Kovler v. Bureau of Admin. Adjudication

6 A.3d 1060

Charles KOVLER, Appellant

v.BUREAU OF ADMINISTRATIVE ADJUDICATION.

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 16, 2010.

Decided Oct. 19, 2010.

Charles Kovler, Holland, for appellant.

Nicholas W. Mattiacci, Philadelphia, for appellee.

BEFORE: COHN JUBELIRER, Judge, and BROBSON, Judge, and FRIEDMAN, Senior Judge.

OPINION BY Judge BROBSON.

Appellant Charles Kovler (Kovler) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), dated March 15, 2010. The trial court affirmed the decision of the Bureau of Administrative Adjudication (BAA), a division of the City of Philadelphia (City), which found Kovler liable for a parking citation (Ticket) and assessed fines and penalties totaling $61.00. We affirm the trial court.

The trial court summarized the relevant factual and procedural history as follows:

This appeal arises from a single parking ticket, (the "Ticket"), issued September 25, 2008 to [Kovler]. The Ticket was issued to Kovler's vehicle for parking in a "Stopping Prohibited" zone on the 200 Block of South Broad Street in Philadelphia. Kovler had two hearings before the [BAA]. The first hearing was conducted on April 28, 2009, and the second took place on August 4, 2009. Kovler was found liable for the Ticket after both hearings. On August 11, 2009, Kovler appealed the matter to [the trial] [c]ourt under 2 Pa.C.S. § 754. The certified record was filed with the [trial] court and both Kovler and the BAA filed briefs. [The trial] [c]ourt heard oral arguments on March 4, 2010. On March 15, 2010, [the trial] [c]ourt entered an Order dismissing Kovler's appeal and affirming the BAA. Kovler now appeals.

(BAA's Reproduced Record (R.R.) at 29a.)

On appeal,¹ Kovler argues that the BAA's procedures for adjudicating parking violations are unconstitutional because they deny due process.² Kovler also argues that the BAA's decision is not supported by substantial evidence because the original Ticket is not part of the record.

We address, first, Kovler's argument that the BAA's procedures for adjudicating parking violations contravene due process. Initially, we note that this Court has not previously addressed the constitutionally of the BAA's procedures for adjudicating parking violations. Although our opinion in O'Neill v. City of Philadelphia, 711 A.2d 544 (Pa.Cmwlth.), appeal denied, 556 Pa. 681, 727 A.2d 134 (1998), discussed the BAA's procedures generally, this Court only went so far as to hold that "there was ... no constitutional or statutory bar to the city by ordinance from transferring the enforcement of all outstanding parking tickets on June 11, 1989 from Traffic Court to the BAA." ³ MultipleUnited States Courts of Appeals, however, considering procedures for adjudicating parking violations substantially similar to the BAA's, have found those procedures to satisfy due process. See Van Harken v. City of Chicago, 103 F.3d 1346 (7th Cir.) (holding Chicago's system for adjudicating parking violations satisfied due process), appeal denied, 520 U.S. 1241, 117 S.Ct. 1846, 137 L.Ed.2d 1049 (1997); Gardner v. City of Columbus, Ohio, 841 F.2d 1272 (6th Cir.1988) (holding Columbus's procedures for adjudicating parking violations did not contravene due process).

Kovler's principal due process argument stems from the ticket writer's absence from the hearings before the BAA. Kovler contends that due process requires the opportunity to cross-examine the ticket writer and that the BAA's procedures are unconstitutional because only the hearing examiner has the authority to compel the ticket writer's presence at the hearing pursuant to Section 12-2807(2) of the Philadelphia Code.⁴ We disagree.

First and foremost, we find it disingenuous, at best, for Kovler to claim that he was denied the opportunity to cross-examine the ticket writer where Kovler never requested the presence of the ticket writer in the first place. (R.R. at 27a-28a.) Here, the BAA's procedures provide that the hearing examiner can require the ticket writer to appear at the hearing if the hearing examiner determines that the ticket writer's presence is required. Phila.Code § 12-2807(2). Not only did Kovler fail to request the ticket writer's presence at the hearing, Kovler failed to raise any issue that would make the ticket writer's presence necessary. Kovler did not challenge the date and time, location, or stated reason for the citation, nor any other information provided by the ticket writer.

Furthermore, the Seventh Circuit in Van Harken held that due process does not require the presence of the ticket writer at every hearing where the ticket is challenged. Van Harken, 103 F.3d at 1351-52. In Van Harken, the City of Chicago's system for adjudicating parking violations was virtually identical to the BAA's, including the provisions that parking tickets are prima facie evidence of a violation and that only the hearing examiner can require the ticket writer's presence at the hearing. Id. at 1350. Similar to Kovler, the appellants in Van Harken argued that due process required the presence of the ticket writer at the hearing. Applying the cost-benefit analysis set forth inMathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976),⁵ the Seventh Circuit determined that Chicago's system did not violate due process because the "the benefits of requiring the [ticket writer] to appear at every hearing are unlikely to exceed the costs." Id. at 1352. Regarding the benefits, the Seventh Circuit determined that there was only a small likelihood that requiring the ticket writer's presence would prevent an erroneous result- i.e., that an innocent driver would be forced to pay a fine. Id. at 1351-52. As to the costs, the Seventh Circuit found that requiring the ticket writer's presence would cause Chicago to incur substantial monetary costs, diminish the deterrent efficacy of the parking laws, and deprive Chicago of revenues to which it was entitled. Id. at 1351. The Seventh Circuit further explained:

Assuming that oral testimony is more persuasive in general than written, the only basis on which the plaintiffs can complain about the [ticket writer]'s absence is that it prevents them from cross-examining him. In short, they are claiming that they have a right of confrontation. There is no absolute right of confrontation in civil cases. In particular cases, live testimony and cross-examination might be so important as to be required by due process, although the principal case so holding- Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct. 1011, 1020-21, 25 L.Ed.2d 287 (1970)-may not have much life left after Mathews. Goldberg granted a right of confrontation to persons denied welfare benefits; Mathews withdrew it for persons denied disability benefits. The basis for distinction was the hardship to persons taken off welfare, and of course it has no counterpart here. Moreover, the ordinance empowers the hearing [examiner] to subpoena witnesses. That provides an adequate safety valve for those cases, if any (there may be none), in which fair consideration of the respondent's defense would require, as a constitutional imperative, the recognition of a right of confrontation.

Id. at 1352 (citations omitted). Though we are not bound by Van Harken, the Seventh Circuit's reasoning is persuasive and compelling. Based on this reasoning, the ticket writer's absence from Kovler's hearing did not constitute a violation of due process.⁶

We address, next, Kovler's argument that the BAA's decision is not supported by substantial evidence ⁷ because the original Ticket was not part of the record as required by Section 12-2807(2) of the Philadelphia Code, which provides, in pertinent part:

The City shall not be required to submit any evidence other than the parking ticket and information from a state department of motor vehicles identifying the owner of the vehicle. Such documentation in proper form (including without limitation any facsimile of the original parking ticket and the information from a state department of motor vehicles which has been transferred onto microfilm, computer tape or other form of data storage) shall be considered prima facie evidence that the registered owner of the vehicle was the person who committed the parking violation.

Phila.Code § 12-2807(2) (emphasis added).⁸ We agree with Kovler that the original Ticket, or a true copy thereof, is absent from the record; ⁹ however, even if we assume, arguendo, that Section 12-2807(2) of the Philadelphia Code requires the City to submit the original parking ticket as evidence in every hearing before the BAA, we find that the original Ticket's absence from the record constitutes harmless error in the present matter. ¹⁰

At the hearing before the BAA, the hearing examiner stated:

OK PA TAG PD17121V IS THE VEHICLE. LET'S SEE WHAT WE GOT. THE VEHICLE HAS TWO OPEN TICKETS ON IT. THE ONE SCHEDULED FOR THE APPEAL TODAY IS FOR STOPPING PROHIBITED ON THE 200 BLOCK OF SOUTH BROAD. 12:30 PM ON 9/25/08. WHAT'S THE SITUATION HERE SIR?

(R.R. at 27a.) Significantly, Kovler did not refute any portion of the above statementduring the hearing. It is undisputed, therefore, that Kovler received a parking ticket on September 25, 2008, at 12:30 p.m., for parking in a stopping prohibited zone on the 200 Block of South Broad Street. These are the exact facts that would be established by the original Ticket.

Furthermore, not only did Kovler fail to refute the above quoted statement of the hearing examiner, Kovler presented photographs-apparently in an attempt to dispute the validity of the Ticket-showing his vehicle parked in a stopping prohibited zone on the date and time in question.¹¹ (R.R. at 16a.) The following dialogue regarding the photographs occurred between Kovler and the hearing examiner at the hearing:

Kovler: LAST HEARING, I DIDN'T HAVE PICTURES. I HAD A CELL PHONE.

Hearing Examiner: YOU DIDN'T HAVE PICTURES?

Kovler: YES, NOW I HAVE PICTURES. THESE WERE TAKEN 9/25. THIS GUY HERE GOT

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