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decided: December 29, 1971.


Original jurisdiction.


Keith A. Clark, with him Shumaker, Williams & Placey, for plaintiffs.

Reynold J. Kosek, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Opinion by Judge Kramer.

Author: Kramer

[4 Pa. Commw. 222 Page 223]

The instant matter comes before this Court within its original jurisdiction. The plaintiffs, five of whom are individuals and one a corporate body, filed this action in equity on their own behalf and on behalf of that class of persons similarly situated, i.e., those in the business of maintaining and operating auto wrecking lots under the "Miscellaneous Motor Vehicle Business" Provision in Section 102 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. 102. They seek to enjoin the defendants from citing and prosecuting the plaintiffs and/or members of their class under an improper interpretation of the Vehicle Code. The defendants, officials of this Commonwealth, are those empowered with the authority over the issuance, administration and enforcement of motor vehicle license tags.

The plaintiffs aver that for many years they transported "auto hulks" on truck vehicles displaying "C license plates."*fn* They aver that in November of 1970,

[4 Pa. Commw. 222 Page 224]

    a director of the Bureau of Motor Vehicles, Department of Revenue of the Commonwealth, distributed to the Pennsylvania State Police a memorandum, prepared by a Deputy Attorney General of the Commonwealth. This memorandum, based upon statutory interpretation, expressed a legal opinion that wrecking lot operators were required to use a "commercial vehicle" registration plate rather than a "C plate" in the transportation of the auto hulks and wrecked motor vehicles. This case has not reached the status wherein this Court must rule upon the validity of the legal opinion as issued by the Deputy Attorney General. The plaintiffs further aver that in reliance upon this alleged erroneous and invalid statutory interpretation, the State Police inaugurated a program of stopping the plaintiffs' loaded trucks while in transit and issuing warnings to the drivers. These warnings were in the form of a notification that such transportation operations were in violation of the license sections of the Vehicle Code. Three of the plaintiffs have in fact received citations for alleged violations. The plaintiffs allege that they are without an adequate remedy at law, and that they will be irreparably harmed if the preliminary and permanent injunctions are not issued.

On July 1, 1971, the defendants filed preliminary objections raising a question of the jurisdiction of this court on the grounds that the plaintiffs had adequate remedies at law by way of a right of appeal from summary convictions before a justice of the peace (or in the case of a conviction in the court of common pleas, to the Superior Court) or by way of the Uniform Declaratory Judgments Act of 1923, Act of June 18, 1923, P.L. 840, as amended, 12 P.S. 831 et seq. On June 22, 1971, by order of President Judge Bowman, this matter was set down for a hearing to be held on July 7, 1971. The matter was called for hearing on that date and the defendants' counsel called to the attention of

[4 Pa. Commw. 222 Page 225]

    the hearing judge that the preliminary objections had been filed, challenging the jurisdiction of the court. Counsel for the plaintiffs stated for the record that he had received a copy of the preliminary objections five days before. At that point in time, the plaintiffs had not been given the opportunity to file a reply to the preliminary objections, and therefore they were not ripe for ruling on July 7, 1971.

In view of the fact that the matter before the court at that first hearing was whether or not a preliminary injunction should be granted, the court proceeded, without further protest from the defendants, to hear testimony. On July 8, 1971, this Court issued a preliminary injunction restraining the defendants from further prosecution of wrecking lot owners pending further order of Court. Defendants, on October 12, 1971, filed a petition to dissolve the preliminary injunction, alleging a denial of due process in that the Court had failed to rule first on the ...

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