Opinion
No. 577 C.D. 2012
01-04-2013
Mark Charnet v. Bureau of Administrative Adjudication, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The City of Philadelphia, Bureau of Administrative Adjudication (Bureau) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) granting Mark Charnet's (Charnet's) appeal from an order of the Bureau upholding a parking citation against him. Finding no error, we affirm.
On August 5, 2010, Charnet parked his car along the street in front of the door of a garage owned by Jonathan Ball (Ball), located at 2046 Mount Vernon Street, Philadelphia, for the day with Ball's permission. A sidewalk runs in front of the garage and has curb cuts to allow ingress and egress to the garage. A sign placed by Ball on the garage door says "unauthorized parking prohibited." (Reproduced Record [R.R.], at 30.) While Charnet's car was parked in front of the garage, an agent for the Philadelphia Parking Authority (Authority) purportedly issued a citation for parking in front of a driveway.
The procedure that followed is more than a little confusing. It appears that Charnet did not respond because, purportedly, the citation was not left on the vehicle. On September 30, 2010, the City of Philadelphia issued a Notice of Default which gave a ticket number, the date it was issued, a violation which merely stated "driveway," the location, and the fine and penalty of $96.98. A Booting and Towing Notice was sent just over a month later; it reiterated the above information but stated that if Charnet did not pay the fine, his car would be either towed or booted. Neither Notice contains the provision of the Philadelphia Traffic Code (Traffic Code) that Charnet was alleged to have violated. Charnet appealed the citation but then requested that the citation be administratively cancelled in lieu of a hearing. The Bureau Hearing Officer upheld the citation but appears to have eliminated the fine or suspended it until February 11, 2011. Charnet then filed an administrative appeal with the Bureau, but again, the citation was upheld; however, the Bureau eliminated the penalties attached to the fine and reduced the amount due to $51.58. In neither proceeding was the citation introduced into evidence. Charnet appealed to the trial court.
Before the trial court, Ball testified that Charnet, his brother-in-law, was parked in front of Ball's garage with his permission, and Charnet's vehicle was not parked on the sidewalk when the ticket was issued, but on the street in the "curb lane." (R.R., Item 4, at 8.) Ball's access was not inhibited because Charnet was with him for the duration of his stay, so if he needed to get into or out of the garage, he need only ask Charnet to move his car. Ball said that Charnet was not even aware of the citation until he received a default notice. He also said that the sign on his garage door says "unauthorized parking prohibited." Id. at 9. He said that the Authority has told him numerous times that, because the driveway is private, he has to call the police to get cars ticketed and towed when they are blocking the garage, and this was the first time in 15 years of Ball's ownership of the property that the Authority issued a ticket on its own. Charnet did not appear at the hearing.
Ball, a licensed attorney, also represented Charnet. Throughout the proceeding from the time Charnet first received notice of the citation, both individuals sent several letters to the Bureau contending that the citation should be dismissed.
Counsel for the Bureau stated that while the Traffic Code permits property owners to authorize people to park vehicles in a private driveway, this involved parking in a public street, over which Ball had no authority. Again, the citation was not placed in the record nor did the person who issued the citation appear.
The trial court granted the appeal, reasoning that the area in question is on-street parking, and parking on the street can only be controlled by public signs; because there are none, parking is allowed on the street. The trial court further concluded that, even if the area was a driveway, Ball, under §10-823 of the Traffic Code, could authorize Charnet to park in front of his driveway. Because there was no dispute as to Ball's authorization, the trial court dismissed the citation. The Bureau then filed this appeal.
Section 10-823 of the Code provides that "no person shall park a motor vehicle ... in or upon any driveway thereby preventing the ingress and egress of other persons or automobiles."
Our scope of review on appeal is limited to determining "whether constitutional rights were violated, whether an error of law was committed, whether the procedure before the agency was contrary to statute, and whether necessary findings of fact are supported by substantial evidence." Kovler v. Bureau of Administrative Adjudication, 6 A.3d 1060, 1062 n.1 (Pa. Cmwlth. 2010), appeal denied, 610 Pa. 602, 20 A.3d 490 (2011) (citing 2 Pa.C.S. §754(b)).
On appeal, the Bureau argues that the trial court erred in concluding that the area in front of the garage was a public sidewalk, not a driveway. While the Bureau agrees that under §10-823 of the Traffic Code, a property owner could give permission for a vehicle owner to park in the driveway, it argues that this provision does not apply because it addresses parking "in or upon any driveway," and Charnet's vehicle was parked in front of the driveway on the public street. The Bureau contends that, because parking in front of a driveway is prohibited by §12-913(b)(i) of the Traffic Code, Ball's authorization to park in front of the driveway is not a defense to the charge. Charnet contends that the driveway was not blocked under either provision because he had permission to park in front of the "driveway." Though he points out that the citation was never introduced into evidence, nonetheless Charnet contends that the driveway was not blocked under either provision because he had permission to park in front of the "driveway."
Section 12-913(1)(b)(i) of the Traffic Code provides that a vehicle may not be parked in front of a private driveway. Section 12-2405.1 provides that "[t]he owner or other person in charge or possession of any driveway ... may remove or have removed any vehicle from the street or the driveway which is parked ... so as to block access to such driveway." --------
The fundamental problem that we face in conducting judicial review of this matter is that we do not know what provision of the Traffic Code Charnet was cited for violating. The citation was never placed into evidence and the notices merely state the violation as "driveway," without citation to a specific provision. In a hearing or review of a decision on a citation, we must determine whether the facts support the charge, not what charge can be maintained on the facts shown. The trial court assumed that Charnet was charged with §10-823 of the Traffic Code. Because it is the Bureau's burden to establish what provision of the Traffic Code someone is charged with violating, it does not dispute that the permission of the property owner to park is a defense to a citation brought under §10-823, and there is no dispute that Charnet had permission, we will affirm the order of the trial court.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 4th day of January, 2013, the order of the Court of Common Pleas of Philadelphia County, dated January 27, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge