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AVIS RENT A CAR SYSTEM v. COMMONWEALTH PENNSYLVANIA (10/13/88)

decided: October 13, 1988.

AVIS RENT A CAR SYSTEM, INC. D/B/A AVIS USED CAR SALES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS, RESPONDENT



Appeal from the Order of the State Board of Vehicle Manufacturers, Dealers and Salespersons in the case of Avis Rent-A-Car System, Inc., d/b/a Avis Used Car Sales v. State Board of Vehicle Manufacturers, Dealers and Salespersons, File No. 86 60 0601, dated November 25, 1987.

COUNSEL

Herbert G. Keene, Jr., with him, Paula D. Shaffner and Keith R. Dutill, Stradley, Ronon, Stevens and Young, for petitioner.

April L. McClaine, Counsel, State Board of Vehicle Manufacturers, Dealers and Salespersons, with her, Joyce McKeever, Chief Counsel, Bureau of Professional and Occupational Affairs, and Velma A. Boozer, Chief Counsel, Department of State, for respondent.

Judges Barry and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. This decision was reached prior to the resignation of Judge MacPhail.

Author: Barry

[ 120 Pa. Commw. Page 412]

Avis Rent A Car System, Inc. d/b/a Avis Used Car Sales (Avis) petitions for review of an order of the State

[ 120 Pa. Commw. Page 413]

Board of Vehicle Manufacturers, Dealers and Salespersons (Board) which held that Avis could not sell used cars at an "off premise sale" outside of a twenty mile radius of its two Philadelphia licensed places of business.

Avis regularly sold some of its rental fleet to the general public, both at its licensed locations and at "off premises" sales. In 1986, the Board notified Avis that Board approval would be required prior to Avis' "off premise sales". When Avis sought approval for two separate sales, the Board denied approval for an "off premise sale" at a location outside of a twenty mile radius of its two licensed locations. Avis then filed two actions in this Court, one in our original jurisdiction and the other in our appellate jurisdiction. We granted the Board's preliminary objection concerning the original jurisdiction action and dismissed it as being a matter for our appellate jurisdiction. Because the Board had failed to hold a hearing prior to denying approval of the one "off premise sale", we remanded for a hearing. Avis Rent a Car System, Inc. v. Department of State, State Board of Vehicle Manufacturers, Dealers and Salespersons, 96 Pa. Commonwealth Ct. 294, 507 A.2d 893 (1986).

Following our remand order, the Board held a hearing. Thereafter, the Board concluded that "off premise sales" could not be held outside of a twenty mile radius of Avis' two licensed locations. This appeal followed.

At the time this action was originally commenced, Section 23(a) of the Board of Vehicles Act, Act of December 22, 1983, P.L. 306, as amended, formerly 63 P.S. ยง 818.23(a), provided, "Any licensed dealer . . . may participate in any approved public vehicle show or exhibition which . . . has been approved by the board." (Emphasis added.) Hearings were conducted in 1986 before the Board. At all times, Avis has taken the position that Section 23 only permits the Board to approve a

[ 120 Pa. Commw. Page 414]

"show or exhibition"; since an "off premise sale" is not specifically mentioned, Avis argued that the Board had no power to approve or disapprove an "off premise sale". In our original decision in this matter, we specifically stated that we were not deciding whether Section 23 ...


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