SENATE AMENDED PRIOR PRINTER'S NOS. 1767, 1924, 2079, PRINTER'S NO. 2327 2206, 2300
No. 1454 Session of 1983
INTRODUCED BY HUTCHINSON, DININNI AND LETTERMAN, SEPTEMBER 19, 1983
AS AMENDED ON SECOND CONSIDERATION, IN SENATE, DECEMBER 12, 1983
AN ACT 1 Providing for the State Board of Vehicle Manufacturers, Dealers 2 and Salespersons; and providing penalties. 3 TABLE OF CONTENTS 4 Section 1. Short title. 5 Section 2. Definitions. 6 Section 3. State Board of Vehicle Manufacturers, Dealers 7 and Salespersons. 8 Section 4. Powers and duties of board. 9 Section 5. License to engage in business. 10 Section 6. Biennial renewal. 11 Section 7. Enforcement. 12 Section 8. Warranty and predelivery obligations. 13 Section 9. Unlawful acts by manufacturers, factory branches, 14 distributors, field representatives, officers, 15 agents or any representatives of manufacturers, 16 factory branches or distributors.
1 Section 10. Grounds for disciplinary proceedings. 2 Section 11. Administrative liability of employer, 3 copartnership, association or corporation. 4 Section 12. Reinstatement. 5 Section 13. Application for license. 6 Section 14. Refusal of license. 7 Section 15. Change of salesperson's license to indicate new 8 employer. 9 Section 16. Termination of employment or business. 10 Section 17. Exemption from licensure and registration. 11 Section 18. Limitations on establishing or relocating dealers. 12 Section 19. Penalties. 13 Section 20. Civil actions for violations. 14 Section 21. Fees. 15 Section 22. Disposition of fees and fines. 16 Section 23. Vehicle shows and exhibitions. 17 Section 24. Savings provision. 18 Section 25. Reestablishment of agency. 19 Section 26. Repeals. 20 Section 27. Expiration of terms of board members. 21 Section 28. Effective date. 22 The General Assembly of the Commonwealth of Pennsylvania 23 hereby enacts as follows: 24 Section 1. Short title. 25 This act shall be known and may be cited as the Board of 26 Vehicles Act. 27 Section 2. Definitions. 28 The following words and phrases when used in this act shall 29 have the meanings given to them in this section unless the 30 context clearly indicates otherwise: 19830H1454B2327 - 2 -
1 "Agreement." A contract or franchise or any other written 2 instrument which describes the contractual relationship between 3 a manufacturer, distributor, importer or dealer and at least one 4 other person. 5 "Board." The State Board of Vehicle Manufacturers, Dealers 6 and Salespersons. 7 "Branch lot." An office and lot maintained in addition to 8 the main office and lot of a licensed vehicle dealer. The branch 9 lot shall meet the facility requirements defined herein and by 10 regulations as a main lot, unless used solely for the storage of 11 vehicles. 12 "Broker." Any person who, for a commission, compensation or 13 other valuable consideration, engages or participates in the 14 wholesale or retail sale in one calendar year of five or more 15 used vehicles or any new vehicle as the agent for the buyer or 16 seller. For the purposes of this definition, the broker need not 17 have custody or control of the subject vehicle but shall have 18 the authority of the buyer or seller to negotiate or conduct a 19 transaction on behalf of the buyer or seller. This definition 20 shall specifically include car auctions: Provided, however, That 21 a person licensed as a broker who is solely engaged in the 22 business of conducting a car auction shall not be required to 23 meet the facilities requirements as noted herein. 24 "Bushing." The practice of increasing the selling price of a 25 vehicle above that originally quoted the purchaser or decreasing 26 the allowance for trade-in of a used vehicle after the purchaser 27 has signed a purchase order or contract which is subject to 28 subsequent acceptance by the seller. If a used vehicle is being 29 used as the down payment and it is not to be delivered to the 30 dealer or broker until delivery of the new vehicle, the used 19830H1454B2327 - 3 -
1 vehicle may be reappraised at that time if the dealer or broker
2 can establish that the vehicle has suffered damage or serious
3 mechanical deterioration since date of original valuation.
4 Reappraisal value may determine the allowance made for such used
5 car.
6 "Curb-stoner or unlicensed salesperson." Any person who, for
7 a commission, compensation or other valuable consideration, and
8 without being licensed in accordance with this act as a
9 salesperson, engages in the wholesale or retail sale, exchange
10 or purchase in one calendar year of five or more used vehicles
11 or any new vehicle.
12 "Dealer." A person may obtain a license in one or more of
13 the following areas:
14 (1) A person engaged in and devoting a substantial
15 portion of time to the business of buying, selling or
16 exchanging new and used vehicles, trailers or semitrailers on
17 commission, compensation or other consideration, WHO HOLDS A <--
18 WRITTEN CONTRACT WITH A MANUFACTURER, IMPORTER OR
19 DISTRIBUTOR, GIVING SUCH PERSON SELLING RIGHTS FOR NEW MOTOR
20 VEHICLES, TRAILERS OR SEMITRAILERS, or who is an importer or
21 distributor of new motor vehicles, trailers or semitrailers
22 who holds a contract in writing with a buyer, seller or <--
23 manufacturer of motor vehicles, trailers and semitrailers.
24 (2) A person engaged in and devoting a substantial
25 portion of time to the business of buying, selling or
26 exchanging used vehicles, tractors, trailers or semitrailers
27 on commission, compensation or other consideration. The term
28 includes fleet owners who engage directly in the retail sale
29 of fleet vehicles.
30 (3) A person engaged in and devoting a substantial
19830H1454B2327 - 4 -
1 portion of time to the business of buying, selling or 2 exchanging mobile homes, house trailers or office trailers on 3 commission, compensation or other consideration. 4 (4) A person engaged in and devoting a substantial 5 portion of time to the business of buying, selling or 6 exchanging used mobile homes, house trailers or office 7 trailers on commission, compensation or other consideration. 8 (5) A person engaged in and devoting a substantial 9 portion of time to the business of buying, selling or 10 exchanging new and used recreational vehicles on commission 11 or otherwise. Recreational vehicles shall include motor 12 homes, house trailers or slide-in-campers. 13 (6) A person engaged in and devoting a substantial 14 portion of his time to the business of buying, selling or 15 exchanging used recreational vehicles on commission or 16 otherwise. 17 "Department." The Department of State acting through the 18 Commissioner of Professional and Occupational Affairs. 19 "Distributor." A person, resident or nonresident, who sells 20 or distributes vehicles to dealers or who maintains distributor 21 representatives. 22 "Distributor branch." A branch office similarly maintained 23 by a distributor or wholesaler for like purposes. 24 "Distributor representative." A representative similarly 25 employed by a distributor, distributor branch or wholesaler. 26 "Established place of business." A permanent, enclosed 27 building as more specifically defined by regulation which is 28 accessible and open to the public at all reasonable times and at 29 which the business of a new or used vehicle dealer, including 30 the display and repair of vehicles, may be lawfully conducted in 19830H1454B2327 - 5 -
1 accordance with the terms of applicable building codes, zoning 2 and other land-use regulatory ordinances. 3 "Factory branch." A branch office maintained by a 4 manufacturer for the sale of vehicles to distributors or dealers 5 or for directing or supervising, in whole or part, its 6 representatives. 7 "Factory representative." A representative employed by a 8 manufacturer or by factory branch for the purpose of making or 9 promoting the sale of its vehicles or for supervising or 10 contacting its dealers or prospective dealers. 11 "Fleet owner." Any person who owns a group of 15 or more 12 vehicles. 13 "Franchise." The written agreement or contract between any 14 new vehicle manufacturer and any new vehicle dealer which 15 purports to fix the legal rights and liabilities of the parties 16 to such agreement or contract, and pursuant to which the dealer 17 purchases and resells the franchise product or leases or rents 18 the dealership premises. 19 "Manufacturer." Any person, resident or nonresident, who 20 manufactures or assembles vehicles or who manufactures or 21 installs on previously assembled chassis special bodies or 22 equipment which when installed form an integral part of a 23 vehicle and which constitute a major manufacturing alteration. 24 "Motorcycle." A vehicle having a seat or saddle for the use 25 of the rider and designed to travel on not more than three 26 wheels in contact with the ground. 27 "Off-premise sale." A sale for a fixed and limited period of 28 time held in the normal marketing area of the participating 29 dealer or dealers, which is conducted for the purpose of 30 exhibiting and selling vehicles at a geographical location not 19830H1454B2327 - 6 -
1 normally used as a dealership. 2 "Person." Any individual, corporation, partnership, 3 association or other entity foreign or domestic. 4 "Recreational vehicle." A vehicular unit primarily designed 5 as temporary living quarters for recreational, camping or travel 6 use, which either has its own motive power or is mounted on or 7 drawn by another vehicle but shall not include a camping 8 trailer. The basic entities are: travel trailer, house trailer, 9 slide-on camper and motor home. 10 "Relevant market area." The area within a radius of 20 miles 11 around an existing dealer or the area of responsibility defined 12 in the franchise, whichever is greater; except that, where a 13 manufacturer is seeking to establish an additional new vehicle 14 dealer, the relevant market area shall be in all instances, 15 except for cities of the first and second class which will be 16 the area within a five-mile radius, the area within a radius of 17 ten miles around the proposed site. Relevant market area shall 18 not apply to mobile home or recreational vehicle dealer or 19 manufacturer agreements. 20 "Retail sale" or "sale at retail." The act or attempted act 21 of selling, bartering, exchanging or otherwise disposing of a 22 vehicle to an ultimate purchaser. 23 "Salesperson." Any person who, for a commission, 24 compensation or other valuable consideration, is employed as a 25 salesperson by a dealer to sell vehicles at retail. Any 26 salesperson licensed hereunder shall be licensed to sell only 27 for one dealer at a time and his license shall indicate the name 28 of that dealer. The term includes the principal, an officer or a 29 partner of a dealer if he personally is actively engaged in the 30 retail sale of vehicles. 19830H1454B2327 - 7 -
1 "Vehicle." Every device which is or may be moved or drawn 2 upon a highway, except DEVICES DESIGNED PRIMARILY FOR USE IN <-- 3 CONSTRUCTION OR AGRICULTURE OR ROAD MAINTENANCE, devices moved 4 by human or animal power, those used exclusively upon rails or 5 tracks or motorized pedalcycles. 6 "Wholesaler." A resident person who is in the business of 7 buying, selling or exchanging vehicles to dealers. 8 Section 3. State Board of Vehicle Manufacturers, Dealers 9 and Salespersons. 10 (a) Board.--The State Board of Vehicle Manufacturers, 11 Dealers and Salespersons shall consist of 17 members, one of 12 whom shall be the Commissioner of Professional and Occupational 13 Affairs, one of whom shall be the Secretary of the Department of 14 Transportation, or his designee, one of whom shall be the 15 Director of Consumer Protection in the Office of Attorney 16 General, or his designee, and the remaining 14 of whom shall be 17 appointed by the Governor as follows: 18 (1) Three members shall be new car dealers who have been 19 actively engaged as such for a period of five years 20 immediately preceding their appointment. 21 (2) Three members shall be used car dealers who have 22 been actively engaged as such for a period of five years 23 immediately preceding their appointment. 24 (3) One shall be a mobile home dealer who has been 25 actively engaged as such for a period of five years 26 immediately preceding appointment. 27 (4) One shall be a salesperson who has been actively 28 engaged in the sale of new or used vehicles for a period of 29 five years immediately preceding appointment. The member 30 shall not be a dealer or an officer of a corporation or a 19830H1454B2327 - 8 -
1 member of a partnership engaged in the business of a dealer 2 at the time of appointment. 3 (5) One shall be a recreational dealer who has been 4 actively engaged as such for a period of five years 5 immediately preceding appointment. 6 (6) One shall be a motorcycle dealer who has been 7 actively engaged as such for a period of five years 8 immediately preceding appointment. 9 (7) Four shall be members of the general public having 10 no connection with the vehicle business. 11 (b) Terms of members.--The terms of the members of the board 12 shall be three years from the respective date of their 13 appointment, provided that a member may continue for a period 14 not to exceed six months beyond the expiration of his term if a 15 successor has yet to be duly appointed and qualified according 16 to law. In the event that any member shall die, resign or be 17 removed from office, his successor shall be appointed and hold 18 office for the unexpired term. 19 (c) Quorum.--Nine members of the board shall constitute a 20 quorum. The board shall select, from among their number, a 21 chairman and a secretary. 22 (d) Reimbursement of expenses.--Each member of the board, 23 excepting the Commissioner of Professional and Occupational 24 Affairs, the Director of the Bureau of Consumer Protection in 25 the Office of Attorney General or his designee, and the 26 Secretary of the Department of Transportation or his designee, 27 shall be paid traveling and other necessary expenses and per 28 diem compensation at the rate of $60 for each day of actual 29 service while on board business. 30 (e) Attendance.--A member who fails to attend three 19830H1454B2327 - 9 -
1 consecutive meetings shall forfeit his seat unless the 2 Commissioner of Professional and Occupational Affairs, upon 3 written request from the member, finds that the member should be 4 excused from a meeting because of illness or the death of an 5 immediate family member. 6 Section 4. Powers and duties of board. 7 The board shall have the power and its duty shall be to: 8 (1) Provide for and regulate the licensing of 9 salespersons, dealers, brokers, manufacturers, factory 10 branches, distributors, distributor branches, factory or 11 distributor representatives and wholesalers as defined in 12 this act. 13 (2) Review and pass upon the qualifications of 14 applicants for licensure and to issue, except as otherwise 15 provided herein, a license to engage in the said businesses 16 to any applicant who is approved by the board and who meets 17 the requirements of this act. 18 (3) Investigate on its own initiative, upon complaint of 19 the Department of Transportation, Department of Community 20 Affairs, Department of Revenue or the Office of the Attorney 21 General, or upon the verified complaint in writing of any 22 person, any allegations of the wrongful act or acts of any 23 licensee or person required to be licensed hereunder. 24 (4) Administer and enforce this act and to impose 25 appropriate administrative discipline upon licensees found to 26 be in violation of this act. 27 (5) Bring criminal prosecutions for unauthorized, 28 unlicensed or unlawful practice. 29 (6) Require each licensee to register biennially with 30 the board. 19830H1454B2327 - 10 -
1 (7) Keep a record showing the names and addresses of all 2 licensees licensed under this act. 3 (8) Keep minutes and records of all its transactions and 4 proceedings especially with relation to the issuance, denial, 5 registration, formal reprimand, suspension and revocation of 6 licenses. In all actions or proceedings in any court, a 7 transcript of any board record or any part thereof, which is 8 certified to be a true copy by the board, shall be entitled 9 to admission in evidence. 10 (9) Adopt, promulgate and enforce such rules and 11 regulations not inconsistent with this act as are deemed 12 necessary and proper to effectuate the provisions of this 13 act, including but not limited to, established place of 14 business. 15 (10) Submit annually, to the Transportation Committees 16 of the House and Senate, a description of the types of 17 complaints received, status of the cases, board action which 18 has been taken and length of time from the initial complaint 19 to final board resolution. 20 (11) Submit annually to the department an estimate of 21 the financial requirements of the board for its 22 administrative, investigative, legal and miscellaneous 23 expenses. 24 (12) Submit annually to the House and Senate 25 Appropriations Committees, 15 days after the Governor has 26 submitted his budget to the General Assembly, a copy of the 27 budget request for the upcoming fiscal year which the board 28 previously submitted to the department. 29 Section 5. License to engage in business. 30 (a) License required.--To promote the public safety and 19830H1454B2327 - 11 -
1 welfare, it shall be unlawful for any person to engage in the 2 business of salesperson, broker, dealer, manufacturer, factory 3 branch, distributor, distributor branch, factory or distributor 4 representative or wholesaler within this Commonwealth unless he 5 has secured a license as required under this act. 6 (b) Mobile home parks.--It shall be unlawful for any person, 7 for a commission, compensation or other consideration, to sell 8 or act as salesperson, broker or sales agent in connection with 9 the sale of one or more mobile homes located in a mobile home 10 park, as provided for in section 11 of the act of November 24, 11 1976 (P.L.1176, No.261), known as the Mobile Home Park Rights 12 Act, unless such person shall be licensed under this act. 13 (c) Salespersons to be employed.--It shall be unlawful for 14 any salesperson to engage in any activity related to the buying, 15 selling or exchanging of a vehicle, unless that person is the 16 dealer or presently employed by a currently licensed vehicle 17 dealer and the sale is conducted pursuant to and as part of the 18 normal business activities of that dealer. 19 (d) Display of license.--Each person to whom a license is 20 issued shall keep the license conspicuously displayed in his 21 principal office or place of business and shall, when required, 22 exhibit such license to any member or authorized representative 23 of the board. 24 (e) Facility requirements for dealers and brokers.-- 25 (1) Dealers and brokers engaged in the business of 26 buying, selling or exchanging new and used vehicles, trailers 27 or semitrailers shall maintain a salesroom or garage devoted 28 principally to the motor vehicle business and an established 29 place of business. 30 (2) Dealers and brokers engaged in the business of 19830H1454B2327 - 12 -
1 buying, selling or exchanging used vehicles, trailers or 2 semitrailers shall maintain an established place of business, 3 which includes at least a two bay garage equipped to perform 4 the usual and normal repair and servicing of motor vehicles 5 (or said dealer or broker shall by written contract have 6 available at all times to him such repair and servicing 7 facilities) and upon which or adjacent thereto is a building 8 or portion of a building, owned or rented by such person, 9 where books and records are kept. 10 (3) Dealers and brokers engaged in the business of 11 buying, selling or exchanging new and used mobile homes, 12 house trailers or office trailers shall maintain a minimum 13 usable display area of 5,000 square feet devoted principally 14 to the mobile home, house trailer or office trailer business, 15 maintain an established place of business and hold a contract 16 in writing with a buyer, seller or manufacturer giving such 17 person buying or selling rights for new mobile homes, house 18 trailers or office trailers. 19 (4) Dealers and brokers engaged in the business of 20 buying, selling or exchanging used mobile homes, house 21 trailers or office trailers shall maintain a minimum usable 22 display area of 5,000 square feet, actually occupied by such 23 person, and upon which or adjacent thereto is a building, or 24 a portion of a building, owned or rented by such person, 25 where his books and records are kept and which is devoted 26 principally to the mobile home, house trailer or office 27 trailer business, in which the repair of such vehicles is 28 subordinate or incidental to the business of buying, selling 29 or exchanging such vehicles and who maintains an established 30 place of business. 19830H1454B2327 - 13 -
1 (5) Dealers and brokers engaged in the business of 2 buying, selling or exchanging new or used recreational 3 vehicles shall maintain an established place of business and 4 a minimum usable display area of 5,000 square feet devoted 5 principally to the recreational vehicle business. 6 Section 6. Biennial renewal. 7 Each license holder shall be required to renew his license 8 biennially; as a condition precedent to biennial renewal, the 9 license holder shall pay a biennial renewal fee and, in the case 10 of a salesperson or manufacturer's representative, he must be 11 presently employed with a dealer or manufacturer which has a 12 current license. The license holder shall comply with all 13 requirements as set forth through regulation by the board. 14 Section 7. Enforcement. 15 The enforcement of the laws and rules and regulations 16 governing practice under this act is primarily vested in the 17 board with the following additional powers and duties to: 18 (1) Inspect all license holders. 19 (2) Authorize investigations of alleged violations. 20 (3) Review and inspect all business records, documents 21 and files relating to practice under this act. 22 (4) Subpoena witnesses. 23 (5) Take depositions of witnesses in the manner provided 24 for in civil actions in courts of record. 25 (6) Bring criminal prosecutions for unauthorized, 26 unlicensed and unlawful practice in accordance with the terms 27 and provisions of the act of October 15, 1980 (P.L.950, 28 No.164), known as the Commonwealth Attorneys Act. 29 Any hearing on a protest by a dealer of any action by a 30 manufacturer alleged to be in violation of a provision of this 19830H1454B2327 - 14 -
1 act must be conducted and the final determination made within 2 120 days after the protest is filed. Unless waived by the 3 parties, failure to do so will be deemed the equivalent of a 4 determination that the manufacturer acted with good cause and, 5 in the case of a protest of a proposed establishment or 6 relocation of a dealer under section 10, that good cause does 7 not exist for refusing to permit the proposed additional or 8 relocated new vehicle dealer, unless such delay is caused by 9 acts of the manufacturer or the additional or relocating dealer. 10 Any parties to such a hearing shall have a right of review of 11 the decision in a court of competent jurisdiction pursuant to 2 12 Pa.C.S. § 701 (relating to scope of subchapter). If the board 13 determined that good cause does not exist for refusing to permit 14 the proposed additional or relocated new vehicle dealer, and the 15 manufacturer thereafter enters into a franchise establishing 16 that new vehicle dealer, the manufacturer shall not be liable 17 for damages based upon such establishment even if a court 18 reverses the determination of the board. 19 Section 8. Warranty and predelivery obligations. 20 (a) Manufacturers to notify dealers of their obligations.-- 21 Each new vehicle manufacturer shall specify in writing to each 22 of its new vehicle dealers licensed in this Commonwealth the 23 dealer's obligations for predelivery preparation and warranty 24 service on its products, shall compensate the new vehicle dealer 25 for service required of the dealer by the manufacturer and shall 26 provide the dealer with the schedule of compensation to be paid 27 the dealer for parts, work and service, and the time allowance 28 for the performance of such work and service. 29 (b) Schedule of compensation to include reasonable 30 compensation.--In no event shall the schedule of compensation 19830H1454B2327 - 15 -
1 fail to include reasonable compensation for diagnostic work, 2 repair service and labor. Time allowances for the diagnosis and 3 performance of warranty work and service shall be reasonable and 4 adequate for the work to be performed. In the determination of 5 what constitutes reasonable compensation, the principal factors 6 to be given consideration shall be the prevailing wage rates 7 being paid by the dealers in the community in which the dealer 8 is doing business. The hourly labor rate paid to a dealer for 9 warranty services shall not be less than the rate charged by the 10 dealer for like service to nonwarranty customers for nonwarranty 11 service and repairs at a reasonable rate. 12 (c) Copy of obligation to be filed with board.--A copy of 13 the delivery and preparation obligations of its dealers shall be 14 filed with the board by every vehicle manufacturer and shall 15 constitute the dealer's only responsibility for product 16 liability as between the dealer and the manufacturer. 17 (d) Indemnification required.--Notwithstanding the terms of 18 any franchise agreement, it shall be a violation for any new 19 vehicle manufacturer to fail to indemnify its franchised dealers 20 against any judgment for damages or settlement approved in 21 writing by the manufacturer, including, but not limited to, 22 court costs and reasonable attorneys' fees of the new vehicle 23 dealer, arising out of complaints, claims or lawsuits including, 24 but not limited to, strict liability, negligence, 25 misrepresentation, express or implied warranty or rescission of 26 the sale as defined in 13 Pa.C.S. § 2608 (relating to revocation 27 of acceptance in whole or in part) to the extent that the 28 judgment or settlement relates solely to the alleged defective 29 or negligent manufacture, assembly or design of new vehicles, 30 parts or accessories or other functions by the manufacturer, 19830H1454B2327 - 16 -
1 beyond the control of the dealer. 2 Section 9. Unlawful acts by manufacturers, factory branches, 3 distributors, field representatives, officers, 4 agents or any representatives of manufacturers, 5 factory branches or distributors. 6 (a) Unlawful acts by manufacturers.--It shall be a violation 7 for any manufacturer, factory branch, distributor, field 8 representative, officer, agent or any representative whatsoever 9 of such manufacturer, factory branch or distributor licensed 10 under this act to require, attempt to require, coerce or attempt 11 to coerce any new vehicle dealer in this Commonwealth to: 12 (1) Order or accept delivery of any new vehicle, part or 13 accessory thereof, equipment or any other commodity not 14 required by law which shall not have been voluntarily ordered 15 by the new vehicle dealer, except that this paragraph is not 16 intended to modify or supersede any terms or provisions of 17 the franchise requiring new vehicle dealers to market a 18 representative line of those vehicles which the manufacturer 19 or distributor is publicly advertising. 20 (2) Order or accept delivery of any new vehicle with 21 special features, accessories or equipment not included in 22 the list price of such vehicles as publicly advertised by the 23 manufacturer or distributor. 24 (3) Participate monetarily in an advertising campaign or 25 contest or to purchase any promotional materials, training 26 materials, showroom or other display decorations or materials 27 at the expense of the new vehicle dealer. 28 (4) Enter into any agreement with the manufacturer or to 29 do any other act prejudicial to the new vehicle dealer by 30 threatening to terminate or cancel a franchise or any 19830H1454B2327 - 17 -
1 contractual agreement existing between the dealer and the 2 manufacturer, except that this paragraph is not intended to 3 preclude the manufacturer or distributor from insisting on 4 compliance with the reasonable terms or provisions of the 5 franchise or other contractual agreement and notice in good 6 faith to any new vehicle dealer of the new vehicle dealer's 7 violation of such terms or provisions shall NOT constitute a <-- 8 violation of the act. 9 (5) Change the capital structure of the new vehicle 10 dealer or the means by or through which the new vehicle 11 dealer finances the operation of the dealership, provided 12 that the new vehicle dealer at all times meets any reasonable 13 capital standards determined by the manufacturer in 14 accordance with uniformly applied criteria, and also provided 15 that no change in the capital structure shall cause a change 16 in the principal management or have the effect of a sale of 17 the franchise without the consent of the manufacturer or 18 distributor; the consent shall not be unreasonably withheld. 19 (6) Refrain from participation in the management of, 20 investment in or the acquisition of any other line of new 21 vehicle or related products. This paragraph does not apply 22 unless the new vehicle dealer maintains a reasonable line of 23 credit for each make or line of new vehicle, the new vehicle 24 dealer remains in compliance with the franchise agreement and 25 any reasonable facilities requirements of the manufacturer, 26 and no change is made in the principal management of the new 27 vehicle dealer. 28 (7) Prospectively assent to a release, assignment, 29 novation, waiver or estoppel which would relieve any person 30 from liability to be imposed by this act or to require any 19830H1454B2327 - 18 -
1 controversy between a new vehicle dealer and a manufacturer, 2 distributor or representative to be referred to any person 3 other than the duly constituted courts of the Commonwealth or 4 the United States of America, if such referral would be 5 binding upon the new vehicle dealer. 6 (8) Expand, construct or significantly modify facilities 7 without assurances that the franchisor will provide a 8 reasonable supply of new vehicles within a reasonable time so 9 as to justify such an expansion in light of the market and 10 economic conditions. 11 (b) Additional unlawful acts of manufacturers.--It shall be 12 a violation of this act for any manufacturer, factory branch or 13 distributor licensed under this act to: 14 (1) Delay, refuse or fail to deliver new vehicles or new 15 vehicle parts or accessories in a reasonable time and in 16 reasonable quantity relative to the new vehicle dealer's 17 facilities and sales potential after acceptance of an order 18 from a new vehicle dealer having a franchise for the retail 19 sale of any new vehicle sold or distributed by the 20 manufacturer or distributor as are covered by such franchise, 21 if such vehicle, parts or accessories are publicly advertised 22 as being available for immediate delivery. There is no 23 violation if the failure is caused by acts or causes beyond 24 the control of the manufacturer. 25 (2) Unfairly discriminate among its new vehicle dealers 26 with respect to warranty reimbursement. 27 (3) Unreasonably withhold consent to the sale, transfer 28 or exchange of the franchise to a qualified buyer capable of 29 being licensed as a new vehicle dealer in this Commonwealth. 30 (4) Fail to respond in writing to a request for consent 19830H1454B2327 - 19 -
1 as specified in paragraph (3) within 60 days of receipt of a 2 written request on the forms, if any, generally utilized by 3 the manufacturer or distributor for such purposes and 4 containing the information required. Such failure to respond 5 shall be deemed to be refusal to consent to the request. 6 (5) Prevent or attempt to prevent by contract or 7 otherwise, any new vehicle dealer from changing the executive 8 management control of the new vehicle dealer unless the 9 manufacturer, having the burden of proof, can show that such 10 change of executive management will result in executive 11 management or control by a person or persons who are not of 12 good moral character or who do not meet reasonable, 13 preexisting, and, with consideration given to the volume of 14 sales and service of the dealership, uniformly applied 15 minimum business experience standards. Where the manufacturer 16 rejects a proposed change in executive management control, 17 the manufacturer shall give written notice of his reasons to 18 the dealer within 60 days of notice to the manufacturer by 19 the dealer of the proposed change; otherwise the change in 20 the executive management of the new vehicle dealer shall be 21 presumptively deemed approved. 22 (6) Offer to sell or lease, or to sell or lease, any new <-- 23 vehicle to, or through, any new vehicle dealer at a lower 24 actual price than the actual price offered to any other new 25 vehicle dealer for the same model vehicle similarly equipped 26 or to utilize any device including, but not limited to, sales 27 promotion plans or programs which result in such lesser 28 actual price. The provisions of this paragraph shall not 29 apply to sales to a new vehicle dealer for resale to any unit 30 of the Federal Government, the Commonwealth or any of its 19830H1454B2327 - 20 -
1 political subdivisions. 2 (7) Offer to sell or lease, or to sell or lease, any new 3 vehicle to any person, except a manufacturer's employee at a 4 lower actual price than the actual price offered and charged 5 to a new vehicle dealer for the same model vehicle similarly 6 equipped or to utilize any device which results in such 7 lesser actual price. The provisions of this paragraph shall 8 not apply to sales to a new vehicle dealer for resale to any 9 unit of the Federal Government, the Commonwealth or any of 10 its political subdivisions. 11 (8) (6) Offer in connection with a sale of a new vehicle 12 or vehicles to the Federal Government, the Commonwealth or 13 any political subdivision thereof, any discounts, refunds or 14 any other type of inducement to any new vehicle dealer 15 without making the same offer or offers available to all 16 other of its new vehicle dealers within this Commonwealth. 17 (9) Offer in connection with the sale of any new vehicle <-- 18 or new vehicles to a purchaser of more than ten new vehicles 19 per model year, terms, discounts, refunds or other similar 20 inducements to that purchaser without making the same offer 21 or offers available on the same terms to all other purchasers 22 of more than ten new vehicles per model year from its new 23 vehicle dealers in this Commonwealth. No manufacturer or 24 distributor may impose or enforce any restrictions against 25 these new vehicle dealers, their leasing, rental or fleet 26 divisions or subsidiaries that is not imposed or enforced 27 against any other similar purchaser. 28 (c) Cancelling of franchises.--It shall be a violation of 29 this act for any manufacturer, factory branch, distributor, 30 field representative, officer, agent or any representative 19830H1454B2327 - 21 -
1 whatsoever of a vehicle manufacturer or factory branch to 2 unfairly, without due regard to the equities of said dealer and 3 without just provocation, cancel the franchise of any vehicle 4 dealer; or being a manufacturer, factory branch or importer, to 5 unfairly, without due regard to the equities of a distributor 6 and without just provocation cancel the franchise of any 7 distributor. All existing dealers' franchises shall continue in 8 full force and operation under a newly appointed distributor on 9 the termination of an existing distributor unless a mutual 10 agreement of cancellation is filed with the board between the 11 newly appointed distributor and such dealer. Not less than 60 12 days advance notice of such termination, cancellation or failure 13 to renew shall be given the dealer prior to the effective date 14 thereof unless the nature or character of the reason for 15 termination, cancellation or failure to renew is such that the 16 giving of such notice would not be in the public interest. At 17 any time before the effective date of such termination, 18 cancellation or failure to renew, the dealer may appeal to the 19 board for a hearing on the merits, and following due notice to 20 all parties concerned, such hearing shall be promptly held. No 21 such termination, cancellation or failure to renew shall become 22 effective until final determination of the issue by the board. 23 In the event of a dealer appeal, the burden of proof shall be on 24 the manufacturer to show that such termination, cancellation or 25 failure to renew was for good cause and in good faith. 26 (d) Bushing.--It shall be a violation for any vehicle dealer 27 or broker having accepted an order of purchase or a contract 28 from a buyer which offer of purchase or contract is subject to 29 subsequent acceptance by the seller, if such arrangement results 30 in the practice of bushing. For the purpose of this subsection, 19830H1454B2327 - 22 -
1 bushing is defined as the practice of increasing the selling 2 price of a car above that originally quoted the purchaser or 3 decreasing the allowance for trade-in of a used car after the 4 purchaser has signed a purchase order or contract which is 5 subject to subsequent acceptance by the seller, however, if a 6 used car is being used as the down payment and it is not to be 7 delivered to the dealer or broker until the delivery of the new 8 car, the used car shall be reappraised at that time and such 9 reappraisal value shall determine the allowance made for such 10 used car. 11 (e) Construction of section.--This section shall not be 12 construed to prevent the offering of incentive programs or other 13 discounts if such discounts are equally available to all 14 franchised vehicle dealers in this Commonwealth on a 15 proportionately equal basis. 16 Section 10. Grounds for disciplinary proceedings. 17 The board shall have the power to formally reprimand, suspend 18 or revoke any license or refuse to issue or renew any license of 19 an applicant or licensee or a person required to be licensed 20 under this act, if after due notice of and hearing, the person 21 charged is found in violation of or fails to carry out the acts 22 and procedures set forth in sections 5 and 8 or is found guilty 23 of committing or attempting to commit any of the acts set forth 24 in section 13 or any of the following acts: 25 (1) Having had his license revoked or suspended by the 26 Commonwealth or another state based on grounds similar to 27 those which in this Commonwealth allow disciplinary 28 proceedings, in which case the record of such revocation or 29 suspension shall be conclusive evidence. 30 (2) Knowingly make any substantial misrepresentation of 19830H1454B2327 - 23 -
1 material facts. 2 (3) Knowingly make any false promise of a character 3 likely to influence, persuade or induce the sale of a 4 vehicle. 5 (4) Being a vehicle dealer, broker or salesperson, 6 having within three years prior to the application for or 7 issuance of a license or while his current license is in 8 force pleaded guilty, entered a plea of nolo contendere or 9 been found guilty in a court of competent jurisdiction in 10 this or any other state or Federal jurisdiction of forgery, 11 embezzlement, obtaining money under false pretenses, 12 extortion, conspiracy to defraud, bribery, odometer tampering 13 or any other crime involving moral turpitude. 14 (5) Having knowingly failed or refused to account for 15 moneys or other valuables belonging to others which have come 16 into his possession arising out of the sale of vehicles. 17 (6) Having engaged in false, deceptive or misleading 18 advertising of vehicles. 19 (7) Having committed any act or engaged in conduct in 20 connection with the sale of vehicles which clearly 21 demonstrates incompetency. 22 (8) Having made a material misstatement in application 23 for license. 24 (9) Having set up, promoted or aided in promotion of a 25 plan by which vehicles are sold to a person for consideration 26 and upon the further consideration that the purchaser agrees 27 to secure one or more persons to participate in the plan by 28 respectively making a similar purchase and in turn agreeing 29 to secure one or more persons likewise to join in said plan, 30 each purchaser being given the right to secure money, 19830H1454B2327 - 24 -
1 credits, goods or something of value, depending upon the 2 number of persons joining in the plan. 3 (10) Having engaged in the buying, selling, exchanging, 4 trading or otherwise dealing in vehicles on Sunday in 5 violation of 18 Pa.C.S. § 7365 (relating to trading in motor 6 vehicles and trailers). 7 (11) Being a dealer or broker who advertises or 8 otherwise holds out to the public that he is selling new 9 vehicles for which he does not hold a contract in writing 10 with a manufacturer, importer or distributor giving said 11 dealer authority to sell such vehicles. 12 (12) Being a dealer or broker who sells new vehicles for 13 which he does not hold a contract in writing with a 14 manufacturer, importer or distributor giving said dealer 15 authority to sell these vehicles. For the purpose of 16 paragraph (11) and this paragraph, the term "new vehicle" 17 shall mean a new vehicle which has never been registered or 18 titled in Pennsylvania or any other state on which a tax for 19 education imposed by the act of March 4, 1971 (P.L.6, No.2), 20 known as the Tax Reform Code of 1971, has not been paid prior 21 to the sale. 22 (13) Failing to take immediate remedial action when the 23 dealer knows that someone in his direct employ or someone who 24 renders vehicle-related services to the dealer for 25 consideration, has unlawfully tampered with the odometer of a 26 vehicle in his care, custody or control or which has been 27 sold or exchanged by the dealer at wholesale or retail. For 28 the purpose of this paragraph, remedial action shall be 29 defined as at least reporting the incident in writing to the 30 Pennsylvania State Police or the board. 19830H1454B2327 - 25 -
1 (14) Engaging in the business for which such dealer is 2 licensed without at all times maintaining an established 3 place of business as required. 4 (15) Employing any person as a salesperson who has not 5 been licensed as required. 6 (16) Having had his vehicle business registration plates 7 (dealer identification number) suspended by the Department of 8 Transportation pursuant to 75 Pa.C.S. § 1374(a) (relating to 9 suspension of vehicle business registration plates). A 10 certified copy of the decision and order of the Department of 11 Transportation will constitute conclusive evidence. 12 (17) Being a new car dealer whose franchise, contract or 13 agreement with a manufacturer, which gives the subject dealer 14 selling rights for that line-make, has been finally 15 terminated, but who continues to sell new vehicles. 16 (18) Willfully failing to display a license. 17 (19) Failing to obey any order of the board entered 18 pursuant to the act. 19 (20) Permitting or allowing another individual or 20 organization not licensed by the board to use that 21 individual's license for the purpose of operating in this 22 Commonwealth in a capacity for which the individual or 23 organization should have held a license. 24 (21) Willfully having made any false statement as to a 25 material matter in any oath or affidavit which is required by 26 this act. 27 (22) Failing to collect a tax or fee due the 28 Commonwealth upon a sale of a vehicle as defined in 75 29 Pa.C.S. § 102 (relating to definitions). 30 (23) Collecting a tax or fee and failing to issue a true 19830H1454B2327 - 26 -
1 copy of the tax report to the purchaser as required by law. 2 (24) Issuing a false or fraudulent tax report or copy 3 thereof. 4 (25) Failing to pay over taxes or fees collected by him 5 to the Commonwealth at the time and in the manner required by 6 law. 7 (26) Any violation of this act. 8 Section 11. Administrative liability of employer, 9 copartnership, association or corporation. 10 In the event of the revocation of the license issued to any 11 member of a partnership or to any officer of an association or 12 corporation, the license issued to a partnership, association or 13 corporation shall be revoked by the board unless, within a time 14 fixed by the board, in the case of a partnership, the connection 15 of the member whose license has been revoked shall be severed 16 and his interest in the partnership and his share in its 17 activities brought to an end, or in the case of an association 18 or corporation, the offending officer shall be discharged and 19 shall have no further participation in its activities. 20 Section 12. Reinstatement. 21 (a) Suspension.--Upon application in writing and after a 22 hearing pursuant to notice, the board may reissue or modify the 23 suspension of any license which has been suspended. 24 (b) Revocation.--Unless ordered to do so by a court, the 25 board shall not reinstate the license of a person that has been 26 revoked and such person shall be required to apply for a license 27 after a period of five years in accordance with section 13 if he 28 desires to practice at any time after such revocation. 29 Section 13. Application for license. 30 (a) Contents of application; dealer's or broker's license.-- 19830H1454B2327 - 27 -
1 Application for license as a dealer or broker shall be made in 2 writing to the board, signed by the applicant, setting forth the 3 following: 4 (1) Name of applicant and location of principal place of 5 business. 6 (2) Name or style under which business is to be 7 conducted and, if a corporation, the state of incorporation. 8 (3) Name and address of each owner or partner and, if a 9 corporation, the names of principal officers and directors. 10 (4) Locations in which the business is to be conducted 11 if the dealer has more than one place of business. 12 (5) If new vehicles are to be sold, the make or makes to 13 be handled. 14 (6) A statement of the previous history, record and 15 association of the applicant and of each owner, partner, 16 officer and director, which statement shall be sufficient to 17 establish to the satisfaction of the board the reputation in 18 business of the applicant. 19 (7) A statement showing whether the applicant has 20 previously applied for a license and the result of such 21 application and whether the applicant has ever been the 22 holder of either a dealer, broker or salesperson license 23 which was revoked or suspended. 24 (8) If the applicant is a corporation or partnership, a 25 statement showing whether any of the partners, employees, 26 officers or directors have been refused a dealer's or 27 salesperson's license or have been the holder of such license 28 which was revoked or suspended. 29 (9) A statement by the applicant that he has met all 30 facility requirements as noted herein and as required by 19830H1454B2327 - 28 -
1 regulation. 2 (b) Contents of application; salesperson's license.-- 3 Application for license as a salesperson shall be made in 4 writing to the board, signed by the applicant, setting forth the 5 following: 6 (1) The applicant's name and address. 7 (2) The period of time, if any, during which he has been 8 engaged in the occupation of salesperson. 9 (3) The name and address of his last employer. 10 (4) The name and address of the dealer then employing 11 him or into whose employ he is about to enter. 12 (5) The recommendation of his employer or prospective 13 employer certifying that the applicant is honest, trustworthy 14 and of good repute and recommending that a license be 15 granted. In the case of an applicant who is himself a dealer, 16 an officer of a corporation which is a dealer or a member of 17 a partnership which is a dealer, the foregoing recommendation 18 shall be made by another dealer, bank or sales finance 19 company which has personal knowledge concerning the 20 reputation and fitness of the applicant. 21 (6) A statement showing whether the applicant has 22 previously applied for a license and the result of such 23 application and whether the applicant has ever been the 24 holder of a salesperson's license which was revoked or 25 suspended or the subject of disciplinary action by this board 26 or that of any other jurisdiction. 27 (7) The application shall be made upon a form prepared 28 by the board containing such other information as the board 29 shall require through regulation. 30 (c) Application for license other than as a dealer, broker 19830H1454B2327 - 29 -
1 or salesperson.--Application for license other than as a dealer, 2 broker or salesperson shall be made in writing to the board 3 accompanied by the required fee. The board may require, in such 4 application or otherwise, information relating to the 5 applicant's background and his financial standing, all of which 6 may be considered by the board in determining the fitness of 7 said applicant to engage in the business for which he desires to 8 be licensed. 9 Section 14. Refusal of license. 10 The board may refuse to issue a license if the applicant has 11 committed any of the acts set forth as grounds for the 12 suspension or revocation of a license. The board may also refuse 13 to issue a license when it determines: 14 (1) That the applicant was previously the holder of a 15 license issued under this act, which license was revoked for 16 cause or which license was suspended for cause and the terms 17 of the suspension have not been fulfilled. 18 (2) That the applicant was previously a limited or 19 general partner, stockholder, director or officer of a 20 partnership or corporation whose license issued under the 21 authority of this act was revoked for cause and never 22 reissued or was suspended for cause and the terms of 23 suspension have not been fulfilled. 24 (3) If the applicant is a partnership or corporation, 25 that one or more of the limited or general partners, 26 stockholders, directors or officers of the partnership or 27 corporation was previously the holder of a license issued 28 under the authority of this act which was revoked for cause 29 or was suspended for cause and the terms of the suspension 30 have not been fulfilled, or that by reason of the facts and 19830H1454B2327 - 30 -
1 circumstances touching the organization, control and 2 management of the partnership or corporation business, the 3 policy of such business will be directed, controlled or 4 managed by individuals who, by reason of their conviction of 5 violations of the provisions of this act, would be ineligible 6 for a license and that by licensing such corporation or 7 partnership, the purposes of this act would likely be 8 defeated. 9 Section 15. Change of salesperson's license to indicate new 10 employer. 11 If a person holding a currently valid license desires to be 12 licensed to sell for another employer, he shall make application 13 to the board for the issuance of a new license showing the name 14 of his proposed new employer. Such application shall be made on 15 a form of application prescribed by the board and shall include 16 the recommendation of his proposed new employer. The new license 17 shall be issued for the remainder of the period covered by the 18 previous license. The fee for the issuance of such changed 19 license shall be determined by regulation. 20 Section 16. Termination of employment or business. 21 (a) Salesperson's license to be surrendered after 22 termination of employment.--Within ten days after termination of 23 employment, the dealer shall surrender that salesperson's 24 license to the board. If the license is not in the dealer's 25 possession, then it will be the responsibility of the 26 salesperson to return the license. 27 (b) Dealer's or broker's license to be surrendered after 28 termination of business.--Within ten days after termination of 29 business activities, the dealer or broker shall surrender to the 30 board its vehicle dealer's or broker's license. 19830H1454B2327 - 31 -
1 Section 17. Exemption from licensure and registration. 2 This act shall not be construed to require licensure and 3 registration in the following cases: 4 (1) Public officers in the conduct of sales of vehicles 5 in the performance of their official duties. 6 (2) Sales finance companies and banks licensed under the 7 provisions of the act of June 28, 1947 (P.L.1110, No.476), 8 known as the Motor Vehicle Sales Finance Act, in the conduct 9 of sales of vehicles which have been repossessed by them. 10 Section 18. Limitations on establishing or relocating dealers. 11 (a) Additional or relocation of new vehicle dealers.--In the 12 event that a manufacturer seeks to enter into a franchise 13 establishing an additional new vehicle dealer or relocating an 14 existing new vehicle dealer within or into a relevant market 15 area where the same line-make is then represented, the 16 manufacturer shall in writing first notify the board and each 17 new vehicle dealer in such line-make in the relevant market area 18 of the intention to establish an additional dealer or to 19 relocate an existing dealer within or into that market area. 20 Within 20 days after the end of any appeal procedure provided by 21 the manufacturer, any such new vehicle dealer may file with the 22 board a protest to the establishing or relocating of the new 23 vehicle dealer. When such a protest is filed, the board shall 24 inform the manufacturer that a timely protest has been filed, 25 and that the manufacturer shall not establish or relocate the 26 proposed new vehicle dealer until the board has held a hearing, 27 nor thereafter, if the board has determined that there is good 28 cause for not permitting the addition or relocation of such new 29 vehicle dealer. 30 (b) Nonapplicability of section.--This section does not 19830H1454B2327 - 32 -
1 apply: 2 (1) To the relocation of an existing dealer within that 3 dealer's relevant market area, provided that the relocation 4 not be at a site within five miles of a licensed new vehicle 5 dealer for the same line-make of vehicles. 6 (2) If the proposed new vehicle dealer is to be 7 established at or within two miles of a location at which a 8 former licensed new vehicle dealer for the same line-make of 9 new vehicle had ceased operating within the previous two 10 years. For purposes of this section, a former vehicle dealer 11 shall have ceased operations on the date on which the 12 franchise or agreement shall have been finally terminated. 13 (3) To the relocation of an existing dealer to a site 14 that is further away from the nearest dealer of the same 15 line-make. 16 (4) To mobile home or recreational vehicle dealers. 17 (c) Board to consider existing circumstances.--In 18 determining whether good cause has been established for not 19 entering into or relocating an additional new vehicle dealer for 20 the same line-make, the board shall take into consideration the 21 existing circumstances, including, but not limited to: 22 (1) Permanency of the investment of both the existing 23 and proposed new vehicle dealers. 24 (2) Growth or decline in population and new car 25 registrations in the relevant market area. 26 (3) Effect on the consuming public in the relevant 27 market area. 28 (4) Whether it is injurious or beneficial to the public 29 welfare for an additional new vehicle dealer to be 30 established. 19830H1454B2327 - 33 -
1 (5) Whether the new vehicle dealers of the same line- 2 make in that relevant market area are providing adequate 3 competition and convenient customer care for the vehicles of 4 the line-make in the market area which shall include the 5 adequacy of vehicle sales and service facilities, equipment, 6 supply of vehicle parts and qualified service personnel. 7 (6) Whether the establishment of an additional new 8 vehicle dealer would increase competition and whether such 9 increased competition would be in the public interest. 10 (7) The effect the denial of relocation will have on a 11 relocating dealer. 12 Section 19. Penalties. 13 (a) Unlicensed salespersons and brokers.--Whoever engages in 14 the occupation of vehicle salesperson or who sells or acts as a 15 sales agent or broker in connection with the sale of a vehicle 16 or of a mobile home in a mobile home park, without being 17 licensed and registered as required by this act or exempted from 18 licensure or shall present or attempt to use as his own the 19 license of another or shall give any false or forged evidence of 20 any kind to the board or to any member in order to obtain a 21 license, or shall refuse upon request to furnish business 22 records, documents and files relating to practice under this 23 act, or shall otherwise violate the provisions of this act shall 24 be guilty of a summary offense and, upon conviction, shall be 25 ordered to pay a fine of $500. A second violation of this act 26 shall constitute a summary offense and, upon conviction, the 27 violator shall be ordered to pay a fine of $1,000. For the 28 purpose of this act the sale of each vehicle in violation of 29 this act constitutes a separate offense. 30 (b) Unlicensed manufacturers, etc.--Whoever engages in the 19830H1454B2327 - 34 -
1 business of vehicle dealer, manufacturer, factory branch, 2 distributor, distributor branch, factory or distributor 3 representative or wholesaler without being licensed and 4 registered as required or exempted from licensure as provided, 5 or shall present or attempt to use as his own the license of 6 another or shall give any false or forged evidence of any kind 7 to the board or to any member in order to obtain a license or 8 shall refuse, upon request, to furnish business records, 9 documents and files relating to practice or shall otherwise 10 violate the provisions of this act, shall be guilty of a summary 11 offense and, upon conviction, shall be sentenced to pay a fine 12 of $500 or any higher amount equal to double the pecuniary gain 13 derived from the offense. A second violation of this act shall 14 constitute a summary offense and, upon conviction, the violator 15 shall be ordered to pay a fine of $1,000. For the purpose of 16 this act the sale of each vehicle in violation of this act 17 constitutes a separate offense. 18 (c) Additional remedy.--In addition to any other civil 19 remedy or criminal penalty provided for in this act, the board 20 by a vote of the majority of the authorized membership of the 21 board as provided by law, or by a vote of the majority of the 22 duly qualified and confirmed membership, may levy a civil 23 penalty of up to $1,000 on any current licensee who violates any 24 provision of this act or on any person who engages in an 25 activity required to be licensed by this act. The board shall 26 levy this penalty only after affording the accused party the 27 opportunity for a hearing as provided in Title 2 of the 28 Pennsylvania Consolidated Statutes (relating to administrative 29 law and procedure). 30 Section 20. Civil actions for violations. 19830H1454B2327 - 35 -
1 (a) Action for damages.--Notwithstanding the terms, 2 provisions or conditions of any agreement or franchise or other 3 terms or provisions of any novation, waiver or other written 4 instrument, any person who is or may be injured by a violation 5 of a provision of this act or any party to a franchise who is so 6 injured in his business or property by a violation of a 7 provision of this act relating to that franchise, or any person 8 so injured because he refuses to accede to a proposal for an 9 arrangement which, if consummated, would be in violation of this 10 act, may bring an action for damages and equitable relief, 11 including injunctive relief, in any court of competent 12 jurisdiction. 13 (b) Punitive damages.--If any person engages in continued 14 multiple violations of a provision or provisions of this act, 15 the court may award punitive damages in addition to any other 16 damages under this act. 17 (c) Attorney's fees.--In any action the prevailing party may 18 be awarded a reasonable attorney's fee and costs at the court's 19 discretion. 20 Section 21. Fees. 21 (a) General rule.--All fees required under the provisions of 22 this act shall be fixed by the board by regulation and shall be 23 subject to review in accordance with the act of June 25, 1982 24 (P.L.633, No.181), known as the Regulatory Review Act. If the 25 revenues generated by fees, fines and civil penalties imposed in 26 accordance with the provisions of this act are not sufficient to 27 match expenditures over a two-year period, the board shall 28 increase those fees by regulation, subject to review in 29 accordance with the Regulatory Review Act, such that the 30 projected revenues will meet or exceed projected expenditures. 19830H1454B2327 - 36 -
1 (b) Increases by bureau.--If the Bureau of Professional and 2 Occupational Affairs determines that the fees established by the 3 board are inadequate to meet the minimum enforcement efforts 4 required, then the bureau, after consultation with the board, 5 shall increase the fees by regulation, subject to review in 6 accordance with the Regulatory Review Act, such that adequate 7 revenues are raised to meet the required enforcement effort. 8 (C) EXISTING FEES.--ALL FEES FIXED PURSUANT TO SECTION 211 <-- 9 OF THE ACT OF JULY 1, 1978 (P.L.700, NO.124), KNOWN AS THE 10 BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS FEE ACT, SHALL 11 CONTINUE IN FULL FORCE AND EFFECT UNTIL CHANGED BY THE BOARD 12 PURSUANT TO SUBSECTION (A). 13 Section 22. Disposition of fees and fines. 14 All civil fines and fees and all criminal fines shall be paid 15 into the Special Augmentation Fund established by section 301 of 16 the act of July 1, 1978 (P.L.700, No.124), known as the Bureau 17 of Professional and Occupational Affairs Fee Act. 18 Section 23. Vehicle shows and exhibitions. 19 (a) Participation.--Any licensed dealer or manufacturer may 20 participate in any approved public vehicle show or exhibition 21 which has been submitted by the show promoter and has been 22 approved by the board. 23 (b) Conditions for approval.--Approval of a show or 24 exhibition by the board shall require the show promoter to meet 25 the following requirements: 26 (1) Submit a request for a show at least 60 days in 27 advance of the show date with: name, address and telephone 28 number of the show promoter, name and location of the show, 29 types of vehicles to be displayed at the show, show dates and 30 hours of operation. 19830H1454B2327 - 37 -
1 (2) Submit a list of the maximum number of participating 2 dealers and manufacturers and an approximate number of 3 vehicles to be displayed. This shall not be construed to 4 prohibit one dealer or manufacturer from promoting and 5 participating in their own show with no other exhibitors. 6 (3) Submit the name, address and license number of each 7 participating dealer and manufacturer known to be exhibiting 8 in the show or exhibit at least 14 days prior to the date of 9 the show opening. 10 (4) Submit a certified check or an equivalent bond, 11 payable to the Commonwealth of Pennsylvania, equal to the 12 number of participating dealers, at a rate per dealer or 13 manufacturer to be determined by regulation. Said check or 14 bond shall be forfeited to the Commonwealth, by the promoter, 15 for noncompliance with this section. 16 (5) Sign a statement that the show promoter agrees to 17 allow the board to review the list of exhibitors and warrants 18 to the board that all Commonwealth exhibitors are properly 19 licensed. If the board determines a dealer or manufacturer is 20 not licensed, it shall note an exception to the list and the 21 promoter shall exclude the dealer or manufacturer from the 22 show. 23 (6) Submit within 14 days after show completion, a final 24 list of the actual dealers and manufacturers participating in 25 the show. The board shall then request a second certified 26 check equivalent to the number of out-of-state dealers and 27 manufacturers at the rate per out-of-state dealer or 28 manufacturer to be determined by regulation. 29 (7) Upon satisfaction that all obligations of the show 30 promoter, pursuant to this section, have been completed, the 19830H1454B2327 - 38 -
1 original check or bond shall be returned to the promoter. 2 (c) Limitations on fees.--No other fees shall be charged 3 licensed vehicle dealers and manufacturers for participating in 4 vehicle shows or exhibits by the board. 5 (d) Shows or exhibits on Sundays.-- 6 (1) Vehicle shows or exhibits shall be permitted to be 7 open on Sundays. 8 (2) Normal vehicle business practices shall be allowed 9 on Sunday except that no final sales contract may be 10 consummated on a Sunday. 11 Section 24. Savings provision. 12 This act shall not be deemed to repeal, suspend, modify or 13 revoke any of the provisions of Title 75 of the Pennsylvania 14 Consolidated Statutes (relating to vehicles) or of the act of 15 June 28, 1947 (P.L.1110, No.476), known as the Motor Vehicle 16 Sales Finance Act. 17 Section 25. Reestablishment of agency. 18 This act, with respect to the State Board of Motor Vehicle 19 Manufacturers, Dealers and Salesmen, shall constitute the 20 legislation required to reestablish an agency pursuant to the 21 act of December 22, 1981 (P.L.508, No.142), known as the Sunset 22 Act. 23 Section 26. Repeals. 24 (a) Specific repeal.--The act of September 9, 1965 (P.L.499, 25 No.254), known as the Motor Vehicle Manufacturer's, Dealer's and 26 Salesmen's License Act, is repealed. 27 (b) General repeal.--All acts and parts of acts are repealed 28 insofar as they are inconsistent with this act. 29 Section 27. Expiration of terms of board members. 30 Persons who are members of the State Board of Motor Vehicle 19830H1454B2327 - 39 -
1 Manufacturers, Dealers and Salesmen shall serve on said board 2 until their current terms expire or until their successors are 3 duly appointed and qualified, but no longer than six months 4 after the expiration of their terms. 5 Section 28. Effective date. 6 This act shall take effect January 1, 1984. I14L63RLC/19830H1454B2327 - 40 -