Opinion

Kerbeck Cadillac Pontiac, Inc. v. State Board of Vehicle Manufacturers, Dealers & Salespersons

  • 854 A.2d 663
  • 2004 Pa. Commw. LEXIS 550
Court
Commonwealth Court of Pennsylvania
Filed
Jul 22, 2004
Status
Published
Author
Colins
On the bench
Cohn, Colins, Friedman, Leadbetter, McGinley, Pellegrini, Ribner, Smith
Cited by
5 cases
Authority
More cited than 19.6%

The opinion

DISSENTING OPINION BY

PRESIDENT Judge COLINS.

I must respectfully dissent from the scholarly and well-written opinion of the majority.

Whether or not Spankey’s is factually on point is of no moment, since the Board’s enforcement of the Act in the instant matter is clearly violative of the Commerce Clause of the U.S. Constitution. Further, the Board’s actions are an unreasonable restraint upon commercial speech which is protected by the First Amendment of the U.S. Constitution.

The record reflects that the “Corvettes at Carlisle” event produced $92 Million in revenues for the Commonwealth travel and tourism industry alone, and nearly $1 Billion over the preceding decade. Further, the Carlisle event drew an estimated 60,000 people in 2002.

I must agree with the Petitioner that this is precisely the sort of national free market enterprise that the Commerce Clause has been interpreted to protect from State protectionist policies.

Also, the display of the vehicle in question, in conjunction with the dissemination *674 of information that Kerbeck sells the vehicle in question and other Corvettes at its New Jersey location, is clearly constitutionally protected commercial speech. See Swedenburg v. Kelly, 358 F.3d 223 (Cir.2d2004), cert. granted, — U.S. —, 124 S.Ct. 2391 , 158 L.Ed.2d 962 (2004) (statute prohibiting advertising of alcoholic beverages in New York by unlicensed persons violates free speech guarantees of the First Amendment.)

Judge FRIEDMAN joins in this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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