OPINION BY Judge LEAVITT.
Germantown Cab Company petitions for review of an adjudication of the Philadelphia Parking Authority imposing a $1,725 fine upon Germantown Cab and suspending the operation of one of its cabs for 30 days. The Authority imposed these sanctions because it found that Germantown Cab had violated the Authority's taxicab regulation. Germantown Cab challenges the adjudication as invalid as a matter of law because the regulation in question had not been promulgated in accordance with the Commonwealth Documents Law
In 1947, the General Assembly created municipal parking authorities with the enactment of the Parking Authorities Law, Act of June 5, 1947, P.L. 458, as amended, 53 P.S. §§ 341-356. This law granted all municipal parking authorities the power and duty to regulate on-street and off-street parking. In 2001, the General Assembly codified and amended the Parking Authorities Law, placing it in Title 53 of the Consolidated Statutes, "General Local Government Code," 53 Pa.C.S. §§ 5501-5517. The consolidated statute, inter alia, established an entirely separate statutory regime for Philadelphia's parking authority.
Prior to the enactment of Act 2004-94, the Pennsylvania Public Utility Commission
In June 2005, the Authority promulgated its own taxicab regulation.
Factual and Procedural History
The facts are not in dispute. On November 10, 2008, a Taxicab Division Inspector for the Authority encountered Taxicab G-45, owned by Germantown Cab, dropping off a passenger at 30th Street Station in Philadelphia.
Reproduced Record at 1, 3 and 5 (R.R. ___).
Germantown Cab objected to the citations on the basis that the Authority did not properly promulgate the regulation that Germantown Cab had been charged with violating. This argument was rejected. Based on Rotan's evidence, the hearing officer sustained the citations and imposed a $1,725 fine and a 30-day suspension of Taxicab G-45's ability to operate.
Germantown Cab petitioned this Court for review and, simultaneously, filed a motion to stay enforcement of the Parking Authority's order. The stay was first denied by the Philadelphia Parking Authority and then by this Court. This Court denied the stay concluding, inter alia, that Germantown Cab was not likely to succeed on the merits. Germantown Cab Co. v. Philadelphia Parking Authority, (Pa.Cmwlth., No. 1252 C.D.2009, filed July 29, 2009).
Germantown Cab's challenge to the Authority's taxicab regulation is not the first. Various taxicab drivers and companies have sought declaratory and injunctive relief, as well as writs of mandamus and prohibition from this Court, to enjoin enforcement of the Authority's regulation. These complaints were transferred to the Court of Common Pleas of Philadelphia County because this Court held that the Philadelphia Parking Authority was a local agency. Blount v. Philadelphia Parking Authority, 920 A.2d 215 (Pa.Cmwlth.2007) (en banc) (Blount I). On appeal, our Supreme Court reversed. It held that the Authority "is a Commonwealth agency for the purposes of regulating taxicabs" and not a local agency. Blount v. Philadelphia Parking Authority, 600 Pa. 277, 289, 965 A.2d 226, 234 (2009) (Blount II). Accordingly, it remanded the complaints to this Court for further proceedings.
On remand, we sustained the Authority's preliminary objections for the reason that the Blount petitioners had available adequate remedies at law in the form of appeals from the Authority's adjudications. Blount v. Philadelphia Parking Authority, (Pa.Cmwlth., No. 265 M.D.2006, filed September 8, 2009) (Blount III). Indeed, one such appeal is the case sub judice.
Germantown Cab raises one issue on appeal. It asserts that the Philadelphia Parking Authority's taxicab regulation is invalid and unenforceable because it was not promulgated in accordance with the Commonwealth Documents Law. Germantown Cab does not challenge the Authority's determination that it violated the regulation. Despite the other above-described litigation, Germantown Cab's challenge to the Authority's taxicab regulation presents an issue of first impression.
Promulgation of Regulations
We begin with a review of the law governing the promulgation of Commonwealth agency regulations. An agency derives its power to promulgate regulations from its enabling act. Campo v. State Real Estate Commission, 723 A.2d 260, 262 (Pa.Cmwlth.1998). An agency's regulations are valid and binding only if they are: "(a) adopted within the agency's granted power, (b) issued pursuant to proper procedure, and (c) reasonable." Tire Jockey Service, Inc. v. Department of Environmental Protection, 591 Pa. 73, 108, 915 A.2d 1165, 1186 (2007). As we explained in Borough of Bedford v. Department of Environmental Protection, 972 A.2d 53 (Pa.Cmwlth.2009), when promulgating a regulation, an agency must comply with the requirements set forth in the Commonwealth Documents Law, the Commonwealth Attorneys Act
In general, the purpose of the Commonwealth Documents Law is to promote public participation in the promulgation of a regulation. To that end, an agency must invite, accept, review and consider written comments from the public regarding the proposed regulation; it may hold public hearings if appropriate. 45 P.S. § 1202.
The legislature has identified what is meant by an "agency" for purposes of the Commonwealth Documents Law. It has defined an "agency" as:
Section 102(3) of the Commonwealth Documents Law, 45 P.S. § 1102(3) (emphasis added). Thus, any "independent commission" or any "other agency of this Commonwealth," including one not in existence at the time of the enactment of the Commonwealth Documents Law, is subject to its terms.
Positions of Parties
Germantown Cab does not challenge the substance of the Authority's taxicab regulations. It claims, simply, that the Authority's 2005 taxicab regulation is a nullity because it was not lawfully adopted. The Commonwealth Attorneys Act and the Regulatory Review Act each govern the process by which Commonwealth agencies promulgate regulations. However, Germantown Cab's appeal is based only upon the Commonwealth Documents Law. Specifically, Germantown Cab faults the Authority for not filing its taxicab regulation with the Legislative Reference Bureau, as required by Section 207 of the Commonwealth Documents Law. 45 P.S. § 1207.
As it must, the Philadelphia Parking Authority concedes that it is a Commonwealth agency. The Parking Authorities Law describes the Philadelphia Parking Authority as "an independent administrative commission for the regulation of taxicabs." 53 Pa.C.S. § 5505(d)(23). Our Supreme Court has held that the Authority is an "independent Commonwealth agency." Blount II, 600 Pa. at 288, 965 A.2d at 234. However, the Authority goes on to argue that because it is "a unique hybrid agency with a local focus," it is exempt from the Commonwealth Documents Law. Authority's Brief at 15.
The Authority notes that the Parking Authorities Law distinguishes the Philadelphia Parking Authority from any other Commonwealth agency:
53 Pa.C.S. § 5701.1(3). In addition, our Supreme Court has described the Authority as "an entity unlike any other in Pennsylvania." Blount II, 600 Pa. at 289, 965 A.2d at 234. Because of its unique character, the Authority contends that the General Assembly must have intended it to be exempt from the rulemaking procedures imposed upon other Commonwealth agencies.
First, the Authority points to Section 5722, which gives it the power to promulgate regulations, and states:
53 Pa.C.S. § 5722 (emphasis added). The Authority argues that the Commonwealth Documents Law is an "other ... law" referenced in Section 5722 that can be disregarded.
Second, the Authority points to Section 5505(d)(25), which authorizes it to choose its own chief counsel and states:
53 Pa.C.S. § 5505(d)(25) (emphasis added). The Authority construes Section 5505(d)(25) to exempt it from every provision of the Commonwealth Attorneys Act, including the provision that requires the Attorney General to approve proposed regulations for form and legality prior to their publication. 71 P.S. § 732-204(b).
In response, Germantown Cab notes that had the General Assembly meant to exempt the Authority from the Commonwealth Documents Law, it would have done so directly and expressly. The Commonwealth Documents Law itself requires that its terms apply to all Commonwealth agency regulations unless the legislature provides an express exemption. Section 508 states:
45 Pa.C.S. § 508. In Germantown Cab's view, the Parking Authority's strained reading of Chapter 57 does not measure up to the "express" exemption contemplated in Section 508.
In support, Germantown Cab cites numerous statutes enacted subsequent to the
Germantown Cab also points to Section 22(2) of Act 2004-94. It states:
Section 22(2) of Act 2004-94, 53 Pa.C.S. § 5701(notes) (emphasis added).
We agree with Germantown Cab that the Authority must comply with the Commonwealth Documents Law when it promulgates a regulation. The issue is
Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 372, 888 A.2d 758, 761-762 (2005) (citations omitted). Only where the meaning of the words is not clear do we resort to the principles set forth in the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991. Such an analysis is not necessary here.
First, and foremost, the Parking Authorities Law does not expressly exempt the Authority from the Commonwealth Documents Law. Section 5722 of the Parking Authorities Law, on which the Authority relies, does not express such an exemption. Section 5722 gives the Authority the power to adopt taxicab regulations "notwithstanding any other provision or law." 53 Pa.C.S. § 5722. The provision means just that, i.e., that regardless of what other statutes may state about the powers of any authority, including other parking authorities, the Philadelphia Parking Authority has the power to adopt regulations. Indeed, at oral argument, the Authority acknowledged that it had never adopted a regulation in its history, which began in 1950, until it promulgated its taxicab regulation. Section 5722 establishes the Authority's power to adopt taxicab regulations. It is silent about the procedures by which the Authority will exercise that power. Those procedures are set forth in the Commonwealth Documents Law, and they apply to all Commonwealth agencies when they exercise their statutory power to promulgate regulations.
Second, the Commonwealth Documents Law reaches all agencies, past, present and future, regardless of their mission. The Philadelphia Parking Authority may have a unique mission but, then, so does the Gaming Board. The mission of the agency is not determinative. Under Section 508, all agencies are subject to the terms of the Commonwealth Documents Law unless the legislature provides an express exemption.
Third, the Authority's reliance on Section 5505(d)(25), which provides a very narrow exemption from a single provision of the Commonwealth Attorneys Act, is misplaced. Section 5505(d)(25) gives the Authority the power "to appoint and fix the compensation of chief counsel and assistant counsel." 53 Pa.C.S. § 5505(d)(25). Stated otherwise, it qualifies the power of the Office of General Counsel in Section 301(1) of the Commonwealth Attorneys Act, 71 P.S. § 732-301(1), to appoint the legal staff of Commonwealth agencies.
The Authority would extend the qualification in Section 5505(d)(25) to provisions of the Commonwealth Attorneys Act that have nothing to do with choosing legal counsel, such as the need for an agency to submit its proposed regulations to the Attorney General for review.
Commonwealth of Pennsylvania v. Packer, 568 Pa. 481, 491, 798 A.2d 192, 198 (2002) (citations and quotation omitted). In short, the qualification in Section 5505(d)(25) cannot be extended to the entire Commonwealth Attorneys Act, as suggested by the Authority.
In sum, the Authority was required to follow the requirements of the Commonwealth Documents Law when it adopted the taxicab regulation, and it did not do so. Section 208 states:
The Authority asserts that without its taxicab regulation, there is a regulatory void. As noted above, Section 22(2) of Act 2004-94 provided that the taxicab regulations of the PUC "shall remain in effect until specifically amended, rescinded or altered by the authority." Section 22(2) of Act 2004-94, 53 Pa.C.S. § 5701 (notes) (emphasis added).
The Authority's concern about a regulatory void is valid as a matter of good government. However, that concern does not relieve the Court of the obligation to enforce the applicable statutes as they are written. In any case, the Authority has options. The Authority may be able to take enforcement actions for violation of Chapter 57, independent of any implementing regulation.
45 P.S. § 1204(3). Finally, of course, the Authority may seek relief from the legislature.
We hold that the taxicab regulation of the Philadelphia Parking Authority is void and unenforceable because it was not promulgated in accordance with the Commonwealth Documents Law. Accordingly, we reverse the Authority's adjudication imposing sanctions upon Germantown Cab.
AND NOW, this 28th day of April, 2010, the order of the Philadelphia Parking Authority dated June 11, 2009, in the above captioned matter is hereby REVERSED.
Sections 24 and 25 of Act 2004-94, 53 Pa.C.S. § 5701(notes). Section 22(4) states:
Section 22(4) of Act 2004-94, 53 Pa.C.S. § 5701 (notes).
R.R. 33. Regulation Section 13.b requires a taxicab to satisfy vehicle standards adopted by the Department of Transportation in 67 Pa. Code Chapter 175. R.R. 26. Regulation Section 13 relates generally to equipment standards and does not refer, specifically, to door gaskets but does refer to safety. See, e.g., Regulation Section 13.f.iii, requiring all doors to be "in good operating condition." R.R. 27.
45 P.S. § 1202.
45 P.S. § 1207.
3 P.S. § 1310 (emphasis added).
Other statutes containing similar language include, but are not limited to: the Farm Safety and Occupational Health Act, Act of December 12, 1994, P.L. 944, 3 P.S. §§ 1901-1915, § 1913; the Consolidated Weights and Measures Act, 3 Pa.C.S. §§ 4101-4194, § 4112(d); the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. §§ 1101-1904, § 1203; the Domestic and Sexual Violence Victim Address Confidentiality Act, 23 Pa.C.S. §§ 6701-6713, § 6712; and the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101-27-2702, § 13-1376(c.8).
45 P.S. § 1605, repealed by the Act of July 9, 1976, P.L. 877, No. 160. Thus, it has been the law since 1968 that the terms of the Commonwealth Documents Law apply to all agencies, unless there is an express exemption.
Section 508, as a "general provision," applies to all Commonwealth "documents" and, thus, even the yet to be consolidated parts of the Commonwealth Documents Law. Lest there be any doubt, a "document" in Part II is defined as a "regulation." 45 Pa.C.S. § 501. Section 208 of the unconsolidated parts of the Commonwealth Documents Law requires compliance with Section 409, which has been repealed and replaced with Chapter 5 of Title 45 of the consolidated statutes. In sum, Section 508 has general application to the promulgation of all regulations in the Commonwealth.
What is more, Section 208 of the unconsolidated portions of the Commonwealth Documents Law states that regulations
45 P.S. § 1208. Section 508 bolsters what is already contained in Section 208, namely, that all agencies must comply with the Commonwealth Documents Law.
It must be that the General Assembly believes that Section 508 has general application or it would not provide exemptions in such precise terms as it did, for example, in the recently enacted Gaming Act.