J-A18007-22
2023 PA SUPER 40
DANIEL GARCIA, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
ON BEHALF OF ALL OTHERS : PENNSYLVANIA
SIMILARLY SITUATED :
:
:
v. :
:
:
FOOT LOCKER RETAIL, INC., FOOT : No. 1453 WDA 2021
LOCKER SPECIALTY, INC., AND FOOT :
LOCKER STORES, INC. :
:
Appellants :
Appeal from the Order Entered September 2, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-21-002107
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
CONCURRING OPINION BY McLAUGHLIN, J.: FILED: MARCH 14, 2023
In Feeney v. Dell Inc., 908 N.E.2d 753 (Mass. 2009), the
Massachusetts Supreme Judicial Court considered a similar issue regarding
Massachusetts’ consumer protection statute. There, retailers argued that the
erroneous collection of sales tax “falls outside ‘the conduct of trade or
commerce’ as those terms are used in” the statute. Id. at 769. The
Massachusetts statute uses terms identical in all material ways to
Pennsylvania’s Unfair Trade Practice and Consumer Protection Law (“UTPCPL”)
and prohibits “unfair or deceptive practices in the conduct of any trade or
commerce.” Id. at 770 (quoting Mass. Gen. Laws ch. 93A, § 2).
Like the majority here, the Massachusetts Supreme Judicial Court in
Feeney concluded that the allegations there did not fall within the scope of
J-A18007-22
the statute. It did, however, identify a fact pattern that it concluded would
compel a different result:
Of course, if a retailer deceptively collects a charge that the
retailer terms a “sales tax” and keeps the proceeds of the “tax”
for the retailer's own enrichment rather than remit them to the
Commonwealth, a different result would obtain. In such a
circumstance, the collection of the “tax” would be motivated by
business reasons, not by a legislative mandate, and would
constitute a “deceptive practice” under G.L. c. 93A. There is no
such allegation here.
Id. at 771 n.37.
I join the majority on the understanding that it addresses the allegations
of the complaint in our case and expresses no opinion on whether a case such
as the Massachusetts court identified would be actionable under the UTPCPL.
Judge Stabile and Judge Murray join the concurring opinion.
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