             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Germantown Cab Company,                       :
                Appellant                     :
                                              :
                 v.                           :   No. 993 C.D. 2016
                                              :   Submitted: November 10, 2016
Philadelphia Parking Authority                :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE DAN PELLEGRINI, Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: March 6, 2017

                 Germantown Cab Company (Germantown Cab) appeals an order of
the Court of Common Pleas of Philadelphia County (trial court) upholding the fine
imposed by the Philadelphia Parking Authority, Taxicab and Limousine Division
(Parking Authority). Germantown Cab contends that the trial court erred because
the Parking Authority does not regulate limited service taxicabs operating pursuant
to a certificate of public convenience issued by the Pennsylvania Public Utility
Commission (PUC).
                 On March 8, 2014, John Broggi, of the Parking Authority’s
Enforcement Department, issued a citation to Germantown Cab for not equipping
one of its taxicabs with a protective shield, as required by Section 1017.5(b)(12) of
Title 52 of the Pennsylvania Code.1 Germantown Cab contested the citation.

1
    It requires, in relevant part that:
           (12) A taxicab must be equipped with a protective shield which separates the
           front seat from the back seat and bears the manufacturer’s name. The protective
           shield must meet the following minimum requirements:
                   (i) The upper portion of the shield must extend from the top of
                   the front seat to a point not more than 3 inches from the ceiling of
(Footnote continued on the next page . . .)
              The hearing was scheduled for October 14, 2014.                        Thereafter,
Germantown Cab requested several continuances, which were granted. When
Germantown Cab did not appear at the March 11, 2015, hearing, rescheduled at its
request, the Hearing Officer went forward with the hearing.




(continued . . .)
              the vehicle and must be constructed of a clear, see-through, bullet-
              resistant material.
              (ii) The shield must have either a sliding window controlled by
              the vehicle operator and capable of being locked by the driver or a
              payment exchange cup or tray or similar device which allows the
              operator to receive payment from passengers in the back seat of the
              vehicle without unduly exposing the vehicle operator to danger.
              (iii) The upper portion of the shield may not obstruct the vehicle
              operator’s view of the road to the rear of the vehicle.
              (iv) The lower portion of the shield must extend the full length of
              the front seat and be constructed of a bullet-resistant material.
              (v) Both the upper and lower portions of the shield must extend
              from a point flush with the left-hand side of the vehicle across the
              vehicle to a point flush with the right-hand side of the vehicle.
              (vi) The shield may not have an edge or projection protruding
              into the area where a passenger or driver will sit or move.
              (vii) The lower portion of the shield must be installed in a manner
              which complies with the legroom requirements in paragraph (2).
              (viii) The shield must be installed in a manner which does not
              prevent voice communication between the vehicle operator and
              passengers in the vehicle.
              (ix) The shield must be installed in a manner which allows heat
              and air conditioning to maintain the taxicab’s temperature at levels
              required under paragraph (19).
              (x) The shield must be sufficiently transparent to allow a
              passenger to easily read the meter and the taxicab driver’s
              certificate.
52 Pa. Code §1017.5(b)(12).


                                               2
              Broggi, the sole witness, testified that on March 8, 2014, he saw a
Germantown taxicab operating westbound on Spring Garden Street in
Philadelphia.    The taxicab’s dome light was on, which indicated that it was
available for passengers. When he pulled the vehicle over, he found that the
taxicab had a “functioning meter in the taxicab in the cartridge on the dashboard.
It appeared to be ready to go.” Notes of Testimony (N.T.), 3/11/2015, at 7;
Reproduced Record at 13 (R.R. ___). Broggi found several problems. The taxicab
did not have a sticker issued by the Parking Authority; the tire in the trunk was not
covered; and it did not have a protective shield between the driver and passenger
compartment. Broggi issued a citation solely on the absence of a protective shield.
              Based on this record, the Hearing Officer, on behalf of the Parking
Authority, held that Germantown Cab failed to equip its taxicab with a protective
shield as required by 52 Pa. Code §1017.5(b)(12). It ordered Germantown Cab to
pay a civil penalty of $350.00, along with an administrative fee of $75.00, for a
total of $425.00.
              Germantown Cab appealed to the trial court, and on February 25,
2016, the trial court heard argument.2 Germantown Cab explained its appeal as
follows:

              [The Parking Authority has] jurisdiction to issue citations, but
              one of the threshold issues that this Court and the court below
              has to determine is whether or not under the particular fact
              pattern as they’ve set up their regulatory scheme, did it apply.
              Did it apply to this trip?




2
  The trial court heard three Germantown Cab appeals at the same time, including the instant
case.


                                             3
N.T., 2/25/2016, at 20.3 In short, Germantown Cab did not dispute the factual
findings made in the hearing before the Parking Authority.
                 The trial court affirmed the Parking Authority. The trial court agreed
that Germantown Cab was able to provide service in Philadelphia “as specifically
provided for in [its] PUC certificate.” Trial Court op., 5/13/2016, at 2. It found
that Germantown Cab’s PUC certificate allows

                 call or demand between points in the city of Philadelphia,
                 bounded by School House Lane, Church Lane, Wister Street,
                 Stenton Avenue, Northwestern Avenue, Ridge Avenue,
                 Manatawanna Avenue, Hagys Mill Road, Port Royal Avenue,
                 Cross Street, Shawmont Avenue, Umbria Street, Parker
                 Avenue, Ridge Avenue, Walnut Lane, Wissahickon Avenue to
                 points of beginning: and that portion of Whitemarsh Township,
                 Montgomery County, bounded as follow: beginning on Ridge
                 Pike, at the Springfield Township Line, northwest on Ridge
                 Pike to Butler Pike, northeast on Butler Pike to the Whitemarsh
                 Township line, southeast, along the Whitemarsh Township Line
                 to Bethlehem Pike, south on Bethlehem Pike to Valley Green
                 Road, northeast on Valley Green Road to the Whitemarsh
                 Township Line, southwest along the Whitemarsh Township
                 Line to Ridge Pike; and that portion of Springfield Township,
                 Montgomery County, bounded as follows: beginning at the
                 Springfield Township Line and Mermaid Lane, southwest on
                 Mermaid Lane to Stenton Avenue, northwest on Stenton
                 Avenue to the Springfield Township line, northeast, southeast,
                 southwest and southeast along the Springfield Township Line
                 to Mermaid Lane and from points in the said area to points
                 outside the area and vice versa.

Id. at 2 n.2 (emphasis added). Accordingly, where Germantown Cab operates
within the above-quoted certificate, the trial court held that the Parking Authority
may not require Germantown Cab to install a protective shield. The trial court


3
    The transcript is attached to the Parking Authority’s Brief at Exhibit A.


                                                   4
reasoned that it would impose an unreasonable hardship on Germantown Cab to
comply both with regulation by the Parking Authority and with regulation by the
PUC, particularly where they conflict.       However, the trial court held that where a
partial rights taxicab operates outside of its PUC certificate, the Parking Authority
may impose its operational regulations upon the errant taxicab.
              The trial court discerned no dual regulation jurisdiction problem
because Germantown Cab was not operating within the parameters set forth in its
PUC license. As such, it could be held liable for not having a protective shield.
              Germantown Cab now appeals to this Court.4 It contends that the trial
court erred in holding that the taxicab was providing service outside of the scope of
its PUC certificate. Accordingly, it cannot be fined for not having a protective
shield.
              Section 5714 of the act commonly known as the Parking Authority
Law, 53 Pa. C.S. §§5701-5745, sets forth the rights of limited service taxicabs as
follows. Pursuant to a 2012 amendment,5 Section 5714(d) states as follows:

              (d) Other vehicles.—
                     (1) A vehicle which is not authorized by a
                     certificate to provide call or demand service within
                     cities of the first class but which is operated by the
                     holder of a certificate of public convenience from
                     the Pennsylvania Public Utility Commission
                     authorizing call or demand service elsewhere in


4
  The Authority functions as a Commonwealth agency in cases involving taxicabs. Rosemont
Taxicab Co., Inc. v. Philadelphia Parking Authority, 68 A.3d 29, 35 n.6 (Pa. Cmwlth. 2013).
Our review is limited to determining whether constitutional rights were violated, agency
procedures were violated, an error of law was committed, and whether the findings of fact are
supported by substantial evidence. Id.
5
  Act of July 5, 2012, P.L. 1022.


                                             5
                      this Commonwealth may transport persons and
                      property:
                             (i) to cities of the first class in
                             accordance     with    the   service
                             authorized under its certificate of
                             public convenience; and
                             (ii) from any point in a city of the
                             first class to any point in this
                             Commonwealth beyond that city of
                             the first class if the request for service
                             for such transportation is received by
                             call to its radio dispatch service.
                      (2) Carriers authorized by the authority to
                      provide taxicab service to designated areas within
                      cities of the first class on a non-citywide basis
                      pursuant to section 5711(c)(2.1) (relating to power
                      of authority to issue certificates of public
                      convenience) shall retain their authorization in
                      those areas of a city of the first class subject to the
                      exclusive jurisdiction of the authority and orders
                      and regulations of the authority issued under this
                      chapter. The authority shall not grant additional
                      rights to new or existing carriers to serve
                      designated areas within cities of the first class on a
                      non-citywide basis.

53 Pa. C.S. §5714(d) (emphasis added).6 Prior to the 2012 amendment, Section
5714(d) stated as follows:

              (d) Other vehicles.—



6
 Section 5711(c)(2.1) states:
       The authority may issue no more than six certificates of public convenience for
       non-citywide call or demand service in any city of the first class, subject to the
       exclusive jurisdiction of the authority.
53 Pa. C.S. §5711(c)(2.1), added by Section 3 of the Act of July 5, 2012, P.L. 1022.


                                               6
                   (1) A vehicle which is not authorized by a certificate to
                   provide call or demand service within cities of the first
                   class but which is operated by the holder of a certificate
                   of public convenience from the Pennsylvania Public
                   Utility Commission authorizing call or demand service
                   elsewhere in this Commonwealth may transport persons
                   and property:
                         (i) to cities of the first class in accordance
                         with the service authorized under its
                         certificate of public convenience; and
                         (ii) from any point in a city of the first class
                         to any point in this Commonwealth beyond
                         that city of the first class if the request for
                         service for such transportation is received by
                         call to its radio dispatch service.
                   (2) Carriers currently authorized to provide service to
                   designated areas within cities of the first class on a non-
                   citywide basis shall retain their authorization through the
                   authority. The authority shall not grant additional rights
                   to new or existing carriers to serve designated areas
                   within cities of the first class on a non-citywide basis.

Former 53 Pa. C.S. §5714(d).
            Germantown Cab contends that the Parking Authority Law
grandfathered its operating rights, and this is clear from the pre-2012 version of
Section 5714(d). It created two categories of “other vehicles.” The first includes
vehicles with authorization to provide service in territories completely outside of
Philadelphia. These vehicles may drop-off a fare in Philadelphia, but they cannot
pick-up street hails in Philadelphia. The second category of “other vehicles”
includes those vehicles authorized to provide service in territories that include
designated areas of Philadelphia, such as Germantown Cab, as they did under their
PUC certificate. Germantown Cab asserts that its PUC certificate allows it to pick
up street hails, so long as the passenger’s destination lies in Germantown Cab’s

                                         7
service area; this is the meaning of “vice versa” in its PUC certificate. In short,
Germantown Cab believes it may provide hail service in Philadelphia, at least to
customers seeking transportation to a place within its licensed service area.
             The Parking Authority responds that Germantown Cab’s “vice versa”
argument is misguided. Partial rights taxicabs have never been able to pick up
street hails in areas of Philadelphia outside of their PUC service area. Such a
service would cause confusion to customers hailing taxicabs. Only after entering a
taxicab would these customers learn whether they could be driven to their chosen
destination. Further, the Parking Authority argues this claim has been waived as it
was not preserved.
             The issue raised by Germantown Cab is irrelevant. Recently, this
Court held that the Parking Authority cannot impose its regulations on partial
rights taxicabs operating in Philadelphia.        Bucks County Services, Inc. v.
Philadelphia Parking Authority and Pennsylvania Public Utility Commission, (Pa.
Cmwlth., No. 584 M.D. 2011, filed November 28, 2016) (single-judge opinion by
Brobson, J.). In that case, the taxicab companies argued that it was unreasonable
and unduly burdensome for the Parking Authority to regulate their operations; they
were only subject to regulation by the PUC. This Court found that the regulations
treated medallion and partial rights taxicabs identically, without any consideration
of the material differences in their operations. Accordingly, the Court held that the
Parking Authority’s regulations were invalid and unenforceable to partial rights
taxicabs.
             On January 3, 2017, this Court amended its original order in Bucks
County Services, Inc. and declared nine specific Parking Authority regulations




                                          8
invalid and unenforceable.7 Included was Section 1017.5(b)(12) of Title 52 of the
Pennsylvania Code requiring a taxicab to be equipped with a protective shield. 52
Pa. Code §1017.5(b)(12).8
               Here, the trial court held that Germantown Cab was subject to the
Parking Authority’s regulations because it was acting outside its PUC certification.
The Parking Authority fails to explain why this would subject Germantown Cab to
a fine for not having a protective shield. It is inconsistent with precedent. For
example, in Germantown Cab Company v. Philadelphia Parking Authority, (Pa.
Cmwlth., No. 461 C.D. 2012, filed January 22, 2013), the Parking Authority fined
Germantown Cab for operating outside of its designated service area.9 This is the
more appropriate response to unlicensed activity.
               The PUC does not require partial rights operators to have a protective
shield, and this Court has invalidated the Parking Authority’s protective shield
regulation as it applies to partial rights cabs.                Stated otherwise, assuming
Germantown Cab operated outside the service area in its PUC certificate, this does
not subject it to a medallion taxicab regulation. Instead, it becomes a taxicab
operating outside its PUC certificate and subject to penalties as delineated in



7
  The amendment was in response to the Parking Authority’s motion for post-trial relief,
claiming, inter alia, that this Court erred in finding its regulations invalid as a whole, when the
taxicab companies had only challenged nine specific regulations.
8
  Also included were regulations related to vehicle age and mileage requirements, 52 Pa. Code.
§1017.4; preservice inspections, 52 Pa. Code §1017.2; Parking Authority certificates of
inspection, 52 Pa. Code §1017.32(d); Parking Authority biannual inspections, 52 Pa. Code
§1017.31; meter seal inspections, 52 Pa. Code §1017.21(b); driver certifications, 52 Pa. Code
§§1021.2, 1021.4(3), 1021.4(7), 1021.7, 1021.8 and 1021.9; out-of-service designations, 52 Pa.
Code §1003.32; and the annual rights renewal process, 52 Pa. Code §1011.3.
9
  The fine was $500.


                                                9
Germantown Cab Company v. Philadelphia Parking Authority, (Pa. Cmwlth., No.
461 C.D. 2012, filed January 22, 2013).
            Accordingly, the order of the trial court is reversed.

                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                          10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Germantown Cab Company,            :
                Appellant          :
                                   :
            v.                     :   No. 993 C.D. 2016
                                   :
Philadelphia Parking Authority     :


                                 ORDER

            AND NOW, this 6th day of March, 2017, the order of the Court of
Common Pleas of Philadelphia County, dated May 13, 2016, is hereby
REVERSED.

                                 ______________________________________
                                 MARY HANNAH LEAVITT, President Judge
