          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul Tyrell                             :
                   v.                   :
                                        :
City of Philadelphia,                   :   No. 354 C.D. 2016
                         Appellant      :   Submitted: August 26, 2016



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                           FILED: April 21, 2017


              The City of Philadelphia (City) appeals from an order of the
Philadelphia County Court of Common Pleas (trial court), which reversed a
decision of the Bureau of Administrative Adjudication (BAA) finding Paul Tyrell
(Tyrell) liable for having violated Title 12 Section 12-903(1) of the Philadelphia
Code (Code). Upon review, we vacate and remand.
              Tyrell received a parking citation on November 12, 2014.
(Reproduced Record (R.R.) at 11A.) He disputed the citation with the BAA,
acknowledged he was parked six inches past the sign, and suggested the
Philadelphia Parking Authority consider “leeway for cars to give cars behind them
room to get out.” (R.R. at 12A.) On February 9, 2015, after review of the City’s
prima facie case and evaluation of evidence/testimony submitted, the BAA found
Tyrell liable for the citation in the amount of $76.00. (R.R. at 16A.) Tyrell
appealed the decision of the BAA to the BAA Appeal Panel. At a hearing held on
May 6, 2015, Tyrell testified his car could have “fully fit in the parking spot,” but
it put his car too close to the car behind him. (R.R. at 18A.) Tyrell submitted a
photo of his vehicle parked beyond the boundaries of the parking spot as evidence
at the hearing. Id. By notice dated May 7, 2015, the February 9, 2015 decision of
the BAA was affirmed. (R.R. at 22A.) Tyrell filed an appeal to the trial court.
Oral argument was held on January 14, 2016. On February 18, 2016, the trial court
entered an order reversing the decision of the BAA. (R.R. at 55A-57A.) On
March 1, 2016, the City filed a Motion for Reconsideration, which was denied that
same day. (R.R. at 73A.) The City now petitions this Court for review.1
                The trial court issued an opinion pursuant to Rule 1925(a)(1) of the
Pennsylvania Rules of Appellate Procedure.2 The trial court found the decision of
the BAA reversible on two grounds: 1) the citation was facially defective because
the violation charged did not exist as cited, and 2) a different section of the Code
for which Mr. Tyrell may have been charged allowed for de minimis violations.
(R.R. at 82A).        The trial court asserted in a footnote that “violations of the



       1
         Where the trial court does not take 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 Administrative Review, 6 A.3d 1060, 1062 n.1 (Pa. Cmwlth. 2010).

       2
           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 or other errors
                   complained of, or shall specify in writing the place in the record where
                   such reasons may be found.
                   ….
                                                  2
Philadelphia Code are summary offenses over which this Court has the discretion
to determine that they may be de minimis violations.” Id.
             On appeal, the City argues the trial court erred by basing its decision
on evidence outside its scope of review and by failing to follow its standard of
review, and the trial court abused its discretion when basing its decision on an
argument not raised by the parties.
             Conversely, Tyrell argues the trial court’s decision was based on an
error of law made by the BAA and a lack of substantial evidence. Tyrell further
argues the City incorrectly interprets Section 12-913 of the Code as “separate
from” Section 12-903 of the Code, and Section 12-1004 is not applicable to the
location where the citation was issued. (Tyrell’s Brief at 2.)


                                      Discussion


             The BAA first argues the decision of the trial court was based on
assumed facts that were not in the record. On this point, we disagree with the
BAA.    A review of the trial court’s decision indicates it was based on the
information contained within the parking ticket issued to Tyrell. Having included
the ticket in the reproduced record filed with this Court (R.R. at 11A), we must
assume the BAA is not arguing that ticket is not part of the record. The ticket
issued to Tyrell contained the following information in the violation section:
             “129031 C
             STOP PROHIBITED CC.”
             Id.
             In its opinion dated February 18, 2016, the trial court noted that
Section 12-903(1) of the Code does not contain a subpart (c) and held that, “where

                                           3
the ticket is facially defective it cannot support a violation, standing alone.” (R.R.
at 55A-56A.) The trial court accepted Tyrell’s defense that he parked outside the
boundaries of the parking spot to protect his vehicle and the one behind him, and
found that such a deviation would have been allowed under Section 12-913 of the
Code, which does contain a subpart (c).3 (R.R. at 56A.) Because the BAA would
not entertain Tyrell’s argument that he should be provided leeway to avoid
damaging another vehicle, the trial court assumed the ticket was issued pursuant to
Section 12-903, and not Section 12-913. Id. Finding the ticket facially defective,
however, and noting that violations of the Code are summary offenses over which
the trial court had the discretion to rule as de minimis violations, the trial court
reversed the decision of the BAA. Id. at 56A-57A.
                While other violations of the Code are considered summary offenses,
control over parking violations in the City of Philadelphia was transferred in 1989
from Traffic Court to the Office of the Director of Finance. O’Neill v. City of
Philadelphia, 711 A.2d 544, 545 (Pa. Cmwlth. 1998). The effect of this transfer
was to decriminalize parking offenses and make them civil violations. Id. On this
point, we agree with the BAA and conclude the trial court erred in determining a
violation of the Code was a summary offense for which it could find a de minimis
violation.
                With regard to the finding of the trial court that the ticket was facially
defective, we turn to Section 12-2804 of the Code, which sets forth the procedures
for issuance and service of parking tickets. Paragraph 3 of that section provides in
pertinent part that the “parking ticket shall also contain other sufficient information

      3
          §12-913. Prohibitions in Specified Places.

                (1) Except when necessary to… protect the safety of any person or
                vehicle… no person shall… (c) [p]ark a vehicle:…(ii) [a]t any place where
                signs prohibit parking.
                                                  4
to… inform the person of the nature… of the violation alleged.” PHILA. CODE §
12-2804(3).
              It is clear from the record Tyrell understood he was charged with a
parking violation. As the trial court noted, however, the ticket issued referenced a
non-existent Code provision. The BAA argues it was provided no opportunity to
address the trial court and clarify the inclusion of “C” in the violation section.
(Appellant’s Brief at 8.)     Clarification upon appeal, however, cannot act to
retroactively create sufficiency from insufficiency.
              In its May 7, 2015 decision, the BAA found Tyrell “liable for the
violation under the Philadelphia Code as cited.” (R.R. at 23A.) We agree with the
trial court that the Code does not contain a Section 12-903(c). The trial court,
however, assumed facts not on the record, namely that the writer of the ticket
included the “C” to indicate a violation of a subparagraph of Section 12-903 and
not something else. It is unclear from the record what the “C” represents. Section
754(a) of the Local Agency Law provides that, in the event a full and complete
record of the proceedings of the local agency was not made, the court may hear the
appeal de novo, or may remand proceedings for the purpose of making a full and
complete record. 2 Pa.C.S. § 754(a). We therefore vacate and remand this matter
to the trial court to make a new determination on whether the record was complete
and, if not, whether the trial court should take additional evidence itself or remand
the case to the BAA for further proceedings.
              The BAA next argues the trial court erred in failing to follow the
appropriate standard of review. Because we vacate the decision of the trial court
and remand this matter to the trial court for further proceedings, we need not
address this argument.      Likewise, we need not address Tyrell’s arguments



                                           5
regarding the City’s interpretations of sections 12-903, 12-913, and 12-1004 of the
Code.
            For the reasons set forth above, we vacate the order of the trial court
and remand for proceedings consistent with this opinion.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge




                                          6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Paul Tyrell                              :
                   v.                    :
                                         :
City of Philadelphia,                    :      No. 354 C.D. 2016
                          Appellant      :


                                      ORDER


              AND NOW, this 21st day of April, 2017, the order of the Court of
Common Pleas of Philadelphia County dated February 18, 2016, is hereby vacated
and this matter is remanded to the trial court for further proceedings consistent
with this opinion. Jurisdiction relinquished.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge
