Rosemont Taxicab Co. v. Philadelphia Parking Authority

DISSENTING OPINION BY

President Judge PELLEGRINI.

I respectfully dissent because it was appropriate for the Philadelphia Parking Authority (Authority) to consider German-town Cab Co.’s (Germantown) compliance *41history in determining whether Rosemont Taxicab Co., Inc. (Rosemont) has a propensity to operate safely and legally and the Authority’s determination in this regard is supported by substantial evidence.

First, in Brink’s Incorporated v. Public Utility Commission, 54 Pa.Cmwlth. 452, 421 A.2d 1244 (1980), rev’d on other grounds, 500 Pa. 387, 456 A.2d 1342 (1983), this Court held that the actions of one corporation with respect to its fitness to operate as a contract carrier applied to a second corporation where the officers and directors of both of the corporations were the same or substantially the same and the 100% shareholder of one corporation owned 85% of the shares of the second corporation. The majority’s reliance on Yellow Cab Company of Pittsburgh v. Public Utility Commission, 673 A.2d 1015, 1018 (Pa.Cmwlth.1996), is misplaced because, in that case, this Court precluded piercing the corporate veil to attribute the past illegal activities personally committed by a corporation’s principal in considering whether the corporation lacks a propensity to operate safely and legally.

As noted by the majority in this case, Rosemont’s president, Jacob Gabbay (Gab-bay), and his daughter, Tiffany Karsenty, each own 50% of Rosemont’s stock; Gab-bay has also owned Germantown for over 30 years as its sole shareholder; and Gab-bay’s son, Joseph Gabbay, helps in the management and operation of both Rose-mont and Germantown. As a result, contrary to the majority’s assertion, it was appropriate for the Authority to consider Germantown’s compliance history in determining Rosemont’s propensity to operate safely and legally.

Second, with respect to its propensity to operate safely and legally, Rosemont claims that the Hearing Officer’s determination that it does not possess such a propensity is not supported by substantial evidence because it is based on the violation of regulations that were held to be invalid in Germantown Cab Co. v. Philadelphia Parking Authority, 993 A.2d 933 (Pa.Cmwlth.2010), aff'd, 614 Pa. 133, 36 A.3d 105 (2012).1 Under 52 Pa.Code § 41.14 of the Public Utility Commission’s (Commission) regulations,2 an applicant *42seeking a motor carrier authority must establish public demand or need for the proposed service, its technical and financial ability to provide the proposed service, and a propensity to operate safely and legally. Loma, Inc. v. Public Utility Commission, 682 A.2d 424, 431 (Pa.Cmwlth.1996), appeal denied, 548 Pa. 675, 698 A.2d 597 (1997). However, where, as here, the applicant seeks a transfer of an existing certificate of public convenience, it is presumed that there is a continuing public demand and need for the service. Id. Likewise, where, as here, the applicant has previously been granted authority to operate and seeks approval of additional authority, there is continuing presumption that the applicant is technically and financially fit for the service. Id. In short, the burden was on the Authority to show that Rosemont does not possess a propensity to operate safely and legally.

Based on the evidence presented, the Hearing Officer found: over the past five years, approximately 250 violations were issued to Germantown for safety violations and operating outside of rights; as of August 2010, 197 citations were issued to Germantown, ten for driver certifications, 49 for safety violations, 27 for operating outside of rights, one administrative violation, and 11 meter violations;3 in March 2011, a Germantown cab was operating with a bald tire in violation of the Department of Transportation’s regulations, 67 Pa.Code § 175.80(e)(l)(i);4 in August 2011, a Rosemont cab was operating with an expired inspection sticker in violation of the Commission’s regulations, 52 Pa.Code § 29.4055 and with over 267,000 miles, in excess of the Authority’s 250,000-mile limit; Rosemont owes over $11,733.00 for parking violations;6 Germantown owes over $14,000.00 for parking violations; Germantown and Rosemont failed to comply with the Authority’s driver certification program under Section 5706(a) of the Parking Authority Law, 53 Pa.C.S. § 5706(a);7 Germantown and Rosemont failed to file an application for certificate of public convenience renewal; and German-town’s and Rosemont’s vehicles are not equipped with a protective shield as required by Section 5714(b) of the Parking Authority Law, 53 Pa.C.S. § 5714(b).8 *43The Hearing Officer specifically noted that “[f]orty nine safety violations and 11 meter violations are .too many regardless of how many cabs are owned by Germantown Cab Co.” (Certified Record (C.R.) at 1158.) All of the foregoing findings are amply supported by the certified record of this case. (Id. at 62-64, 143, 153, 180, 183, 865-882, 922-1004,1155). Accordingly, the Hearing Officer properly denied the application because the Authority’s Taxicab and Limousine Division rebutted the presumption that Rosemont possesses a propensity to operate safely and legally, and Rosemont failed to demonstrate that it has the technical ability to provide the proposed service, that it has a plan to comply with the standards in the Parking Authority Law, or that it has the propensity to operate safely and legally.

To counter this evidence, Rosemont contends that the evidence was not substantial because those citations were to regulations that we found to be improperly promulgated under Germantown Cab Co. However, the record shows that of the 49 safety violations, only six were appealed to this Court, and of the 11 meter violations, only one was appealed to this Court. (C.R. at 865-883, 922-1004.) As to the unappealed violations, they constitute substantial evidence of Rosemont’s unfitness and support the Hearing Officer’s decision because to hold otherwise would permit a collateral attack on these final adjudications and, even if they were decided under regulations found not to be valid under German-town Cab Co., they still constitute substantial evidence as final adjudications. See Department of Environmental Protection v. City of Philadelphia, 692 A.2d 598, 604 (Pa.Cmwlth.1997) (“We agree that an aggrieved party has no duty to appeal but disagree that upon failure to do so, the party so aggrieved preserves to some indefinite future proceedings the right to contest an unappealed order. To conclude otherwise would postpone indefinitely the vitality of administrative orders and frustrate the orderly operation of administrative law....”) (citation omitted). As to the appealed decisions, there was no evidence in the record as to the outcome on appeal presented by Rosemont, so those violations also constitute substantial evidence of Rosemont’s unfitness.

Finally, and most importantly, those violations of the Commission’s regulations and the Parking Authority Law remain in place because direct violations of those regulations and that statute remain valid in spite of our holding in Germantown Cab Co. See 993 A.2d at 943 (holding that the Authority is still empowered to initiate enforcement actions for direct violations of the Parking Authority Law or of the Commission’s regulations that were to remain in effect until replaced by the Authority’s regulations). Because Rosemont did not show that the Authority’s evidence was not sufficient to support the Hearing Officer’s determination that Rosemont did not possess the propensity to operate safely and legally, the Hearing Officer did not err in reaching this conclusion.

Accordingly, unlike the majority, I would affirm the Authority’s order.

. In Germantown Cab Co., the Authority cited, fined and suspended Germantown from operating one of its taxicabs for 30 days because the Authority found that Germantown violated one of the Authority's regulations. Ger-mantown challenged the adjudication on the ground that the Authority failed to properly promulgate the regulation in accordance with what is commonly referred to as the Commonwealth Documents Law (CDL), Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa.C.S. §§ 501-907. Germantown Cab Co., 993 A.2d at 934. We concluded that the Authority was required to follow the requirements of the CDL when it adopted the regulation. Because the Authority failed to do so, we determined that “the Authority’s taxicab regulation does not have the force and effect of law; it is not 'valid for any purpose.' ” Id. at 943 (citation omitted). Accordingly, we held that the regulation was void and unenforceable and reversed the Authority’s order imposing sanctions on Ger-mantown. Id.

. Specifically, 52 Pa.Code § 41.14(b)(4) and (5) states, in pertinent part:

(b) An applicant seeking motor common carrier authority has the burden of demonstrating that it possesses the technical and financial ability to provide the proposed service. In addition, authority may be withheld if the record demonstrates that the applicant lacks a propensity to operate safely and legally. In evaluating whether a motor carrier applicant can satisfy these fitness standards, the Commission will ordinarily examine the following factors, when applicable:
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(4) Whether the applicant has an appropriate plan to comply with the Commission's driver and vehicle safety regulations and service standards contained in Chapter *4229 (relating to motor carriers of passengers).
(5) An applicant’s record, if any, of compliance with 66 Pa.C.S. (relating to the Public Utility Code), this title and the Commission’s orders.

. The Hearing Officer found that 99 additional citations for failing to appear for inspection were later withdrawn.

. 67 Pa.Code § 175.80(e)(l)(i) states: “Inspect the tires and wheels and reject if one or more of the following apply: ... A tire has two adjacent treads with less than 2/32-inch tread remaining at any point — less than 4/32-inch tread on the front tires of the vehicles having a gross weight in excess of 10,000 pounds....”

. 52 Pa.Code § 29.405 states, “Common carriers and contract carriers shall insure that vehicles operated under their certificates or permits receive the annual State inspection required by 75 Pa.C.S. Chapter 47 (relating to inspection of vehicles).”

. The Hearing Officer found that Rosemont is not registered as part of the "fleet program” whereby the Authority transfers liability for a ticket to the lessee of the company’s vehicle.

. 53 Pa.C.S. § 5706(a) states, in relevant part, that "[t]he authority shall provide for the establishment of a driver certification program for drivers of taxicabs ... in cities of the first class.... No individual shall operate a taxicab or limousine at any time unless the individual is certified as a driver by the authority. ...” The City of Philadelphia is the only city of the first class. See Blount v. Philadelphia Parking Authority, 600 Pa. 277, 279 n. 4, 965 A.2d 226, 228 n. 4 (2009).

. 53 Pa.C.S. § 5714(b) states, in relevant part, that ”[e]ach taxicab within cities of the first class shall be equipped with a protective bar*43rier for the protection of the driver, separating the front seat from the back seat....''