Cavallini v. Pet City and Supply

DISSENTING OPINION BY

JOYCE, J.:

¶ 1 Before determining that a private action may be maintained under 73 P.S. § 201-9.3 (the “Dog provisions”) of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”),2 the majority considered employing the rules of statutory construction that require a court to construe words and phrases according to their common usage.3 The majority then *1006dismissed that approach, concluding instead that the purpose of UTPCPL would be better served by employing an alternative principle of statutory construction, looking beyond the plain meaning of the words, and attempting to determine legislative intent. Because I believe the majority erred by ignoring the clear and unambiguous language of the Dog provisions, and because the Dog provisions do not authorize a private action, I respectfully dissent and write separately.

¶ 2 “As a general rule courts do not have the power to ignore clear and unambiguous statutory language in pursuit of a statute’s alleged or perceived purpose.” Commonwealth, Department of Transportation v. Taylor, 576 Pa. 622; 628, 841 A.2d 108, 111-12 (2004). As stated by our Supreme Court in the Taylor case:

The Statutory Construction Act directs that, in construing statutory language, “[wjords and phrases shall be construed according to the rules of grammar and according to their common and approved usage.” The Act further provides that, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”

Id. at 628-29, 841 A.2d at 112 (citations omitted).

¶ 3 “[I]t is only when the words of a statute ‘are not explicit’ that a court may resort to other considerations in order to ascertain legislative intent. Consistently with the [Statutory Construction Act], this Court has repeatedly recognized that rules of construction are to be invoked only when there is an ambiguity.” Gustine Uniontown Associates, Ltd. V. Anthony Crane Rental, Inc., —■ Pa. ■ — -,-, 842 A.2d 334, 346-47 (2004) (quoting Commonwealth, Department of Transportation v. Taylor, supra).

¶ 4 The language in question in this case is found in 73 P.S. § 201-9.3(h)(l) and directs that “[t]he Office of Attorney General shall enforce the provisions of this section.” The question, then, becomes whether “this section” refers to the Dog provisions of § 201-9.3 enacted in 1997 or whether it transcends § 201-9.3 and envelops § 201-9.2, the provisions of which were last amended in 1996.

¶ 5 Throughout the Dog provisions, there are references to “this section” as well as to various “subsections” and “clauses.” For instance, in § 201-9.3(c)(4) (ii), the statute refers to “subsection (b) of this section.” Subsection (b) has three sub-parts, which the statute refers to as “clauses (1), (2) and (3) of this subsection.” If parts (a) through (i) of the Dog provisions are referred to as “subsections,” the plain meaning of the words “this section” throughout the Dog provisions is § 201-9.3 in its entirety.

¶ 6 Again, the statute directs that “[t]he Office of Attorney General shall enforce the provisions of this section.” 73 P.S. § 201 — 903(h)(1). The majority concludes that the quoted enforcement provisions are limited to the civil penalties outlined in subsection (h), and in particular clause (h)(2). This interpretation would require us to assign two different meanings to the word “section” within the Dog provisions. There is no authority, or rationale, for doing so.

¶ 7 While, as the majority recognizes, we are charged with interpreting the UTPCPL liberally, we may not ignore the clear and unambiguous language of 73 P.S. § 201-9.3(h)(l) in favor of manufacturing uniform remedies under § 201-9.2 and § 201-9.3. In § 201-9.2, the legislature authorized a private action so that pur*1007chasers of personal, family and household goods and services could recover actual losses resulting from unfair trade practices of sellers. In § 201-9.3, the legislature empowered the Attorney General to enforce provisions authorizing certain remedies created solely for the benefit of the purchasers of dogs.

¶ 8 As noted by the majority and by the trial court, Appellee Cavallini did file a complaint with the Consumer Protection Bureau of the Attorney General’s office. The Attorney General’s office then advised Cavallini that efforts to mediate a settlement had failed and suggested that Caval-lini contact an attorney or district justice if he wanted to pursue the matter against Pet City.

¶ 9 It is not clear why the Office of the Attorney General merely attempted to mediate a resolution rather than enforce the directives of the Dog provisions. Nevertheless, that office’s failure to act does not empower this Court to ignore the plain language of the statute. Because the clear and unambiguous terms of the Dog provisions preclude a private action, I believe the trial court committed error of law by fabricating a private action under the Dog provisions, and the majority of this Court erred by endorsing that result. I would vacate the judgment and remand for entry of judgment notwithstanding the verdict.

. 73 P.S. §§ 201-1—201-9.3.

. 1 Pa.C.S.A. § 1903.