            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Germantown Cab Company,                        :
                    Appellant                  :
                                               :
                      v.                       :
                                               :   No. 1078 C.D. 2015
Philadelphia Parking Authority                 :   Argued: February 9, 2016


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABL JAMES GARDNER COLINS, Senior Judge




OPINION BY
JUDGE COVEY                                        FILED: March 1, 2016

              Germantown        Cab     Company       (Germantown)        appeals     from     the
Philadelphia County Common Pleas Court’s (trial court) May 14, 2015 order,
denying its appeal from the Philadelphia Parking Authority’s (Authority) decision.
Germantown essentially presents two issues for this Court’s review: (1) whether the
Authority violated this Court’s January 6, 2012 order enjoining the Authority from
confiscating or impounding cars for violating Section 5714(a) of the act commonly
known as the Parking Authority Law (Act),1 and (2) whether the Authority violated
Germantown’s rights under the Fourteenth Amendment of the United States (U.S.)
Constitution.2
       1
          Act of December 30, 2001, P.L. 2002, reenacted and amended by the Act of July 16, 2004,
P.L. 758 (Act 94), as amended, 53 Pa.C.S. § 5714(a).
        2
          The Authority argues that Germantown’s appeal should be dismissed for failure to exhaust
administrative remedies because the Authority’s order should have been appealed to the Authority’s
Board as opposed to the trial court pursuant to Section 1(c) of the General Rules of Administrative
Practice and Procedure, 1 Pa. Code § 35.190(c). However, because the Authority did not raise this
issue before the trial court, it is waived. In re F.C. III, 2 A.3d 1201 (Pa. 2010). Accordingly, we
are prohibited from addressing it.
                                           Background
               Germantown states in its brief that it “is a [Public Utility Commission
(]PUC[)]-certified motor carrier that operates approximately 170 taxicabs in a
designated service territory that is divided by the Philadelphia-Montgomery County
line. [Germantown] does not own any medallions and does not have a certificate of
public convenience issued by the [Authority].” Germantown Br. at 6 (emphasis
added). However, this Court stated in Germantown Cab Company v. Public Utility
Commission, 97 A.3d 410 (Pa. Cmwlth. 2014): “[U]nder both Act 94 and Act 119,
[Section 5714(d)(2) of the Act], 53 Pa.C.S. § 5714(d)(2) explicitly preserved
Germantown’s authority to conduct partial-rights operations in that portion of the
City as stated in its Commission-issued CPC [certificate of public convenience] and
specifically transferred regulatory authority over its operations in that area to
the Authority.” Germantown, 97 A.3d at 417 (emphasis added); see also Bucks
Cnty. Servs., Inc. v. Phila. Parking Auth., 104 A.3d 604 (Pa. Cmwlth. 2014) (“the
[Authority] has the power to promulgate and enforce regulations relating to service
provided by [Germantown] within the City of Philadelphia.”).
               Section 5714 of the Act provides in relevant part:

               (a) Vehicles generally.—

               (1) A vehicle may not be operated as a taxicab with
               citywide call or demand rights in cities of the first class
               unless a certificate of public convenience is issued by the[3]
               [A]uthority authorizing the operation of the taxicab and a
               medallion is attached to the hood of the vehicle. Prior to
               the issuance of a medallion, the certificate holder shall have
               its vehicle inspected by the [A]uthority.



       3
         Prior to an amendment effective July 5, 2012, the first sentence stated “unless a certificate
of public convenience is issued by “‘an’ authority[,]” as opposed to the current language: “‘the’
authority[.]”
                                                  2
(2) The [A]uthority shall require, by order or regulation,
that each vehicle within its jurisdiction pursuant to this
chapter submit to periodic inspections by [A]uthority
personnel to ensure that the vehicle meets the requirements
of this subchapter and [A]uthority regulations.

....

(c) Service.--A vehicle authorized by a certificate to
provide call or demand service within cities of the first class
may transport persons and their baggage upon call or
demand and parcels, packages and property at the same
basic metered rates charged to passengers:

(1) between points in the city of the first class for which its
certificate is issued;

(2) from any point in the city of the first class for which its
certificate is issued to any point in this Commonwealth;

(3) from any point in this Commonwealth to any point in
the city of the first class for which its certificate is issued if
the request for service for such transportation is received by
call to its centralized dispatch system; and

(4) from any point in the city of the first class for which its
certificate is issued to any point outside this Commonwealth
as a continuous part of a trip.
....

 (e) Penalties involving certificated taxicabs.--Operating a
certificated taxicab in violation of subsections (a) and (b) or
authorizing or permitting such operation is a non[-]traffic
summary offense. Offenders of subsections (a) and (b) may
also be subject to civil penalties pursuant to section 5725
(relating to civil penalties).

(f) Unauthorized vehicles.--Operating an unauthorized
vehicle as a taxicab, or giving the appearance of offering
call or demand service with an unauthorized vehicle,
without first having received a certificate of public
convenience and a medallion is a non[-]traffic summary
offense in the first instance and a misdemeanor of the third
degree for each offense thereafter. The owner and the
driver of a vehicle being operated as or appearing as a
                                3
              taxicab without a certificate of public convenience and a
              medallion are also subject to civil penalties pursuant to
              section 5725. Civil penalties which have been assessed and
              collected shall be deposited in the fund.

              (g) Confiscation and impoundment of vehicles.—

              (1) The [A]uthority is empowered to confiscate and
              impound vehicles, medallions and equipment which are
              utilized to provide call or demand service in cities of the
              first class without a proper certificate of public convenience
              issued by the authority or which are in violation of
              regulations of the authority.[4] Upon satisfaction of all
              penalties imposed and all outstanding fines assessed against
              the owner or operator of the confiscated vehicle and
              payment of the costs of the [A]uthority associated with
              confiscation and impoundment, the vehicle, medallion and
              equipment shall be returned to its registered owner or
              registered lienholder.
53 Pa.C.S. § 5714.
              This Court in Sawink, Inc. v. Philadelphia Parking Authority, 34 A.3d
926 (Pa. Cmwlth.), aff’d, 57 A.3d 644 (Pa. 2012) (per curiam), held that “Section
5714 of the [Act] does not authorize the impoundment sanction where a taxicab,
certificated by the PUC, accepts a hail in Philadelphia in violation of Section 5714(a)
[of the Act.]” Id. at 932.


                                             Facts
              On August 1, 2014, the Authority’s Taxicab and Limousine Division
(TLD) Inspector James Burke (Inspector Burke) and his partner observed
Germantown taxicab number G-91 pick up three passengers at 11th and Pattison
Streets in Philadelphia. The inspectors followed the cab to its destination in the
vicinity of 700 Annin Street, Philadelphia, whereupon they stopped the cab for


       4
        Prior to an amendment effective July 5, 2012, the first sentence of Section 5714(g) of the
Act was preceded by the words: “In addition to penalties provided for in subsection (f)[.]”
                                                4
providing unauthorized point to point service in Philadelphia. Upon inspection of the
taxicab, the inspectors ascertained that the vehicle did not have a current TLD
inspection sticker or a partition shield, had not been inspected by the Authority’s
TLD, and the driver was not an Authority certified driver. Inspector Burke stated that
because it is a safety concern for taxicabs to be driven in Philadelphia without an
inspection, it impounded Germantown’s taxicab pursuant to Section 1017.32 of the
Authority’s Regulations, 52 Pa. Code § 1017.32.
              On August 7, 2014, an impoundment hearing was held before an
Authority hearing officer. On September 3, 2014, the Authority entered an order
determining that the impoundment was proper. On October 20, 2014, Germantown
appealed from the Authority’s order to the trial court. On May 14, 2015, the trial
court denied Germantown’s appeal. Germantown appealed to this Court.5


                                           Discussion
              Germantown first argues that the Authority violated this Court’s January
6, 2012 order enjoining the Authority from confiscating or impounding cars for
violation of Section 5714(a) of the Act. Specifically, Germantown contends that this
Court’s order in Sawink prohibits any impoundment of taxicabs for violating Section
5714(a) of the Act unless or until that order has been dissolved, vacated or modified
by this Court.

       5
          “Where the trial court does not take any 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 Admin. Adjudication, 6 A.3d 1060, 1062 n.1 (Pa. Cmwlth. 2010). “On issues of statutory
interpretation this Court’s scope of review is plenary, and our standard of review is de novo.”
Doherty v. Dep’t of Transp., Bureau of Driver Licensing, 921 A.2d 532, 535 n.3 (Pa. Cmwlth.
2006).



                                                 5
            Initially, the Sawink Court’s Order expressly stated:

            AND NOW, this 6th day of January, 2012, the motion for
            summary relief filed by Sawink, Inc., Germantown Cab
            Company and Rosemont Taxicab Co., Inc. is hereby
            GRANTED.          The [Authority] is enjoined from
            confiscating or impounding the taxicabs of Sawink, Inc.,
            Germantown Cab Company and Rosemont Taxicab Co.,
            Inc. where one of its taxicabs has committed a violation
            of Section 5714(a) of the [Act], . . . in a manner
            consistent with the conduct that prompted the
            impoundments referenced in the above-captioned
            petition for review. This injunction does not restrict the
            [Authority] with respect to the imposition of other sanctions
            authorized by the [Act].
Sawink, Inc., 34 A.3d at 932 (emphasis added). Germantown argues that because the
Sawink Court enjoined the Authority from confiscating or impounding Germantown’s
taxicabs where one of its taxicabs has committed a violation of Section 5714(a) of
the Act, the Authority is forever enjoined from confiscating or impounding
Germantown’s taxicabs pursuant to Section 5714 of the Act until such Order is
dissolved, vacated or modified.
            However, the Sawink Court explicitly stated:

            Section 5714(g) [of the Act] does not empower the
            Authority to impound taxicabs licensed by the PUC when
            they commit a territorial violation proscribed by Subsection
            (a) of Section 5714 [of the Act], i.e., picking up a hail in
            Philadelphia. At a minimum, the statute is ambiguous,
            which requires a narrow construction of the impoundment
            penalty in favor of Petitioners.

Sawink, 34 A.3d at 930. Accordingly, Sawink is inapposite and thus not controlling.
As stated in the Sawink Order: “The [Authority] is enjoined from confiscating or
impounding the taxicabs of [Germantown] where one of its taxicabs has committed a
violation of Section 5714(a) of the [Act], . . . in a manner consistent with the


                                          6
conduct that prompted the impoundments referenced in the above-captioned
petition for review.” Id. at 932 (emphasis added). It is undisputed that the conduct
referenced in the petition for review involved a territorial violation. In the instant
case, although Germantown’s taxicab was stopped for providing point to point
service in Philadelphia, it was impounded for its violation of Section 1017.32 of the
Authority’s Regulations which requires a current TLD inspection sticker before
providing service in Philadelphia.     Moreover, as noted above, after this Court’s
decision in Sawink, the Legislature amended Section 5714(g) of the Act, thereby
removing the ambiguity which was at issue in Sawink. Accordingly, Sawink is not
applicable to the matter currently before us.
             Germantown contends that because its taxicabs are PUC certified, it is
not required to have a TLD inspection. Thus, its taxicab was wrongly impounded for
that reason. However, Germantown’s argument is incongruous to the current state of
the law regarding the Authority’s power over PUC certified taxicabs in Philadelphia.
See Germantown; Bucks Cnty. Servs.
             Both the current and the former version of Section 5714(g) of the Act
authorize the Authority to impound vehicles “which are in violation of regulations of
the [A]uthority.”   53 Pa.C.S. § 5714(g).       In the instant case, the taxicab was
impounded for a violation of Section 1017.32 of the Authority’s Regulations which
required a current TLD inspection sticker before a taxicab can provide service in
Philadelphia. Id.
             Section 5714(g) of the Act provides in relevant part:
             Confiscation and impoundment of vehicles.—
             (1) The [A]uthority is empowered to confiscate and
             impound vehicles, medallions and equipment which are
             utilized to provide call or demand service in cities of the
             first class without a proper certificate of public convenience
             issued by the [A]uthority or which are in violation of
             regulations of the [A]uthority. . . .

                                           7
53 Pa.C.S. § 5714(g) (emphasis added). Section 1017.32(a) of the Authority’s
Regulations provides:

            Impoundment. Upon observation of an impoundable
            offense, the Enforcement Department may direct the
            immediate impoundment of a vehicle, equipment or
            medallion under [S]ection 5714(g) of the [A]ct (relating to
            certificate and medallion required) and have the impounded
            property removed to a place of safe storage under the
            control of the Authority.
52 Pa. Code § 1017.52. An impoundable offense is defined, in pertinent part, in the
Authority’s regulations as follows:
            Impoundable offense--The occurrence of any of the
            following circumstances is an impoundable offense:

            (i) An unauthorized taxicab provides, or attempts to
            provide, call or demand service in Philadelphia.

            ....

            Unauthorized taxicab—

            (i) A vehicle without a current and valid TLD inspection
            sticker affixed as provided in [Section] 1017.32 [of the
            Authority’s Regulations] (relating to TLD inspection sticker
            required).

            ....

            Vehicle--The term includes the vehicle and equipment used
            or capable of being used to provide taxicab service.

52 Pa. Code § 1017.51. Accordingly, because the Act authorizes the impoundment of
vehicles for violating the Authority’s regulations, and Germantown violated Section
1017.32 of the Authority’s Regulations, the Authority acted in accordance with its
power to impound Germantown’s taxicab. As thoroughly addressed above and for


                                         8
the reasons discussed, the Sawink Order is not applicable and the Authority did not
act in violation thereof.
               Germantown next argues that the Authority’s impoundment of its
taxicab violated Germantown’s rights under the Fourteenth Amendment of the U.S.
Constitution.6 We disagree.
               First, Germantown did not raise any constitutional issues before the
Authority’s hearing officer. “It is well settled that issues raised for the first time on
appeal are waived.” Pa. Bankers Ass’n v. Pa. Dep’t of Banking, 962 A.2d 609, 621
(Pa. 2008).7 “When a party fails to raise an issue, even one of a constitutional
dimension, in an agency proceeding, the issue is waived and cannot be considered for
the first time in a judicial appeal.” Huddock v. Pa. Dep’t of Pub. Welfare, 808 A.2d
310, 313 n.4 (Pa. Cmwlth. 2002).
               However, in its argument, Germantown does not maintain that its
constitutional rights were violated, but rather, that “[t]he Authority’s interpretation of
the statu[t]e [Sections 5714(a) and 5714(g) of the Act] also raises constitutional
concerns.” Germantown Br. at 25. The only case Germantown cites to in support of

       6
          In its Statement of Errors Complained of on Appeal, Germantown contends that the
Authority violated its rights under the Fourth Amendment of the U.S. Constitution. However, in its
Statement of the Questions Involved, the Authority lists the issue as a violation of its Fourteenth
Amendment rights. Although Germantown appears to be arguing that the Authority violated its
rights under both the Fourth and the Fourteenth Amendments, neither argument is fully developed.
       7

              It is without question that the right to a due process hearing, like most
              constitutional rights, can be waived. See, e.g., Bedford Downs Mgmt.
              Corp. v. State Harness Racing Comm’n Valley View Downs, . . . 926
              A.2d 908, 923 ([Pa.] 2007) (per curiam) (finding a due process
              argument waived when it was not raised before the administrative
              agency); In re Cicchetti, . . . 743 A.2d 431, 443 n. 1 ([Pa.] 2000)
              (acknowledging that a due process claim can be waived for failure to
              raise it in a timely fashion); In re Martorano, . . . 346 A.2d 22, 27
              ([Pa.] 1975) (finding a plaintiff’s due process claim waived because it
              was raised for the first time on appeal).
Pa. Bankers Ass’n, 962 A.2d at 622.
                                                  9
its position is South Dakota v. Opperman, 428 U.S. 364 (1976), wherein the U.S.
Supreme Court opined:

              In the interests of public safety and as part of what the
              Court has called ‘community caretaking functions,’ Cady v.
              Dombrowski, . . . 413 U.S. [433,] 441, . . . [(1973)],
              automobiles are frequently taken into police custody.
              Vehicle accidents present one such occasion. To permit the
              uninterrupted flow of traffic and in some circumstances to
              preserve evidence, disabled or damaged vehicles will often
              be removed from the highways or streets at the behest of
              police engaged solely in caretaking and traffic-control
              activities. Police will also frequently remove and impound
              automobiles which violate parking ordinances and which
              thereby jeopardize both the public safety and the efficient
              movement of vehicular traffic. The authority of police to
              seize and remove from the streets vehicles impeding
              traffic or threatening public safety and convenience is
              beyond challenge.
Opperman, 428 U.S. at 368-69 (emphasis added; footnote omitted).8 However, this
case does not support Germantown’s position; it supports the Authority’s contention
based on the current state of the law. The Authority impounded Germantown’s
taxicab because it was not TLD inspected and thus was a safety concern.
              Germantown further argues that:

              Both the Pennsylvania Constitution and the [U.S.]
              Constitution restrict the scope of the community caretaking
              function and, consequently the impoundment power, to
              circumstances that truly pose an immediate threat to public
              safety, such as the operation of an unlicensed taxicab, or
              operation of a taxicab by an impaired driver or a taxicab in
              a visibly unsafe condition. It does not and should not
              apply to territorial violations by certificated taxicabs.
              Such violations pose no safety threat to the public and
              warrant lesser sanctions, such as fines, suspension, or
              ultimately revocation of operating rights.


       8
        Although Germantown, in its brief, blocked a statement purportedly made by the U.S.
Supreme Court, it is actually a paraphrase of the above-cited quotation. See Germantown Br. at 26.
                                               10
Germantown Br. at 26 (emphasis added). Germantown insists this case involves a
territorial violation because its taxicab was subject to PUC inspection as well as TLD
inspection. The crux of Germantown’s argument is that because its taxicabs are
PUC-certificated, it is unconstitutional for the Authority to regulate them. Although
Germantown asserts constitutional concerns, its argument is “[b]ut where, as here, a
vehicle is also subject to inspections by the PUC, the lack of a [TLD] inspection
sticker does not amount to a public safety issue.” Germantown Br. at 27. The issue
before this Court, however, is not whether the Authority has the power to regulate
PUC-certificated taxicabs providing service in Philadelphia. The Authority’s power
has already been established in that regard. See Germantown; Bucks Cnty. Servs.
The Authority here acted in accordance with the power bestowed upon it by the
Legislature.
               With respect to whether a statute is constitutional, the Pennsylvania
Supreme Court has held:

                ‘[A]cts passed by the General Assembly are strongly
               presumed to be constitutional, including the manner in
               which they were passed.’ [Pa.] State Ass’n of Jury
               Comm’rs v. Com[monwealth], 64 A.3d 611, 618 (Pa. 2013).
               Thus, a statute will not be found unconstitutional ‘unless it
               clearly, palpably, and plainly violates the Constitution.’ Id.
               If there is any doubt as to whether a challenger has met this
               high burden, then we will resolve that doubt in favor of the
               statute’s constitutionality. Id.
Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013). Germantown has not met
its burden in proving that Sections 5714(a) and 5714(g) of the Act “clearly, palpably,
and plainly violate[] the Constitution.” Neiman, 84 A.3d at 611.


                                       Conclusion
               Although Germantown’s taxicab was stopped for acting outside its PUC
authorized service area, i.e., providing unauthorized point to point service in

                                            11
Philadelphia, it was impounded for violating the Authority’s regulations. Because the
Act authorizes the impoundment of vehicles for violating the Authority’s regulations,
and Germantown violated Section 1017.32 of the Authority’s Regulations, the
Authority acted in accordance with its power to impound Germantown’s taxicab.
             Germantown’s argument that the Authority’s impoundment of its taxicab
violated Germantown’s rights under the Fourteenth Amendment of the U.S.
Constitution is waived for failure to raise it before the Authority’s hearing officer.
Assuming Germantown raised a constitutional challenge that was not waived,
Germantown has not met its burden in proving that the Act and/or the Authority’s
regulations are unconstitutional.
             For all of the above reasons, the trial court’s order is affirmed.

                                        ___________________________
                                        ANNE E. COVEY, Judge




                                           12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Germantown Cab Company,               :
                    Appellant         :
                                      :
                  v.                  :
                                      :   No. 1078 C.D. 2015
Philadelphia Parking Authority        :


                                  ORDER

            AND NOW, this 1st day of March, 2016, the Philadelphia County
Common Pleas Court’s May 14, 2015 order is affirmed.


                                   ___________________________
                                   ANNE E. COVEY, Judge
