Ford Motor Co. v. Commonwealth

NIX, Chief Justice,

dissenting.

The conclusion by the majority that McCrackin-Sturman Ford, Inc. (“McCrackin”) interest requires an allowance of intervention under Pa.R.C.P. 2327(4) is in my judgment erroneous and reflects a serious misconception of the purposes of the Board of Vehicles Act, 1983, Dec. 22, P.L. 306, No. 84, § 1 et seq.) 63 P.S. § 818.1 et seq. (Suppl. 1984-1985) and the role of State Board of Vehicle Manufacturers, Dealers and Salespersons (“Board”) acting thereunder. Senior Judge Bucher, sitting by designation, reached the correct result in all respects and the order entered below should be affirmed. I am therefore constrained to register my dissent.

The instant matter arose from an application filed by Ford Motor Company for a license to establish a new dealership in the Pittsburgh metropolitan area. McCrackin filed protests to this application pursuant to section 18(a) of the Act.¹ It is noted that the right to file a protest was available to all Ford new vehicle dealers within the relevant market area. The Board held hearings and issued an oral ruling sustaining the protest on August 31, 1984, the revised expiration date of the 120-day requirement provided for in section 18(a). The written decision was not forthcoming until October 26, 1984. Ford sought relief in the Commonwealth Court claiming that the August 31, 1984 oral ruling was not the final determination which the Act requires to be issued within 120 days of the filing of protest, and that therefore its application must be deemed approved by the Board. See 63 P.S. § 818.7.² The court below agreed that the August 31, 1984 oral order did not comply with the “final determination” requirement of § 7. See 63 P.S. 818.7. This decision has been affirmed by the majority of this Court. With that determination, I am totally in accord.

The consequences of that conclusion is that Ford should be entitled to the presumption that good cause did not exist for refusing to permit the proposed additional new vehicle dealership and therefore Ford was entitled to the relief sought. The majority avoids this result by finding that McCrackin possessed a statutory interest sufficient to require that it must be allowed to intervene. This argument rests heavily upon the fact that it was McCrackin’s protest that started the statutory process. It ignores however that the Act was designed to regulate this area of the industry and was not intended to focus upon the competitive interests of the individual participants within that area. The Act aims to protect and strengthen the industry in the relevant market area generally and not to further a particular competitive interest of an individual dealer.³

The composition of the Board is representative of all segments of the industry as well as the inclusion of members of the general public. See 63 P.S. § 818.3. The powers and duties of the Board set forth in section 4 further evidence its responsibility to be one of regulating and monitoring the industry as a whole. See 63 P.S. § 818.4.⁴ The fact that McCrackin’s protests initiated this particular inquiry does not alter the fact that the focus of the inquiry is directed to the impact of the proposed new dealership upon the general industry in the relevant market area. McCrackin’s individual interest in having a competitor excluded from its sales area is not the interest sought to be protected under the Act and the court below properly denied the requested intervention.

McDermott, j., joins.

1 . Section 18(a) provides:

In the event that a manufacturer seeks to enter into a franchise establishing an additional new vehicle dealer or relocating an existing new vehicle dealer within or into a relevant market area where the same line-make is then represented, the manufacturer shall in writing first notify the board and each new vehicle dealer in such line-make in the relevant market area of the intention to establish an additional dealer or to relocate an existing dealer within or into that market area. Within 20 days after the end of any appeal procedure provided by the manufacturer, any such new vehicle dealer may file with the board a protest to the establishing or relocating of the new vehicle dealer. When such a protest is filed, the board shall inform the manufacturer that a timely protest has been filed, and that the manufacturer shall not establish or relocate the proposed new vehicle dealer until the board has held a hearing, nor thereafter, if the board has determined that there is good cause for not permitting the addition or relocation of such new vehicle dealer.

63 P.S. § 818.18(a).

2 . Section 7 provides in pertinent part:

Any hearing on a protest by a dealer of any action by a manufacturer alleged to be in violation of a provision of this act must be conducted and the final determination made within 120 days after the protest is filed. Unless waived by the parties, failure to do so will be deemed the equivalent of a determination that the manufacturer acted with good cause and, in the case of a protest of a proposed establishment, or relocation of a dealer under section 10, that good cause does not exist for refusing to permit the proposed additional or relocated new vehicle dealer, unless such delay is caused by acts of the manufacturer or the additional or relocating dealer____

63 P.S. § 818.7.

3 . The factors considered by the Board in determining the extent of the impact on the relevant market area are provided in section 18:

(c) Board to consider existing circumstances. — In determining whether good cause has been established for not entering into or relocating an additional new vehicle dealer for the same line-make, the board shall take into consideration the existing circumstances, including, but not limited to:

(1) Permanency of the investment of both the existing and proposed new vehicle dealers.

(2) Growth or decline in population and new car registrations in the relevant market area.

(3) Effect on the consuming public in the relevant market area.

(4) Whether it is injurious or beneficial to the public welfare for an additional new vehicle dealer to be established.

(5) Whether the new vehicle dealers of the same line-make in that relevant market area are providing adequate competition and convenient customer care for the vehicles of the line-make in the market area which shall include the adequacy of vehicle sales and service facilities, equipment, supply of vehicle parts and qualified service personnel.

(6) Whether the establishment of an additional new vehicle dealer would increase competition and whether such increased competition would be in the public interest.

(7) The effect the denial of relocation will have on a relocating dealer.

63 P.S. § 818.18(c).

4 . Section 4 provides in pertinent part:

The board shall have the power and its duty shall be to:

(1) Provide for and regulate the licensing of salespersons, dealers, brokers, manufacturers, factory branches, distributors, distributor branches, factory or distributor representatives and wholesalers as defined in this act.

(2) Review and pass upon the qualifications of applicants for licensure and to issue, except as otherwise provided herein, a license to engage in the said businesses to any applicant who is approved by the board and who meets the requirements of this act.

(3) Investigate on its own initiative, upon complaint of the Department of Transportation, Department of Community Affairs, Department of Revenue or the Office of the Attorney General, or upon the verified complaint in writing of any person, any allegations of the wrongful act or acts of any licensee or person required to be licensed hereunder.

(4) Administer and enforce this act and to impose appropriate administrative discipline upon licensees found to be in violation of this act.

(5) Bring criminal prosecutions for unauthorized, unlicensed or unlawful practice.

(6) Require each licensee to register biennially with the board. (9) Adopt, promulgate and enforce such rules and regulations not inconsistent with this act as are deemed necessary and proper to effectuate the provisions of this act, including but not limited to, established place of business.

63 P.S. § 818.4.