         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Yellow 2000 of Philadelphia           :
                                      :
            v.                        : No. 2036 C.D. 2015
                                      : Submitted: June 17, 2016
Philadelphia Parking Authority,       :
                   Appellant          :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: July 11, 2016


            The Philadelphia Parking Authority (Authority) appeals from an order
of the Court of Common Pleas of Philadelphia County (trial court) reversing the
Philadelphia Parking Authority Taxicab and Limousine Division’s (Hearing
Officer’s) order granting the Authority’s motion to amend owner citation T-16044
(Citation) against Yellow 2000 of Philadelphia, Inc. (Yellow) to include a violation
of 52 Pa. Code §1017.24 because the Hearing Officer did not have jurisdiction and
authority to amend the citation. We reverse.


            On November 22, 2013, Division Inspector Steven Owens (Owens)
issued the Citation against Yellow for violating 52 Pa. Code §1017.5 because its
medallion taxicab P-794 had an “Incomplete Communication System” explaining
the “vehicle was stopped for a routine inspection at 30th St. Train Station and GPS
was not working[.] I wai[ted] 15 min to see if it would turn on and it did not.”
(Reproduced Record at 29a.) Yellow received a reducible penalty of $350.00 and
its medallion taxicab was placed out of service. Yellow timely contested the
citation.


               At the February 12, 2015 administrative hearing, the Authority moved
to amend the citation to include an alleged violation of 52 Pa. Code §1017.24
which specifically requires an operating GPS. Over the objection of counsel for
Yellow, the Hearing Officer allowed the amendment.            Although the Hearing
Officer offered to continue the matter in order to give Yellow further opportunity
to prepare a defense for the amended citation, Yellow rejected the offer and elected
to proceed with the case.


               At the hearing, Owens testified that he was the inspecting officer that
issued the citation to Yellow’s taxicab on November 22, 2013. Owens stated that
when he conducted the inspection, the driver admitted that the GPS was not
working that day, and that although the GPS would power on, it would neither
receive input nor provide directions. Owens stated that he waited 15 minutes for
the GPS to properly work and gave the driver an opportunity to get the GPS to
work.       Owens stated that Yellow was issued a citation for an incomplete
communication system under 52 Pa. Code §1017.5 because the GPS is a
component of the communication system and must be operational when a taxicab
is in service and because the GPS, meter and credit card system are required to
work in conjunction with one another.




                                           2
               Based on that evidence, the Hearing Officer found Yellow liable for
violating 52 Pa. Code §1017.24 and imposed a penalty of $350.00, along with a
$75.00 administrative hearing fee. Yellow timely appealed the order to the trial
court, which reversed the Hearing Officer’s decision, reasoning that the Hearing
Officer’s jurisdiction over a contested citation is confined to the violations listed in
the citation, and that he had no authority to allow an amendment because the
violations were substantively different and past the time given to the Authority to
amend the citations. The Authority then filed this appeal.


               On appeal, the Authority contends that the trial court erred when it
found that under 53 Pa. C.S. §5705, a hearing officer neither has the jurisdiction
nor authority to amend contested citations.1 53 Pa. C.S. §5705(a) provides that
“[t]he authority may establish order[s] or regulations which designate rules and
procedures for the adjudication of complaints.” Id. Moreover, hearing officers are
permitted “at any stage of an action or proceeding [to] disregard an error or defect
of procedure which does not affect the substantive rights of the parties.” 52 Pa.
Code §1001.3(a). This includes a hearing officer’s ability to amend pleadings:

               (a) Generally. A modification of or supplement to an
               application, complaint, petition or other pleading shall be
               deemed as an amendment to the pleading, and must
               comply with the requirements in this chapter relating to
               the pleading amended.


       1
          Yellow has moved to strike portions of the Authority’s brief as it pertains to a hearing
officer’s discretion to permit amendment. It contends that the Authority has waived the issue
under Pa. R.A.P. 302(a) because the Authority failed to cite to specific regulations prior to this
appeal. Contrary to Yellow’s contention, this issue was not waived because the central issue has
remained whether a hearing officer has discretion and authority to amend contested citations.



                                                3
              (b) Limitation. An amendment to a pleading may not be
              filed more than 20 days after the date an answer or other
              response to the original pleading was due to be filed with
              the Clerk, unless directed or permitted by the Authority
              or the presiding officer after opportunity for all parties to
              be heard thereon.


52 Pa. Code §1005.61. Because a form citation falls within the category of a
“pleading,” a hearing officer has the authority and discretion to amend contested
citations.   See 52 Pa. Code §1005.1 (defining a pleading to include “Formal
complaint, answer, new matter and reply to new matter”); also id. at §1005.13(a)
(“The Enforcement Department or trial counsel may issue a formal complaint
through a form citation for any violation of the act, this part or order of the
Authority.”).


              When the Authority moved to amend the Citation at a hearing several
months after it was issued, it was well-beyond the 20-day timeframe set forth in 52
Pa. Code §1005.61(b), but it was still in the Hearing Officer’s sound discretion to
permit the amendment so long as the Hearing Officer provided an “opportunity for
all parties to be heard thereon.” 52 Pa. Code §1005.61(b).


              The question then is whether the Hearing Officer abused his discretion
by allowing the amendment. The original Citation for violating 52 Pa. Code
§1017.5 is not applicable to matters involving an inoperative GPS because this
provision only requires that the taxicab have an approved meter.              Id. at
§1017.5(b)(13).    52 Pa. Code §1017.24, however, does much more in that it
requires that “[t]he taxicab meter must be in operation during the entire time the
vehicle is engaged by a passenger” and requires meters to include GPS capabilities.

                                           4
Id. at §1017.24(d)(2)&(3). However, because the Citation’s explanatory section
states that the Citation is for an inoperative GPS, it placed Yellow on notice as to
what was the factual basis for the charge from the moment it was issued, and the
citation of an incorrect provision was a procedural error that the Hearing Officer
was permitted to correct. See 52 Pa. Code §1005.61; also id. at §1001.3(a) (“The
Authority or presiding officer at any stage of an action or proceeding may
disregard an error or defect of procedure which does not affect the substantive
rights of the parties.”).


              Yellow also contends that amending the Citation is a violation of its
due process rights. First, as mentioned, Yellow knew the substance of the charge
from the moment it was issued. Second, Yellow refused the Hearing Officer’s
offer to provide it with further opportunity and time to prepare after the
amendment was granted, and Yellow has also failed to demonstrate a clear harm
resulting from this procedural error save for having to face the consequence of its
violation.    As we have explained, “the mere demonstration of a potential
procedural error, without also alleging a resulting harm, is not sufficient reason to
disturb an agency adjudication.” See D.Z. v. Bethlehem Area School District, 2
A.3d 712, 719 (Pa. Cmwlth. 2010) (quoting Seltzer v. Department of Education,
782 A.2d 48, 53 (Pa. Cmwlth. 2001)).


              Accordingly, because the Hearing Officer had the authority to amend
the form Citation and gave both parties an opportunity to be heard, we reverse the
trial court’s determination and reinstate the decision of the Hearing Officer




                                         5
imposing a penalty of $350.00 for a violation 52 Pa. Code §1017.4 with an
additional administrative hearing cost of $75.00.



                                      __________________________________
                                      DAN PELLEGRINI, Senior Judge




                                         6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Yellow 2000 of Philadelphia            :
                                       :
             v.                        : No. 2036 C.D. 2015
                                       :
Philadelphia Parking Authority,        :
                   Appellant           :




                                    ORDER


             AND NOW, this 11th day of July, 2016, it is hereby ordered that the
Court of Common Pleas of Philadelphia County’s order dated October 2, 2015, at
Case No. 01161, is reversed, and Yellow 2000 of Philadelphia’s motion to strike
portions of the Philadelphia Parking Authority’s brief is denied.



                                       __________________________________
                                       DAN PELLEGRINI, Senior Judge
