J-A18006-22
2023 PA SUPER 41
DANIEL GARCIA, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
BEHALF OF ALL OTHERS SIMILARLY : PENNSYLVANIA
SITUATED :
:
Appellee :
:
v. :
:
AMERICAN EAGLE OUTFITTERS, :
INC., CARTER'S INC., CHICO'S FAS, :
INC., EXPRESS, INC., GABRIEL :
BROTHERS, INC., GENESCO INC., :
HOT TOPIC, INC., J. CREW GROUP, :
INC., KOHL'S CORPORATION, :
TAPESTRY, INC., THE GAP, INC., :
VERA BRADLEY, INC. :
:
Appellants : No. 1320 WDA 2021
Appeal from the Order Dated July 14, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-20-011057
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”)
J-A18006-22
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
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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