Anthony Iron & Metal Co. v. Commonwealth

531 A.2d 90, 109 Pa. Commw. 347, 1987 Pa. Commw. LEXIS 2460
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 15, 1987
DocketAppeal No. 2371 C.D. 1986
StatusPublished
Cited by2 cases

This text of 531 A.2d 90 (Anthony Iron & Metal Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony Iron & Metal Co. v. Commonwealth, 531 A.2d 90, 109 Pa. Commw. 347, 1987 Pa. Commw. LEXIS 2460 (Pa. Ct. App. 1987).

Opinion

Opinion by

Judge Palladino,

Anthony Iron and Metal Company (Petitioner) appeals from an order of the Pennsylvania Department of Transportation (DOT) which suspended Petitioners special hauling privileges for a period of thirty days. We affirm.

Petitioner is a company engaged in the business of purchasing heavy construction equipment and leasing out the equipment either fully manned and permitted or in a “bare posture”, that is, without permit or operator. In the course of its business, Petitioner often has occasion to apply for special permits from DOT for the privilege of hauling overweight or oversize loads on state highways:

[349]*349Fayette Trucking Company (Fayette) is a corporation engaged in the business of hauling heavy equipment. On January 3, 1984, DOT ordered Fayette’s special hauling privileges suspended for a period of ninety days for knowingly altering a permit. Fayette appealed, and on March 28, 1985, in an unpublished opinion, this Court affirmed DOT’s order. Fayette Trucking, Inc. v. Pennsylvania Department of Transportation, (No. 310 C.D. 1984, filed March 28, 1985). The suspension went into effect on May 6, 1985.

On June 7, 1985, one month later, Fayette entered into a sale/lease-back arrangement with Petitioner whereby Petitioner bought six of Fayette’s heavy trucks and then immediately leased them back to Fayette.

On June 21, 1985, DOT issued special hauling permit No. 684234 to Petitioner for a truck bearing registration (tag) number 94618CG. Three days later, on June 24, 1985, a state police officer stopped a vehicle owned and operated by Fayette which was carrying an overweight load. The truck, which had an assigned registration (tag) number 86737CG, instead bore registration number 94618CG and displayed special hauling permit No. 684234, the permit previously issued to Petitioner.

On October 18, 1985, following the presentation to the Secretary of Transportation of a petition for order to show cause, the Secretary issued an order to Petitioner and Fayette to show cause why the special hauling privileges of each should not be suspended. After recounting the facts concerning the sale/lease-back arrangement and the incident whereby a Fayette truck displayed a permit and registration issued to Petitioner, the petition alleged that “Anthony was involved in the improper use of special hauling permits for the movement of a vehicle under suspension by the Department, all in violation of Sections 179.3, 179.8, 197.9 [350]*350[sic] and 179.10 of Chapter 179 of department regulations (Oversize and Overweight Loads and Vehicles).”1

Following a hearing on December 17, 1985 before a presiding officer of DOT, the presiding officer issued a proposed report containing findings of fact and ordering that Petitioners special hauling privileges be suspended. The presiding officer found that Petitioner was not responsible for Fayette’s use of the completely unpermitted truck on June 24, 1985. The switching of the registration plate and hauling permit was found to be solely Fayette’s responsibility. However, the presiding officer specifically found that “Anthony Iron and Metal, through one of its partners, was aware that Fayette was subject to a ninety (90) days suspension at No. 002 A.D. 1983 when it entered into the sale and lease-back arrangement on June 7 and that the purpose of this arrangement was to circumvent the effect of the suspension.”2 The proposed report ordered Petitioner’s special hauling privileges suspended for thirty days.3

Petitioner filed exceptions to the proposed report alleging that the finding and conclusion that Petitioner had participated in a scheme to circumvent suspension were both erroneous as a matter of law and not supported by substantial evidence on the record. On July 21, 1986, DOT denied all exceptions and ordered the thirty day suspension. This appeal, followed.

Petitioner contends that DOT’s findings of fact are unsupported by substantial evidence and that DOT’s legal conclusions are erroneous. In addition, Petitioner contends that DOT’s petition for order to show cause [351]*351failed to provide proper notice of the conduct alleged to be unlawful and therefore that its constitutional guarantees of due process of law were violated.

Our scope of review of administrative agency orders is limited to whether the agency committed an error of law or violation of constitutional right, or whether necessary findings of fact are supported by substantial evidence. Estate of McGovern v. State Employees Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

With regard to Petitioners due process challenge, we note that Petitioner failed to raise any allegation of improper notice in its exceptions to the proposed report. Rule 1551 of the Pennsylvania Rules of Appellate Procedure provides that “review of quasi-judicial orders shall be heard by the court. No question shall be heard or considered by the court which was not raised before the government unit.” The rule does list certain exceptions,4 however those exceptions are not applicable to the case at bar. Moreover, “it is an established principle of law that the only issues which the reviewing court may address, on appeal from a final order of an adminis[352]*352trative agency, are those which have been raised in exceptions to the agency.” Teamsters Local Union 77 v. Pennsylvania Labor Relations Board, 89 Pa. Commonwealth Ct. 433, 492 A.2d 782 (1985). Accordingly, Petitioners allegation of improper notice is deemed waived.5

With regard to the merits, Petitioner initially contends that the finding that Petitioner knowingly entered into a sale/lease-back arrangement with Fayette for the purpose of circumventing Fayette’s suspension is not supported by substantial evidence. We disagree.

Michael L. Corn, Vice-President of Operations for Petitioner and Jan Kitka, President of Fayette, both testified at the hearing regarding the circumstances surrounding the sale/lease-back arrangement. Corn testified that as Vice-President of Operations, he had participated in drawing up the lease arrangement with Fayette and that “to the best of my knowledge, Anthony Iron & Metal did not know Fayette was under suspension.”6 Kitka, on the other hand, stated the following under cross-examination:

Q: Well, you mentioned that you had discussed with Ray Anthony[7] about your suspension. Was Mike Corn present at the time?
A: No.
[353]*353Q: In other words, when you talked about the suspension, you were talking to Ray Anthony exclusively? . . .
A: That is correct.
Q: ... [W]hy did that subject come up? Did that have to do with the sale?
A: Yes. Very simply when I first approached Mr. Anthony as to a possible sale, of course, he wanted to know why, and we discussed it just in the normal discussion: Ray, I can’t operate like this. I have to sell olf some equipment, and I know you are in the type of business that this would fit into.

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Bluebook (online)
531 A.2d 90, 109 Pa. Commw. 347, 1987 Pa. Commw. LEXIS 2460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-iron-metal-co-v-commonwealth-pacommwct-1987.