Germantown Cab Co. v. PPA , 134 A.3d 1115 ( 2016 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Germantown Cab Company,                        :
    Appellant                  :
    :
    v.                       :
    :   No. 1078 C.D. 2015
    Philadelphia Parking Authority                 :   Argued: February 9, 2016
    BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABL JAMES GARDNER COLINS, Senior Judge
    OPINION BY
    JUDGE COVEY                                        FILED: March 1, 2016
    Germantown        Cab     Company       (Germantown)        appeals     from     the
    Philadelphia County Common Pleas Court’s (trial court) May 14, 2015 order,
    denying its appeal from the Philadelphia Parking Authority’s (Authority) decision.
    Germantown essentially presents two issues for this Court’s review: (1) whether the
    Authority violated this Court’s January 6, 2012 order enjoining the Authority from
    confiscating or impounding cars for violating Section 5714(a) of the act commonly
    known as the Parking Authority Law (Act),1 and (2) whether the Authority violated
    Germantown’s rights under the Fourteenth Amendment of the United States (U.S.)
    Constitution.2
    1
    Act of December 30, 2001, P.L. 2002, reenacted and amended by the Act of July 16, 2004,
    P.L. 758 (Act 94), as amended, 53 Pa.C.S. § 5714(a).
    2
    The Authority argues that Germantown’s appeal should be dismissed for failure to exhaust
    administrative remedies because the Authority’s order should have been appealed to the Authority’s
    Board as opposed to the trial court pursuant to Section 1(c) of the General Rules of Administrative
    Practice and Procedure, 
    1 Pa. Code § 35.190
    (c). However, because the Authority did not raise this
    issue before the trial court, it is waived. In re F.C. III, 
    2 A.3d 1201
     (Pa. 2010). Accordingly, we
    are prohibited from addressing it.
    Background
    Germantown states in its brief that it “is a [Public Utility Commission
    (]PUC[)]-certified motor carrier that operates approximately 170 taxicabs in a
    designated service territory that is divided by the Philadelphia-Montgomery County
    line. [Germantown] does not own any medallions and does not have a certificate of
    public convenience issued by the [Authority].” Germantown Br. at 6 (emphasis
    added). However, this Court stated in Germantown Cab Company v. Public Utility
    Commission, 
    97 A.3d 410
     (Pa. Cmwlth. 2014): “[U]nder both Act 94 and Act 119,
    [Section 5714(d)(2) of the Act], 53 Pa.C.S. § 5714(d)(2) explicitly preserved
    Germantown’s authority to conduct partial-rights operations in that portion of the
    City as stated in its Commission-issued CPC [certificate of public convenience] and
    specifically transferred regulatory authority over its operations in that area to
    the Authority.” Germantown, 97 A.3d at 417 (emphasis added); see also Bucks
    Cnty. Servs., Inc. v. Phila. Parking Auth., 
    104 A.3d 604
     (Pa. Cmwlth. 2014) (“the
    [Authority] has the power to promulgate and enforce regulations relating to service
    provided by [Germantown] within the City of Philadelphia.”).
    Section 5714 of the Act provides in relevant part:
    (a) Vehicles generally.—
    (1) A vehicle may not be operated as a taxicab with
    citywide call or demand rights in cities of the first class
    unless a certificate of public convenience is issued by the[3]
    [A]uthority authorizing the operation of the taxicab and a
    medallion is attached to the hood of the vehicle. Prior to
    the issuance of a medallion, the certificate holder shall have
    its vehicle inspected by the [A]uthority.
    3
    Prior to an amendment effective July 5, 2012, the first sentence stated “unless a certificate
    of public convenience is issued by “‘an’ authority[,]” as opposed to the current language: “‘the’
    authority[.]”
    2
    (2) The [A]uthority shall require, by order or regulation,
    that each vehicle within its jurisdiction pursuant to this
    chapter submit to periodic inspections by [A]uthority
    personnel to ensure that the vehicle meets the requirements
    of this subchapter and [A]uthority regulations.
    ....
    (c) Service.--A vehicle authorized by a certificate to
    provide call or demand service within cities of the first class
    may transport persons and their baggage upon call or
    demand and parcels, packages and property at the same
    basic metered rates charged to passengers:
    (1) between points in the city of the first class for which its
    certificate is issued;
    (2) from any point in the city of the first class for which its
    certificate is issued to any point in this Commonwealth;
    (3) from any point in this Commonwealth to any point in
    the city of the first class for which its certificate is issued if
    the request for service for such transportation is received by
    call to its centralized dispatch system; and
    (4) from any point in the city of the first class for which its
    certificate is issued to any point outside this Commonwealth
    as a continuous part of a trip.
    ....
    (e) Penalties involving certificated taxicabs.--Operating a
    certificated taxicab in violation of subsections (a) and (b) or
    authorizing or permitting such operation is a non[-]traffic
    summary offense. Offenders of subsections (a) and (b) may
    also be subject to civil penalties pursuant to section 5725
    (relating to civil penalties).
    (f) Unauthorized vehicles.--Operating an unauthorized
    vehicle as a taxicab, or giving the appearance of offering
    call or demand service with an unauthorized vehicle,
    without first having received a certificate of public
    convenience and a medallion is a non[-]traffic summary
    offense in the first instance and a misdemeanor of the third
    degree for each offense thereafter. The owner and the
    driver of a vehicle being operated as or appearing as a
    3
    taxicab without a certificate of public convenience and a
    medallion are also subject to civil penalties pursuant to
    section 5725. Civil penalties which have been assessed and
    collected shall be deposited in the fund.
    (g) Confiscation and impoundment of vehicles.—
    (1) The [A]uthority is empowered to confiscate and
    impound vehicles, medallions and equipment which are
    utilized to provide call or demand service in cities of the
    first class without a proper certificate of public convenience
    issued by the authority or which are in violation of
    regulations of the authority.[4] Upon satisfaction of all
    penalties imposed and all outstanding fines assessed against
    the owner or operator of the confiscated vehicle and
    payment of the costs of the [A]uthority associated with
    confiscation and impoundment, the vehicle, medallion and
    equipment shall be returned to its registered owner or
    registered lienholder.
    53 Pa.C.S. § 5714.
    This Court in Sawink, Inc. v. Philadelphia Parking Authority, 
    34 A.3d 926
     (Pa. Cmwlth.), aff’d, 
    57 A.3d 644
     (Pa. 2012) (per curiam), held that “Section
    5714 of the [Act] does not authorize the impoundment sanction where a taxicab,
    certificated by the PUC, accepts a hail in Philadelphia in violation of Section 5714(a)
    [of the Act.]” 
    Id. at 932
    .
    Facts
    On August 1, 2014, the Authority’s Taxicab and Limousine Division
    (TLD) Inspector James Burke (Inspector Burke) and his partner observed
    Germantown taxicab number G-91 pick up three passengers at 11th and Pattison
    Streets in Philadelphia. The inspectors followed the cab to its destination in the
    vicinity of 700 Annin Street, Philadelphia, whereupon they stopped the cab for
    4
    Prior to an amendment effective July 5, 2012, the first sentence of Section 5714(g) of the
    Act was preceded by the words: “In addition to penalties provided for in subsection (f)[.]”
    4
    providing unauthorized point to point service in Philadelphia. Upon inspection of the
    taxicab, the inspectors ascertained that the vehicle did not have a current TLD
    inspection sticker or a partition shield, had not been inspected by the Authority’s
    TLD, and the driver was not an Authority certified driver. Inspector Burke stated that
    because it is a safety concern for taxicabs to be driven in Philadelphia without an
    inspection, it impounded Germantown’s taxicab pursuant to Section 1017.32 of the
    Authority’s Regulations, 
    52 Pa. Code § 1017.32
    .
    On August 7, 2014, an impoundment hearing was held before an
    Authority hearing officer. On September 3, 2014, the Authority entered an order
    determining that the impoundment was proper. On October 20, 2014, Germantown
    appealed from the Authority’s order to the trial court. On May 14, 2015, the trial
    court denied Germantown’s appeal. Germantown appealed to this Court.5
    Discussion
    Germantown first argues that the Authority violated this Court’s January
    6, 2012 order enjoining the Authority from confiscating or impounding cars for
    violation of Section 5714(a) of the Act. Specifically, Germantown contends that this
    Court’s order in Sawink prohibits any impoundment of taxicabs for violating Section
    5714(a) of the Act unless or until that order has been dissolved, vacated or modified
    by this Court.
    5
    “Where the trial court does not take any additional evidence, our scope of review over the
    decision of a local agency is limited to determining whether constitutional rights were violated,
    whether an error of law was committed, whether the procedure before the local agency was contrary
    to statute, and whether necessary findings of fact are supported by substantial evidence.” Kovler v.
    Bureau of Admin. Adjudication, 
    6 A.3d 1060
    , 1062 n.1 (Pa. Cmwlth. 2010). “On issues of statutory
    interpretation this Court’s scope of review is plenary, and our standard of review is de novo.”
    Doherty v. Dep’t of Transp., Bureau of Driver Licensing, 
    921 A.2d 532
    , 535 n.3 (Pa. Cmwlth.
    2006).
    5
    Initially, the Sawink Court’s Order expressly stated:
    AND NOW, this 6th day of January, 2012, the motion for
    summary relief filed by Sawink, Inc., Germantown Cab
    Company and Rosemont Taxicab Co., Inc. is hereby
    GRANTED.          The [Authority] is enjoined from
    confiscating or impounding the taxicabs of Sawink, Inc.,
    Germantown Cab Company and Rosemont Taxicab Co.,
    Inc. where one of its taxicabs has committed a violation
    of Section 5714(a) of the [Act], . . . in a manner
    consistent with the conduct that prompted the
    impoundments referenced in the above-captioned
    petition for review. This injunction does not restrict the
    [Authority] with respect to the imposition of other sanctions
    authorized by the [Act].
    Sawink, Inc., 
    34 A.3d at 932
     (emphasis added). Germantown argues that because the
    Sawink Court enjoined the Authority from confiscating or impounding Germantown’s
    taxicabs where one of its taxicabs has committed a violation of Section 5714(a) of
    the Act, the Authority is forever enjoined from confiscating or impounding
    Germantown’s taxicabs pursuant to Section 5714 of the Act until such Order is
    dissolved, vacated or modified.
    However, the Sawink Court explicitly stated:
    Section 5714(g) [of the Act] does not empower the
    Authority to impound taxicabs licensed by the PUC when
    they commit a territorial violation proscribed by Subsection
    (a) of Section 5714 [of the Act], i.e., picking up a hail in
    Philadelphia. At a minimum, the statute is ambiguous,
    which requires a narrow construction of the impoundment
    penalty in favor of Petitioners.
    Sawink, 
    34 A.3d at 930
    . Accordingly, Sawink is inapposite and thus not controlling.
    As stated in the Sawink Order: “The [Authority] is enjoined from confiscating or
    impounding the taxicabs of [Germantown] where one of its taxicabs has committed a
    violation of Section 5714(a) of the [Act], . . . in a manner consistent with the
    6
    conduct that prompted the impoundments referenced in the above-captioned
    petition for review.” 
    Id. at 932
     (emphasis added). It is undisputed that the conduct
    referenced in the petition for review involved a territorial violation. In the instant
    case, although Germantown’s taxicab was stopped for providing point to point
    service in Philadelphia, it was impounded for its violation of Section 1017.32 of the
    Authority’s Regulations which requires a current TLD inspection sticker before
    providing service in Philadelphia.     Moreover, as noted above, after this Court’s
    decision in Sawink, the Legislature amended Section 5714(g) of the Act, thereby
    removing the ambiguity which was at issue in Sawink. Accordingly, Sawink is not
    applicable to the matter currently before us.
    Germantown contends that because its taxicabs are PUC certified, it is
    not required to have a TLD inspection. Thus, its taxicab was wrongly impounded for
    that reason. However, Germantown’s argument is incongruous to the current state of
    the law regarding the Authority’s power over PUC certified taxicabs in Philadelphia.
    See Germantown; Bucks Cnty. Servs.
    Both the current and the former version of Section 5714(g) of the Act
    authorize the Authority to impound vehicles “which are in violation of regulations of
    the [A]uthority.”   53 Pa.C.S. § 5714(g).       In the instant case, the taxicab was
    impounded for a violation of Section 1017.32 of the Authority’s Regulations which
    required a current TLD inspection sticker before a taxicab can provide service in
    Philadelphia. Id.
    Section 5714(g) of the Act provides in relevant part:
    Confiscation and impoundment of vehicles.—
    (1) The [A]uthority is empowered to confiscate and
    impound vehicles, medallions and equipment which are
    utilized to provide call or demand service in cities of the
    first class without a proper certificate of public convenience
    issued by the [A]uthority or which are in violation of
    regulations of the [A]uthority. . . .
    7
    53 Pa.C.S. § 5714(g) (emphasis added). Section 1017.32(a) of the Authority’s
    Regulations provides:
    Impoundment. Upon observation of an impoundable
    offense, the Enforcement Department may direct the
    immediate impoundment of a vehicle, equipment or
    medallion under [S]ection 5714(g) of the [A]ct (relating to
    certificate and medallion required) and have the impounded
    property removed to a place of safe storage under the
    control of the Authority.
    
    52 Pa. Code § 1017.52
    . An impoundable offense is defined, in pertinent part, in the
    Authority’s regulations as follows:
    Impoundable offense--The occurrence of any of the
    following circumstances is an impoundable offense:
    (i) An unauthorized taxicab provides, or attempts to
    provide, call or demand service in Philadelphia.
    ....
    Unauthorized taxicab—
    (i) A vehicle without a current and valid TLD inspection
    sticker affixed as provided in [Section] 1017.32 [of the
    Authority’s Regulations] (relating to TLD inspection sticker
    required).
    ....
    Vehicle--The term includes the vehicle and equipment used
    or capable of being used to provide taxicab service.
    
    52 Pa. Code § 1017.51
    . Accordingly, because the Act authorizes the impoundment of
    vehicles for violating the Authority’s regulations, and Germantown violated Section
    1017.32 of the Authority’s Regulations, the Authority acted in accordance with its
    power to impound Germantown’s taxicab. As thoroughly addressed above and for
    8
    the reasons discussed, the Sawink Order is not applicable and the Authority did not
    act in violation thereof.
    Germantown next argues that the Authority’s impoundment of its
    taxicab violated Germantown’s rights under the Fourteenth Amendment of the U.S.
    Constitution.6 We disagree.
    First, Germantown did not raise any constitutional issues before the
    Authority’s hearing officer. “It is well settled that issues raised for the first time on
    appeal are waived.” Pa. Bankers Ass’n v. Pa. Dep’t of Banking, 
    962 A.2d 609
    , 621
    (Pa. 2008).7 “When a party fails to raise an issue, even one of a constitutional
    dimension, in an agency proceeding, the issue is waived and cannot be considered for
    the first time in a judicial appeal.” Huddock v. Pa. Dep’t of Pub. Welfare, 
    808 A.2d 310
    , 313 n.4 (Pa. Cmwlth. 2002).
    However, in its argument, Germantown does not maintain that its
    constitutional rights were violated, but rather, that “[t]he Authority’s interpretation of
    the statu[t]e [Sections 5714(a) and 5714(g) of the Act] also raises constitutional
    concerns.” Germantown Br. at 25. The only case Germantown cites to in support of
    6
    In its Statement of Errors Complained of on Appeal, Germantown contends that the
    Authority violated its rights under the Fourth Amendment of the U.S. Constitution. However, in its
    Statement of the Questions Involved, the Authority lists the issue as a violation of its Fourteenth
    Amendment rights. Although Germantown appears to be arguing that the Authority violated its
    rights under both the Fourth and the Fourteenth Amendments, neither argument is fully developed.
    7
    It is without question that the right to a due process hearing, like most
    constitutional rights, can be waived. See, e.g., Bedford Downs Mgmt.
    Corp. v. State Harness Racing Comm’n Valley View Downs, . . . 
    926 A.2d 908
    , 923 ([Pa.] 2007) (per curiam) (finding a due process
    argument waived when it was not raised before the administrative
    agency); In re Cicchetti, . . . 
    743 A.2d 431
    , 443 n. 1 ([Pa.] 2000)
    (acknowledging that a due process claim can be waived for failure to
    raise it in a timely fashion); In re Martorano, . . . 
    346 A.2d 22
    , 27
    ([Pa.] 1975) (finding a plaintiff’s due process claim waived because it
    was raised for the first time on appeal).
    Pa. Bankers Ass’n, 962 A.2d at 622.
    9
    its position is South Dakota v. Opperman, 
    428 U.S. 364
     (1976), wherein the U.S.
    Supreme Court opined:
    In the interests of public safety and as part of what the
    Court has called ‘community caretaking functions,’ Cady v.
    Dombrowski, . . . 413 U.S. [433,] 441, . . . [(1973)],
    automobiles are frequently taken into police custody.
    Vehicle accidents present one such occasion. To permit the
    uninterrupted flow of traffic and in some circumstances to
    preserve evidence, disabled or damaged vehicles will often
    be removed from the highways or streets at the behest of
    police engaged solely in caretaking and traffic-control
    activities. Police will also frequently remove and impound
    automobiles which violate parking ordinances and which
    thereby jeopardize both the public safety and the efficient
    movement of vehicular traffic. The authority of police to
    seize and remove from the streets vehicles impeding
    traffic or threatening public safety and convenience is
    beyond challenge.
    Opperman, 
    428 U.S. at 368-69
     (emphasis added; footnote omitted).8 However, this
    case does not support Germantown’s position; it supports the Authority’s contention
    based on the current state of the law. The Authority impounded Germantown’s
    taxicab because it was not TLD inspected and thus was a safety concern.
    Germantown further argues that:
    Both the Pennsylvania Constitution and the [U.S.]
    Constitution restrict the scope of the community caretaking
    function and, consequently the impoundment power, to
    circumstances that truly pose an immediate threat to public
    safety, such as the operation of an unlicensed taxicab, or
    operation of a taxicab by an impaired driver or a taxicab in
    a visibly unsafe condition. It does not and should not
    apply to territorial violations by certificated taxicabs.
    Such violations pose no safety threat to the public and
    warrant lesser sanctions, such as fines, suspension, or
    ultimately revocation of operating rights.
    8
    Although Germantown, in its brief, blocked a statement purportedly made by the U.S.
    Supreme Court, it is actually a paraphrase of the above-cited quotation. See Germantown Br. at 26.
    10
    Germantown Br. at 26 (emphasis added). Germantown insists this case involves a
    territorial violation because its taxicab was subject to PUC inspection as well as TLD
    inspection. The crux of Germantown’s argument is that because its taxicabs are
    PUC-certificated, it is unconstitutional for the Authority to regulate them. Although
    Germantown asserts constitutional concerns, its argument is “[b]ut where, as here, a
    vehicle is also subject to inspections by the PUC, the lack of a [TLD] inspection
    sticker does not amount to a public safety issue.” Germantown Br. at 27. The issue
    before this Court, however, is not whether the Authority has the power to regulate
    PUC-certificated taxicabs providing service in Philadelphia. The Authority’s power
    has already been established in that regard. See Germantown; Bucks Cnty. Servs.
    The Authority here acted in accordance with the power bestowed upon it by the
    Legislature.
    With respect to whether a statute is constitutional, the Pennsylvania
    Supreme Court has held:
    ‘[A]cts passed by the General Assembly are strongly
    presumed to be constitutional, including the manner in
    which they were passed.’ [Pa.] State Ass’n of Jury
    Comm’rs v. Com[monwealth], 
    64 A.3d 611
    , 618 (Pa. 2013).
    Thus, a statute will not be found unconstitutional ‘unless it
    clearly, palpably, and plainly violates the Constitution.’ 
    Id.
    If there is any doubt as to whether a challenger has met this
    high burden, then we will resolve that doubt in favor of the
    statute’s constitutionality. 
    Id.
    Commonwealth v. Neiman, 
    84 A.3d 603
    , 611 (Pa. 2013). Germantown has not met
    its burden in proving that Sections 5714(a) and 5714(g) of the Act “clearly, palpably,
    and plainly violate[] the Constitution.” Neiman, 84 A.3d at 611.
    Conclusion
    Although Germantown’s taxicab was stopped for acting outside its PUC
    authorized service area, i.e., providing unauthorized point to point service in
    11
    Philadelphia, it was impounded for violating the Authority’s regulations. Because the
    Act authorizes the impoundment of vehicles for violating the Authority’s regulations,
    and Germantown violated Section 1017.32 of the Authority’s Regulations, the
    Authority acted in accordance with its power to impound Germantown’s taxicab.
    Germantown’s argument that the Authority’s impoundment of its taxicab
    violated Germantown’s rights under the Fourteenth Amendment of the U.S.
    Constitution is waived for failure to raise it before the Authority’s hearing officer.
    Assuming Germantown raised a constitutional challenge that was not waived,
    Germantown has not met its burden in proving that the Act and/or the Authority’s
    regulations are unconstitutional.
    For all of the above reasons, the trial court’s order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge
    12
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Germantown Cab Company,               :
    Appellant         :
    :
    v.                  :
    :   No. 1078 C.D. 2015
    Philadelphia Parking Authority        :
    ORDER
    AND NOW, this 1st day of March, 2016, the Philadelphia County
    Common Pleas Court’s May 14, 2015 order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge