Meyer v. Community College of Beaver County

DISSENTING OPINION by

Judge BROBSON.

I commend my colleagues who penned opinions in this matter for their thorough and thoughtful analyses of the issues before this Court. I write, however, to take a more holistic approach to addressing the general question before this Court — namely, whether governmental entities,1 as a matter of law, are subject to suit under the Unfair Trade Practices and Consumer Protection Law (CPL).2 In reviewing the *610statute as a whole, I conclude that they are not. Thus, I must respectfully disagree with the majority and concurring opinions.

If public agencies can be held liable under the CPL, as the majority reasons, the implications of the majority’s holding are far reaching. Under the Liquor Code,3 for example, the Pennsylvania Liquor Control Board (LCB) engages exclusively in the sale and distribution of alcohol in the Commonwealth. This activity falls within the definition of “trade” and “commerce” in the CPL.4 Under the majority’s analysis, a private citizen of the Commonwealth who purchases alcohol for personal, family, or household use could sue the LCB under Section 9.2(a) of the CPL, 73 P.S. § 201-9.2 (creating private right of action),5 and seek the relief available under that section, which includes, inter alia, treble damages, costs, and attorneys’ fees.

Under the Real Estate Tax Sale Law,6 county tax claim bureaus are authorized to advertise and sell real property, an activity which falls within the CPL’s definition of “trade” and “commerce.” Under the majority’s analysis, a private citizen of the Commonwealth who purchases real estate at a tax upset sale or judicial sale could bring suit against the county tax claim bureau that advertised and sold the real property under Section 9.2(a) of the CPL and seek treble damages, costs, and attorneys’ fees.

There are many more instances where state and local agencies engage in “trade” and “commerce” as these terms are strictly defined in the CPL. Because our state and local governments are authorized to engage in such activities, I am loathe to construe the CPL in such a way as to create a private right of action against government agencies in the absence of clear legislative intent to support such a construction. I do not believe the General Assembly’s use of the phrase “any other legal entities,” which follows a list of clearly private concerns, in the definition of “person” in the CPL7 is a sufficient expression of legislative intent to subject public entities to private lawsuits, or any other legal action,8 under the CPL. To the contrary, I believe the doctrine of ejusdem generis, most recently applied by our Supreme Court in Petty v. Hospital Service Association of Northeastern Pennsylva*611nia, — Pa. -, 23 A.3d 1004 (2011),9 applies and restricts our interpretation of “any other legal entities” to any other private legal entities.10

Finally, construing “any other legal entity” in such a way as to authorize private litigants to bring suits under the CPL against public entities violates the rule of statutory construction that requires us to presume that the General Assembly does not intend to favor private interests over the public interest. 1 Pa.C.S. § 1922(5). The majority’s decision in this case, which provides private citizens access to public coffers to remedy purely private injuries under the CPL, ignores this presumption.

For these reasons, I would reverse the trial court.

. In Community College of Allegheny County v. Seibert, 144 Pa.Cmwlth. 616, 601 A.2d 1348 (1992), aff’d, 533 Pa. 314, 622 A.2d 285 (1993), this Court held that community colleges are local agencies for purposes of governmental immunity. Notwithstanding the majority's conspicuous references to local agencies throughout its opinion, the majority’s reasoning and result extend with equal force to Commonwealth agencies.

. Act of December 16, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 to -9.3.

. Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-102 to 10-1001.

. Section 2(3) of the CPL, provides, inter alia:

"Trade” and "commerce” means the advertising, offering for sale, sale or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity or thing of value wherever situate, and includes any trade or commerce directly or indirectly affecting the people of this Commonwealth.

73 P.S. § 201-2(3) (emphasis in original).

. Of course, this private citizen would need to state a claim under the CPL as a matter of law. In light of footnote 16 to the majority’s opinion, however, I find it necessary to state the obvious.

. Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101 to .803.

. "Person” is defined in the CPL as "natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entities.” Section 2(2) of the CPL, 73 P.S. § 201-2(2).

. If the majority’s analysis stands, for example, the Attorney General could bring a suit to enjoin the LCB or a county tax claim bureau from engaging in acts or practices deemed unlawful under the CPL. Section 4 of the CPL, 72 P.S. § 201-4. If the LCB or county tax claim bureau violates such an injunction, the Attorney General could petition a court for an order restraining the LCB and the county tax claim bureau from further doing business.

. See Summit House Condominium v. Commonwealth, 514 Pa. 221, 227, 523 A.2d 333, 336 (1987) (“The doctrine of ejusdem generis mandates that ‘[gjeneral expressions used in a statute are restricted to things and persons similar to those specifically enumerated in the language preceding the general expressions.' ").

. Indeed, if the phrase "any other legal entities” is so broad that it encompasses all legal entities (private and public), the majority opinion fails to explain the General Assembly's express inclusion of "corporations, trusts, partnerships, incorporated or unincorporated associations" — all of which are legal entities — between "natural persons” and "any other legal entities” in the definition of "person.” The majority's construction of the definition of "person” in Section 2(2) of the CPL renders the language identifying specific private legal entities mere surplusage. Such a construction is to be avoided. 1 Pa.C.S. § 1922(2) (presumption "[tjhat the General Assembly intends the entire statute to be effective and certain”); Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004) (holding that no provision of statute shall be "reduced to mere surplusage”).