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PRINTER'S NO. 956
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
764
Session of
2017
INTRODUCED BY GORDNER, RAFFERTY, TARTAGLIONE AND ARGALL,
JUNE 14, 2017
REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE,
JUNE 14, 2017
AN ACT
Amending the act of December 22, 1983 (P.L.306, No.84), entitled
"An act providing for the State Board of Vehicle
Manufacturers, Dealers and Salespersons; and providing
penalties," providing for preliminary provisions, further
providing for short title, for definitions, for State Board
of Vehicle Manufacturers, Dealers and Salespersons, for
powers and duties of board, for license to engage in
business, for biennial renewal, for enforcement, for protest
hearing decision within 120 days unless waived by the
parties, for reimbursement for all parts and service required
by the manufacturer or distributor and reimbursement audits,
for damage disclosure, for mediation and arbitration, for
unlawful acts by manufacturers or distributors, for area of
responsibility, for termination of franchises, for industry
reorganization, for succession to franchise ownership, for
manufacturer right of first refusal, for manufacturer or
distributor repurchase of inventory and equipment, for
reimbursement of rental costs for dealer facility, for
grounds for disciplinary proceedings, for administrative
liability of employer, copartnership, association or
corporation, for reinstatement, for application for license,
for refusal of license, for change of salesperson's license
to indicate new employer, for termination of employment or
business, for exemption from licensure and registration, for
limitations on establishing or relocating dealers, for
licensing cost, for penalties, for civil actions for
violations, for fees, for disposition of fees and fines, for
vehicle shows, off-premise sales and exhibitions and for off-
premise sales, shows, exhibitions or rallies on Sundays;
providing for recreational vehicles and for miscellaneous
provisions; further providing for savings provision, for
repeals, expiration of terms of board members and for
existing rules and regulations.
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The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The act of December 22, 1983 (P.L.306, No.84),
known as the Board of Vehicles Act, is amended by adding a
chapter heading to read:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 2. Section 1 of the act is renumbered to read:
Section [1] 101. Short title.
This act shall be known and may be cited as the Board of
Vehicles Act.
Section 3. The definitions of "motor home," "recreational
vehicle" and "recreational vehicle park trailer" in section 2 of
the act are amended and the section is renumbered and amended by
adding a definition to read:
Section [2] 102. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
* * *
"Motor home." [A vehicle designed to provide temporary
living quarters, built into an integral part of, or permanently
attached to, a self-propelled vehicle chassis or van.] A
motorized vehicle designed to provide temporary living quarters
for recreational, camping or travel use. The unit must contain
at least four of the following permanently installed independent
life support systems:
(1) A cooking facility with an on-board fire source.
(2) A potable water supply system that includes at least
a sink, a faucet and a water tank with an exterior service
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supply connection.
(3) A toilet with exterior evacuation.
(4) A gas or electric refrigerator.
(5) A heating or air conditioning system with an on-
board power or fuel source separate from the vehicle engine.
(6) An electric power system separate from the vehicle.
"Park model RV." A vehicle that:
(1) Is designed and marketed as temporary living
quarters for recreational camping, travel or seasonal use.
(2) Is not permanently affixed to real property for use
as a permanent dwelling.
(3) Is built on a single chassis mounted on wheels with
a gross trailer area not exceeding 400 square feet in the
set-up mode.
(4) Is certified by the manufacturer as complying with
the ANSI A119.5 Park Model Recreational Vehicle Standard.
* * *
"Recreational vehicle." [A vehicle primarily designed as
temporary living quarters for recreational, camping or travel
use, which either has its own power or is mounted on or drawn by
another vehicle. The term includes a travel trailer,
recreational vehicle park trailer, slide-in camper, camping
trailer and motor home.] A vehicle which is either self-
propelled or towed by a consumer-owned tow vehicle and designed
to provide temporary living quarters for recreational, camping
or travel use that complies with all applicable Federal vehicle
regulations and does not require a special-movement permit to
legally use on highways. The products are certified by the
manufacturer as complying with NFPA 1192 Standard on
Recreational Vehicles or ANSI A119.5 Park Model Recreational
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Vehicle Standard and include the following types:
(1) Motor home.
(2) Travel trailer.
(3) Fifth wheel travel trailer.
(4) Folding camping trailer.
(5) Truck camper.
(6) Park model RV.
["Recreational vehicle park trailer." A recreational vehicle
that is built on a single chassis mounted on wheels, has a gross
trailer area not exceeding 400 square feet in the set-up mode
and is certified by the manufacturer as complying with ANSI
A119.5.]
* * *
Section 4. The act is amended by adding a chapter heading to
read:
CHAPTER 3
VEHICLES
Section 5. Sections 3 and 4 of the act are amended to read:
Section [3] 301. State Board of Vehicle Manufacturers, Dealers
and Salespersons.
(a) Board.--The State Board of Vehicle Manufacturers,
Dealers and Salespersons shall consist of 17 members, one of
whom shall be the Commissioner of Professional and Occupational
Affairs, or his designee, one of whom shall be the Secretary of
the Department of Transportation, or his designee, one of whom
shall be the Director of Consumer Protection in the Office of
Attorney General, or his designee, and the remaining 14 of whom
shall be appointed by the Governor as follows:
(1) Three members shall be new vehicle dealers who have
been actively engaged as such for a period of five years
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immediately preceding their appointment.
(2) Three members shall be used vehicle dealers who have
been actively engaged as such for a period of five years
immediately preceding their appointment. One used vehicle
dealer member beginning with the first vacancy for a used
vehicle dealer after the effective date of this amendment
shall also be an owner, partner or officer of a corporation
or business which is licensed as a vehicle auction and which
has been actively engaged as such for a period of five years
immediately preceding the appointment.
(3) One shall be a manufactured housing or mobile home
dealer who has been actively engaged as such for a period of
five years immediately preceding appointment.
(4) One shall be a salesperson who has been actively
engaged in the sale of new or used vehicles for a period of
five years immediately preceding appointment. The member
shall not be a dealer or an officer of a corporation or a
member of a partnership engaged in the business of a dealer
at the time of appointment.
(5) One shall be a recreational vehicle dealer who has
been actively engaged as such for a period of five years
immediately preceding appointment.
(6) One shall be a motorcycle dealer who has been
actively engaged as such for a period of five years
immediately preceding appointment.
(6.1) One member shall be a mobility vehicle dealer who
has been actively engaged as such for a period of five years
immediately preceding appointment.
(7) Three shall be members of the general public having
no connection with the vehicle business.
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(b) Terms of members.--The terms of the members of the board
shall be four years for members appointed after the effective
date of this amendment from the respective date of their
appointment, provided that a member may continue for a period
not to exceed six months beyond the expiration of his term if a
successor has yet to be duly appointed and qualified according
to law. The maximum number of consecutive terms a member shall
serve shall be two consecutive four-year terms. In the event
that any member shall die, resign or be removed from office, his
successor shall be appointed and hold office for the unexpired
term.
(c) Quorum.--A majority of the members of the board who have
been appointed and confirmed shall constitute a quorum. Motions,
questions and decisions of the board shall require the
affirmative vote of a majority of a quorum for adoption. The
board shall select, from among their number, a chairman and a
secretary.
(d) Reimbursement of expenses.--Each member of the board,
excepting the Commissioner of Professional and Occupational
Affairs or his designee, the Director of the Bureau of Consumer
Protection in the Office of Attorney General or his designee,
and the Secretary of the Department of Transportation or his
designee, shall be paid reasonable traveling, hotel and other
necessary expenses and per diem compensation at the rate of $60
for each day of actual service while on board business.
(e) Attendance.--A member who fails to attend three
consecutive meetings shall forfeit his seat unless the
Commissioner of Professional and Occupational Affairs, upon
written request from the member, finds that the member should be
excused from a meeting because of illness or the death of an
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immediate family member.
Section [4] 302. Powers and duties of board.
(a) Powers and duties.--The board shall have the power and
its duty shall be to:
(1) Provide for and regulate the licensing of
salespersons, dealers, vehicle auctions, manufacturers,
factory branches, distributors, distributor branches and
factory or distributor representatives as defined in [this
act] section 102.
(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] chapter and regulations
promulgated in accordance with this [act] chapter.
(3) Investigate on its own initiative, upon complaint of
the Department of Transportation, Department of Community and
Economic Development, Department of Revenue or the Office of
the Attorney General, any law enforcement officer 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] under this chapter. Duly
authorized agents of the Bureau of Professional and
Occupational Affairs shall be authorized to issue
administrative citations for violations of this [act] chapter
in accordance with section 5 of the act of July 2, 1993
(P.L.345, No.48), entitled "An act empowering the General
Counsel or his designee to issue subpoenas for certain
licensing board activities; providing for hearing examiners
in the Bureau of Professional and Occupational Affairs;
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providing additional powers to the Commissioner of
Professional and Occupational Affairs; and further providing
for civil penalties and license suspension."
(4) Administer and enforce this [act] chapter and to
impose appropriate administrative discipline upon licensees
found to be in violation of this [act] chapter.
(5) Bring criminal prosecutions for unauthorized,
unlicensed or unlawful practice and bring an action to enjoin
such practices. Duly authorized agents of the bureau shall be
authorized to issue citations in accordance with section 5(a)
of the act of July 2, 1993 (P.L.345, No.48), entitled "An act
empowering the General Counsel or his designee to issue
subpoenas for certain licensing board activities; providing
for hearing examiners in the Bureau of Professional and
Occupational Affairs; providing additional powers to the
Commissioner of Professional and Occupational Affairs; and
further providing for civil penalties and license
suspension," for violations of this [act] chapter.
(6) Require each licensee to register biennially with
the board.
(7) Keep a record showing the names and addresses of all
licensees licensed under this [act] chapter.
(8) Keep minutes and records of all its transactions and
proceedings especially with relation to the issuance, denial,
registration, formal reprimand, suspension and revocation of
licenses. In all actions or proceedings in any court, a
transcript of any board record or any part thereof, which is
certified to be a true copy by the board, shall be entitled
to admission in evidence.
(9) Adopt, promulgate and enforce such rules and
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regulations consistent with this [act] chapter as are deemed
necessary and proper to effectuate the provisions of this
[act] chapter.
(10) Submit annually, to the Consumer Protection and
Professional Licensure Committee of the Senate and the
Professional Licensure Committee of the House of
Representatives, a description of the types of complaints
received, status of the cases, board action which has been
taken and length of time from the initial complaint to final
board resolution.
(11) Submit annually to the department an estimate of
the financial requirements of the board for its
administrative, investigative, legal and miscellaneous
expenses.
(12) Submit annually to the House and Senate
Appropriations Committees, 15 days after the Governor has
submitted his budget to the General Assembly, a copy of the
budget request for the upcoming fiscal year which the board
previously submitted to the department.
(b) Summary proceedings.--All law enforcement officers in
this Commonwealth may institute summary criminal proceedings in
accordance with the Pennsylvania Rules of Criminal Procedure for
violations of this act. Any person who violates this [act]
chapter shall be subject to criminal prosecution as provided in
section [28] 328.
Section 6. Section 5 of the act, amended December 17, 2015
(P.L.450, No.78), is renumbered and amended to read:
Section [5] 303. License to engage in business.
(a) License required.--
(1) To promote the public safety and welfare, it shall
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be unlawful for any person to engage in the business as a
salesperson, dealer, branch lot, wholesale vehicle auction,
public or retail vehicle auction, manufacturer, factory
branch, distributor, distributor branch, factory
representative or distributor representative within this
Commonwealth unless the person has secured a license as
required under this [act] chapter.
(2) A person, including, but not limited to,
salespersons, shall not engage in the business for his own
benefit or profit unless he is licensed in accordance with
this [act] chapter.
(3) A person shall not act as, offer to act as or hold
himself out to be a broker in the advertising, buying or
selling of any new or used vehicle.
(b) Mobile home parks.--
(1) It shall be unlawful for any person, for a
commission, compensation or other consideration, to sell or
act as salesperson, broker or sales agent in connection with
the sale of one or more mobile homes located in a mobile home
park, as provided for in section 11 of the act of November
24, 1976 (P.L.1176, No.261), known as the Mobile Home Park
Rights Act, unless such person shall be licensed under this
[act] chapter, except as provided for in paragraph (2).
(2) Any real estate salesperson or broker licensed under
the act of February 19, 1980 (P.L.15, No.9), known as the
Real Estate Licensing and Registration Act, may list for sale
any preowned mobile home as defined by the Mobile Home Park
Rights Act, whether or not the mobile home is located in a
mobile home park, without being licensed under the provisions
of this [act] chapter. No mobile home park rule shall prevent
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the placement of a "for sale" sign on the home and on the
property on which the home is located. Nothing in this
paragraph shall authorize the listing for sale of preowned
mobile homes at a sales lot by a licensed real estate
salesperson or broker unless the salesperson or broker is
also licensed under this [act] chapter and has obtained a
sales tax license from the Department of Revenue.
(c) Salespersons to be employed.--It shall be unlawful for
any salesperson who has not been issued a salesperson's license
number by the board to engage in any activity related to the
buying, selling or exchanging of a vehicle for a commission,
compensation or other consideration. Any sale must be conducted
pursuant to and as part of the normal business activities of the
dealer by a person who is a licensed salesperson of the dealer,
unless that person is the dealer. The salesperson shall be
presently employed by the currently licensed vehicle dealer for
whom the salesperson is buying, selling or exchanging.
(1) Any salesperson licensed [hereunder] under this
chapter shall be licensed to sell only for one dealer at a
time and his license shall indicate the name of that dealer.
(2) A licensed salesperson who is employed by a dealer
who holds a dealer license in more than one category or at
more than one facility may sell for each such dealer or at
each such facility, provided there is common ownership.
(d) Display of license.--Each person to whom a license is
issued shall keep the license conspicuously displayed in his
principal office or place of business and shall, when required,
exhibit such license to any member or authorized representative
of the board.
(e) Facility requirements for dealers.--
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(1) Dealers engaged in the business of buying, selling
or exchanging new and used vehicles, trailers or semitrailers
shall maintain an established place of business with a
salesroom devoted principally to the vehicle business, and
new vehicle dealers shall hold a franchise in writing with a
manufacturer or distributor authorizing a new vehicle dealer
to sell a particular line-make of vehicles from the address
of the licensed facility.
(i) A vehicle auction shall not be required to meet
the facility requirements [contained in] under this
subsection.
(ii) A branch lot shall be a separately licensed
location which meets the facility requirements [defined
herein] under this section and by the regulations as a
main lot, unless used solely for the storage of vehicles.
(2) Dealers engaged in the business of buying, selling
or exchanging used vehicles, trailers or semitrailers shall
maintain an established place of business with a salesroom
devoted principally to the vehicle business which is a
building or portion of a building where books and records are
kept.
(3) Dealers engaged in the business of buying, selling
or exchanging new manufactured housing and used mobile homes
or manufactured housing shall maintain a minimum usable
display area of 5,000 square feet devoted principally to the
mobile home or manufactured housing business, maintain an
established place of business and hold a contract in writing
with a buyer, seller or manufacturer giving such person
buying or selling rights for new manufactured housing of that
particular line from the address of the licensed facility.
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(i) Dealers engaged in the business of buying,
selling or exchanging new manufactured housing, in lieu
of maintaining the minimum usable display area
requirements of this section, shall be authorized to
display, sell, list or offer for sale new manufactured
housing if the new manufactured housing is located on-
site in a mobile home park or new manufactured housing is
on real property owned or rented by a person who through
a written agreement with the dealer authorizes the dealer
to locate the new manufactured housing on the real
property and the dealer is authorized to display, sell,
list or offer the new manufactured housing at the real
property location. Such dealers must maintain an
established place of business and hold a contract in
writing with a buyer, seller or manufacturer giving such
person buying or selling rights for such new manufactured
housing.
(ii) A display, sale, listing or offer for sale from
a site or location as permitted by subparagraph (i) shall
not require the issuance of a branch lot license.
(4) Dealers engaged in the business of buying, selling
or exchanging used mobile homes or manufactured housing shall
maintain a place of business and a building, or a portion of
a building, where books and records are kept and which is
devoted principally to the mobile home or manufactured
housing business. There shall be no minimum square footage
display area requirement for a used mobile home or
manufactured housing dealer.
(i) Dealers engaged in the business of buying,
selling or exchanging new manufactured housing or used
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mobile homes or manufactured housing in addition to
maintaining the business facility requirements of this
section shall be authorized to display, sell, list or
offer for sale used manufactured housing or mobile homes
if the used manufactured housing or mobile homes are
located on-site in a mobile home park or used
manufactured housing or mobile homes are located on real
property owned or rented by the person who owns the used
manufactured housing or mobile home and the dealer
possesses a written agreement with the person authorizing
the dealer to sell, list or offer the used manufactured
housing or mobile home on behalf of the person from the
real property location.
(ii) A display, sale, listing or offer for sale from
a site or location as permitted by subparagraph (i) shall
not require the issuance of a branch lot license.
(5) Dealers engaged in the business of buying, selling
or exchanging new or used recreational vehicles shall
maintain an established place of business with a minimum
usable display area of 5,000 square feet devoted principally
to the recreational vehicle business and hold a franchise in
writing with a buyer, seller or manufacturer giving such
person buying or selling rights for new recreational vehicles
of that particular line from the address of the licensed
facility.
(f) Wholesale vehicle auction activities.--
(1) Wholesale vehicle auctions in wholesale vehicle
auction sales transactions shall permit only the following
persons to sell vehicles at the auction: vehicle dealers
licensed under this [act] chapter or by any other state or
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jurisdiction, manufacturers, leasing companies, rental
companies, financial institutions, insurance companies,
charitable nonprofit organizations; persons who sell vehicles
owned by their business which are utilized to accomplish
their main business purpose and who do not engage in any
vehicle buying, sales or repair business; and fleet owners.
(2) Only vehicle dealers licensed under this [act]
chapter or by any other state or jurisdiction shall be
permitted to purchase vehicles at wholesale vehicle auctions.
In addition to dealers licensed under this [act] chapter or
by any other state or jurisdiction, a vehicle business,
except for repair and towing, transporter, service, financier
or collector/repossessor businesses, registered with the
Department of Transportation and issued a Department of
Transportation identification number or licensed or
registered by any other state or jurisdiction for a similar
activity without being licensed under this [act] chapter
shall be authorized at wholesale vehicle auctions only to
buy, sell or exchange vehicles of the type for which the
business is authorized to engage by the Department of
Transportation or any other state or jurisdiction, provided
that upon buying such vehicle, application for an appropriate
certificate of title or certificate of salvage is made for
the vehicle.
(3) A dealer licensed under this [act] chapter without
possessing a wholesale vehicle auction or public or retail
vehicle auction license shall be permitted to sell vehicles
on consignment.
(4) A vehicle auction shall only permit a person who is
currently employed and licensed as a salesperson for a dealer
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who holds a license issued under this [act] chapter or by any
other state or jurisdiction to buy, sell or exchange vehicles
at an auction on behalf of a dealer. This paragraph shall not
apply to a salesperson who is buying, selling or exchanging
vehicles at:
(i) wholesale vehicle auctions which are either
fleet sales or manufacturer's sales; or
(ii) sales of vehicles for salvage, where the
salesperson shall be permitted to buy, sell or exchange
vehicles for no more than five dealers during the sale.
(5) Any person who has had his license under this [act]
chapter or authority to engage as a dealer or salesperson in
any other state or jurisdiction suspended or revoked shall
not be authorized, while the license or authority is
suspended or revoked, to be physically present at a wholesale
vehicle auction during the auctioning of vehicles.
(g) Public or retail vehicle auction activities.--
(1) Public or retail vehicle auctions shall not be
limited as to who may commission them to sell vehicles or who
may buy vehicles at public or retail auctions, provided that
any buyer or seller is not engaging in the business as a
dealer without a license or as any other person who would be
required to be licensed under this [act] chapter. Any person
who has had his license under this [act] chapter or authority
to engage as a dealer or salesperson in any other state or
jurisdiction suspended or revoked shall not be authorized,
while the license or authority is suspended or revoked, to be
physically present at a public or retail vehicle auction
during the auctioning of vehicles. Public or retail vehicle
auctions shall not be required to take title to the vehicles
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they offer for sale or have their auctioneers licensed as
salespersons under this [act] chapter. Public or retail
vehicle auctions shall inquire of the seller of the vehicle
and, if applicable, disclose to potential purchasers material
information obtained from the seller regarding the vehicle
being offered for sale as is required of all sellers under
applicable Federal and Pennsylvania laws.
(2) Public or retail vehicle auctions shall ensure all
purchasers at the vehicle auction:
(i) show proof of identification at the time of
transfer of ownership;
(ii) sign the identified name to the transfer of
ownership documents;
(iii) pay any applicable tax imposed under Article
II of the act of March 4, 1971 (P.L.6, No.2), known as
the Tax Reform Code of 1971, unless otherwise exempted by
law; and
(iv) submit transfer of ownership documents to the
Department of Transportation as required under 75 Pa.C.S.
(relating to vehicles).
(g.1) Mobility vehicle dealers.--
(1) A licensed dealer classified as a mobility vehicle
dealer may do all of the following:
(i) Display, inventory, advertise, solicit,
demonstrate, sell, offer for sale or deliver new and used
mobility vehicles.
(ii) Arrange, negotiate and assist a customer
regarding the purchase of a mobility vehicle.
(iii) Sell and install equipment and accessories in
and provide services for mobility vehicles, in order to
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meet the needs of persons with disabilities as drivers or
passengers.
(iv) Provide maintenance and repair services for
mobility vehicles.
(v) Acquire a new vehicle with a lowered floor or
frame or a raised roof and door in order to fit or equip
the vehicle for retail sale as a new mobility vehicle.
(2) A licensed dealer that is classified only as a
mobility vehicle dealer may not offer for sale or sell
vehicles which are not mobility vehicles.
(h) Notification of unlicensed persons.--Vehicle auctions
shall post a listing supplied by the board containing the names
of all licensees who are currently revoked or suspended and
persons who were penalized for unlicensed activity within the
past year.
Section 7. Sections 6, 7, 8, 9(a)(4) and (e)(3)(ii), 10, 11,
12, 12.1, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,
26, 27, 27.1, 28, 29, 30, 31 and 32 of the act are amended and
section 9 is amended by adding a subsection to read:
Section [6] 304. Biennial renewal.
Each license holder shall be required to renew his license
biennially; as a condition precedent to biennial renewal, the
license holder shall pay a biennial renewal fee and, in the case
of a salesperson or manufacturer's or distributor's
representative, he must be presently employed with a dealer,
manufacturer or distributor which has a current license. The
license holder shall comply with all requirements as set forth
through regulation by the board.
Section [7] 305. Enforcement.
Notwithstanding the enforcement powers granted to law
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enforcement officers to institute summary criminal proceedings
pursuant to section [4(b)] 302(b), the enforcement of the laws
and rules and regulations governing practice under this [act]
chapter is primarily vested in the board with the following
additional powers and duties to:
(1) Inspect all license holders.
(2) Authorize investigations of alleged violations.
(3) Review and inspect all business records, documents
and files relating to practice under this [act] chapter.
(4) Subpoena witnesses.
(5) Take depositions of witnesses in the manner provided
for in civil actions in courts of record.
(6) Bring criminal prosecutions for unauthorized,
unlicensed and unlawful practice in accordance with the terms
and provisions of the act of October 15, 1980 (P.L.950,
No.164), known as the Commonwealth Attorneys Act.
(7) Obtain injunctions from a court of competent
jurisdiction against persons acting in violation of this
[act] chapter.
Section [8] 306. Protest hearing decision within 120 days
unless waived by the parties.
(a) Franchise protest hearings to be decided within 120 days
unless waived by the parties.--Any franchise establishment,
relocation, termination or failure to renew hearing based on a
protest by a dealer or distributor of any action by a
manufacturer or distributor alleged to be in violation of a
provision of this [act] chapter 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 or
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distributor acted with good cause and, in the case of a protest
of a proposed establishment or relocation of a dealer under
section [27] 326, 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,
distributor or the additional or relocating dealer. Any parties
to such a hearing shall have a right of review of the decision
in a court of competent jurisdiction pursuant to 2 Pa.C.S. § 701
(relating to scope of subchapter). If the board determined that
good cause does not exist for refusing to permit the proposed
additional or relocated new vehicle dealer and the manufacturer
or distributor thereafter enters into a franchise establishing
that new vehicle dealer, the manufacturer or distributor shall
not be liable for damages based upon such establishment even if
a court reverses the determination of the board.
(b) Procedure.--The procedure at the hearing shall be
governed by 1 Pa. Code Pt. II (relating to general rules of
administrative practice and procedure) with the following
exceptions:
(1) In the event that the protest involves a termination
or failure to renew the franchise of a new vehicle dealer,
the dealer shall be permitted to review a manufacturer's or
distributor's files related to that dealer upon written
request.
(2) The board may order on its own initiative, or
pursuant to a party's request, that part of the evidence for
hearing be submitted to it in the form of depositions.
(c) Reconsideration.--In the event a decision of the board
is remanded by a court of competent jurisdiction for further
action by the board, the board shall consider the action and
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issue a final determination, not later than 120 days following
receipt of the record from such court, unless the 120-day time
period for the board to issue a final determination is waived or
extended by the parties.
(d) Dealer protest of automobile, motorcycle or truck
manufacturer act or omission.--
(1) Except for protests authorized under section [13 or
27] 312 or 326 and notwithstanding any other remedy available
under this [act] chapter, any new vehicle dealer who believes
that an automobile, motorcycle or truck manufacturer or
distributor with whom the new vehicle dealer holds a
franchise agreement has violated or is violating any
provision of this [act] chapter may file a protest with the
board setting forth the factual and legal basis for such
violation.
(2) The board shall issue a final determination within
120 days after the protest is filed, unless the 120-day time
period for the board to issue a final determination is waived
or extended by the parties.
(3) It shall be the burden of the automobile, motorcycle
or truck manufacturer to prove it has not violated any
provision of this [act] chapter as set forth in the protest
filed by the new vehicle dealer.
(4) The protested action shall not become effective
until the final determination is issued by the board and
shall not be effective thereafter if the board has determined
that there is good cause for not permitting the protested
action.
(5) The board shall be empowered to direct or require
the automobile, motorcycle or truck manufacturer or
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distributor to perform such acts as necessary in order for
the manufacturer or distributor to comply with the provisions
of this [act] chapter.
Section [9] 307. Reimbursement for all parts and service
required by the manufacturer or distributor;
reimbursement audits.
(a) Manufacturers or distributors to notify dealers of their
obligations.--
* * *
(4) This subsection shall not apply to manufacturers or
distributors of manufactured housing [or recreational
vehicles].
* * *
(e) Warranty reimbursement and incentive or reimbursement
program approval and audits.--
* * *
(3) * * *
(ii) During the 30-day time period under
subparagraph (i), a new vehicle dealer may file with the
board a protest of the charge-backs as provided for
under section [8] 306. When such a protest is filed, the
board shall inform the manufacturer or distributor that a
timely protest has been filed and that the manufacturer
or distributor shall not charge back the new vehicle
dealer:
(A) until the board has held a hearing; or
(B) if the board has determined that there is
good cause for not permitting the charge-back of such
new vehicle dealer.
* * *
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(g) Applicability.--This section shall not apply to
manufacturers or dealers of recreational vehicles.
Section [10] 308. Damage disclosure.
(a) Notice to dealer.--Each manufacturer or distributor of
new vehicles sold or transferred to a new vehicle dealer shall
notify the new vehicle dealer in writing prior to delivery of
the vehicle of any material damage to the vehicle which is known
to the manufacturer or distributor which was sustained or
incurred by the vehicle at any time after the manufacturing
process is complete but prior to delivery of the vehicle to the
dealer. A dealer may reject the delivery of a nonconforming
vehicle under the provisions of 13 Pa.C.S. (relating to
commercial code).
(b) Notice to purchaser.--When selling a new vehicle, each
new vehicle dealer shall notify the purchaser in writing at the
time of sale of any material damage sustained or incurred by the
vehicle at any time after the manufacturing process is complete
which is disclosed by the manufacturer to the new vehicle
dealer.
(c) Exemption.--This section shall not apply to
manufacturers and dealers of manufactured housing or to
manufacturers, distributors or dealers of motorcycles or
recreational vehicles.
(d) Other statutes and decisions.--Nothing in this section
shall be construed to diminish any obligation to provide notice
to the purchaser of a new vehicle which obligation is imposed by
any other provision of law or by any judicial decision,
including, but not limited to, the act of December 17, 1968
(P.L.1224, No.387), known as the Unfair Trade Practices and
Consumer Protection Law.
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Section [11] 309. Mediation and arbitration.
(a) Mediation of disputes between licensees.--
(1) A dealer or distributor may not file a complaint,
petition or protest or bring an action in a court of
competent jurisdiction against a manufacturer or distributor
based on an alleged violation of this [act] chapter or in a
protest action under this [act] chapter regarding an
establishment, relocation or termination of a franchise
agreement unless the dealer or distributor serves a demand
for mediation upon the manufacturer or distributor before or
contemporaneous with the filing of the complaint, petition or
protest or the bringing of an action. A demand for mediation
shall be in writing and served upon the manufacturer or
distributor by certified mail at an address designated for
that manufacturer or distributor within records of the dealer
or distributor. The demand for mediation shall contain a
brief statement of the dispute and the relief sought by the
dealer or distributor filing the demand.
(2) Within 20 days after the date a demand for mediation
is served, the parties shall mutually select an independent
mediator and meet with that mediator for the purpose of
attempting to resolve the dispute. The meeting place shall be
in this Commonwealth in a location selected by the mediator.
The mediator may extend the date of the meeting for good
cause shown by either party or upon stipulation of both
parties.
(3) The service of a demand for mediation under
paragraph (1) shall stay the time for the filing of any
complaint, petition, protest or action under this [act]
chapter until representatives of both parties have met with a
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mutually selected mediator for the purpose of attempting to
resolve the dispute. If a complaint, petition, protest or
action is filed before the meeting, the board or court shall
enter an order suspending the proceeding or action until the
meeting has occurred and may, upon written stipulation of all
parties to the proceeding or action that they wish to
continue to mediate under this subsection, enter an order
suspending the proceeding or action for as long a period as
the board or court considers appropriate. A suspension order
issued under this paragraph may be revoked upon motion of any
party or upon motion of the board or the court.
(4) The board shall encourage dealers, manufacturers and
distributors to establish, maintain and administer a panel of
mediators who have the character, ability and training to
serve as mediators and who have knowledge of the vehicle
industry.
(5) Mandatory mediation under this section shall not be
required of any of the following:
(i) A dealer seeking to dual two or more franchises
or a dealer seeking a relocation involving a request to
dual two or more franchises unless another dealer of the
same line-make has a right to protest the proposed
relocation under section [27] 326.
(ii) Manufacturers, distributors or dealers of
motorcycles.
(b) Arbitration of disputes between licensees.--After a
dispute arises, the licensees may voluntarily agree to submit a
dispute arising under this [act] chapter pertaining to a
complaint, petition, protest or action to binding or nonbinding
arbitration. Any arbitration proceeding shall be voluntary,
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initiated by serving a written demand for arbitration on the
other party, and shall be conducted under the provisions of 42
Pa.C.S. Ch. 73 Subch. A (relating to statutory arbitration) and
administered by representatives of dealers, manufacturers or
distributors.
(c) Immunity and presumption of good faith by mediators and
arbitrators.--A mediator or arbitrator is immune from civil
liability for any good faith act or omission within the scope of
the mediator's or arbitrator's performance of his powers and
duties under this section. Every act or omission of a mediator
or arbitrator is presumed to be a good faith act or omission.
This presumption may be overcome only by clear and convincing
evidence.
(d) Recreational vehicles exempted.--This section shall not
apply to recreational vehicle manufacturers, distributors or
dealers.
Section [12] 310. Unlawful acts by manufacturers or
distributors.
(a) Unlawful coercive acts.--It shall be a violation for any
manufacturer, factory branch, distributor, field representative,
officer, agent or any representative whatsoever of such
manufacturer, factory branch or distributor licensed under this
[act] chapter to require, attempt to require, coerce or attempt
to coerce any new vehicle dealer in this Commonwealth to:
(1) Order or accept delivery of any new vehicle, part or
accessory thereof, equipment or any other commodity not
required by law which shall not have been voluntarily ordered
by the new vehicle dealer, except that this paragraph is not
intended to modify or supersede any terms or provisions of
the franchise requiring new vehicle dealers to market a
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representative line of those vehicles which the manufacturer
or distributor is publicly advertising.
(2) Order or accept delivery of any new vehicle with
special features, accessories or equipment not included in
the list price of such vehicles as publicly advertised by the
manufacturer or distributor.
(3) Participate monetarily in an advertising campaign or
contest or to purchase unnecessary or unreasonable quantities
of any promotional materials, training materials, showroom or
other display decorations or materials at the expense of the
new vehicle dealer.
(4) Enter into any agreement with the manufacturer or to
do any other act prejudicial to the new vehicle dealer by
threatening to terminate or not renew a franchise or any
contractual agreement existing between the dealer and the
manufacturer or distributor, except that this paragraph is
not intended to preclude the manufacturer or distributor from
insisting on compliance with the reasonable terms or
provisions of the franchise or other contractual agreement
and notice in good faith to any new vehicle dealer of the new
vehicle dealer's violation of such terms or provisions shall
not constitute a violation of [the act] this chapter.
(5) Change the capital structure of the new vehicle
dealer or the means by or through which the new vehicle
dealer finances the operation of the dealership, provided
that the new vehicle dealer at all times meets any reasonable
capital standards determined by the manufacturer or
distributor in accordance with uniformly applied criteria,
and also provided that no change in the capital structure
shall cause a change in the principal management or have the
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effect of a sale of the franchise without the consent of the
manufacturer or distributor. The consent shall be granted or
denied within 60 days of receipt of a written request from
the new vehicle dealer.
(6) (i) Refrain from participation in the management
of, investment in or the acquisition of any other line of
new vehicle or related products. This paragraph does not
apply unless the new vehicle dealer maintains a
reasonable line of credit for each make or line of new
vehicle, the new vehicle dealer remains in compliance
with the reasonable terms of the franchise agreement and
any reasonable facilities requirements of the
manufacturer or distributor, and no change is made in the
principal management of the new vehicle dealer. The
reasonable facilities requirements shall not include any
requirement that a new vehicle dealer establish or
maintain exclusive facilities, personnel or display space
when such requirements or any of them would be
unreasonable in light of economic conditions and would
not otherwise be justified by reasonable business
considerations.
(ii) (A) Nothing in this paragraph shall permit the
dualing or relocation and addition of a line-make to
the dealership facilities without the new vehicle
dealer providing written certification to the
manufacturer or distributor that the new vehicle
dealer, with the addition of a line-make by the new
vehicle dealer, will maintain a reasonable line of
credit for each make or line of new vehicle and the
new vehicle dealer will remain in compliance with the
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reasonable terms of the franchise agreement and any
reasonable facilities requirements of the
manufacturer or distributor, excluding any exclusive
facility or nondualing requirements.
(B) The dealer shall provide the following
information:
(I) the address of the proposed new
location, if applicable;
(II) a brief description of the proposed
facility; and
(III) the owner of the proposed new
location.
(C) Any objection by the manufacturer or
distributor with regard to the dualing or relocation
and dualing of two or more franchises shall be
delivered to the dealer within 45 days of receipt of
the written certification from the new vehicle
dealer. Failure on the part of the manufacturer or
distributor to timely respond to a dualing or
relocation and dualing certification shall be deemed
to be an approval of the new vehicle dealer's
certification notice of dualing or relocation and
dualing of two or more franchises. The manufacturer
or distributor shall execute and deliver a franchise
reflecting the relocated address of the dealership
facilities to the new vehicle dealer within 30 days
of the date of the deemed approval.
(iii) A dealer may file a complaint, petition or
protest, or bring an action in a court of competent
jurisdiction against a manufacturer or distributor, based
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on a denial of a request by a dealer to dual or relocate
and dual two or more franchises without first going
through mediation required under section [11] 309. If a
dualing or relocation and dualing denial protest is filed
with the board, a hearing shall be held within 45 days of
the protest's filing and a final determination issued by
the board within 90 days of the protest filing. The
burden of proof shall be on the manufacturer or
distributor to show that the dualing or relocation and
dualing is unreasonable. No automobile, motorcycle or
truck manufacturer or distributor may limit or restrict
the addition of a line-make to the dealership facilities
if the new vehicle dealer maintains a reasonable line of
credit for each make or line of new vehicle and the new
vehicle dealer remains in compliance with the reasonable
terms of the franchise agreement and any reasonable
facilities requirements of an automobile, motorcycle or
truck manufacturer or distributor. This paragraph shall
also apply if the dealer seeks to dual two or more line-
makes and no relocation will occur. This paragraph shall
not impair the rights of another dealer of the same line-
make to protest a proposed relocation under section [27]
326.
(7) Prospectively assent to a release, assignment,
novation, waiver or estoppel which would relieve any person
from liability to be imposed by this [act] chapter or to
require any controversy between a new vehicle dealer and a
manufacturer, distributor or representative to be referred to
any person other than the duly constituted courts of the
Commonwealth or the United States of America, if such
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referral would be binding upon the new vehicle dealer. A
dealer and the manufacturer, distributor or representative,
by themselves or through their respective counsel, are
permitted to agree to execute a written agreement or to
arbitrate in a binding or nonbinding manner after a
controversy arises.
(8) Expand, construct or significantly modify facilities
without assurances that the manufacturer or distributor will
provide a reasonable supply of new vehicles within a
reasonable time so as to justify such an expansion in light
of the market and economic conditions.
(8.1) Unreasonably expand, construct or significantly
modify facilities in light of the market and economic
conditions or require a separate facility for the sale or
service of a line-make of a new vehicle if the market and
economic conditions do not clearly justify the separate
facility.
(8.2) (i) Purchase a good or service from a vendor
selected, identified or designated by a manufacturer,
factory branch, distributor, distributor branch or an
affiliate of a manufacturer, factory branch, distributor,
distributor branch by agreement, program, incentive
provision or other method if expanding, constructing or
significantly modifying a facility without allowing the
dealer the option to obtain a good or service of
substantially similar quality from a vendor chosen by the
dealer and approved by the manufacturer, which approval
may not be unreasonably withheld.
(ii) Nothing under this paragraph shall be construed
to:
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(A) Allow a dealer or vendor to eliminate or
impair a manufacturer's intellectual property rights,
including a manufacturer's intellectual property
rights in a trademark.
(B) Permit a dealer to erect or maintain signs
that do not conform to the intellectual property
usage guidelines of the manufacturer.
(9) Agree as a condition to granting or renewing a
franchise to waive, limit or disclaim a right that the dealer
may have to protest the establishment or relocation of
another vehicle dealer in the relevant market area as
provided in section [27] 326, unless such agreement is
voluntary.
(10) (i) Sell, offer to sell or sell exclusively an
extended service contract, extended maintenance plan or
similar product, such as gap products, offered, endorsed
or sponsored by the manufacturer or distributor by the
following means:
(A) By an act or statement that the manufacturer
or distributor will in any manner impact the dealer,
whether it is express or implied or made directly or
indirectly.
(B) By a contract, or an express or implied
offer of contract, made to the dealer on the
condition that the dealer shall sell, offer to sell
or sell exclusively an extended service contract,
extended maintenance plan or similar product offered,
endorsed or sponsored by the manufacturer or
distributor.
(C) By measuring the dealer's performance under
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the franchise based on the sale of extended service
contracts, extended maintenance plans or similar
products offered, endorsed or sponsored by the
manufacturer or distributor.
(D) By requiring the dealer to actively promote
the sale of extended service contracts, extended
maintenance plans or similar products offered,
endorsed or sponsored by the manufacturer or
distributor.
(ii) Nothing in this paragraph shall prohibit a
manufacturer or distributor from providing incentive
programs to a new vehicle dealer who makes the voluntary
decision to offer to sell, sell or sell exclusively an
extended service contract, extended maintenance plan or
similar product offered, endorsed or sponsored by the
manufacturer or distributor.
(b) Violations.--It shall be a violation of this [act]
chapter for any manufacturer, factory branch, distributor, field
representative, officer, agent or any representative whatsoever
of such manufacturer, factory branch or distributor licensed
under this [act] chapter to:
(1) Delay, refuse or fail to deliver new vehicles or new
vehicle parts or accessories in a reasonable time and in
reasonable quantity relative to the new vehicle dealer's
facilities and sales potential after acceptance of an order
from a new vehicle dealer having a franchise for the retail
sale of any new vehicle sold or distributed of an order from
a new vehicle dealer having a franchise for the retail sale
of any new vehicle sold or distributed by the manufacturer or
distributor as are covered by such franchise, if such
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vehicle, parts or accessories are publicly advertised as
being available for immediate delivery. There is no violation
if the failure is caused by acts or causes beyond the control
of the manufacturer or distributor.
(2) Unfairly discriminate among its new vehicle dealers
with respect to warranty, recall, service contract or any
other service required by the manufacturer or distributor
with regard to labor or parts reimbursement.
(3) Unreasonably withhold consent to the sale, transfer
or exchange of the franchise to a qualified buyer capable of
being licensed as a new vehicle dealer in this Commonwealth
who meets the manufacturer's or distributor's reasonable
requirements for appointment as a dealer.
(4) Unreasonably withhold consent to the relocation of
an existing new vehicle dealer. If the relocation involves
dualing of two or more franchises, the requirements of
subsection (a)(6)(ii) and (iii) shall apply and paragraph (5)
shall not apply.
(5) Fail to respond in writing to a request for consent
as specified in paragraphs (3) and (4) within 60 days of
receipt of a written request on the forms, if any, generally
utilized by the manufacturer or distributor for such purposes
and containing the information required. The failure to
respond within the time period set forth in this paragraph
shall be deemed to be approval of the request, and the
manufacturer or distributor shall execute and deliver a
franchise to the applicant within 30 days of the expiration
of this time period. A manufacturer or distributor shall
acknowledge in writing to the applicant the receipt of the
forms, and, if the manufacturer or distributor requires
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additional information to complete its review, the
manufacturer or distributor shall notify the applicant within
15 days of the receipt of the forms. If the manufacturer or
distributor fails to request additional information from the
applicant within 15 days after receipt of the initial forms,
the 60-day time period for approval shall be deemed to run
from the initial receipt date. Otherwise, the 60-day time
period for approval shall run from receipt of the
supplemental requested information. In no event shall the
total time period for approval exceed 75 days from the date
of the receipt of the initial forms.
(6) Prevent or attempt to prevent by contract or
otherwise, any new vehicle dealer from changing the executive
management control of the new vehicle dealer unless the
manufacturer or distributor, having the burden of proof, can
show that such change of executive management will result in
executive management or control by a person or persons who
are not of good moral character or who do not meet
reasonable, preexisting, and, with consideration given to the
volume of sales and service of the dealership, uniformly
applied minimum business experience standards. Where the
manufacturer or distributor rejects a proposed change in
executive management control, the manufacturer or distributor
shall give written notice of its reasons to the dealer within
60 days of notice to the manufacturer by the dealer of the
proposed change; otherwise the change in the executive
management of the new vehicle dealer shall be presumptively
deemed approved.
(7) Offer in connection with a sale of a new vehicle or
vehicles to the Federal Government, the Commonwealth or any
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political subdivision thereof, any discounts, refunds or any
other type of inducement to any new vehicle dealer without
making the same offer or offers available to all other of its
new vehicle dealers within this Commonwealth. This paragraph
shall not be construed to prevent the offering of incentive
programs or other discounts if the discounts are equally
available to all franchised vehicle dealers in this
Commonwealth on a proportionally equal basis.
(8) Fail to indemnify its franchised dealers,
notwithstanding the terms of any franchise agreement, against
any judgment for damages or settlement approved in writing by
the manufacturer or distributor, including, but not limited
to, court costs and reasonable attorney fees of the new
vehicle dealer, arising out of complaints, claims or
lawsuits, including, but not limited to, strict liability,
negligence, misrepresentation, express or implied warranty or
rescission of the sale as defined in 13 Pa.C.S. § 2608
(relating to revocation of acceptance in whole or in part) to
the extent that the judgment or settlement relates solely to
the alleged defective or negligent functions by the
manufacturer or distributor beyond the control of the dealer.
(9) Sell or exchange with a second or final stage
manufacturer, retail consumer or end user except through a
licensed new vehicle dealer. This paragraph shall not apply
to manufacturer or distributor sales of new vehicles to the
Federal Government, charitable organizations and employees of
the manufacturer.
(10) (i) Modify a franchise during the term of the
franchise or upon its renewal if the modification
substantially and adversely affects the new vehicle
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dealer's rights, obligations, investment or return on
investment without giving 60 days' written notice of the
proposed modification to the new vehicle dealer unless
the modification is required by law, court order or the
board. Within the 60-day notice period, the new vehicle
dealer may file with the board and serve notice upon the
manufacturer or distributor a protest requesting a
determination of whether there is good cause for
permitting the proposed modification. The board shall
promptly schedule a hearing and decide the matter within
180 days from the date the protest is filed. Multiple
protests pertaining to the same proposed modification
shall be consolidated for hearing. The proposed
modification shall not take effect pending the
determination of the matter. In determining whether there
is good cause for permitting a proposed modification, the
board shall consider any relevant factors, including, but
not limited to:
[(A)] (i) The reasons for the proposed
modification.
[(B)] (ii) Whether the proposed modification is
applied to or affects all new vehicle dealers in a
nondiscriminatory manner.
[(C)] (iii) Whether the proposed modification
will have a substantial and adverse effect upon the
new vehicle dealer's investment or return on
investment.
[(D)] (iv) Whether the proposed modification is
in the public interest.
[(E)] (v) Whether the proposed modification is
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necessary to the orderly and profitable distribution
of products by the manufacturer or distributor.
[(F)] (vi) Whether the proposed modification is
offset by other modifications beneficial to the new
vehicle dealer.
[(ii) This paragraph shall not apply to recreational
vehicle manufacturers, distributors or dealers.]
(11) Fail or refuse to offer to its new vehicle dealers
all new model vehicles manufactured for that line-make
franchise or require any of its new vehicle dealers to pay an
unreasonable fee, unreasonably remodel or renovate the new
vehicle dealer's existing facilities, unreasonably purchase
or construct a new facility, unreasonably purchase parts,
supplies, tools, equipment, operational services, other
merchandise or unreasonably participate in training programs
in order to receive any new model vehicles, parts or
accessories. It shall not be a violation of this paragraph if
the manufacturer or distributor fails to supply new vehicle
dealers with model vehicles, parts or accessories due to
circumstances beyond the control of the manufacturer or
distributor, including, but not limited to, strike or labor
difficulty, shortage of materials, freight embargo or
temporary lack of capacity.
(12) Operate a system for the allocation of new vehicles
which is not reasonable or fair to a new vehicle dealer. Upon
the written request of any of its new vehicle dealers, a
manufacturer or distributor shall disclose to the new vehicle
dealer the method on which new vehicles are allocated among
the new vehicle dealers of the same line-make. The
manufacturer distributor has the burden of establishing the
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fairness of its allocation.
(13) Own, operate or control, either directly or
indirectly, any vehicle warranty facility. Nothing in this
subsection shall prohibit any manufacturer or distributor
from owning, operating or controlling any warranty facility
for warranty repairs on vehicles owned or operated by the
manufacturer or distributor.
(14) Compel a dealer through a finance subsidiary of the
manufacturer or distributor to agree to unreasonable
operating requirements or to directly or indirectly terminate
a new vehicle dealer through the actions of a finance
subsidiary of the manufacturer or distributor. This paragraph
shall not limit the right of a financing entity to engage in
business practices in accordance with the trade of retail or
wholesale vehicle financing.
(15) Use any subsidiary corporation, affiliated
corporation or any other controlled corporation, partnership,
association, entity or person to accomplish what would
otherwise be illegal conduct under this [act] chapter on the
part of the manufacturer or distributor.
(16) Release to any third party any customer information
which has been provided by the new vehicle dealer to the
manufacturer or distributor if the customer objects in
writing to releasing the information, unless the information
is necessary for the manufacturer or distributor to meet its
obligations to customers or new vehicle dealers under
requirements imposed by Federal or State law.
(17) Require or coerce or attempt to require or coerce a
new vehicle dealer to pay attorney fees of the manufacturer
or distributor related to hearings and appeals brought under
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this [act] chapter.
(18) Vary the price charged to any of its new vehicle
dealers, which has the effect of causing a difference in the
price of any similarly equipped new vehicle to its new
vehicle dealers or to the ultimate purchaser. This paragraph
shall not be construed to prevent the offering of incentive
programs or other discounts if the incentive or discounts are
available to all competing new vehicle dealers of the same
line-make in this Commonwealth on a proportionately equal
basis.
(19) Directly or indirectly condition any of the
following actions on a dealer, prospective dealer or owner of
an interest in a dealership franchise or facility to enter
into a site-control agreement or exclusive use agreement:
(i) awarding of a franchise to a prospective dealer;
(ii) adding of a line-make or franchise to an
existing dealer's franchise or facility;
(iii) renewing of an existing dealer's franchise;
(iv) approving of the relocation of an existing
dealer's franchise or facility; or
(v) approving of the sale or transfer of a dealer's
ownership of a franchise or facility.
Nothing in this paragraph prohibits a dealer, prospective
dealer or owner of an interest in a dealership franchise or
facility from voluntarily entering into such an agreement for
other consideration. However, a provision contained in an
agreement which is not voluntarily entered into by a dealer,
prospective dealer or owner of an interest in a dealership
franchise or facility on or after the effective date of this
paragraph that is inconsistent with the provisions of this
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section shall be a violation of this [act] chapter.
(c) Restriction on ownership of dealer.--
(1) Except as otherwise provided in this subsection, a
manufacturer or distributor shall not:
(i) own or hold an interest, other than a passive,
minority interest in a publicly traded dealer held for
investment purposes, in a dealer licensed under this
[act] chapter which is engaging in the business of
buying, selling or exchanging vehicles; or
(ii) operate or control a dealer licensed under this
[act] chapter which is engaging in the business of
buying, selling or exchanging vehicles.
(2) A manufacturer or distributor may own or hold an
interest in a dealer or otherwise operate or control a dealer
for a period not to exceed 12 months from the date the
manufacturer or distributor acquires an interest in the
dealer if:
(i) The person from whom the manufacturer or
distributor acquired the dealer was a franchised dealer.
(ii) The dealer is for sale by the manufacturer or
distributor at a reasonable price and on reasonable terms
and conditions.
(3) On a showing by a manufacturer or distributor of
good cause, the board may extend the time limit set forth in
paragraph (2). An extension under this paragraph may not
exceed 12 months. Where an extension under this paragraph is
sought, the manufacturer or distributor shall provide notice
delivered 30 days before the extension request is filed with
the board to all the same line-make dealers within a ten-mile
radius of the manufacturer or distributor owned, operated or
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controlled dealer. An application for an extension is subject
to protest by a dealer of the same line-make who is within
the ten-mile radius of the manufacturer or distributor owned,
operated or controlled dealer.
(4) For the primary purpose of broadening the diversity
of its dealer body and enhancing opportunities for qualified
persons who are part of a group who have historically been
underrepresented in its dealer body or other qualified
persons who lack the resources to purchase a dealer outright,
a manufacturer or distributor may temporarily own an interest
in a dealer if the manufacturer's or distributor's
participation in the dealer is in a bona fide relationship
with a franchised dealer who:
(i) At or prior to the time the prospective dealer
takes an equity interest in the dealer, the prospective
dealer is obligated to make a significant investment in
the dealer, subject to loss.
(ii) Has an ownership interest in the dealer.
(iii) Operates the dealer under a written agreement
to acquire full ownership of the dealer within a
reasonable time and under reasonable terms and
conditions.
(5) A manufacturer or distributor shall not unfairly
discriminate or compete in terms of any sales, service or
operational activities with a new vehicle dealer of the same
line-make when a manufacturer or distributor operates a new
vehicle dealer under this subsection.
(6) The following shall apply:
(i) A manufacturer or distributor may own, operate
or control not more than five new vehicle dealerships
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trading solely in electric vehicles, as defined in 75
Pa.C.S. § 102 (relating to definitions), that are not
sold as new vehicles by a licensed independent new
vehicle dealer pursuant to an existing franchise with a
manufacturer or distributor, if each of the following
conditions are met:
(A) Each of the new vehicle dealerships selling
the manufacturer's new motor vehicles in this
Commonwealth trade exclusively in the manufacturer's
line-make.
(B) Each of the new vehicle dealerships selling
the manufacturer's motor vehicles in this
Commonwealth are determined to be in compliance with
this [act] chapter.
(C) Either of the following apply:
(I) The manufacturer, distributor or a
subsidiary, affiliate or controlled entity has
not acquired, nor does it hold a controlling
interest in another manufacturer or distributor,
required to be licensed under this [act] chapter.
(II) If a controlling interest is acquired,
the manufacturer, distributor or a subsidiary,
affiliate or controlled entity may not continue
to operate or control a new vehicle dealership
under this subsection for a period not more than
12 months from the date it acquired the
controlling interest.
(D) Either of the following apply:
(I) A controlling interest in the original
manufacturer, distributor or any subsidiary,
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affiliate or controlled entity was not
transferred, sold or conveyed to another
manufacturer, distributor, person or entity
required to be licensed under this [act] chapter.
(II) If a controlling interest is
transferred, sold or conveyed to another
manufacturer, distributor, person or entity
required to be licensed under this [act] chapter,
the entity may not continue to operate or control
a new vehicle dealership under this subsection
for a period not more than 12 months from the
date it acquired the controlling interest.
(E) The manufacturer shall have continuously
offered electric vehicles for sale for a period of
not less than 12 months prior to the effective date
of this clause.
(ii) Nothing under this [act] chapter shall prohibit
a manufacturer operating or controlling a new vehicle
dealership under this paragraph from owning, operating or
controlling a warranty facility for warranty repairs on
the manufacturer's line-make of vehicles.
(7) Nothing under this subsection shall prohibit the
sale or lease of used vehicles obtained as a result of a
trade or return of a vehicle during the purchase of a new
vehicle under paragraph (6) at a manufacturer's licensed
location.
(d) Applicability.--
(1) Subsections (b)(11) through (17) and (c) shall not
apply to manufacturers, distributors or dealers of
manufactured housing [or recreational vehicles].
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(1.1) This section shall not apply to manufacturers,
distributors or dealers of recreational vehicles.
(2) Subsections (b)(13) and (15) and (c) shall not apply
to the ownership or activities of a manufacturer in the
operation of a licensed dealer or a licensed dealer that
fulfills the following conditions:
(i) The manufacturer maintains an ownership interest
in, operates or controls a licensed dealer whose primary
business purpose is the rental of vehicles.
(ii) Vehicles sold by the licensed dealer primarily
engaged in the business of rental vehicles are limited to
those vehicles used for rental purposes or vehicles
obtained in trade for such vehicles.
(iii) Any warranty repairs are limited to those
repairs conducted on the vehicles used in the vehicle
rental business or vehicles sold by the licensed dealer.
Section [12.1] 311. Area of responsibility.
(a) General rule.--It shall be a violation of this [act]
chapter for any manufacturer or distributor, officer, agent or
any representative of a manufacturer or distributor to
unreasonably alter a new vehicle dealer's area of
responsibility. The following shall apply:
(1) Advance notice from the manufacturer of an
alteration of a dealer's area of responsibility shall be
given at least 60 days before the effective date of the
alteration. The notice shall include an explanation of the
basis for the alteration.
(2) At any time before the effective date of such
alteration of a dealer's area of responsibility, and after
the completion of any internal appeal process pursuant to the
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manufacturer's or distributor's policy manual, the dealer may
file a protest as provided for under section [8] 306. In the
event a protest is filed, no such alteration of a dealer's
area of responsibility shall become effective until final
determination by the board.
(3) If a dealer protests under paragraph (2), the burden
of proof shall be on the manufacturer to show that the
dealer's area of responsibility is reasonable and justifiable
in light of the market conditions.
(4) If a new vehicle dealer's area of responsibility is
altered, the manufacturer shall allow 18 months for the
dealer to penetrate the market and to become sales effective
prior to taking negative legal action claiming a breach or
nonperformance of the dealer's sales performance
responsibilities against the dealer.
(b) Exception.--This section shall not apply to recreational
vehicle manufacturers, distributors or dealers.
Section [13] 312. Termination of franchises.
(a) Terminations.--It shall be a violation of this [act]
chapter for any manufacturer or distributor, officer, agent or
any representative whatsoever to unfairly, without due regard to
the equities of said dealer and without just cause, terminate or
fail to renew the franchise of any vehicle dealer; or being a
manufacturer, to unfairly, without due regard to the equities of
a distributor and without just cause, terminate or fail to renew
the franchise of any distributor. The manufacturer or
distributor shall not meet its burden of proof to terminate or
fail to renew the franchise if the acts of the manufacturer or
distributor, in whole or in significant part, caused the dealer
or distributor to be unable to comply substantially with the
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reasonable and material requirements of the franchise.
(b) Mutual agreement of termination filing.--All existing
dealers' franchises shall continue in full force and operation
under a newly appointed distributor on the termination of an
existing distributor unless a mutual agreement of termination is
filed with the board between the newly appointed distributor and
such dealer.
(c) Notification of termination.--Not less than 60 days
advance notice of such termination or failure to renew shall be
given the dealer or distributor prior to the effective date
thereof unless the nature or character of the reason for
termination or failure to renew is such that the giving of such
notice would not be in the public interest. A copy of the notice
shall also be provided to the board.
(1) The 60-day notice period required by this subsection
may be reduced to not less than 15 consecutive business days
if the ground for termination or failure to renew is:
(i) insolvency of the dealer or filing of any
petition by or against the dealer under any bankruptcy or
receivership law;
(ii) failure of the dealer to conduct customary
sales and service operations during business hours for
seven consecutive business days, except in circumstances
beyond the direct control of the dealer;
(iii) conviction of the dealer, or any owner
thereof, of any felony which is punishable by
imprisonment;
(iv) suspension or revocation of any license which
the new vehicle dealer is required to have to operate a
dealership; or
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(v) based on a determination that there was a
fraudulent misrepresentation by the dealer to the
manufacturer or distributor which is material to the
franchise.
(2) The 60-day notice period under this subsection is
not required if the new vehicle dealer or distributor waives
it voluntarily in writing.
(d) Appeals.--At any time before the effective date of such
termination or failure to renew, the dealer or distributor may
appeal to the board for a hearing on the merits, and following
due notice to all parties concerned, such hearing shall be
promptly held. No such termination or failure to renew shall
become effective until final determination of the issue by the
board.
(e) Burden of proof and just cause terminations on appeal.--
In the event of a dealer or distributor appeal of the
termination or failure to renew of its franchise, the burden of
proof shall be on the manufacturer or distributor to show that
such termination or failure to renew was for just cause. Any
termination or failure to renew which is subject to section [14]
313 shall not be subject to this subsection.
(f) Exception.--This section shall not apply to recreational
vehicle manufacturers, distributors or dealers.
Section [14] 313. Industry reorganization.
(a) Violation.--
(1) It shall be a violation of this [act] chapter for a
manufacturer or distributor directly or indirectly or through
any officer, agent or employee to terminate or fail to renew
a franchise of a new vehicle dealer in connection with:
(i) any change in ownership or control of all or any
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part of the manufacturer's or distributor's business
whether by sale or transfer of assets, corporate stock or
other equity interest; assignment; merger; consolidation;
combination; joint venture; redemption; operation of law;
or otherwise; or
(ii) the termination, suspension or cessation of all
or any part of the manufacturer's or distributor's
business operations except for a termination of a part of
the manufacturer's or distributor's business operations
throughout the United States that is not otherwise part
of any change in ownership or control of the
manufacturer's or distributor's business.
(2) Paragraph (1) shall not apply if:
(i) a manufacturer or distributor offers a dealer a
replacement franchise with reasonable terms or
conditions; or
(ii) the manufacturer or distributor, within 90 days
of the effective date of the termination or failure to
renew, compensates the dealer in an amount at least
equivalent to the higher of the fair market value of the
franchise or portion of the franchise terminated or
failed to be renewed on the date the manufacturer or
distributor announces the act that results in the
termination or nonrenewal of the franchise or the date on
which the notice of termination or nonrenewal of the
franchise is issued.
(3) If the manufacturer or distributor either or both:
(i) authorizes the dealer to continue servicing and
supplying parts, including warranty service and parts,
for any goods or services marketed by the dealer pursuant
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to the franchise for a period of not less than five years
from the effective date of the termination or failure to
renew and continues to reimburse the dealer for warranty
parts and service at the same prices and terms as
franchised dealers for the manufacturer or distributor;
(ii) continues to supply the dealer with replacement
parts for any goods or services marketed by the dealer
pursuant to the franchise for a period of not less than
five years from the effective date of the termination or
failure to renew at the same prices and terms as
franchised dealers for the manufacturer or distributor;
and if a dealer chooses to continue either or both such parts
and service operation under subparagraph (i) or (ii), the
fair market value compensation of the franchise shall be
reduced to reflect the value of continuing either or both
such parts and service operation.
(b) Acts affecting franchise.--For purposes of subsection
(a), the termination or discontinuation of a series, line, brand
or class of new vehicle marketed by a manufacturer or
distributor as a distinct series, line, brand or class shall be
deemed to be the termination or nonrenewal of a franchise even
if said series, line, brand or class of new vehicle is part of a
franchise including other series, lines, brands or classes of
new vehicle, provided that nothing in this subsection shall be
construed as prohibiting a manufacturer or distributor from
changing, adding or deleting models, specifications, model
names, numbers or identifying marks or similar characteristics
of the new vehicles it markets, provided that such change,
addition or deletion does not result in the termination or
discontinuance of a distinct series, line, brand or class of new
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vehicle.
(c) Disputes.--Any dispute arising between a manufacturer or
distributor and a dealer under this section involving the
determination of the fair market valuation of a franchise shall
be determined by a court of competent jurisdiction and not by
the board.
(d) Exemption.--This section shall not apply to motorcycle
or recreational vehicle manufacturers, distributors or dealers.
Section [15] 314. Succession to franchise ownership.
(a) Succession of ownership interest.--Notwithstanding the
terms of any franchise, any owner of a new vehicle dealership
may appoint, by will or any other written instrument, a
designated family member, the spouse, child or grandchild,
spouse of a child or grandchild, brother, sister or parent of
the dealer owner, or qualified manager, who has been employed at
the dealership for at least two years, to succeed to the
ownership interest of such owner in the new vehicle dealership.
(b) Consent to succession on part of manufacturer or
distributor.--Notwithstanding the terms of any franchise, unless
there exists good cause to withhold consent to succession on the
part of the manufacturer or distributor, any designated family
member or qualified manager of the franchise location in
question of a retiring, deceased or incapacitated owner of a new
vehicle dealership may succeed to the ownership interest of such
owner under the existing franchise, provided:
(1) The designated family member or qualified manager
furnishes written notice to the manufacturer or distributor
of his or her intention to succeed to the ownership of the
new vehicle dealership within 60 days after the owner's
retirement, death or incapacity.
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(2) The designated family member or qualified manager
agrees to be bound by all then existing terms and conditions
of the franchise.
(c) Submission of personal and financial information.--The
manufacturer or distributor may request, and the designated
family member or qualified manager shall promptly provide, such
personal and financial information as is reasonably necessary to
determine whether the succession will be honored.
(d) Withholding consent to succession.--If a manufacturer or
distributor believes that good cause exists to withhold consent
to the succession to the ownership of a new vehicle dealership
by a designated family member or qualified manager of a
retiring, deceased or incapacitated owner of a new vehicle
dealership under the existing franchise, the manufacturer or
distributor must serve written notice on the designated family
member or qualified manager and on the board of its refusal to
honor the succession and intent to discontinue the existing
franchise with the new vehicle dealer. Such notice shall be
served no later than 60 days after the manufacturer's or
distributor's receipt of:
(1) notice of the designated family member's or
qualified manager's intent to succeed to the ownership of the
new vehicle dealer; or
(2) any personal or financial information requested by
the manufacturer or distributor.
(e) Notice requirements.--The notice in subsection (d) shall
state the specific grounds to withhold consent to honor the
succession and the manufacturer's or distributor's intent to
discontinue the franchise with the new vehicle dealer no sooner
than 60 days after the date the notice is served. The reasons
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given for the disapproval or any explanation of those reasons by
the manufacturer or distributor shall not subject the
manufacturer or distributor to any civil liabilities unless the
reasons given or explanations made are malicious and published
with the sole intent to cause harm to the dealer or successor.
If the notice of refusal and discontinuance is not timely and
properly served, the franchise shall continue in effect, subject
to termination only as otherwise provided under this [act]
chapter.
(f) Protest requirements upon withholding of consent.--
Within 30 days after receipt of such notice or within 30 days
after the end of any appeal procedure provided by the
manufacturer or distributor, whichever is greater, the
designated family member or qualified manager may file with the
board to protest the withholding the consent to honor the
succession. When a protest is filed, the board shall promptly
notify the manufacturer or distributor that a timely protest has
been filed and that such manufacturer or distributor shall not
terminate or discontinue the existing franchise until the board
has held a hearing and issued a written decision within 120 days
of the filing of the protest nor thereafter, unless the board
determines that there is good cause for not permitting the
succession.
(g) Conflicts.--This [act] chapter shall not preclude the
owner of a new vehicle dealership from designating any person as
his or her successor by written instrument filed with the
manufacturer or distributor. In the event of any conflict
between such a written instrument which has not been revoked by
written notice from the owner to the manufacturer or
distributor, and this section, the written instrument shall
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govern.
(h) Restriction.--This section shall not apply if the
successor will not agree to comply with an existing agreement
pertaining to transfer of ownership made between the
manufacturer or distributor and the dealer transferor or with a
new agreement containing substantially the same terms.
(i) Exception.--This section shall not apply to recreational
vehicle manufacturers, distributors or dealers.
Section [16] 315. Manufacturer right of first refusal.
A manufacturer or distributor shall be permitted to enact a
right of first refusal to acquire the new vehicle dealer's
assets or ownership in the event of a proposed change of all or
substantially all ownership or transfer of all or substantially
all dealership assets if all of the following requirements are
met:
(1) To exercise its right of first refusal, the
manufacturer or distributor must notify the dealer in writing
within the 60-day or 75-day time limitations established
under section [12(b)(5)] 310(b)(5).
(2) The exercise of the right of first refusal will
result in the dealer and dealer's owners receiving the same
or greater consideration as they have contracted to receive
in connection with the proposed change of all or
substantially all ownership or transfer of all or
substantially all dealership assets. In that regard, the
following shall apply:
(i) The manufacturer or distributor shall have the
right to and shall assume the dealer's lease for, or
acquire the real property on which the franchise is
conducted, on the same terms as those on which the real
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property or lease was to be sold or transferred to the
proposed new owner in connection with the sale of the
franchise, unless otherwise agreed to by the dealer and
manufacturer or distributor. The manufacturer or
distributor shall have the right to assign the lease or
to convey the real property.
(ii) The manufacturer or distributor shall assume
all of the duties, obligations and liabilities contained
in the agreements that were to be assumed by the proposed
new owner and with respect to which the manufacturer or
distributor exercised the right of first refusal,
including the duty to honor all time deadlines in the
underlying agreements, provided that the manufacturer or
distributor has knowledge of such obligations at the time
of the exercise of the right of first refusal. Failure by
an assignee of the manufacturer or distributor to
discharge such obligations shall be deemed a failure by
the manufacturer or distributor under this subsection.
(3) The proposed change of all or substantially all
ownership or transfer of all or substantially all dealership
assets does not involve the transfer of assets or the
transfer or issuance of stock by the dealer or one or more
dealer owners to a designated family member or members, the
spouse, child or grandchild, spouse of a child or grandchild,
brother, sister or parent of the dealer owner, of one or more
dealer owners or to a qualified manager or to a partnership
or corporation controlled by such persons.
(4) The manufacturer or distributor agrees to pay the
reasonable expenses, including reasonable attorney fees which
do not exceed the usual, customary and reasonable fees
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charged for similar work done for other clients, incurred by
the proposed new owner and transferee prior to the
manufacturer's or distributor's exercise of its right of
first refusal in negotiating and implementing the contract
for the proposed change of all or substantially all ownership
or transfer of all or substantially all dealership assets.
Notwithstanding the foregoing, no payment of such expenses
and attorney fees shall be required if the dealer has not
submitted or caused to be submitted an accounting of those
expenses within 20 days of the dealer's receipt of the
manufacturer's or distributor's written request for such an
accounting. Such an accounting may be requested by a
manufacturer or distributor before exercising its right of
first refusal.
Section [17] 316. Manufacturer or distributor repurchase of
inventory and equipment.
(a) Return of property for repurchase.--A new vehicle dealer
shall return property, including, but not limited to, vehicle
inventory, parts, equipment, tools and signs, as permitted under
this section or as set forth in the franchise agreement, to the
manufacturer or distributor within 90 days of the effective date
of any termination or nonrenewal of a franchise or upon a
termination or cessation of a part of a manufacturer's or
distributor's business operations throughout the United States
which is not part of any change in ownership, operation or
control of all or any part of the manufacturer's or
distributor's business under section [14] 313. The manufacturer
or distributor shall supply the new vehicle dealer with
instructions on the method by which the new vehicle dealer must
return the property to the manufacturer or distributor. Within
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60 days of tender of the property to the manufacturer or
distributor, the manufacturer or distributor, including medium
and heavy-duty truck component and engine manufacturers or
distributors who provide integral parts of vehicles or provide
major components by selling directly to dealers, shall
repurchase from the new vehicle dealer and remit payment to the
new vehicle dealer in accordance with their respective interest
in:
(1) Any new, undamaged and unsold vehicle inventory,
whether acquired from the manufacturer or distributor or from
another dealer of the same line-make in the ordinary course
of business within 18 months of the termination date,
provided the vehicle has less than 750 miles registered on
the odometer, not including mileage incurred in delivery from
the manufacturer or in transporting the vehicle between
dealers for sale, at the dealer's net acquisition cost, plus
any cost to the dealer for returning the vehicle inventory to
the manufacturer or distributor. A dealer shall be entitled
to the payment under this paragraph for new and undamaged
motor vehicles having a gross vehicle weight rating of at
least 10,001 pounds of current and two prior model years as
determined on a model-by-model basis within the line-make.
(2) All new, unused, undamaged parts listed in the
current price catalog acquired from a manufacturer or
distributor or a source approved or recommended by the
manufacturer or distributor at the dealer price listed in the
current parts catalog, less applicable allowances, plus 5% of
the catalog price of the part for the cost of packing and
returning the parts to the manufacturer or distributor.
Reconditioned or core parts shall be valued at their core
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value, the price listed in the current parts catalog or the
amount paid for expedited return of core parts, whichever is
higher.
(3) Any special tools or equipment offered for sale
during the three years preceding termination or nonrenewal
and each trademark or trade name bearing signs which was
recommended or required by the manufacturer or distributor at
fair market value at the time the notice of termination or
nonrenewal is given.
In the event the inventory is subject to a security interest,
the manufacturer may make payment jointly to the dealer and the
holder of the security interest.
(b) Failure to pay sums due.--A manufacturer or distributor
who fails to pay those sums due the dealer within the prescribed
time or at such time as the dealer proffers good title prior to
the prescribed time for payment is liable to the new vehicle
dealer for:
(1) the greater of dealer net acquisition cost, fair
market value or current price of inventory;
(2) interest on the amount due, calculated at the rate
applicable to a judgment of court; and
(3) reasonable attorney fees and costs.
(c) Limited applicability.--This section shall not apply to
manufacturers, distributors or dealers of recreational vehicles
or manufactured housing, nor shall it apply to motorcycle
manufacturers, distributors or dealers except when the
unilateral termination or failure to renew is by the
manufacturer or distributor.
Section [18] 317. Reimbursement of rental costs for dealer
facility.
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(a) Reimbursement of rental costs.--In the event of a
termination or nonrenewal under this [act] chapter, except for
termination or nonrenewal under section [14] 313, the
manufacturer or distributor shall, at the request and option of
the new vehicle dealer, also pay to the new vehicle dealer:
(1) a sum equivalent to rent for the unexpired term of
the lease or one year, whichever is less, or such longer term
as provided in the franchise, if the new vehicle dealer is
leasing the new vehicle dealership facilities from a lessor
other than the manufacturer or distributor; or
(2) a sum equivalent to the reasonable rental value of
the new vehicle dealership facilities for one year or until
the facilities are leased or sold, whichever is less, if the
new vehicle dealer owns the new vehicle dealership
facilities.
(b) Extent of requirement.--The rental payment required
under subsection (a) is only required to the extent that the
facilities were used for activities under the franchise and only
to the extent the facilities were not leased for unrelated
purposes. If payment under subsection (a) is made, the
manufacturer or distributor is entitled to possession and use of
the new vehicle dealership facilities for the period rent is
paid.
(c) Exemption.--This section shall not apply to motorcycle
or recreational vehicle manufacturers, distributors or dealers.
Section [19] 318. Grounds for disciplinary proceedings.
In addition to any criminal or civil penalties otherwise
provided in this act, the board shall have the power to formally
reprimand, suspend or revoke any license or refuse to issue or
renew any license of an applicant or licensee or a person
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required to be licensed under this act, if after due notice of
and hearing, the person charged is found in violation of or
fails to carry out the acts and procedures set forth in this act
or is found guilty of committing or attempting to commit any of
the acts set forth in section [23] 322 or any of the following
acts:
(1) Having had a license revoked or suspended by the
Commonwealth or another state based on grounds similar to
those which in this Commonwealth allow disciplinary
proceedings, in which case the record of such revocation or
suspension shall be conclusive evidence.
(2) Make any substantial misrepresentation of material
facts.
(3) Make any false promise of a character likely to
influence, persuade or induce the sale of a vehicle.
(4) Being a vehicle dealer or salesperson, having within
five years prior to the application for or issuance of a
license or while his current license is in force pleaded
guilty, entered a plea of nolo contendere or been found
guilty in a court of competent jurisdiction in this or any
other state or Federal jurisdiction of forgery, embezzlement,
obtaining money under false pretenses, extortion, conspiracy
to defraud, bribery, odometer tampering or any other crime
involving moral turpitude.
(5) Having failed or refused to account for moneys or
other valuables belonging to others which have come into his
possession arising out of the sale of vehicles.
(6) Having engaged in false, deceptive or misleading
advertising of vehicles.
(7) Having committed any act or engaged in conduct in
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connection with the sale of vehicles which clearly
demonstrates unprofessional conduct or incompetency to
operate as a licensee under this act.
(8) Having made a material misstatement in application
for licensure.
(9) Having set up, promoted or aided in promotion of a
plan by which vehicles are sold to a person for consideration
and upon the further consideration that the purchaser agrees
to secure one or more persons to participate in the plan by
respectively making a similar purchase and in turn agreeing
to secure one or more persons likewise to join in said plan,
each purchaser being given the right to secure money,
credits, goods or something of value, depending upon the
number of persons joining in the plan.
(10) Having engaged in the buying, selling, exchanging,
trading or otherwise dealing in vehicles on Sunday in
violation of 18 Pa.C.S. § 7365 (relating to trading in motor
vehicles and trailers).
(i) Manufactured housing is permitted to be sold on
Sundays by licensed manufactured housing dealers without
being subject to prosecution under this paragraph.
(ii) Licensed motorcycle dealers are permitted to
buy, sell, exchange, trade or otherwise deal in
motorcycles on Sunday without being subject to
prosecution under this paragraph.
(11) Being a dealer or broker who advertises or
otherwise holds out to the public that he is selling new
vehicles for which he does not hold a franchise agreement in
writing with a manufacturer or distributor giving the dealer
authority to sell the particular line-make of new vehicles.
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(12) Being a dealer or broker who sells new vehicles for
which he does not hold a franchise agreement in writing with
a manufacturer or distributor giving the dealer authority to
sell the particular line-make of new vehicles.
(13) Failing to take immediate remedial action when the
dealer knows that someone in his direct employ or someone who
renders vehicle-related services to the dealer for
consideration, has unlawfully tampered with the odometer of a
vehicle in his care, custody or control or which has been
sold or exchanged by the dealer. For the purpose of this
paragraph, remedial action shall be defined as at least
reporting the incident in writing to the Pennsylvania State
Police or the board.
(14) Engaging in the business for which such licensee is
licensed without at all times maintaining an established
place of business as required.
(15) Employing any person as a salesperson who has not
been licensed as required.
(16) Having had his vehicle business registration plates
(dealer identification number) suspended or revoked by the
Department of Transportation pursuant to 75 Pa.C.S. § 1374(a)
(relating to suspension or revocation of vehicle business
registration plates). A certified copy of the decision and
order of the Department of Transportation will constitute
conclusive evidence.
(17) Being a new car dealer whose franchise agreement
with a manufacturer or distributor, which gives the subject
dealer selling rights for that line-make, has been finally
terminated, but who continues to sell new vehicles. A
recreational vehicle or manufactured housing dealer, whose
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franchise was terminated or failed to be renewed by either
the manufacturer or the dealer, who owned new vehicles prior
to the termination or nonrenewal and sold them subsequent to
the termination or nonrenewal is exempt from prosecution
under this paragraph. Such dealers shall be authorized to
sell as new all new vehicles that remain on their lot after a
franchise is terminated or failed to be renewed.
(18) Willfully failing to display a license.
(19) Failing to obey any order of the board entered
pursuant to the act.
(20) Permitting or allowing another individual or
organization not licensed by the board to use that
individual's license for the purpose of operating in this
Commonwealth in a capacity for which the individual or
organization should have held a license.
(21) Willfully having made any false statement as to a
material matter in any oath or affidavit which is required by
this act.
(22) Failing to collect a tax or fee due the
Commonwealth upon a sale of a vehicle as defined in 75
Pa.C.S. § 102 (relating to definitions).
(23) Collecting a tax or fee and failing to issue a true
copy of the tax report to the purchaser as required by law.
(24) Issuing a false or fraudulent tax report or copy
thereof.
(25) Failing to pay over taxes or fees collected for the
Commonwealth at the time and in the manner required by law.
(26) Violating any provision of this act.
(27) Being an unlicensed salesperson, dealer, vehicle
auction, branch lot, manufacturer or any other person or
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business where a license is required under this act.
(28) Any violation of the regulations promulgated by the
board.
(29) Being a wholesale vehicle auction who permits
dealers who are not currently licensed in this Commonwealth
or any other state or jurisdiction or a vehicle business
registered with the Department of Transportation and issued a
Department of Transportation identification number or
licensed or registered by any other state or jurisdiction for
a similar activity who during the time their licenses or
registrations are suspended or revoked by the Commonwealth or
any other state to sell, represent or purchase vehicles at an
auction.
(29.1) Being a wholesale vehicle auction who permits a
vehicle business as described under paragraph (29), which is
restricted to certain vehicle buys, sales or exchanges as set
forth in section [5(f)(2)] 303(f)(2), to buy, sell or
exchange vehicles of a type which the vehicle business is not
authorized to engage in.
(30) Being a dealer which permits salespersons who are
not currently licensed in this Commonwealth or any other
state or who during the time their licenses are suspended or
revoked by the Commonwealth or any other state to sell,
represent or purchase vehicles at an auction.
(31) Being a public or retail vehicle auction who
knowingly and willfully permits any buyer or seller to buy or
sell vehicles which results in engaging in the business as
dealer without a license or permitting any other person to
engage in any activity which would require licensure under
this act.
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(32) Being a dealer which willfully permits an
individual or salesperson to buy, sell or exchange a vehicle
for his own benefit or profit under the dealer's license.
(33) Being a dealer which willfully permits any person
who is not a licensed salesperson or owner of the dealership
to use the dealer's dealer identification number issued by
the Department of Transportation, vehicle dealer's license
number or dealer's vehicle registration plates for the
purpose of buying, selling or exchanging vehicles.
(34) Being a dealer which conducts its business under
any name other than the name in which it is registered or at
any other location than that authorized by its license.
(35) Being a dealer, agent of a dealer or a salesperson
who buys, sells or exchanges vehicles with a person who is
required to be licensed under this act if the dealer, agent
or salesperson knew or should have known that the person is
not licensed.
(36) Accepting an order of purchase or a contract from a
buyer, which offer of purchase or contract is subject to
subsequent acceptance by the seller, if such arrangement
results in the practice of bushing.
(37) Failing to produce business records when an
authorized agent of the board reasonably requests the
licensee to produce business records.
(38) Being a person whose license under this act or
authority to engage as a dealer or salesperson in any other
state or jurisdiction was suspended or revoked and, while the
license or authority was suspended or revoked, was physically
present at a wholesale vehicle auction or public or retail
vehicle auction during the auctioning of vehicles. A vehicle
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auction shall not be subject to prosecution for a violation
of a person being physically present under this paragraph.
(39) Being an out-of-State recreational vehicle dealer
who, while buying, selling, titling, registering, financing
or exchanging recreational vehicles in this Commonwealth,
violates a Pennsylvania law or regulation or a law or
regulation of the state or jurisdiction of licensure or the
state or jurisdiction of domicile regarding the buying,
selling, titling, registering, financing or exchanging of
recreational vehicles.
(40) Being an out-of-State recreational vehicle dealer
who fails to demonstrate, upon direction of or investigation
by the board or its agents, that the out-of-State
recreational vehicle dealer satisfies the provisions of
section 32.1(c) regarding participation in this Commonwealth
in a recreational vehicle show, recreational vehicle off-
premise sale, recreational vehicle exhibition or recreational
vehicle rally.
Section [20] 319. Administrative liability of employer,
copartnership, association or corporation.
In the event of the revocation of the license issued to any
member of a partnership or to any officer of an association or
corporation, the license issued to a partnership, association or
corporation shall be revoked by the board unless, within a time
fixed by the board, in the case of a partnership, the connection
of the member whose license has been revoked shall be severed
and his interest in the partnership and his share in its
activities brought to an end, or in the case of an association
or corporation, the offending officer shall be discharged and
shall have no further participation in its activities.
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Section [21] 320. Reinstatement.
(a) Suspension.--Upon application in writing and after a
hearing pursuant to notice, the board may reissue or modify the
suspension of any license which has been suspended.
(b) Revocation.--Unless ordered to do so by a court, the
board shall not reinstate the license of a person that has been
revoked and such person shall be required to apply for a license
after a period of five years in accordance with section [22] 321
if he desires to resume operating as a licensee at any time
after such revocation.
Section [22] 321. Application for license.
(a) Dealer's or vehicle auction's license.--Application for
license as a dealer or vehicle auction shall be made in writing
to the board, signed by the applicant, setting forth the
following:
(1) Name of applicant and location of principal place of
business to which the license will be issued.
(2) Name or style under which business is to be
conducted and, if a corporation, the state of incorporation.
(3) Name and address of each owner or partner and, if a
corporation, the names of principal officers and directors.
(4) Locations in which the business is to be conducted
if the dealer has more than one place of business.
(5) If new vehicles are to be sold, the line-make or
line-makes to be handled.
(6) A statement of the previous history, record and
association of the applicant and of each owner, partner,
officer and director, which statement shall be sufficient to
establish to the satisfaction of the board the reputation in
business of the applicant.
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(7) A statement showing whether the applicant has
previously applied for a license and the result of such
application and whether the applicant has ever been the
holder of either a dealer, vehicle auction or salesperson
license which was revoked or suspended.
(8) If the applicant is a corporation or partnership, a
statement showing whether any of the partners, employees,
officers or directors have been refused a dealer's, vehicle
auction's or salesperson's license or have been the holder of
such a license which was revoked or suspended.
(9) A statement by the applicant that he has met all
facility requirements as noted herein and as required by
regulation.
(b) Salesperson's license.--Application for license as a
salesperson shall be made in writing to the board, signed by the
applicant, setting forth the following:
(1) The applicant's name and address.
(2) The period of time, if any, during which he has been
engaged in the occupation of salesperson.
(3) The name and address of his last employer.
(4) The name and address of the dealer then employing
him or into whose employ he is about to enter. If the
applicant is to be licensed for a dealer who is licensed in
more than one category or at more than one location and the
applicant desires to sell for each of the dealer's licensed
entities, the name and address of the primary location and of
each other entity shall be supplied.
(5) The recommendation of his employer or prospective
employer certifying that the applicant is honest, trustworthy
and of good repute and recommending that a license be
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granted. In the case of an applicant who is himself a dealer,
an officer of a corporation which is a dealer or a member of
a partnership which is a dealer, the foregoing recommendation
shall be made by another dealer, bank or sales finance
company which has personal knowledge concerning the
reputation and fitness of the applicant.
(6) A statement showing whether the applicant has
previously applied for a license and the result of such
application and whether the applicant has ever been the
holder of a salesperson's license which was revoked or
suspended or the subject of disciplinary action by this board
or that of any other jurisdiction.
(7) The application shall be made upon a form prepared
by the board containing such other reasonable information as
the board shall require.
(c) Application for license other than as a dealer, vehicle
auction or salesperson.--Application for license other than as a
dealer, vehicle auction or salesperson shall be made in writing
to the board accompanied by the required fee. The board may
require, in such application or otherwise, information relating
to the applicant's background and his financial standing, all of
which may be considered by the board in determining the fitness
of said applicant to engage in the business for which he desires
to be licensed.
(d) Manufacturer's or distributor's license.--Application
for license as a manufacturer or distributor shall be made in
writing to the board, signed by the applicant, setting forth or
attaching the following:
(1) Name of applicant and location of principal place of
business for the license which is the subject of the
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application and the location of any other place of business
within this Commonwealth.
(2) Name or style under which business is to be
conducted and, if a corporation, the state of incorporation.
(3) The line-make or line-makes of new vehicles which
are to be manufactured or distributed.
(4) A statement showing whether the applicant has
previously applied for a license and the result of such
application.
(e) Change of ownership.--A dealer or vehicle auction shall
supply the board with information regarding any change in named
owners. The information shall include a statement of the
previous history, record and reputation in the business of the
new owner. Where the same business name and address is to be
retained, any change in owners shall only require the licensee
to inform the board of the change in owners but shall not
require the licensee to submit to the entire license application
process as set forth by this act or corresponding regulations.
Section [23] 322. Refusal of license.
The board may refuse to issue a license if the applicant has
committed any of the acts set forth as grounds for the
suspension or revocation of a license or the board finds that
the applicant continued to engage in an activity in violation of
this act during the suspension or revocation period. The board
may also refuse to issue a license when it determines:
(1) That the applicant was previously the holder of a
license issued under this act, which license was revoked for
cause or which license was suspended for cause and the terms
of the suspension have not been fulfilled.
(2) That the applicant was previously a limited or
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general partner, stockholder, director or officer of a
partnership or corporation whose license issued under the
authority of this act was revoked for cause and never
reissued or was suspended for cause and the terms of
suspension have not been fulfilled.
(3) If the applicant is a partnership or corporation,
that one or more of the limited or general partners,
stockholders, directors or officers of the partnership or
corporation was previously the holder of a license issued
under the authority of this act which was revoked for cause
or was suspended for cause and the terms of the suspension
have not been fulfilled, or that by reason of the facts and
circumstances touching the organization, control and
management of the partnership or corporation business, the
policy of such business will be directed, controlled or
managed by individuals who, by reason of their conviction of
violations of the provisions of this act, would be ineligible
for a license and that by licensing such corporation or
partnership, the purposes of this act would likely be
defeated.
(4) That the applicant is a vehicle dealer, vehicle
auction or salesperson who, having within five years prior to
the application for or issuance of a license or while a
current license is in force, pleaded guilty, entered a plea
of nolo contendere or has been found guilty in a court of
competent jurisdiction in Federal or in this or any other
state jurisdiction of forgery, embezzlement, obtaining money
under false pretenses, extortion, conspiracy to defraud,
bribery, odometer tampering or any other crime involving
moral turpitude.
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Section [24] 323. Change of salesperson's license to indicate
new employer.
Whenever a licensed salesperson desires to change his
employment from one licensed dealer to another, he shall notify
the board in writing using the appropriate form, which is
completed in its entirety and is accurate, no later than ten
days after the date of change, pay the required fee and return
the current license if not previously returned. The board shall
issue a new license upon receipt of a complete and accurate
salesperson's transfer application. In the interim at such time
as the change in affiliation of the salesperson occurs, he shall
maintain a copy of the notification sent to the board as his
temporary license pending receipt of his new current license.
This temporary transfer license shall expire at the end of 45
days from the date on the transfer application. It shall be the
duty of the applicant to notify the board if a new license or
other pertinent communication is not received from the board
within 30 days of the submission of the transfer application.
The new license shall be issued for the remainder of the period
covered by the previous license. The fee for the issuance of
such changed license shall be determined by regulation.
Section [25] 324. Termination of employment or business.
(a) Salesperson's license to be surrendered after
termination of employment.--Within ten days after termination of
employment, the dealer shall surrender that salesperson's
license to the board. If the license is not in the dealer's
possession, then it will be the responsibility of the
salesperson to return the license to the board.
(b) Dealer's, branch lot or vehicle auction license to be
surrendered after termination of business.--Within ten days
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after termination of business activities, the dealer, branch lot
or vehicle auction shall surrender to the board all of its
licenses and its salespersons' licenses issued by the board.
Section [26] 325. Exemption from licensure and registration.
This act shall not be construed to require licensure and
registration in the following cases:
(1) Public officers in the conduct of sales of vehicles
in the performance of their official duties.
(2) Sales finance companies and banks licensed under the
provisions of the act of June 28, 1947 (P.L.1110, No.476),
known as the Motor Vehicle Sales Finance Act, in the conduct
of sales of vehicles which have been repossessed by them.
(3) The sale, exchange or purchase by a person in one
calendar year of fewer than five vehicles, except
manufactured housing or mobile homes, on which sales tax has
been paid at the purchase of the vehicle by that person.
Where such a vehicle is authorized under Article II of the
act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform
Code of 1971, to be transferred from the person who paid the
sales tax to another without being subject to sales tax, such
as, but not limited to, wife and husband transfers or
disbursements from an estate to a beneficiary, the recipient
of the vehicle shall be permitted to sell such vehicle
without paying sales tax prior to his sale of the vehicle.
(4) The sale, exchange or purchase of fewer than five
manufactured housing or mobile homes by a person in one
calendar year.
Section [27] 326. Limitations on establishing or relocating
dealers.
(a) Additional or relocation of new vehicle dealers.--
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(1) 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 the proposed new vehicle
dealer or relocate the 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.
(2) The notice required by this subsection shall include
the following information:
(i) The location of the proposed additional or
relocating new vehicle dealer.
(ii) An explanation of the appeal procedure provided
by the manufacturer or distributor, if any, to the
establishment of the proposed additional new vehicle
dealer or relocation of the new vehicle dealer.
(iii) An explanation of the existing new vehicle
dealer's rights to file a protest with the board to the
establishment of the proposed new vehicle dealer or the
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relocation of the new vehicle dealer.
(3) Under this subsection, relocating an existing new
vehicle dealer shall include any instance where an existing
dealer sells or otherwise transfers all or substantially all
of its business to a new owner and the new owner, who has
been approved by the manufacturer or distributor to enter
into a franchise agreement, seeks to relocate the ongoing,
operating dealership franchise from its current licensed
address to a site within the relevant market area of the
existing dealer which is not within five miles of another
licensed new vehicle dealer for the same line-make of vehicle
as set forth in subsection (b)(1).
(4) (i) Where an automobile, motorcycle or truck
manufacturer or distributor seeks to enter into an
agreement or franchise establishing an additional vehicle
warranty service facility or seeks to relocate an
existing vehicle warranty service facility within or into
a radius of five miles surrounding where an existing new
vehicle dealer vehicle warranty service facility of the
same line-make is then represented, except in cases
involving a franchised new medium or heavy-duty truck
dealer, in which case the affected radius shall be the
relevant market area or the area of responsibility as
defined in the dealer's franchise, whichever is greater,
the automobile, motorcycle or truck manufacturer shall in
writing first notify the board and each affected new
vehicle dealer vehicle warranty service facility of such
line-make of the intention to establish an additional
vehicle warranty service facility or to relocate an
existing vehicle warranty service facility within or into
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the affected market areas.
(ii) The notice required by subparagraph (i) shall
include the following information:
(A) The location of the proposed additional or
relocating vehicle warranty service facility.
(B) An explanation of the appeal procedure
provided by the automobile, motorcycle or truck
manufacturer or distributor, if any, to the
establishment of the proposed additional vehicle
warranty service facility or relocation of the
vehicle warranty service facility.
(C) An explanation of the existing new vehicle
dealer's or vehicle warranty service facility's
rights to file a protest with the board to the
establishment of the proposed vehicle warranty
service facility or the relocation of the vehicle
warranty service facility.
(iii) Within 20 days after the end of any appeal
procedure provided by the automobile, motorcycle or truck
manufacturer, any such new vehicle warranty dealer
vehicle service facility may file with the board a
protest to the establishment or relocation of the vehicle
warranty service facility.
(iv) When such a protest is filed, the board shall
inform the automobile, motorcycle or truck manufacturer
that a timely protest has been filed and that the
automobile, motorcycle or truck manufacturer shall not
establish the proposed vehicle warranty service facility
or relocate the vehicle warranty service facility until
the board has held a hearing nor thereafter if the board
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has determined that there is good cause for not
permitting the addition or relocation of such vehicle
warranty service facility.
(v) In determining whether good cause exists to
allow for the establishment or relocation of a vehicle
warranty service facility, the board shall consider the
same type of circumstances as established in subsection
(c).
(b) Nonapplicability of section.--This section does not
apply:
(1) To the relocation of an existing dealer within that
dealer's relevant market area, provided that the relocation
not be at a site within five miles of a licensed new vehicle
dealer for the same line-make of vehicles.
(2) If the proposed new vehicle dealer is to be
established at or within two miles of a location at which a
former licensed new vehicle dealer for the same line-make of
new vehicle had ceased operating within the previous two
years. For purposes of this section, a former vehicle dealer
shall have ceased operations on the date on which the
franchise or agreement shall have been finally terminated.
(3) To the relocation of an existing dealer to a site
that is further away from the nearest dealer of the same
line-make.
(4) To manufactured housing or recreational vehicle
dealers.
(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
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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 vehicle
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.
Section [27.1] 327. Licensing cost.
(a) Licensing cost.--Subject to the limitations established
under subsection (c), a licensed dealer who has a contract with
the Department of Transportation pursuant to 75 Pa.C.S. § 7501
(relating to authorization of messenger and agent services) may
charge the purchaser of a vehicle a licensing cost permissible
under 75 Pa.C.S. Ch. 19 (relating to fees) and the act of
December 17, 1968 (P.L.1224, No.387), known as the Unfair Trade
Practices and Consumer Protection Law, and regulations
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promulgated thereunder, to include any of the following:
(1) The actual cost incurred by the dealer for fees
associated with titling and registering the vehicle,
including messenger fees, notary fees and electronic
transaction fees.
(2) A documentary preparation charge for:
(i) Preparation and completion of documents required
to register and license the vehicle under 75 Pa.C.S.
(relating to vehicles).
(ii) Collection and submission of taxes payable by
the purchaser.
(iii) Preparation of any other information
associated with titling and registration of a vehicle.
(b) Out-of-State title.--The provisions of subsection (a)
shall apply whether or not the purchaser intends to title and
register the vehicle outside this Commonwealth.
(c) Limitations.--The following limitations shall apply:
(1) A dealer which provides electronic transaction
services for documents under subsection (a)(2) may impose a
maximum charge of $100 for calendar year 2008 and a maximum
charge of $120 for calendar year 2009.
(2) A dealer which does not provide electronic
transaction services for document preparation under
subsection (a)(2) may impose a maximum charge of $80 for
calendar year 2008 and a maximum charge of $100 for calendar
year 2009.
(d) Adjustment.--Beginning in January 2010, and annually
thereafter, the licensing cost for documentary preparation shall
be adjusted in accordance with the Federal Consumer Price Index
for All Urban Consumers (CPI-U) for all items as published by
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the United States Department of Labor, Bureau of Labor
Statistics, for the previous 12-month period on a cumulative
basis. Any adjustment which is less than 50¢ shall be rounded
down to the next lowest dollar amount and any adjustment which
is 50¢ or greater shall be rounded up to the next highest dollar
amount.
(e) Fees.--Licensing costs under this section shall not be
considered fees for purposes of section [30 or 31] 330 or 331.
Section [28] 328. Penalties.
(a) Criminal penalties for violation of this act.--Whoever
shall give any false or forged evidence of any kind to the board
or to any member in order to obtain a license, or shall refuse
upon request to furnish business records, documents and files
relating to practice under this act, or shall otherwise violate
the provisions of this act shall be guilty of a summary offense
and, upon conviction, shall be ordered to pay a fine of $1,000.
A licensee shall be subject to criminal prosecution under this
subsection for violation of any provision of this act.
(b) Criminal penalties for unlicensed activity.--Whoever
engages in the business of vehicle dealer, manufacturer, factory
branch, distributor, distributor branch, auction or broker or
engages in the occupation of vehicle salesperson or factory or
distributor representative without being licensed and registered
as required or exempted from licensure as provided, or shall
present or attempt to use as his own the license of another,
shall be guilty of a summary offense and, upon conviction, shall
be sentenced to pay a fine of $1,000 or any higher amount equal
to double the pecuniary gain derived from the offense. For the
purpose of this act the sale of each vehicle in violation of
this act constitutes a separate offense.
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(c) Additional remedy.--In addition to any other civil
remedy or criminal penalty provided for in this act, the board
by a vote of the majority of the authorized membership of the
board as provided by law, or by a vote of the majority of the
duly qualified and confirmed membership, may levy a civil
penalty of up to $1,000 on any current licensee who violates any
provision of this act or on any person who engages in an
activity required to be licensed by this act. The board shall
levy this penalty only after affording the accused party the
opportunity for a hearing as provided in 2 Pa.C.S. (relating to
administrative law and procedure).
Section [29] 329. Civil actions for violations.
Notwithstanding the terms, provisions or conditions of any
agreement or franchise or other terms or provisions of any
novation, waiver or other written instrument, any person who is
or may be injured by a violation of a provision of this act of
any party to a franchise who is so injured in his business or
property by a violation of a provision of this act relating to
that franchise, or any person so injured because he refuses to
accede to a proposal for an arrangement which, if consummated,
would be in violation of this act, may bring an action for
damages and equitable relief, including injunctive relief, in
any court of competent jurisdiction.
Section [30] 330. Fees.
(a) General rule.--All fees required under the provisions of
this act shall be fixed by the board by regulation and shall be
subject to review in accordance with the act of June 25, 1982
(P.L.633, No.181), known as the Regulatory Review Act. If the
revenues generated by fees, fines and civil penalties imposed in
accordance with the provisions of this act are not sufficient to
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match expenditures over a two-year period, the board shall
increase those fees by regulation, subject to review in
accordance with the Regulatory Review Act, such that the
projected revenues will meet or exceed projected expenditures.
(b) Increases by bureau.--If the Bureau of Professional and
Occupational Affairs determines that the fees established by the
board are inadequate to meet the minimum enforcement efforts
required, then the bureau, after consultation with the board,
shall increase the fees by regulation, subject to review in
accordance with the Regulatory Review Act, such that adequate
revenues are raised to meet the required enforcement effort.
(c) Existing fees.--All fees fixed pursuant to section 211
of the act of July 1, 1978 (P.L.700, No.124), known as the
Bureau of Professional and Occupational Affairs Fee Act, shall
continue in full force and effect until changed by the board
pursuant to subsection (a).
Section [31] 331. Disposition of fees and fines.
All civil fines and fees and all criminal fines shall be paid
into the Special Augmentation Fund established by section 301 of
the act of July 1, 1978 (P.L.700, No.124), known as the Bureau
of Professional and Occupational Affairs Fee Act.
Section [32] 332. Vehicle shows, off-premise sales and
exhibitions.
(a) Participation.--Any licensed dealer, distributor or
manufacturer may participate in public vehicle shows, off-
premise sales and exhibitions, provided that a dealer shall
participate only in shows, off-premise sales and exhibitions
held within the dealer's relevant market area. A dealer shall be
permitted to conduct a vehicle show or exhibition at its
established place of business.
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(b) Application of section.--The provisions of this section
relating to "relevant market area" shall not apply to vehicle
shows held as part of, and in conjunction with, the following:
(1) An event operated to benefit a charitable
organization or group of organizations approved under section
501(c)(3) of the Internal Revenue Code of 1954 (68A Stat. 3,
26 U.S.C. § 501(c)(3)).
(2) A community or agricultural fair which receives
funds from the Pennsylvania Fair Fund.
(3) An event pertaining to shows of recreational
vehicles, manufactured housing or mobile homes.
(c) Out-of-State new vehicle dealers.--A new vehicle dealer,
except a recreational vehicle dealer, licensed in another state
or jurisdiction may participate with permission of its licensed
manufacturer in industrywide public vehicle shows and
exhibitions in which a total of 50 or more new vehicle dealers
participate as exhibitors. Furthermore, the limitations relating
to relevant market area contained in subsection (a) shall not be
applicable to industrywide public vehicle shows and exhibitions
in which, when open to the public, a total of 50 or more new
vehicle dealers participate as exhibitors.
(e) Emergency vehicles.--Licensed manufacturers of
firefighting or emergency service vehicles shall be authorized
to buy, sell or exchange such vehicles to governmental agencies
or emergency service providers at vehicle shows, off-premise
sales and exhibitions without possessing a dealer's license.
(f) Applicability.--This section shall not apply to
recreational vehicle dealers.
Section 8. (Reserved).
Section 9. Section 33 of the act is renumbered and amended
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