Pennsylvania Department of Banking v. NCAS of Delaware, LLC

*446CONCURRING and DISSENTING OPINION BY

Judge SIMPSON.

I concur in the thoughtful majority opinion regarding Counts III and IV of the Amended Complaint. I respectfully dissent, however, as to Counts I (violation of the Consumer Discount Company Act (CDCA) 1) and II (violation of the act commonly known as Loan Interest and Protection Law (LIPL)2). For the following reasons, I would overrule objections to those Counts, thereby allowing all the Counts to proceed through the pleadings.

I part company with the majority over whether the Plaintiffs, both of which are Commonwealth parties, may assert claims for declaratory relief and recovery of excessive interest from loans to Pennsylvania borrowers from Advance America. I believe claims for these types of relief are sufficiently stated.

I.

a.

Among other arguments, the Plaintiff Commonwealth parties assert statutory authority for their claims under Section 508(C) of the Department of Banking Code (Quo warranto or injunction proceedings; conduct of administrative proceedings relating to institutions and credit unions).3 That Section provides:

The [Djepartment may maintain an action in Commonwealth Court or any other court of competent jurisdiction for an injunction or other process against any person to restrain and prevent the person from engaging in any activity violating this act or any other statute or regulation within the [Djepartment’s jurisdiction to administer or enforce.

71 P.S. § 733-508(C) (emphasis added). This provision expressly grants the Department of Banking authority to seek remedies beyond injunctions for statutes it is required to administer. The CDCA is such a statute.

b.

Further, the Plaintiff Commonwealth parties assert statutory authority for their claims under Section 506(a) of the LIPL (Enforcement), which provides:

(a) When the Attorney General has reason to believe that any person has violated the provisions of this act, or the regulations promulgated hereunder, he shall have standing to bring a civil action for injunctive relief and such other relief as may be appropriate to secure compliance with this act or the regulations promulgated hereunder.

41 P.S. § 506(a) (emphasis added). This provision expressly gives the Attorney General authority to seek remedies beyond injunctions.

c.

The majority concludes that remedies beyond those seeking compliance are not authorized. Because prospective compliance has been secured by a previously entered injunction, no further remedies are available. Respectfully, I disagree.

The Plaintiff Commonwealth parties aver that Advance America collected tens of millions of dollars of illegal revenue from thousands of Pennsylvania residents. Am. Compl. at ¶¶21, 25. At this early stage of the litigation, we must accept *447these averments as true. I believe the ongoing retention by Advance America of tens of millions of dollars of revenue collected in violation of the CDCA and the LIPL is not in compliance with the statutes. Therefore, I would overrule the preliminary objections to Counts I and II.

II.

Furthermore, I believe the Plaintiff Commonwealth parties enjoy parens patri-ae standing to recover monetary damages in Counts I and II on behalf of the citizens of the Commonwealth. Our Court recently discussed parens patriae standing in Commonwealth ex rel. Pappert v. TAP Pharmaceutical Products, Inc. 885 A.2d 1127, 1143-44 (Pa.Cmwlth.2005) (suit by Attorney General in parens patriae on behalf of Pennsylvania citizens injured by pharmaceutical companies through allegedly improper conduct that caused Commonwealth entities and citizens to pay inflated prices for pharmaceuticals).

Here, as in TAP Pharmaceutical Products, the Commonwealth’s Amended Complaint alleges sufficient facts supporting the Commonwealth’s position. Specifically, the Amended Complaint contains aver-ments that the Commonwealth brought suit to protect its sovereign interest in enforcing the statutory scheme enacted by the General Assembly for the regulation of lenders and the Commonwealth’s quasi-sovereign interest in the economic well-being of its citizens. Am. Compl. at ¶4. The Commonwealth further avers its belief that Advance America offered its line of credit product to thousands of customers in Pennsylvania, and that by illegally charging consumers the Monthly Participation Fee on its line of credit product, together with an interest rate of 5.98%, Advance America injured the economic health and well-being of the Commonwealth’s citizens. Am. Compl. at ¶¶ 21, 39.

Also, in TAP Pharmaceutical Products this Court relied heavily on a United States Supreme Court decision in Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). In that case, the United States Supreme Court offered an indication helpful in determining whether an alleged injury to the welfare of its citizens suffices to give a State standing to sue as parens patriae: whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers. Id. at 607,102 S.Ct. 3260. Here, the injury alleged, excessive interest and related charges, is one which the Commonwealth attempted to address through its sovereign lawmaking powers. Applying the indication suggested by the United States Supreme Court, standing to sue as parens patriae is sufficiently stated.

For all these reasons, I would overrule preliminary objections to Counts I and II of the Amended Complaint, thus allowing all the Counts to proceed through pleadings.

President Judge LEADBETTER joins in this dissent.

. Act of April 8, 1973, P.L. 262, as amended, 7 P.S. §§ 6201-6219.

. Act of January 30, 1974, P.L. 13, as amended, 41 P.S.§§ 101-605.

.Act of May 15, 1933, P.L. 565, as amended, 71 P.S. § 733-503(C).