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BIANCHI SUBARU v. COMMONWEALTH PENNSYLVANIA (10/18/88)

decided: October 18, 1988.

BIANCHI SUBARU, INC., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, 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 Bianchi Subaru, Inc. v. Penn Jersey Subaru, Inc., File No. 86 60 1872.

COUNSEL

Thomas J. Minarcik, with him, Joseph T. Messina, Elderkin, Martin, Kelly, Messina & Zamboldi, for petitioner.

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

Dennis A. Holtz, for intervenor, Penn Jersey Subaru, Inc.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. This decision was reached prior to the resignation of Judge MacPhail.

Author: Barbieri

[ 120 Pa. Commw. Page 475]

Bianchi Subaru, Inc. (Bianchi) appeals an order of the State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) dismissing its petition protesting the locating of a new dealership in its market area.

Penn Jersey Subaru, Inc. (Penn Jersey) is the authorized distributor of Subaru parts and vehicles for the Commonwealth of Pennsylvania. Pursuant to a dealership agreement with Penn Jersey dated February 14, 1986, Bianchi is an authorized Subaru dealer.

By letter dated and received on December 10, 1986, Penn Jersey notified Bianchi of its intention to locate a new Subaru dealership within Bianchi's market area.*fn1 That letter reads in pertinent part as follows:

This letter is our notification to you that Penn Jersey Subaru, Inc. intends to appoint a

[ 120 Pa. Commw. Page 476]

    new Subaru Dealer in Irwin, Pennsylvania. This location is approximately 8.5 miles from your dealership facilities. We are required by Section 18 of the Vehicle Manufacturers, Dealers and Salespersons Act to give you this notice. Penn Jersey Subaru, Inc. has not established an appeal procedure to protest dealer appointments.

Bianchi sent a protest to the Board under a cover letter dated December 30, 1986. The protest was not received by the Board until December 31, 1986. By order dated January 13, 1987, the Board dismissed Bianchi's protest as untimely, pursuant to Section 18(a) of the Act.*fn2 That ...


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