Opinion
No. 951 C.D. 2013
01-23-2014
Thomas A. Thorpe, Appellant v. Bureau of Administrative Adjudication
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Thomas Thorpe (Thorpe) representing himself, seeks review of an order of the Court of Common Pleas of Philadelphia County (trial court) denying his appeal from an order of the City of Philadelphia's Bureau of Administrative Adjudication (BAA) finding him liable for 12 parking tickets. Thorpe assigns various errors and raises constitutional issues related to the issuance of the tickets, to the BAA's appeal hearing process and to the trial court's denial of his discovery requests. For the reasons that follow, we affirm.
I. Background
From December 2010 to September 2011, Thorpe received 12 parking tickets in the City of Philadelphia (City). Thorpe's parking violations included five tickets for parking over a two-hour time limit (fines: four at $36 each and one for $26), three tickets for expired meters (fines: $36 each), one ticket for parking in a handicap space (fine: $301), two tickets for double parking (fines: $76 and $51) and one ticket for blocking a highway (fine: $76). In December 2011, Thorpe challenged these tickets before a BAA hearing examiner, who found him liable for all the citations. Thorpe's fines and penalties totaled $1,067.00. See Certified Record (C.R.) at Item #2 (BAA Documents).
BAA Regulations provide that a parking violation shall be dismissed if the challenger demonstrates to the satisfaction of hearing examiner that: (i) the violation charged did not occur; (ii) the challenger was neither the owner nor the operator of the vehicle; (iii) the vehicle was stolen, the theft was reported to the police, and the vehicle was not recovered; (iv) the vehicle was sold prior to the violation and the change of ownership reported to the appropriate agency; (v) the parking meter was inoperable or operating improperly; (vi) the parking control device or sign was missing or improperly placed; (vii) the registered owner is a lessor engaged in the business of renting vehicles and provided proper identification of the driver at the time of the violation; (ix) the ticket was paid in full; and (x) "any other valid defense, proven by a preponderance of the evidence, that justifies dismissal of the violation." BAA Regulations at §§5.02(e)(i)-(x) (emphasis added).
Thorpe appealed. At the appeal hearing, Thorpe did not contest that he committed 11 of the 12 violations, but offered various justifications for his conduct. He testified he could not move his vehicle at times because of illness. However, Thorpe did not present any medical evidence in support of his claims of incapacity. Thorpe admitted he double parked and blocked a roadway to unload landscaping materials from his vehicle to his residence. Thorpe also believed he could temporarily park in a handicapped spot with his flashers on. The BAA did not accept Thorpe's reasons for the parking violations, including his claims of inability to move his vehicle due to illness, as valid defenses justifying dismissal of the charged violations. See BAA Regulations §5.02(e)(x). Following the appeal hearing, the BAA hearing examiner found Thorpe liable for all 12 tickets.
Representing himself, Thorpe appealed to the trial court and raised several constitutional issues. On review, the trial court rejected Thorpe's constitutional arguments and denied his appeal. Thorpe appeals.
Where the trial court does not take any additional evidence, our review of the decision of the BAA, a local agency, is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether the procedure before the local agency was contrary to statute, and whether necessary findings of fact were supported by substantial evidence. Kovler v. Bureau of Admin. Adjudication, 6 A.3d 1060 (Pa. Cmwlth. 2010) (citing Section 754 of the Local Agency Law, 2 Pa. C.S. §754).
II. Discussion
A. Local Agency Proceeding
In Blount v. Philadelphia Parking Authority, 600 Pa. 277, 965 A.2d 226 (2009), our Supreme Court recognized the Philadelphia Parking Authority (PPA) is a hybrid regulatory agency with multiple functions at the local and statewide level. The PPA's parking regulations are legislatively enacted by the City. See Chapter 12-2800 of the Philadelphia Code (City Code). The BAA functions as the sole local agency responsible for adjudicating the validity of parking tickets issued in the City.
In reviewing a local agency decision, a reviewing court must accept the credibility determinations of the agency which heard the testimony, evaluated the credibility of the witnesses and served as fact-finder. In re Nevling, 907 A.2d 672 (Pa. Cmwlth. 2006); In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2006). In addition, the reviewing court cannot substitute its judgment for that of the agency. Id. If supported by substantial evidence, the local agency's findings are binding on appeal. Id. With these principles in mind, we review Thorpe's appeal.
B. Illness or Incapacity
In his first issue, Thorpe argues the trial court erred and abused its discretion by rejecting his contention that his bouts of illness or injury precluded him from moving his car and therefore warranted dismissal of those parking tickets. Given his illnesses, Thorpe asserts, his parking in a legal space posed no inconvenience to anyone; thus, the posted time limit should have been considered a mere formality. Thorpe further asserts that fining someone when they are sick and physically unable to move amounts to taking advantage of them or kicking them while they are down. "Kicking, beating, torturing a person when they have been 'knocked down' is the hallmark of slavery, racism, anti-Semitism, every prejudice against ethnicity and religion, and certainly of fascism and totalitarianism; to practice or espouse such degradation, especially in minor incidents ... is an un-American activity." Appellant's Br. at 11-12.
As noted above, in a local agency appeal, where, as here, the trial court took no additional evidence, our standard of review is limited to whether the local agency, not the trial court, erred or abused its discretion. Kovler.
We reject Thorpe's assertion that his illnesses provided a valid defense to his parking violations. First and foremost, Thorpe failed to present any medical evidence corroborating his claims of incapacity. When asked by the trial court if he could obtain a doctor's note establishing his incapacity at the time of his parking violations, Thorpe replied, "I can't afford to go to the doctor, I am too poor." See Supplemental Record, Trial Ct. Hr'g, 5/9/13, Notes of Testimony (N.T.) at 16. As such, Thorpe's illness claims rested solely on his own testimony. The BAA weighed his testimony but ultimately deemed it insufficient to warrant dismissal of any of the tickets.
What is more, in Fullman v. Bureau of Administrative Adjudication, (Pa. Cmwlth., No. 400 C.D. 2013, filed September 25, 2013), 2013 WL 5433750 (unreported), an unreported but persuasive opinion, we upheld a decision rejecting a motorist's assertion that his medical condition warranted the dismissal of his parking citation. In Fullman, the motorist, who possessed a handicapped parking placard, was issued a ticket for parking his vehicle in a no stopping zone after being denied access to a marked handicapped spot by a police cruiser parked in it. The motorist explained that he needed to use the restroom due to his medical condition. He argued the trial court erred or abused its discretion by not considering his medical condition, disability and health sustaining medications. Ultimately, we affirmed the trial court's reasoning that the motorist's inability to park in a handicapped spot at a specific time did not provide him with an unlimited right to park illegally due to his medical condition. Id.
Similarly, in Commonwealth v. Geigley, 650 A.2d 1224 (Pa. Cmwlth. 1994), we rejected a handicapped motorist's argument that the borough's failure to provide him with a reserved spot in front of his residence excused his violation of parking more than three hours in a spot with a two-hour time limit. The motorist argued Section 3354(d)(2) of the Vehicle Code, 75 Pa. C.S. §3354(d)(2), required the borough to erect a sign designated a reserved parking spot for him. Noting the statute provided only that the borough "may" erect such a sign, we reasoned that the statute did not compel the Borough to do so.
We also noted in Geigley that the Vehicle Code permits a handicapped person to park for a period of 60 minutes in excess of the legal parking period permitted by local ordinances. See 75 Pa. C.S. §3354(d)(1). However, the motorist's two violations each exceeded the grace period. As such, the grace provision was not exculpatory.
We find our decisions in Fullman and Geigley instructive here. Thorpe's purported illnesses did not entitle him to either park in a metered spot indefinitely without paying, or to park in a time-limited parking space indefinitely until he felt better. Id. Therefore, we discern no error or abuse of discretion in the BAA's rejection of Thorpe's claims that his illnesses justified dismissal of several of his parking violations.
Nonetheless, Thorpe contends fining him for not moving his car when he was sick violates the Ninth Amendment to the United States Constitution, which provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST. amend. IX. Thorpe's claim lacks merit. The Ninth Amendment is not a source of substantive rights. See, e.g., Perry v. Lackawanna Cnty. Children & Youth Servs., 345 Fed. Appx. 723 (3d Cir. 2009) (Ninth Amendment does not independently provide a source of individual constitutional rights).
Furthermore, we discern no error in the trial court's rejection of Thorpe's absurd argument below that enforcement of parking tickets without regard to the individual's health somehow elevated the City's parking laws to a divine status, in violation of the First Amendment's Establishment of Religion Clause. In its opinion in support of it order, the trial court determined Thorpe's religious freedoms were not violated when PPA officers ticketed him while in ill health. See Tr. Ct., Slip. Op., 7/15/13, at 5-6.
The First Amendment provides in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." U.S. CONST. amend I.
Thorpe also argues that holding him liable for parking violations when he could not move his car due to illness constitutes an act of official oppression in violation of Section 5301 of the Crimes Code, which provides:
A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing his conduct is illegal, he:18 Pa. C.S. §5301. Here, the record lacks any evidence of illegal activity, acts of oppression or constitutional violations by the BAA in finding Thorpe liable for his parking violations. Therefore, Thorpe's reliance on 18 Pa. C.S. §5301 is misplaced.
(1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal property rights; or
(2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.
C. Evidence
In his next three issues, Thorpe essentially contends the BAA hearing examiners abused their discretion by disregarding his testimony and finding him liable for the 12 parking violations. In so doing, Thorpe claims the BAA disregarded his "evidence of denial" and let stand "a present condition of guilty until proven innocent." See Appellant's Br. at 13.
Initially, we note, as part of reorganization by the City of Philadelphia in 1989, City parking violations were transferred from Traffic Court to the Office of the Director of Finance. See O'Neill v. City of Phila., 711 A.2d 544 (Pa. Cmwlth. 1998). "The effect of the 1989 reorganization was to change the nature of parking violations from summary criminal offenses to civil violations." Id. at 545. Consequently, BAA's determination holding Thorpe liable for parking violations did not constitute a criminal conviction.
Further, in Kovler v. Bureau of Administrative Adjudication, 6 A.3d 1060 (Pa. Cmwlth. 2010), we rejected a due process challenge to the BAA's adjudicative procedures based on the fact that the City Code did not require the officers issuing the ticket to appear at the hearing unless the hearing examiner determines the officer's presence is required. In Kovler, we observed that there is no right to confrontation of witnesses in civil cases. Therefore, Thorpe had no right to cross-examine the officers who issued the tickets. Id.
In short, the BAA, in accord with the provisions of Chapter 12-2800 of the City Code, provided Thorpe with two administrative hearings to dispute the validity of the 12 tickets. Thorpe testified at both hearings. The record includes a transcript of the second hearing. See C.R., BAA Appeal Hr'g, 5/16/12, N.T. at 1-9.
At the appeal hearing, Thorpe offered various reasons or explanations for 11 of his 12 parking violations, including inability to move his vehicle because of illness, a lack of viable parking alternatives to load and unload his landscaping materials at his residence, and a lack of knowledge of the law concerning certain violations. Thorpe only disputed committing one violation: parking over the two-hour time limit on Bainbridge Street in January 2011. Id. at 3-5. Thorpe claimed he moved the vehicle for half an hour during the two-hour period. Id. However, the hearing examiner deemed Thorpe's testimony, by itself, insufficient to verify that he moved the vehicle during that two-hour period. Id. Matters of credibility and evidentiary weight are within the province of the BAA as fact-finder. Nevling; Thompson.
Thorpe testified he did not know he could not put a red bag over a parking meter for a few hours while performing landscaping work at a certain property. See Certified Record, BAA Appeal Hr'g, Notes of Testimony (N.T.), 5/16/12, at 2. Thorpe also testified he thought he could temporarily park in a handicapped space with his flashers on, and he believed that a PPA officer must observe the violation for 20 minutes before issuing a ticket. Id. at 2-3.
Summarizing, Thorpe did not dispute receiving the 12 tickets. The City submitted copies of Thorpe's parking tickets and related documentation into the record. See C.R. at Item #2 (BAA Documents). Such documentation constituted prima facie evidence that the owner of the vehicle committed the parking violations. City Code §12-2807(2); BAA Regulations §5.02(d); Kovler. More importantly, as discussed above, Thorpe's testimony failed to establish he did not commit the parking violations or that he had a valid defense to the charged violations.
Therefore, we discern no error or abuse of discretion by the BAA in finding Thorpe liable for the 12 parking tickets. Thorpe took full advantage of the available BAA proceedings to dispute his parking tickets. The fact that the BAA did not accept Thorpe's uncorroborated testimony as legal grounds to dismiss his parking violations did not deny him due process of law or otherwise violate his constitutional rights. Kovler.
D. Discovery
Thorpe further contends the trial court erred or abused its discretion in denying his requests for discovery. Thorpe sought information as to whether the BAA hearing examiners and their supervisors took an oath of office and if their oaths were kept as records. Thorpe appears to argue that if the hearing examiners failed to take an oath of office, their actions were illegal, and the BAA must dismiss his parking tickets. As such, Thorpe asserts his request for discovery would have led directly to the dismissal of all the parking violations he appealed. See Appellant's Br. at 13-18.
Given the limited review in local agency appeals, the BAA counters, Thorpe had no automatic right to discovery. We agree. "When considering an appeal from a local agency, a court's standard of review is determined by the condition of the record created before that local agency." Nevling, 907 A.2d at 674. "Where a full and fair record is made before the local agency ... a reviewing court shall hear the appeal on the record supplied ...." Id.
"A 'full and complete record' is defined as 'a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal and, also, that the appellate court is given a sufficient record upon which to rule on the questions presented.'" Thompson, 896 A.2d at 668 (citations omitted). Here, the BAA compiled a full and complete record, including a copy of all the parking tickets at issue, a transcript of the BAA appeal hearing, and all correspondence Thorpe submitted. As discussed above, substantial evidence in the form of the parking tickets supported the BAA's decision holding Thorpe liable for the parking violations. Kovler. Further, we find no error in the BAA's determination that Thorpe's testimony at the hearing fell short of providing adequate grounds for discharge or dismissal of any of the parking tickets.
Moreover, the information Thorpe sought to obtain by discovery, including copies of the BAA hearing examiners' oaths of office, bears little or no relevance to the issue of whether Thorpe committed the parking violations. In Kovler, we rejected the appellant's argument that the trial court should have required a full civil trial with discovery rather than simply reviewing the BAA's decision as a local agency appeal. To that end, we noted, the trial court properly proceeded under the Local Agency Law, 2 Pa. C.S. §§551-555, 751-754. See Kovler, 6 A.3d at 1067 n.12.
Similarly here, we discern no error or abuse of discretion in the trial court's decision to review Thorpe's appeal based on the full and complete record of the BAA proceedings. The hearing examiners' oaths of office bore no relation to the issue of whether Thorpe committed the parking violations for which he was ticketed. Consequently, the trial court did not err in denying Thorpe's discovery requests. 2 Pa. C.S. §754; Nevling; Thompson.
As a final note, we recognize that Thorpe makes reference in his brief to two July 16, 2013 requests for information to the PPA made under to the Right-to-Know Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104. See Appellant's Br., Appendix. One of Thorpe's RTKL requests sought a copy of a City ordinance regulating how far a motorist needs to move his or her car to avoid a parking ticket after parking for the two-hour time limit (RTKL Request #13-0029).
However, Thorpe's RTKL requests, dated one day after the trial court's July 15, 2013 opinion in support of its May 9, 2013 order dismissing Thorpe's local agency appeal, are clearly beyond the scope of this appeal. We will not consider documents attached to a brief or included in a reproduced record that were not part of the certified record. Little v. Pa. State Police, 33 A.3d 659 (Pa. Cmwlth. 2011); Budd Co. v. Workers' Comp. Appeal Bd. (Kan), 858 A.2d 170 (Pa. Cmwlth. 2004).
Nonetheless, the RTKL provides Thorpe a complete process for taking administrative and judicial appeals from determinations concerning his RTKL requests. See Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010), aff'd, ___ Pa. ___, 75 A.3d 453 (2013).
III. Conclusion
For the above reasons, we affirm the order of the trial court denying Thorpe's local agency appeal.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 23rd day of January, 2014, for the reasons stated in the foregoing opinion, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge