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NORTHEAST DODGE CO. ET AL. v. COMMONWEALTH PENNSYLVANIA (10/06/80)

decided: October 6, 1980.

NORTHEAST DODGE CO. ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF MOTOR VEHICLE MANUFACTURERS, DEALERS & SALESMEN, RESPONDENT



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 the Motor Vehicle Dealer's License and Salesmen's Licenses of Northeast Dodge Co., Inc., W. M. Johnson, A. Barratta, R. A. Fisher, Patrick Kilgannon and Vincent J. Baldino, dated June 28, 1979.

COUNSEL

Raymond J. Takiff, Baratta & Takiff, for petitioners.

Marjoree Anderson, Assistant Attorney General, with her John J. Flynn and John J. Van Shura, Jr., Assistant Attorney Generals, Charles L. Ford, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 54 Pa. Commw. Page 184]

These are the appeals of Northeast Dodge Co., Inc. and Wesley M. Johnson from an order of the State Board of Motor Vehicle Manufacturers, Dealers and Salesmen (Board) suspending Northeast's dealer's license and Johnson's motor vehicle salesman's license, each for 60 days. Johnson is president of Northeast. In addition to Johnson four other Northeast officers or employees were charged by the Board with offenses in connection with car sales at the Northeast agency. The charges against three of these persons were dismissed after hearing and no appeal was taken by the fourth from a 60 day suspension of his salesman's license.

In a lengthy and detailed citation the appellants were charged with making substantial misrepresentations and false promises to customers, with knowingly failing or refusing to account for or to pay over moneys or other valuables belonging to others and with doing things which demonstrated incompetency, in violation of Subsections 4(2)(i)(ii)(iv) and (vi) of the Motor Vehicle Manufacturers', Dealers' and Salesmen's License Act, Act of December 21, 1973, P.L. 408, 63 P.S. ยง 805(2)(i), (ii), (iv), and (vi). Avoiding the great detail of the charges, we record that their substance is that Northeast and its named employees represented to named customers that Northeast could and would obtain financing for purchasers of cars which in fact it could not and did not do, that it took customers' cars in trade and sold or traded them before financing arrangements were completed so that they could not be restored when the deals fell through and that it used so-called installment contracts in which there was but one installment provided, this for the full purchase price of the vehicle being purchased.

After five days of hearings the Board handed down an adjudication with extensive findings of fact concerning

[ 54 Pa. Commw. Page 185]

    each of the charges and the persons charged. With respect to Johnson, the Board found that he sold one customer's trade-in vehicle before completing financing arrangements, that he failed promptly to return a $2000 deposit to another customer when the deal fell through and that he established Northeast's policy of requiring employees to have customers execute installment contracts with one installment for the whole purchase price. One of the questions posed by the appellants is that of whether the record supports the Board's conclusion that Northeast and Johnson violated the Act. One argument in support of the contention that the record is insubstantial is that the actions of other employees cannot be imputed to Northeast or Johnson. Of course, Johnson's salesman's license was suspended not for what others did but what he did, described above and clearly supported in the record. Northeast, a corporation, is an entity distinct from its employees and is severally liable for their acts, even criminally, and certainly in administrative proceedings. Commonwealth v. J. P. Mascaro and Sons, Inc., Pa. Superior Ct. , 402 A.2d 1050 (1979). Furthermore, the testimony of Northeast's customers, residents of Philadelphia who took time to come to Harrisburg for the hearings, amply supports the Board's findings and these findings support the Board's conclusions that misrepresentation, false promises, failure to return money and property when it should have been returned and incompetency on the part of Northeast had been demonstrated.

The appellants more urgently press three questions concerning the conduct of the hearings below. None has merit.

They first say that there was an impermissible intermingling of prosecutorial and adjudicatory functions, first because the citation listing the charges and fixing the ...


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