               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Germantown Cab Co.                              :
                                                :
                       v.                       :    No. 962 C.D. 2016
                                                :    Submitted: June 30, 2017
The Philadelphia Parking Authority,             :
                        Appellant               :



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: August 18, 2017


       The Philadelphia Parking Authority (PPA) appeals from a May 13, 2016
Order of the Court of Common Pleas of Philadelphia County (trial court), which
affirmed in part and reversed in part the decision of a PPA Hearing Officer finding
Germantown Cab Company (Germantown Cab) liable for a $55,025 fine for 157
violations of Section 1017.33 of Title 52 of the Pennsylvania Code.1 Specifically,
the trial court held that 156 of the 157 citations had not been properly consolidated,

       1
           Section 1017.33 provides:

       If a taxicab fails to appear for an inspection as provided in § 1017.31 (relating to
       vehicle inspections by the Authority), the certificate holder may be subject to a
       penalty through issuance of a formal complaint and an out of service designation
       under § 1003.32 (relating to out of service designation).

52 Pa. Code § 1017.33.
and, thus, it addressed only a single citation. The trial court upheld the Hearing
Officer’s finding that Germantown Cab committed a single violation of Section
1017.33, but found the $55,025 fine to be unreasonable. PPA argues that the trial
court should have considered all of the 157 citations because the Hearing Officer
properly consolidated them, and that the trial court should have affirmed them all,
making the $55,025 fine, consisting of $350 for each citation, reasonable. Upon
review, we affirm in part and reverse in part.
      Germantown Cab operates a fleet of partial-rights or non-medallion taxicabs
within parts of the City of Philadelphia.2 (R.R. at 226a-28a.) On June 11, 2014,
PPA cited Germantown Cab under Citation No. T-17223 for failing to present its
cab, G-21, for biannual inspection on June 10, 2014, in violation of Section
1017.33. (Id. at 15a.)
      A hearing was held before a Hearing Officer, during which Germantown
Cab argued that Section 1017.33 is an unreasonable regulation. (Id. at 72a.)
Following the hearing, the Hearing Officer issued a decision noting that Citation
No. T-17223 had been consolidated with 156 other citations identified in Exhibit A
appended to the decision. PPA had cited Germantown Cab for each vehicle it had
failed to present for PPA inspection because “[t]he parties agree[d] that the facts
and legal arguments in all of the cases listed in Exhibit A are identical” with the
exception of the cab number, date of inspection, and citation number. (Id. at 48a,
54a.) Therefore, the Hearing Officer incorporated all of the evidence and argument
it had heard over two days on January 21, 2015, and February 6, 2015, involving
different citations, into all of the cases. The Hearing Officer rejected Germantown

      2
           In Bucks County Services, Inc. v. Philadelphia Parking Authority (Bucks County
Services I), 71 A.3d 379, 382-84 (Pa. Cmwlth. 2013), we explained the difference between
partial-rights or non-medallion taxicabs and medallion taxicabs.
                                           2
Cab’s argument that Section 1017.33 is unreasonable and held that it is a valid and
enforceable regulation, relying on Bucks County Services, Inc. v. Philadelphia
Parking Authority (Bucks County Services II), 104 A.3d 604 (Pa. Cmwlth. 2014).
Thus, the Hearing Officer sustained the 157 citations for violations of Section
1017.33 against Germantown Cab, and the Hearing Officer imposed a $350 fine
for each violation, plus a $75 administration fee, for a total fine of $55,025. (R.R.
at 55a-56a.)
      Germantown Cab appealed to the trial court, arguing that Section 1017.33 is
invalid and unenforceable because it, and other PPA regulations, regulate
medallion and non-medallion taxicabs the same without giving the latter the same
benefits as the former. As a result, it is extremely hard for non-medallion taxicabs
to comply with those regulations. (Id. at 250a, 252a.)
      After argument, the trial court affirmed in part and reversed in part the
Hearing Officer’s decision, reversing the fine of $55,025 as unreasonable. In its
opinion, the trial court explained that, because the other citations “were never
consolidated by either Germantown or the PPA, the only matter before this
Court is [C]itation No. T-17223.” (Trial Ct. Op. at 2 (emphasis in original).) The
trial court wrestled with the hardship presented by conflicting regulations of the
PPA and the Public Utility Commission (PUC), recognizing that many of the
arguments before it were also “simultaneously before other Courts, but in a
different procedural posture.” (Id. at 4 n.6.) Based on the evidence before the trial
court, and its understanding of this Court’s precedent, it affirmed the single
violation of Section 1017.33 under Citation No. T-17223 for failing to submit to
the PPA inspection, but reversed the entire $55,025 fine imposed, “as it is
unreasonable and unsupported by the record.” (Id. at 5.)


                                         3
       On appeal to this Court,3 PPA raises three arguments. First, PPA argues that
Germantown Cab is subject to PPA’s inspection requirements, and that its
inspection requirements are properly promulgated and reasonable. Second, PPA
contends that the trial court should not have undone the consolidation of the 157
citations against Germantown Cab because the Hearing Officer had properly
consolidated them. All 157 citations were of a “similar nature” in that, as the
Hearing Officer noted, “the facts and legal arguments in all cases . . . are
identical.” (PPA’s Br. at 14; R.R. at 54a.) Third, PPA argues that the $55,025 fine
was reasonable, and, thus, the Hearing Officer’s order finding Germantown Cab
liable for all 157 citations and imposing a fine of $55,025 should be affirmed.
       Initially, although Germantown Cab has not cross-appealed from that
portion of the trial court’s Order finding that Germantown Cab committed a single
violation of Section 1017.33, PPA has raised the question of Germantown Cab’s
liability for committing all 157 violations of Section 1017.33, thereby placing them
all properly before us. PPA has raised the propriety of the trial court considering
only a single citation and not all of the 157 citations, as well as the trial court’s
reversal of the $55,025 fine, consisting of a $350 fine for each of the 157 citations,
plus a $75 administration fee. By raising the question of the validity of the entire
fine, PPA has also, necessarily, raised the question of the validity of the regulation
upon which Germantown Cab was fined. PPA recognizes this, and in fact argues,
as one of its three issues on appeal, that the trial court erred because Germantown


       3
          On appeal, the adjudication of an administrative agency will not be disturbed unless it
violates the constitutional rights of the appellant, is not in accordance with law, the statutory
provisions controlling practice and procedure of Commonwealth agencies has been violated in
the proceedings before the agency, or any finding made by the agency and necessary to support
its adjudication is not supported by substantial evidence. 2 Pa. C.S. § 704; Sule v. Phila. Parking
Auth., 26 A.3d 1240, 1242 n.4 (Pa. Cmwlth. 2011).
                                                4
Cab was cited under a properly promulgated and reasonable regulation, which
Germantown Cab disputes. If the regulation is invalid, and it is, as our precedent
has now made clear, then all the citations and total fine are also invalid. We
therefore address these issues in turn.
       Subsequent to the trial court’s opinion, this Court, in Bucks County Services
v. Philadelphia Parking Authority (Pa. Cmwlth., No. 584 M.D. 2011, filed
November 28, 2016) (Brobson, J., single-judge opinion), as amended by
Memorandum and Order dated January 3, 2017,4 held that certain PPA regulations,
including 52 Pa. Code § 1017.31, which forms the basis for the penalty imposed
pursuant to Section 1017.33, were unreasonable because they placed the same
burdens on non-medallion taxicabs and medallion taxicabs despite there being
material differences in the services they provide and the benefits they enjoy. As a
result, those regulations placed a disproportionate burden on non-medallion
taxicabs and evidenced a purely arbitrary exercise of PPA’s rulemaking power.
This Court, thus, invalidated those regulations, including Section 1017.31, which
was specifically identified in this Court’s January 3, 2017 Memorandum and
Order, amending the Memorandum Opinion of November 28, 2016. We have
since reaffirmed Bucks County Services. See Germantown Cab Co. v. Phila.
Parking Auth., 158 A.3d 731, 733-34 (Pa. Cmwlth. 2017) (stating that this Court
had previously reaffirmed the amended holding of Bucks County Services);
Germantown Cab Co. v. Phila. Parking Auth., 155 A.3d 669, 673 (Pa. Cmwlth.
2017), petition for allowance of appeal pending (Pa., No. 145 EAL 2017, filed
Apr. 5, 2017) (explaining that subjecting Germantown Cab to a fine for not having


       4
        An appeal of this decision is currently pending before the Pennsylvania Supreme Court
at Docket No. 9 EAP 2017.
                                             5
a protective shield, contrary to PPA regulations, would be inconsistent with this
Court’s decision in Bucks County Services, which had invalidated that regulation).
       Although this Court decided Bucks County Services after PPA had filed its
brief, Germantown Cab cited to Bucks County Services in its responsive brief.5
PPA, however, did not file a reply brief and, thus, it has not addressed the
significance of our decision in Bucks County Services.                       We conclude, as
Germantown Cab correctly contends, that Bucks County Services controls here and
is dispositive. Therefore, Germantown Cab is not subject to PPA’s inspection
requirements. Since this Court has held that Sections 1017.31 and 1017.33 are
invalid, a citation issued pursuant thereto is also invalid and, thus, we reverse the
trial court’s affirmance of the single violation of Section 1017.33 under Citation
No. T-17223 for failing to submit to the PPA inspection.
       We next address the issue of consolidation and PPA’s argument that the
Hearing Officer properly consolidated the 157 citations which is based on an
exhibit appended to PPA’s brief but not part of the certified record.6 An appellate
court “is limited to considering only those facts that have been duly certified in the
record on appeal.” B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth.
2012). A document “attached to a brief as an appendix or reproduced record may




       5
          Generally, “we apply the law which is in effect at the time of the appellate decision”
and “adhere to the principle that, a party whose case is pending on direct appeal is entitled to the
benefit of changes in law which occur before the judgment becomes final.” 5708 K&T, Inc. v.
Pa. Liquor Control Bd., 951 A.2d 1232, 1237 (Pa. Cmwlth. 2008) (internal quotation marks and
citation omitted).
        6
          The exhibit consists of a transcript from a February 6, 2015 hearing before the Taxicab
and Limousine Division of the PPA that was docketed under a different number than this case
but involved the same violation, albeit for a different cab owned by Germantown Cab than the
one cited under Citation No. T-17223.
                                                 6
not be considered by an appellate court when [it is] not part of the certified
record.” Id. Thus, we cannot rely on PPA’s exhibit in deciding this issue.
       The trial court used a case-by-case analysis, which could not be performed
on the 157 citations, as they were consolidated without factual records. However,
under Bucks County Services, our most recent precedent, a case-by-case analysis of
the factual record is not required. Section 1005.51 of Title 52 of the Pennsylvania
Code authorizes a Hearing Officer, “with or without motion” to order proceedings
consolidated if they involve a common question of law or fact. 52 Pa. Code §
1005.51. Because at issue in all of these citations is a violation of Section 1017.33,
there is a common question of the validity of that regulation. Therefore, PPA is
correct that the Hearing Officer had authority to order the citations to be
consolidated, and we will reverse the trial court on this issue.
       PPA’s final argument is that the $55,025 fine, which consisted of a $350 fine
for each of the 157 violations of Section 1017.33, plus a $75 administration fee,
was reasonable. However, Section 1017.33 was not a valid basis upon which to
cite Germantown Cab. The penalty cannot be imposed unless Section 1017.33 is
valid, and, since Section 1017.33 is invalid, the $55,025 fine must be invalidated as
well, albeit for reasons other than those stated by the trial court.7 See Germantown

       7
         The trial court did not have the benefit of our decision in Bucks County Services when it
decided this case and, thus, the trial court did not have the opportunity to address whether, in
light of our precedent, Section 1017.33 was properly promulgated and reasonable. We could
remand this matter to the trial court to consider the merits in light of Bucks County Services, but
we decline to do so because it would be a waste of both judicial and party resources since only a
question of law is involved and our precedent is clear. See Otte v. Covington Twp. Rd.
Supervisors, 650 A.2d 412, 414 (Pa. 1994) (stating that this Court was within its rights not to
order a remand where only a question of law was involved and this Court “must be and is free to
resolve such questions de novo”); Hainsey v. Pa. Liquor Control Bd., 602 A.2d 1300, 1308 (Pa.
1992) (stating that it would be a “waste of judicial economy” to remand for the Board’s
determination of the sufficiency of the evidence where the record was clear that the Board
offered insufficient evidence to establish any violation); Smith v. Dep’t of Transp., Bureau of
                                                7
Cab Co., 158 A.3d at 733-34 (holding that the trial court correctly refused to affirm
PPA’s imposition of a $350 fine for Germantown’s violation of a PPA regulation
requiring a protective shield, which regulation this Court had previously
invalidated).8 We, therefore, affirm the trial court on this issue.
        Accordingly, the Order of the trial court is affirmed in part and reversed in
part.



                                             _____________________________________
                                             RENÉE COHN JUBELIRER, Judge




Driver Licensing (Pa. Cmwlth., No. 1493 C.D. 2010, filed Mar. 17, 2011), slip op. at 2 (stating
that “[i]n the interest of judicial economy . . . we will decide the appeal without remand because
the record shows that [licensee] cannot prevail on the issue of whether he should be permitted to
file an appeal nunc pro tunc”); Masloff v. Bascovksy, 595 A.2d 224, 228 (Pa. Cmwlth. 1991)
(declining, “in the interest of judicial economy,” to remand matter for trial court to address an
alternative legal question that was raised before it but not addressed, because the question was
one of law); Downes v. Unemployment Comp. Bd. of Review, 456 A.2d 1107, 1108 n, 1 (Pa.
Cmwlth. 1983) (denying claimant’s request for an additional fact-finding hearing on the issue of
good cause since the facts before this Court were “clear and consequently a remand would not be
conducive to administrative or judicial economy.”).
        8
          In addition, an administrative penalty may be overturned if the agency manifestly and
flagrantly abused its discretion or executed its duties or functions in a purely arbitrary manner.
An administrative agency abuses its discretion even when it imposes a penalty that is within
statutory limits if the penalty is manifestly excessive so as to inflict too severe a punishment.
Eckhart v. Dep’t of Agric., 8 A.3d 401, 407 (Pa. Cmwlth. 2010).
                                                8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Germantown Cab Co.                      :
                                        :
                  v.                    :   No. 962 C.D. 2016
                                        :
The Philadelphia Parking Authority,     :
                        Appellant       :



                                      ORDER


      NOW, August 18, 2017, the Order of the Court of Common Pleas of
Philadelphia County, dated May 13, 2016, is AFFIRMED, in part, and
REVERSED, in part. The Order is AFFIRMED to the extent that the $55,025
fine was found to be unreasonable. The Order is REVERSED to the extent that
only Citation No. T-17223 was considered and Citation No. T-17223 was
sustained.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
