Original Jurisdiction and Appeal in case of Avis Rent A Car System, Inc. v. Commonwealth of Pennsylvania, Department of State, State Board of Vehicle Manufacturers, Dealers and Salespersons.
Herbert G. Keene, Jr., with him, Pamela E. Ebling, Stradley, Ronon, Stevens & Young, for petitioner.
Ellis M. Saull, Deputy Attorney General, with him, Allen C. Warshaw, Executive Deputy Attorney General, Chief, Litigation Section, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, LeRoy S. Zimmerman, Attorney General, for Commonwealth of Pennsylvania, respondent.
John F. Alcorn, Assistant Council, for Department of State, State Board of Vehicle Manufacturers, Dealers and Salespersons, respondent.
Judges MacPhail, and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.
[ 96 Pa. Commw. Page 296]
Avis Rent A Car System, Inc. (Avis) has filed a petition for review in both our original and appellate jurisdiction seeking, inter alia, a writ of mandamus to require the State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) to refrain from prohibiting current and future "off premise sales".*fn1 The Board has filed preliminary objections to the petition filed in our original jurisdiction and a motion to dismiss the action filed in our appellate jurisdiction.*fn2
In considering preliminary objections, we must accept as true all of the factual averments of the petition. Investigation Upon Commission Motion Into The Installment Sale Purchase Program of Metro Transportation Co., 87 Pa. Commonwealth Ct. 626, 488 A.2d 369 (1985).
Avis is a licensed vehicle dealer*fn3 maintaining various established places of business in Pennsylvania.*fn4 In connection
[ 96 Pa. Commw. Page 297]
with its car rental business, Avis regularly sells some of its rental fleet to the general public as used vehicles. Avis sells these vehicles both at its established places of business and at selected off-premise locations.*fn5
Avis alleges that the Board did not require pre-authorization of off-premise sales until August 26, 1985. On that date, the Board notified Avis by letter that numerous complaints had been filed with the Board alleging that Avis had conducted off-premise vehicle sales without authorization. The letter further stated that it is the Board's position that Section 23 of the Act*fn6 (regulating
[ 96 Pa. Commw. Page 298]
vehicle shows and exhibitions) requires Avis to obtain Board authorization prior to holding an off-premise sale. Thereafter, Avis complied with the letter and sought Board authorization for two off-premise sales, one to be held in Feasterville and the other in Pottstown. The Board authorized the Feasterville location but denied approval for the ...