           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Germantown Cab Company               :
                                     :
               v.                    : No. 1083 C.D. 2016
                                     : No. 1084 C.D. 2016
Philadelphia Parking                 : Submitted: January 27, 2017
Authority,                           :
                                     :
                      Appellant      :



BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                             FILED: August 15, 2017


               The Philadelphia Parking Authority (PPA) appeals a June 10, 2016
order of the Court of Common Pleas of Philadelphia County (trial court) insofar as
it reversed the decision of a PPA Hearing Officer to uphold three citations issued
to Germantown Cab Company (Germantown), a partial rights1 taxicab operator, for
violating PPA regulations.
               On March 8, 2014, Supervisor John Broggi (Broggi) of the PPA Taxi
and Limousine Division (TLD) issued three citations to Germantown: T-16568 (as
amended) for violations of 52 Pa. Code §§1011.3(a)(1) (expiration of taxicab

       1
            A partial rights taxicab is defined as “[a] taxicab authorized by the [PPA] to provide
common carrier call or demand transportation of persons for compensation on a non-citywide
basis . . . .” 52 Pa. Code §1011.2.
driver’s certificate) and 1011.9(b) (certificate holder’s responsibility to supervise
drivers); T-16569 for a violation of 52 Pa. Code §1017.5(b)(12) (requiring a
protective shield separating front and back seats); and T-16570 for violations of 52
Pa. Code §§1017.5(b)(15), (16) (taxicab must be clean; spare tires must be
covered). Several days later, Broggi issued citation T-16574 for a violation of 52
Pa. Code §1017.36 (prohibiting a taxicab removed from service from resuming
service prior to a successful PPA compliance inspection). Germantown appealed
all of the citations.
              At a February 26, 2015 hearing, TLD relied on Broggi’s inspection
report for its case. Germantown presented no witnesses or evidence but argued
that the PPA could not establish jurisdiction because the taxicab had not been
registered with the PPA. Germantown also asserted arguments it had raised as part
of a general challenge to PPA regulations in Bucks County Services, Inc. v.
Philadelphia Parking Authority, (Pa. Cmwlth. 2016, No. 584 M.D. 2011, filed
January 3, 2017) (single-judge opinion by Brobson, J.),2 which matter was then
pending.
              Based on the TLD inspection report, the PPA Hearing Officer found
that the taxicab, G-47, had been providing service in Philadelphia and was
therefore subject to the PPA’s jurisdiction. The Hearing Officer concluded that
TLD had proved by a preponderance of the evidence that Germantown was liable
for all violations alleged in the citations. By order dated April 14, 2015, the PPA



       2
        Notices of Appeal to the Pennsylvania Supreme Court were filed by the PPA on January
23, 2017, and the Pennsylvania Public Utilities Commission (PUC) on February 2, 2017, and
docketed at 8 EAP 2017 and 9 EAP 2017, respectively.


                                             2
Hearing Officer imposed civil penalties and administrative costs totaling
$2,025.00. Germantown appealed to the trial court.
                 The trial court first noted that because the taxicab is a partial rights
taxicab, it may be regulated by the PUC and/or the PPA when it is operating within
certain areas of Philadelphia. The trial court observed that it had previously
refused to enforce PPA regulations that conflict with PUC regulations absent
evidence that the taxicab had been operating outside its PUC certificate, reasoning
that such enforcement creates an unreasonable economic hardship on a partial
rights operator.3 By order dated June 9, 2016, the trial court affirmed the PPA as to
citation T-16570, on the grounds that the regulation at issue did not conflict with
any PUC regulation or impose any undue economic hardship. Trial Court op. at 4.
However, after determining that the PPA and PUC regulations conflicted and that


       3
           The trial court explained:

                 [T]his Court has reasoned that if a taxi is providing service within
                 the City of Philadelphia pursuant to its PUC certificate, the statute
                 gives the PPA the authority to enforce PPA regulations as long as
                 such enforcement is within PPA’s jurisdiction and the enforcement
                 does not create an unreasonable conflict between the taxi’s PUC–
                 issued certificate and PPA regulations. In order for a PUC
                 certificate, including one granting partial rights, to have any
                 meaning, the regulations imposed by PPA cannot conflict with
                 those of the PUC in such a way that creates unreasonable
                 economic hardship or eviscerates the PUC certificate.

                 Accordingly . . . in order for the PPA to have the jurisdiction to
                 properly enforce its conflicting regulation . . . record evidence must
                 establish that the at-issue taxi was providing point-to-point service
                 within the City of Philadelphia and outside of its PUC certificate at
                 the time of the violation.

Trial Court op. at 2 (emphasis in original).


                                                   3
the PPA failed to establish that the taxicab had been operating in Philadelphia
outside its PUC certificate, the trial court reversed the PPA’s order as to the
remaining citations.
               On appeal to this Court,4 the PPA argues that the trial court ignored
the PPA’s exclusive jurisdiction to regulate partial rights taxicab service within the
City of Philadelphia. We affirm the trial court’s order on other grounds.5
               In Bucks County Services, this Court addressed a challenge to PPA
regulations brought by several taxicab companies providing partial-rights services
in Philadelphia, including Germantown. The companies challenged the authority
of the PPA to regulate partial-rights taxicabs under the same regulatory scheme as
medallion cabs operating in Philadelphia. This Court found that the PPA failed to
consider the differences between medallion taxicabs and partial-rights taxicabs
when enacting its 2011 regulations, which placed the same burdens on partial-
rights and medallion taxicabs. This Court concluded that the regulations placed a
disproportionate burden on partial-rights taxicabs and evidenced a purely arbitrary
exercise of the PPA’s rulemaking power. The Court initially held that all of the
regulations promulgated by the PPA in 2011 were invalid as to partial-rights
taxicabs. Subsequently, in a January 3, 2017 Memorandum and Order, this Court

       4
         Our scope of review of an agency’s decision where the trial court does not take any
additional evidence is limited to determining whether constitutional rights were violated, whether
an error of law was committed, and whether necessary findings of fact are supported by
substantial evidence. Lindros Taxi, LLC v. Philadelphia Parking Authority, 143 A.3d 443, 446
n.5 (Pa. Cmwlth. 2016). The PPA functions as an agency of the Commonwealth in regulating
taxicabs. Blount v. Philadelphia Parking Authority, 965 A.2d 226, 234 (Pa. 2009).
       5
         An appellate court may affirm the trial court for grounds different from those relied
upon by the trial court when other grounds for affirmance exist. Germantown Cab Company v.
Philadelphia Parking Authority, 158 A.3d 731, 732 n.1 (Pa. Cmwlth. 2017).



                                                4
amended its original order in Bucks County Services, Inc. to hold that the nine
specific regulations challenged in that appeal, including 52 Pa. Code §§1011.3
(annual renewal of driver’s certificate) and 1017.5(b)(12) (requiring protective
shield), were invalid and unenforceable with respect to partial-rights taxicabs.6
              Thereafter, in Germantown Cab Company v. Philadelphia Parking
Authority, 155 A.3d 669, 673-74 (Pa. Cmwlth. 2017), we reversed a trial court’s
order upholding a fine imposed on Germantown by the PPA for a violation of 52
Pa. Code §1017.5(b)(12) (protective shields).             In doing so, we adopted the
reasoning in Bucks County Services, Inc. and reaffirmed its holding. We stated:
              Recently, this Court held that the [PPA] cannot impose
              its regulations on partial rights taxicabs operating in
              Philadelphia. [Bucks County Services, Inc.]. In that
              case, the taxicab companies argued that it was
              unreasonable and unduly burdensome for the [PPA] to
              regulate their operations; they were only subject to
              regulation by the PUC. This Court found that the
              regulations treated medallion and partial rights taxicabs
              identically, without any consideration of the material
              differences in their operations. Accordingly, the Court
              held that the [PPA’s] regulations were invalid and
              unenforceable to partial rights taxicabs.
              On January 3, 2017, this Court amended its original order
              in Bucks County Services, Inc. and declared nine specific
              Parking Authority regulations invalid and unenforceable .
              . . [including 52 Pa. Code §1017.5(b)(12)].
155 A.3d at 673 (footnote omitted). We further noted that

       6
         Also included were regulations related to vehicle age and mileage requirements, 52 Pa.
Code §1717.4; pre-service inspections, 52 Pa. Code §1017.2; PPA certificates of inspection, 52
Pa. Code §1017.32(d); PPA biannual inspections, 52 Pa. Code §1017.31; meter seal inspections,
52 Pa. Code §1017.21(b); driver certifications, 52 Pa. Code §§1021.2; 1021.4(3), 1021.4(7),
1021.7, 1021.8, and 1021.9; and out-of-service designations, 52 Pa. Code §1003.32.


                                              5
               [t]he PUC does not require partial rights operators to
               have a protective shield, and this Court has invalidated
               the [PPA’s] protective shield regulation as it applies to
               partial rights cabs.       Stated otherwise, assuming
               Germantown Cab operated outside the service area in its
               PUC certificate, this does not subject it to a medallion
               taxicab regulation.     Instead, it becomes a taxicab
               operating outside its PUC certificate and subject to
               penalties as delineated in Germantown Cab Company v.
               Philadelphia Parking Authority [(Pa. Cmwlth., No. 461
               C.D. 2012, filed January 22, 2013)].
155 A.3d at 674. See also Germantown Cab Company v. Philadelphia Parking
Authority, 158 A.2d 731 (Pa. Cmwlth. 2017) (affirming trial court’s reversal of a
fine issued for failure to install a protective shield based on the holding in Bucks
County Services, Inc. that 52 Pa. Code §1017.5(b)(12) was unenforceable).
Following these decisions, we affirm the trial court’s order as to citation T-16569.
               With respect to citation T-16568, issued for violations of 52 Pa. Code
§§1011.3(a)(1) (expiration of taxicab driver’s certificate) and 1011.9(b) (certificate
holder’s responsibility to supervise drivers), we find the rationale set forth in Bucks
County Services, Inc., to be persuasive,7 and we adopt its holding that the
regulation at 52 Pa. Code §1011.3 is invalid and unenforceable. Further, because,
in this case, the alleged violation of 52 Pa. Code §1011.9(b) was premised on a
violation of 52 Pa. Code §1011.3, we affirm the trial court’s reversal of the PPA’s
decision with respect to citation T-16568.


       7
          An unreported opinion of this court may be cited and relied upon when it is relevant
under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an
unreported panel decision of the Court issued after January 15, 2008, for its persuasive value, but
not as binding precedent. A single-judge opinion of the Commonwealth Court, even if reported,
shall be cited only for its persuasive value, not as a binding precedent. Section 414 of the
Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §69.414.



                                                 6
              The remaining citation, T-16574, alleges a violation of 52 Pa. Code
§1017.36,8 specifically, the operation of a taxicab that was removed from service
by the PPA. As the trial court observed, the reasons PPA placed Germantown’s
PPA certificate out of service are not set forth in the record. However, in Bucks
County Services, Inc., this Court also invalidated the regulation at 52 Pa. Code
§1003.32 (out of service designation), which was the source of the PPA’s authority
to place a vehicle in out-of-service status. The rationale underlying the Court’s
determination in Bucks County Services, Inc. as to the invalidity of 52 Pa. Code
§1003.32 is persuasive, and, given this Court’s prior determinations, we affirm the
trial court’s reversal of the PPA’s order as to citation T-16574.
              Accordingly, the trial court’s order is affirmed.




                                           MICHAEL H. WOJCIK, Judge




       8
         The regulation states: “If a taxicab fails any authority inspection or is removed from
taxicab service for any reason, the taxicab may not resume taxicab service until a compliance
inspection is successfully completed by the Authority.” 52 Pa. Code §1017.36.


                                              7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Germantown Cab Company        :
                              :
            v.                : No. 1083 C.D. 2016
                              : No. 1084 C.D. 2016
Philadelphia Parking          :
Authority,                    :
                              :
                  Appellant   :



                                  ORDER


      AND NOW, this 15th day of August, 2017, the order of the Court of
Common Pleas of Philadelphia County, dated June 10, 2016, is affirmed.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
