[41 Pa.B. 6499]
[Saturday, December 3, 2011]
[Continued from previous Web Page]
Subchapter D. Forms and guidance documents § 1003.61. Official forms and guidance documents.
Section 1003.61 provides the web address where forms for certain official forms and guidance documents can be obtained.
Subchapter E. Taxicab and limousine division § 1003.71. Definitions.
Section 1003.71 provides the meanings for words and terms as utilized in Subchapter E. A commentator suggested that the term ''TLD'' should be defined earlier in the final-form regulations. We note that the term is now defined as early as § 1001.10.
§ 1003.72. TLD staffing generally.
Section 1003.72 identifies certain staffing positions within the TLD and the general duties associated with those positions.
A commentator suggested that drivers have a designated point of contact at the Authority for communication purposes. We believe that our staff is very open to interaction with all of those who make up the regulated industries. The TLD employs less than 40 people and the appropriate person to whom specific issues should be addressed are already known to most regulated parties, including drivers. In the event the appropriate contact is not known to a driver, TLD staff is capable of assisting the driver with that determination.
§ 1003.73. Adjudication Department.
Section 1003.73 provides for the TLD's Adjudication Department which will be comprised of standing presiding officers and certain staff. One commentator suggested that the standing presiding officers will report to the Director of the TLD, although the subsection (b) clearly provides that the Authority will make those appointments, while the Executive Director may provide for the creation of staff positions. Standing presiding officers will be independent and will not report to the TLD Director or the Authority's Executive Director.
§ 1003.74. Enforcement Department.
Section 1003.74 explains the composition of and purpose for having the Enforcement Department as well as the procedure for appointing the department's manager and a brief description of the manager's role.
§ 1003.75. Office of Trial Counsel.
Section 1003.75 describes the composition of and appointment process for the Office of Trial Counsel, explains the departments that the Office shall counsel and represent, describes the duties and powers of the Office, and explains who shall supervise the Office and how the Office shall be supervised. A typographical error in subsection (b)(3) has been corrected by deleting the word ''a.''
§ 1003.76. Conduct.
Section 1003.76 provides certain rules and guidelines related to the interaction between Trial Counsel, presiding officers and other Authority employees designed to emphasize the need for independence of the presiding officers and separation of the administrative and prosecutorial functions of the Authority. One commentator opined that the regulations do not designate who should appoint presiding officers, although that is provided in § 1003.73, as noted in our response above. A commentator noted that a term is not created for each presiding officer, which is true. Although we note that the Legislature did not create a term of office when it provided for presiding officers (hearing officer) in section 5705 of the act. The commentator also suggested that because the presiding officers will often see the same enforcement staff in various cases that the presiding officer will not be able to be objective. We disagree with the commentator's belief and note that many judges and justices in this Commonwealth see the same law enforcement officers, witnesses and attorneys repeatedly throughout their careers and are able to act objectively. We are confident that presiding officers will as well.
Other commentators have suggested that presiding officers be appointed by persons outside the Authority. The appointment of administrative law judges, hearing officers, presiding officers, referees or other individuals assigned to adjudicate matters is commonly exercised in the administrative law context. We believe the process provided in this chapter adequately addressed the concerns of the commentators as to independence and the separation of administrative, adjudicatory and enforcement functions. In fact this section is taken almost identically from the recently approved Gaming Control Board regulations at 58 Pa. Code § 405a.4, which was promulgated to address this exact issue. We believe these standards are appropriate for these final-form regulations as well. A commentator also suggested that this section permitted in appropriate ex parte communication with a presiding officer. We disagree that the language of this section creates such authorization, either at before Gaming or the Authority. We believe § 1005.185 deals more specifically with this issue and reference the commentator to that section and our response to changes made to the proposed regulation, which we incorporate here.
Chapter 1005. Formal proceedings
Subchapter A. Pleadings
General provisions § 1005.1. Pleadings allowed.
Section 1005.1 establishes the form of pleadings permitted before the Authority. Paragraph (4) has been edited to correct a typographical error which indicated the pleading of a motion and answer in the plural. The terms have been edited to be in the singular form, which is consistent with the balance of the section. The language of this section in the proposed form regulation, along with the edit noted above, has been classified as paragraph (a) in order to address the new subsection (b), which clarifies that pleadings may not be handwritten and to provide guidance as to the size and type of print to be used.
Formal complaints § 1005.11. Formal complaints generally.
Section 1005.11 provides for the filing of formal complaints before the Authority, the manner in which they should be filed and those who may file such complaints. IRRC commented that a typographical error existed in this section represented by the use of the designation of paragraph ''(2)'' twice. That typographical error has been corrected in the final form rulemaking and resulted in the renumbering of the subsequent three paragraphs.
Commentators question the jurisdictional power of the Authority to permit the PUC and Philadelphia law enforcement or licensing officials to have access to the Authority's formal complaint process and suggested limiting language identifying when those entities may initiate such actions. Section 5705(b) of the act specifically permits these other entities to raise these claims before the Authority. Section 1005.11 focuses on the formal complaint process and does not deal with discovery issues as suggested by one commentator.
§ 1005.12. Content of formal complaints.
This section identifies the minimum requirements for the content of a formal complaint. We have amended the supersession language of subsection (d) to include reference to 1 Pa. Code § 35.9 (relating to formal complaints generally).
§ 1005.13. Citation complaints by the Authority.
Section 1005.13 provides for the issuance of formal complaints by the Authority in the form of citations.
(a). Subsection (a) requires that the citation complaint be filed with the Clerk and specifies that information that must be included in the citation in order to permit the respondent the opportunity to prepare a defense. IRRC and another commentator questioned the qualifying term ''unless the circumstances of the violation render the information impracticable to obtain at the time of filing:'' used in this subsection in relation to the information that will be provided on a citation complaint. Citation complaints have been used by the Authority in the regulation of taxicabs and limousines service providers in Philadelphia since 2005 and are similar in content to moving violations.
We believe that citation complaints will include all of the information necessary for the Authority to successfully assert the existence of a violation and, more importantly, for respondents to prepare a proper defense. In most cases these citations will relate to straight forward enforcement actions related to the condition of a vehicle or the actions of a driver or owner. The language questioned by IRRC and other commentators was included in section (a) to clarify that a citation complaint may be issued even if the citation fails to provide every piece of information identified in this subsection. This language is important because most citations are written by Inspectors while patrolling the streets of Philadelphia. In the event a vehicle flees the scene before the Authority obtains the Vehicle Identification Number or the meter number, a citation may nevertheless be issued, although the enforcement action may be weakened by the lack of information.
The Authority will always bear the burden of proof of advancing complaints, the failure to include information complained of will generally do harm to the Authority's ability to meet its burden. We believe we have also addressed the root of IRRC's concern about this language through an amendment made to subsection (b).
(b). Subsection (b) provides that a respondent to a citation complaint need do nothing further than request a hearing in order to deny the averments of the complaint; no answer is required. The citation complaint process is intended to be straight forward and efficient for all parties, leading to the Authority's decision to eliminate the time and costs associated with providing formal answers, although a respondent could certainly file an answer if they wished. However, IRRC and another commentator questioned the wisdom of the limitation of preliminary objections found in this section as well. We agree with these comments and have deleted the prohibition of preliminary objections to citation complaints from this section and § 1005.71(e)(1). We have added a subsection (e) to this part to mirror the supersession language provided for in § 1005.12 regarding formal complaints.
We believe that the information contained in a citation, as provided in this section, will exceed the requirements as to content of an administrative complaint as provided for in GRAPP. See 1 Pa. Code § 35.10, which has been superseded by this section. We further believe that the service options provided for in § 1001.51 will provide due notice to all respondents without need to publish each citation or other complaint in the Pennsylvania Bulletin. While there is a provision of GRAPP that creates a deemed given scenario for notice of complaints published in the Pennsylvania Bulletin, such publication is not required and is unwieldy and slow. See 1 Pa. Code § 5.6. A commentator averred that the PUC initiates all of its formal complaints through publication in the Pennsylvania Bulletin, which is simply not the case.
§ 1005.14. Joinder of formal complaints.
Section 1005.14 describes the circumstances under which multiple complaints may be joined.
§ 1005.15. Satisfaction of formal complaints.
Section 1005.15 explains the procedure that a respondent must follow if the respondent satisfies a complaint.
Petitions § 1005.21. Petitions generally.
Section 1005.21 explains what a petition is and provides an overview of information relating to the filing, format, substance, and service of petitions. A commentator cited this section in regard to general concerns about the ability of taxicab drivers to navigate the procedures of GRAPP and this subpart without assistance. While we have attempted make provide these procedures in as clear a manner as possible, we note that changes to § 1001.22 will also make the involvement of legal interns possible to assist drivers.
§ 1005.22. Petitions for declaratory orders.
Section 1005.22 explains the necessary components of petitions for declaratory orders and the service requirements associated with such petitions.
§ 1005.23. Petitions for issuance, amendment, repeal, or waiver of Authority regulations.
Section 1005.23 provides a process through which a regulation may begin to be issued, amended, repealed or waived. A commentator questioned the implications of this section in terms of further IRRC review of the Authority's taxicab and limousine regulations. The language of this section deals with the procedures related to initiating the regulatory change or addition that will require IRRC's review. The case-by-case waiver of certain regulations is a well-established administrative mechanism. A commentator questioned the accessibility of a petitioner to hearing on the record regarding a waiver petition. Subsection (f) notes that just as with any other action of staff, a negative initial review of a waiver petition is subject to a hearing on the record before a Presiding Officer. The Presiding Officer will then issue a recommended decision as provided in §§ 1005.201—1005.204. Similar language is present in GRAPP at 1 Pa. Code § 35.18 and in the PUC's regulations at 52 Pa. Code § 5.43.
§ 1005.24. Appeals from actions of the staff.
Section 1005.24 provides the process through which actions of the Authority's staff may be appealed. Through this process one may obtain a hearing before a presiding officer as to decisions of staff members. A commentator noted that subsection (d) of the proposed regulation only required assertion of material factual disputes, but that legal disputes may also exist. We agree with the commentator and have an obligation to include legal averments in the petition for appeal.
Intervention § 1005.31. Initiation of intervention.
Section 1005.31 provides a procedure through which a party not directly engaged in a proceeding before the Authority may intervene in that action and identifies under what circumstances such an intervention may occur. A commentator suggested that this section be simplified, apparently to provide a means of intervention on behalf of taxicab drivers in enforcement matters. We have relaxed the manner in which persons may be represented in matters before the Authority in order to address the exact concern of this commentator, as referenced in our response to § 1001.22 (relating to appearance by attorney or certified legal intern), and do not believe an amendment of the nature suggested will be constructive or advance the purpose of the act.
§ 1005.32. Eligibility to intervene.
Section 1005.32 identifies those parties eligible to intervene in a proceeding before the Authority. Subsection (a)(2) has been amended to correct a typographical error by deleting the word ''Commission'' and inserting ''Authority.''
§ 1005.33. Form and content of petitions to intervene.
Section 1005.33 identifies the required content of petitions to intervene filed on behalf of one person and the special requirements that may be associated with petitions to intervene filed on behalf of more than one person.
§ 1005.34. Filing of petitions to intervene.
Section 1005.34 describes the filing procedures for petitions to intervene. The term ''agency'' has been replaced with the more specific ''Authority'' in subsection (a).
§ 1005.35. Notice, service and action on petitions to intervene.
Section 1005.35 provides for the manner in which notice and service of petitions to intervene must be perfected and guidelines on the way such petitions will be reviewed upon filing. Subsection (d) has been amended to replace the term ''agency'' with the more specific ''Authority.'' A commentator questioned the ability of the Authority to supersede GRAPP as provided in subsection (e) of this section, that authority is provided for in 1 Pa. Code § 31.1. A typographical error in the first sentence of subsection (d) has also been corrected by deleting the words ''will be,'' which were without meaning in the sentence.
§ 1005.36. Limitation of participation in hearings.
Section 1005.36 provides that a presiding officer may limit the number of attorneys permitted to cross-examine witness and make arguments when representing two or more petitioners with substantially the same intervening interests.
Answers § 1005.41. Answers to complaints, petitions, motions and other filings requiring a response.
Section 1005.41 provides guidelines for the time within which answers must be filed with the Clerk and the general form of answers. Subsection (b) has been amended to replace the term ''agency'' with the more specific ''Authority.'' A commentator suggested that the Authority only use certified mail when forwarding notices to taxicab drivers because some of those notices have allegedly been forwarded to an incorrect address in the past. We will decline this suggestion and maintain the forms of notice provided for in § 1001.51. We note the continuing obligation of a regulated party to maintain a current address with the Authority to avoid the exact concern expressed by the commentator, as provided for in § 1001.51(d). Another commentator suggested that any default for failing to file an answer be prefaced by another notice of the potential default. We decline this additional notice provision and believe that the initial notice should suffice to advise the responding party of the need to participate in the proceeding. We note the PUC's regulations contain this same language at 52 Pa. Code § 5.61(c).
§ 1005.42. Answers seeking affirmative relief or raising new matter.
Section 1005.42 permits a respondent to a complaint to seek affirmative relief or raise a matter within the jurisdiction of the Authority for consideration in the proceeding. This section provides guidance on the required content of such pleadings. A commentator suggested that this process is duplicative ''of what is already being done by the state'' without further reference. We are unable to discern a meaning to this comment.
§ 1005.43. Replies to answers seeking affirmative relief or new matter.
Section 1005.43 provides the procedure for replying to answers seeking affirmative relief or new matter. A commentator suggested that some taxicab drivers may not understand this procedure. While we recognize that all regulated persons will not possess the ability to navigate the rules and procedures applicable to legal practice before the Authority, we believe this section is worded in a simple and straight forward manner and decline to make alteration.
§ 1005.44. Answers to amendments of pleadings.
Section 1005.44 describes the filing procedure for answers to amendments of pleadings.
§ 1005.45. Answers to petitions to intervene.
Section 1005.45 describes the filing procedure and the service requirements for answers to petitions to intervene and explains when objections may be deemed to have been waived.
Consolidation § 1005.51. Consolidation.
Section 1005.51 describes the process through which a presiding officer may consolidation multiple matter involving the same subject matter into a single proceeding.
Amendment and withdrawal of pleadings § 1005.61. Amendments of pleadings generally.
Section 1005.61 establishes that amendments must comply with the requirements of this chapter and places a time limit on a party's ability to file an amendment.
§ 1005.62. Amendments to conform to the evidence.
Section 1005.62 describes the manner in which issues not raised in the pleadings should be treated under circumstances in which the issues are either objected to or not objected to and the circumstances under which a continuance may be allowed.
§ 1005.63. Directed amendments.
Section 1005.63 describes the circumstances under which parties may be directed to provide an amendment and the requirements placed upon such an amendment.
§ 1005.64. Withdrawal of pleadings in a contested proceeding.
Section 1005.64 describes the circumstances under which a withdrawal of pleadings in a contested proceeding may occur and the procedures associated with such a withdrawal.
Motions § 1005.71. Motions.
Section 1005.71 addresses motion practice issues before the Authority and presiding officers. Consistent with our response to § 1005.13, subsection (e)(1)(i) has been deleted in order to permit preliminary objections to citation complaints. Subparagraphs (ii) and (iii) have been renumbered to account for that deletion.
Subchapter B. Hearings
General § 1005.81. Notice of proceeding; hearing; waiver of hearing.
Section 1005.81 provides for certain notice requirements related to hearings or proceedings before the Authority or a presiding officer. The term ''presiding officer'' was inadvertently not included in subsection (b) which permits a hearing to be concluded in the event that a party fails to file a required pleading or waives the right to a hearing upon the basis of the pleadings or submittals and the studies and recommendations of the staff. That term has been included in this section of the final-form regulation.
§ 1005.82. Scheduling of hearing.
Section 1005.82 provides for the manner in which hearings before the Authority will be scheduled and for certain procedures related to hearings, including the inapplicability of the formal rules of evidence. A typographical error in the second sentence of subsection (a) has been corrected by deleting the word ''in'' which was the sixth word in that sentence. This section represents an adoption by the Authority of a Gaming Control Board regulation found at 52 Pa. Code § 494a.1.
(c). Subsection (c) provides general guidance on procedures related to a hearing; including the fact that technical rules of evidence will not apply. IRRC submitted three questions in relation to this subsection, first, why this language dealing with evidentiary review issues is in the scheduling section. Another commentator believed this subsection was confusing and suggested that it be deleted. We agree and have deleted this subsection. The removal of this subsection addresses IRRC's second question related to the subsection's supersession of 1 Pa. Code § 35.102. IRRC and one other commentator also questioned the legal propriety of the requirement of this subsection that a party to a proceeding must testify if called, even if not of the party's own volition. While we believe this language represents standard practice in administrative settings and does not conflict with any Fourth Amendment protection issue, we have deleted that language as referenced above. Corresponding changes have been made to the suppression language of subsection (c).
§ 1005.83. Notice of nonrulemaking proceedings.
Section 1005.83 explains that the Authority may schedule prehearing conferences and hearings, describes the notice requirements associated with the scheduling of such a hearing, and lays out the consequences associated with a protestant's failure to appear at such a non-rulemaking proceeding.
Hearing conferences § 1005.91. Conferences generally.
Section 1005.91 adopts the procedures employed in GRAPP for prehearing conferences.
Stipulations § 1005.101. Presentation and effect of stipulations.
Section 1005.101 provides stipulation procedures for parties to a proceeding before the Authority or a presiding officer. IRRC commented that the supplementation or suppression of GRAPP represented by this section was confusing, presumably because subsection (c) is referenced as a supplementation of GRAPP, while subsections (a) and (b) are referenced as superseding GRAPP. While this section is an almost word for word reproduction of the PUC's regulation at 52 Pa. Code § 5.234, we will address IRRC's comment by noting that the section supersedes the applicable section of GRAPP.
§ 1005.102. Restrictive amendments to applications for rights issued by the Authority.
Section 1005.102 describes the procedures under which parties may stipulate and under what circumstances restrictive amendments will be binding.
Hearings § 1005.111. Order of procedure.
Section 1005.111 describes the order in which parties will open, close or present evidence under various circumstances.
§ 1005.112. Presentation by parties.
Section 1005.122 provides for the manner in which parties to a proceeding may present evidence and the ability of the presiding officer to limit the taking of evidence upon objection and otherwise.
§ 1005.113. Failure to appear, proceed or maintain order in proceedings.
Section 1005.113 provides procedures applicable in the event that a party to a proceeding fails to appear at a conference or hearing. A typographical error in subsection (a)(3) has been corrected in the final-form regulation by replacing the word ''for'' with ''from.''
Transcript § 1005.121. Transcripts generally.
Section 1005.121 identifies when transcripts of hearings must be taken, what the transcripts must include and that the transcripts are part of the record of the hearing. We have corrected a typographical error in subsection (a) by replacing the word ''reported'' with ''recorded.'' In relation to subsection (a), IRRC questioned when the stenographic reporting would be legally required as noted in the opening of this subsection. We do not believe that IRRC's question is altered by the fact that we have substituted the term ''reported'' for ''recorded.'' In response, we note that 2 Pa.C.S. § 504 (relating to hearing on the record) requires the stenographic recording of all such testimony at adjudicatory hearings.
§ 1005.122. Review of testimony.
Section 1005.122 describes the procedures that must be followed for a party to review testimony that was previously electronically recorded or transcribed.
§ 1005.123. Transcript corrections.
Section 1005.123 describes the circumstances under which corrections may be made to transcripts and the procedures that must be followed in making such corrections.
§ 1005.124. Copies of transcripts.
Section 1005.124 describes the procedures that parties must follow in order to obtain copies of transcripts from the official reporter.
Subchapter C. Interlocutory review § 1005.131. Interlocutory review generally.
Section 1005.131 provides guidance regarding the Authority's policy toward interlocutory review of decisions of presiding officers. Upon review of this language we have determined that the language of GRAPP found at 2 Pa. Code § 35.190 is more in line with our preferred method of addressing this form of review and that section of GRAPP will be adopted here in its entirety. Therefore, the language of the proposed regulation that appeared in subsection (a) has been deleted and replaced with language that adopts § 35.190. An additional sentence has been added to clarify that the Authority's ''agency head'' as used in § 35.190 is the Authority's Board.
One commentator cited this section in reference to a comment related to evidentiary issues and enforcement proceedings involving taxicab drivers. Because this section does not address that issue and because this section has been deleted in favor of the adoption of the parallel provision of GRAPP we believe our answer as provided above is sufficient.
§ 1005.132. Relating to petition for interlocutory Authority review and answer to a material question.
Section 1005.132 in the proposed regulations provided additional guidance and procedures related to the Authority's proposed method of addressing interlocutory appeals of presiding officers decisions. As provided in the explanation of the changes made to § 1005.131, this section is no longer necessary and has need deleted.
§ 1005.133. Relating to Authority action on petition for interlocutory review and answer.
Section 1005.133 in the proposed regulations provided additional guidance and procedure related to the Authority's proposed method of addressing interlocutory appeals of presiding officers. As provided in the explanation of the changes made to § 1005.131, this section is no longer necessary and has been deleted.
Subchapter D. Evidence and witnesses § 1005.141. Admissibility of evidence.
Section 1005.141 provides that the Authority or the presiding officer may rule on the admissibility of evidence. A commentator suggested in a single comment to this section as well as §§ 1005.142 and 1005.143, that it would be inappropriate for the Authority to rule on the admissibility of evidence during hearings and that only a presiding officer may do so. In the context of a hearing, the use of the term Authority or presiding officer applies because a hearing may occur before the Authority as a body or a single presiding officer. It is important to remember that not all hearings relate to enforcement matters. The commentator seems to suggest that the language of these sections may permit the Enforcement Department or another party to a proceeding to rule on the admissibility of evidence, which they clearly may not.
§ 1005.142. Admission of evidence.
Section 1005.142 provides that the Authority or presiding officer will rule upon the admission of evidence into the record of a proceeding.
§ 1005.143. Control of receipt of evidence.
Section 1005.143 permits the person or body presiding over a hearing to control the receipt of evidence. A commentator suggested that this section will violate the due process rights of taxicab drivers without elaboration. We note that this section is almost identical to the PUC's 52 Pa. Code § 5.403, which has been in place for some time. Because we are unable to discern any due process issue associated with this section we decline the commentator's suggestion to delete it.
§ 1005.144. Additional evidence.
Section 1005.144 provides that during a hearing or upon the conclusion of a hearing before the Authority or a presiding officer, the Authority or presiding officer may direct the parties to provide more evidence in the event such evidence is necessary to reach a proper conclusion of the matter. This section is a copy of the PUC's 52 Pa. Code § 5.404, which has been in place for some time.
There will inevitably be times when the Authority or the presiding officer requires additional evidence not available in the existing record during a hearing or after a hearing has concluded. Presiding officers typically intercede on their own behalf and ask additional questions or request additional documentation to assist in understanding the issues presented during a proceeding. This section does not authorize or even mention ex parte communications or efforts to gather information outside of a hearing; therefore, in order to request additional evidence the parties would have to reconvene for an additional hearing, or agree at a hearing to submit such additional information requested. Provisions relating to the limited scope of presiding officer ex parte communications are addressed in § 1005.185.
IRRC and other commentators questioned whether all parties would be able to respond to the additional evidence. Because the evidence is gathered at a hearing in which the parties are participating, the standard rules of procedure will apply and parties will be able to object or provide evidence in support of their respective positions. In order to address IRRC's question as to how this process will work after a hearing has be adjourned, subsection (a) has been amended to clarify that the additional evidence will be gathered at a hearing upon notice to all parties pursuant to § 1001.51. Another commentator suggested placing a time limit on when additional evidence may be submitted, because we believe that such a limitation may work against the process of developing a full and complete record we decline to incorporate that suggestion and note that it is nowhere to be found in the PUC's above referenced regulation.
§ 1005.145. Effect of pleadings.
Section 1005.145 describes the manner in which pleadings may become part of the record of a proceeding.
§ 1005.146. Public documents.
Section 1005.146 provides a means of entering public documents into the record of an Authority proceeding without producing the document or marking it for identification and requires a party that incorporates a document into a pleading to provide that document to an opposing party upon request. A commentator questioned the meaning of the term ''reasonably available to the public'' in subsection (a)(2). This language provides some guidance to the presiding officer as to what documents are truly ''public'' when deciding whether or not to admit them as permitted by this section or not. The language has no relation to Pennsylvania's Right to Know Law.
§ 1005.147. Records of other proceedings.
Section 1005.147 describes the procedures that must be followed if a party wants to have portions of records from other Authority proceedings admitted into evidence.
§ 1005.148. Official and judicial notice of fact.
Section 1005.148 describes the procedures that must be followed when the Authority or presiding officer makes a decision on the basis of an official notice or judicial notice of a material fact not appearing in the evidence in the record.
§ 1005.149. Copies and form of documentary evidence.
Section 1005.149 explains that where documentary evidence is provided, copies are required and lays out the procedures that must be followed in providing such copies.
Witnesses § 1005.151. Oral examination.
Section 1005.151 provides for oral examination of witnesses at hearings and makes provisions for testimony submitted through deposition or expert report. A commentator noted that all parties should have the ability to depose witnesses. This section gives any party the ability to seek authorization from the Authority or the presiding officer to conduct a deposition.
§ 1005.152. Written testimony.
Section 1005.152 provides for procedures to submit non-oral (written) testimony at proceedings. Subsection (f) has been corrected to identify the Clerk as the appropriate office for filing of the required certificate of service.
§ 1005.153. Offers of proof.
Section 1005.153 describes the circumstances under which offers of proof may be made at Authority proceedings and how such proof must be provided.
Subpoenas § 1005.161. Subpoenas.
Section 1005.161 adopts the procedures of GRAPP at 1 Pa. Code § 35.142 related to subpoenas.
§ 1005.162. Depositions.
Section 1005.162 adopts the procedures of GRAPP at 1 Pa. Code §§ 35.145—35.152 in matters related to depositions.
Close of the record § 1005.171. Close of the record.
Section 1005.171 provides that the record of a proceeding will close upon the conclusion of the proceeding unless good cause is shown to open the record.
Subchapter E. Presiding officers § 1005.181. Designation of presiding officer.
Section 1005.181 provides for the designation of a person, or persons, to serve in the capacity of a presiding officer at an Authority proceeding. This language is substantially similar to that used in GRAPP as follows:
When evidence is to be taken in a proceeding, either the agency head or, when designated for that purpose, one or more of its members, examiners or other representative appointed according to law, may preside at the hearing.1 Pa. Code § 35.185.
A commentator suggested that a regulation that permits the Authority or an Authority designated person to act as a presiding officer would be a conflict of interest. However, the designation permitted in this section and GRAPP is the standard method of appointing presiding officers in administrative matters in the Commonwealth. By way of example, both the PUC through 52 Pa. Code § 5.481, and the Gaming Control Board through 58 Pa. Code § 491a.7 have promulgated regulations providing for the same process. The commentator also seems to have raised the same issue as to § 1005.182, although without specific comment. We believe this response applies to each reference by the commentator.
§ 1005.182. Qualifications.
Section 1005.182 identifies the mandatory qualifications an individual must possess in order to act as a presiding officer. Commentators raised concerns about the selection process and potential limitations of due process related to the Authority's use of presiding officers and their qualifications. We incorporate our response to comments to §§ 1001.10 and 1005.181.
§ 1005.183. Disqualification of a presiding officer.
Section 1005.183 provides procedures related to the presiding officer disqualification process. Subsection (e) has been amended to reflect the editing of former § 1005.132 (relating to petition for interlocutory Authority review and answer to a material question) and note the replacement of that section with § 1005.131 (relating to interlocutory review generally).
§ 1005.184. Authority of presiding officer.
Section 1005.184 provides for the general powers of hearing officers related to proceedings. A new subsection (b) has been added to clarify that the presiding officer is authorized to adjudicate each proceeding and each decision of a presiding officer will be considered a recommended decision as provided in § 1005.201, for purposes of further review, except as provided in section 5705(a) of the act. Former subsection (b) has been re-identified as subsection (c) solely to accommodate the addition of the new subsection (b).
§ 1005.185. Restrictions on duties and activities.
Section 1005.185 requires a presiding officer to conduct themselves in a manner consistent with their position and prohibits unauthorized ex parte communications. The language of subsection (b) used in the proposed regulation was based on the PUC regulation 52 Pa. Code § 5.484, but was not identical. In order to address confusion expressed by some commentators regarding the ability of a presiding officer to engage in ex parte communication, we have decided to incorporate the exact language used by the PUC. We believe this will address concerns that the Authority was attempting to create new avenues for such ex parte communication, which was not our intent. It was necessary to change subsection (c) to note that subsections (a) and (b) supersede GRAPP.
§ 1005.186. Manner of conduct of hearings.
Section 1005.186 describes how hearings are to be conducted and explains how a presiding officer may deal with a party's disregard for applicable rules.
§ 1005.187. Unavailability of presiding officer.
Section 1005.187 provides for substitution in the event a presiding officer becomes unavailable.
Subchapter F. Briefs § 1005.191. Content and form of briefs.
Section 1005.191 describes what must be included in a brief, how briefs should be written, and how exhibits should be reproduced.
§ 1005.192. Filing and service of briefs.
Section 1005.192 provides a reference to the section that explains how service of briefs should be made, describes the number of copies of briefs that must be filed, explains what types of briefs may be filed by various parties, provides the deadline for various briefs, and explains how late-filed briefs will be handled.
Subchapter G. Recommended decisions and appeals
Recommended decisions § 1005.201. Recommended decisions generally.
Section 1005.201 describes when recommended decisions will be utilized and explains that this subchapter applies only to proceedings dealing with recommended proceedings.
§ 1005.202. Certification of record without decision.
Section 1005.202 explains when a record can be certified without a decision.
§ 1005.203. Appeal hearings.
Section 1005.203 provides that in the event a matter is before a presiding officer, either upon assignment by the Authority or upon appeal by a party, any hearing conducted in order to develop evidence will be conducted as provided in Subchapter B of Subpart A, which is the standard hearing process. These appeal hearings will be conducted in furtherance of a person's request for review of actions by the staff or upon assignment of the Authority. See § 1005.24. This section does not deal with exceptions filed to decisions of a presiding officer, which is addressed in § 1005.211. A commentator appears to have questioned the propriety of the Authority's further review of actions made by other Authority staff and appears to suggest that a non-Authority office or position should hear these matters. We incorporate our response to § 1005.181 (relating to designation of presiding officer) and note again that the use of agency officials to adjudicate agency matters is a standard administrative practice in the Commonwealth.
§ 1005.204. Briefs and oral argument before presiding officer.
Section 1005.204 provides circumstances in which the disposition of a proceeding does not require a hearing to develop an evidentiary record and when briefs may, instead be used.
Exceptions to recommended decisions § 1005.211. Exceptions to recommended decisions.
Section 1005.211 provides for the filing of exceptions to recommended decisions of presiding officers and the procedure associated with such filings.
(c). Subsection (c) provides guidance on the form and content of exceptions and prohibits the filing of briefs, either in support of or opposing the exceptions. A commentator suggested that the prohibition of the filing of briefs in this context is inconsistent with the authorization for the filing of replies to exceptions found in § 1005.212(a) (relating to replies). A response to a concise exceptions pleading is not the same as a brief in support of the response; therefore, there is no inconsistency.
§ 1005.212. Replies.
Section 1005.212 explains when a party has a right to file a reply to an exception, how long the party has to file it, what form the reply should take, what may be contained in the reply, and how the reply should be written.
§ 1005.213. Final orders and effect of failure to file exceptions.
Section 1005.213 explains how a decision becomes a final order of the Authority.
§ 1005.214. Oral argument before the Authority.
Section 1005.214 explains how a request for oral argument shall be made in different situations. A typographical error in subsection (b) by adding the word ''the'' before the term ''recommended decision.''
§ 1005.215. Withdrawal of appeals.
Section 1005.215 explains that the filing of exceptions to recommended decisions will be deemed to be an appeal, that appeals may be withdrawn, and how a decision is affected by a withdrawal.
Subchapter H. Reopening, reconsideration and rehearing § 1005.221. Reopening prior to a final decision.
Section 1005.221 explains when a party may file a petition to reopen a proceeding, what must be contained in such a petition, how other parties may react to such a petition, and the circumstances under which such a petition will be granted.
§ 1005.222. Petitions for relief.
Section 1005.222 explains how petitions for relief should be formatted and what should be included in such petitions, who must receive copies, the amount of time parties have to file, the amount of time parties have to file answers to such petitions, and how such petitions affect the period for appeal. The word ''agency'' was deleted and replaced with the more specific ''Authority'' in subsection (e) of the final-form regulation.
Subchapter I. Reports of compliance § 1005.231. Reports of compliance.
Section 1005.231 explains that regulated persons required to perform an pursuant to an order of the Authority or a certificate of public convenience or other right must file notice that they have or have not complied and the amount of time parties have to do this.
§ 1005.232. Compliance with orders prescribing rates.
Section 1005.232 explains how regulated persons must comply with orders prescribing rates. A commentator suggested that taxicab drivers should be able to file tariffs. There is no provision in the act for such a filing and we believe that to try and develop such a process may be inconsistent with the act. However, we note that section 5720(c) does permit drivers to petition the Authority to conduct rate investigations in a manner consistent with that section.
Subchapter J. Appeals to court § 1005.241. Notice of taking appeal.
Section 1005.241 explains to whom parties must give notice of appeal of an Authority order.
§ 1005.242. Preparation and certification of records.
Section 1005.242 explains when a record will be certified as complete. A commentator suggested that this language was confusing and might result in the rendering of a decision and order without a closed record. We see no connection between the language of this section and the interpretation of the commentator. This section has been in use by the PUC under the same title for some time and has not caused the concerns suggested by the commentator. See 52 Pa. Code § 5.632.
§ 1005.243. Certification of interlocutory orders.
Section 1005.243 explains that in a party may motion for immediate appeal to the Commonwealth Court, the amount of times parties have to make this motion, when the motion is deemed denied, and cites to the section that governs the procedure for this motion.
Subpart B. Taxicabs
Chapter 1011. General provisions § 1011.1. Purpose.
Section 1011.1 explains that the purpose of this subpart is to establish and prescribe Authority regulations and procedures for taxicab service in Philadelphia.
(Editor's Note: The Legislative Reference Bureau suggested and IRRC agreed that definitions used throughout the entire subpart should only be included in § 1001.10. Duplicate definitions in §§ 1011.2 and 1051.2 have been deleted from this final-form rulemaking.)
§ 1011.2. Definitions.
Section 1011.2 provides definitions primarily applicable to the taxicab subpart of this rulemaking. IRRC commented that each subpart of the final rulemaking should contain a definition section identifying terms used in that section and that the terms should be consistent throughout the rulemaking. We agree with IRRC and have attempted to reduce, as much as practical, the use of definitional language outside of the definition sections. Several terms in this section have been amended and others have been added, including those referenced in our response to § 1027.2 (relating to transferable rights). Other additions or changes to this section are set forth below.
Several terms have been added to this provision in response to a comment by IRRC and as more fully addressed in our response to § 1001.10 (relating to definitions).
''Call or demand service.'' This term has been amended to delete the word ''either'' and the phrase ''or a nonexclusive.'' This correction was necessary in order to make this definition consistent with both the revisions to § 1011.19 (relating to exclusive service) as referenced later in this response and current taxicab service practices in Philadelphia, which permits only exclusive taxicab service. This regulation will maintain the status quo in Philadelphia.
''Common carrier.'' IRRC commented that this term, as defined in this section, is vague and appears unnecessary in light of definitions provided in sections 5701 and 5703(g) of the act. IRRC has indicated that this term inappropriately includes the transportation by rail, water and air and notes that such transportation is outside of the Authority's jurisdiction. We have edited this term to address IRRC's comment and to reference the act instead of the PUC's enabling act.
''Limousine certificate.'' We have added this term to this section to be consistent with our response to comments provided in § 1051.2, which we incorporate here.
''Broker.'' The Authority agrees with IRRC's comment regarding the need to consistently define the term ''broker.'' That definition has been made consistent throughout the final form regulations. The process to become a broker is found at Chapter 1029, which is in this taxicab subpart. Because brokers will be cross trained to handle both taxicab and limousine matters, Subpart C, which deals primarily with limousines, adopts the process in Chapter 1029 when referencing brokers in the limousine subpart. Nevertheless, the definition of ''broker'' in Subpart C will deviate from the definitions in Subparts A and B only in that reference will be made to Chapter 1061 as opposed to Chapter 1029. We believe that minor distinction will not create confusion and will be consistent with the Authority's attempt to simplify the reading of the regulations by providing a clear line of distinction between most taxicab and limousine matters. Because the term broker employs the use of the term ''transferable rights'' that term has been added to definition section 1001.10.
''Sale.'' The term ''sale'' was defined in § 1027.2 of the proposed regulations and will appear in this section of the final-form regulations because it is used in the term ''transferable rights.'' In a comment to § 1027.2, IRRC questioned the meaning of ''securities'' and ''other ownership interests.'' In order to clarify this definition we have adopted the definition of ''securities'' used in the Pennsylvania Securities Act of 1972 (70 P. S. §§ 1-101—1-703), as the Gaming Control Board recently did at 58 Pa. Code § 401a.3. To add further clarity, we have deleted the phrase ''other ownership interests'' from the definition as previously provided in § 1027.2 because we believe the term ''securities'' is sufficient to identify the potential subjects of a sale.
''Transfer fee.'' The term ''transfer fee'' was defined in this section of the proposed rulemaking in a manner consistent with the definition in § 1051.2 (relating to definitions), but differently from the manner in which the term was more precisely defined in § 1027.2. Therefore, ''transfer fee'' has been amended in this section of the final regulation to reflect the definition provided in § 1027.2 of the proposed regulation. That term is now defined consistently throughout the final form rulemaking.
''Key employee.'' IRRC commented as to the term ''key employee'' and noted that the following language was unclear: ''other entity identified by the Authority.'' We agree with IRRC and have deleted that phrase. This term has been amended to clarify that it applies to applicants and regulated persons. We believe this change should eliminate the potential confusion noted by IRRC.
IRRC commented as to the term ''regulated person'' and suggested that the phrase ''this part, or an order of the Authority'' be deleted because reference to the act is sufficient. We agree with IRRC's comment and have made the requested changes. We have also added the term ''or regulated party'' to the defined term to address the alternating use of those common terms in the final form regulations.
''Rights.'' IRRC also questioned the meaning of the phrase ''other authorization'' in the definition of ''rights.'' We have amended this term by deleting that phrase and including the terms ''waiver'' to the identified list of ''rights'' regulated parties may hold. The term ''broker'' has been deleted because it unnecessarily narrowed the scope of the term ''registration.'' For example, large vehicle's will be registered with the Authority as provided in § 1053.43. We believe these amendments will address IRRC's concern about the specificity of this term. This definition is consistent throughout the regulations.
''Taxicab'' and ''taxicab service.'' IRRC commented that the definitions of ''taxicab'' and ''taxicab service'' in this section were inconsistent because the definition of ''taxicab'' included the specific wheelchair accessible taxicab classification, but ''taxicab service'' did not. We agree with IRRC's comment and have modified the language in each definition to include medallion taxicab, partial rights taxicabs and ''any other vehicle authorized by the Authority to provide call or demand service.'' This broadened definition will encompass all of the classes of taxicab service authorized in the final rulemaking and will be sufficient to address any new classification of taxicab or taxicab service that may be created through legislation in the future.
''Partial-rights taxicab.'' The partial-rights taxicab concept in Philadelphia is both long established and counterintuitive; therefore, we will provide some background information about this uniquely benefited segment of the Philadelphia taxicab industry. The term ''partial-rights taxicab'' has evolved over the decades and is the term employed within the Philadelphia taxicab community for service referenced by the act as ''limited service''17 or taxicabs ''authorized to provide service to designated areas within cities of the first class on a non-citywide basis . . .''18 . We will use the term ''partial-rights taxicab'' because that is the term used by the regulated community. The Authority has also used that term in its regulations and orders since 2005.
A partial-rights taxicab operates through a certificate of public convenience issued by the PUC for suburban Philadelphia taxicab service. For varying reasons over time, the PUC permitted a handful of suburban taxicab companies19 to provide service within certain designated geographical boundaries of Philadelphia, in addition to their suburban areas. These taxicabs may provide unlimited service within their respective geographical area of the Philadelphia and may provide service throughout Philadelphia, provided one point of the trip begins or ends in the partial-rights area. Partial-rights taxicabs may be seen providing service everyday throughout all of Philadelphia. Therefore, these taxicabs unquestionably impact the public's perception of the Philadelphia taxicab industry.
By way of example, because of the overlapping nature of the jurisdictions of medallion and partial-rights taxicabs, an individual can walk out of the front door of their Philadelphia home in the morning and hail a taxicab for a ride to work in Philadelphia without knowing if the taxicab is a partial-rights taxicab or a medallion taxicab. It is certainly reasonable to presume that this scenario plays out every day. If different regulatory agencies regulated these Philadelphia taxicabs based solely on the medallion/partial rights distinction, as some have suggested, passengers will not know which rules or rates will be followed by the taxicab that responds to the hail. Nor will passengers be certain as to which regulating agency to report complaints about taxicab service. A regulatory scheme of that nature would needlessly confuse the public and be patently inconsistent with the Authority's mandate to develop ''a clean, safe, reliable, and well regulated taxicab and limousine industry'' in Philadelphia. 53 Pa.C.S. § 5701.1(2).
We also note that partial-rights taxicabs are operated in Philadelphia without the need to purchase a medallion, which creates a significant economic advantage. It is worth noting that the purchase of 1 medallion entitles the owner to operate one taxicab, whereas a partial-rights taxicab certificate holder may operate an unlimited number of taxicabs in Philadelphia. Indeed, one partial-rights taxicab company operates approximately 100 taxicabs in Philadelphia.
In its Comment No. 5 to the proposed regulations, IRRC requested clarification of the Authority's power to regulate partial-rights taxicabs in Philadelphia; other commentators have raised this same issue. Until 2005, the PUC regulated all taxicab service in Pennsylvania, including medallion and partial-rights taxicabs in Philadelphia, when regulatory oversight over all taxicab service in Philadelphia was transferred to the Authority from the PUC pursuant to the act. Notice of Transfer of Regulatory Oversight, 35 Pa.B. 2087, 2189 (April 9, 2005).
Pennsylvania legislative history and statutes clearly establish that the Authority's taxicab and limousine regulations apply to both medallion and non-medallion taxicab carriers in the City of Philadelphia.20 In 2009, the Pennsylvania Supreme Court concluded the act was intended to be a comprehensive system of regulation for taxicabs and limousines operating in Philadelphia. See Blount v. Philadelphia Parking Authority, 965 A.2d 226, 232 (Pa. 2009) (''The Authority is responsible for the high volume Philadelphia area while the PUC is responsible for the remaining parts of the Commonwealth''). See also, 53 Pa.C.S. §§ 5505(d)(23) (the Authority is empowered ''to act as an independent administrative commission for the regulation of taxicabs and limousine service'' in Philadelphia), 5505(d)(24) (the Authority is empowered ''to investigate and examine the condition and management of any entity providing taxicab and limousine service'' in Philadelphia), 5701 through 5745.
Through the act, the Legislature took care to add a number of new phrases which demonstrate its intent that the Authority should regulate both medallion and non-medallion (partial-rights) taxicabs. For instance, the Legislature changed section 5703(a) of the act from, ''Every rate made, demanded or received by a taxicab or limousine service shall be just and reasonable and in conformity with regulations or orders of the authority'' to ''Every rate made, for authority-certified taxicab, limousine or medallion taxicab service shall be just and reasonable and in conformity with regulations or orders of the authority.'' In subsequent subsections of section 5703, the Legislature did not repeat these modifying phrases. If the Legislature did not intend for the reader to read taxicab as including both authority-certified and medallion taxicabs, then it would not make sense for the Legislature to add this designation at the beginning of section 5703 and not distinguish elsewhere in the same section which type of service the subsection regulates.
Another change which reflects the Legislature's intent to include the Authority's regulation of partial-rights taxicab service and its ability is the addition of ''and no more than five certificates of public convenience for limited service'' to section 5711(c)(2) which now states, ''The authority is authorized to issue a maximum of 1,600 certificates of public convenience for taxicab service and no more than five certificates of public convenience for limited service in any city of the first class.'' Finally, the Authority's power to regulate partial-rights taxicabs was clearly established when the Legislature added the phrase ''through the authority'' to the end of the first sentence of section 5714(d)(2) which originally read, ''Carriers currently authorized to provide service to designated areas within cities of the first class on a non-citywide basis shall retain their authorization.'' These changes indicate the Legislature's intent to treat the term ''taxicab'' as if it applies to both partial-rights and medallion taxicabs.21
Section 5714(a) of the act provides that taxicabs authorized to provide ''citywide'' service in Philadelphia must have a certificate of public convenience and medallion issued by the Authority.22 This Authority certification requirement also clearly applies to non-medallion taxicabs23 which are authorized to provide call or demand service on a limited or non-citywide basis in Philadelphia. See e.g., 53 Pa.C.S. §§ 5711(c) (issuance of ''limited service'' certificates of public convenience), 5714(d)(2) (''service to designated areas within cities of the first class on a non-citywide basis non-city service'').
By its terms, Chapter 57 of Title 53 applies to both medallion and non-medallion taxicabs. Consistent with the definition of ''taxicab'' provided in section 5701, various sections of Chapter 57 refer to the operation of ''taxicabs'' in Philadelphia without restricting their effect to medallion taxicabs or to non-medallion taxicabs. See e.g., 53 Pa.C.S. §§ 5701.1 (legislative findings), 5702 (advisory committee), 5703(b) to (h) (concerning rates and tariffs), 5704 (power to require insurance), 5705(b) (commencement of complaints), 5706 (driver certification program), 5705 (budget and fees), 5708 (fund), 5711(c)(1) (issuance of certificate of public convenience), 5711(c)(4) (temporary certificates of public convenience), 5711(c)(5) (transfers of certificates of public convenience), 5714(a) (vehicle age requirement), 5714(b) (protective barrier), 5714(c) (vehicles authorized to service Philadelphia), and 5714(g) (impoundment of vehicles). Thus, when read as a whole, Chapter 57 demonstrates that the term ''taxicab'' is intended to include both (a) medallion taxicabs and (b) non-medallion taxicabs.
Under Chapter 57, the Authority ''may prescribe such rules and regulations as it deems necessary to govern the regulation of taxicabs within'' Philadelphia. 53 Pa.C.S. § 5722 (emphasis added). Because they are ''taxicabs'' as defined by Chapter 57, both medallion taxicabs and partial-rights taxicabs are the proper subject of the Authority's regulations. In order to achieve our legislative mandate, the Authority's regulations clearly must include the inspection of vehicles and vehicle safety and appearance requirements. See 53 Pa.C.S. § 5701.1(2) (wherein the General Assembly directs the Authority to focus on the ''development of a clean, safe, reliable and well-regulated taxicab and limousine industry'' in Philadelphia).
It should also be recognized that the PUC has expressed its intention (consistent with the act) to transfer regulatory oversight of partial-rights taxicabs to the Authority. In 2005, the PUC and the Authority entered into an agreement to effectuate the transfer of regulatory oversight, as required by Section 22 of the act (which provides that the PUC and the Authority are empowered to resolve by mutual agreement any jurisdictional issues associated with the transfer). This Jurisdictional Agreement provides, in the relevant part, as follows:
Currently, there are carriers authorized to provide taxicab service to designated areas within Philadelphia on a non-city wide basis. Section 11 of Act 94 provides that the PPA has jurisdiction over these carrier's operations within Philadelphia. These carriers also hold authority from the Commission to serve designated areas outside Philadelphia. The Commission and the PPA agree that service provided under dual authority to/from points within the PPA authorized area (in Philadelphia) to/from points within the Commission authorized area (outside Philadelphia), will be regulated by the PPA.See Jurisdictional Agreement Pursuant to Act 94 of 2005, 35 Pa.B. 1649, 1737 at ¶ 2 (concerning partial authority taxicabs) (March 12, 2005). In the jurisdictional agreement ''PPA'' is identified as an acronym for Philadelphia Parking Authority.
In its Comment No. 5, IRRC also sought the Authority's response to the assertions of some partial-rights taxicab companies that they are ''unfairly'' subject to the dual regulation of both the Authority and the PUC.24 The act requires dual regulation of taxicab and limousine certificate holders who wish to provide service both between points in Philadelphia and between point in the Commonwealth, but outside of Philadelphia. Section 5714(d)(1) identifies the limited service rights in Philadelphia of taxicabs that are only certificated by the PUC. Section 5741(a.3) identifies the limited service rights in Philadelphia of limousines that are only certificated by the PUC.25 In the event those PUC certificate holders wish to provide service in Philadelphia, they need to obtain the Authority's approval. See 53 Pa.C.S. §§ 5714(a) and 5741(a). In other words, they must submit to a level of dual regulation.26 As referenced above, the Authority's mandate in the act is to develop ''a clean, safe, reliable, and well regulated taxicab and limousine industry'' in Philadelphia. 53 Pa.C.S. § 5701.1(2). We are constrained by our statutory obligations to implement the regulations we believe will advance this mandate, regardless of the rules and regulations of other government agencies.
Partial-rights taxicab certificate holders are free to self-designate taxicabs as Authority or PUC only, in which case those taxicabs would not be subject to dual regulatory requirement. However, most partial-rights taxicab certificate holders opt to cross-designate their taxicabs to maximize the economic benefit of being able to operate inside and outside of Philadelphia. To the extent partial-rights taxicab companies choose to provide service within Philadelphia, they must adhere to the Authority's regulations and standards applicable to Philadelphia taxicab service. We do not believe this is an unfair requirement, nor is it inconsistent with the act.
In its Comment No. 5, IRRC also noted the assertion of a partial-rights taxicab certificate holder that the Authority is powerless to revoke or cancel partial-rights taxicab certificates. We disagree and incorporate here our response to this issue provided in § 1011.3(b).
In its Comment No. 5, IRRC also noted the assertion of a partial-rights taxicab certificate holder that the Authority may not allocate expenses between medallion and partial-rights taxicab carriers. As we have noted above, the act defines the term ''taxicab'' in a manner that encompasses both medallion and partial-rights taxicabs. Section 5707 of the act establishes the procedures related to the creation of annual budgets and fee schedules by the Authority. Section 5707 is silent as to any distinction between medallion taxicabs and partial-rights taxicabs. More noteworthy is the complete lack of that distinction in section 5708(a) of the act, which creates a ''taxicab account'' and a ''limousine account'' for purposes of maintaining funds delivered to or collected by the Authority in relation to those distinct service providers. As noted above, the Legislature evidenced an ability to distinguish between medallion taxicabs and partial-rights taxicab in the act. However, in terms of developing budgets, establishing fees, and allocating and spending revenue, the act does not make that distinction and instead uses the defined term ''taxicabs.''
The act clearly does not anticipate a need to allocate between medallion taxicab and partial-rights taxicab service, nor do we. In the eyes of the public these services are identical. Although the scope of service that they can provide in Philadelphia is different, the service itself is the same and is largely treated the same by the act. We believe that our ability to regulate all of the taxicab service in Philadelphia is crucial to obtaining the goals established by the Legislature and that any requirement to separate funds based on medallion or partial-rights service would needlessly complicate an already challenging regulatory landscape.
A commentator noted the definition of partial-rights taxicab and suggested that it is not expansive enough to cover the true meaning of those few service providers authorized to operate that type of service. We disagree. The definition of this term directly references sections 5711(c)(2) and 5714(d)(2) of the act, which specifically addresses the Authority's power to regulate partial rights taxicabs and which sets forth parameters of this ''non-citywide'' taxicab service.
A commentator also suggested that the Authority has limited the service area rights of any partial-rights taxicab company; however, that is not the case and we have not been directed to any provision of the proposed regulations that may have caused that result.
''Wheelchair accessible taxicab.'' This definition has been deleted in the final-form regulation because it is no longer used in the regulations. The original purpose of defining this type of vehicle had been to encourage the use of these vehicles through the relaxing of proposed taxicab age and mileage limitations. The Democratic Chairperson of the House Urban Affairs Committee and other commentators also noted the lack of an adequate incentive to taxicab owners to use wheelchair accessible taxicabs. However, as result of the changes requested by most commentators to §§ 1017.3 and 1017.4, there is no room under the statutory vehicle age cap for any type of age exemption incentive for wheelchair accessible taxicabs.
While we understand that a very proactive medallion owner is aggressively planning to address this very issue in regard to its substantial fleet of taxicabs, we are dissatisfied with the failure of most of the taxicab market in Philadelphia to address this need on its own, despite the very large gains in medallion values over the past several years. There is no evidence that medallion owners have applied any portion of that unprecedented gain in medallion equity to benefit taxicab service in Philadelphia or any other public need, including those of the disabled community.
In 1991 the average medallion price was $17,023.20; by 2004 that average price rose to only $60,342.10. Since the Authority assumed regulatory control of medallion taxicabs in 2005 the price of medallions has increased beyond the $300,000 mark. Many medallion owners have simply cashed in those profits through the sale of their medallions, while others permit that equity to sit unused. This, despite the fact that the medallion program was developed to provide medallion owners with the ''opportunity to upgrade and improve the operations of taxicabs.'' 53 Pa.C.S. § 5712. Many of those medallion owners now look to the Authority and assert that our failure to provide an ''adequate'' incentive to them is the reason for the lack of wheelchair accessible taxicabs in Philadelphia.
This is a complex issue and the Authority will pursue a separate rulemaking process dedicated to this subject. We will also look to the Legislature for authorization to issue new medallions or other certificates of public convenience for dedicated wheelchair accessible taxicab use.
A typographical error was corrected in the definition of the term ''Manager of Enforcement'' by deleting the word ''named'' and correcting the contact email address by adding the letter ''a.'' It was also necessary to correct a typographical error in the email address for the Manager of Administration by adding the same letter ''a.'' These email address corrections were also made in § 1051.2.
§ 1011.3. Annual rights renewal process.
Section 1001.3 provides the process through which the Authority will annually review the status of specified rights, review the renewing person's continuing eligibility to hold the rights and process assessment and renewal fees in conjunction with § 1011.4 (relating to annual assessments and renewal fees). For example, if the state issued driver's license of a taxicab driver is in a suspended or revoked status or if a driver or owner has been convicted of a felony in the last year, the renewing party may be denied the requested renewal. Failure to timely participate in the renewal process may lead to enforcement actions.
IRRC noted the comment of one commentator suggesting that the Authority issue a notice to drivers 90 days before the driver's certificate is under review. We agree that a notice of this nature may be of assistance in certain situations and will consider including it in our standard operating procedures. We will consider adjustments to future budgets that will be necessary to fund a process of tracking and mailing notices to thousands of drivers throughout the year. We do expect all regulated parties to remain aware of the status of their rights on their own, particularly when the expiration date is printed on the license and the license is carried and displayed for public review by the driver every day. Similarly we note the comment of the Democratic Chairperson of the House Urban Affairs Committee suggesting the designation of an ombudsman to serve as a primary point of contact between the regulated industry and the Authority. While we do not have a position budgeted specifically for this purpose, one of the primary goals of the Director of the TLD is to maintain an open-door policy and continually meet with different segments of the regulated industries to address concerns. While we do believe that the Director has served that goal well since 2005, he will redouble his efforts to achieve that goal and make certain that all regulated persons understand that they have a voice in the Authority's regulatory process.
(a). Subsection (a) provides the dates that the Authority will consider rights expired for failing to complete the annual renewal process provided for in this section. Commentators questioned propriety of the term ''expire'' in this section. The Authority employs the term ''expire'' to identify rights that have failed to comply with annual renewal or assessment requirements of the act or the regulations by an appointed time. This term has been in use in this context in Philadelphia since 2005 and is understood by the regulated industries. This section does not declare a certificate invalid or forever lost to the certificate holder upon ''expiration.'' Although, as noted above, failure to timely participate in the annual review process or to pay annual assessments and renewal fees as required by § 1011.4 may result in enforcement actions. Through the enforcement process a certificate could be subject to penalties, including, but not limited to, being placed out of service. We believe the use of the term expire is appropriate. We also note that the act requires the Pennsylvania Department of Transportation to confirm that a certificate of public convenience has not been ''revoked or has not expired[.]'' before registering any taxicab. 75 Pa.C.S. § 1305(b) (emphasis added). Clearly, the Legislature understands that certificates are capable of expiring.
We also believe the term ''renewal'' as used in this subsection is appropriate and easy to understand. The term does not implicitly or actually cause any substantive deprivation of rights. This annual process of filing documents, conducting reviews of the status of rights and paying annual fees in order to remain in compliance with the act and the Authority's regulations in common throughout regulatory circles and can reasonably be referred to as a renewal. We decline to change this commonly understood term, which has also been in use in Philadelphia without issue for 8 fiscal years.
(a)(1). IRRC questioned why certificates expire on June 30 of each year and the reasonableness of this deadline. This requirement does not apply to drivers.
The Authority's fiscal year for its taxicab and limousine division begins on July 1 of each year. While a temporary increase in review activity among Authority staff will occur, we believe that the value of having all certificate holders recertified before the occurrence of a new fiscal year represents an orderly, efficient and easily anticipated regulatory process. This process has worked well in Philadelphia for the last six years. Certificates are spread among hundreds of persons; therefore, while any renewal process will require some effort by the parties affected, the Authority's staff bears the burden of this increased level of filings.
(a)(2). Subsection (a)(2) provides that a taxicab driver's certificate will expire 1 year from that date it is issued or renewed. We incorporate our response regarding the reason for this annual expiration provided in our response to comments to (c)(3)(iv) below. A typographical error has been corrected in this subsection by changing the word ''expired'' to ''expire.''
(a)(4). Subsection (a)(4) sets a default expiration date for rights not specifically identified in this section, including rights issued through a waiver. The default expiration only applies if a specific expiration date is not set in the Authority order authorizing the rights. IRRC submitted several comments in relation to the need for this provision and manner in which it will be implemented. In order to address IRRC's concern we will delete this subsection and set forth expiration dates and renewal procedures in waiver orders, when deemed necessary.
(b). Subsection (b) provides that expired rights will be placed out of service by the Authority, through the enforcement mechanism provided for in § 1003.32 (relating to out of service designation). In order to be consistent with our comments in subsection (a) above we have removed the words ''and cancelled'' from paragraph (1).
In its Comment No. 5, IRRC noted that some commentators have questioned the power of the Authority to cancel or revoke certificates of public convenience issued to non-medallion taxicabs for violations of the act or the Authority's regulations. In this regard non-medallion taxicab certificate holders are no different than holders of other rights issued by the Authority. Non-medallion taxicabs are expressly required to obtain a certificate of public convenience granted by the Authority as a prerequisite to operations in Philadelphia. See 53 Pa.C.S. §§ 5711(c)(2), 5714(d)(2). The certificates of public convenience issued by the Authority to non-medallion taxicabs are not permanent rights. They are a licensing right, like all other certificates of public convenience issued by the Authority. See 53 Pa.C.S. §§ 5706, 5713(b), 5741.1. See, e.g., Paradise v. Pennsylvania Public Utility Commission, 132 A.2d 754 (Pa. Super. 1957); Highway Express Lines, Inc. v. Pa. P.U.C., 169 A.2d 798 (Pa. Super. 1961).
The Authority has broad authority to affect the legislative intent, and is empowered, not only to amend, but even to revoke or cancel certificates of public convenience to operate a taxicab previously granted by the Authority. See, e.g., 53 Pa.C.S. §§ 5505(17), 5505(23), 5505(24), 5706, 5711, 5741.1; Insurance Federation of Pennsylvania, Inc. v. Department of Insurance, 889 A.2d 550 (Pa. 2005); Snyder v. Public Utility Commission, 144 A.2d 468, 470 (Pa. Super. 1958). It follows that so long as an agency retains jurisdiction over a controversy, it may revise its adjudications. See Pa.R.A.P. 1701(b) (authority of a trial court or agency after appeal). Under Section 5711(c), a certificate of public convenience to provide taxicab service within Philadelphia shall be granted by order of the Authority—if the Authority finds or determines that the applicant is capable of providing dependable taxicab service to the public according to the rules and regulations of the Authority. 53 Pa.C.S. § 5711(c)(1). The Authority has the inherent power to amend, modify revoke or suspend its prior orders. See, e.g., Day v. Public Service Commission, 167 A. 565 (Pa. 1933) (a privilege to approve implies the power to revoke has been recognized in other jurisdictions); Office of Disciplinary Counsel v. Czmus, 889 A.2d 1197 (Pa. 2005) (inherent power to revoke a license granted in the first place). In other words, the Authority has full power to amend, revoke or cancel a certificate granted, as it has to grant it, upon due cause being shown.
The comments suggest that once a certificate of public convenience is granted by the Authority to a non-medallion taxicab certificate holder, such a right becomes a vested property interest of the taxicab company and therefore, inviolate. This is contrary to the nature of the certificate of public convenience which is regarded as a privilege held and not a right. It is axiomatic that a certificate of public convenience is not grounded in contract or property rights, but grounded in the privilege afforded to the enterprise pursuant to legislative delegation to this Authority. See, e.g., Pennsylvania Public Utility Commission v. Zanella Transit, Inc., 417 A.2d 860, 861 (Pa. Cmwlth. 1980) (''a certificate of public convenience is a privilege, not a contract or a property interest under which the holder acquires vested rights.''). It is also contrary to the statutory provisions in Chapter 57 relative to the Authority's broad discretion to conditionally grant certificates of public convenience. See, e.g., 53 Pa.C.S. §§ 5706, 5711(c)(1), 5711(c)(6), 5741, 5741.1.
The General Assembly did not create a property interest in the certificate of public convenience issued by the Authority to non-medallion taxicabs certificates. Nor did the General Assembly confer a right upon non-medallion taxicab certificate holders not to have their certificate cancelled or revoked by the Authority for due cause. Therefore, it is reasonable to conclude that the General Assembly intended for non-medallion taxicab certificates to be treated the same as certificates issued to medallion taxicabs. That is, that they are a licensing right. Further, the position of the commentator does not consider that the same statutory authority which confers upon the Authority the power to grant a certificate of public convenience in the first instance, further confers power upon the Authority to rescind and/or amend certificates. The power to rescind or amend, unlike the power to grant a certificate, is not linked to the need for any affirmative act on the part of the certificate holder. See, e.g., Day v. Public Service Commission, 167 A. 565 (Pa. 1933) (a driver's taxicab certificate of convenience was properly revoked for violations by the driver because the certificate did not vest an indefeasible property right in the driver and could be revoked by administrative procedures). Also, a certificate of public convenience may be considered abandoned upon proper showing. 53 Pa.C.S. § 5711(c)(3); See also, Borough of Media v. Pennsylvania Public Utility Commission, 419 A.2d 215 (Pa. Cmwlth. 1980), affirmed, 456 A.2d 540 (Pa. 1983).
The Authority's decision to revoke or cancel a certificate of public convenience would constitute an ''adjudication'' for purposes of the Administrative Agency Law because it would impact the ''privileges'' of the holder of the certificate. See, e.g., 2 Pa.C.S. § 101 (definition of adjudication), 45 P. S. § 1102 (same). See also Pennsylvania Game Commission v. Marich, 666 A.2d 253, 257 (Pa. 1995) (requirements of due process are not limited to the revocation of professional licenses); MEC Pennsylvania Racing v. Pennsylvania State Horse Racing Commission, 827 A.2d 580 (Pa. Cmwlth. 2003) (a license is a valuable privilege and may not be suspended or revoked without due process).
(c)(1). Subsection (c)(1) requires rights renewal forms to be filed with The Director of the TLD. In order to be more specific, this subsection has been changed in the final form regulation to direct that renewal forms be submitted to the Manager of Administration. A commentator suggested that the forms employed by the Authority be made part of the final form regulations. Because the inclusion of all forms in the final form regulations would require a rulemaking to make even the most modest of changes, we decline the commentator's suggestion and will retain the flexibility to adjust the forms as necessary and appropriate.
(c)(2). Subsection (c)(2) identifies certain renewal requirements and forms applicable to the different types of service providers subject to the act. IRRC questioned the implication of the phrase ''order of the Authority.'' In order to remove any confusion we have deleted that phrase from the final-form regulation.
(c)(3)(iv). Subsection (c)(3)(iv) requires individuals holding taxicab driver's certificates to file the required renewal form 60 days before the driver's certificate is scheduled to expire. IRRC and other commentators commented that a window of time prior to the expiration should be provided for drivers to file the renewal form, as opposed to a certain day. We agree with IRRC and have adopted its recommended language, which now requires the filing of the driver's certificate renewal form between 90 and 60 days before the expiration date printed on the taxicab driver's certificate. The Democratic Chairperson of the House Urban Affairs Committee and other commentators suggested a taxicab driver's certificate should last for 2 years, instead of 1 year. This renewal period has been 1 year since 2005 in Philadelphia and is understood and anticipated by the regulated parties. We decline to extend the expiration period for driver's certificates to 2 years, or more, as suggested by some commentators because we have found that far too many serious violations applicable to drivers (such criminal convictions and state driver's license suspensions) occur during the course of 1 year, which would not have been discovered by the Authority were it not for the annual renewal requirement. Reasonable procedures such as this annual renewal requirement assist in ensuring that taxicabs and limousines are operated by individuals who are capable of providing safe transportation services to the public. The continuance of that procedure is crucial to achieving our legislative mandate as provided in section 5701.1(2) of the act.
(d). Subsection (d) identifies reasons the Authority will consider a renewal of rights denied, in which case the rights would be considered ''expired'' and subject to enforcement actions and the regulated party would have full access to administrative hearings and appeals to contest this action of staff. In some cases, this renewal process will reveal that the holder of rights may no longer legally do so, in which case a staff denial would be issued and the regulated party will have the right to a hearing on the record as provided in § 1005.24 (relating to appeals from actions of staff). A commentator suggested that the Authority does not have the power to ''renew'' certificates of public convenience. We incorporate our response to subsection (a) above and note that the annual renewal process for certificate holders is reasonable and proper.
(e). Subsection (e) requires those holding rights that have been suspended to complete the renewal process outlined in this section, despite the fact that the rights may be in a suspended status at the time they are scheduled to expire. This requirement is counterintuitive, but necessary. The suspension period for rights is generally established through Authority order following an enforcement action, for that reason the terms of suspensions all vary. This section will assure that on the date the suspension period ends the subject rights will be in a current status and be capable of immediate operation without need to submit to some irregular renewal date.
IRRC and commentators questioned the application of ''good cause'' such as medical problems to this subsection. Because this subsection does not direct suspension or even set criteria for suspension we do not believe language eliminating the basis for such an enforcement action is necessary. Other commentators suggested that rights will be immediately and forever lost merely by failing to file annual renewal documents on time. This is not so. In the event any regulated party fails to complete the annual renewal process an enforcement action may be initiated for the failure to do so. That enforcement action incorporates all of the due process rights associated with the administrative hearing process. We incorporate our response above to questions regarding the Authority's power to order a cancellation, revocation, or suspension of rights issued by the Authority through the act.
(f). Subsection (f) was added to address IRRC's questioned about the impact of the June 30 deadline upon a party who may have been issued a new certificate only a month before the renewal deadline. We agree with IRRC's concern and have added this subsection which provides that a certificate or broker registration will not be subject to the renewal requirements of this section during the calendar year in which it is first issued. The addition of this section has necessitated the inclusion of exception language in subsections (a)(1) and (a)(3) in the final-form regulations.
§ 1011.4. Annual assessments and renewal fees.
Section 1011.4 provides procedures related to the payment of annual fees, in some cases referenced as ''assessments,'' which are included in the Authority's fee schedule. The fee schedule is developed to fund the Authority's estimated annual operational costs as required by section 5707(b) of the act. Under that section the budget and fee schedule of the Authority are subject to annual review by the Appropriations Committees of the House of Representatives and the Senate.
IRRC noted that some commentators have questioned the difference in the way the Authority and the PUC collect fees from regulated parties in order to support the regulatory functions of their respective agencies. Based on those comments, IRRC requested that the Authority explain why there appears to be an increased fiscal impact between Authority and PUC regulations. Preliminarily, through section 5707(b) the Legislature reserved to itself the power to disapprove the fees the Authority charges the regulated industries on an annual basis. This regulation does not establish fees. For those reasons the propriety of fees charged by the Authority is not an issue for this rulemaking.
For purposes of background, the act effectively transferred the regulation of the Philadelphia taxicab and limousine industry from the PUC to the Authority. In doing so, the General Assembly recognized that, at the time of passage, tourists and residents in Philadelphia were not receiving adequate service from the Philadelphia taxicab and limousine industry. Pennsylvania House Legislative Journal, June 15, 2004, at 1122. The General Assembly believed that the PUC, which is a large agency charged with the oversight of complex and diverse state-wide regulatory duties, did not adequately focus on overseeing the regulations dealing with taxicabs and limousines in Philadelphia to make sure that they were clean, safe, accessible and reliable. Id at 1122—1124; 53 Pa.C.S. § 5701.1. The Legislature found that local oversight, which occurs in most major cities, was the answer to improving taxicab and limousine service in the City of Philadelphia. Id. That local regulatory oversight was placed in the Authority. Id.
In passing the act, the General Assembly directed the Authority to upgrade and improve the operations of taxicabs and limousines in Philadelphia. The taxicab and limousine industry has always been heavily regulated. Regulations cover the number and condition of taxis, industry structure, service, quality and prices. Customers using taxicabs and limousines expect fair rates and adequate service. Since 2005, the Authority has successfully worked to improve service through focused and efficient oversight and more specific and demanding regulations. The Authority has aggressively removed many illegal service providers, resulting in an increased customer base for certificated taxicabs and limousines. The Authority's enhanced regulations have improved the quality of taxicab and limousine service in Philadelphia, which will also drive more customers to use taxicabs and limousines in Philadelphia. The Authority continually strives to achieve the goal of the Legislature to contribute to the ''promotion, attraction, stimulation, development and expansion of business, industry, commerce and tourism in this Commonwealth through the development of a clean, safe, reliable and well-regulated taxicab and limousine industry.'' See 53 Pa.C.S. § 5701.1(2).
To develop and maintain a well-regulated taxicab and limousine industry, the PPA's Taxicab and Limousine Division (''TLD'') has a small full-time staff that focuses on the Philadelphia taxicab and limousine industry. This full time staff is reasonable and necessary to fulfill the PPA's statutory obligations under the act. In contrast, the PUC primarily enforced the provisions of Chapter 24 of the Public Utility Code (relating to medallion taxicabs in first class cities) in conjunction with the Philadelphia police department. 66 Pa.C.S. § 2413 (repealed). See Act of April 4, 1990, P. L. 93, No. 21, at § 2. In fact, the PUC was required to enter into contracts with the Philadelphia police department to provide for continuous enforcement of Chapter 24. Id. These contracts ended when the PUC was no longer authorized to enforce Chapter 24.
The method of charging fees outlined by this section is identical to that which has been in place since 2005. The fiscal year 2012 fee schedule will be the first fee schedule applicable to the final form regulations and it includes no fee increases over the fiscal year 2011 fee schedule. The effects of specific regulations cannot always be predicted with certainty. However, any reasonable cost calculation of this section, or the entire body of regulations, must to be contrasted with the current actual costs incurred by the regulated industry, which is what we have done. When it passed the act, the Legislature demanded a new and more focused form of taxicab and limousine regulation in Philadelphia, and over the past 8 fiscal years the Authority's regulations have achieved that goal, these final form regulations merely continue that same level of focus and demand for high quality service to the public.
A commentator suggested that the Authority may not impose assessments upon the regulated industries. The ''assessment'' referenced by this section, and every other section of the final form regulations, referenced the annual fee schedule item associated with certain rights. Simply put, the Authority's ''assessment'' is an annual fee, which is subject to annual review by the Appropriations Committees of the House of Representatives and the Senate. While the term ''assessment'' is a holdover from the PUC's regulations and one that the regulated industries are familiar with, the Authority's assessment is not derived from the same process as the PUC assessment. These differences are derived from the varying statutory structures of the Authority and the PUC. The Authority's costs can only be spread among the members of its regulated industries. Each year the Authority must estimate its total expenditures for the fiscal year beginning the following July 1 and submit this estimate to the General Assembly for approval. In preparing its estimate of total expenditures, the Authority is required to estimate the annual assessment or fee to be collected during the applicable fiscal year from each regulated party. Upon approval by the General Assembly the estimated expenditures and the fee schedule become the approved amounts for the Authority. Thus, the Authority's taxicab certificate assessment fee is an annual fee established along with every other fee the Authority seeks to collect in a fiscal year in furtherance of implementing the act as provided in section 5707(b) of the act.
The commenter fails to recognize, however, that medallion taxicabs were never subject to the PUC assessment process. 66 Pa.C.S. § 510(b)(5) (repealed). See Act of April 4, 1990, P. L. 93, No. 21, at § 1. For medallion taxicabs, the PUC used a similar procedure to establish an annual fee schedule. 66 Pa.C.S. §§ 2413, 2414 (repealed); See Act of April 4, 1990, P. L. 93, No. 21, at § 2. The PUC required medallion taxicabs to pay an annual fee in lieu of the assessment set forth in section 510 of the Public Utility Code. 66 Pa.C.S. § 2406 (repealed); See Act of April 4, 1990, P. L. 93, No. 21, at § 2. In contrast, non-medallion taxicabs and limousines were subject to the PUC's assessment procedure. That procedure spread the PUC's costs for regulating these entities across the transportation companies in the other 66 counties. Under this process, the PUC submits a budget for the approval of the Governor and the General Assembly. But, this budget process does not include a fee schedule process. In a separate process, after the approval of the PUC's budget, every public utility is required to file with the PUC a statement showing its gross intrastate operating revenues for the preceding calendar year. Based upon the assessment reports filed with the PUC (or PUC estimates in lieu thereof), and using a statutorily prescribed formula, the PUC prepares and sends each public utility, by certified mail, a notice of assessment setting forth the sum due. This assessment is done on the basis of the proportion the individual public utility's gross intrastate operating revenue for the preceding calendar year bears to the gross intrastate operating revenue for the same year of all the individual public utilities comprising its group of utilities furnishing the same kind of service. 66 Pa.C.S. § 510.
Thus, the PUC's annual assessment for non-medallion taxicabs and limousines is based on a company's gross intrastate operating revenues for the preceding calendar year, and is not approved by the General Assembly. In passing the act, the General Assembly determined that only the fee schedule method would be used by the Authority, and that revenues generated by taxicabs or limousines while operating under the jurisdiction of the Authority are exempt from assessment by the PUC. Act of July 16, 2004, P. L. 69, No. 94, § 22(4.1).
(d). Assessment payment by appointment. Subsection (d) provides an optional procedure through which taxicab certificate holders may pay their annual assessment fee, as published in the fee schedule, through two installment payments, as opposed to a one-time payment. This subsection is intended to ease the financial impact of paying the taxicab certificate assessment fee in one lump sum payment. The assessment payment by appointment option has been in place in Philadelphia for 8 fiscal years.
IRRC and other commentators questioned why a meeting was necessary to make an installment assessment fee payment. IRRC also questioned the costs to the Authority and the regulated industries of this bi-annual process because it involves a scheduled meeting with TLD staff. There is no question that the Authority's costs associated with processing all of the renewal and payment documentation would be reduced if we required a single annual payment of the taxicab certificate assessment fee. However, from our experience over the past 8 fiscal years we believe an installment payment process is preferred by taxicab certificate holders. This section creates an option for the installment payment process. The lump sum payment option is always available.
This installment payment option benefits the public because it involves a quick up-to-date review of the legal status of the certificate holder at the time of each payment, as opposed to the single review that occurs at the time rights are renewed as provided in § 1011.3. For example, if the owner of a certificate is no longer able to hold the certificate due to a recent criminal conviction, that status may be detected by the Authority more rapidly through this process. The face-to-face meeting permits the Authority to quickly review the certificate holder's records and status in terms of compliance with the act. Questions can be easily and quickly answered because the parties are all present. This is a very important component of this installment payment process because it assures that ensures payments are made on time and open issues related to the certificate are fully resolved. It is also important to know that many individuals own or operate several entities that own certificates; therefore, one meeting will often resolve many outstanding assessment fee issues.
IRRC questioned the costs associated with the assessment payment by appointment option. In terms of the fiscal impact of appearing at a meeting to pay an assessment fee, this subsection represents an easing of any burden upon the time and expense associated with the current process since only two installment meetings are required. On the other side of the equation, some commentators have suggested that there should be four appointments each year. However, we believe we have managed to strike a balance between limiting costs of both the Authority and regulated parties, while protecting the public interest through this optional biannual installment payment process.
IRRC questioned why one person may be required to attend a meeting with Authority staff pursuant to this subsection, while another may not. No taxicab certificate holder will be constrained to participate in this installment payment option, but when the option is selected by the certificate holder, a meeting with the Authority's staff is required in all cases for the reasons provided above.
A commentator noted that this subsection does not involve a mechanism for reaching a mutually agreeable time for the installment payment appointment. We agree and have added a notice requirement, including 10 days advanced notice and language permitting the Director to adjust appointments to mutually agreeable times. We have also amended this subsection to clarify that it applies only to the payment of annual assessments through the installment payment process option. This section does not provide that the Director will set appointments who seek to make the annual assessment payment on time in one lump sum. The last sentence of this subsection required the payment of a fee for failing to appear as scheduled for an installment assessment payment. That provision has been deleted. Either the fee schedule or an enforcement action, or both, are the appropriate places for advancing this issue.
(e) Eligibility. Subsection (e) establishes certain eligibility criteria for certificate holders seeking the optional assessment payment by appointment option. The assessment payment by appointment option has been in place in Philadelphia for 8 fiscal years and is used by every taxicab certificate holder. We anticipate that the payment by appointment option will be preferred by most certificate holders. However, in the past several certificate holders have abused the installment payment option by failing to appear at scheduled meetings and by repeatedly paying assessment fees late. Therefore, this subsection provides that if over the preceding five years a certificate holder has made a late assessment fee payment, failed to begin and complete the annual renewal process or been subject to suspension or cancellation of rights, the certificate holder will be ineligible to participate in the assessment fee payment by appointment option, we believe these low thresholds for eligibility are entirely appropriate and the best interest of the Authority and the regulated community. Wasted time spent pursuing regulated parties who do not submit a document or failed to make annual payments on time negatively affects all parties. Commentators have suggested that this subsection is onerous and punitive or unclear and inappropriate. We believe that this subsection is in fact straight forward and easy to understand and is fair and reasonable. However, we will compromise and reduce the period of ineligibility from five years to two years in the final-form regulation. In any event, the potential costs associated with the installment option will be completely eliminated for those determined to be ineligible for this voluntary process.
(g). Subsection (g) provides that brokers must pay the annual renewal fee established in the Authority's fee schedule at the time the broker registration is renewed as provided in § 1011.3(c)(3)(v). A typographical error was corrected by adding the letter ''d'' to the word ''provide.''
(h). Late assessment or renewal fee payments. Subsection (h) of the proposed regulations identified when assessment payments by appointment or renewal fees are due and noted that the result of failing to pay the necessary fee identified in the fee schedule will be immediate initiation of the out of service designation as provided in § 1003.32. A commentator suggested that this suspension process is inappropriate and not in the public interest. The purpose of the out of service designation is to cause the late paying regulated party to come into compliance with the act and the regulations. The out of service process contains due process protections, while simultaneously permitting the Authority to address the failure of a regulated party to pay a fee deemed approved by the Legislature when it is due. These fees are announced well in advance of their due date and every regulated party has clear notice of that due date, and § 1003.32 includes clear rights to hearings and places the burden of proof upon the Authority.
(h)(1). Subsection (h)(1) of the proposed regulation set a new requirement that payments of assessment or renewal fees be completed by 3 p.m. on the day they are due. This requirement is mirrored in § 1051.4(d)(1) where it drew comments about its impact upon an individual who may be standing in line to make a payment at 3 p.m. Because this requirement has created some confusion, as expressed by some commentators and IRRC, it has been deleted in this section and in § 1051.4. We believe the guidance that this provision provides as to the due dates for payments of assessments and renewal fees is sufficient without reference to a precise hour. This deletion has necessitated the reidentification of the following paragraphs.
(h)(2). Subsection (h)(2), previously (h)(3) of the proposed regulation, has been amended to clarify its purpose. We have this subsection by removing the mandatory out of service designation. Instead, the discretion to initiate that process will be with the Enforcement Department. This provision clarifies that the Authority will immediately initiate proceedings to place any right out of service in the event the associated assessment or renewal fee payment is late, as we referenced in general response to comments to this section above. A typographical error was corrected in this subsection by deleting the word ''in.''
We incorporate our response to comments to § 1001.11 regarding filing deadlines. A comment by the United Taxi Workers Alliance suggested that there should be a window of time to make renewal payments, we incorporate our response to § 1011.3(c)(3)(iv) above in which we note that a three month window of time for payment by taxicab drivers has been created in the final-form regulation.
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17 53 Pa.C.S. § 5711(c)(2).
18 53 Pa.C.S. § 5714(d)(2).
19 The act authorizes the Authority to continue no more than five partial-rights taxicab certificates and prohibits the expansion of those existing certificates or the creation of new ones. 53 Pa.C.S. § 5711(c)(2).
20 The City of Philadelphia (''Philadelphia'' or ''City'') is the only city of the first class in the Commonwealth. See Philadelphia Ent. & Dev. v. City of Philadelphia, 939 A.2d 290, 292 (Pa. 2007).
21 Indeed section 5701 of the act defines ''taxicab'' as follows: ''[a] motor vehicle designed for carrying no more than eight passengers, exclusive of the driver, on a call or demand basis and used for the transportation of persons for compensation.'' This definition unequivocally encompasses both medallion taxicabs and partial-rights taxicabs.
22 Section 5714(d)(1) of the act identifies what taxicab service may be provided in Philadelphia without a certificate of public convenience issued by the Authority. Under that subsection, a PUC-certificated taxicab may transport persons to Philadelphia. 53 Pa.C.S. § 5714(d)(1)(i). Once in Philadelphia, such PUC-certificated taxicabs can only transport persons in Philadelphia to a destination outside of Philadelphia. 53 Pa.C.S. § 5714(d)(1)(ii). And their ability to transport outside of Philadelphia is further limited to the situations where a request for such transportation is received by call to its radio dispatch service, as opposed to a street hail. Id.
23 Non-medallion taxicabs are also known as ''partial rights'' or ''partial authority'' taxicabs. See Germantown Cab Co., v. Philadelphia Parking Authority, 993 A.2d 933, 936, at n. 6 (Pa. Commw. Ct. 2010), appeal granted, 14 A.3d 821, 2011 Pa. LEXIS 425 (Pa. 2011); Jurisdictional Agreement Pursuant to act 94 of 2004, 35 Pa.B. 1649, 1737 (March 12, 2005).
24 This analysis also applies to dual regulation of certain PUC certificated limousines.
25 Indeed, the Legislature intentionally eliminated the ability of limousines to pick up customers at Philadelphia airports, train stations and hotels even if the service destination point is outside Philadelphia. See 53 Pa.C.S. § 5741(a.3). This is a significant departure from standard common carrier geographical service area limitations, which generally permit a certificated taxicab or limousine to provide service so long as either the point of origin or destination (or both) is within the carrier's approved service area. By prohibiting PUC limousine and airport shuttle service providers from accessing customers at Philadelphia's airports, train stations and hotels, the Legislature clearly anticipated that those service providers would obtain Authority authorization to continue to provide that service.
26 The act specifically exempts revenue generated through Philadelphia taxicab and limousine service from assessment by the PUC. See Section 22(4.1) of the act.
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