CASH AMERICA NET OF NEVADA, LLC, Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF BANKING, and the Honorable Steven Kaplan, in his official capacity as Secretary of Banking of the Commonwealth of Pennsylvania, Appellees.
Supreme Court of Pennsylvania.
Decided Oct. 19, 2010.
Argued May 11, 2010.
8 A.3d 282
Jeffrey S. Saltz, Esq., Law Office of Jeffrey S. Saltz, P.C., Philadelphia, for amici curiae, J.R. Clark, G. Michael Flores, Marc A. Fusaro.
Carter David Frantz, Esq., Robert Christopher Lopez, Esq., PA Department of Banking, for Department of Banking.
Robert L. Byer, Esq., Pittsburgh, Robert McCarthy Palumbos, Esq., Jennifer Diesing Falcey, Esq., Duane Morris, L.L.P., Philadelphia, for Dept. of Banking & Steven Kaplan.
Steven Kaplan, for Steven Kaplan.
Kerry Elizabeth Smith, Esq., Community Legal Services, Aisha Ahmed Baruni, Esq., for amicus curiae Community Legal Services, Inc.
Daniel P. Mosteller for amicus curiae Daniel P. Mosteller.
Irwin William Aronson, Esq., Willig, Williams & Davidson, Harrisburg, for amicus curiae Pennsylvania AFL-CIO.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION
Justice BAER.
The issues before us involve the authority of the Department of Banking (Department) to apply Section 3.A of the Consumer Discount Company Act,1
Cash America‘s Pennsylvania borrowers constitute one of its critical market segments. Indeed, Cash America earned approximately $10 million annually by making payday loans over the Internet to Pennsylvania residents in amounts of the lesser of 25% of the borrower‘s gross monthly income or $750. Cash America assesses a finance charge of 25% of the amount borrowed. The annual percentage rate (APR) of the loans offered by Cash America are as follows: for an eight day term, 1140.63%; for a fourteen day term, 651.79%; for a thirty-five day term, 260.71%. Cash America has not obtained a license from the Department for its lending to Pennsylvania residents. If Cash America were licensed, it would not be permitted under Pennsylvania law to charge residents such high interest rates.
The powers and responsibilities of the variety of lenders present in the marketplace are defined in a sophisticated statutory scheme. We are concerned here only with a nondepository, nonmortgage, consumer lender of amounts less than $25,000. Such lenders are regulated by the Loan Interest and Protection Law (LIPL),
Specifically, Section 201 of the LIPL generally caps interest rates on loans less than $50,000 at 6% as follows:
Except as provided in Article III of this act, the maximum lawful rate of interest for the loan or use of money in an amount of fifty thousand dollars ($50,000) or less in all cases where no express contract shall have been made for a less rate shall be six per cent per annum.
The CDCA, which was originally enacted in 1937, defines “person” as including “an individual, partnership, association, business corporation, nonprofit corporation, common law trust, joint-stock company or any other group of individuals however organized.”
[N]o person shall engage ... in this Commonwealth, either as principal, employe, agent or broker, in the business of negotiating or making loans or advances of money on credit, in the amount or value of twenty-five thousand dollars ($25,000) or less, and charge, collect, contract for or receive interest.... or other considerations which aggregate in excess of the interest that the lender would otherwise be permitted by law to charge if not licensed under this act ... except a domestic business corporation organized under or existing by virtue of the Business Corporation Law of this Commonwealth, after first obtaining a license from the Secretary of Banking of the Commonwealth of Pennsylvania in accordance with the provisions of this act.
Within the context of this case, the effect of these two statutes is that if a lender is licensed by the Department in
The Secretary of Banking (Secretary) and the Department had, until recently, agreed with Cash America. Until July 26, 2008, the Department did not impose the LIPL‘s general 6% interest rate or the CDCA to out-of-state lenders. Before then, the Department had interpreted the phrase “in this Commonwealth” in Section 3.A of the CDCA not to apply to entities without any offices or employees physically present in the Commonwealth, such as Cash America. Under the prior interpretation, articulated in a series of interpretive letters, such an entity would not be required to obtain a license under the CDCA to originate consumer loans by means of the Internet or mail to residents of the Commonwealth with charges exceeding 6% simple interest per annum, provided that the entity was licensed or otherwise authorized under its home state law to engage in this type of lending activity. With the rise of Internet-based lending activity, however, it became clear to the Department that its prior position had “resulted in Pennsylvania consumers being exposed to the very lending practices that the CDCA was enacted to protect them from,” i.e., lending at high interest rates by non-licensed entities. 38 Pa. Bull. 3986, 3987 (July 26, 2008). The Department determined that its prior interpretation of “in this Commonwealth” within Section 3.A of the CDCA was not compelled as a matter of statutory interpretation or legislative intent. Consequently, the Department revised its interpretation of Section 3.A of the CDCA.
On July 26, 2008, the Department published this policy change in the Pennsylvania Bulletin in a “Notice to those Engaging or Considering Engaging in Nonmortgage Consumer Lending to Pennsylvania Residents,” 38 Pa.Bull. 3986 (July 26, 2008) (Notice), indicating its intent to provide Pennsylvania
Under this interpretation, the Department would require licensing under the CDCA for entities engaged in consumer lending to Pennsylvania residents in amounts below $25,000 in which the charges exceed 6% simple interest per annum. The Notice further provided that a person licensed under the CDCA is permitted to negotiate or make loans to Pennsylvania residents under the rates, terms and conditions contained in the CDCA. Id. Finally, the Notice advised that entities engaged in consumer lending to Pennsylvania residents in which the charges exceed 6% simple interest per annum (such as Cash America) must be licensed under the CDCA by February 1, 2009, or cease lending to Pennsylvania residents. Id. at 3987.
According to Cash America, payday lending is not economically viable under the interest rate restrictions of the CDCA. Cash America therefore decided to forego either limiting its interest rate to the 6% imposed by the LIPL or attempting to obtain a license in accord with the CDCA. Instead, it filed a petition for review in the nature of a complaint in equity against the Department and the Secretary (Appellees) in the Commonwealth Court on January 8, 2009, seeking declaratory and injunctive relief. It sought to have the Notice declared unlawful and to enjoin Appellees from implementing or enforcing it. It averred that it is a limited liability company existing under the laws of Delaware and qualified to do business in Nevada; it has no personnel or office physically located in Pennsylvania; and licensure under the CDCA was not possible for Cash America because Pennsylvania law requires that a licensed lender be a Pennsylvania business corporation. See
In its petition, Cash America requested a declaration that an out-of-state company without an office or employee physically present in Pennsylvania acting as “principal, employe, agent or broker” (collectively referred to here as “personnel“) is not engaged in business “in this Commonwealth” as the phrase is used in Section 3.A; that, accordingly, implementation and enforcement of the Notice violated the plain language of the CDCA; and that, for these reasons, the Department should be enjoined from applying the Notice to out-of-state lenders without personnel in Pennsylvania. Additionally, Cash America sought a declaration that the implementation and enforcement of the Notice constituted unpromulgated rulemaking in violation of Pennsylvania law, entitling Cash America to an injunction against enforcement until the Department complied with requirements for promulgating a new regulation. Finally, Cash America requested a declaration that implementation of the Notice would render the CDCA inconsistent with the Commerce Clause of the United States Constitution and therefore unconstitutional.2
The Department filed an answer and a counterclaim for declaratory judgment. It denied that licensure was not an option for Cash America and explained in a new matter that the Department interprets the laws of the Commonwealth to allow it to grant licensure to lenders regardless of whether they are a Pennsylvania business corporation with its principal place of business in Pennsylvania, as long as the lender is a company qualified to do business in Pennsylvania and has a registered agent in the Commonwealth. In its counterclaim, the Department asserted that because Cash America was not
The Commonwealth Court resolved the parties’ arguments in a published decision. Cash America Net of Nev., LLC v. Dep‘t of Banking, 978 A.2d 1028 (Pa.Cmwlth.2009). Substantively, the Commonwealth Court rejected Cash America‘s argument that Section 3.A of the CDCA clearly and unambiguously excluded from its purview an out-of-state lender with no personnel or office in Pennsylvania. The Commonwealth Court agreed with the Department that despite its previous interpretation of Section 3.A to exclude out-of-state lenders, its current interpretation to include them was correct based on the statutory language. Additionally, the court found that the Department‘s interpretation was consistent with legislative intent. Accordingly, the Commonwealth Court concluded that there were no material facts in dispute and the Department‘s right to judgment was clear, thus entitling it to summary relief. The Court declared that Cash America‘s practice of making pay day loans to Pennsylvania residents is not authorized by the laws of the Commonwealth and that such lending specifically violates the LIPL and the CDCA.
Addressing Cash America‘s argument that the Notice was an invalid regulation because it was not adopted pursuant to the Commonwealth Documents Law (Documents Law),
Judge Leavitt authored a dissent, joined by Judges Cohn Jubelirer and Simpson. The dissent noted that since the enactment of the CDCA in 1937 the Department understood Section 3.A to require a lender to have personnel physically present in the Commonwealth before the Department could license that lender. According to the dissent, the Department could not reinterpret Section 3.A to effect a new regime of regulation because its new interpretation was not supported by the plain language of the statute or legislative intent. The dissent concluded that it is irrelevant that Cash America is making loans via the Internet. What is relevant, in the dissent‘s view, is that the CDCA does not and was never intended to apply to interstate transactions.
On appeal, Cash America asks this Court to consider whether the Department‘s new policy determination as to the applicability of Section 3.A of the CDCA to Internet payday lenders is supported by the statutory language; whether an out-of-state lender with no principal, employee, agent, broker or office in Pennsylvania is subject to the LIPL,
Because this claim raises an issue of statutory construction, which is a question of law, this Court‘s standard of review is de novo and the scope of review is plenary. Malt Beverages Distribs. Ass‘n v. Pa. Liquor Control Bd., 601 Pa. 449, 974 A.2d 1144, 1149 (2009); Generette v. Donegal Mut. Ins. Co., 598 Pa. 505, 957 A.2d 1180, 1189 (2008); Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 189 (2005). In resolving the issues presented, we are guided by the settled principles set forth in the Statutory Construction Act, including the primary maxim that the object of statutory construction is to ascertain and effectuate legislative intent.
I. CDCA
According to Cash America‘s interpretation of Section 3.A of the CDCA, if a lender does not have personnel in Pennsylvania, it is not “in this Commonwealth” as that phrase is used in Section 3.A. Cash America asserts that interpret-
Moving beyond the plain language of the CDCA, Cash America argues that the General Assembly did not intend to regulate interstate transactions. It asserts that the CDCA was enacted at a time when the General Assembly could not constitutionally reach out-of-state lenders without a physical presence in this Commonwealth. See Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649 (1891) (invalidating a Kentucky statute that purported to require out-of-state companies to obtain a license before doing business in Kentucky and holding that “a state law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce“). Given this jurisprudence, Cash America maintains that the General Assembly properly limited the scope of the CDCA to intrastate commerce. See
Moreover, Cash America argues that interpreting the CDCA to apply to out-of-state lenders raises Commerce Clause issues with regard to the CDCA‘s requirements that a licensee be a domestic business corporation,
Additionally, according to Cash America, the absence of any legislative action to revise the Department‘s long-standing prior interpretation of the CDCA is a tacit recognition that the prior interpretation is in accord with legislative intent. See Gilligan v. Pa. Horse Racing Comm‘n, 492 Pa. 92, 422 A.2d 487 (1980) (finding that the legislature‘s acquiescence to the manner of the commission‘s exercise of its rule-making authority manifested approval thereof); Estate of Loeb, 400 Pa. 368, 162 A.2d 207, 211 (1960) (“Where ... the words of a statute are not clear or explicit the contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed, is entitled to great weight and should not be disregarded or overturned except for clear language in the [Pennsylvania Transfer Inheritance Tax Act] itself or very strong cogent and convincing reasons.“). Significantly, according to Cash America, the legislature has amended Section 3 of the CDCA seven times since its adoption and has left undisturbed the words newly interpreted by the
In that the Department has reversed its prior, longstanding interpretation of Section 3.A, Cash America argues that it is not entitled to the deference normally afforded to agencies because of their specialized experience. Cash America posits that when an agency has changed its position with regard to the interpretation of a statute, it is never entitled to deference regarding its new interpretation. See RAG Cumberland Res. v. Dep‘t of Envtl. Prot., 869 A.2d 1065, 1072 n. 11 (Pa.Cmwlth. 2005) (“Any deference we owe to the Department in this case must yield to Petitioners’ considerable evidence that the Department‘s ‘new’ statutory interpretation is an abrupt volte face from the interpretation it had followed for more than thirty years.“). Rather, Cash America submits that when an agency has abided by a particular longstanding interpretation of statutory language, only the legislature can alter that interpretation by amending and changing the relevant statutory language. According to Cash America, this Court has cautioned against an agency ushering in a new regulatory scheme that is directly contrary to its longstanding prior regulatory position without authorizing legislation. See Malt Beverages, 601 Pa. 449, 974 A.2d 1144, 1154 (2009) (“While a policy determination [regarding the expanded definition of ‘retail dispenser’ offered by the Board] may well be accomplished by our legislature, it is not our role to sanction such a momentous transformation.“).
The Department likewise offers alternative arguments based on the text of the CDCA and the Act‘s legislative history. The Department argues that the rules of grammar support the Commonwealth Court‘s construction of Section 3.A. Specifically, the Department argues that a plain reading of Section 3.A reveals that it is unlawful for any unlicensed person to engage in the Commonwealth in the business of making loans of $25,000 or less and charge interest and fees that exceed the 6% interest cap imposed by the LIPL, and Section 3.A includes those who may not engage in the Commonwealth in the proscribed lending practice to include per-
The Department also points to Sections 3.B and 11 of the CDCA, which each define when a person is engaged in business covered by the Act.
Looking beyond the CDCA‘s plain language, the Department examines the act‘s remedial purpose, legislative history, and its own experience and expertise to support its position. Specifically, the Department argues that the remedial purpose of the CDCA is to protect Pennsylvanians from extortionist interest rates, see Equitable Credit & Disc. Co. v. Geier, 342 Pa. 445, 21 A.2d 53, 57 (1941), and that the General Assembly drafted the CDCA broadly to regulate the activity of negotiating or making loans on which the total charges exceed 6% annual simple interest. According to the Department, interpreting the CDCA as Cash America advocates to regulate in-state lenders while turning a blind eye to the most exploitative
The Department argues that the CDCA‘s legislative history supports the regulation of an out-of-state lender such as Cash America that holds itself out to Pennsylvania residents as able to arrange loans governed by the CDCA. Specifically, the 1937 Report of the Secretary of Banking (1937 Report) that became the basis for the CDCA discussed the hazards of solicitations from lenders by newspaper advertisements, which the Department analogizes to Internet solicitations. Moreover, the Department argues it is not clear, as Cash America would have it, that the Commerce Clause as interpreted when the CDCA was originally enacted would have prohibited the General Assembly from requiring licensure of out-of-state lenders. Besides, according to the Department, the interpretation of the Commerce Clause in 1937 does not dictate the meaning of the CDCA today.
The Department also responds to Cash America‘s argument that the CDCA only applies to in-state lenders because it requires a licensee to be a domestic business corporation, see
The Department disputes Cash America‘s reliance on the Department‘s prior interpretation of Section 3.A as evidence of legislative intent not to apply the CDCA to out-of-state lenders because, according to the Department, nothing prevents it from reconsidering and revising its prior interpretations. It further disputes Cash America‘s position that the Department has initiated through the Notice a “momentous transformation” in policy that can only be accomplished by the legislature. See Malt Beverages, 974 A.2d at 1154. According to the Department, Malt Beverages did not alter the ability of an agency to revise its own non-binding interpretations of a statute.
It is well established that public policy in this Commonwealth prohibits usurious lending, and this prohibition has been recognized for over 100 years. NCAS of Del., 948 A.2d at 759. As explained above, the maximum lawful rate of interest that a lender may charge for the loan or use of money in the amount of $50,000 or less is six percent per year. Section 201 of the LIPL,
Here, Cash America‘s loans are less that $25,000, and include charges from 260.71% for a thirty-five day loan to 1140.63% for an eight day loan. Cash America argues, however, that notwithstanding its business of making loans in amounts less than $25,000 to Pennsylvania residents, it is not subject to these regulations because it has no personnel in Pennsylvania. Essentially, it argues that by remaining physically outside of Pennsylvania, there is no limit on the interest it can charge to Pennsylvania residents, and that it may
The CDCA regulates nonmortgage consumer lending in two related ways. First, it requires any “person” who engages “in this Commonwealth, either as principal, employe, agent or broker” in the business of negotiating or making loans in the amount of $25,000 or less and charges interest and fees that aggregate in excess of 6% annual simple interest to obtain a license from the Secretary.
A plain reading of Section 6203.A indicates that those persons, whether an individual or group of organized individuals, who may not engage in the proscribed lending activity in this Commonwealth includes not only the principal, but also the employee, agent, or broker of the principal. The CDCA thus regulates not only the conduct of the individual or corporation, but also the people who act on behalf of the individual or corporation. If a corporation or any representative is engaging in the business of making the qualified loans in this Commonwealth, it or they must abide by the licensure requirements of the CDCA.
Contrary to Cash America‘s interpretation of Section 3.A, in which a lender is not in this Commonwealth if it does not have a “principal, employe, agent or broker” in Pennsylvania, the
Examining the plain language of Section 3.A, we hold that it supports the Department‘s and the Commonwealth Court‘s interpretation. We therefore reject Cash America‘s attempt to avoid licensure, regulation, and limits on the rates it may charge simply by operating over the Internet rather than by being physically present in the Commonwealth. If an out-of-state lender is engaging in business in Pennsylvania of making loans within the ambit of the CDCA, then it is subject to the licensing requirements and regulatory restrictions of the CDCA, regardless of whether it has personnel in the state.
This conclusion is further supported by Sections 3.B and 11 of the CDCA,
We also reject Cash America‘s argument that the Department‘s current interpretation of Section 3.A fails to give constitutional effect to all of the CDCA‘s provisions. Specifically, Section 8 requires the licensee to maintain its business records “at its principal place of business within this Commonwealth....”
As the Department acknowledges, if it were to require a foreign lender seeking a CDCA license to establish its principal place of business in Pennsylvania, it may unconstitutionally burden interstate commerce in violation of the Commerce Clause. The Department interprets
Moreover, the text of Section 3.A requires licensees to be “a domestic business corporation organized under or existing by virtue of the Business Corporation Law.”
Regarding Cash America‘s reliance on the Department‘s prior interpretations of Section 3.A, these non-binding prior interpretations do not determine the statute‘s meaning. We are not bound by the Department‘s interpretations; we are bound by the plain language of the statute. Similarly, Cash America‘s argument that the General Assembly could have explicitly indicated its intention to apply the CDCA to interstate transactions if that was its intent, as demonstrated by explicit language in other, unrelated statutes, is not persuasive. We are interpreting the plain language of the CDCA,
We likewise agree with the Department that Malt Beverages does not restrict an administrative agency‘s prerogative to revise its own non-binding statements of policy. Malt Beverages concerned the Pennsylvania Liquor Control Board‘s (LCB) interpretation of the statutory definition of “retail dispenser” in the Liquor Code. 974 A.2d at 1154. The LCB asked this Court to interpret the Liquor Code to effect a substantial change in the law. In resolving the ambiguous language in the Liquor Code, we observed that accepting the LCB‘s interpretation would amount to a momentous transformation of policy that was contrary to the three-tiered beer distribution scheme established by the legislature. In contrast to the ambiguous language at issue in Malt Beverages, we specifically find the language of Section 3.A is not ambiguous. Our explanation in Malt Beverages was dependent on our finding that the LCB‘s interpretation was actually contrary to legislative intent. More importantly, however, the Department may issue “statements of policy and interpretive letters” regarding the CDCA.
Likewise, Gilligan and Loeb do not prevent the Department from revising prior interpretations. Gilligan involved a rule promulgated by a commission rather than a non-binding interpretation. 422 A.2d 487. The Court emphasized that after the commission affirmatively acted under the rule at issue and the legislature did not curtail the commission in this regard, it thereby acquiesced in the interpretation embodied in the rule. In Loeb, the executors of an estate computed an inheritance tax at 15% in accord with the interpretation of the Transfer Inheritance Tax Act,
In conclusion, we hold that interpreting the CDCA in the manner advocated by Cash America would subject in-state lenders to regulation pursuant to the CDCA while simultaneously creating a de facto licensing exemption for out-of-state lenders, who could then engage in the very lending practices the CDCA prohibits. Such an interpretation is not supported by the plain language of Section 3.A,
II. Interpretation Versus Regulation
Cash America argues that the Department‘s new interpretation of Section 3.A as explained in the Notice was the
According to the Department, the Notice was not an unpromulgated regulation, but a non-binding statement of policy that a court may accept or reject depending on the accuracy of its interpretation. It argues that it published the Notice under the specific power of the Department of Banking Code,
We have summarized the difference between regulations and policy statements as follows:
A properly adopted substantive rule establishes a standard of conduct which has the force of law ... The underlying policy embodied in the rule is not generally subject to challenge before the agency. A general statement of policy, on the other hand, does not establish a “binding norm.” ... A policy statement announces the agency‘s tentative intentions for the future.
Lopata v. UCBR, 507 Pa. 570, 493 A.2d 657 (1985) (quoting PHRC v. Norristown Area Sch. Dist., 473 Pa. 334, 374 A.2d 671, 679 (1977)). When an agency makes an interpretation of general applicability, that policy statement lacks the force of law of a properly adopted regulation. Eighty-Four Mining Co. v. Three Rivers Rehab., Inc., 554 Pa. 443, 721 A.2d 1061, 1066 (1998); Norristown, 374 A.2d at 679. A general statement of an agency‘s policy does not establish a binding norm upon that agency, but announces the agency‘s provisional intentions for the future. Eighty-Four, 721 A.2d at 1066. Reviewing courts have the discretion to accept or reject the agency‘s general statement of policy, depending on how accurately the interpretation reflects the meaning of a statute. Id. A properly adopted regulation, unlike a statement of policy, has the force of law and is binding on a reviewing court. Norristown, 374 A.2d at 679. Regulations must be promulgat-
The Department can act in one of two ways to interpret the CDCA. First, the CDCA authorizes the Secretary to issue binding “rules and regulations as may be necessary for the protection of the public, for insuring the proper conduct of the business contemplated by this act, and for the enforcement of this act, which ... shall have the force and effect of law.”
Pursuant to its authority under Section 202.D of the Department of Banking Code, the Department issued the Notice interpreting Section 3.A of the CDCA. It did not invoke its authority under Section 12 to issue binding rules and regulations. The Department very clearly expressed that the Notice articulated its interpretation of the law. See Notice, 38 Pa. Bull. 3986 (“it is the position of the Department of Banking (Department) that engaging in nonmortgage consumer lending to Pennsylvania residents by any means, including by means of the internet or by mail, constitutes engaging in such business ‘in this Commonwealth’ as contemplated by section 3.A of the Consumer Discount Company Act ...“). This interpretation, like the prior interpretation, did not have the force and effect of law, and we see no reason to require the Department to reinterpret Section 3.A through a binding regulation.9
III. Declaratory Judgment Action
Cash America next argues that the relief ordered by the Commonwealth Court exceeds the bound of a declaratory judgment action. According to this argument, the courts must wait until the Department initiates an enforcement action against Cash America for violating the CDCA as interpreted
The Department observes that Cash America answered the Department‘s counterclaim without challenging the Commonwealth Court‘s authority under the Declaratory Judgment Act,
Cash America‘s argument fails for several reasons. First, because Cash America asked the Commonwealth Court for a declaration that it was not violating the CDCA, answered the Department‘s counter-claim, and moved for summary relief, it cannot now complain that the Commonwealth Court lacked authority to declare that it was violating the CDCA. Moreover, the Department is authorized to maintain actions for “an injunction or other process against any person to restrain and prevent the person from engaging in activity violating ... any [] statute or regulation within the department‘s jurisdiction to administer or enforce.”
IV. Prospectivity
In the event this Court affirms the Commonwealth Court, Cash America argues that the ruling should apply
Cash America did not assert this argument before the Commonwealth Court, and may not raise it for the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.“). Moreover, the parties agreed that Cash America would stay its application for preliminary injunction, and the Department would forgo enforcing the CDCA and the LIPL against out-of-state lenders until the Commonwealth Court decided the parties’ cross-applications for summary relief. In accord with the parties’ explicit agreement, therefore, Cash America is not subject to any retroactive application of the Commonwealth Court order by the Department. Accordingly, we will not resolve the parties’ arguments in this regard, both because it is waived and appears to be hypothetical.
Accordingly, the order of the Commonwealth Court is affirmed.
Chief Justice CASTILLE, and Justices EAKIN, TODD, McCAFFERY, ORIE MELVIN join the opinion.
Justice SAYLOR files a concurring opinion.
Justice SAYLOR, concurring.
I join the Court‘s holding and support much of the majority‘s reasoning. In light of the incongruities in the governing statute relative to foreign lenders and the interpretive history in the Department of Banking, however, I have difficulty with the majority position that the case can be resolved solely based on plain-meaning interpretation. Rather, I believe statutory construction is implicated, to include consideration of the
Notes
Cash America‘s interpretation of the LIPL is premised on its flawed interpretation of the CDCA. Therefore, for the same reasons that we reject Cash America‘s interpretation of the CDCA, we likewise reject this argument. Section 201 of the LIPL provides that the maximum interest rate that a lender may lawfully charge for a loan in the amount of $50,000 or less is 6% per year unless another Pennsylvania law, such as the CDCA, authorizes a higher interest rate. Because no Pennsylvania or federal law authorizes Cash America to charge Pennsylvania residents the rates of interest connected to its loans, it is violating the default maximum interest rate provided by the LIPL.