at 9-10.) It is with this that I take particular issue with the
Majority. Rule 1925 was never meant to be a "waiver trap," yet its application in
this case can be seen as nothing less. The trial court's order from which the present
appeal lies offers nothing upon which a complete Rule 1925 statement can be
submitted, rendering the finding of waiver improper. Given the Majority's view to
the contrary, I must dissent.1
___________________________
JOSEPH M. COSGROVE, Judge
1
In a footnote, the Majority suggests that, despite waiver, Sillah's "substantial evidence"
claims are "without merit." (Majority, slip op. at 13.) Although I disagree with the Majority's
view of the merits, this suggestion is of no moment to the question of whether the waiver finding
itself was appropriate given the trial court's failure to offer any basis for its decision prior to the
filing of the Rule 1925 statement.