Bucks County Services, Inc., Concord Coach Limousine, Inc. t/a Concord Coach Taxi, Concord Coach USA, Inc. t/a Bennett Cab, Dee-Dee Cab, Inc. t/a Penn Del Cab, Germantown Cab Company, MCT Transportation, Inc. t/a Montco Suburban Taxi, and Rosemont Taxicab Co., Inc., Petitioners
Philadelphia Parking Authority and Pennsylvania Public Utility Commission, Respondents
Submitted: February 15, 2013
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
Presently before the Court are the preliminary objections of the Pennsylvania Public Utility Commission (Commission) and the Philadelphia Parking Authority (Authority) in response to the amended petition for review seeking declaratory and injunctive relief filed by Bucks County Services, Inc. (BCS), Concord Coach Limousine, Inc. t/a Concord Coach Taxi (Coach Taxi), Concord Coach USA, Inc. t/a Bennett Cab (Bennett Cab), Dee-Dee Cab, Inc. t/a Penn Del Cab (Penn Del Cab), Germantown Cab Company (GCC), MCT Transportation, Inc. t/a Montco Suburban Taxi (Suburban Taxi), and Rosemont Taxicab Co., Inc. (Rosemont) (collectively, Petitioners).
Taxicabs which are licensed to provide call or demand services within the City of Philadelphia (the City) are known as "medallion taxicabs." Six of the seven Petitioners are partial-rights, non-medallion taxicab companies, which received certificates of public convenience from the Commission authorizing them to provide call or demand taxicab service in certain designated areas of the City.Historically, the Commission regulated taxicab service throughout Pennsylvania. With respect to service in the City, the Commission's responsibilities had been set forth in the Medallion Act.
The Medallion Act established heightened standards to elevate the level of taxicab service within the City. Even though Petitioners were authorized to operate in designated areas of the City, they were not subject to the requirements of the Medallion Act because they were not medallion taxicabs. In 2004, the Legislature repealed the Medallion Act and substantially re-enacted it as Chapter 57 of the Parking Authorities Law (commonly known as Act 94). Act 94 transferred jurisdiction over taxicab service within the City from the Commission to the Authority.
Pursuant to Act 94, the Commission and the Authority entered into a Jurisdictional Agreement in 2005, outlining relevant enforcement responsibilities.The Commission ratified this Agreement by order dated February 4, 2005. The Agreement and the Commission's order were subsequently submitted to and approved by the Legislature and then published in the Pennsylvania Bulletin on March 11, 2005. 35 Pa. Bull. 1737 (2005). Shortly thereafter, the Authority promulgated regulations governing medallion and partial-rights taxicabs providing service within Philadelphia (first set of regulations or 2005 regulations).
The Authority then began enforcing this first set of regulations, with a taxicab division inspector issuing three citations to a cab owned by Petitioner GCC for equipment violations and an expired inspection sticker. Petitioner GCC appealed the citations, alleging that the Authority had not properly promulgated the first set of regulations. However, a hearing officer rejected this argument and sustained the citations. The hearing officer imposed a fine against Petitioner GCC in the amount of $1, 725.00, and suspended the operation of the offending taxicab for a period of thirty days.
Petitioner GCC subsequently filed a petition for review with this Court reiterating its allegation that the 2005 regulations were invalid because they were not promulgated in accordance with the Commonwealth Documents Law.By opinion and order dated April 28, 2010, this Court agreed with Petitioner GCC and reversed the Authority's adjudication. See Germantown Cab Co. v. Philadelphia Parking Authority, 993 A.2d 933 (Pa. Cmwlth. 2010) (Germantown Cab I), affirmed, Pa., 36 A.3d 105 (2012) (Germantown Cab II).
Nevertheless, the Authority continued to enforce the regulations against Petitioners and continued demanding payment of fines and assessments based upon the invalidated first set of regulations. For example, Petitioner GCC received two citations from a taxicab division inspector in December 2009 for an equipment violation and the lack of an operator's certificate. Petitioner GCC appealed, but the hearing officer issued an order dated May 28, 2010, exactly one month after our Germantown Cab I decision, denying the appeal, imposing a fine in the amount of $1, 750.00, and suspending the operation of the offending cab for thirty days. Petitioner GCC filed a petition for review with this Court. By opinion and order dated August 3, 2011, we reversed the Authority's adjudication based upon our prior decision in Germantown Cab I. Germantown Cab Co. v. Philadelphia Parking Authority, 27 A.3d 280 (Pa. Cmwlth. 2011).
Petitioners attempted to resolve the issue of fines and assessments based on the invalid first set of regulations administratively by challenging various enforcement actions with the Authority. The Authority thereafter withdrew its prosecutions and dismissed the actions. However, the Authority continued to demand payment of the fines and assessments and threatened revocations of rights or impoundments of vehicles. For example, by letter dated January 17, 2012, the Authority demanded that Petitioner GCC pay in excess of $310, 000.00 in fines and assessments issued under the invalidated first set of regulations and included threats of nonrenewal of Petitioner GCC's operating rights, non-certification of its taxicabs, and impoundment.
Amended Petition for Review
On January 23, 2012, Petitioners filed their amended petition for review in this Court's original jurisdiction in the nature of an action for declaratory judgment, injunctive relief, and writs of mandamus. More specifically, the amended petition for review raises the following ten counts:
Count I – Petitioners seek a declaration invalidating all past fines, assessments, and other adjudications based on the Authority's invalidated first set of regulations and preliminary and permanent injunctive relief enjoining the Authority from using the above as a basis for further actions.
Count II – Petitioners seek a declaration invalidating the Authority's new set of regulations for failure to comply with proper rule making procedures as well as preliminary and permanent injunctive relief enjoining the Authority from enforcing these new regulations. Petitioners also seek a writ of mandamus directing the Authority to promulgate its regulations in accordance with all applicable legal and statutory requirements.
Count III – Petitioners seek a declaration that the Authority does not have the statutory power to regulate partial-rights, non-medallion taxicab companies.
Count IV – Petitioners seek a declaration that the Jurisdictional Agreement executed by the Commission and the Authority in 2005 was invalid.
Counts V to X– Petitioners seek declarations invalidating specific aspects of the Authority's new regulations, including regulations relating to vehicle mileage limits, inspections and vehicle partitions, driver certification standards, annual renewal of rights and out-of-service designations, the penalty schedule, and the budget, fee schedule adoption, and assessment processes.
(Amended Petition for Review at ¶¶ 31-139.) The Commission is named as a respondent in only a single count of Petitioners' amended petition for review, i.e., Count IV.
Both the Commission and the Authority thereafter filed preliminary objections to the amended petition for review. In its preliminary objections, the Commission argues that Petitioners have failed to join a necessary party. While the Commission acknowledges that it is not named as a respondent in Count III, the Commission notes that all parties agree that it should also be named as a respondent in Count III and simply asks this Court to add the Commission as a party to this count.
With respect to Count IV, the Commission argues that since Petitioners seek to invalidate the entire Jurisdictional Agreement, which applies to other carrier classes such as medallion taxicabs and limousines that may be adversely impacted by this proceeding, the failure to include these carriers as parties requires dismissal of this Count. Additionally, the Commission argues that Petitioners have failed to exhaust an adequate remedy at law because its February 4, 2005 order ratifying the Jurisdictional Agreement constituted an adjudication which was appealable to this Court and that Petitioners' failure to appeal deprives this Court of jurisdiction over the adjudication.
The Authority raises eleven specific preliminary objections which we will address in turn. In its first preliminary objection, the Authority seeks dismissal of Counts II to X of the amended petition for review for failure to exhaust administrative and statutory remedies. Citing Arsenal Coal Co. v. Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984), the Authority notes that statutory, post-enforcement review is adequate unless the regulation itself causes actual, present harm. The Authority also avers that pre-enforcement review under Arsenal Coal Co. is not available where there is an adequate statutory review process or where the regulation's effects would not result in piecemeal litigation or uncertainty in the petitioner's business. Globe Disposal Co. v. Department of Environmental ...