Anadarko Petroleum Corporation and Anadarko E&P Onshore LLC, Appellants v. Commonwealth of Pennsylvania; Chesapeake Energy Corporation; Chesapeake Appalachia, LLC; Chesapeake Operating, LLC; Chesapeake Energy Marketing, LLC; Chesapeake Energy Corporation; Chesapeake Appalachia, LLC; Chesapeake Operating, LLC; and Chesapeake Energy Marketing, L.L.C., Appellants v. Commonwealth of Pennsylvania
No. 58 C.D. 2018; No. 60 C.D. 2018
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
FILED: March 15, 2019
ARGUED: November 14, 2018
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge; HONORABLE ROBERT SIMPSON, Judge; HONORABLE P. KEVIN BROBSON, Judge; HONORABLE PATRICIA A. McCULLOUGH, Judge; HONORABLE ANNE E. COVEY, Judge; HONORABLE MICHAEL H. WOJCIK, Judge; HONORABLE ELLEN CEISLER, Judge
OPINION BY JUDGE CEISLER
In these combined interlocutory appeals by permission, we address two issues of first impression pertaining to Pennsylvania‘s Unfair Trade Practices and Consumer Protection Law (Law or UTPCPL).1 The first is whether Appellee Commonwealth of Pennsylvania, Office of Attorney General (Attorney General), can bring a cause of action against lessees pursuant to the UTPCPL, due to allegedly wrongful conduct perpetrated by the lessees in the context of leasing subsurface mineral rights from private landowners. The second issue is whether the Attorney General can bring a cause of action against those lessees, pursuant to the UTPCPL, for alleged violations of antitrust law. The Court of Common Pleas of Bradford County (Trial Court) answered both questions in the affirmative; however, after thorough consideration, we affirm in part
The Attorney General filed suit in the Trial Court against Appellants Anadarko Petroleum Corporation and Anadarko E&P Onshore LLC (Anadarko), as well as Chesapeake Energy Corporation, Chesapeake Appalachia, LLC, Chesapeake Operating, LLC, and Chesapeake Energy Marketing, LLC (Chesapeake), (collectively, Appellants). In the complaint, the Attorney General alleges that, pursuant to both the UTPCPL and Pennsylvania antitrust common law, Appellants acted unlawfully by using deceptive, misleading, and unfair tactics, and committed antitrust violations, in their efforts to secure subsurface mineral rights leases from private landowners. See Second Amended Complaint at 1-4, 29-105.2 These leаses allow Appellants to extract natural gas from the Marcellus Shale formations underneath these private landowners’ properties, in exchange for royalties and other types of payments. Id. at 14-28.
The Attorney General alleges that Appellants agreed to split the portion of “northeast Pennsylvania within the Marcellus Shale gas play” between them, so that Anadarko and Chesapeake would each effectively have exclusive areas in which to
In response to the Attorney General‘s Second Amended Complaint, Appellants each filed preliminary objections. As part of their overall preliminary objections, Appellants made two arguments that are relevant to these interlocutory appeals. First, they demurred3 on the basis that the Attorney General could not state claims against them under the UTPCPL, because this law could only be applied to address the allegedly deceptive or unfair conduct of sellers in the context of a consumer transaction. Anadarko‘s Preliminary Objections at 11; Chesapeake‘s Preliminary Objections at 2-3. Since they had leased subsurface mineral rights, Appellants argued that they were effectively buyers in these transactions, and that their conduct was thus not actionable under the terms of the UTPCPL. Anadarko‘s Preliminary Objections at 11-13; Chesapeake‘s Preliminary Objections at 3. Second, they demurred on the grounds that antitrust claims could not be made under the UTPCPL, as this law was not designed to be an antitrust statute. Anadarko‘s Preliminary Objections at 28-32; Chesapeake‘s Preliminary Objections at 5-6.
The Trial Court sustained Appellants’ Preliminary Objections in part and overruled them in part. Of relevance to these interlocutory appeals, the Trial Court held that the Attorney General could sue Appellants pursuant to the UTPCPL, since the companies were conducting trade or commerce, as those terms were defined in the Law, and determined that the Law permitted the Attorney General to pursue antitrust claims against these companies under the UTPCPL. Tr. Ct. Op. at 16-33, 47-50. After making these rulings, the Trial Court sua sponte certified these issues for interlocutory appeal, recognizing that they are questions of first impression in which different interpretations of the law were being debated. Id. at 73-75, 79, 81-82. Appellants then filed separate petitions for permission to appeal on an interlocutory basis,4 which the Honorable Bonnie Brigance Leadbetter granted, consolidating Appellants’ respective appeals and limiting them to the following two questions:
1. Whether a cause of action may be brought under the [UTPCPL] for alleged wrongful conduct by lessees in oil and gas lease transactions.
2. Whether a cause of action may be brought under the [UTPCPL] for alleged antitrust violations.
Commonwealth Court Order, 3/12/18, at 2-3. The parties subsequently filed responsive briefs and appeared for en banc argument. These issues are now ready for our consideration.5
The Legislature sought by the [UTPCPL] to benefit the public at large by eradicating, among other things, ‘unfair or deceptive’ business practices. Just as earlier legislation was designed to equalize the position of employer and employee and the position of insurer and insured, this Law attempts to place on more equal terms seller and consumer. These remedial statutes are all predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace.
Instantly, the Legislature strove, by making certain modest adjustments, to ensure the fairness of market transactions. No sweeping changes in legal relationships were occasioned by the [Law], since prevention of deception and the exploitation of unfair advantage has always been an object of remedial legislation.
Although the [UTPCPL] did articulаte the evils desired to be remedied, the statute‘s underlying foundation is fraud prevention....
Since the [UTPCPL] was in relevant part designed to thwart fraud in the statutory sense, it is to be construed liberally to effect its object of preventing unfair or deceptive practices.
Com., by Creamer v. Monumental Props., Inc., 329 A.2d 812, 815-17 (Pa. 1974) (footnotes and internal citations omitted).
Per the UTPCPL‘s express language, the General Assembly has “declared unlawful” 21 separate categories of “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce[,]” as well as any acts or practices designated as such by the Attorney General through the administrative rulemaking process. Section 3 of the UTPCPL,
The Law defines “trade” and “commerce” as “the advertising, offering for sale, sale or distribution of any services and any рroperty, 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.” Section 2(3) of the UTPCPL,
The Attorney General‘s UTPCPL Claims Against Appellants
In this interlocutory appeal, Appellants argue that the Trial Court erred by holding that the Attorney General could sue
In addition, Appellants maintain that the Trial Court erred in finding that these leases constituted “distribution of services,” which is part of the definition of “‘trade’ and ‘commerce‘” found in
Furthermore, Appellants state that the Trial Court erred by finding that their conduct fell within the second clause of the UTPCPL‘s definition of “‘trade’ and ‘commerce,‘” which states, “‘trade’ and ‘commerce’ . . . includes any trade or commerce directly or indirectly affecting the people of this Commonweаlth.” Id. at 20-21; see
We disagree. Contrary to Appellants’ desired conclusion, we find that their conduct in relation to the aforementioned leases constitutes “‘trade’ and ‘commerce,‘” as those terms are understood in the context of the Law. As we have already noted, Section 2(3) of the UTPCPL states that
‘Trade’ and ‘commerce’ mean 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.
Per this statutory language, and our case law, these leases were, in essence, sales. The Pennsylvania Supreme Court recognized long ago that residential leases
there is substantial common-law authority that the leasing of property is identical to the sale of the premises. Dean Prosser accurately states the general rule:
‘When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term.’
W. Prosser, Handbook of the Law of Torts [§] 63, at 399 (4th ed. 1971) (footnotе omitted).
. . .
Courts of other jurisdictions have considered leases as the sale of an interest in real estate, e.g., Brenner v. Spiegle, 116 Ohio St. 631, 632, 157 N.E. 491, 492—493 (1927), or as the ‘sale of the possession, occupancy and profits of land for a term.’ Thiokol Chemical Corp. v. Morris County Board of Taxation, 41 N.J. 405, 416, 197 A.2d 176, 182 (1964). Still other courts recognize that the lessee‘s interest is tantamount to absolute ownership of the premises for the term.
. . .
It is certainly the modern understanding of the common law of leases that ‘(a) tenant is a purchaser of an estate in land[.]’ Pines v. Perssion, 14 Wis.2d 590, 594, 111 N.W.2d 409, 412 (1961).
Id. at 822-23 (some footnotes and citations omitted). We recognize that Monumental Properties focused upon residential leases, and stated that the UTPCPL “attempts to place on more equal terms seller and consumer.” Id. at 816. However, given the General Assembly‘s intent that the Law be liberally interpreted, so as “to benefit the public at large by eradicating, among other things, ‘unfair or deceptive’ business practices[,]” id. at 815, we find that Section 2(3)‘s express language covers business and commercial leases as well, not just those which involve consumers or are residential in nature. See Danganan, 179 A.3d at 16 (“[W]e recognize . . . the wide rangе of conduct the [UTPCPL] was designed to address, including equalizing the bargaining power of the seller and consumer, ensuring the fairness of market transactions, and preventing deception and exploitation, all of which harmonize with the statute‘s broad underlying foundation of fraud prevention.“).
Here, under the terms of the at-issue leases, the private landowners effectively relinquish title to Appellants for natural gas that is extracted from their land during the lease term, in exchange for some combination of up-front and royalty payments. See, e.g., Second Amended Complaint, Exs. G, H, Q. We fail to see how that is functionally different from a sale of property.
Furthermore, in Danganan, our Supreme Court interpreted Section 2(3) of the UTPCPL as containing two distinct and independent clauses, the latter of which “does not modify or qualify the preceding terms.
Again, Appellants have, by virtue of leasing subsurface mineral rights, purchased time-limited rights to whatever natural gas is situated underneath the private landowners’ properties. Thus, these transactions are, in the context of the UTPCPL, “‘trade’ or ‘commerce‘.”12
Having decided that Appellants’ leases qualify under the Law as “‘trade’ or ‘commerce,‘” the question then becomes whether this type of activity can give rise to a UTPCPL action by the Attorney General. We find that it can. As noted above, the UTPCPL states that “[u]nfair 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) of [
Additionally, while the UTPCPL places restrictions on the ability of private parties to file suit,13 the Law creates no such
Tying this all together, the Attorney General has asserted that Appellants, which are UTPCPL-classified “persons,” have operated deceptively, misleadingly, and unfairly “in the conduct of any trade or commerce” (i.e., the leasing of subsurface mineral rights from private landowners). Second Amended Complaint at 1-4, 29-78, 82-105;
The Attorney General‘s Antitrust Actions under the UTPCPL
Appellants argue that the Trial Court erred in ruling that the Attorney General could use the UTPCPL to pursue claims against them that were rooted in alleged violations of antitrust law. Appellants note that the UTPCPL “does not prohibit joint ventures or in any way purport to regulate or penalize agreements among businesses[,]” such as those entered into by Appellants during their efforts to secure the aforementioned leases. Appellants’ Br. at 13-14, 29. Instead, Appellants assert that the Attorney General is simply attempting to “retroactively and unilaterally” rewritе the UTPCPL, in order to get around the General Assembly‘s repeated failure to pass an antitrust statute, and the fact that damages are not recoverable under Pennsylvania antitrust common law. Id. at 13-14, 27-32.
According to Appellants, “[n]either the ‘trade or commerce’ definition in [
We agree with Appellants that the UTPCPL is not designed to render all antitrust violations actionable and that the scope of actionable antitrust behavior under the UTPCPL is narrower than under federal antitrust law. As we have already noted, the UTPCPL provides two avenues through which activities can be declared “unfair methods of competition” or “unfair or deceptive acts or practices.” First, the General Assembly may define a given activity as unlawful by statute in Section 2(4) of the Law. Second, the Attorney General, by virtue of Section 3.1 of the Law, may also promulgate definitions of these terms through the administrative rulemaking process.
The Attorney General‘s Second Amended Complaint contains two claims which allege antitrust violations by Appellants under the UTPCPL. The first can be discerned in Count III, in which the Attorney General asserts that Appellants’ allegedly unlawful joint venture and market sharing agreements violated the UTPCPL through “impairment of choice and the competitive process[.]” Second Amended Complaint at 65-67. According to the Attorney Genеral, these agreements “created the likelihood of confusion and misunderstanding” amongst the private landowners under whose land the desired natural gas was situated, by eliminating the prospect of competition between potential lessees and depressing the amount of compensation the landowners received in return for leasing their land to Appellants. Id. at 66-70.
Thus, the Attorney General essentially argues through Count III that Appellants’ joint venture and market sharing agreements intrinsically violated the UTPCPL. As we have already explained, the plain terms of the UTPCPL do not support such a conclusion. Rather, the Attorney General‘s claim that the mere existence of these business dealings created “impairment of choice and the competitive process” is insufficient and does not enable Count III to fit within any of the 21 categories of “unfair methods of competition” or “unfair or deceptive acts or practices” listed in Section
The second UTPCPL-based antitrust claim can be discerned in Count IV, in which the Attorney General argues that Appellants deceived and acted unfairly towards private landowners by giving them misleading information, and/or failing to disclose information, regarding the open market‘s true appetite for subsurface mineral rights leases, as well as whether the terms of the agreed-to leases “were competitive and fair.” Id. at 72-76.
With regard to Count IV, however, we find that the Attorney General has articulated a legally viable UTPCPL claim. The Attorney Gеneral‘s assertions in Count IV regarding Appellants’ allegedly disingenuous and misleading behavior brings that claim within the ambit of Section 2(4)(xxi) of the Law, which defines ““[u]nfair methods of competition’ and ‘unfair or deceptive acts or practices‘” as “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”
Conclusion
In summation, we hold that the Attorney General was permitted to file a UTPCPL-based lawsuit against Appellants, but can only pursue antitrust claims through the UTPCPL where the so-called “antitrust” conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices,” as those terms have been either statutorily defined in the UTPCPL or by the Attorney General through the administrative rulemaking process. Thus, in light of the requirement that, in order to sustain a demurrer, “it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party[,]” Christ the King Manor, 911 A.2d at 633, we reverse the Trial Court regarding its decision to overrule Appellants’ demurrers to Count III of the Attorney General‘s Second Amended Complaint, but otherwise affirm the Trial Court. Furthermore, we direct Appellants to each file an Answer to the Second Amended Complaint within 20 days of this matter‘s record being returned to the Trial Court.15
ELLEN CEISLER, Judge
Judges Brobson and McCullough concur in result only.
Judge Fizzano Cannon did not participate in the decision of this case.
AND NOW, this 15th day of March, 2019, the December 15, 2017 order of the Court of Common Pleas of Bradford County (Trial Court) is AFFIRMED IN PART, regarding the Trial Court‘s ruling that Appellee Commonwealth of Pennsylvania, Office of Attorney General (Attorney General), may bring causes of action under the Unfair Trade Practices and Consumer Protection Law (UTPCPL), Act of December 17, 1968, P.L. 1224, as amended,
It is FURTHER ORDERED that Chesapeake Energy Corporation, Chesapeake Appalachia, LLC, Chesapeake Operating, LLC, and Chesapeake Energy Marketing, LLC‘s Application for Relief is DENIED.
It is FURTHER ORDERED that this matter is REMANDED to the Trial Court. Appellants shall have twenty (20) days, calculated from the date this matter‘s record is returned to the Trial Court, in which to file Answers to the Attorney General‘s Second Amended Complaint.
Jurisdiction relinquished.
ELLEN CEISLER, Judge
CONCURRING AND DISSENTING OPINION BY JUDGE COVEY
FILED: March 15, 2019
I concur with the Majority that the Bradford County Common Pleas Court (trial court) erred by overruling the demurrers of Anadarko Petroleum Corporation and Anadarko E&P Onshore LLC, Chesapeake Energy Corporation,
Chesapeake Appalachia, LLC, Chesapeake Operating, LLC, and Chesapeake Energy Marketing, LLC (Chesapеake Appellants), (collectively, Appellants) to Count III of the Attorney General‘s Second Amended Complaint. However, I do not agree that the Attorney General has stated legally viable claims against Appellants, as lessees, under the Unfair Trade Practices and Consumer Protection Law (UTPCPL).1 Because the Majority manipulates the language of the UTPCPL for a purpose the General Assembly never intended and, as a result, Appellants find themselves facing liability for conduct that, prior to the Majority‘s pronouncement, neither Appellants (nor anyone else) could have foreseen would be considered a violation of state law, I respectfully dissent from those portions of the Majority opinion.The UTPCPL is a consumer protection statute. The Pennsylvania Supreme Court has recognized that
[t]he UTPCPL was created to even the bargaining power between consumers and sellers in commercial transactions, and to promote that objective, it aims to protect the consumers of the Commonwealth against fraud and unfair or deceptive business practices. As a remedial statute, it is to be construed liberally to effectuate that goal.
Commonwealth v. Golden Gate Nat‘l Senior Care LLC, 194 A.3d 1010, 1023 (Pa. 2018) (citation omitted; bold and underline emphasis added).
In Meyer v. Community College of Beaver County, 93 A.3d 806 (Pa. 2014), our Supreme Court explained, “the
Id. at 820 (bold and italic emphasis added). The Monumental Properties Court recognized: “The Legislature directed that consumers were to be safeguarded by the [UTPCPL]. . . . [T]enants are in every meaningful sense consumers.” Id. at 826 (emphasis added).
Based thereon, the Majority acknowledges that lessee Appellants are purchasers, i.e., consumers of “time-limited rights to whatever natural gas is situated underneath the private landowners’ properties.”2 Majority Op. at 10-11; see also Majority Op. at 9 (recognizing that the lease transactions are not “functionally different from a sale of property“). Conversely, the private landowners were sellers in the subject transactions.
Appellants correctly observe:
No court has ever interpreted the UTPCPL as authorizing a claim by or on behalf of a seller against a person who acquires something from the seller or as separately authorizing a right of action against a person simply because that person is involved in any form of commercial transaction.3
Chesapeake Appellants’ Br. at 25.
Section 3 of the UTPCPL declares unlawful “[u]nfair methods of competition
The issue before the Court in Danganan was whether a non-Pennsylvania resident could maintain a cause of action against a Pennsylvania-headquartered business, based on out-of-state transactions. The Court considered the text of Section 2(3) of the UTPCPL, explaining that
the plain language definitions of ‘person’ and ‘trade’ and ‘commerce’ evidence no geographic limitation or residency requirement relative to the [UTPCPL‘s] application. Although the trade and commerce definition includes a clause relating to conduct that ‘directly or indirectly affect[s] the people of this Commonwealth,’ that phrase does not modify or qualify the preceding terms.
73 P.S. § 201-2(3) . Instead, it is appended to the end of the definition and prefaced by ‘and inсludes,’ thus indicating an inclusive and broader view of trade and commerce than expressed by the antecedent language. See id. (defining those terms as ‘the advertising, offering for sale, sale or distribution of any services and any property, . . . 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‘).
Danganan, 179 A.3d at 16 (emphasis added). The Danganan Court held that, given the General Assembly‘s use of the words “and includes,” the second clause description did not limit the first clause only to “trade or commerce directly or indirectly affecting the people of this Commonwealth.”
Here, the Majority incorrectly construes Danganan to justify its disregard of the first clause in the UTPCPL‘s definition of “trade” or “commerce.” Rather than concluding that the first clause is not limited by the second, as the Supreme Court in Danganan did, the Majority concludes that the second clause is not limited by the first. This interpretation completely ignores the General Assembly‘s use of the words “and includes” and renders the first clause unnecessary.
I believe that the Majority misconstrues the terms “trade” and “commerce” as used in Section 2(3) of the UTPCPL in a way that is wholly inconsistent with the UTPCPL‘s legislative purpose. Thereby, the Majority holds that the UTPCPL, a consumer protection statute intended to bolster consumers’ bargaining powers, can authorize legal action against a purchaser. “It is a primary canon of construction that statutes must be construed in such a way as to effectuate the legislative purpose and policy.” Commonwealth v. Wanamaker, 296 A.2d 618, 623 (Pa. 1972). “The most basic tenet of statutory construction is that a court must effectuate the intent of the General Assembly.” Gardner v. Workers’ Comp. Appeal Bd. (Genesis Health Ventures), 888 A.2d 758, 761 (Pa. 2005) (emphasis added). The Majority‘s holding completely ignores thе legislative purpose and erroneously relies on a dictionary definition, thereby undermining the General Assembly‘s intent. Consequently, the Majority has overstepped its authority by ignoring the statutory definition of “trade” or “commerce” and substituting a definition that directly conflicts with the legislature‘s purpose to protect consumers.
Further, the Majority‘s “trade” and “commerce” interpretation conflicts with Pennsylvania Superior Court decisions Schwarzwaelder v. Fox, 895 A.2d 614 (Pa. Super. 2006) and DeFazio v. Gregory, 836 A.2d 935 (Pa. Super. 2003), wherein the Court held that the UTPCPL served to protect buyers rather than sellers. The Schwarzwaelder Court held that where plaintiffs did not purchase from the defendant, the UTPCPL is inapplicable.
Recently, the Pennsylvania Superior Court explained:
The UTPCPL is for consumer protection. It undoes the ills of sharp business dealings by vendors, who, as here, may be counseling consumers in very private, highly technical concerns. . . . [T]hose consumers may be especially reliant upon a vendor‘s specialized skill, training, and experience in matters with which consumers have little or no expertise. Therefore, the legislature has placed the duty of UTPCPL compliance squarely and solely on vendors; they are not to engage in deceitful conduct and have no legally cognizable excuse, if they do.
Gregg v. Ameriprise Fin., Inc., 195 A.3d 930, 940 (Pa. Super. 2018) (bold and italic emphasis added). Although Schwarzwaelder, DeFazio and Gregg involved lawsuits by private parties rather than the Attorney General, all such actions are confined to the UTPCPL‘s definition of “trade” and “commerce,” which applies both to actions by the Attorney General and by private
By imposing a consumer protection statute‘s restrictions, prohibitions and burdens on consumers, the Majority‘s analysis and ruling is a gross misinterpretation and misapplication of the UTPCPL. Such ruling is inconsistent with the UTPCPL‘s statutory purpose, creates a never-intended or anticipated UTPCPL cause of action that is completely contrary to the General Assembly‘s intent, and creates a dangerous precedent.
With respect to Count IV, the second UTPCPL-based antitrust claim, the Second Amended Complaint alleges therein that Appellants violated the UTPCPL:
- Each time a[n Appellant] failed to disclose the existence of the joint venture agreement, the market allocation agreement and the option of the other [Appellant] to acquire an interest in the lease in the course of negotiating an oil and gas lease with a Pennsylvania Landowner within the area of mutual interest covering the Marcellus Shale gas play;
- Each time a Pennsylvania Landowner received an artificially deflated acreage signing bonus from a[n Appellant]; and
- Each time a Pennsylvania Landowner received an artificially deflated royalty from a[n Appellant].
Reproduced Record (R.R.) at 1034a-1035a. The Majority concludes that the claim which clearly targets an alleged restraint of trade falls “within the ambit of Section 2(4)(xxi) of the Law,4” given the “Appellants’ allegedly disingenuous and misleading behavior . . . .” Majority Op. at 16.5
Appellants properly argue:
The UTPCPL does not provide on its face any remedy for alleged antitrust violations. . . . Neither the ‘trade or commerce’ definition in [Section] 2(3) [of the UTPCPL,] nor the catchall provision in [Section] 2(4)(xxi) [of the UTPCPL] addresses agreements between market participants or in any other way purports to regulate competition.
Chesapeake Appellants’ Br. at 29. Appellants also correctly observe that the “Pennsylvania General Assembly has tried 24 times to pass an antitrust statute that would have provided a remedy for alleged anticompetitive practices since the enactment of the UTPCPL in 1968, but each time the measure has failed.”6
There is no dispute that the General Assembly has not enacted a state antitrust statute. By affirming the trial court‘s decision to overrule Appellants’ demurrers to Count IV, the Majority erroneously interprets the UTPCPL to create a statutory prohibition unapproved by the General Assembly, and wields that unauthorized and un-enacted prohibition to punish consumers under the purported authority of a consumer protection statute. This is judicial overreach.
“[C]ourts may not legislate[.]” Willman v. Children‘s Hosp. of Pittsburgh, 459 A.2d 855, 858 (Pa. Cmwlth. 1983), aff‘d, 479 A.2d 452 (Pa. 1984); see also Spectrum Arena Ltd. P‘ship v. Commonwealth, 983 A.2d 641 (Pa. 2009); Benson v. Patterson, 830 A.2d 966 (Pa. 2003); Martin v. Soblotney, 466 A.2d 1022 (Pa. 1983); Pa. State Police, Bureau of Liquor Control Enf‘t v. Can, Inc., 651 A.2d 1160 (Pa. Cmwlth. 1994). ”[I]t is not the role of the judiciary to legislate changes in the law which our legislature has declined to adopt.” Garney v. Estate of Hain, 653 A.2d 21, 21 (Pa. Super. 1995) (emphasis added).
[An appellate] court is constrained from [legislating] by the nature of the judicial role in our governmental system. We are not the promulgator of statutory law, only its interpreter. We seek to divine the intent of the legislature and apply it in a given situation. Judges who overstep the bounds of their authority become Platonic Commissioners, a role which is anathema to our democratic system.
In Interest of R.M.R., 530 A.2d 1381, 1389-90 (Pa. Super. 1987). “[An appellate court‘s] role is to interpret the laws as enacted by the General Assembly.” Williams v. GEICO Gov‘t Emps. Ins. Co., 32 A.3d 1195, 1209 (Pa. 2011).7 As then-Chief Justice Castille recognized in his dissent in Commonwealth v. Wilgus, 40 A.3d 1201, 1209 (Pa. 2012) (Castille, C.J., dissenting), “[t]he consequences of statutory interpretation can affect citizens in a myriad of ways, including: their professions and business relationships,
I, therefore, respectfully dissent from those portions of the Majority opinion.
__________________________
ANNE E. COVEY, Judge
Notes
An oil and gas lease is a misnomer as it operates as a fee simple determinable for the mineral estate[;] [a] fee simple determinable for the mineral estate operates to sever the ownership of certain minerals from the ownership of the surface of the land[; and t]he mineral estate conveyed by Pennsylvania Landowners typically includes all geologic horizons including, but not limited to, Marcellus Shale and Utica Shale.
Second Amended Complaint, ¶¶ 77-79, Reproduced Record at 980a (emphasis added).In consultation with the Office of Attorney General, I am reintroducing Senate Bill 578, a comprehensive antitrust law.
. . . .
The legislation authorizes only the Attorney General to file a civil action for an antitrust violation. The purpose of the law is to allow for a full and fair recovery to satisfy claims arising from an antitrust injury sustained by the Commonwealth and its residents and to provide the investigative tools to satisfactorily achieve this objective. The language is derived from other states’ statutes and federal law.
The legislation is intended to make illegal any contract, conspiracy or combination in restraint of trade and any monopolization in restraint of trade. The legislation also makes illegal any mergers or acquisitions that lessens competition substantially in any line of commerce. The legislation provides for criminal penalties for obstructing compliance with a subpoena and for knowingly removing or falsifying documents to be produced. Any such obstruction or falsification constitutes a misdemeanor оf the second degree.
The Pennsylvania Supreme Court emphasized:
Commonwealth ex rel. Fox v. Swing, 186 A.2d 24, 26-27 (Pa. 1962).‘Judicial power, as contra distinguished from the power of the laws, has no existence. Courts are mere instruments of the law and can will nothing . . . . Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; in other words, to the will of the law.’ Osborn v. President, Dir[s.] [&] Co[.] of Bank of [U.S.] (Chief Justice Marshall), 9 Wheaton 738, 866, 6 L.Ed. 204 [(U.S. 1824)]. The situation complained of may only be cured by the legislature. It is not for us to legislate or by interpretation to add to legislation matters which the legislature saw fit not to include.
(a) Where goods or services having a sale price of twenty-five dollars ($25) or more are sold or contracted to be sold to a buyer, as a result of, or in connection with, a contact with or call on the buyer or resident at his residence either in person or by telephone, that consumer may avoid the contract or sale by notifying, in writing, the seller within thrеe full business days following the day on which the contract or sale was made and by returning or holding available for return to the seller, in its original condition, any merchandise received under the contract or sale. Such notice of rescission shall be effective upon depositing the same in the United States mail or upon other service which gives the seller notice of rescission.
Id. § 201-9.2(a)-(b), added by the Act of November 24, 2016, P.L. 1166.(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 [
73 P.S. § 201-3 ], 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 prоvide 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.(b) Any permanent injunction, judgment or order of the court made under [
73 P.S. § 201-4 ] shall be prima facie evidence in an action brought under [73 P.S. § 201-9.2 ] that the defendant used or employed acts or practices declared unlawful by [73 P.S. § 201-3 ].