decided: July 10, 1987.
FORD MOTOR COMPANY, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS, RESPONDENT
Original Jurisdiction in case of Ford Motor Company v. Commonwealth of Pennsylvania, State Board of Vehicle Manufacturers, Dealers and Salespersons.
Robert E. Kelly, Jr., Duane, Morris & Heckscher, for petitioner.
Jerome T. Foerster, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondent.
Vincent J. Grogan, with him, Kathryn L. Simpson, Grogan, Graffam, McGinley & Lucchino, P.C., for intervenor, McCrackin-Sturman Ford, Inc.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 107 Pa. Commw. Page 315]
Pursuant to a post-trial motion in our original jurisdiction, McCrackin-Sturman Ford, Inc., a vehicle dealership, requests entry of judgment in its favor, or in the alternative, a new trial, following an adjudication by Senior Judge Bucher of this court upholding the right of the Ford Motor Company (Ford) to establish, over McCrackin's protest,*fn1 an additional Ford dealership within McCrackin's market area.
Our disposition of McCrackin's motion addresses Judge Bucher's determination that the failure of the State Board of Vehicle Manufacturers, Dealers and Salespersons (board) to make a final determination within
[ 107 Pa. Commw. Page 316]
the statutory time period as extended by the parties, entitled Ford to a deemed decision that good cause does not exist for refusing to permit Ford to establish a new vehicle dealership in a proposed location under section 7 of the Board of Vehicles Act.*fn2 We must also consider whether the merits of this matter may be constitutionally resolved on a deemed decision basis.
Before Judge Bucher's adjudication, the Supreme Court, in Ford Motor Co. v. Commonwealth of Pennsylvania, State Board of Vehicle Manufacturers, Dealers and Salespersons, 510 Pa. 91, 507 A.2d 49 (1986), had reversed this court's denial of McCrackin's motion to intervene
[ 107 Pa. Commw. Page 317]
before the board, and had concluded that the board's oral vote upholding McCrackin's protest did not constitute a "final determination" as required by section 7 of the Board of Vehicles Act, 63 P.S. § 818.7. On the latter point, the Supreme Court, stating that the board is a Commonwealth Agency, relied on section 507 of the Administrative Agency Law, 2 Pa. C.S. § 507, which requires that "[a]ll adjudications of a Commonwealth Agency shall be in writing . . . ."
Because the Supreme Court, in its opinion, set forth a detailed history of this case, we now recount only those findings of fact made by Senior Judge Bucher, in his October 29, 1986 opinion, which are necessary for the disposition of McCrackin's post-trial motion.
On February 29, 1984, Ford sent to the board and to all vehicle dealers within the relevant market area, notice of its intention to establish an additional dealership in the North Hills area of Pittsburgh. McCrackin filed a protest, and the board convened a hearing on June 21, 1984. However, not all of the testimony was concluded on that date, and both counsel faced schedule conflicts until the week of July 23. Counsel for the board*fn3 then stated that the parties would have to waive that provision of section 7 of the Board of Vehicles Act requiring that the board conduct a hearing and make a final determination within 120 days after the filing of the protest. Here, the 120-day period began to run with McCrackin's March 21 protest, and would have required the board to issue its decision by July 19.
[ 107 Pa. Commw. Page 318]
Counsel for McCrackin then indicated that he was willing to waive the 120-day decision requirement, and, the next day, Ford also agreed to an extension of the 120-day deadline until August 15, 1984. Accordingly, the board completed hearings on July 25-27. Ford then agreed to extend the decision deadline to August 31 so that both parties would have an opportunity to examine the transcripts in the preparation of their briefs and proposed findings. However, in response to Ford's agreement to give an extension to August 31, McCrackin stated its position that Ford's first waiver was unlimited. Nevertheless, the board's counsel placed upon the record its understanding that August 31, 1984 was the decision deadline under the Board of Vehicles Act, as extended by agreement of the parties, and that the board would issue a final decision in writing by that date.
In the weeks between the conclusion of the hearing and the board's decision deadline, Ford filed a motion to strike the testimony of McCrackin's expert witness, the transcript of which had been lost. However, Ford withdrew that motion on August 28 so that the board could timely issue its adjudication and order in accordance with the schedule. On August 17, Ford had also filed a motion to dismiss the McCrackin protest; the board denied that motion.
Although the board, on August 31, 1984, voted orally to sustain the protest of McCrackin, the board did
[ 107 Pa. Commw. Page 319]
not issue an order and decision in writing until October 26, 1984. As noted above, the written decision was the determinative one, as respects the statutory decision deadline.
The Supreme Court, in addition to reversing, remanded the case, with McCrackin entitled to intervene.
Consistent with that remand order, Senior Judge Bucher, after a hearing, concluded that (1) Ford's agreement was to extend the decision deadline to August 15, 1984, and then to August 31, 1984, and that its agreements to those extensions did not constitute a complete waiver of the time limitation statutorily imposed upon the board's decision-making procedure; (2) the motions filed by Ford within two weeks of the August 31 deadline, consisting of a motion to strike the testimony of a witness when the transcript was lost, and a motion to dismiss the McCrackin protest, were properly filed and did not cause the board's failure to reach a decision by August 31; and (3) McCrackin failed to meet its burden of proving that it had detrimentally relied upon representations by Ford that Ford had agreed to an unlimited waiver of the 120-day decision rule; and (4) the Act's imposition of a 120-day limit upon the board's decision-making did not violate McCrackin's right to due process and equal protection, consistent with the United States Supreme Court's decision in Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).
Accordingly, Senior Judge Bucher, by order dated October 29, 1986, granted Ford's application for summary relief and directed the board to issue the permits necessary for Ford to establish the proposed new dealership.
McCrackin then filed the present post-trial motion, requesting the entry of judgment notwithstanding the verdict or a new trial in the alternative.
[ 107 Pa. Commw. Page 320]
Our scope of review in this post-trial motion is narrow. In Community College of Beaver County v. Page 320} Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 589, 375 A.2d 1267, 1273 (1977), the Supreme Court stated:
A court will enter a judgment notwithstanding the verdict if, and only if, viewing all the evidence (including inferences reasonably to be drawn therefrom) most favorably to the verdict winner, the elements of the cause of action or defense asserted have not, as a matter of law, been established. In passing on a motion for judgment n.o.v., findings of fact will not be disturbed if supported by evidence.
See also Standard Pa. Prac. 2d § 64:4 (1982).
A motion for new trial may be granted only where there exists a manifest abuse of discretion or a clear error of law. Chanda v. Commonwealth, 86 Pa. Commonwealth Ct. 532, 485 A.2d 867 (1984). See also Standard Pa. Prac. 2d §§ 62:2, 62:3.
Waiver of 120-day Decision Requirement
Addressing Judge Bucher's conclusion that Ford agreed only to a limited waiver of the 120-day provision of section 7 of the Act, 63 P.S. § 818.7, McCrackin contends that, by agreeing to any extension of the 120-day decision requirement, Ford has agreed to an unlimited waiver of that requirement. Second, McCrackin asserts that Ford did not in fact agree to extend the decision time period to a specified date, but actually agreed to an unlimited waiver.
In General Motors Corp. v. Commonwealth of Pennsylvania, State Board of Motor Vehicle Manufacturers, Dealers and Salespersons, 98 Pa. Commonwealth Ct. 187, 198, 511 A.2d 249, 254 (1986), this court stated that a waiver of the 120-day decision requirement "must be express or by necessary implication." McCrackin has not established that an unlimited waiver occurred because
[ 107 Pa. Commw. Page 321]
Judge Bucher found that, at all times, Ford limited its extension agreement -- first to August 15, and then only until August 31, 1984.*fn4 Those findings are supported by evidence of record. Further, McCrackin provides no legal support or persuasive argument for the proposition that a waiver of a time requirement is necessarily absolute and may not be limited to an agreement of the parties to a specific date.
McCrackin next challenges the court's conclusion that McCrackin failed to establish that Ford was equitably estopped from relying upon August 15, and later August 31, as the deadline date for the final determination. McCrackin, as the party asserting an estoppel, bore the burden of establishing, by clear, precise and unequivocal evidence, inducement and justifiable reliance upon that inducement. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983).
[ 107 Pa. Commw. Page 322]
Judge Bucher essentialy concluded that McCrackin had failed to prove that Ford had induced McCrackin to believe that the former had agreed to an unlimited waiver. He found that Ford believed that it had limited its waiver while McCrackin believed that the waiver was unlimited. The board suggested that the board, not Ford, bore the responsibility to dispel McCrackin's belief that the waiver was unlimited. We agree that, because board counsel established the procedure by which the two sides would agree upon the extension of the 120-day deadline, and communication between the parties was through her, McCrackin's misunderstanding of Ford's intention to extend the deadline only until a specific date resulted from the board's procedures, not from any wrongdoing by Ford.
In Finding No. 39, Judge Bucher found that a letter dated June 22, 1984, from McCrackin's counsel to the board's counsel summarized a telephone conversation and stated that the board's counsel had relayed to McCrackin's counsel Ford's position on the 120-day requirement. Judge Bucher found, in Finding No. 38, that "Ford's agreement to extend the 120-day deadline until August 15, 1984, was clearly and unequivocally stated to [board counsel] Mrs. Nicholas by [Ford counsel] Mr. Ritok on June 22, 1984 in accordance with the procedure established by Mrs. Nicholas." McCrackin has produced no evidence of words or actions by Ford which might have caused McCrackin to believe that Ford had agreed to an unlimited waiver of the decision deadline.
Judge Bucher's conclusions rejecting McCrackin's unlimited waiver and equitable estoppel arguments are sound. Accordingly, Ford is entitled to a deemed decision under Section 7 that good cause does not exist for refusing to permit the proposed additional dealer.*fn5
[ 107 Pa. Commw. Page 323]
interest, of which he could not be deprived except "for cause." (Citing Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978).) The Court then proceeded to determine what process was due the complainant consistent with his property interest. Concluding that the complainant had been denied due process, the Court stated, "it is the state system itself that destroys a complainant's property interest, by operation of law, whenever the Commission fails to convene a timely conference -- whether the Commission's action is taken through negligence, maliciousness, or otherwise." 455 U.S. at 436. The court concluded, saying, "[w]hat the Fourteenth Amendment does require . . . 'is "an opportunity. . . granted at a meaningful time and in a meaningful manner," . . . "for [a] hearing appropriate to the nature of the case". . . .'" 455 U.S. at 437 (citations omitted).
Assuming that McCrackin's board protest does rise to the level of a property interest, we cannot, upon the present facts, conclude that the procedures set forth in section 18 of the Board of Vehicles Act, specifically, the 120-day decision rule, denied McCrackin a meaningful opportunity to be heard.
Judge Bucher found that, after the first day of hearing, McCrackin's counsel requested that the board postpone the proceedings for three weeks. Of course, this court does not mean to suggest either that the board's failure to reach a written final determination by the agreed upon deadline was caused solely by McCrackin. However, that fact distinguishes the present case from Logan, where the board's actions alone denied the complainant even the opportunity to be heard. Ford's counsel also requested a delay in the proceedings, and certainly the board is not blameless for its failure to issue a written final determination by August 30, 1984. This combination of factors prevents us from attributing McCrackin's failure to receive a timely final
[ 107 Pa. Commw. Page 326]
determination solely to the provisions of the Board of Vehicles Act.*fn6
Because McCrackin has failed to establish either a clear error of law or a manifest abuse of discretion by the trial judge, its motion requesting a judgment notwithstanding the verdict or, in the alternative, a new trial, is denied.
Now, July 10, 1987, the post-verdict motion of McCrackin-Sturman Ford, Inc. for entry of judgment in its favor or, in the alternative, for a new trial, is denied.
Peremptory judgment granted in favor of Ford. Petition to intervene denied. (Bucher, J. Slip Opinion). Protestant appealed to the Supreme Court of Pennsylvania. Order affirmed in part and reversed in part. Case remanded to Commonwealth Court. Application for summary relief granted in nature of peremptory mandamus. (Bucher, J. Slip Opinion). Protestant filed post-trial motion for entry of judgment and/or new trial. Ford filed post-trial motion to modify decision. Post-verdict motion of protestant denied.