Moore v. Commonwealth of Pa.

• Decision Date: 04 May 2011
• Citation: 19 A.3d 1200
• Court: Pennsylvania Commonwealth Court
• Parties: Gregory MOORE, t/a Jack Rabbit Auto Tags & License Service, Petitionersv.COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent.

19 A.3d 1200

Gregory MOORE, t/a Jack Rabbit Auto Tags & License Service, Petitioners

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 4, 2011.Decided May 4, 2011.

Barbara A. Darkes, Harrisburg, for petitioners.Jody L. King, Assistant Counsel, Harrisburg, for respondent.BEFORE: COHN JUBELIRER, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.OPINION BY Judge SIMPSON.

In this second appeal, Gregory Moore, t/a Jack Rabbit Auto Tags and License Service (Business), asks whether the Secretary of the Department of Transportation (Secretary) erred in denying its exceptions and affirming the Department of Transportation's (PennDOT) termination of Business' agreements to provide agent and messenger services on PennDOT's behalf.¹ Business argues the Secretary erred in affirming termination of the agreements on the basis of “good cause shown.” It also asserts the Secretary abused his discretion in upholding termination of the agreements as the penalties for violating the good cause provisions. Discerning no error, we affirm.

The background to this matter is more fully set forth in our prior opinion in Moore v. Department of Transportation, 989 A.2d 49 (Pa.Cmwlth.2009) ( Moore I ) (single judge opinion by Pellegrini, J.). Relevant for present purposes, Business entered into an Agent Services Agreement (Agent Agreement) and a Messenger Services Agreement (Messenger Agreement) (collectively, Agreements) with PennDOT for an initial term of three years each. The Agreements were later renewed by letter agreement of the parties. The Agreements allowed Business to provide agent and messenger services, including processing and issuing vehicle registration documents and delivering and obtaining documents.

PennDOT personnel and members of the Pennsylvania State Police conducted an on-site audit at Business' Norristown location in May 2009. The audit revealed 10 transactions in which Business accepted invalid drivers' licenses as proof of identification. The audit also revealed that two of Business' employees who were responsible for processing the problematic records, did not attend agent training as required by the Agreements. Business does not dispute these underlying facts.

After the audit, PennDOT notified Business of the termination of its Agreements. PennDOT based the termination on violations of Paragraph 30(1) of the Agent Agreement and Paragraph 28(1) of the Messenger Agreement regarding fraudulent acts, including fraudulent record keeping. PennDOT alleged Business' use of invalid drivers' licenses in the processing of title documents created fraudulent records.

PennDOT subsequently held a meeting for Business to present mitigating circumstances. After the meeting, PennDOT notified Business that the orders for termination would stand without modification. Certified Record (C.R.), Item # 10, Notes of Testimony (N.T.), 01/22/10, at 40–42; Ex. E. Business filed a petition for review to this Court.

Ultimately, by agreement of the parties, we remanded to PennDOT for it to conduct an administrative hearing and issue an adjudication. Business, represented by counsel, participated in an administrative hearing.

After hearing, the hearing officer affirmed the termination of the Agreements. In his proposed report, the hearing officer determined Business' conduct did not constitute fraudulent record keeping. Nevertheless, he upheld termination of the Agreements based on a provision in each Agreement that allows termination for “good cause shown.” The issue of whether Business violated the good cause provisions was not discussed at the hearing or cited in PennDOT's original notices of termination. Business filed exceptions to the hearing officer's proposed report.

Thereafter, the Secretary issued an order reopening the record and remanding to the hearing officer, in part, to allow the parties to present evidence on the issue of whether good cause existed for termination of the Agreements. Business offered no additional evidence.

Ultimately, the Secretary denied Business' exceptions and upheld termination of the Agreements. Business now petitions for review to this Court,² seeking reversal of the Secretary's order and reinstatement of the Agreements.

I.

Business first argues the Secretary erred in affirming termination of the Agreements on the basis of good cause. Business asserts the issue of good cause was not properly before the Secretary because PennDOT never amended its notices of termination to include that issue, and the hearing officer raised the issue of good cause on his own motion. In so doing, Business asserts, the hearing officer violated its right to due process. Business claims the hearing officer raised the issue of good cause in his report because of his bias against it. Business argues it lacked sufficient time to prepare a defense for a ground other than fraud, the only basis included in the notices.

According to Business, after the Secretary ordered reopening of the record, it had no obligation to present additional evidence or argument because good cause remained absent from the pleadings and thus, still remained an issue raised solely by the hearing officer and agency head. See Mifflin Cnty. Sch. Dist. v. Special Educ. Due Process Appeals Bd., 800 A.2d 1010 (Pa.Cmwlth.2002) (tribunal cannot raise and decide issues sua sponte without a factual record to support its determination); White v. State Bd. of Optometry, 682 A.2d 404 (Pa.Cmwlth.1996) (broadening an issue by amendment entitles the party subject to the proceedings to notice of the amendment in the same manner originally given); see also 1 Pa.Code § 35.49 (amendments to conform to the evidence); 1 Pa.Code § 35.50 (directed amendments). Business also asserts by participating in a subsequent proceeding, it impliedly risked consenting to an amendment to include good cause. As such, Business contends it was justified in not presenting evidence or argument during the remand proceedings.

Business cites numerous cases in which Pennsylvania appellate courts reversed a trial court's decision where the trial court raised on its own motion an issue or defense on a party's behalf. See MacGregor v. Mediq, Inc., 395 Pa.Super. 221, 576 A.2d 1123 (1990) (ordering remand where trial court sustained defendant's preliminary objections based on a defense not raised by defendant); Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985) (ordering remand where trial court dismissed claim against defendant on a basis not raised by defendant); Matter of Slavonic Literary Ass'n, 62 Pa.Cmwlth. 546, 436 A.2d 1257 (1981) (remanding to trial court after trial court reversed an order of Liquor Control Board for lack of prosecution without a motion or notice to either party); Edward M. v. O'Neill, 291 Pa.Super. 531, 436 A.2d 628 (1981) (finding error in lower court's issuance of an injunction sua sponte after denial of class certification); see also Commonwealth v. Pachipko, 450 Pa.Super. 677, 677 A.2d 1247 (1996) (disapproving of trial court's conduct in granting defendant's petition for habeas corpus based on an issue not raised by either party). For the reasons that follow, we disagree.

This Court previously recognized the valuable private interests represented by PennDOT's agent and messenger agreements, which are in the nature of licenses. As such, the Agreements may not be revoked without due process. Moore I.

Due process is a flexible concept and imposes only such safeguards warranted by the situation. D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 712 (Pa.Cmwlth.2010). Although notice is essential to due process, due process notice requirements are non-technical. Pa. Bankers Ass'n v. Dep't of Banking, 981 A.2d 975 (Pa.Cmwlth.2009). Adequate notice for purposes of procedural due process consists of, at a minimum, a sufficient listing and explanation of the charges. Dunn v. Dep't of Transp., Bureau of Driver Licensing, 819 A.2d 189 (Pa.Cmwlth.2003). The meaningful opportunity to be heard requirement of procedural due process entails an appropriate hearing. Dep't of Transp., Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996). In assessing an alleged denial of procedural due process, demonstrable prejudice is a key factor. D.Z.

Here, based on Business' assertions that the hearing officer improperly invoked the good cause provisions of the Agreements on his own motion, the Secretary issued an order reopening the record to afford the parties an opportunity to present evidence on this issue. The Secretary's order states:

AND NOW, this 15th day of June, 2010, on consideration of the Exceptions of [Business], it is hereby ordered that the record is reopened as to the following questions:

(1) Is the agency head's discretion limited to adjudicating whether the action taken by the staff (termination of the agreements) is supported on the grounds asserted by the staff (fraudulent acts)?

(2) Is there “good cause” for terminating the agreements as recommended by the hearing officer?

The hearing officer shall promptly conduct any further proceedings necessary to fully address these questions and, within 60 days, the Administrative Docket Clerk shall forward to me the record of any additional evidence and/or argument submitted by the participants.

Sec'y Order, 06/15/10 (emphasis added).

Business' arguments that the hearing officer violated its right to due process by deciding the case on the issue of good cause ignore this order from the Secretary, which reopened the record on this very issue. Even if the hearing officer erroneously decided the case based on the good cause provisions, any defect was cured when the Secretary ordered reopening of the record and invited Business to participate in a subsequent hearing and present evidence or argument on the issue of good cause. See Izzi v. Workers' Comp. Appeal Bd. (Century Graphics,...