        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


R. Anthony J. Smith                      :
                                         :
                   v.                    :   No. 2563 C.D. 2015
                                         :   Submitted: July 15, 2016
City of Philadelphia,                    :
                         Appellant       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY
JUDGE COHN JUBELIRER                         FILED: September 6, 2016


      The City of Philadelphia (City) appeals from the November 12, 2015, Order
of the Court of Common Pleas of Philadelphia County (common pleas) that
granted the appeal of R. Anthony J. Smith (Mr. Smith) from the Bureau of
Administrative Adjudication of the Office of the Director of Finance for the City of
Philadelphia (BAA). Common pleas held that Mr. Smith is not liable for the cost
of impounding his vehicle and for 31 outstanding parking violations because he
was a victim of identity theft and lacked notice of the parking violations. On
appeal, the City argues that common pleas erred and abused its discretion by
permitting Mr. Smith to participate at oral argument when Mr. Smith did not file a
brief, by concluding that it had jurisdiction to make a determination of liability
when its scope of review precluded such a determination, and by holding that
BAA’s process violated Mr. Smith’s due process rights.1 Because we conclude
that common pleas did not follow the correct procedures under the Local Agency
Law2 for reviewing BAA’s determination, we vacate common pleas’ Order and
remand for further proceedings consistent with this opinion.
       Mr. Smith’s vehicle was impounded by the Philadelphia Parking Authority
(Parking Authority) on April 28, 2015 after being “live stopped.”3 (Common pleas
Op. (Op.) at 1.) Mr. Smith appeared before a BAA hearing officer later that day.
(Id.) The City was not represented at this “hearing.” According to the transcript,4
the hearing officer informed Mr. Smith that his vehicle was impounded and that
following the impoundment, the City discovered that Mr. Smith owed $3,620.75 in
unpaid parking tickets and penalties. (R.R. at 16a-17a.) At some point prior to the
hearing, Mr. Smith was given documentation allegedly showing the outstanding
violations. (Id. at 18a.) Mr. Smith argued that the vehicles for which the parking
violations and penalties are associated “are not my cars” and that he was a victim
of identity theft in 1991 that was never fully resolved. (Id. at 17a.) Mr. Smith
stated that he was going to call the Pennsylvania State Police (State Police) to have
his story confirmed and would attempt to relay that information to the hearing
officer’s supervisor. (Id.)

       1
           By Order of July 8, 2016, Mr. Smith was precluded from filing a brief in this matter for
failing to comply with a previous order of this Court directing Mr. Smith to file a brief.
         2
           2 Pa. C.S. §§ 551 – 555, 751 – 754.
         3
           Philadelphia’s “Live Stop” Program “involves the immediate towing and impoundment
of vehicles found to be operating in violation of certain state motor vehicle statutes.” Phila.
Parking Auth. v. Am. Fed’n of State, Cnty., and Mun. Employees, Dist. Council 33, Local 1637,
845 A.2d 245, 246 (Pa. Cmwlth. 2004). See Section 6309.1 of the Vehicle Code, 75 Pa. C.S. §
6309.1 (governing impoundment for nonpayment of fines and the process for recovering an
impounded vehicle).
         4
           The transcript for the April 28, 2015, hearing can be found at pages 16a-19a of the
Reproduced Record.

                                                2
      Mr. Smith met with a different hearing officer (Hearing Officer), again
without the presence of representatives of the City, the following day. (Id. at 21a.)
The transcript shows that Mr. Smith once again argued that he was a victim of
identity theft and that the parking tickets and penalties did not belong to him.5 Mr.
Smith presented Hearing Officer with documentation from the State Police and the
Traffic Division of the Philadelphia Municipal Court showing that he was the
victim of identity theft in 1991. (R.R. at 23a.) After taking a short break to consult
with a supervisor, Hearing Officer told Mr. Smith:

      The only thing we can do at this point in order to get your car out, you
      would have to pay the fees and that would be $335.00 and these red
      light tickets which would be $350.00. You would need $685.00 and
      we would put you on a payment plan for the rest of the tickets.

(Id. at 24a.) Mr. Smith asked Hearing Officer how, if he paid the $650.00 and
accepted a payment plan, he could still appeal the fees assessed against him
because the cars that were ticketed were not his. The Hearing Officer responded:
“You don’t have too much of a choice here.” (Id.) The “hearing” ended, and Mr.
Smith was provided with notice that he was not eligible for a hearing to determine
whether he was responsible for the 31 outstanding violations because the violations
entered into default more than one year before the hearing. (Id. at 51a.)
      Mr. Smith filed a statutory appeal with common pleas. Common pleas
issued a scheduling order on June 23, 2015, that set a due date of September 8,
2015, for Mr. Smith’s brief. (Id. at 10a.) Mr. Smith did not file a brief in support
of his appeal. (Op. at 3.) The City filed a Motion to Quash Appeal, alleging that


      5
        The transcript for the April 29, 2015, hearing can be found at pages 21a-25a of the
Reproduced Record.

                                            3
Mr. Smith’s appeal should be quashed pursuant to Rule 2188 of the Pennsylvania
Rules of Appellate Procedure6 because he violated common pleas’ scheduling
order and the City was unable to prepare a defense. (R.R. at 54a-55a.) Common
pleas denied the City’s Motion to Quash Appeal and proceeded to hear oral
argument.
       At oral argument, Mr. Smith, appearing pro se,7 argued that he is the victim
of identity theft.8 (Id. at 75a-76a.) The City argued that there was some confusion,
and that all of the vehicles at issue “were registered to Mr. Smith at his home, and
they received parking tickets over the last 15 years.” (Id. at 80a.) Mr. Smith
argued in response that while the cars for which the parking tickets were associated
were registered in his name, “some of them are [registered at] addresses that I’ve
never lived at.” (Id. at 80a.) Mr. Smith argued that he did not know about the
tickets until he went to the Parking Authority to inquire about his car. (Id. at 81a.)
After reviewing the record, common pleas issued an Order on November 16, 2015,


       6
           Pa. R.A.P. 2188. Rule 2188 provides:

       If an appellant fails to file his designation of reproduced record, brief or any
       required reproduced record within the time prescribed by these rules, or within the
       time as extended, an appellee may move for dismissal of the matter. If an
       appellee fails to file his brief within the time prescribed by these rules, or within
       the time as extended, he will not be heard at oral argument except by permission
       of the court.

Id.
       7
          Mr. Smith was accompanied by an attorney at oral argument, but the attorney stated to
common pleas that she was not representing Mr. Smith in this matter and was only there for
moral support or to answer any questions on what happened when the matter was raised to the
Parking Authority. (R.R. at 75a.)
        8
          The transcript of the November 12, 2015, oral argument can be found at pages 71a-85a
of the Reproduced Record.

                                                  4
granting Mr. Smith’s appeal and finding him not liable for the costs of
impoundment and the 31 outstanding violations. (Order.)
      The City filed a notice of appeal to this Court, and common pleas ordered
the City to file a Concise Statement of Errors Complained of on Appeal (Concise
Statement) pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure.9      (Order, November 23, 2015, C.R. at Item 10.)                      In its Concise
Statement, the City argued that common pleas erred: (1) “when it denied the
City’s Motion to Quash Appeal and allowed [Mr. Smith] to participate in oral
argument despite never filing a brief”; (2) “when it concluded that it had
jurisdiction to make a determination of liability for the outstanding [31] parking
citations”; and (3) “by ignoring the standard of review in an appeal from an
administrative agency.” (R.R. at 87a-88a.)
      Common pleas issued an opinion pursuant to Rule 1925(a)(1) of the
Pennsylvania Rules of Appellate Procedure10 responding to the City’s arguments in


      9
          Pa. R.A.P. 1925(b). Rule 1925(b) provides:

      (b) Direction to file statement of errors complained of on appeal; instructions to
      the appellant and the trial court.-- If the judge entering the order giving rise to the
      notice of appeal (“judge”) desires clarification of the errors complained of on
      appeal, the judge may enter an order directing the appellant to file of record in the
      trial court and serve on the judge a concise statement of the errors complained of
      on appeal (“Statement”).

Id.
      10
           Rule 1925(a)(1) provides:

      (1) General rule.--Except as otherwise prescribed by this rule, upon receipt of the
      notice of appeal, the judge who entered the order giving rise to the notice of
      appeal, if the reasons for the order do not already appear of record, shall forthwith
      file of record at least a brief opinion of the reasons for the order, or for the rulings
                                                                                    (Continued…)
                                                 5
its Concise Statement. Therein, common pleas responded to the City’s argument
that the Motion to Quash Appeal should have been granted and that Mr. Smith
should not have been permitted to participate in oral argument by reasoning:

       [T]he trial court’s decision as to whether to grant or deny a Motion to
       Quash for failure to file a brief is within the court’s discretion. King
       v. City of Philadelphia, 102 A.3d 1073, 1077 (Pa. C[mwlth.] 2014).
       In the instant case, [Mr. Smith] averred he was unrepresented and did
       not know that he needed to file a brief.
              [The City] did not plead nor prove that it suffered any prejudice
       in [Mr. Smith]’s failure to file a brief. . . . Consequently, this court
       exercised its discretion in denying [the City]’s Motion to Quash and
       allow[ed] [Mr. Smith] to participate in oral argument.

(Op. at 6.)
       With regard to the City’s argument that it ignored the standard of review in
an agency appeal, common pleas reasoned as follows.

       As there were no findings of fact and conclusions of law provided to
       this court, it was impossible for this court to determine whether
       necessary findings of fact were supported by substantial evidence.
       [The City] provided a certified record containing only E-tims
       reports[11] and hearing dates. [The City] argued that [Mr. Smith] could
       not contest any tickets older than one year, despite [Mr. Smith]’s
       arguments that the tickets were not accrued by him and that the car
       registrations linked to those violations were not his cars, and despite
       the fact that the car was impounded due to said unpaid violations, of
       which [Mr. Smith] testified he had no notice. This court found [Mr.


       or other errors complained of, or shall specify in writing the place in the record
       where such reasons may be found.

Pa. R.A.P. 1925(a)(1).
        11
           The “E-tims” reports in the certified record list all outstanding violations for persons
with the last name Smith and various first names similar to Mr. Smith’s name. (R.R. at 32a-50a.)
Because there was no hearing discussing how the City imposed liability upon Mr. Smith based
on the reports, it is not clear to this Court how the E-tims reports should be understood.

                                                6
       Smith]’s oral argument persuasive and credible, and consequently
       exercised its equitable powers to resolve [Mr. Smith]’s tickets.

(Op. at 5.)
       Finally, common pleas responded to the City’s argument that common pleas
lacked authority to rule on Mr. Smith’s liability for the parking violations.
Common pleas held that the “procedure before the [BAA] was perfunctory,” and
that Mr. Smith’s due process rights were violated by being “effectively denied the
ability to contest the tickets, to fully understand the charges against him, or provide
a meaningful defense in any way” “despite having no knowledge of [the parking
tickets].” (Op. at 6-7.) Common pleas concluded that in light of this due process
violation, the court has equitable powers to resolve the outstanding tickets. (Op. at
7.)
       On appeal to this Court, the City makes the same arguments it raised in its
Concise Statement, and it argues that common pleas erred by concluding that Mr.
Smith’s due process rights were violated.12


Motion to Quash Appeal
       First, the City argues that common pleas erred by denying its Motion to
Quash Appeal pursuant to Rule 2188 of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 2188. According to the City, Mr. Smith’s failure to comply
with common pleas’ scheduling order, setting a timetable for briefing the case,

       12
         “Our standard of review, where the trial court takes no additional evidence, is limited
to determining whether constitutional rights were violated, [whether] an error of law was
committed or whether necessary findings of fact were supported by substantial evidence of
record.” SSEN, Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200, 208 n.11 (Pa.
Cmwlth. 2002).



                                               7
placed the City in a “diminished strategic position, as it had no way of knowing the
basis of [Mr.] Smith’s appeal.” (City’s Br. at 14.) The City contends that even
though Mr. Smith proceeded in the appeal pro se, he must be held to the same
standard as a counseled appellant and not given an advantage over the City solely
due to his lack of knowledge.
      The Pennsylvania Rules of Appellate Procedure do not apply to a court of
common pleas providing appellate review of a local agency decision under the
Local Agency Law unless the court has specifically adopted the Pennsylvania
Rules of Appellate Procedure. King, 102 A.3d at 1076. The Court of Common
Pleas for Philadelphia County has not formally adopted the Pennsylvania Rules of
Appellate Procedure, and a May 1, 2015, scheduling order states that “[t]his appeal
has been brought, and will be handled, under guidelines set forth in [the
Philadelphia County Rules of Civil Procedure,] Phila. Civ. R. 320 . . . .”
(Scheduling Order, May 1, 2015, ¶ 2, C.R. at Item 1.)          Rule 320(c) of the
Philadelphia County Rules of Civil Procedure provides:

      The Supervising Judge shall publish a standing case management
      order for each agency whose determinations are appealed on a regular
      basis (“agency-specific orders”). For agencies whose determinations
      are seldom appealed, the Supervising Judge shall publish a standing
      order of a generic nature. The [Prothonotary] shall provide
      appellant(s) with an agency-specific (or generic) standing order
      whenever a notice of appeal is filed.

      Every appeal (and matter ancillary thereto) shall be governed by the
      aforesaid standing order and any supplemental order, which may be
      issued by the Supervising Judge.

Phila. Civ. R. 320(c).
      Here, common pleas issued the relevant scheduling order on June 23, 2015.
Neither the Philadelphia County Rules of Civil Procedure nor the scheduling order
                                         8
provide for consequences for not complying with the briefing timeline. While
common pleas had the discretion to grant the Motion to Quash Appeal, see King,
102 A.3d at 1077 (affirming common pleas’ decision to “exercise[] its sound
discretion” and grant of a motion to quash for failure to file a brief), the law does
not require it to do so.       Further, we do not agree that the City was unduly
prejudiced by common pleas’ decision to allow Mr. Smith to participate in oral
argument. Mr. Smith raised the exact issues in oral argument as he did in the two
BAA hearings; ergo, the City had notice of Mr. Smith’s arguments and was able to
prepare a defense. Accordingly, we observe no error or abuse of discretion in
common pleas’ decision to deny the City’s Motion to Quash Appeal.


Standard of Review and Determining Liability
       Next, the City argues that common pleas erred and abused its discretion
when it concluded that Mr. Smith was not liable for the 31 parking violations and
penalties because Mr. Smith’s liability was beyond its scope and standard of
review.
       This action is governed by the Local Agency Law. Kovler v. Bureau of
Admin. Adjudication, 6 A.3d 1060, 1067 n.12 (Pa. Cmwlth. 2010); see Section
2.02 of the City of Philadelphia, Office of Director of Finance, Regulations of the
Bureau of Administrative Adjudication13 (stating that BAA “shall, consistent with
the Local Agency Law, 2 Pa. C.S. §§ 551-555, 751-754, have the powers and
duties of the Director of Finance . . . .”). The scope of review of a court of


       13
                   BAA’s          regulations    are        available        online   at
https://alpha.phila.gov/media/20160323084921/regulations-bureau-of-administrative-
adjudication.pdf (last visited Sept. 1, 2016).

                                             9
common pleas in local agency appeals is set forth in Section 754 of the Local
Agency Law, 2 Pa. C.S. § 754, and is dependent on the condition of the record
created before the agency.     Section 754 has two subsections: subsection (a),
applicable to situations where the agency record received by the court is
incomplete; and subsection (b), applicable where the record received by the court
is full and complete. We have explained:

      A “full and complete record” is defined as “a complete and accurate
      record of the testimony taken so that the appellant is given a base
      upon which he may appeal and, also, that the appellate court is given a
      sufficient record upon which to rule on the questions presented.” City
      of Philadelphia v. Board of License and Inspection Review, . . . 590
      A.2d 79, 86 [(Pa. Cmwlth. 1991)] (quoting Springfield School District
      v. Shellem, . . . 328 A.2d 535, 538 ([Pa. Cmwlth.] 1974)), petition for
      allowance of appeal denied, . . . 600 A.2d 540 ([Pa.] 1991). In the
      event a full and complete record of the proceedings before the local
      agency was not made, the court may hear the appeal de novo, or may
      remand the proceedings to the agency for the purpose of making a full
      and complete record or for further disposition in accordance with the
      order of the court.

In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006).
      The City argues that because the record was full and complete, the only
issues under review by common pleas were whether BAA’s determination that Mr.
Smith was not entitled to a hearing to consider his allegations that he should not be
liable for the parking violations (1) violated Mr. Smith’s constitutional rights, (2)
was an error of law, (3) was determined in a procedure that was contrary to statute,
and (4) whether the finding that Mr. Smith’s violations were in default for more
than a year was not supported by substantial evidence. The City misidentifies the
issues involved. Mr. Smith argued before the BAA and common pleas that the
tickets do not belong to him due to alleged identity theft. After assessing the


                                         10
evidence and hearing argument, common pleas identified a constitutional infirmity
in the process that had to be addressed.
       According to the Pennsylvania Supreme Court:

       [T]he basic tenets of due process apply with equal force in
       administrative proceedings as they do in judicial proceedings. See
       Kowenhoven v. County of Allegheny, . . . 901 A.2d 1003 ([Pa.] 2006)
       (“Due process principles apply to quasi-judicial or administrative
       proceedings....”). Moreover, it is fundamental that the key
       principles underpinning due process include the requirements of
       notice and an opportunity to be heard.

Pa. Bankers Ass’n v. Pa. Dep’t of Banking, 956 A.2d 956, 965 (Pa. 2008)
(emphasis added). “The key factor in determining whether procedural due process
is denied is whether the party asserting the denial of due process suffered
demonstrable prejudice.” City of Phila. v. Urban Mkt. Dev., Inc., 48 A.3d 520,
522 (Pa. Cmwlth. 2012). Due process not only requires an opportunity to be heard,
but also that the opportunity is provided “at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The constitutional
requirements of due process are mirrored in Section 553 of the Local Agency Law,
which provides: “No adjudication of a local agency shall be valid as to any party
unless he shall have been afforded reasonable notice of a hearing and an
opportunity to be heard.” 2 Pa. C.S. § 553.14

       14
         Whether a hearing and notice is required under Section 553 of the Local Agency Law
“depends on whether a local agency’s actions constitute an adjudication.” Guthrie v. Borough of
Wilkinsburg, 478 A.2d 1279, 1281 (Pa. 1984). The Local Agency Law defines “adjudication”
as:

       Any final order, decree, decision, determination or ruling by an agency affecting
       personal or property rights, privileges, immunities, duties, liabilities or obligations
       of any or all of the parties to the proceeding in which the adjudication is made.
                                                                                    (Continued…)
                                                11
        Pursuant to the Traffic Code, the “parking ticket and the information from a
state department of motor vehicles identifying the owner of the vehicle” serves as
“prima facie evidence that the registered owner of the vehicle was the person who
committed the parking violation.” Section 12-2807(2) of the Traffic Code, Phila.
Code § 12-2807(2).           We understand that the Traffic Code and associated
regulations provide the BAA with broad adjudicative authority to consider a
challenge to the City’s prima facie case and an appellant with the right to a hearing
to rebut the prima facie case if he or she submits a “written application setting forth
(i) a sufficient defense to the charge, and (ii) excusable neglect as to the
respondent’s failure to timely submit testimony and evidence or attend the hearing”
within one year after the ticket is entered. Phila. Code § 12-2807(4). The
Traffic Code also limits the ability of registered owners to raise the lack of notice
of a parking ticket on appeal. According to Section 12-2807(4) of the Traffic
Code:

        If a notice of violation was mailed to the registered owner at the
        address appearing on the registry of a state department of motor
        vehicles, the failure to receive such notice shall not be considered a
        defense unless the owner can prove that a state department of
        motor vehicles was advised of the owner’s change of address prior
        to the date of the parking violation.

Id. (emphasis added).




        The term does not include any order based upon a proceeding before a court or
        which involves the seizure or forfeiture of property, paroles, pardons or releases
        from mental institutions.

2 Pa. C.S. § 101. Under this definition, BAA’s determination was an adjudication.

                                               12
      However, these provisions are necessarily premised on the fact that the
“registered owner,” to whom the notice of violation was sent, is the person
appearing before the BAA. Any interpretation of these provisions that does not
permit the person against whom liability is charged to challenge whether the
governmental entity is proceeding against the correct person is not a lawful
interpretation. In Bell v. Burson, 402 U.S. 535, 536 (1971), the United States
Supreme Court assessed Georgia’s Motor Vehicle Safety Responsibility Act (Act),
Ga. Code Ann. §§ 92A-601 – 92A-605 (1958), which operated to suspend motor
vehicle operating privileges for uninsured licensees who were in accidents until the
licensee posted security to cover the damages caused by the accident.           The
procedures under the Act did not afford uninsured licensees with the right to a
hearing to challenge whether he or she was liable for the accident. The Court
noted that while “[a] procedural rule that may satisfy due process in one context
may not necessarily satisfy procedural due process in every case,” a hearing was
required in that instance to address the limited issue of whether there was a
reasonable possibility that judgments may be made against the licensee. Id. at 540.
The Court held that because:

      the statutory scheme makes liability an important factor in the State’s
      determination to deprive an individual of his licenses, the State may
      not, consistently with due process, eliminate consideration of that
      factor in its prior hearing. The hearing required by the Due Process
      Clause must be ‘meaningful’, and ‘appropriate to the nature of the
      case.’ It is a proposition which hardly seems to need explication that
      a hearing which excludes consideration of an element essential to the
      decision whether licenses of the nature here involved shall be
      suspended does not meet this standard.

Id. at 541-42 (citations omitted).


                                        13
       Like in Bell, the question of whether Mr. Smith owns the cars in question is
a central factor to the deprivation of his property. Accordingly, a meaningful
hearing on this question is required. Common pleas therefore correctly determined
that Mr. Smith should be afforded a meaningful opportunity to present his defense.
       However, common pleas did not correctly provide Mr. Smith with that
opportunity. Common pleas noted in its opinion that its review was hampered by
BAA’s decision to not provide common pleas with findings of fact or conclusions
of law. (Op. at 5); see Section 555 of the Local Agency Law, 2 Pa. C.S. § 555
(“[a]ll adjudications of a local agency shall be in writing, shall contain findings and
the reasons for the adjudication . . . ”). The issue raised by Mr. Smith’s appeal was
whether Mr. Smith was, in light of his alleged identity theft, the actual registered
owner of the vehicles and thus liable for the parking tickets and penalties. The
record was not complete on this issue because BAA did not give him a hearing on
this issue. Therefore, common pleas should have either held a de novo hearing or
remanded the matter to BAA for fact-finding. Such a hearing, if conducted by
common pleas, would necessarily include the swearing-in of witnesses, the
presentation of evidence, and allowing for such evidence to be tested by cross-
examination.15 Instead, common pleas made credibility determinations and found
facts based upon oral argument. Because it is well-settled that “a court may not
properly base an adjudication on matters stated in oral argument that do not appear
of record,” this was error. Claremont Properties, Inc., v. Bd. of Twp. Supervisors
of Middlesex Twp., 546 A.2d 712, 715 (Pa. Cmwlth. 1988).


       15
           BAA’s hearing process is governed by Section 5.02 of its regulations. These
regulations provide for a panoply of due process protections. Appeal to a Parking Appeal Panel
is governed by Section 6.01 of BAA’s regulations.

                                             14
       Common pleas relied on its equitable power citing Section 753(b) of the
Local Agency Law, 2 Pa. C.S. § 753(b). Section 753 of the Local Agency Law
reads in its entirety:

       (a) General rule.--A party who proceeded before a local agency under
       the terms of a particular statute, home rule charter, or local ordinance
       or resolution shall not be precluded from questioning the validity of
       the statute, home rule charter or local ordinance or resolution in the
       appeal, but if a full and complete record of the proceedings before the
       agency was made such party may not raise upon appeal any other
       question not raised before the agency (notwithstanding the fact that
       the agency may not be competent to resolve such question) unless
       allowed by the court upon due cause shown.

       (b) Equitable relief.--The remedy at law provided by subsection (a)
       shall not in any manner impair the right to equitable relief heretofore
       existing, and such right to equitable relief is hereby continued,
       notwithstanding the provisions of subsection (a).

2 Pa. C.S. § 753. Section 753 involves the right of a plaintiff to challenge the
constitutionality of the local agency law. We have said: “[w]hen subsection (b) is
read in conjunction with subsection (a), to which it specifically refers, it becomes
clear that Section 753 merely allows a party who proceeded before a local agency
under the terms of a particular statute the ability to raise the validity of that statute
in an appeal or in a separate equitable action.” Delaware Cnty. v. City of Phila.,
620 A.2d 666, 668 (Pa. Cmwlth. 1993) (emphasis in original). Neither Section 753
nor any other provision of the Local Agency Law provides courts of common pleas
with the authority to make factual findings and credibility determinations based on
oral argument. As such, common pleas’ November 12, 2015, Order must be
vacated.
       We, therefore, must remand to allow Mr. Smith the opportunity to present
evidence to a neutral fact finder on whether Mr. Smith was provided notice of the

                                           15
violations and failed to act, and whether the violations at issue belong to Mr.
Smith. See Burger v. Bd. of Sch. Directors of McGuffey Sch. Dist., 839 A.2d
1055, 1062 (Pa. 2003) (noting that “due process is a flexible concept and, thus,
requires procedural protections as each particular situation demands”); City of
Phila., Bd. of License & Inspection Review v. 2600 Lewis, Inc., 661 A.2d 20, 23
(Pa. Cmwlth. 1995) (concluding that because a licensee was denied due process
due to defective proceedings, remand was necessary “to ensure the integrity of the
administrative process”).      We leave the decision on whether the fact-finding
necessitated by our disposition should be conducted by common pleas or BAA up
to the sound discretion of common pleas. Pursuant to Section 754(a) of the Local
Agency Law, common pleas may decide to either conduct a de novo hearing or to
remand to BAA for a hearing. Regardless of what procedure is chosen, the correct
interpretation of the Traffic Code and the associated BAA regulations affords Mr.
Smith the opportunity to present evidence on whether he was provided notice of
the parking violations and penalties and whether he is liable for the parking
violations in light of his alleged identity theft.



                                            ________________________________
                                            RENÉE COHN JUBELIRER, Judge




                                            16
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


R. Anthony J. Smith                      :
                                         :
                   v.                    :      No. 2563 C.D. 2015
                                         :
City of Philadelphia,                    :
                          Appellant      :



                                      ORDER


      NOW, September 6, 2016, the November 12, 2015 Order of the Court of
Common Pleas of Philadelphia County (common pleas), entered in the above-
captioned matter, is VACATED. The matter is REMANDED to common pleas
for proceedings consistent with this opinion.


      Jurisdiction relinquished.



                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge
