Meyer v. Community College of Beaver County

DISSENTING OPINION by

Judge LEAVITT.

The majority holds that the Community College of Beaver County is a “person” that can be held liable for treble damages under the Unfair Trade Practices and Consumer Protection Law (Consumer Protection Law)1 for engaging in unfair trade practices. I disagree that the Commonwealth of Pennsylvania, its agencies, political subdivisions and state-created institutions of education are engaged in a type of “trade or commerce” that is regulated by the Consumer Protection Law. Accordingly, I must, respectfully, dissent.

Here, a group of students seek damages because they took police officer training courses based, in part, on the representations of the Community College that its program was certified. The college lost its certification, and the students lost the benefit of their bargain. The students may be entitled to relief, but not under the Consumer Protection Law. To reach this conclusion, I look to the words of the Consumer Protection Law.

The students seek redress under Section 9.2(a) of the Consumer Protection Law, which states:

9.2 Private actions
(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.

Section 9.2(a) of the Consumer Protection Law, 73 P.S. § 201-9.2(a), added by Act of November 26, 1976, P.L. 1166 (emphasis added). The students assert they are “persons” who purchased “services” for “personal purposes” and thereafter suffered a loss of money as a result of the unlawful act of another “person,” i.e., the Community College. The Consumer Protection Law defines “person” as follows:

“Person” means natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entities.

Section 2 of the Consumer Protection Law, 73 P.S. § 201-2 (emphasis added). The question is whether the words “any other legal entities” meant to sweep up the Commonwealth, its agencies and Pennsylvania municipal corporations within the reach of “person.” There are several reasons why I believe that it does not.

First, the General Assembly knows how to draft legislation to define “person” to designate a Commonwealth agency or po*603litical subdivision. For example, The Controlled Substance, Drug, Device and Cosmetic Act2 defines “person” as follows:

“Person” means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

Section 2 of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-102(b) (emphasis added). Likewise, Section 108 of the Solid Waste Management Act,3 defines a “person” as

[a]ny individual, partnership, corporation, association, institution, cooperative enterprise, municipal authority, Federal Government or agency, State institution and agency (including, but not limited to, the Department of General Services and the State Public School Buildings Authority), or any other legal entity whatsoever which is recognized by law as the subject of rights and duties.

35 P.S. § 6018.103 (emphasis added).4 If the General Assembly had intended to include Commonwealth agencies and community colleges within the ambit of the Consumer Protection Law, it would have so stated. It did not do so in Section 2 of the Consumer Protection Law.

Second, the statutory construction maxim ejusdem generis must inform our construction of “any other entity.” This doctrine “mandates that general expressions used in a statute are restricted to things and persons similar to those specifically enumerated in the language preceding the general expressions.” Petty v. Hospital Service Association of Northeastern Pennsylvania, — Pa. -, -, 23 A.3d 1004, 1009 (2011) (citation omitted). In Section 2, the listed entities are private parties, ie., “natural persons, corporations, trusts, partnerships [and] incorporated or unincorporated associations.” 73 P.S. § 201-2. A Commonwealth agency created by the legislature to administer and enforce a statute bears no similarity to the private parties listed in Section 2. Any “other legal entity” might include, for example, a limited liability company, which is a type of legal entity formed to conduct business that is not named in Section 2; indeed, this type of legal entity did not exist at the time the Consumer Protection Law was enacted in 1976.5

It makes sense that the Commonwealth and its progeny were intentionally omitted from the definition of “person,” because the Consumer Protection Law regulates “trade or commerce,” which does not describe governmental activities, as noted by Judge Pellegrini in his dissent.6 Section 3 states, in relevant part, as follows:

*604Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce as defined by subclauses (i) through (xxi) or clause (4) of section 2 of this act and regulations promulgated under section 3.1 of this act are hereby declared unlawful.

Section 3 of the Consumer Protection Law, 73 P.S. § 201-3 (emphasis added). The Commonwealth, its agencies and municipal corporations are not engaged in “trade or commerce.” The Community College is a public institution, funded, in part, by the Commonwealth and was not created to “compete” with private educational institutions, whether non-profit or for-profit. Rather, the Community College was created to fill a need not filled by other institutions.

This Court has held that the Commonwealth is a “person” capable of bringing “a private action” to recover treble damages under Section 9.2 of the Consumer Protection Law. See Commonwealth v. TAP Pharmaceutical Products, Inc., 885 A.2d 1127, 1143 (Pa.Cmwlth.2005) (TAP II). I agree with the majority that if the Commonwealth or a local agency is a person for purposes of being a plaintiff under the Consumer Protection Law, then it follows that either must also be a “person” for purposes of being a defendant. Stated otherwise, the word “person” must have one meaning for all purposes of the statute. However, I believe we erred in TAP II in holding that the Commonwealth was a “person” for purposes of being a plaintiff in a Section 9.2 action. We should overrule this portion of the decision.

In TAP II, the Attorney General filed suit under Section 9.2 against a number of pharmaceutical companies, asserting that they had engaged in unfair and deceptive marketing practices for the purpose of overcharging consumers for their drug products. To bring a “private action” under Section 9.2, the plaintiff “person” must have purchased the drugs for “personal, family or household purposes.” 73 P.S. § 201-9.2. We glossed over that point, holding that the “Commonwealth” could bring a “private” action against the named pharmaceutical defendants, even though the Commonwealth did not purchase drugs for “personal, family or household purposes.” 73 P.S. § 201-9.2. We also overlooked the title of Section 9.2, which creates a “private action,” and the fact that an action brought by the Attorney General in the name of the Commonwealth cannot be a “private action.” Instead, we accepted the Attorney General’s argument that because the Commonwealth acted in a representative, or parens patriae capacity, the Commonwealth was a “person” capable of bringing a “private action” under Section 9.2 to recover damages. There are several flaws to our holding in TAP II.

The central flaw is that the Attorney General does not have general parens pat-riae authority.7 The powers of the Attorney General begin with the Pennsylvania Constitution, and it states, in relevant part, as follows:

An Attorney General shall be chosen by the qualified electors of the Commonwealth ...[.] [H]e shall be the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.

Pa. Const, art. IV, § 4.1 (emphasis added). The law that imposes those powers and duties is the Commonwealth Attorneys *605Act, Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 — 782-506. Further, that act is the exclusive source of the Attorney General’s powers; stated otherwise, the Attorney General’s powers and duties have no basis in the common law, which is the source of the parens patriae doctrine.8

This was not always the case. Article IV, section 4.1 was added to the Pennsylvania Constitution by amendment in 1978. Prior to that amendment, the Attorney General was appointed by the governor and served as a member of the governor’s cabinet as head of the Department of Justice. Pre-1978, the Attorney General’s powers and duties were enumerated in The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§ 51-732, and they were thought to be augmented by common law powers. In a landmark case, Commonwealth ex. rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1936), our Supreme Court reviewed the historic antecedents of the Attorney General’s common law power and held that Pennsylvania’s Attorney General

is clothed, with the powers and attributes which enveloped Attorneys General at common law, including the right ... to supersede and set aside the district attorney when in the Attorney General’s judgment such action may be necessary.

Id. at 30-31, 188 A. at 530 (emphasis added).

The Attorney General’s common law powers included the power to supersede a district attorney in a criminal matter and to intervene in charitable trust cases on behalf of the citizens of Pennsylvania. See, e.g., Commonwealth v. The Barnes Foundation, 398 Pa. 458, 467, 159 A.2d 500, 505 (1960) (holding that the Attorney General enjoys the common law power to participate in litigation involving charitable trusts).

In 1978, our Supreme Court overruled Minerd, finding “the reasoning in this line of decisions to be erroneous.... ” Commonwealth v. Schab, 477 Pa. 55, 60, 383 A.2d 819, 821 (1978). Accordingly, the Supreme Court held that the Attorney General lacked the power to supersede a district attorney in a criminal law enforcement matter. That same year, after Schab was issued, the voters adopted Article IV, section 4.1 of the Pennsylvania Constitution, which instituted the election of our Attorney General, replacing the selection by gubernatorial appointment.

Thereafter, the newly elected Attorney General attempted to supersede a district attorney in a criminal case, arguing that the holding in Schab was no longer viable in light of the constitutional amendment. Specifically, the Attorney General argued that the

Commonwealth Attorneys Act is but one source of the Attorney General’s powers, and that, moreover, the language of Article 4, section 4.1, of our state constitu*606tion and that of the Act evidence an intent to retain the common law powers of the Attorney General.

Commonwealth v. Carsia, 512 Pa. 509, 512, 517 A.2d 956, 957-958 (1986) (emphasis added). Our Supreme Court rejected the argument that the Attorney General had any powers not specified in statutory law.

Explaining the meaning of Article IV, section 4.1 of the Pennsylvania Constitution, the Supreme Court explained:

In our view, the use of the language “as may be imposed” clearly shows an extension of power to the legislature to statutorily define and regulate the powers and duties of the Attorney General. The General Assembly utilized that grant of constitutional powers in 1980, and enacted the Commonwealth Attorneys Act. That Act made it clear that the powers of the state Attorney General are no longer an emanation from some bed of common law precepts, but are now strictly a matter of legislative designation and enumeration.

Id. at 513, 517 A.2d at 958 (emphasis added). In sum, under the Pennsylvania Constitution, the powers of the Attorney General are “strictly a matter of legislative designation and enumeration.” Id.

In reaching this conclusion, the Supreme Court relied upon a report of the Joint State Government Commission that had been prepared on the legislation needed to establish the scope and powers of the new Office of Attorney General. The Commission’s final report explained that

[legislation enacted by the General Assembly is the exclusive source of the powers and duties of the elected Attorney General pursuant to Article IV, Section 4.1....

Joint State Gov’t Comm’n, Office Of Elected Attorney General, Final Report 4 (1978). The legislation that was the subject of the Joint State Government Commission’s report became the Commonwealth Attorneys Act.

The Commonwealth Attorneys Act has limited the Attorney General’s parens pat-riae power, ie., the power to initiate actions on behalf of citizens, to two circumstances. First, the Attorney General may intervene in charitable matters on behalf of citizens. 71 P.S. § 732-204(c).9 Second, the Attorney General may represent “the Commonwealth and its citizens in any action brought for violation of the antitrust laws of the United States and the Commonwealth.” Id. (emphasis added).10 That is it.

*607In TAP II, this Court considered none of this antecedent history. Summarily, we relied upon the parens patriae analysis of Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982), in which the United States Supreme Court held that, generally, a state may not sue on behalf of its citizens without showing that a separate sovereign interest will also be served. Id. at 607, 102 S.Ct. 3260. Snapp limits a state’s parens patriae powers, which are assumed to exist. Snapp does not, and cannot, invest a state with parens patriae authority or require it to be exercised. This question can only be determined by each state in accordance with its own constitution.

In Pennsylvania, our Constitution has limited the Attorney General’s powers to those established by “legislative designation and enumeration.” Carsia, 512 Pa. at 513, 517 A.2d at 958. The legislature has authorized the Attorney General to bring suit “on behalf of citizens,” a parens patri-ae power, but only for violations of federal antitrust laws.11 The Commonwealth Attorneys Act does not authorize the Attorney General to seek damages “on behalf of citizens” for violation of the Consumer Protection Law.

Further, the General Assembly has created a specific role for the Attorney General with respect to the Consumer Protection Law. Section 4 of the Consumer Protection Law authorizes the Attorney General to “bring an action in the name of the Commonwealth against such person to restrain by temporary or permanent injunction the use of [an unlawful] method, act or practice.” 73 P.S. § 201-4.12 That injunction may include an order of restitution. Section 4.1 of the Consumer Protection Law, 73 P.S. § 201-4.1.13 Finally, a “person” that violates the injunction may be ordered to pay civil penalties. Section 8 of the Consumer Protection Law, 73 P.S. § 201-8.14

*608Notably absent from the Attorney General’s enforcement authority is the power to recover damages on behalf of individual consumers. Absent this legislative “designation and enumeration,” it must be concluded that the Attorney General lacks authority to bring a “private action” under Section 9.2 in the name of the Commonwealth on behalf of private citizens. That conclusion could not be clearer given our Supreme Court’s holding in Carsia, 512 Pa. 509, 517 A.2d 956, and we erred in otherwise holding in TAP II. In sum, a “person” is not the Commonwealth acting in a representative capacity.

The majority’s construction of “person” has wide-reaching implications. It would allow the Attorney General to initiate a Section 4.1 injunction action against a “person” that is a Commonwealth agency such as, for example, the Liquor Control Board. This shows the absurdity of construing the statute’s definition of “person” to mean a government agency or institution, as either a plaintiff or a defendant. The Consumer Protection Law devolves into a program of government feeding on itself.

There are cogent reasons why the Consumer Protection Law did not designate a Commonwealth agency or municipal corporation as a “person” in Section 2. Commonwealth agencies and municipal corporations do not need the protections of the Consumer Protection Law because they are not like private consumers. An individual procurement officer may fall sway to exaggerated claims featured in Superbowl advertisements, but his impressionability is irrelevant. State and local agencies are constrained in how they make purchases. The Commonwealth purchases goods or services through competitive bidding procedures governed by the Commonwealth Procurement Code, 62 Pa.C.S. §§ 101-4604. Likewise, municipal corporations make purchases only in accordance with competitive bidding. See, e.g., Section 3102(a) of the Second Class Township Code, 53 P.S. § 68102(a).15

Nor is there an obvious necessity to hold a Commonwealth agency or municipal corporation liable for its actions under the Consumer Protection Law. Persons acting under color of state law can be held accountable for their deceitful acts under 42 *609U.S.C. § 1988.16 A loss of property without due process violates the United States Constitution and can result in monetary damages. Commonwealth agencies and municipal corporations, unlike private actors, must conduct their “business” in an open and transparent manner. Unlike a private company, they must provide access to their records that relate to their activities. See Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104. Is accountability under the Consumer Protection Law also needed? 17

In sum, “person” as defined in the Consumer Protection Law does not include a Commonwealth agency or state institution or municipal corporation of any type.18 To stretch the Consumer Protection Law in that fashion will lead to mischief that is only as wild as the imagination. I defer to Judge Brobson’s dissenting opinion for a more thorough discussion of the ramifications of the majority’s interpretation of the Consumer Protection Law.

For these reasons, I would reverse the order of the trial court and grant the Community College’s motion for partial summary judgment.

. Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1—201-9.3.

. Act of April 14, 1972, P.L. 233, as amended, 35 P.S.§§ 780-101-780-144.

. Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101-6018.1003.

. There are many more examples. See, e.g., Section 4(a) of the Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 954(a) (defining "person” to include "the Commonwealth of Pennsylvania, and all political subdivisions, authorities, boards and commissions thereof” ...); Section 1 of the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 (defining “person” as "any agency, instrumentality or entity of Federal or State Government ...”); and Section 3 of the Air Pollution Control Act, Act of January 8, 1960, P.L. (1959) 2119, 35 P.S. § 4003 (defining "person” as an "agency of the Commonwealth or Federal Government ...").

. The Limited Liability Company Law of 1994, Act of December 7, 1994, P.L. 703, as amended, 15 Pa.C.S. §§ 8901-8998, authorizes the formation of a limited liability company in Pennsylvania.

. State parks offer overnight campsites at state parks, and so do private campgrounds. This does not mean that the Commonwealth *604has undertaken "trade or commerce” in the creation of its state park system.

. See also Pennsylvania Department of Banking v. NCAS of Delaware LLC, 995 A.2d 422 (Pa.Cmwlth.2010) (Leavitt, J., concurring).

. The origin of the parens patriae doctrine can be.traced to medieval England. Conceptually, the doctrine is derived from the king's royal prerogative to act as the guardian of an individual unable to protect his own interests. The attorney general, at common law, was the chief legal representative of the sovereign in the courts and was the only officer who could prosecute on behalf of the people in order to protect the interests of the crown. As in England, a colonial attorney general, acting as the chief legal officer of a British colony, enjoyed broad common law power to bring suit in parens patriae on behalf of colonial citizens. Jay L. Himes, State Parens Patriae Authority: The Evolution of the State Attorney General’s Authority 1-2, 18-19 (The Institute for Law and Economic Policy Symposium paper, Apr. 23, 2004), available at http://www. abanet.org/antitrust/at-committees/at-state/ pdf/publications/other-pubs/parens.pdf.

. It states, in relevant part:

The Attorney General shall represent the Commonwealth and all Commonwealth agencies and upon request, the Departments of Auditor General and State Treasury and the Public Utility Commission in any action brought by or against the Commonwealth or its agencies, and may intervene in any other action, including those involving charitable bequests and trusts or the constitutionality of any statute. The Attorney General shall represent the Commonwealth and its citizens in any action brought for violation of the antitrust laws of the United States and the Commonwealth.

71 P.S. § 732-204(c) (emphasis added).

. At the time the Joint State Government Commission filed its report, the General Assembly was considering 1977 House Bill 845, intended to create intrastate antitrust enforcement authority for the Attorney General. Joint State Gov't Comm'n, Office Of Elected Attorney General, Final Report 11 (1978). The bill died in committee and never passed the House. Pennsylvania General Assembly, Bill Information, Regular Session 1977-1978, House Bill 845, available at http://www.legis. state.pa.us/cfdocs/billinfo/billinfo.cfm?syear= 1977&sind — 0&body=H&type=B&BN—0845.

The Commonwealth has not yet enacted a state antitrust statute. In the meantime, the Attorney General may enforce federal antitrust laws in a representative capacity.

. Should Pennsylvania ever enact a state antitrust law, the Attorney General’s power to bring suit on behalf of citizens will extend to that law as well.

. Section 4 of the Consumer Protection Law provides:

Whenever the Attorney General or a District Attorney has reason to believe that any person is using or is about to use any method, act or practice declared by section 3 of this act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the Commonwealth against such person to restrain by temporary or permanent injunction the use of such method, act or practice.

73 P.S. § 201-4.

. Section 4.1 of the Consumer Protection Law states:

Whenever any court issues a permanent injunction to restrain and prevent violations of this act as authorized in section 4 above, the court may in its discretion direct that the defendant or defendants restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any violation of this act, under terms and conditions to be established by the court.

73 P.S. § 201-4.1. Section 4.1 was added by the Act of November 24, 1976, P.L. 1166.

.Section 8 of the Consumer Protection Law provides:

(a) Any person who violates the terms of an injunction issued under section 4 of this act or any of the terms of an assurance of voluntary compliance duly filed in court under section 5 of this act shall forfeit and pay to the Commonwealth a civil penalty of not more than five thousand dollars ($5,000) for each violation. For the purposes of this section the court issuing an injunction or in which an assurance of voluntary compliance is filed shall retain jurisdiction, and the cause shall be continued; and, in such cases, the Attorney General, or the appropriate District Attorney, acting in the name of the Commonwealth of Pennsylvania, may petition for recovery of civil penalties and *608any other equitable relief deemed needed or proper.
(b) In any action brought under section 4 of this act, if the court finds that a person, firm or corporation is wilfully using or has wilfully used a method, act or practice declared unlawful by section 3 of this act, the Attorney General or the appropriate District Attorney, acting in the name of the Commonwealth of Pennsylvania, may recover, on behalf of the Commonwealth of Pennsylvania, a civil penalty of not exceeding one thousand dollars ($1,000) per violation, which civil penalty shall be in addition to other relief which may be granted under sections 4 and 4.1 of this act. Where the victim of the wilful use of a method, act or practice declared unlawful by section 3 of this act is sixty years of age or older, the civil penalty shall not exceed three thousand dollars ($3,000) per violation, which penalty shall be in addition to other relief which may be granted under sections 2 and 4.1 of this act.

73 P.S. § 201-8.

. Act of May 1, 1933, P.L. 103, 53 P.S. § 68102, added by the Act of November 9, 1995, P.L. 350. Section 3102(a) of the Second Class Township Code identifies the contracts that must be awarded through a competitive bidding process, stating in relevant part:

All contracts or purchases in excess of the required advertising amount of ten thousand dollars ($10,000), except those specifically excluded, shall not be made except with and from the lowest responsible bidder after due notice in one newspaper of general circulation in the township.

*60953 P.S. § 68102(a).

. Section 1983 provides

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983.

. Even if it were needed, it is for the General Assembly to fill that need.

. The Statutory Construction Act of 1972 defines "person” for the purpose of "any statute finally enacted after September 1, 1937, unless the context clearly indicates otherwise." 1 Pa.C.S. § 1991. It defines “person” as follows:

"Person.” Includes a corporation, partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person.

Id. In the Consumer Protection Law, the legislature chose not to follow the default definition of "person” set forth in the Statutory Construction Act of .1972. Instead, it added "natural person,” deleted "government entity” and did not add "Commonwealth.” These must be presumed conscious decisions.