[J-74-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COUNTY OF BUTLER, : No. 66 WAP 2017
:
Appellee : Appeal from the Order of the
: Commonwealth Court entered on 6/8/17
: at No. 1506 CD 2016, reversing the
: order of the Court of Common Pleas of
v. : Butler County entered on 8/11/16 at No.
: 15-11007 and remanding
CENTURYLINK COMMUNICATIONS, :
LLC, AND ALL SUBSIDIARIES AND :
RELATED ENTITIES; THE UNITED :
TELEPHONE COMPANY OF :
PENNSYLVANIA LLC, AND ALL : ARGUED: October 23, 2018
SUBSIDIARIES AND RELATED :
ENTITIES; CONSOLIDATED :
COMMUNICATIONS OF :
PENNSYLVANIA, LLC, AND ALL :
SUBSIDIARIES AND RELATED :
ENTITIES; CONSOLIDATED :
COMMUNICATIONS ENTERPRISE :
SERVICES, INC., AND ALL :
SUBSIDIARIES AND RELATED :
ENTITIES; CORE COMMUNICATIONS, :
INC., AND ALL SUBSIDIARIES AND :
RELATED ENTITIES; INTERMEDIA :
COMMUNICATIONS OF FLORIDA, INC., :
AND ALL SUBSIDIARIES AND RELATED :
ENTITIES; VERIZON PENNSYLVANIA, :
INC., AND ALL SUBSIDIARIES AND :
RELATED ENTITIES; LEVEL 3 :
COMMUNICATIONS, LLC, AND ALL :
SUBSIDIARIES AND RELATED :
ENTITIES; TELCOVE OF EASTERN :
PENNSYLVANIA, AND ALL :
SUBSIDIARIES AND RELATED :
ENTITIES; AT&T CORP., AND ALL :
SUBSIDIARIES AND RELATED :
ENTITIES; TELEPORT :
COMMUNICATIONS AMERICA, LLC, :
AND ALL SUBSIDIARIES AND RELATED :
ENTITIES; US LEC OF PENNSYLVANIA, :
LLC, AND ALL SUBSIDIARIES AND :
RELATED ENTITIES; BANDWIDTH.COM :
CLEC, LLC, AND ALL SUBSIDIARIES :
AND RELATED ENTITIES; COMCAST :
PHONE OF PENNSYLVANIA, LLC, AND :
ALL SUBSIDIARIES AND RELATED :
ENTITIES; PEERLESS NETWORK OF :
PENNSYLVANIA, LLC, AND ALL :
SUBSIDIARIES AND RELATED :
ENTITIES; AND ABC COMPANIES 1 :
THROUGH 20, :
:
Appellants :
OPINION
CHIEF JUSTICE SAYLOR DECIDED: APRIL 26, 2019
This issue accepted for review concerns whether counties may advance common
law claims seeking legal redress against telecommunications companies for alleged
deficiencies in their administration of fees associated with 911 emergency
communication services.
I. Background
In 1990, the Pennsylvania General Assembly created a statutory scheme
regulating 911 emergency communication services throughout the Commonwealth.1
Per the enactment, counties bore the responsibility to operate 911 systems within their
jurisdictions. See 35 Pa.C.S. §5304(a)(1) (requiring each county to develop a plan for
“the implementation, operation and maintenance of a 911 system”) (superseded); see
1 See Act of July 9, 1990, P.L. 340, No. 78 (as amended 35 Pa.C.S. §5301-5312.1)
(superseded) (the “911 Act” or the “Act”).
[J-74-2018] - 2
also id. §5301, Historical and Statutory Notes (quoting Act of July 9, 1990, P.L, 340, No.
78, Preamble).2 In this vein, each county was obliged to make arrangements with
telephone companies providing local exchange telephone service within its boundaries
to provide 911 service. See 35 Pa.C.S. §5304(a)(2) (superseded). The Act also
extended to Interconnected Voice over Internet Protocol (“VoIP”) services. See id.
§5311.14 (repealed).
The enactment also contemplated the creation of a stream of funding to counties
for 911 systems via the imposition of a monthly assessment or charge upon telephone-
service customers in an amount denominated as the “contribution rate,” see, e.g., id.
§5305(g.1)(1) (superseded), as well as a specified fee attached to VoIP service, see id.
§5311.14 (repealed). Service providers were required to collect these fees from
customers and remit the proceeds to county treasurers. See id.; see also id.
§5307(a)(1) (superseded).3 Providers, however, were expressly relieved of any
obligation to take legal action to collect charges, as follows:
The local exchange telephone company shall not be
required to take any legal action to enforce the collection of
any charge imposed under this chapter. Action may be
2 This litigation pertains to matters occurring prior to the introduction of a series of
amendatory provisions into the 911 Act in 2015. See Act of June 29, 2015, P.L. 36, No.
12. Consequently, references herein are to the pre-amendment version of the
enactment.
3 A significant modification worked by the 2015 amendments was to redirect these
remunerations to the State Treasurer for deposit in a special fund dedicated to 911
services throughout the Commonwealth and administered by PEMA. See 35 Pa.C.S.
§5307(a)(1); see also id. §5306.1 (providing for the creation of the fund and delineating
the use and distribution of monies deposited therein).
Parenthetically, the Commonwealth Court offered further insight into this and other
significant changes to the 911 Act in its opinion in this case. See County of Butler v.
CenturyLink Commc’ns, LLC, 163 A.3d 504, 506 n.1 (Pa. Cmwlth. 2017).
[J-74-2018] - 3
brought by or on behalf of the public agency imposing the
charge.
Id. §5307(e)(1) (superseded).
From the state level, the scheme was overseen by the Pennsylvania Emergency
Management Agency (“PEMA”), which was specifically empowered to “take the actions
necessary to implement, administer and enforce” the 911 Act. Id. §5303(a)(12)
(specifying the “[p]owers and duties” of the agency) (superseded). The enactment
otherwise reaffirmed that, in addition to any powers otherwise expressly enumerated in
the 911 Act, PEMA:
has the power and duty to enforce and execute, by its
regulations or otherwise, this chapter. The agency may
institute injunction, mandamus or other appropriate legal
proceedings to enforce [the 911 Act and associated
regulations].
Id. §5311.13 (captioned “Enforcement”) (repealed).
In April 2016, Appellee, the County of Butler, filed a complaint against Appellant,
CenturyLink Communications, LLC, and other telecommunications companies
(collectively, “Providers”), contending that they failed to fulfill their responsibilities under
the 911 Act prior to August 1, 2015. Specifically, the County alleged that Providers did
not adequately charge customers or collect, remit, or report certain fees due to the
County. In particular, the County complained that Providers’ facilities accommodate
multiple lines on a single physical exchange line and/or offer packetized services but
that Providers failed to levy a fee for the use of each line, especially for business
customers employing multiple lines. The complaint advanced common law causes of
action sounding in breach of fiduciary duties, fraud, and negligent misrepresentation
and sought injunctive relief, monetary damages, and an accounting. Notably, the
County did not advance a pure statutory enforcement claim premised exclusively on
authority conferred by the 911 Act.
[J-74-2018] - 4
Providers filed joint preliminary objections in the nature of a demurrer. They
contended, inter alia, that the 911 Act invests exclusive enforcement authority in PEMA,
and accordingly, that the County was barred from bringing the action. From the outset,
Providers asserted that a longstanding and unbroken series of decisions of this Court
maintain that, where the Legislature confers express enforcement rights in a statute,
those rights must be deemed exclusive, and no other enforcement rights may be read
into the statute or otherwise advanced via the assertion of common law claims. See,
e.g., Defendants’ Joint Preliminary Objections in County of Butler v. CenturyLink
Commc’ns, LLC, AD No. 15-11007 (C.P. Butler), at ¶3 (citing White v. Conestoga Title
Ins. Co., 617 Pa. 498, 522, 53 A.3d 720, 735 (2012)).
The County responded with the argument that the 911 Act does not either
establish an exclusive enforcement power in PEMA or otherwise preclude the County
from pursuing common law causes of action. They also posited that the segment of
Section 5307(e)(1) providing that “[a]ction may be brought by or on behalf of the public
agency imposing the charge” expressly empowered counties to bring actions to enforce
the collection of fees against service providers. 35 Pa.C.S. §5307(e)(1) (superseded).
The common pleas court credited Providers’ position. See County of Butler v.
CenturyLink Commc’ns, LLC, AD No. 15-11007, slip op. at 10 (C.P. Butler Aug. 11,
2016) (Horan, J.) (concluding that “PEMA has the exclusive statutory power and duty to
regulate and enforce the 911 Act against service providers”). With respect to Section
5307(e)(1), the court explained that the provision confers a right upon counties to collect
a “charge” from non-paying customers, but not from service providers. See id. at 6-7.
In this regard, the court stressed that no “charges” are imposed on service providers
under the 911 Act. See id. at 7.
[J-74-2018] - 5
The common pleas court also commented on the complexity of
telecommunications management in relation to telephone subscribers and fees per the
Act and the concomitant desirability of consistency and predictability across county
lines. See id. at 7-8. As such, in the court’s view, “a single source of guidance is
appropriate.” Id. at 8. It is for this reason, the court believed, that the Legislature
conferred standing and exclusive authority upon PEMA to enforce the provisions of the
Act relative to service providers. See id.
In terms of the County’s attempt to advance common law claims, the county
court found those claims to be barred per Section 1504 of the Statutory Construction
Act, which provides:
In all cases where a remedy is provided or a duty is enjoined
or anything is directed to be done by any statute, the
directions of the statute shall be strictly pursued, and no
penalty shall be inflicted, or anything done agreeably to the
common law, in such cases, further than shall be necessary
for carrying such statute into effect.
1 Pa.C.S. §1504. The court proceeded to discuss this Court’s admonition, for example,
in White, that, “‘[w]here a statutory remedy is provided, the procedure prescribed therein
must be strictly pursued to the exclusion of other methods of redress;’ but, where the
legislature explicitly reveals in a statute that it does not intend for such exclusivity, a
statutory procedure for dispute resolution does not preempt common law claims.”
White, 617 Pa. at 519, 53 A.3d at 733 (quoting Jackson v. Centennial Sch. Dist., 509
Pa. 101, 105, 501 A.2d 218, 220 (1985), and DeLuca v. Buckeye Coal Co., 463 Pa.
513, 519, 345 A.2d 637, 640 (1975)).
As is presently relevant, the common pleas court found no evidence, in the 911
Act, of an intention for PEMA’s enforcement authority to be shared. Indeed, the court
discerned much contrary evidence in the statute, principally from the fact that Providers’
[J-74-2018] - 6
obligation to collect and remit fees is created exclusively by the Act, see 35 Pa.C.S.
§5307(a) (superseded), and from the enactment’s explicit repositing of enforcement
power over this statutory duty in PEMA, see id. §§5303(a)(12) (superseded), 5311.13
(repealed).
After the common pleas court issued its decision, the County submitted a motion
for reconsideration presenting, for the first time, an affidavit from Robert Mateff, who
was PEMA’s Deputy Director for 911 Services. Mr. Mateff attested that it was the
agency’s position that, “[w]hile PEMA had other responsibilities under the 911 Act that it
would enforce if necessary, the setting and monitoring of 911 surcharge fees for wireline
and VoIP services was not one of them.” Affidavit of Robert F. Mateff, Sr., dated Aug.
30, 2016, in CenturyLink, AD No. 15-11007, at ¶15. According to the affidavit, Section
5307(e)(1) conferred a right in the counties to pursue legal actions against service
providers related to the collection and remittal of 911 fees. See id. at ¶¶12-13 (“PEMA
has always interpreted Section 5307(e)(1) to authorize the counties to police the
telephone companies[’] collection practices.”). Mr. Mateff related that PEMA lacked any
interest in the funds collected by service providers and stated that the agency’s interest
was instead with how counties were expending the money that they received from 911
fees. See id. at ¶14. He also highlighted PEMA’s lack of any statutory audit or other
investigatory powers that could be exercised against telephone providers. See id. at ¶8.
The common pleas court rejected the affidavit, finding that it could not dictate a
judicial ruling on a matter of statutory interpretation. See CenturyLink, AD No. 15-
11007, slip op. at 3-4 (C.P. Butler Nov. 2, 2016). The court also appeared to be
troubled by Mr. Mateff’s downplaying of PEMA’s wide range of responsibilities under the
911 Act. See id. at 4; see also N.T., Sept. 8, 2016, at 27 (reflecting the common pleas
[J-74-2018] - 7
judge’s remark that the “PEMA Affidavit fails to address the very significant provisions of
the Act that empower PEMA and give PEMA broad authority to regulate and enforce”).
In its motion for reconsideration, the County also argued, for the first time, that it
was invested with due process rights that would be violated if it did not have the right to
sue service providers for damages under the 911 Act. The common pleas court
likewise disapproved this position, reasoning that the enactment simply did not grant
enforcement authority, relative to service providers, to the counties, “and there were no
property rights created for the counties to enforce as against service providers.”
CenturyLink, AD No. 15-11007, slip op. at 4 (C.P. Butler Nov. 2, 2016).
On appeal, the Commonwealth Court reversed in a published decision. See
CenturyLink, 163 A.3d 504. The panel initially agreed with Providers and the county
court concerning various matters of statutory interpretation presented. For example,
regarding Section 5307(e), the court reasoned:
We read former Section 5307(e) . . . as only having referred
to the collection of the 911 fees after the service provider
had billed the subscriber. Former Section 5307(e) was
silent, however, as to billing. Stated otherwise, former
Section 5307(e) did not address a situation where a
telecommunication service provider failed to bill the
subscriber or undercharged the subscriber.
Id. at 509 (emphasis in original). The panel also concurred with the common pleas
court’s rejection of Mr. Mateff’s affidavit, concluding that the document was entitled to
no deference. See id. at 510 n.7 (“The County does not cite to a single case, nor is this
Court aware of any, in support of the position that courts should grant deference to an
affidavit by a single employee of an administrative agency in civil litigation, particularly,
litigation in which the agency is not a part.”).
The panel, however, was not persuaded that the conferral of authority upon
PEMA to enforce the 911 Act was exclusive and precluded the County from bringing
[J-74-2018] - 8
suit. In this regard, the panel observed that PEMA’s, counties’, and service providers’
roles and responsibilities under the statutory scheme differ. While PEMA may enforce
the 911 Act, the panel opined, counties may also seek direction from courts as to their
roles in relation to PEMA and service providers. The panel concluded that, at a
minimum, counties are entitled to a court ruling on legal disputes. See id. at 510.
In holding that PEMA’s authority was nonexclusive, the panel took the
opportunity to examine Petty v. Hospital Service Association of Northeastern
Pennsylvania, 611 Pa. 119, 23 A.3d 1004 (2011), which held that that policyholders and
subscribers who had purchased medical insurance from a nonprofit corporation lacked
standing to maintain an action against the corporation under the statutory regime
governing nonprofit corporations. Distinguishing Petty, the panel couched the injury
alleged by the County in the present case as a “direct harm” and a “specific harm”
impacting the County’s ability to meet its obligations under the 911 Act, while noting that
the enactment did not specifically preclude the County from pursuing an action. See
CenturyLink, 163 A.2d at 512.
This appeal was allowed on Providers’ petition to consider the following question:
When the General Assembly plainly and unambiguously
grants the right to enforce a statute to a particular
Commonwealth agency, may a different plaintiff circumvent
this legislative directive by attempting to enforce the statute
through common-law damages claims?
Cnty. of Butler v. CenturyLink Commc'ns, LLC, ___ Pa. ___, 176 A.3d 852 (2017) (per
curiam). Our review of this legal issue is plenary. See, e.g., Yussen v. MCARE Fund,
616 Pa. 108, 117, 46 A.3d 685, 691 (2012).
In terms of the issue that was accepted by this Court for review, Providers
strongly differ with the Commonwealth Court’s determination concerning the viability of
common law claims. See, e.g., Brief for Appellants at 2 (“When the General Assembly
[J-74-2018] - 9
provides an express enforcement mechanism in a statute -- as it did in the 911 Act -- a
court may not create additional enforcement mechanisms.”); see also id. at 25 (“This
Court has long recognized that it is the General Assembly’s prerogative to decide how
its statutes shall be enforced.”). Providers claim that the strong weight of the prevailing
authority vindicates their position. See, e.g., id. at 15 (“For over 200 years,
Pennsylvania courts have held that, when the legislature expressly provides a means of
enforcing a statute, a party may not subvert that decision by trying to enforce the statute
through the common law.”). They also continue to stress the prohibitory language of
Section 1504 of the Statutory Construction Act. See 1 Pa.C.S. §1504.
Responding to the intermediate court’s reliance on the absence of any prohibitory
language in the 911 Act itself, Providers charge that this analysis “turns Pennsylvania
law on its head.” Brief for Appellants at 30. They contend that Pennsylvania law holds
that statutory remedies are presumed to be exclusive unless “the legislature explicitly
reveals in a statute that it does not intend for such exclusivity.” Id. (quoting White, 617
Pa. at 519, 53 A.3d at 733) (emphasis in original).
Turning to the panel’s discussion of the County’s obligations under the 911 Act
and its assertions of “direct harm” and “specific harm” arising from Providers’ alleged
violations of the statute, Providers’ explain that “[t]he violation of a statute and the fact
that some person suffered harm does not automatically give rise to a private cause of
action in favor of the injured person.” Id. at 3 (quoting Estate of Witthoeft v. Kiskaddon,
557 Pa. 340, 348, 733 A.2d 623, 627 (1999)); see also id. at 32 (“While allegations of a
direct injury may be necessary for a plaintiff to establish standing, they are not sufficient,
as Witthoeft makes clear, for that plaintiff to have a right of action to enforce a statute.”
(emphasis in original; citation omitted)). According to Providers, the harm alleged by
the County is no more direct or specific than injuries asserted in the many cases in
[J-74-2018] - 10
which Pennsylvania courts have held that a plaintiff cannot sue because the plaintiff
lacks statutory enforcement rights. See id. (citing, inter alia, D’Ambrosio v. Pa. Nat’l
Mut. Cas. Ins. Co., 494 Pa. 501, 511, 431 A.2d 966, 972 (1981) (holding that a
policyholder could not sustain an action against an insurance company based on an
allegation that emotional distress was caused by a bad-faith denial of an insurance
claim)).
Providers further criticize the Commonwealth Court’s decision to narrow its focus
to the Petty decision and maintain that the County lacks any constitutional right to
enforce the 911 Act. As to policy, they argue:
This case exemplifies the need for uniform administration of
the 911 Act. The central substantive issue in this lawsuit
(and [in] other county lawsuits) is that the pre-amendment
911 Act was silent as to how it applies to modern
telecommunications technologies that enable a single
physical line to transmit multiple telephone calls at once.
The General Assembly intended for PEMA to be able to fill
such gaps through regulations, which would provide
prospective guidance to the industry. Nothing in the 911 Act
confers on each of Pennsylvania’s 67 counties the authority
to try to exploit legislative silence by bringing common law
suits against an entire industry. As the Court of Common
Pleas correctly held, the General Assembly avoided this
unworkable result by “confer[ing] standing and exclusive
authority upon PEMA to enforce the provisions of the 911
Act, in relation to service providers.” Under the
Commonwealth Court’s holding, in contrast, each of
Pennsylvania’s counties is free to interpret the Act for itself.
This sort of patchwork enforcement of the 911 Act is the
opposite of what the General Assembly provided.
Id. at 40-41 (citations omitted). In terms of the allusion to “patchwork enforcement,”
Providers relate that the instant case is presently one of sixteen lawsuits that counties
have brought against more than eighty telephone companies throughout the state. See
id. at 1.
[J-74-2018] - 11
According to Providers, the General Assembly’s decision to impose on telephone
companies a statutory obligation to bill, collect, and remit 911 taxes and to select a
specific government entity to enforce that obligation raises no due process concerns. In
any event, Providers deem the constitutional argument to have been waived, as it was
raised by the County for the first time in a motion for reconsideration before the court of
common pleas.
Providers’ amici, the Chamber of Commerce of the United States of America and
the Pennsylvania Chamber of Business and Industry, also express concerns about
exposing telecommunications companies that are involuntarily enlisted to assist local
governments to disparate litigation in 67 counties across the Commonwealth. Further,
amici find the Commonwealth Court’s focus on the directness of relationships and harm
to be too amorphous to serve as a governing standard. To the contrary, amici urge the
decision as to where enforcement authority lies belongs to -- and for present purposes
has been made by -- the General Assembly.
Finally, Providers take the opportunity to defend the Commonwealth Court’s and
the county court’s interpretation of Section 5307(e)(1), as well as their treatment of Mr.
Mateff’s affidavit.4
4 Notably, the issue of statutory construction and the related matter of administrative-
agency deference were decided favorably to Providers at all previous stages of this
litigation, and the County did not lodge a cross-petition for allowance of appeal to
contest those determinations. These matters are also facially outside the scope of the
issue advanced in Providers’ petition for allowance of appeal and accepted for review,
which quite naturally is directed to the portion of the Commonwealth Court’s decision
that was adverse to Providers as petitioners and appellants. See CenturyLink, ___ Pa.
at ___, 176 A.3d at 852.
Nevertheless, commencing with the filing of its complaint, the County has intermittently
blended the statutory and common law theories in issue in this case. For example, as
noted, the County did not advance a pure statutory enforcement count in its complaint,
and thus, it arguably was not aggrieved by the intermediate court’s ruling on statutory
(continued…)
[J-74-2018] - 12
The County, on the other hand, criticizes the intermediate and county courts’
assessment of Section 5307(e)(1), maintaining that the statute expressly invested
authority in counties to enforce service providers’ obligations relative to the collection of
fees due under the 911 Act. In this regard, the County continues to rely upon Section
5307(e)(1)’s prescription that “[a]ction may be brought by or on behalf of the public
agency imposing the charge.” 35 Pa.C.S. §5307(e)(1) (superseded). The County
highlights that “action,” in this passage, harkens back to the statute’s previous reference
to “legal action to enforce the collection of any charge imposed under this chapter,” id.
(emphasis added); and that the “chapter” in question encompasses Section 5307,
governing county-imposed fees for traditional wireline service, as well as Section
5311.14, providing for fees associated with VoIP services. It is the County’s position
that it properly brought a legal action to enforce the collection by Providers of 911 fees
imposed under the relevant chapter of the 911 Act.
The County further contends that other provisions of the 911 Act also reflect its
authority to bring the present action. For example, the County explains that Section
5307(e)(3) accorded immunity to telephone service providers from lawsuits for
uncollectible 911 fees. The County posits, however, that no such immunity would be
necessary were providers not otherwise subject to such suits. Additionally, the County
(…continued)
interpretation and agency deference (given that all counts of the complaint remained
extant). Furthermore, the issue of statutory construction is an important one,
particularly given that we are advised that the present action is one of sixteen parallel
proceedings arising in various counties across the Commonwealth. Moreover, the
litigants on both sides have amply developed the respective positions on the matters.
And finally, as reflected in Part III, below, our analysis of the statutory and common-law
questions overlaps greatly, centering on legislative intent relative to enforcement.
Accordingly, we will address these questions on their terms.
[J-74-2018] - 13
notes that immunity only extended to “uncollectible amounts,” 35 Pa.C.S. §5307(e)(3)
(superseded), but there was no protection afforded relative to amounts that were
collectable. See Brief for Appellee at 16 (“The logical implication, then, is that the
General Assembly intended to permit lawsuits against service providers for failure to
collect and remit collectible amounts.” (emphasis added)). According to the County,
Providers’ contrary interpretation disregards the presumption that the Legislature
intended for all of the 911 Act to be effective. See 1 Pa.C.S. §1922(2).
The County also observes that, when the Legislature drafted the 911 Act, it
assigned defined terms to connote telephone companies’ customers, i.e., “telephone
subscribers” and “VoIP service customers.” 35 Pa.C.S. §5302 (superseded). The
County emphasizes that neither of these terms appeared in Section 5307(e)(1), thus, in
its view, undercutting the interpretation of the Commonwealth Court and the county
court. See Brief for Appellee at 18-19 (“If the legislature wanted to limit the County’s
enforcement power to lawsuits against [Providers’] customers, it would have used the
terms that it defined.”).
Further, the County relates that, in other parallel actions, several common pleas
courts have resolved preliminary objections favorably to local governments. The
County posits that the disparate treatment at the county-court level supports the
conclusion that Section 5307(e)(1) was ambiguous, and it maintains that any such
ambiguity should be resolved in favor of PEMA’s interpretation as reflected in Mr.
Mateff’s affidavit.
Additionally, the County purports to have the better position in terms of public
policy. In this regard, it urges that “it would be unreasonable to conclude that the
General Assembly intended to burden the County with the obligation to provide
emergency services throughout its jurisdiction, yet leave the County powerless to enjoin
[J-74-2018] - 14
and remedy significant interference with its ability to fund and provide those crucial
public services.” Brief for Appellee at 21.
To the extent that this Court would determine that the 911 Act did not authorize
the present lawsuit, the County asserts that the action remains viable based on the
contention that the 911 Act vested a constitutionally-protected property right in the
County. According to the County, Section 1504 can only apply to foreclose common
law actions if the General Assembly has created a remedy that is specific, exclusive,
and constitutionally adequate. See Brief for Appellee at 30 (citing Sch. Dist. of Borough
of W. Homestead v. Allegheny Cty. Bd. of Sch. Directors, 440 Pa. 113, 118, 269 A.2d
904, 907 (1970)). The County argues that subjugation to the discretion of an
administrative agency is an inadequate remedy, as evidenced by PEMA’s apparent
disinterest in the subject matter of the present litigation. In these regards, the County
also invokes the canon of constitutional avoidance. See 1 Pa.C.S. §1922(3) (codifying
the presumption that “the General Assembly does not intend to violate the Constitution
of the United States or of this Commonwealth”).
The County again cross-references other provisions of the 911 Act, this time as
demonstrating an implied enforcement power, to the degree that the Court would not
find an express one. For example, the County explains that Section 5304 of the 911 Act
provided that counties could execute “contracts, mutual aid agreements, cross-service
agreements and all other necessary documents which may be required in the
implementation of the county plan.” 35 Pa.C.S. §5304(a)(5) (superseded). Although
the 911 Act did not expressly authorize counties to enforce such contracts, agreements,
or other documents, the County asserts that such authority necessarily derives from the
structure of the 911 Act. See Brief for Appellee at 31.
[J-74-2018] - 15
Responding to the decisions referenced by Providers, the County indicates:
None of those cases involved a statutory framework that
imposed mandatory obligations on the plaintiff; none
involved a statutory framework that granted the plaintiff
some express enforcement authority; and none involved a
situation where the state agency allegedly possessing
exclusive enforcement authority under the statute declared
that the plaintiff did, in fact, have enforcement authority and
that the state agency had no interest in vindicating the
plaintiff’s rights.
Brief for Appellee at 36. Furthermore, the County defends the rationale of the
Commonwealth Court on its terms and argues that acceptance of Providers’ arguments
would leave the County without any practicable and effective remedy. Accord id. at 1
(“The rule that [Providers] propose would convert the General Assembly’s legislative
enactment from a funded mandate to an unfunded one.”).
Finally, the County and its amici -- the Counties of Beaver, Berks, Chester,
Clarion, Cumberland, Dauphin, Delaware, Washington, Westmoreland, and York -- rely
on a series of cases that stand for the general proposition that, where there is a right,
there is also a remedy. See, e.g., Willcox v. Penn Mut. Life Ins. Co., 357 Pa. 581, 600,
55 A.2d 521, 530-31 (1947).
II. Statutory Construction
The question of whether the 911 Act affords statutory enforcement authority to
the County relative to Providers -- like the issue specifically accepted for review -- is one
of law, over which this Court’s review is plenary. See Oliver v. City of Pittsburgh, 608
Pa. 386, 393, 11 A.3d 960, 964 (2011).
[J-74-2018] - 16
A. Ambiguity in Section 5307(e)(1)
At the outset, we agree with the County’s alternative position that Section
5307(e)(1) is ambiguous. On the one hand, contextually, we find that Providers’ reading
of the statute is the more natural one. See A.S. v. PSP, 636 Pa. 403, 418-20, 143 A.3d
896, 905-06 (2016) (stressing the role of context in statutory analysis). Under this
interpretation, “[a]ction” in the second sentence -- i.e., “[a]ction may be brought by or on
behalf of the public agency imposing the charge,” 35 Pa.C.S. §5307(e)(1) (superseded)
-- is understood to refer to the type of lawsuit discussed in the first sentence, that is,
“legal action to enforce the collection of any charge imposed under this chapter,” such
as might be taken by the “local exchange telephone compan[ies]” that are the
sentence’s subject. Id. Particularly since it would be unreasonable to presume that
such telephone companies would commence legal action against themselves, the
passage is most readily understood to address legal action against customers relative
to charges for which they are responsible and not actions against service providers in
their capacity as collectors involuntarily enlisted per the enactment. See 1 Pa.C.S.
§1922(1) (codifying the presumption that the General Assembly does not intend a result
that is absurd, impossible of execution, or unreasonable).5
Nevertheless, the second sentence of Section 5307(e)(1) entails some
shorthanding by the Legislature deriving from the first sentence, and the precise
predicate envisioned is not entirely clear. Thus, we find that it is possible for the second
sentence to be understood to invest broader enforcement authority in counties, as the
5The County’s argument that the immunity that was conferred by Section 5307(e)(3)
would be superfluous if counties were not empowered to bring suit overlooks PEMA’s
uncontested authority to otherwise pursue litigation. In other words, the immunity
accorded to Providers has little bearing on the question of who might be authorized to
pursue action against them, as long as some entity may do so.
[J-74-2018] - 17
“public agenc[ies]” imposing the charges and authorized to bring “[a]ction[s].” 35
Pa.C.S. §5307(e)(1) (superseded).6 Indeed, as the County reasonably observes, the
Legislature could have readily solidified the interpretation of Section 5307(e)(1)
advocated by Providers had it employed the defined terms that it devised to connote
telecommunication services customers.7 Given the ambiguity, we will employ tools of
statutory construction, see Oliver, 608 Pa. at 394, 11 A.3d at 965, albeit that our above
assessment of the context remains a substantial factor militating in Providers’ favor.
B. Deference to PEMA
Responding to the dispute concerning whether we should afford deference to
PEMA’s interpretation of Section 5307(e)(1) -- and while recognizing that the Court may
consider administrative interpretations in construing an ambiguous statute, accord 1
Pa.C.S. §1921(c)(8) -- we conclude that no deference is due here.
In this regard, we find little persuasiveness in the content of the affidavit. As the
common pleas court stressed, under the 911 Act, PEMA was invested with the power
and charged with the duty to take the actions necessary to implement, administer, and
6The term “public agency,” under the 911 Act, included political subdivisions. See 35
Pa.C.S. §5302 (superseded).
7 The county court’s focus on the word “charge” in Section 5307(e)(1) is not completely
dispositive, in our view, since the statute addressed “collection” of charges, an activity in
which Providers did engage. Moreover, while we agree with the Commonwealth Court
that the most natural reading of the statute does not connote billing, the statute does
refer to charges “imposed under this chapter,” and not only charges appearing on billing
statements transmitted to customers by service providers. Accordingly, to the degree
that the second sentence of Section 5307(e)(1) can be read to refer back to charges
under the statute in the abstract -- rather than such collection activities as might be
undertaken by local exchange telephone companies -- it can be understood to
encompass broader authorization.
[J-74-2018] - 18
enforce the enactment’s provisions. See 35 Pa.C.S. §5303(a)(12) (superseded). To
this end, PEMA was also afforded the power and, again, tasked with the obligation, to
adopt necessary rules and regulations.
PEMA should be no less aware than we are that there are many pending actions
by counties alleging that critical local emergency communications services were being
substantially underfunded on account of service providers’ alleged failures to adhere to
requirements of the 911 Act. In our considered judgment, regardless of whether the
counties enjoy enforcement authority under the statute, the statute very clearly imposes
the obligation squarely upon PEMA. To the degree that PEMA has taken no action to
evaluate the allegation of substantial underfunding of emergency communications
services, it seems rather clear that the agency is disregarding its duties under its own
enabling legislation.8 Indeed, the agency’s position that it has no interest whatsoever in
pervasive claims by local government units that critical government services within
PEMA’s purview are being underfunded in violation of the 911 Act is very difficult to
understand.
Finally, the practice of according deference to administrative agencies is
premised on respect for the exercise of agency expertise. See, e.g., Nationwide Ins.
Co. v. Schneider, 599 Pa. 131, 145, 960 A.2d 442, 450 (2008) (citing Popowsky v. PUC,
594 Pa. 583, 606, 937 A.2d 1040, 1054 (2007)). Here, Mr. Mateff’s affidavit fails to
demonstrate an understanding of PEMA’s duties under the 911 Act or to offer any sort
of persuasive explanation for the agency’s position grounded in agency expertise.
8 Certainly, PEMA would have no obligation to take further action should its judgment,
after reasonable review, be that service providers were complying with the 911 Act. Mr.
Mateff’s affidavit, however, offers no suggestion that PEMA has undertaken any such
review. Rather, he has explained that it is PEMA’s position that the counties should
simply be left to their own devices relative to their concerns about the amount of funding
collected by the service providers and distributed to the counties.
[J-74-2018] - 19
Accordingly, and again, PEMA’s position, as related by Mr. Mateff, will be accorded no
deference by this Court.
C. Other Principles of Statutory Construction Pertaining to Section 5307(e)(1)
When analyzing an ambiguous statute, a reviewing court is authorized to
consider relevant principles of construction, including the occasion and necessity for the
statute, the object to be attained, and the consequences of particular interpretations.
See 1 Pa.C.S. §1921(c)(1), (4), (6). There are also various presumptions that may
apply. See id. §1922.
In terms of the presumption of exclusivity advanced by Providers,9 we agree with
the County that the cases upon which they rely are more nuanced than Providers
portray. For example, Providers’ brief repeatedly intermixes statutory enforcement
powers of governmental units with statutory remedies made available to individuals who
otherwise lack any power of enforcement. See, e.g., Brief for Appellants at 30 (citing
White, 617 Pa. 519, 53 A.3d at 733, a case emphasizing the exclusiveness of statutory
remedies, for the proposition that statutory enforcement powers are also necessarily
exclusive). However, we do not read any of the decisions cited by Providers as holding
that, when the Legislature selects an enforcement agency to supervise regulation of the
statutory scheme at large, the authority is universally exclusive relative to various
governmental units which may be involved in discrete matters pertaining within that
regime.10 Although we find this factor (the General Assembly’s explicit prescription for
9 The arguments about exclusivity appear in the portion of Providers’ brief discussing
common law remedies, but they are also relevant to an assessment of Section
5307(e)(1) via principles of statutory construction.
10By way of example, Providers cite Lurie v. Republican All., 412 Pa. 61, 192 A.2d 367,
369 (1963), which concerned an attempt by two individual taxpayers to advance an
equity action seeking an accounting by a de facto political action committee. In our
(continued…)
[J-74-2018] - 20
enforcement responsibility in PEMA) to militate in Providers’ favor,11 we do not agree
that it creates a dispositive presumption in the construction of an ambiguous statutory
regime.
On the other hand, the principle that, where there is a right, there should also be
a remedy, referenced by the County and its amici, is equally subject to exception. See,
e.g., Salazar v. Allstate Ins. Co., 549 Pa. 658, 670, 702 A.2d 1038, 1044 (1997) (holding
that a remedy was unavailable to an insured for violation of a particular statutory duty on
the part of an insurer). Plainly, the Legislature enjoys additional latitude in the
prescription for remedies in instances in which it establishes a new duty or interest that
is purely a creation of statute and concomitantly determines the extent of any available
enforcement authority and/or remedial recourse. See, e.g., id. In this regard, there
(…continued)
judgment, the case has limited bearing on a matter involving competing claims by
governmental instrumentalities to enforcement authority relative to the funding for an
integral emergency communications system. Moreover, in Lurie, while the Court relied
on the general presumption that statutory remedies are exclusive, it also took the
opportunity to evaluate the adequacy of the remedy provided. See id. at 63-64, 192
A.2d at 369.
11 Similarly, as Providers highlight, the Legislature’s failure to grant enforcement
authority in the provision of the 911 Act specifying the “[p]owers and duties” of counties
suggests against implying enforcement authority based on ambiguous language. 35
Pa.C.S. §5304(a) (superseded). And, notably, this omission stands in contrast to the
specification of PEMA’s “[p]owers and duties,” including “[t]o take the actions necessary
to implement, administer and enforce the provisions of this chapter.” Id. §5303(a)(12)
(emphasis added) (superseded). See generally Commonwealth v. Berryman, 437 Pa.
Super. 258, 267, 649 A.2d 961, 965 (1994) (“Where a legislature includes specific
language in one section of a statute and excludes it from another, that language should
not be implied where excluded.”).
[J-74-2018] - 21
simply is no underlying vested entitlement to be protected, since the only interest or
entitlement derives from the statute itself.12
The current scenario concerns an interest, on the part of the County, that is
entirely statutory and was created at the same time that duties were imposed on
Providers. Significantly, moreover, under the 911 Act, service providers were “‘captive’
co-participants” in that they were required to perform under express statutory mandates
with “no contract, no business transaction, and no reciprocation.” Hamilton Cty.
Emergency Commc’ns Dist. v. BellSouth Telecommc’ns LLC, 852 F.3d 521, 532 (6th
Cir. 2017). We are circumspect about the notion that the Legislature would have
conscripted service providers into performing a governmental service -- and then
knowingly subjected them to disparate actions in 67 counties throughout the
Commonwealth pertaining to the new statutory duties involuntarily imposed -- without
clearly specifying its intentions in this regard. Instead, it is more likely that the
Legislature contemplated that any enforcement exercised against service providers
would be undertaken by PEMA in a centralized fashion, consistent with the agency’s
duties explicitly specified in the statute. See 1 Pa.C.S. §1504.13
12There is presently no need for us to discuss the range of circumstances under which
a constitutionally protected, vested interest might arise from the creation of a new right
or duty in a statute. Rather, our present analysis is directed to the circumstances at
hand, involving the Legislature’s conferral of a funding to subordinate governmental
units subject to terms and conditions contemplated by the Legislature, as well as the
associated enlistment of private companies to assist in the endeavor.
13 Our assessment, in this regard, is consistent with the “[e]nforcement” section of the
911 Act, per which the General Assembly invested in PEMA the “power and duty to
enforce and execute” the terms of the Act, including the right to “institute injunction,
mandamus or other appropriate legal proceedings to enforce this chapter and
regulations promulgated under this chapter.” 35 Pa.C.S. §5311.13 (emphasis added)
(repealed). Again, there was no corollary provision pertaining to counties.
(continued…)
[J-74-2018] - 22
As to the principle of constitutional avoidance referenced by the County, we find
that it does not pertain here. Again, the County had no vested entitlement to the
funding stream that was made available to it under the 911 Act that might foreclose the
Legislature from making reasonable policy judgments, and balancing respective
interests, by providing for centralized enforcement in the governing enactment itself.
Indeed, one purport of the County’s argument is that the General Assembly simply
could not centralize enforcement over a funding scheme benefitting counties in a state
agency without offending the property rights of local government. Even putting aside
the substantial question concerning whether subordinate government units may assert
property rights as such arising from funding mechanisms designed by the Legislature,
we differ with the position that such rights could be advanced so as to constrain
reasonable legislative policy judgments concerning enforcement.
After balancing the relevant considerations, and consistent with the rulings of the
Commonwealth Court and the court of common pleas, we hold that Section 5307(e)(1)
did not invest counties with the authority to pursue enforcement of new duties
involuntarily imposed on service providers under the 911 Act.14
(…continued)
As previously noted, the County explains that it had the express power to enter into
contracts for the implementation of a plan under the 911 Act. See 35 Pa.C.S.
§5304(a)(5) (superseded). Thus, it urges, to make such agreements meaningful it must
be afforded some implied enforcement authority. Of course, the duties arising under
contracts are not merely creatures of statute; although the statute serves as an enabling
platform, the contract is a voluntary undertaking on the part of the participants that itself
serves as the predicate for enforcement. As discussed above, the same is not true of
the collection responsibilities involuntarily imposed upon service providers per the 911
Act.
14 As an aside, we note that the General Assembly has removed even Section
5307(e)(1)’s more limited authorization from the statute. See 35 Pa.C.S. §5306.2(c)
(allocating this power as well to PEMA).
[J-74-2018] - 23
III. The County’s Common Law Claims
Based on essentially the same considerations discussed above, we also
conclude that the Legislature did not intend to sanction the advancement by counties of
common law claims to enforce the new duties that were imposed involuntarily on
service providers in the 911 Act.
Some jurisdictions have suggested that, where a legislature creates a new right
or duty that “is wholly the creature of statute,” common law claims are inapposite. Sch.
Comm. of Boston v. Reilly, 285 N.E.2d 795, 798 (Mass. 1972). From our point of view,
however, the matter generally is one of legislative intent to be discerned, ideally, from
the plain language of the enactment under review or, if necessary, via the application of
principles of statutory construction.
Responding to the Commonwealth Court’s analysis, there is no question that the
County’s interest here is substantial and that the harm to it, if its underlying legal
position is correct, may be great. Nevertheless, in our view, the Legislature has
balanced counties’ interests against those of other co-participants enlisted under the
911 Act and provided sufficient indicia evincing its intention to centralize enforcement
authority in the relevant state agency.15 Although we realize that the County may have
been disadvantaged by PEMA’s apparent failure to act, this unfortunate circumstance
does not control the judicial construction of a legislative enactment.
15The decision in Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983
A.2d 652 (2009), is distinguishable, inter alia, in that the obligations in issue were not
purely imposed involuntarily by statute but, rather, arose under a contractual overlay.
See id. at 210-12, 983 A.2d at 659; see also supra note 13.
[J-74-2018] - 24
The order of the Commonwealth Court is reversed, and the matter is remanded
for reinstatement of the order of the common pleas court.
Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.
Justices Todd and Wecht file concurring opinions.
[J-74-2018] - 25