Appeal from the Order of the State Board of Motor Vehicle Manufacturers, Dealers and Salesmen in case of In the Matter of the Suspension or Revocation of a Motor Vehicle Dealer's License issued to D & B Auto Sales, License No. MVD 1202, dated June 3, 1976.
Gordon F. Harrington, with him Greenlee, Richman, Derrico & Posa; James B. Yelovich ; and Kimmel, Rascona, Yelovich & Bowman, for appellant.
William J. Wheeler, Jr., Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.
Samuel M. Rosenzweig, for amicus curiae, Pennsylvania Independent Automobile Dealers Association (PIADA).
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
[ 29 Pa. Commw. Page 115]
The appellant partnership, D & B Auto Sales (D & B), a used car dealer, has been engaged in buying new automobiles from new car dealers for sale to the public. The vehicles acquired by D & B from the new car dealers have not been previously titled -- that is, registered in the name of any owner in Pennsylvania or any other state. They have been registered in D & B's name when purchased by it. D & B has obtained "A" titles, designating it as the first or original owner. When D & B has sold the vehicles to customers, the latter have received "B" titles, the designation for a car having its second owner. The appellant has paid no Pennsylvania sales tax when acquiring the automobiles from the new car dealers but has collected the tax from its customers.
The State Board of Motor Vehicle Manufacturers, Dealers and Salesmen, after hearing, suspended D & B's license as a used car dealer for ninety days for violation of subsections 5(2)(xv) and 5(2)(xvi) of the Motor Vehicle Manufacturer's Dealer's and Salesmen's License Act*fn1 which state:
[ 29 Pa. Commw. Page 116]
The board shall have power and its duty shall be:
(2) . . . to suspend or revoke licenses issued by the board if after due notice and hearing the person charged is found guilty of committing or attempting to commit the following acts:
(xv) Being a used car dealer as defined in 'The Vehicle Code,' who advertises or otherwise holds out to the public that such dealer is selling new motor vehicles.
(xvi) Being a used car dealer as defined in 'The Vehicle Code,' who sells motor vehicles which have never been registered or titled in Pennsylvania or any other state and on which a tax for education imposed by the 'Tax ...