*1 681 n withCutlеr regarding prior home this Santhouses,” LLC, MOTORS, it from Plain- GENERAL Petitioner
purchasing tiffs Answer to Defendant’s Motion ¶20 (emphasis Summary Judgment at OF BUREAU AND PROFESSIONAL added). Rather, Appellant’s sub- affidavit AFFAIRS, OCCUPATIONAL State opposition Cutler’s Motion for mitted Manufacturers, Summary Judgment states Appellant Respondent Salespersons, Dealers and (1) “reputation” relied Cutler as No. 1075 C.D. reliable, “experienced, reputable an builder (2) hоmes[;]” experience Ap- of custom Pennsylvania. Commonwealth Court pellant inhabiting had in and purchasing Argued December home, previous her which was built August Decided and did not exhibit construc- Cutler latent Reargument defects; October Denied representations tion “the Wendy who as Dunlop, employed representative by sales as [Cutler] quality
construction and of the homes in Malvern[,]”
the Reserve at devel- same issue,
opment Appel- as home when process purchasing
lant was in the her
previous directly home Cutler
toured there. of Karen homes Affidavit
Zajick, filed 12/3/15. legal Appel-
There is no basis allow solely move
lant’s claim to forward based reputation
on her reliance on Cutler’s
general represen- statemеnts from sales develop- homes the same
tatives about
ment. Appellant
Since failed to establish any representations
Cutler made about specific alleged or
her home defective
stucco, court properly the trial found that
she failed as a present matter law to “justifiably
evidence that she relied”
“representations” of Cutler. Accordingly,
we conclude that the trial did court
abuse its discretion err a matter granted summary judgment
law when it
favor Cutler.
Order affirmed. *2 Boston, MA, McGrath, for pe-
James C. titioner. Harrisburg, P. for in- DeAngelo,
James Inc., Baer, tervenors Budd Budd Baer Chevrolet, GMC, Inc., Mel Buick Grata of New Holland and Turner Automotive Turner Buick GMC. ROBERT
BEFORE: HONORABLE SIMPSON, Judge, JULIA HONORABLE HEARTHWAY, Judge, K. HONORABLE COSGROVE, Judge M. JOSEPH BY HEARTHWAY OPINION JUDGE Motors, (GM), petitions General LLC final of the for review June order State, Department Board of State Manufacturers, Dealers and Sales- (Board), sustaining two counts of a persons Baer, Inc., protest filed Mel Budd Gra- Chevrolet, Inc., ta Turner Automotive Holland, (collectively, of New Inc. Protest- Dealers). ing Protesting Dealers elected changed provision invoke a they are the manner which warranty parts. The Board determined not permitted under its con- adjust Protesting tract with Protesting which it reimbursed manner response Dealers’ The Board also Protesting action. justed permitted according ruled that was not to im- the Consumer Price pose a Dealers to Index.6
recover costs resulting increased Unless required otherwise under state For election. law, GM reimburses dealers for used *3 below, reasons forth set we reverse. in warranty work at a rate of 40 standard dispute This on for war percent over dealer Alternatively, cost.7 ranty between service GM and Act, pursuant to the dealers elect to conflicting Dealers interpreta arises be for parts reimbursed at the (Act), Act1 tions the Board Vehicles 9(a)(2) states, dealer’s retail rate. Section “a comprehensive governing statute “Compensation parts, including for major relationship between automobile manufac service, assemblies in warranty used shall ” turers their franchise dealers.” Rosa be the dealer’s retail rate.... and then Co., 291, do Ford Motor F.3d process' addresses establishing a (3d 2003). Cir. 818.9(a)(2). § dealer’s fate. retail 63 P.S. Thus, Pennsylvania dealers have choice In relationship addition parts receiving between gov- between GM and its also dealers pursuant to the statute’s retail rate or an by Agree- erned Dealer Sales and Service agreed upon par- alternative rate (Dealer Agreements).2 ments Dealers ties. agree Agreements perform Dealer warranty repairs qualified and services Dealers also the Act to elect under Although warranty repairs vehicles.3 be for warranty labor at a provided to consumers at no additional Eсhoing dealer’s retail rate. sec- charge, anticipated cost those re- 9(a)(3) states, 9(a)(2), tion “Com- pairs is into price built new vehi- pensation warranty for labor used ser- Agreements cles.4 agrees GM Dealer vice shall be at dealer’s ” reimburse for that in accor- dealers work 818.9(a)(3). As rate.... 63 P.S. dance with the Policies Service and Proce- reimbursement, the Act оffers stat- (SPPM).5 dures Manual utory retail rate for labor as an dealer’s option available dealers. SPPM,
Pursuant GM reimburses in dealers for the labor costs implemented policy In work ways: in one of two any which sought reim- (1) (known Option Dealer retail rate as (instead bursement standard A), where dealers are reimbursed at the n contractual over 40% they non-warranty rate use for similar сost) ineligible Option would C/CPI- service; repairs In other based reimbursement for labor.8 words, (2) (known Option dealers that reim- CPI-based as choose C), agree to bursement be re- where GM and dealer would also quired accept base labor periodically Option rate that ad- A/retail 22, 1983, 1. Act of December P.L. 5. SFatK13. amended, §§ 63 P.S. 818.1-818.37. ¶¶ 6. SF at 16-18. (SF), 2/12/16, ¶ Stipulation
2. of Facts 6. ¶ 7. SF at 23. ¶
3. SF at 11. ¶ ¶
4. SF at 8. SF at 20. objec recovery surcharge.16 Those policy. labor under cost Board, change presented to the policy was communicated tions were prohibited edition the Act dealers second concluded (1) transferring Protesting Dealers to SPPM.9 rates Option A/retail requested Protesting Dealers labor; imposing a cost pursuant retail reimbursement recovery surcharge 9(a)(2) (in- per petition This rе vehicle.17 $122 40% stead standard reimbursement of view followed.18 cost).10Prior to Pro- requests, over these testing Op- were enrolled in First we whether address program tion C/OPI-based *4 determining in that GM vio Board erred did not re- Protesting for labor.11 Dealers 9(a)(3) by con of Act lated the for quest Option reimbursement A/retail Protesting to verting retail Dealers labor,12 they nor did to invoke section seek to labor—pursuant for 9(a)(3) compel to retail rate reimburse- Protesting Dealers—when contract with warranty for labor. ment Protesting to receive re Dealers elected approved for re- rate reimbursements for under requests retail tail
GM parties Protesting parts.13 pursuant agree for But to the Act. The that imbursement Act to SPPM, are entitled Protesting Dealers’ reimburse- Dealеrs under statutory to changed for from be reimbursed at the program labor was elect ment for Option warranty parts. They to dis Option rates A/re- C/CPI-based of that Protesting agree consequences about consequence rates as a tail warranty rate re- election election receive retail Dealers’ labor, This first parts.14 addi- however. is an issue warranty imbursemеnt for tion, recovery impression. sur- imposed a cost GM response per vehicle charge $122 they have Protesting argue Dealers adjustments rates un- not elected retail labor reimbursement warranty parts.15 and that not “unilat- der
Protesting objected to the transfer them to erally” Dealers retail labor argues la- in reimbursement bursement. GM under change (which SPPM, Protesting pursuant to GM terms Dealers’ bor rates done not at rate reim- as set forth election policy SPPM Protesting request). Protesting renders Dealers’ objected ineligible imposition also them labor reimbursement Dealers Order, Adjudication Id. 9. Docket No. 17. Final 1325-60-2014, 6/10/16. ¶ 28. SF at 10. of review is limited 18. This Court’s standard SFa^41. 11. determining rights whether constitutional ¶ 40. SF at 12. violated, whether an error of law was were committed, necessary findings whеther ¶¶ SF at 36 and 39. 13. supported by evidence. fact are substantial Agency Section 704 the Administrative ¶ 42. 14. SF at Law, questions C.S. raised in Pa. 704. The ¶¶ 43-45. SF at 15. questions this case are of law. ¶ SF at 46. CPI-adjusted pro- C Option rejects under “The Board also this argument, as SPPM, gram. again contends that under the there support it.”22 Protesting Dealers must be rulings converted appear premised These to be A, Option Protesting supposition parties may that the agree at a rate for would expressly terms are not au- warranty labor by by defined SPPM. thorized the Act. agreed
The Board with Deal- Act does ability not so restrict ers, concluding contract, that GM violated Act parties Prop- however. converting Protesting understood, erly re- Option from A Option imbursement C to safeguard vides a dealers that dis- request without a satisfied with the stated, to do “nowhere in so. available to them under their contracts section 9 any statutory of the Act is there manufacturers. Section creates a authority for the manufacturer to unilater- statutory level of ally change seek of rate choose com- may rely However, dealer upon. section 9 pensation of a request аbsence preclude does not manufacturers and deal- a dealer.”19 ers from agreement contractual to differ- *5 warranty ent arrangement for reimburse- of the scope basis and Board’s au- ment. thority by is defined the Act. Section
4(a)(4) general of the Act forth sets misappre- ruling Board’s reflects a “[ajdminister power of the to Board and hension of the basis for GM’s cоnversion of 818.4(a)(4). § In enforce” the Act. 63 P.S. Protesting Dealers’ rate labor reimburse- protest, a filed context to Option ment from A. Option C GM’s 4(d)(5) empowers compel Board grounded parties’ agree- action was compliance with P.S. Act. ment, seeking not the not Act. GM was 818.4(d)(5). However, § the Board ac- 9(a)(3) unilaterally invoke section jurisdic- knowledges that it not have does Act; аccording proceeding GM from adjudicate tion to disputes arising Protesting contract Deal- its with terms Protesting Deal- contract between GM and Option contract C reim- ers. That offers ers.20 warranty only if labor agrees to dealer rejecting argument its con- standard GM’s that warranty parts. C not a cre- Option is Protesting tract with Dealers rendered Act; of the ation of the it is creation Option them reim- ineligible C labor contract, may Op- define they bursement once elected to the contract 9(a)(3) rate, eligibility. tion C of the Act warranty parts bursed for Section a retail stated, “nothing Protesting safeguard 9 of offers Board statutory the Act la- permits parties rate reimbursement waive rejected Protesting bor if Similarly, terms.”21 Dealers are dissatisfied Boаrd argument GM’s that for with the available pursuant absent an election agreement GM. The Act does retail rate reimbursement la- 9(a)(3), protect Protesting not parties’ bor con- Dealers’ access under section question GM Option C. The of whether tract controls such labor reimbursement: Id. at 11. 19. Board decision at 13-14. 21. at 12. 22. Id. Id. year Protesting and labor once a calendar сhange make this Deal- or sur- rate reimbursement avoid a manufacturer distributor
ers’ which over question charge. a contractual Therefore, jurisdiction. has no 818.9(b.4). 63 P.S. it as a matter law when Board erred The Board GM’s determined Protesting shift concluded posed surcharge per vehicle violat- $122 from labor rate reimbursement 9(b.4)(l)(i) Act ed section of the because pursuant A to their Oрtion Option C to only elected rate 9(a)(3) violated section contracts with GM Act, under the Act. of the not elect retail rate re- did we consider whether the Board Next for labor. con- imbursement The Board that GM’s determining proposed erred surcharge permissible only that a cluded surcharge per of a imposition vehicle $122 seeks when a dealer recoup costs— increased for both and labor.23 resulting Dealers’-election “the argues permits a man- retail rate reimbursement to receive impose recovery ufacturer to cost sur- parts under Act—would violate section charge any dealer that receives statuto- 9(b.4) forth is set below: labor, ry or retail reimbursement (b.4) Recovery.— only prohibits manufacturer (1)(i) or A manufаcturer distributor any imposing a costs from a dealer recover its has to continue to abide decided this Commonwealth does within parties’ agreed-upon contract rates.”24 In to the manufacturer apply distributor essence, contends that the statute cre- for parts for retail *6 ates a harbor do not safe dealers labor, including an in the and increase ratе reimbursement any seek retail under price surcharge of or a vehicle wholesale 9(a). section imposed on a intended to recover dealer reimbursing of a the cost dealer for 9(b.4)(l)(i) provides Section and labor this section. parts under may impose a a sur manufacturer not (ii) may A or distributor manufacturer charge sought on a dealer that has not pricе part a or increase for vehicle parts retail and rate normal of course business. language’ susceptible labor. This is to meaning. A to to more than one with may dealer elect revert Consistent parts argument, this lan- nonretail rate reimbursement issue, language 13 23. Also within its of this Board's decision at fn. 8. This is discussion perplexing appears to because Board be Boаrd stated— stating addressing very that it is not issue it, question Because that is not before deciding: may it is whether use a sur- has whether manu- not addressed charge to recover its increased may surcharge facturer a’dealer who has expenses. appears The Board parts elected retail reimbursement for rate premised to on the have discussion idea (but labor) not for of for the cost reimburs- seeking that GM to recover increased ing similarly parts or dealers whether relating parts both But costs and labor. surcharge manufacturer who dealer only seeking recoup is in- it maintains elected rate has Report, costs. See Joint Status creased (but parts) for labor the cost of 2/19/16, at 3. reimbursing for labor dealers work. 24. GM Brief at 43.
687
9(b.4)(l)(i),
labor” in
guage
“рarts
could be understood
mean
section
we
reim
only
that elect retail rate
dealers
must
also consider
use of
same
both
9(b.4)(2):
bursement
phrase
section
“[a] dealer
surcharge.
to a
vulnerable
manufacturer
to revert to
elect
the nonretail
Alternatively,
provision
could be read
for parts
and labor once in a
consistently
position
GM’s
year to
сalendar
avoid
or
manufacturer
n statute creates
a safe harbor for dealers
surcharge”,
distributor
63
P.S.
any
the statute for
that do
invoke
818.9(b.4)(2)
added).
(emphasis
The use
“A
is am
retail reimbursement.25
statute
of
phrase “parts
and labor” in section
sub
biguous
language
or unclear if its
9(b.4)(2) supports
position
GM’s
that a
or
ject
interpreta
to two more reasonable
using any
must not be
dealer
Donahue,
tions.”
the Governor v.
of
Office
to be
2013)
1165,
(Pa.
59 A.3d
1168
Cmwlth.
possibility
tected from the
of a
Mines,
v. De
(quoting Bethenergy
Inc.
for increased reimbursement costs.
Protection,
partment
Environmental
(Pa. Cmwlth.),
appeal
676 A.2d
715
object
The self-evident
of section
denied,
(1996)).
546 Pa.
In
un-
Board erred
legislative
intent
Pa.C.S.
derlying
conjunctive phrase
determining
of law in
facially
matter
brief,
language
may
GM states in its
in
understood to
that a manufacturer
25. As
mean
.
9(b.4)(l)(i)
(1)
Section
manufac-
impose
surcharge
‘‘[a]
of
on a
not
may
..
not
its
turer.
recover
costs from
applied
for
not
for retail reimbursement
has
apply
dealer...
that does
to the manufac-
not
applied
parts;
for
and
has not
turer. ..
retail rate reimbursement
Brief
labor. GM
at 40.
...,”
parts
reasonably be
and labor
could
.1995),
“legislative
of
purpose
imposing
Cmwlth.
precluded
forth” in “49
in this case.
is
Pa. Code
costs
Act”
“set
increased
that the Act
provision
19.1.” This
states
reasons,
these
we reverse
For
[the Commonwealth’s]
is
“exercise of
an
order.
Board’s
“prevent
police power,”
designed
and
ORDER
frauds,
upon
impositions
other abuses
and
NOW,
Commonwealth’s] citizens and to
day
[the
of August,
16th
AND
this
preserve
2017,
tect
the investments and
order of the Bureau
Profes-
Affairs,
Occupational
properties’of
citizеns of this Common-
sional and
State
Id,
Manufacturers,
it
Against
backdrop,
Motor Vehicle
Board
this
wealth.”
Salespersons, is reversed.
Dealers and
Legislature
could
difficult
see how
statutory language,
have intended
which
BY
OPINION
JUDGE
DISSENTING
ihterpre-
subject
two reasonable
COSGROVE
tations,
in a way
favors
to be viewed
Although
exceptionally
I
respect
corporations
multibillion dollar
based
Majоrity opin-
well written and reasoned
(or countries)
protec-
other
states
over
ion, I cannot
its
conclusion.
agree
dealers
tive
of local automobile
interests
As
requires
case
us
define
operating
This
within the Commonwealth.
the Board
Act
boundaries
Vehicles
it errs.
Majority disagrees,
I believe
22, 1983,
(Act),
P.L.
of December
enough
this
If
were
reason
amended,
818.1-818.37,
§§
rela-
P.S.
am
Majority’s,
result
I
different
to automobile dealer reimbursements
tive
given appro-
concerned that we have
expenses
and labor
incurred
priate
focus
“[0]ur
the Board.
deference
warranty repairs. Specifi-
performance
center,
interpretation
on,the
must
Board’s
we
whether manu-
cally,
must determine
...
the Act
the Board’s decision
[and]
(in
case,
Motors,
facturers
this
General
clearly erro-
cannot be overturned unless
(Petitioner)),
dealers,
require
LLC
(em-
Maggiano,
As we Dealers, Manufacturers, (Pa.
Salespersons, 669 A.2d