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BRENNER v. STATE BD. OF MOTOR VEHICLE MFRS.

April 16, 1976

MICHAEL BRENNER and ROBERT GORDON and EUGENE EPSTEIN and E.R. ENTERPRISE, INC., d/b/a NORTHEAST AUTORAMA MAZDA
v.
STATE BOARD OF MOTOR VEHICLE MANUFACTURERS, DEALERS & SALESMEN and SAMUEL FIERSTEIN, Individually and as Chairman of THE STATE BOARD OF MOTOR VEHICLE MANUFACTURERS, DEALERS & SALESMEN and JAMES HAMILTON, ROY SCHNECK, ARTHUR LOCK, VANCE ANDREW, GENE LISPI, and ANTHONY ERME, Individually and in their respective capacities as Members of the STATE BOARD OF MOTOR VEHICLE MANUFACTURERS, DEALERS & SALESMEN and EDWARD W. ROBINSON, JR., Individually and as Commissioner of Professional and Occupational Affairs



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 On November 19, 1975, plaintiffs commenced this action seeking, inter alia, to temporarily restrain defendants State Board of Motor Vehicle Manufacturers, Dealers & Salesmen ("Board") and its individual members from conducting a hearing set for November 20, 1975. The hearing was scheduled to determine whether or not plaintiffs' motor vehicle dealer and salesmen licenses should be revoked. At a conference held that same day between the Court and all counsel, counsel for defendants agreed to postpone the scheduled hearing until such time as the Court rendered a decision concerning the issues raised by the complaint. *fn1" In addition, we requested counsel to furnish the Court with briefs in support of their respective positions as to whether plaintiffs' complaint should be dismissed for lack of subject matter jurisdiction. We now address that issue.

 The Board is an administrative agency created by the Motor Vehicle Manufacturer's, Dealer's and Salesmen's License Act ("Act"), 63 P.S. § 801 et seq. (Supp. 1975). The Act requires the Board to be composed of three new car dealers, two used car dealers, one mobile home dealer, one motor vehicle salesman and three members of the general public who have no connection with the motor vehicle business. Also, the Commissioner of Professional and Occupational Affairs, defendant Edward W. Robinson, Jr., is an ex officio member. See 63 P.S. § 803(1) (Supp. 1975). The complaint names the seven non-general public Board members as defendants in this case.

 Under 63 P.S. § 805(2)(i)-(xvi) (Supp. 1975), the Board has the power to suspend and revoke licenses issued by the Board if, after due notice and hearing, the charged party is found guilty of committing or attempting to commit any one of sixteen prohibited acts. In addition, under § 805(6), the Board is permitted "[to] adopt, promulgate and enforce such administrative rules and regulations not inconsistent with [the] act as are deemed necessary and proper by the board to carry into effect the powers conferred by [the] act as set forth in [§ 805(2)(i)-(xvi)] . . . ." Pursuant to that section, the Board, on May 15, 1975, promulgated a new set of administrative regulations concerning the licensing and regulating of motor vehicle manufacturers, dealers and salesmen. *fn2" Sections 19.21(r) and (s) of those regulations prohibit a dealer from either advertising or otherwise holding out to the public that he or she is selling new motor vehicles, or from selling new motor vehicles, for which the dealer does not have a written contract with a manufacturer, importer or distributor authorizing the sale of such vehicles. *fn3"

 Count I of the complaint alleges that sections 19.21(r) and (s) deny plaintiffs the right to engage in their profession, presumably in violation of the Due Process Clause of the Fourteenth Amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction is predicated upon 28 U.S.C. § 1331(a) and 28 U.S.C. §§ 1343(3) and 1343(4). *fn4" In effect, plaintiffs are contending that those regulations deprive them of liberty and property without due process of law -- substantive due process of law.

 It is clear that such a claim is, on its face, encompassed within the parameters of the Due Process Clause and § 1983, as well as the jurisdictional statutes, 28 U.S.C. §§ 1331(a) and 1343(3). However, those jurisdictional sections can only confer subject matter jurisdiction upon this Court if the constitutional claim is of sufficient substance to support that jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). Conversely, we are without power to entertain plaintiffs' claim if it is "'so attenuated and unsubstantial as to be absolutely devoid of merit,' Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 48 L. Ed. 795, 24 S. Ct. 553 (1904); 'wholly insubstantial,' Bailey v. Patterson, 369 U.S. 31, 33, 7 L. Ed. 2d 512, 82 S. Ct. 549 (1962); 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 54 L. Ed. 482, 30 S. Ct. 326 (1910); 'plainly unsubstantial,' Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 77 L. Ed. 1062, 53 S. Ct. 549 (1933); or 'no longer open to discussion,' McGilvra v. Ross, 215 U.S. 70, 80, 54 L. Ed. 95, 30 S. Ct. 27 (1909)." Hagans v. Lavine, supra, 415 U.S. at 536-537. See Bell v. Hood, 327 U.S. 678, 682-683, 90 L. Ed. 939, 66 S. Ct. 773 (1946). A claim may be plainly insubstantial "either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.'" Ex Parte Poresky, 290 U.S. 30, 32, 78 L. Ed. 152, 54 S. Ct. 3 (1933) (citations omitted).

 Measured by these standards, plaintiffs' count I due process claim does not present a substantial federal question. Although the Supreme Court has not specifically dealt with regulations like the ones in the instant case, it has, on numerous occasions, dealt with licensing regulations which have had the identical effect which plaintiffs complain of here -- a denial of the right to engage in a particular occupation or profession. For example, in Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955), a provision of an Oklahoma statute made it unlawful for opticians to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority of an Oklahoma licensed optometrist or ophthalmologist. A three-judge district court found that the provision "violated the Due Process Clause by arbitrarily interfering with the optician's right to do business." Id. at 486. The Supreme Court reversed, noting that:

 
The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of though. Id. at 488 (citations omitted).

 Similarly, in Ferguson v. Skrupa, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963), the Court sustained the constitutionality of a state law prohibiting persons other than lawyers from engaging in the business of debt adjusting and debt pooling. The Court stated:

 
We conclude that the Kansas Legislature was free to decide for itself that legislation was needed to deal with the business of debt adjusting. Unquestionably, there are arguments showing that the business of debt adjusting has social utility, but such arguments are properly addressed to the legislature, not to us. We refuse to sit as a "super legislature to weigh the wisdom of legislation," . . . . Nor are we able or willing to draw lines by calling a law "prohibitory" or "regulatory." Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours. The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but with the body constituted to pass laws for the State of Kansas. Id. at 731-732 (footnotes omitted).

 Most recently, in North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 38 L. Ed. 2d 379, 94 S. Ct. 407 (1973), the Court found, after a review of its cases which discarded the doctrine of economic substantive due process, that certain restrictive statutory requirements for permitting the operation of a pharmacy did not offend the Due Process Clause of the Fourteenth Amendment.

 In light of those cases, it is apparent that this Court is foreclosed from examining the wisdom or propriety of the questioned regulations. The Pennsylvania Legislature, acting through the Board, was free, insofar as "economic substantive due process" is concerned, to adopt and enforce those regulations even though the effect may be to hinder or to prevent plaintiffs from engaging in the automobile dealer business. *fn5" Accordingly, count I ...


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