Maggiano v. Pennsylvania State Board of Vehicle Manufacturers, Dealers, & Salespersons

659 A.2d 1071, 1995 Pa. Commw. LEXIS 253
CourtCommonwealth Court of Pennsylvania
DecidedMay 25, 1995
StatusPublished
Cited by10 cases

This text of 659 A.2d 1071 (Maggiano v. Pennsylvania State Board of Vehicle Manufacturers, Dealers, & Salespersons) 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.

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Maggiano v. Pennsylvania State Board of Vehicle Manufacturers, Dealers, & Salespersons, 659 A.2d 1071, 1995 Pa. Commw. LEXIS 253 (Pa. Ct. App. 1995).

Opinion

RODGERS, Senior Judge.

Thomas Joseph Maggiano (Petitioner) petitions for review of an order of the State Board of Vehicle Manufacturers, Dealers, and Salespersons (Board) that levied a civil penalty in the amount of $2,800.00 against Petitioner for violation of Section 5(a) of the Board of Vehicles Act (Act), Act of December 22, P.L. 306, as amended, 63 P.S. § 818.5(a).1 We affirm.

On July 9, 1991, an order to show cause was filed, alleging that Petitioner sold at least fifteen motor vehicles in 1989 and 1990 and, thus, violated the Act in that he engaged in the business of vehicle dealer without proper licensure. Petitioner denied the allegation that he violated the Act, contending that any sales of motor vehicles were done in his capacity as a vehicle salesperson or as a casual sale in connection with his automotive garage business.

A hearing was held on December 12, 1991, at which time the Commonwealth’s prosecuting attorney entered documents evidencing Petitioner’s prior dealer’s license, which expired in 1981, Petitioner’s active license as a vehicle salesperson for Gallagher Motors2 and the title histories of the vehicles at issue. The title histories showed that, from September, 1989 through December, 1989, Petitioner had sold six vehicles and, from January, 1990 through July, 1990, he had sold eight vehicles. The Board set forth findings of fact based on the information provided in the above mentioned documents. Then Petitioner testified on his own behalf and from his testimony the Board made the following findings of fact:

5. During 1989 and 1990, Maggiano operated an auto repair garage at least five [1073]*1073days a week. (Notes of Testimony (NT) at 13).
6. During 1989 and 1990, Maggiano attended the Carriage Trade Auto Auction (Carriage Trade) every week. (NT 45).
7. During 1989 and 1990, Maggiano would take orders from customers and purchase vehicles for them at Carriage Trade. (NT 48).
8. Maggiano performed repairs on the vehicles he obtained at Carriage Trade before he resold the vehicles to customers. (NT at 44).
9. Maggiano did not take title to any of the vehicles he purchased at Carnage Trade and resold to his customers. (NT at 52).
10. Maggiano did not pay sales tax on any vehicles he purchased at Carnage Trade for resale to his customers during 1989 and 1990. (NT at 45).
11. Maggiano used dealer plates belonging to Gallagher Motors to transport vehicles which he purchased on his own behalf. (NT at 50).

(Board’s decision, pp. 3-4.)

In the discussion section of its decision, the Board reviewed Petitioner’s actions, believing these actions place Petitioner within the definition of a “dealer” under the Act.3 The Board noted that Petitioner did not dispute or object to the documentary evidence, but contended that, because he did not spend a substantial amount of his time purchasing, repairing and reselling the vehicles at issue, he did not fall within the purview of the Act’s definition of “dealer.” The Board also noted that Petitioner’s contention that he only spent an hour or two per vehicle in regard to this endeavor is belied by his testimony concerning time spent attending the auto auction each week and the repairs he made to each vehicle. The Board also discussed Petitioner’s actions in not taking title to or paying sales tax on the vehicles, which the Board believed were actions “indicative of an individual engaged in a profit-making enterprise, not someone who is making the occasional purchase of an automobile for their personal use.” (Board’s decision, p. 7.) Based on Petitioner’s experience, his having had a dealer’s license in the past and his present salesperson’s license, the Board concluded that Petitioner was deliberately attempting to circumvent the requirements of the Act; thus, the Board deemed the $200.00 per vehicle penalty appropriate under the circumstances.

On appeal to this Court,4 Petitioner first argues that the Board misinterpreted and disregarded the express statutory language that requires an individual to devote a substantial portion of his time engaged in the business as an automobile dealer to be deemed a dealer and, therefore, be required to comply with the licensure procedures. Petitioner cites various portions of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991, in an attempt to show that the Board incorrectly interpreted the word “substantial” as it relates to Petitioner’s activities. Petitioner also cites the ordinary meaning of the word “substantial,” contending that the legislature meant that more than a fraction or scintilla of time must be devoted to dealer type activities and that Petitioner’s activities here were less than that.

In response, the Board cites Alpha Auto Sales v. Department of State, Bureau of Professional and Occupational Affairs, 537 Pa. 353, 644 A.2d 153 (1994), a recent Supreme Court case that interprets the term “new vehicle” as used in the Act at issue here. In Alpha, the court stated:

The proper place to begin the appropriate inquiry is not, however, with the dictionary but with due deference to the views of the [1074]*1074regulatory agency directly involved in administering the statute in question. We have long held that the ‘contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed, is entitled to great weight and should not be disregarded or overturned except for cogent reasons and unless it is clear that such construction is erroneous.’ Federal Deposit Insurance Corp. v. Board of Finance and Review, 368 Pa. 463, 471, 84 A.2d 495, 499 (1951). The instant Commonwealth Court opinion itself recognizes that ‘an administrative agency’s expert interpretation of a statute for which it has enforcement responsibility is entitled to great deference and will not be reversed unless clearly erroneous.’ Mormak v. Unemployment Compensation Board of Review, 135 Pa.Commonwealth Ct. 232, 237, 579 A.2d 1383, 1385-86 (1990).

Alpha, 537 Pa. at 357, 644 A.2d at 155.

Following Alpha, our focus must center on the Board’s interpretation of the Act and its application to Petitioner; the Board’s decision cannot be overturned unless clearly erroneous.

Petitioner asserts that an individual is entitled to sell five vehicles in a twelve month period without violating the provisions of the Act, citing 49 Pa.Code § 19.1. With this argument, Petitioner attempts to show that the Act recognizes that the casual sale of vehicles does not trigger the licensing provisions of the Act.

49 Pa.Code § 19.1 states:

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659 A.2d 1071, 1995 Pa. Commw. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maggiano-v-pennsylvania-state-board-of-vehicle-manufacturers-dealers-pacommwct-1995.