                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lindros Taxi, LLC, Mickey Cab Corp.,            :
Eurostar Taxi, LLC, Gotry Cab Co.,              :
Botswana Taxi, LLC, Yellow 2000                 :
of Philadelphia, Inc., Vick Taxi, LLC,          :
Two Phones Taxi, LLC, and Nagi                  :
Cab Corp.,                                      :
                    Appellants                  :
                                                :    No. 1173 C.D. 2015
                v.                              :
                                                :    Argued: May 12, 2016
The Philadelphia Parking Authority              :


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                                     FILED: July 1, 2016


                Lindros Taxi, LLC, Mickey Cab Corporation, Eurostar Taxi, LLC, Gotry
Cab Company, Botswana Taxi, LLC, Yellow 2000 of Philadelphia, Inc., Vicki Taxi,
LLC, Two Phones Taxi, LLC, and Nagi Cab Corporation (Appellants) appeal from
the June 11, 2015 order of the Court of Common Pleas of Philadelphia County (trial
court) denying Appellants’ statutory appeal from the order of a Philadelphia Parking
Authority (PPA) Hearing Officer, which sustained citations issued to Appellants for
violating section 1011.9 of Title 52 of the Pennsylvania Code (Code).1



      1
          52 Pa. Code §1011.9 (taxicab service limitations).
                               Facts and Procedural History
              The underlying facts are undisputed.                 On August 6, 2013, the
Pennsylvania Department of Transportation (DOT) suspended the driver’s license of
a taxicab driver, Bengali Konneh (Konneh). However, Konneh continued to lease
and operate Appellants’ taxicabs while his license was suspended. On November 13,
2013, Konneh appeared at PPA’s Taxicab and Limousine Division (TLD) to renew
his PPA issued taxicab driver’s certificate (Taxicab Certificate)2 when TLD
discovered that Konneh’s driver’s license had been suspended. TLD’s Enforcement
Department then reviewed its GPS records and discovered that Konneh had operated
Appellants’ taxicabs while his driver’s license was suspended. On December 3,
2013, TLD issued citations to Appellants because it determined that Appellants failed
to adequately supervise their taxicabs when they allowed Konneh to lease and operate
their vehicles with a suspended driver’s license in violation of section 1011.9 of the
Code. Appellants appealed the issuance of citations and, on July 24, 2014, a PPA
Hearing Officer held a hearing.3
              At the hearing, Matt Black (Black), a TLD Inspector, confirmed that he
issued the citations because a driver operated a taxicab with a suspended driver’s
license. Black stated that Konneh arrived at TLD to renew his Taxicab Certificate,
that he reviewed Konneh’s ten-year driving record provided by DOT, and that it
indicated that Konneh’s driver’s license had been suspended on August 6, 2013. He
testified that he reviewed GPS records which showed that Konneh had performed

       2
          A Taxicab Certificate is required to operate a taxicab in Philadelphia. (Reproduced Record
(R.R.) at 147a-48a.)

       3
          The hearing was held for Lindros Taxi, LLC. However, other than the dates of the
offenses and the cab numbers, the facts of Appellants’ individual cases were identical. Therefore,
the testimony was incorporated into all Appellants’ cases. (R.R. at 140a-41a, 191a-93a.)



                                                 2
numerous trips using Appellants’ taxicabs while his driver’s license was suspended.
Black further testified that TLD regulations prohibit a taxicab driver from operating a
taxicab without a valid driver’s license and that a certificate holder4 must supervise its
taxicabs to confirm that only authorized drivers provide taxicab service. He stated
that Appellants’ failure to supervise their taxicabs was the basis for issuing the
citations. (R.R. at 143a-46a, 150a.)
              Black testified that a Taxicab Certificate must be renewed annually and
one of the requirements for a Taxicab Certificate is a valid driver’s license. He
explained that TLD does not perform random inspections to determine whether a
taxicab driver possesses a valid driver’s license and will likely only investigate a
driver’s license if the vehicle is stopped for inspection. Black acknowledged that it is
not unusual for a taxicab driver to possess a valid Taxicab Certificate with a
suspended driver’s license and confirmed that was Konneh’s situation; however, he
noted that there are approximately 6,000 taxicab drivers in Philadelphia and it would
be impossible for PPA to confirm daily that every taxicab driver possesses a valid
driver’s license. (R.R. at 147a-50a, 154a-56a.)
              Black further testified that, after he concluded his investigation and
confiscated Konneh’s Taxicab Certificate, his supervisor instructed him to issue
citations for Appellants’ alleged failure to supervise their taxicabs that had occurred
months prior. Black acknowledged that TLD was unaware that Konneh’s driver’s
license had been suspended on the dates when he actually provided taxicab service
with a suspended driver’s license. (R.R. at 163a, 166a-67a.)



       4
         The Code defines a certificate holder as the person to whom PPA issues a certificate of
public convenience. 52 Pa. Code §1001.10(a).



                                               3
             On October 22, 2014, PPA issued its order and opinion, sustaining the
citations against Appellants.    On November 12, 2014, Appellants filed a timely
appeal to the trial court, asserting that: PPA erred when it determined that certificate
holders are responsible for confirming that a taxicab driver possesses a valid driver’s
license; PPA erred when it determined that it has the authority to retroactively issue
citations; and PPA abused its discretion when it determined that Appellants violated
section 1011.9 of the Code because the record contained no evidence indicating that
Appellants failed to verify the validity of Konneh’s driver’s license before they
allowed him to lease and operate their taxicabs.
             On June 11, 2015, the trial court denied Appellants’ appeal. In its
opinion, the trial court reasoned that PPA’s determination that Appellants must
ensure that a taxicab driver possesses a valid driver’s license was proper because the
Code mandates that a certificate holder shall supervise its taxicabs to certify that only
authorized taxicab drivers provide taxicab service. The trial court determined that
PPA did not violate Appellants’ due process rights because Appellants received
adequate notice of the citations and participated in a hearing to contest the propriety
of the citations. Moreover, the trial court concluded that Appellants’ argument that
PPA abused its discretion when it determined that Appellants violated the Code was
meritless because Appellants argued an incorrect standard; the record supported
PPA’s finding that Konneh operated taxicabs without a valid driver’s license and,
therefore, it was irrelevant to argue that there was insufficient evidence to show that
Appellants had not verified the validity of Konneh’s driver’s license prior to leasing
their taxicabs to him.




                                           4
              On appeal to this Court,5 Appellants reiterate the arguments made before
the trial court. Specifically, they argue that the trial court erred when it determined
that section 1011.9 of the Code requires a certificate holder to verify that a driver who
operates its taxicabs possesses a valid driver’s license. Appellants also argue that the
trial court erred because PPA does not have the authority to retroactively issue
citations for conduct that occurred months prior because it violates Appellants’ due
process rights.     Moreover, Appellants assert that the trial court erred when it
determined that Appellants violated section 1011.9 of the Code because there is no
record evidence indicating that Appellants failed to verify whether Konneh’s driver’s
license was valid when they leased their taxicabs to him.


                                           Discussion
              Initially, we note that an agency’s interpretation of its own regulation is
controlling unless: (1) that interpretation is plainly erroneous or inconsistent with the
regulation; or, (2) the regulation is inconsistent with the statute under which it is
promulgated. E. Smalis Painting Company, Inc. v. Department of Transportation,
452 A.2d 601, 602 (Pa. Cmwlth. 1982).
              PPA is an independent administrative commission that regulates taxicab
and limousine service. 53 Pa.C.S. §5505(d)(23). PPA is authorized to investigate
and examine the condition and management of any entity providing taxicab service.



       5
          Where the trial court does not take any additional evidence, our scope of review of an
agency’s decision 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. Kovler v. Bureau of Administrative Adjudication, 6 A.3d 1060, 1062 n.1 (Pa. Cmwlth.
2010).



                                                5
53 Pa.C.S. §5505(d)(24). PPA may prescribe such rules as it deems necessary to
govern the regulation of taxicabs within Philadelphia. 53 Pa.C.S. §5722.
             The Code provides that only the following individuals may provide
taxicab service: (1) the owner, if the owner is a taxicab driver; (2) an employee of the
certificate holder who is a taxicab driver; or, (3) a taxicab driver who leases the
taxicab directly from the certificate holder. 52 Pa. Code §1011.9(a). The Code
further provides that “[a] certificate holder shall supervise its taxicab to make certain
that only those taxicab drivers authorized by this section provide taxicab service.” 52
Pa. Code §1011.9(b).


                                   Duty to Supervise
              Appellants argue that the Code designates PPA as the entity charged
with ensuring that taxicab drivers possess valid drivers’ licenses, not certificate
holders. According to Appellants, PPA is the only entity authorized to determine
who is a taxicab driver because the Code defines a taxicab driver as an individual
who possesses a current and validly issued Taxicab Certificate and PPA is the only
entity authorized to issue a Taxicab Certificate. Similarly, Appellants assert that PPA
is charged with confirming that a taxicab driver holds a valid driver’s license after a
Taxicab Certificate is issued or renewed because PPA only issues a Taxicab
Certificate after initially verifying that the applicant holds a current driver’s license.
Appellants further assert that, by issuance or renewal of a Taxicab Certificate, PPA
represents the individual to the industry and the public as one who possesses a valid
Taxicab Certificate, they must rely on a Taxicab Certificate to determine who is
authorized to operate their taxicabs, and, consequently, they are not required to




                                            6
independently verify that a taxicab driver with a current and validly issued Taxicab
Certificate also possesses a valid driver’s license.
               Conversely, PPA argues that certificate holders are charged with
ensuring that a taxicab driver possess a valid driver’s license because they frequently
interact with the drivers, including regularly entering into lease agreements with
them. PPA also asserts that to hold otherwise would unreasonably allocate the
burden to PPA to certify that all taxicab drivers possess valid drivers’ licenses and
would produce an illogical result because certificate holders would be authorized to
rely on a Taxicab Certificate notwithstanding that the driver may be prohibited from
operating any vehicle due to a suspended driver’s license.
               The Code unambiguously states that only a taxicab driver may provide
taxicab service. 52 Pa. Code §§1011.9(a), 1021.2(a). A taxicab driver is defined as
“[t]he individual to whom a current and valid taxicab driver’s certificate has been
issued by the Authority under section 5706 of the act.”6 52 Pa. Code §1001.10(a).
An individual who does not possess a valid driver’s license is ineligible for a Taxicab
Certificate. 52 Pa. Code §1021.4(1). The Code mandates that a certificate holder
“shall supervise its taxicab to make certain that only those taxicab drivers authorized
by this section provide taxicab service.” 52 Pa. Code §1011.9(b) (emphasis added).
The Code is clear that a certificate holder “shall supervise” its taxicabs; however, the
restrictive language in section 1011.9(b) limits the duty of supervision and requires
only that certificate holders verify that an individual authorized by this section, i.e.,
with a valid Taxicab Certificate, provides taxicab service. Notably absent from the

       6
        Section 5706 of the General Local Government Code (Act), Act of July 16, 2004, P.L. 758,
as amended, 53 Pa.C.S. §5706, states, in pertinent part, “[n]o individual shall operate a taxicab or
limousine at any time unless the individual is certified as a driver by the authority. . . .” 53 Pa.C.S.
§5706(a).



                                                   7
Code is a requirement that certificate holders verify that individuals with a valid
Taxicab Certificate also possess a valid driver’s license.
             Additionally, the Code defines a Taxicab Certificate as “[a] certificate
issued by the Authority authorizing the holder to provide taxicab service under the
act . . . .” 52 Pa. Code §1001.10(a) (emphasis added). Similarly, section 5706 of the
Act provides, in pertinent part, that:

             Operating a taxicab or limousine without a driver’s
             certificate or authorizing or permitting the operation of a
             taxicab or limousine by a driver who is not certified as a
             driver by the authority . . . is a nontraffic summary offense
             in the first instance and a misdemeanor of the third degree
             for each offense thereafter.
53 Pa.C.S. §5606(b) (emphasis added).
             Section 1001.10(a) of the Code expressly states that a Taxicab
Certificate authorizes the holder to provide taxicab service and Section 5706 of the
Act contemplates issuance of violations to certificate holders only for permitting a
driver to operate a taxicab without a Taxicab Certificate.
             The Code’s plain language indicates that a Taxicab Certificate authorizes
an individual to provide taxicab service and mandates that a certificate holder “shall
supervise” its taxicabs to verify that only individuals with a valid Taxicab Certificate
provide taxicab service. However, there is no provision in the Code or the Act
requiring a certificate holder to verify that a taxicab driver also possesses a valid
driver’s license.   To hold otherwise would be an improper exercise of judicial
legislation. Therefore, a certificate holder’s duty to supervise is satisfied if it verifies
that an individual possesses a current and validly issued Taxicab Certificate. PPA’s
interpretation concluding otherwise is inconsistent with the Code’s plain language
and, therefore, clearly erroneous.


                                             8
             PPA directs this Court’s attention to section 1021.12(d) of the Code,
which mandates that a taxicab driver may not provide taxicab service without a valid
driver’s license. 52 Pa. Code §1021.12(d). However, that section of the Code
addresses taxicab drivers, not certificate holders. Moreover, the Code’s express
language limits a certificate holder’s duty of supervision to verify that “only those
taxicab drivers authorized by this section [i.e., individuals possessing a current and
valid Taxicab Certificate] provide taxicab service.”         52 Pa. Code §1011.9(b)
(emphasis added).     Thus, even if section 1021.12 of the Code was directed at
certificate holders, the Code’s plain language indicates that a certificate holder’s duty
to supervise does not extend to that section of the Code.
             PPA also argues that Appellants’ reading unreasonably allocates the
burden to PPA to certify that all taxicab drivers possess valid drivers’ licenses.
However, the burden is already assigned to PPA to inquire whether an applicant for
issuance or renewal of a Taxicab Certificate possesses a valid driver’s license. 52 Pa.
Code §1021.4(1).
             Finally, PPA asserts that it would produce an illogical result if certificate
holders are authorized to rely on an individual’s valid Taxicab Certificate to allow
him or her to provide taxicab service notwithstanding that the individual’s invalid
driver’s license prohibits the individual from operating any vehicle. Our holding
does not authorize an individual with a valid Taxicab Certificate to operate a vehicle
notwithstanding an invalid driver’s license.       Rather, our holding is limited to
concluding that the Code’s plain language indicates that a certificate holder need only
check the validity of an individual’s Taxicab Certificate to satisfy its duty of
supervision under section 1011.9 of the Code. See 52 Pa. Code §1001.10(a) (defining




                                            9
a Taxicab Certificate as “[a] certificate issued by the Authority authorizing the holder
to provide taxicab service under the act . . .” (emphasis added).


                                       Conclusion
             Accordingly, because the Code does not require certificate holders to
certify that individuals who possess a current and validly issued Taxicab Certificate
also possess a valid driver’s license, the trial court’s order is reversed.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                            10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lindros Taxi, LLC, Mickey Cab Corp.,     :
Eurostar Taxi, LLC, Gotry Cab Co.,       :
Botswana Taxi, LLC, Yellow 2000          :
of Philadelphia, Inc., Vick Taxi, LLC,   :
Two Phones Taxi, LLC, and Nagi           :
Cab Corp.,                               :
                    Appellants           :
                                         :    No. 1173 C.D. 2015
            v.                           :
                                         :
The Philadelphia Parking Authority       :


                                     ORDER


            AND NOW, this 1st day of July, 2016, the June 11, 2015 order of the
Court of Common Pleas of Philadelphia County is reversed.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
