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09/17/97 GARY BARBERA DODGE v. COMMONWEALTH

September 17, 1997

GARY BARBERA DODGE, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES



Appeal from Commonwealth Court, Memorandum and Order entered October 19, 1995, reversing the Order of the Court of Common Pleas of Philadelphia County, Order No. 9406-0001, entered October 17, 1994.

Appeal from Order of the Commonwealth Court entered October 19, 1995, at No. 2586 C.D. 1994, reversing the Order of the Court of Common Pleas of Philadelphia County, Civil Division, entered August 23, 1994, at No. 9406-0001.

JUDGES BELOW: CCP - Honorable Bernard J. Avellino / Commonwealth - DOYLE, KELLEY, JJ., NARICK, SJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille And Nigro, JJ. Mr. Justice Nigro. Mr. Justice Zappala files a Dissenting opinion in which Mr. Chief Justice Flaherty joins. Madame Justice Newman did not participate in the consideration or decision of this case.

The opinion of the court was delivered by: Nigro

Mr. Justice Nigro

Decided: September 17, 1997

Gary Barbera Dodge, Inc. ("Barbera") appeals from the Commonwealth Court's determination that Barbera failed to submit timely automobile title applications to the Pennsylvania Department of Transportation ("PennDOT") and that delivery to an authorized messenger service was not a "relevant mitigating event." For the following reasons, we reverse in part.

Barbera is a licensed new and used automobile dealer which performs title work on the vehicles it sells. On November 19, 1993, PennDOT notified Barbera that it had filed untimely title applications on fifty-nine occasions in violation of 75 Pa.C.S. § 1103.1(d), which requires that title applications for automobiles purchased from dealers be mailed or delivered to PennDOT within 20 days of the date of purchase. *fn1

Following an administrative hearing, PennDOT issued an order on May 13, 1994 determining that Barbera had failed to submit timely title applications to PennDOT on fifty-seven occasions in violation of section 1374(a)(5) of the Vehicle Code ("the Code"), 75 Pa.C.S. § 1374(a)(5)(1995). *fn2 PennDOT imposed fifty-seven separate $200 penalties against Barbera, totalling $11,400. *fn3 On June 6, 1994, Barbera appealed PennDOT's order to the trial court, which reversed following a de novo hearing.

At the hearing, Barbera's title clerk, Audrey Brown, testified that Barbera utilized a licensed messenger service, Nelson's Messenger Service ("Nelson's"), to pick up Barbera's completed title work and then deliver it to PennDOT. Brown testified that she generally processed the title work in seven days, but that Nelson's was not submitting the title work to PennDOT in a timely fashion. The trial court held that "timely delivery of the documents to an authorized messenger service was tantamount to delivery to PennDOT," N.T. at 34, and thus Barbera was not in violation of the Code.

The standard of review on appeal is to determine whether the findings below are supported by substantial evidence, whether an error of law has been committed or whether an abuse of discretion has occurred. Commonwealth v. Boucher, 547 Pa. 440, 691 A.2d 450 (Pa. 1997); Commonwealth, Department of Transportation v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989); Philadelphia Honda, Inc. v. Commonwealth, Department of Transportation, 666 A.2d 349 (1995).

Applying this standard, the Commonwealth Court reversed the trial court, finding (1) that Barbera's delivery of the title applications to Nelson's did not constitute timely delivery of the applications to PennDOT; and (2) that Nelson's delayed delivery of the title documents to PennDOT did not constitute a "relevant mitigating event" under section 1374(b) which would excuse Barbera's untimely delivery. *fn4

We granted allocatur in order to determine whether Barbera failed to timely submit the title documents to PennDOT under section 1374(a)(5), and, if so, whether Nelson's failure to timely deliver the title applications to PennDOT constituted a relevant mitigating event under 75 Pa.C.S. § 1374(b). *fn5

Pursuant to 75 Pa.C.S. ยง 1374(a)(5), PennDOT may impose a monetary penalty when it finds upon sufficient evidence that "the registrant has failed to deliver to a transferee lawfully entitled thereto or to [PennDOT], when and as required by this title, a properly ...


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