COMMONWEALTH OF PENNSYLVANIA v. CHESAPEAKE ENERGY CORPORATION; CHESAPEAKE APPALACHIA, L.L.C.; CHESAPEAKE OPERATING, L.L.C.; CHESAPEAKE ENERGY MARKETING, L.L.C.; ANADARKO PETROLEUM CORPORATION; AND ANADARKO E&P ONSHORE, L.L.C.
No. 81 MAP 2019
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
March 24, 2021
MUNDY, J.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. [J-52A-2020]. ARGUED: May 27, 2020.
JUSTICE MUNDY
In this appeal by allowance, we consider whether the Commonwealth, by the Office of Attorney General (OAG), may bring claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL),
I. PENNSYLVANIA‘S UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW
Enacted in 1968, the UTPCPL is Pennsylvania‘s consumer protection law.1 “The 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.” Commonwealth by Shapiro v. Golden Gate Nat‘l Senior Care LLC, 194 A.3d 1010, 1023 (Pa. 2018); see also Commonwealth, by Creamer v. Monumental Props., Inc., 329 A.2d 812, 816-18 (Pa. 1974) (noting the UTPCPL‘s “underlying foundation is fraud prevention,” and it was based on the Federal Trade Commission Act,
Turning to the UTPCPL‘s language and structure, Section 3 declares unlawful “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce as defined by [Section 2(4)(i)-(xxi)] and regulations promulgated [by the Attorney General] under section 3.1[.]”
Section 3 prohibits those “unfair methods of competition and unfair or deceptive acts or practices” in “trade or commerce.”
To enforce Section 3, the UTPCPL 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] to be unlawful, and that proceedings would be in the public interest, he [or she] 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.
II. FACTUAL AND PROCEDURAL HISTORY
Anadarko Petroleum Corporation and Anadarko E&P Onshore, L.L.C. (Anadarko) conducted natural gas exploration and production in the Marcellus Shale formation in the northeastern Pennsylvania counties of Bradford, Centre, Clinton, Lycoming, Potter, Sullivan, Tioga, and Wyoming. Second Amended Complaint, 5/3/16, at ¶¶ 261-262.2 To acquire oil and gas interests, Anadarko employed or contracted with “landmen,” who in turn negotiated and entered into leases with Pennsylvania landowners to obtain their properties’ mineral estates. Id. at ¶¶ 72, 269. In a typical oil and gas lease, a landowner conveys the mineral estate for a term of years to an exploration and production company in exchange for signing bonus payments, royalties from the sale of oil and gas extracted from the land, and, at times, protections of surface rights. Id. at ¶¶ 28-30, 72, 74. Further, the landmen had the ability to alter the standard pre-printed lease form to address a landowner‘s demands through various addenda or even by editing the lease document on a laptop word processing program. Id. at ¶¶ 80-104; see also, e.g., id. at 100 (“[t]he exploration and production companies gave such permission depending on the value of the land owned by the hard-bargaining landowner“). Although these agreements were referred to as “leases,” the landowner conveyed a fee simple to the mineral estate for a term of years, which severed the ownership of certain minerals from ownership of the property‘s surface. Id. ¶¶ 77-78; Snyder Bros., Inc. v. Peoples Nat. Gas Co., 676 A.2d 1226, 1230 (Pa. Super. 1996) (“the interest granted to lessee is a fee simple determinable; the lessor retains a reversionary interest.“); see also Shedden v. Anadarko E. & P. Co., L.P., 136 A.3d 485, 490 (Pa. 2016) (“[a]n oil and gas lease is in the nature of a contract, and, thus, is controlled by principles of contract law.“).
The OAG, acting as parens patriae,3 filed this lawsuit against Anadarko and Chesapeake4 pursuant to the UTPCPL “to restrain unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce declared unlawful by Section 3 of the UTPCPL.” Id. at 1-2.5 The OAG sought “to recover for Pennsylvania Landowners money wrongfully deducted from royalty checks as a result of the wrongful conduct of Defendants[.]” Id. at ¶ 1. Specifically, in its first count against Anadarko (Count III), the OAG averred that the joint venture and market allocation agreements Anadarko entered into with Chesapeake were unlawful under UTPCPL Section 3 because they “impaired the competitive process which deprived Pennsylvania Landowners from receiving an acreage signing bonus and royalty which would have been competitive and fair absent the agreement to allocate territories.” Id. at ¶ 225. In its second and third counts against Anadarko (Counts IV and VI), the OAG alleged Anadarko‘s conduct in the joint venture and in its individual capacity were unlawful under UTPCPL Section 3 because it “constituted unfair or deceptive acts or practices within the meaning of Section 2(4) of the UTPCPL, including” subsections 2(4)(ii), (v), (vii), and (xxi). Id. at ¶¶ 245, 309.
Anadarko filed preliminary objections to the second amended complaint. Relevant to this appeal, Anadarko argued that the three counts in the OAG‘s complaint were legally insufficient because the UTPCPL
On December 15, 2016, the trial court overruled Anadarko‘s preliminary objections. The trial court concluded the UTPCPL applied because Anadarko‘s purchasing of oil and gas rights constituted “trade and commerce” as defined in UTPCPL Section 2(3). Trial Ct. Op., 12/15/16, at 21. It read the UTPCPL Section 2(3) definition of “trade and commerce” as containing two independent parts, namely: (1) “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 (2) “includes any trade or commerce directly or indirectly affecting the people of this Commonwealth.” Id.;
In its opinion and accompanying orders denying the preliminary objections, the trial court sua sponte identified and certified two issues for immediate interlocutory appeal pursuant to
The Commonwealth Court, en banc, affirmed in part and reversed in part the trial court order overruling Anadarko‘s preliminary objections. Id. at 53. The court affirmed the trial court‘s conclusion that the OAG‘s UTPCPL claims based on Anadarko‘s conduct in securing oil and gas leases were “legally viable.” Id. at 59. The court reasoned that Anadarko‘s conduct constituted “trade” and “commerce” under UTPCPL Section 2(3) because the “leases were, in essence, sales.” Id. at 56. To support this conclusion, the court applied Monumental Properties, in which this Court concluded residential leases are sales that are regulated by the UTPCPL. Id. at 57 (analogizing Monumental Props., 329 A.2d at 822-23). The Commonwealth Court extended Monumental Properties to business and commercial leases, and it further
The Commonwealth Court then noted that in Danganan v. Guardian Protection Services, 179 A.3d 9 (Pa. 2018), this Court explained the Section 2(3) definition of trade and commerce contained “two distinct and independent clauses.” Id. (relying on Danganan, 179 A.3d at 16); see also
After concluding Anadarko was engaged in trade and commerce when it purchased mineral rights through leases, the Commonwealth Court then concluded these lease transactions can give rise to a UTPCPL claim because Section 3 outlaws all “‘[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.‘” Id. (quoting
Turning to the issue of whether the OAG‘s antitrust claims were cognizable under the UTPCPL, the Commonwealth Court concluded that the UTPCPL does not render all antitrust violations actionable, but antitrust violations “can give rise to viable UTPCPL actions [] if they fit within one of the categories of behavior deemed, by rule or in the Law itself, ‘unfair methods of competition’ or ‘unfair or deceptive acts or practices.‘” Id. at 60. Applying this, the court found the UTPCPL antitrust claim in Count III of the second amended complaint, which averred that the joint venture and market sharing agreements intrinsically violated the UTPCPL, was not legally viable because conduct generally impairing competition did not fit into any of the 21 categories of conduct Section 2(4) describes. Id. Accordingly, the Commonwealth Court reversed the trial court‘s order overruling Anadarko‘s preliminary objections to Count III. Id. at 61.
In contrast to Count III, the Commonwealth Court found Count IV pled a legally viable UTPCPL-based antitrust claim. Id. The court concluded Count IV‘s allegations that Anadarko acted unfairly and deceptively by misleading landowners
Judge Anne Covey filed a concurring and dissenting opinion in which she agreed with the majority that the trial court erred in overruling Anadarko‘s preliminary objection to Count III and dissented from the majority‘s holding that the OAG pled legally viable UTPCPL claims. Id. at 62 (Covey, J., concurring and dissenting). Judge Covey emphasized that the UTPCPL is a consumer protection statute. Id. (quoting Golden Gate, 194 A.3d at 1023 (stating the UTPCPL “aims to protect the consumers“); Meyer v. Cmty. Coll. of Beaver County, 93 A.3d 806, 814 (Pa. 2014) (explaining “the legislature enacted the UTPCPL to account for the fundamental inequality between buyer and seller, and to protect consumers from exploitative merchants.“)). She explained that in extending the UTPCPL to residential leases, the Monumental Properties Court reasoned that “[t]he Legislature directed that consumers were to be safeguarded by the [UTPCPL]. . . . [T]enants are in every meaningful sense consumers.” Id. at 63 (quoting Monumental Props., 329 A.2d at 826). However, she noted that in the oil and gas lease transactions in this case, the majority and the OAG acknowledged that Anadarko was the purchaser/consumer and the landowners were the sellers. Id.
Judge Covey observed that the language of UTPCPL Section 2(3) defines trade and commerce exclusively as acts of selling, i.e., “advertising, offering for sale, sale or distribution.” Id. at 64 (quoting
Additionally, Judge Covey opined that the majority‘s definition was inconsistent with the legislative purpose of protecting consumers and that it conflicted with the Superior Court‘s decisions holding the UTPCPL protects buyers and not sellers. Id. at 65-66 (discussing Gregg v. Ameriprise Fin., Inc., 195 A.3d 930, 940 (Pa. Super. 2018) (holding vendors have a duty to comply with the UTPCPL in interacting with consumers), appeal granted, 216 A.3d 222 (Pa. 2019); Schwarzwaelder v. Fox, 895 A.2d 614, 619 (Pa. Super. 2006) (holding the UTPCPL did not apply because the plaintiffs did not purchase from the defendant); and DeFazio v. Gregory, 836 A.2d 935, 939 (Pa. Super. 2003) (holding the UTPCPL protects buyers not sellers)). Accordingly, Judge Covey dissented from the majority‘s decision permitting the OAG to bring a UTPCPL case on behalf of the sellers in a transaction against the buyers. Id. at 66.
Although Judge Covey opined her conclusion that the Section 2(3) definition of trade and commerce did not apply to Anadarko‘s conduct as a purchaser meant that all of the OAG‘s UTPCPL claims must be dismissed, including the antitrust claims, she also found the majority‘s reading of the UTPCPL as covering antitrust claims was an act of improper judicial legislation. Id. at 66 n.5, 67. Accordingly, Judge Covey concluded that she would hold the trial court erred in overruling Anadarko‘s demurrers to Count IV. Id. at 68.
III. ISSUES AND STANDARD OF REVIEW
This Court granted Anadarko‘s petition for allowance of appeal to consider the following issues:
- Are the claims by the Commonwealth, brought on behalf of private landowners against natural gas extractors alleging that the extractors used deceptive, misleading, and unfair tactics in securing natural gas leases from landowners, cognizable under the Unfair Trade Practices and Consumer Protection Law?
- May the Commonwealth pursue antitrust remedies under the Unfair Trade Practices and Consumer Protection Law?
Commonwealth v. Chesapeake Energy Corp., 218 A.3d 1205 (Pa. 2019) (per curiam) (rephrasing issues for clarity).
As these issues present pure legal questions of statutory interpretation, our standard of review is de novo, and our scope of review is plenary. MERSCORP, Inc. v. Del. County, 207 A.3d 855, 861 (Pa. 2019). In construing a statute, a court‘s duty is to give effect to the legislature‘s intent and to give effect to all of the statute‘s provisions.
IV. LEGAL SUFFICIENCY OF UTPCPL CLAIMS
A. PARTIES’ ARGUMENTS
Anadarko asks us to reverse the Commonwealth Court‘s holding that the OAG‘s UTPCPL claims are legally cognizable. Anadarko‘s Brief at 17. Anadarko emphasizes that the legislative purpose of the UTPCPL is to protect consumers from sellers’ wrongful conduct. Id. at 18, 20 (“The UTPCPL is designed to regulate the conduct of sellers in order to protect buyers in consumer transactions. It was not
Anadarko argues the UTPCPL‘s plain language confirms the legislative intent to protect buyers. Id. at 21. First, Anadarko highlights that Section 2(3) defines “trade” and “commerce” as the acts of “advertising, offering for sale, sale or distribution,” which are activities of exclusively sellers. Id. at 20-21 (quoting
Anadarko identifies two flaws in the Commonwealth Court‘s interpretation of the UTPCPL. First, Anadarko asserts that the court erred in disregarding the clear statutory definition of “trade” and “commerce.” Id. at 25. Because the legislature supplied a definition of those terms, Anadarko maintains a court may not disregard that definition and instead resort to a dictionary definition. Id. Further, “[w]ords and phrases should be presumed to bear the same meaning throughout a statutory provision absent clear intent to the contrary, particularly where the term is repeated within a given sentence.” Id. at 26-27 (citing, among other cases, Ratzlaf v. U.S., 510 U.S. 135, 143 (1994) (“A term appearing in several places in a statutory text is generally read the same way each time it appears.“)). According to Anadarko, the Commonwealth Court erred in disregarding the legislative definition of trade and commerce in Section (3).
The second error Anadarko points out is that the Commonwealth Court misconstrued the second part of the Section 2(3) definition of trade and commerce. Id. at 27. Again, the second part states “‘trade’ and ‘commerce’ . . . includes any trade or commerce directly or indirectly affecting the people of this Commonwealth.”
Anadarko argues this Court‘s decision in Monumental Properties supports its interpretation that the UTPCPL protects only buyers in commercial transactions. Anadarko‘s Brief at 30. It notes that the Monumental Properties Court held that the UTPCPL applies to residential leases because landlords are akin to sellers and tenants are akin to buyers of property. Id. (citing Monumental Props., 329 A.2d at 820). Anadarko posits that the analysis of the Monumental Properties Court, analogizing tenants to consumers, would not be necessary if the second part of Section 2(3)‘s definition of “trade or commerce” applied to all commercial transactions, as the Commonwealth Court held in this case. Id. at 31. Further, Anadarko reads Monumental Properties as holding residential leases are a type of consumer transaction because the landlord was selling property, and not as applying the UTPCPL to all lessees. Id. at 31-32. Anadarko distinguishes Monumental Properties from this case because the landowner was the seller of oil and gas interests, and Anadarko was the buyer of those interests. Id. at 32.
Lastly, Anadarko argues “[t]he Legislature has not amended the UTPCPL to expand the definition of ‘in the conduct of any trade or commerce’ to cover the nature of private contracts at issue here, and it is not the function of the courts to do so.” Id. at 35. Anadarko contends the Commonwealth Court subverted the limitations the legislature chose to place on the UTPCPL as a law designed to protect consumers in commercial transactions.7 Accordingly, Anadarko asks us to reverse the Commonwealth Court‘s holding that the OAG‘s UTPCPL claims were legally cognizable. Id. at 37.
In contrast, the OAG advocates for affirmance of the Commonwealth Court‘s broad definition of “trade” and “commerce” as including Anadarko‘s leasing of oil and gas interests to extract natural gas for commercial sale. OAG Brief at 21, 27. The OAG contends that courts must liberally construe the UTPCPL. Id. at 27 (relying on Monumental Props., 329 A.2d at 817 (stating the UTPCPL “is to be construed liberally to effect its object of preventing unfair or deceptive practices.“)). Accordingly, the OAG asserts that Anadarko, which bought and sold property interests, and produced and sold natural gas, conducted “trade and commerce” as defined by Section 2(3).
To support its construction of Section 2(3), the OAG relies on Danganan. Id. at 28. The OAG characterizes the Section 2(3) definition of trade and commerce as consisting of two parts: (1) “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 (2) “includes any trade or commerce directly or indirectly affecting the people of this Commonwealth.”
Additionally, the OAG emphasizes that UTPCPL Section 4 authorizes the OAG to bring a public enforcement action against any “person” for violations of the UTPCPL.8 Id. The OAG contrasts Section 4 with Sections 7 and 9.2, which provide rights for buyers/consumers against sellers. Id. at 31-32. Because Section 4 is not limited to actions against sellers, the OAG maintains the UTPCPL authorizes it to bring enforcement actions against any person who engages in unfair and deceptive trade practices. Id. at 32-33. Accordingly, the OAG urges us to affirm the Commonwealth Court‘s decision that its UTPCPL claims are legally cognizable. Id. at 33.
Anadarko disputes the OAG‘s position that the UTPCPL regulates all business conduct. Anadarko‘s Reply Brief at 3. Anadarko reminds that the issue is whether it engaged in trade or commerce under Section 2(3), not whether it engaged in business activities generally. Id. at 5. Further, Anadarko criticizes the OAG for suggesting that we can define trade or commerce differently from the definition the legislature supplied. Id. at 6 (citing, among other cases, Commonwealth v. King, 939 A.2d 877, 880 (Pa. 2007); Allegheny County Sportsmen‘s League v. Rendell, 860 A.2d 10, 20 (Pa. 2004) (stating courts may construe terms according to common usage “[i]n the absence of a specific statutory definition.“)). Instead, Anadarko contends we cannot discard the legislative definition of trade or commerce as the acts of “the advertising, offering for sale, sale or distribution. . . .” Id.
Responding to the OAG‘s reliance on Section 4, Anadarko argues that section gives the OAG standing to bring an enforcement action against “any person” only if that person violates Section 3, i.e., engages in “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Id. at 7-8. Anadarko maintains that its alleged leasing practices did not constitute trade or commerce, so Section 4 does not provide a basis for the OAG to bring an action against it. Id. at 8.
Lastly, Anadarko maintains there is not a “catch-all” definition of trade or commerce in Section 2(3). Id. at 9. Instead, Section 2(3) provides a single definition of trade or commerce as “advertising, offering for sale, sale or distribution.” Id. at 10. Construing the definition‘s second part—
B. ANALYSIS
The UTPCPL clearly regulates the conduct of sellers, and it does not provide a remedy for sellers to exercise against buyers. Section 3 of the UTPCPL declares unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce[.]”
“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.
The Commonwealth Court erred in discarding the specialized legislative definition of trade and commerce and substituting the dictionary definitions of those terms. To do so, the Commonwealth Court held that the second part of the Section 2(3) trade and commerce definition—“and includes any trade or commerce directly or indirectly affecting the people of this Commonwealth“—is a “catch-all of sorts, enabling ‘trade’ and ‘commerce’ to be defined in terms of common usage and not just . . . through the narrower, more specific language of the first clause.” Anadarko Petroleum, 206 A.3d at 57. This was flawed for several reasons.
First, the Commonwealth Court failed to recognize that the first part of Section 2(3) contains the definitions of trade and commerce. When the phrase “trade or commerce” appears in the second part of Section
Second, defining trade and commerce to include both buying and selling renders superfluous the first part of the definition, which defines trade and commerce as only selling. This violates the statutory construction principle that “[w]e are not permitted to ignore the language of a statute, nor may we deem any language to be superfluous.” Commonwealth v. McCoy, 962 A.2d 1160, 1168 (Pa. 2009). In fact, resorting to a dictionary or ordinary usage for the definition of trade and commerce ignores and renders superfluous the very legislative act of providing a definition for those terms. We presume the legislature was aware of the ordinary meanings of trade and commerce and chose to define those terms more precisely for purposes of the UTPCPL. If the legislature intended for trade and commerce to be defined using a dictionary or their ordinary meaning, it would not have specially defined them in Section 2(3). See Commonwealth v. Hart, 28 A.3d 898, 909 (Pa. 2011) (using dictionary to ascertain the common and approved usage of a term the legislature did not define); Centolanza v. Lehigh Valley Dairies, Inc., 658 A.2d 336, 340 (Pa. 1995) (“Absent a definition in the statute, statutes are presumed to employ words in their popular and plain everyday sense, and the popular meaning of such words must prevail.“).
Third, the Commonwealth Court misapplied Monumental Properties to hold that the UTPCPL regulates both the buyer and seller in a lease transaction. See Anadarko Petroleum, 206 A.3d at 58 n.12 (finding the oil and gas lease constituted “sales” as used in Section 2(3)). This was an unsupported expansion of Monumental Properties. The Monumental Properties Court held that “the leasing of residences falls within the ambit of the Consumer Protection Law.” Monumental Props., 329 A.2d at 820 (“the contemporary leasing of residences envisions are person (landlord) exchanging for periodic payments of money (rent) a bundle of goods and services, rights and obligations.“). It, however, did not hold that the UTPCPL regulates the conduct of both landlord and tenant. Instead, it explained “[t]he Legislature directed that consumers were to be safeguarded by the [UTPCPL,]” and “tenants are in every meaningful sense consumers.” Id. at 826. Applying Monumental Properties to this case, assuming commercial oil and gas leases are subject to the UTPCPL,9 the UTPCPL provides protection to the consumer/purchaser, which is Anadarko in this case, from unfair and deceptive practices of the sellers, which are landowners in this case. Accordingly, Monumental Properties does not support the Commonwealth Court‘s conclusion that Anadarko, as a lessee, was subject to the UTPCPL.
Fourth, the Commonwealth Court‘s interpretation was premised on its misreading of Danganan. In Danganan, this
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 includes,” thus indicating an inclusive and broader view of trade and commerce than expressed by the antecedent language.
Id. Based on this construction, the liberal interpretation of the UTPCPL, and a Washington Supreme Court case, we held that a non-Pennsylvania resident may bring a UTPCPL claim against a Pennsylvania business based on an out-of-state transaction. Id. at 16-17 (relying on Thornell v. Seattle Serv. Bureau, Inc., 363 P.3d 587, 591 (Wash. 2015) (suggesting unfair and deceptive business practices against nonresidents directly and indirectly affect the state economy)).
Contrary to the Commonwealth Court‘s reading, the Danganan Court did not conclude that the second part of Section 2(3) altered the first part‘s definition of trade and commerce. Id. at 16. Nor did this Court conclude that the second part of Section 2(3) operated as a “catch-all” to expand the meaning of trade and commerce beyond what the legislature specified in the first part. Instead, the Danganan Court said it was “inclusive,” i.e., included the first part, and “broader” in that it applied to conduct “directly or indirectly affecting the people of this Commonwealth.” Id. Based on Danganan‘s statement that the second part of Section 2(3) “does not modify or qualify the preceding terms,” we conclude the Commonwealth Court erred in using the second part of Section 2(3) to redefine trade and commerce by expanding it to include buying as well as selling.
Applying the plain language of the Section 2(3) definition of trade and commerce to this case, we conclude the OAG‘s UTPCPL claims against Anadarko are not legally cognizable. In the oil and gas lease transactions at issue, Anadarko was in the position of a buyer, purchasing rights to the landowners’ mineral estates. In turn, the landowners were in the position of a seller, conveying their rights in exchange for signing bonuses, royalty payments, and other considerations. While the OAG‘s second amended complaint alleged Anadarko engaged in unfair and deceptive conduct in these transactions, Anadarko was not conducting “trade or commerce” for the purposes of the UTPCPL because it was not engaged in “the advertising, offering for sale, sale or distribution” of anything; instead, it was purchasing oil and gas interests from landowners. Both the Commonwealth Court and the OAG recognized that Anadarko was in the position of a buyer/consumer in the oil and gas lease transactions.
Because the OAG‘s claims are not cognizable under Section 3, we are not persuaded by the OAG‘s contention that it can nonetheless bring enforcement actions against any person pursuant to UTPCPL Section 4. Section 4 plainly provides that the OAG has standing to bring an action only if that person “is using or is about to use any method, act or practice declared by section 3 of this act to be unlawful[.]”
The second issue we accepted for review, whether antitrust remedies are cognizable under the UTPCPL, is contingent on a finding that the OAG can bring claims against Anadarko under the UTPCPL. Because we have concluded that the OAG cannot bring UTPCPL claims against Anadarko based on its allegedly unfair and deceptive conduct as a purchaser of mineral estates, the OAG‘s antitrust claims in Count IV are also legally insufficient. Accord Anadarko Petroleum, 206 A.3d at 66 n.5 (Covey, J., concurring and dissenting) (opining Count IV “must also be dismissed since [Anadarko‘s] conduct, as purchasers, does not fall within the UTPCPL‘s definition of ‘trade’ and ‘commerce.‘“). Thus, the second question is now moot. See Danganan, 179 A.3d at 17 (finding that the resolution of the first question mooted the second question certified for review); In re Gross, 382 A.2d 116, 119 (Pa. 1978) (“It is well established in this jurisdiction that this Court will not decide moot questions.“).
VI. CONCLUSION
For these reasons, we conclude the OAG may not bring claims under the UTPCPL on behalf of private landowners against Anadarko for its alleged unfair and deceptive practices in acquiring natural gas leases from the landowners. We further
Case remanded. Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer, Todd, Donohue and Wecht join the opinion.
Justice Dougherty files a dissenting opinion.
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