The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Submitted: March 23, 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Judge
Mapemawa, Inc. (Applicant) petitions for review of an adjudication of the Philadelphia Parking Authority, Taxicab and Limousine Division (Parking Authority) denying its application for a certificate of public convenience to provide limousine service in Philadelphia. The Parking Authority did so for the stated reason that Applicant did not show that it was capable of providing lawful service because it had "pled liable" to a Parking Authority citation in 2008 and paid a civil penalty of $1,000. Concluding that the single 2008 enforcement action is insufficient to support the Parking Authority's conclusion that Applicant lacked the propensity to operate legally, we reverse.
We begin with a review of the applicable regulatory scheme. The Pennsylvania Public Utility Commission (PUC) licenses limousines and taxicabs that operate in all parts of Pennsylvania, save the City of Philadelphia. There, under Chapter 57 of the act commonly referred to as the Parking Authority Law (Law), 53 Pa. C.S. §§5701-5745, the Parking Authority licenses and regulates limousines.*fn1 To operate in Philadelphia, a limousine company must obtain a certificate of public convenience from the Parking Authority, which may grant a certificate if it determines, inter alia, that the "applicant is capable of providing . lawful . service." 53 Pa. C.S. §5741(a).*fn2 The PUC's regulation explains that it may withhold a certificate where the "applicant lacks a propensity to operate safely and legally." 52 Pa. Code §41.14(b). The Parking Authority uses the PUC's regulation as its own.*fn3
In April 2009, Applicant*fn4 applied to the PUC for a certificate of public convenience to provide limousine service in Pennsylvania and to the Parking Authority to provide limousine service in Philadelphia. In October of 2009, the PUC granted Applicant a certificate of public convenience. However, in January 2010 the Parking Authority denied Applicant a certificate when its Enforcement Department objected for the stated reason that Applicant had pleaded liable to one citation issued by the Parking Authority. The Parking Authority denied Applicant a certificate under authority of its 2005 regulation, which was later nullified by this Court because it had not been adopted in accordance with the terms of the Commonwealth Documents Law.*fn5 Germantown Cab Co., 993 A.2d at 934. Applicant appealed, and a Parking Authority hearing officer conducted a de novo hearing on August 11, 2010.
Maria Fernandez, the owner and president of Applicant, testified, beginning with a description of her experience in the limousine and taxicab industry. She began driving a taxicab in Philadelphia in 1997 and started her own Philadelphia taxi dispatch company in 2002. When the Parking Authority took over taxicab regulation in 2005, Fernandez sought and obtained a Parking Authority certificate for her dispatch business. In 2008, Fernandez incorporated Applicant, then called "PHL Ground Transportation, Inc." In February of 2008, Applicant entered into a lease with Limo 2000, a limousine company with certificates of public convenience from the PUC and from the Parking Authority. The lease gave Applicant the right to operate one of Limo 2000's vehicles in exchange for a flat weekly payment of $550. Fernandez' husband, Walter Fernandez, booked the trips and did the driving.
In April of 2008, Fernandez set up a website that described Applicant as "a full Philadelphia limo service and transportation service company in Philadelphia." Reproduced Record at 49, 122 (R.R. __). Noting that "PHL" was the designation for Philadelphia International Airport, Fernandez explained that the website was not intended to target the city itself but, rather, the Philadelphia area. With respect to the website's description of Applicant as licensed by the PUC and the Parking Authority, Fernandez explained that she believed the statement was true by reason of Applicant's lease with Limo 2000, which did hold certificates of public convenience from the PUC and from the Parking Authority. Fernandez stated that she had included a paragraph on the website explaining that Applicant was operating under a lease with Limo 2000, but that paragraph was not on the printout of the website presented to her at the hearing. The two telephone numbers listed on Applicant's website were her husband's cell phone numbers, not Limo 2000's phone number. Fernandez acknowledged that Applicant charged passengers for trips using Applicant's credit card account, not that of Limo 2000.
In August of 2008, the Parking Authority informed Fernandez that Applicant's website was improper, and she immediately took it down. In addition, Applicant stopped its limousine operations in Philadelphia.
Fernandez testified about a 2008 citation issued to Applicant under authority of the Parking Authority's 2005 regulation. The Parking Authority's citation alleged that "on two separate occasions, 8/15 and 8/19, [Applicant] booked passenger trips involving point-to-point service in Philadelphia. The above company is not registered with the [Parking Authority] or the PUC." R.R. 55. The parties settled the Parking Authority's enforcement action. Applicant pleaded "liable" to the citation and paid a civil penalty of $1,000. For its part, the Parking Authority withdrew three other citations it had filed that related to the same conduct.*fn6
Walter Fernandez also testified. He stated that he began driving a taxicab in 1987 and that he and his wife founded a taxicab company in 2002. When the Parking Authority assumed responsibility for regulating taxicabs and limousines in 2005, Walter Fernandez studied its regulations. He succeeded in getting their taxicab company licensed by the Parking Authority. After they sold the taxicab company, they decided to enter the limousine business.
Walter Fernandez confirmed that Applicant began operations by leasing a limousine from Limo 2000, which directed very little business to Applicant, at most 10 percent of the 25 to 30 trips it made each week. Two to three trips a week would not cover Applicant's lease obligation of $550 per week. To drum up additional business, Applicant put up the website in April 2008. Walter Fernandez confirmed that the receipt he gave passengers said "PHL." This was done because if passengers had paid Limo 2000, then Applicant would have been forced to collect from Limo 2000 and suffer delays in obtaining the cash flow necessary for its operational expenses.
Walter Fernandez testified that he believed Applicant operated lawfully because it had leased the right to use Limo 2000's certificates of public convenience. However, when the Parking Authority complained in August of 2008, Applicant ...