         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Parks Superior Sales, Inc.,              :
                   Petitioner            :
                                         :
            v.                           :
                                         :
Bureau of Professional and               :
Occupational Affairs, State Board        :
of Motor Vehicle Manufacturers,          :
Dealers and Salespersons,                :   No. 914 C.D. 2016
                   Respondent            :   Argued: December 12, 2016


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                            FILED: October 20, 2017


            Parks Superior Sales, Inc. (Petitioner) petitions for review of the order
of the Pennsylvania Board of Motor Vehicle Manufacturers, Dealers and
Salespersons (Board) assessing Petitioner with a $55,000 fine and ordering it to
cease and desist from engaging in the business of a vehicle dealer in the
Commonwealth of Pennsylvania until Petitioner obtains a license to do so from the
Board. For the following reasons, we reverse the order of the Board.
            Petitioner is a funeral coach dealer located in Somers, Connecticut and
has been selling funeral specialty vehicles since 1952. Petitioner employed a single
salesperson, John O’Donnell, who worked out of his home in Collegeville,
Pennsylvania. On behalf of Petitioner, Mr. O’Donnell sold fifteen vehicles to
consumers in Pennsylvania during 2012, twenty during 2011, and twenty during
2010. (Board’s Order, 5/9/16, at 3-8.)
                On February 18, 2015, the Commonwealth filed an order to show cause
charging that Petitioner is subject to discipline under the Board of Vehicles Act1
(Act) and Act 482 for engaging in the business of a vehicle dealer in Pennsylvania
on at least fifty-five occasions without being licensed to do so by the Board.
Petitioner filed an answer and new matter acknowledging it does not hold a license
in Pennsylvania and that it sold vehicles to customers in Pennsylvania. Petitioner,
however, denied it engaged in the business of vehicle dealing in the Commonwealth.
(Board’s Order at 3-5.)
                A hearing on the matter was held on September 1, 2015. Neither
Petitioner nor anyone representing Petitioner, appeared at the hearing. 3 Maria
Kanoff, an investigator employed by the Department of State, Bureau of
Enforcement Investigation, who conducted an investigation into the present matter,
provided testimony on behalf of the Commonwealth. Ms. Kanoff explained that the
vehicles sold were only specialty vehicles and that they were sold to trade shows and
via the internet. She testified that Mr. O’Donnell did visit people in person, usually
by request of the trade show. (Certified Record (R.R.), Item 8, Transcript of
Testimony (T.T.) at 9-16.) Ms. Kanoff was further asked about the nature of the
sales of vehicles in relation to Pennsylvania and Connecticut:




       1
           Act of December 22, 1983 P.L. 306, No. 84, as amended, 63 P.S. §§ 818.1-818.37.

       2
           Act of July 2, 1993 P.L. 345, No. 48, as amended, 63 P.S. §§ 2201-2207.

       3
         Counsel for Petitioner has indicated that she did not receive notice of the September 1
hearing, and we have no reason to doubt this assertion.
                                                2
                 Q: … But these people are selling vehicles into
                 Pennsylvania, are -- where is the -- do you know [where]
                 the paperwork is being done?

                 A: As -- the paperwork that was submitted to me -- I can’t
                 verify all the paperwork. But the paperwork that was
                 submitted to me was based out of Connecticut.

T.T. at 16-17 (emphasis added).4

                 On May 9, 2016, the Board found Petitioner was a dealer of funeral
specialty vehicles located in Somers, Connecticut, and did not hold a license as a
vehicle dealer in Pennsylvania. Additionally, the Board found Petitioner engaged in
the business of selling funeral specialty vehicles to Pennsylvania consumers. The
Board found that, over the course of 2010 through the end of 2012, Petitioner’s
salesperson sold fifty-five vehicles to Pennsylvania customers also located in
Pennsylvania in violation of Section 5(a)(1) of the Act.5 As such, the Board assessed
Petitioner with a $55,000.00 fine, $1,000.00 per vehicle sold while unlicensed, and
ordered Petitioner to cease and desist from acting as a vehicle dealer within
Pennsylvania until licensed to do so. The Board also assessed Petitioner with the
costs of investigation in the amount of $923.16. (Board’s Order at 10.)
                 On May 24, 2016, Petitioner filed a petition for a rehearing. Ultimately,
the Board denied the petition as untimely. On August 4, 2016, this Court, while
acknowledging the petition was untimely, granted Petitioner nunc pro tunc relief.
Argument before a panel of this Court was held on December 12, 2016.

       4
          Reference was made at the hearing several times to Petitioner selling vehicles “into
Pennsylvania,” (T.T. at 13.) (emphasis added). Ms. Kanoff stated repeatedly that while Petitioner
admitted “sell[ing vehicles] to Pennsylvania residents,” and to “consumers in Pennsylvania,” (T.T.
at 12,) Petitioner “didn’t say they sell [the vehicles in Pennsylvania…]” Id.

       5
           63 P.S. § 818.5.
                                                3
Accordingly, currently before us for review is the issue of whether or not Petitioner
was doing business in Pennsylvania in violation of Section 5(a) of the Act.

                                     Discussion

             Petitioner argues it did not violate Section 5(a) of the Act. Petitioner
asserts it did not sell vehicles to customers or to the general public, rather, it sold
vehicles to business purchasers with very specific needs. Further, it does the
majority of its business via telephone, internet and trade shows and does not have a
sales facility in Pennsylvania. Petitioner also argues the evidence does not show that
any sale actually took place “within the Commonwealth.” (Petitioner’s Brief at 27-
28.)
             The Commonwealth points out that Petitioner utilized a Pennsylvania
phone number to conduct business and finalized at least one sale of a vehicle to a
Pennsylvania consumer from the office in Pennsylvania. The Commonwealth
claims these activities fall squarely within the Act’s definition of “buying, selling,
and exchanging” for which a license is required. (Commonwealth’s Brief at 18.)

             Section 2 of the Act states, in pertinent part,

             [t]o promote the public safety and welfare, it shall be
             unlawful for any person to engage in the business as a
             salesperson, dealer, branch lot, wholesale vehicle auction,
             public or retail vehicle auction, manufacturer, factory
             branch, distributor, distributor branch, factory
             representative or distributor representative within this
             Commonwealth unless the person has secured a license as
             required under this act.

63 P.S. § 818.5(a)(1).



                                           4
             Additionally, the Act defines a dealer as a person required to be licensed
under this Act who is engaged in the business of buying, selling or exchanging new
or used vehicles or an interest in new or used vehicles, regardless of whether the
vehicles are owned by that person. 63 P.S. § 818.2.
             Petitioner was a dealer because it sold new vehicles for compensation.
However, the question remains as to whether Petitioner was engaged in the business
as a vehicle dealer in Pennsylvania.
             It is well settled that “the language of the statute must be read in a sense
which harmonizes with the subject matter and its general purpose and object.”
Kerbeck Cadillac Pontiac, Inc. v. State Board of Vehicle Manufacturers, Dealers &
Salespersons, 854 A.2d 663, 668 (Pa. Cmwlth. 2004). The Act states that its
motivating purpose is “[t]o promote the public safety and welfare.”             63 P.S.
§ 818.5(a)(1).
             The vehicles Petitioner sold were not intended for use by the general
public, but rather only for limited purposes within the funeral industry. Sales of the
vehicles were infrequent and limited. Petitioner employed a single salesperson who
resided in Pennsylvania and worked out of his home, with Petitioner’s total amount
of contact with Pennsylvania being quite tenuous. Indeed, the findings of fact made
by the Board show that only fifty-five vehicles were sold to Pennsylvania customers
over the course of three years, and all paperwork was completed in Connecticut.
Mindful of these extremely unique circumstances and nature of the vehicles in
question, we fail to see how imposing upon Petitioner a $55,000 penalty and
requiring Petitioner to obtain a license harmonizes with the Act’s purpose of
promoting public safety and welfare.        Rather, we find Petitioner activities in
Pennsylvania were so insubstantial that they did not amount to a violation of the Act.


                                           5
             Moreover, reading the statute in a way proffered by the Board creates a
dormant commerce clause issue which would best be avoided. The activities
prohibited by the Act did not occur “within this Commonwealth” but instead in
Connecticut: the transactions occurred in Connecticut; sales occurred in
Connecticut; the vehicles themselves were assembled or modified in Connecticut.
The United States Court of Appeals for the Fourth Circuit addressed a matter similar
to that presently before this Court. In Carolina Trucks & Equipment, Inc. v. Volvo
Trucks of North America, Inc., 492 F.3d 484 (4th Cir. 2007), Carolina Trucks invoked
state law which prohibited manufacturers from “own[ing], operat[ing], or
control[ing] a new motor vehicle dealer[ship] in South Carolina … or … sell[ing]
directly or indirectly, a motor vehicle to a consumer in [that] State,” id. at 488
(internal citations omitted), and thus attempted to prevent Volvo Trucks (Volvo)
from selling vehicles to consumers in South Carolina. While Volvo was not located
in South Carolina, and there was no evidence that it actually consummated sales
there, it did advertise in publications within that state. Carolina Trucks argued that
“[a]lthough [Volvo] is physically located in Georgia, it entered South Carolina
through direct mailings and phonebook advertisements.” Id. at 490-491. Thus,
“Carolina Trucks contended that the sales [of vehicles] took place partly on South
Carolina soil” despite the fact that the culmination of transactions occurred outside
that state. Id. at 490 (internal quotations omitted).
             In finding against Carolina Trucks, the Fourth Circuit held that “a
plaintiff cannot seek to apply one state's statute to transactions in another state
through an expansive definition of the site of the regulated conduct. ...[State statutes
cannot be used to] seize upon a company's in-state commercial activities, such as the
mailings and phone book advertising in this case, to regulate the companies' [sic]


                                           6
out-of-state conduct [i.e. the sales of the vehicles in Georgia].” Id. at 491. To find
otherwise, the Court noted, risked upsetting the delicate constitutional balance
outlined in our “dormant commerce power” jurisprudence. Id. at 492.6
              Petitioner’s activity which may have occurred “within this
Commonwealth,” whether through advertising or direct discussion, was similar in
nature to that found in Carolina Trucks, but it also differs in a number of respects.
Because of our statutory holding, we need not decide whether the Board’s action
violates the Constitution, nor need we address Petitioner’s other issues raised on
appeal.
              For the foregoing reasons we reverse the order of the Board.




                                            ___________________________
                                            JOSEPH M. COSGROVE, Judge




       6
        The Court also avoided an additional constitutional dilemma by interpreting the South
Carolina statute in a fashion so as to prevent “giving the state's laws extraterritorial reach…”
Carolina Trucks, 492 F.3d at 489.
                                               7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Parks Superior Sales, Inc.,            :
                   Petitioner          :
                                       :
             v.                        :
                                       :
Bureau of Professional and             :
Occupational Affairs, State Board      :
of Motor Vehicle Manufacturers,        :
Dealers and Salespersons,              :   No. 914 C.D. 2016
                   Respondent          :


                                    ORDER


             AND NOW, this 20th day of October, 2017, the order of the
Pennsylvania Board of Motor Vehicle Manufacturers, Dealers and Salespersons is
reversed.




                                     ___________________________
                                     JOSEPH M. COSGROVE, Judge
