Justia.com Opinion Summary: Appellee United States Organizations for Bankruptcy Alternatives, Inc. (USOBA) and Appellant Department of Banking challenged different aspects of the Commonwealth Court's decision that the Pennsylvania Debt Management Services Act (Act 117) was unconstitutional in part. At the request of the Supreme Court, the parties addressed whether the lower court's disposition was a final order appealable pursuant to the Rules of Appellate Procedure. The General Assembly adopted Act 117 in October 2008 to regulate, in relevant part, providers of debt settlement services (“DSS”). A DSS provider negotiates with creditors on behalf of a consumer “for the purpose of the creditor forgiving part or all of the principal of the debt incurred or credit extended to that consumer.” Pursuant to Section 3(b) of Act 117, DSS providers are prohibited from operating in Pennsylvania without a license from the Banking Department, and are required to comply with the Department’s regulations. Other sections of Act 117 list licensing fees, describe the initial licensing, license renewal, revocation, and reinstatement processes, and create penalties for violations of the statute. USOBA claimed that Act 117 violates the non-delegation, equal protection, and due process provisions of the Pennsylvania and U.S. Constitutions, and requested a declaratory judgment, injunctive relief, and compensation for attorneys’ fees and costs. The Department denied the allegations, and filed an Application for Summary Relief, claiming that the contentions in the complaint were insufficient as a matter of law to state a claim. Following a hearing, the Commonwealth Court denied the Department’s application in an unpublished opinion. Upon review of the Act, the applicable legal authority and the trial record, the Supreme Court concluded that the Commonwealth Court's order was not appealable and quashed the parties' appeals.
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[J-56A&B-2011]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
UNITED STATES ORGANIZATIONS FOR :
BANKRUPTCY ALTERNATIVES, INC., :
:
Appellee
:
:
:
v.
:
:
:
DEPARTMENT OF BANKING AND
:
GLENN E. MOYER, IN HIS CAPACITY
:
AS THE SECRETARY OF THE
:
DEPARTMENT OF BANKING,
:
:
Appellant
:
:
:
UNITED STATES ORGANIZATIONS FOR :
BANKRUPTCY ALTERNATIVES, INC., :
:
Cross-Appellant
:
:
:
v.
:
:
:
DEPARTMENT OF BANKING AND
:
GLENN E. MOYER, IN HIS CAPACITY
:
AS THE SECRETARY OF THE
:
DEPARTMENT OF BANKING,
:
:
Cross-Appellee
:
No. 13 MAP 2010
Appeal from the Order of the
Commonwealth Court at 69 MD 2009,
dated February 25, 2010
991 A.2d 370 (Pa. Cmwlth. 2010)
ARGUED: May 11, 2011
No. 16 MAP 2010
Appeal from the Order of the
Commonwealth Court at 69 MD 2009,
dated February 25, 2010
991 A.2d 370 (Pa. Cmwlth. 2010)
SUBMITTED: May 11, 2011
OPINION
MR. CHIEF JUSTICE CASTILLE
DECIDED: August 15, 2011
We decide the cross-appeals of the Commonwealth Department of Banking and
Glenn E. Moyer, in his capacity as the Department’s Secretary, (together, the
“Department”), and of the United States Organizations for Bankruptcy Alternatives, Inc.
(“USOBA”), a trade association. In these direct appeals, the parties challenge different
aspects of the Commonwealth Court’s decision that the Debt Management Services Act
(“Act 117”) is unconstitutional in part.1 At this Court’s request, the parties also addressed
the issue of whether the lower court’s disposition is a final order, appealable pursuant to
Rule of Appellate Procedure 341. See Pa.R.A.P. 341. For the reasons that follow, we
conclude that the Commonwealth Court’s order is not appealable and, accordingly, we
quash the cross-appeals.
Background
The General Assembly adopted Act 117 in October 2008 to regulate, in relevant
part, providers of debt settlement services (“DSS”). A DSS provider negotiates with
creditors on behalf of a consumer “for the purpose of the creditor forgiving part or all of the
principal of the debt incurred or credit extended to that consumer.” 63 P.S. § 2402.
Pursuant to Section 3(b) of Act 117, DSS providers are prohibited from operating in
Pennsylvania without a license from the Banking Department, and are required to comply
with the Department’s regulations. 63 P.S. § 2403(b). Licensed DSS providers may not
charge a consumer “any fees other than those described in [Section 15 of Act 117] or by
regulation promulgated by the [D]epartment.” 63 P.S. § 2415(h). The Department has not
1
Act No. 117 of Oct. 9, 2008, P.L. 1421, eff. Feb. 6, 2009, 63 P.S. §§ 2401-2421,
2448-2449.
[J-56A&B-2011] - 2
yet adopted any fee regulations. Other sections of Act 117 list licensing fees, describe the
initial licensing, license renewal, revocation, and reinstatement processes, and create
penalties for violations of the statute. See generally 63 P.S. §§ 2401-2421, 2448-2449.
In February 2009, USOBA, whose membership includes DSS providers, filed a
Petition for Review in the Commonwealth Court challenging the constitutionality of those
parts of Act 117 applicable to DSS providers.2 USOBA claimed that Act 117 violates the
non-delegation, equal protection, and due process provisions of the Pennsylvania and U.S.
Constitutions, and requested a declaratory judgment, injunctive relief, and compensation
for attorneys’ fees and costs. The Department denied the allegations, and filed an
Application for Summary Relief, claiming that the contentions in the complaint were
insufficient as a matter of law to state a claim. Following a hearing, the Commonwealth
Court denied the Department’s application in an unpublished opinion.
Subsequently, in September 2009, USOBA filed its own Application for Summary
Relief seeking a declaration that all provisions of Act 117 relating to DSS providers violate
the Non-Delegation Clause of the Pennsylvania Constitution and are unenforceable.
USOBA noted that its due process and equal protection claims did not have to be decided
at that juncture.
On February 25, 2010, the Commonwealth Court granted USOBA’s declaratory
judgment application in part and denied it in part, without a hearing. According to the court,
the following parts of Act 117 violate the Non-Delegation Clause and, therefore, are
unconstitutional and unenforceable: (1) that portion of Section 3(b) which permits the
Department to promulgate regulations affecting DSS providers, and (2) Section 15(h), in its
entirety, which authorizes the Department to regulate fees that a DSS provider may charge
2
On March 6, 2009, the Commonwealth Court entered an order on the parties’
stipulation that the Department was preliminarily enjoined from enforcing Act 117, as it
relates to performance of debt settlement services, pending final resolution of this matter.
[J-56A&B-2011] - 3
consumers. The Court stated that there was no basis at that time on which to grant
USOBA summary relief on claims regarding that part of Section 3(b) which addresses the
Department’s power to license DSS providers or regarding any other challenged provision
of Act 117. The court rejected USOBA’s argument that the unconstitutional provisions were
inseverable and that, as a result, Act 117 was unenforceable in its entirety.
The Department filed a notice of appeal from the Commonwealth Court’s decision on
March 19, 2010. USOBA filed its notice of cross-appeal on April 5, 2010. Subsequently,
the parties submitted jurisdictional statements regarding their respective appeals, pursuant
to Rule of Appellate Procedure 909. See Pa.R.A.P. 909(a)-(b). Upon review of the parties’
filings, as to each appeal, we postponed consideration of jurisdiction to the merits stage
and ordered the parties to brief the following supplemental issue before addressing their
substantive claims:
Whether the Commonwealth Court’s Order is a final,
appealable order under Pa.R.A.P. 341 for purposes of this
appeal; the parties are to include a discussion of Pennsylvania
Bankers Ass’n v. Department of Banking, 948 A.2d 790 (Pa.
2008) on this issue.
See Pa.R.A.P. 909(c). The parties then filed their respective briefs.
Jurisdiction over the Department’s Appeal
The Department argues that the Commonwealth Court’s order is appealable
because it is a final declaration of the parties’ rights with respect to the constitutionality of
Sections 3(b) and 15(h) of Act 117. The Department acknowledges that, because the
decision below “does not resolve all the issues in the case,” it would generally be
considered an interlocutory order, but claims that in a declaratory judgment action
appealability is determined on different grounds. According to the Department, the pivotal
question in determining the appealability of an order in a declaratory judgment action is
[J-56A&B-2011] - 4
whether the decision constitutes the final determination of the parties’ rights, status, or legal
relations.
The Department asserts that the Commonwealth Court’s order is a final
determination because it “permanently and unalterably changes the status and the rights of
the Department to implement [Sections 3(b) and 15(h) of Act 117]” and cannot be reversed
through further proceedings in the lower court. The Declaratory Judgment Act (“DJA”), the
Department concludes, was devised to ensure the continued operation of government by
permitting the Commonwealth to challenge the validity of a decision, like the one now
before the Court, without waiting for the remainder of the case to be fully litigated.
Department’s Brief, at 19-21 (citing Nationwide Mutual Ins. Co. v. Wickett, 763 A.2d 813
(Pa. 2000)).
USOBA responds that the appeal is interlocutory and criticizes the Department’s
application of Wickett. This action was filed, USOBA emphasizes, to strike all of Act 117’s
provisions pertaining to DSS providers. The lower court granted only partial relief, and
additional claims remain pending below, which could afford USOBA full relief. Until the
Commonwealth Court decides those claims, the appeal is interlocutory, regardless of
whether this is a declaratory judgment action. According to USOBA, the General Assembly
did not intend to alter the general rules of appealability in drafting the DJA. USOBA’s Brief
at 9-10 (quoting Wickett, 763 A.2d at 819 (Saylor, J., dissenting)). Appealability rules,
USOBA states, are designed “to avoid piecemeal litigation and inconsistent results.”
USOBA distinguishes the opinion of the Wickett majority, stating that Wickett governs
cases in which parties rather than claims are dismissed. Id. at 9-11 (citing Pennsylvania
Bankers Ass’n v. Dep’t of Banking, 948 A.2d 790 (Pa. 2008) (“Pennsylvania Bankers”)).
Finally, USOBA challenges the argument that the Department is harmed by delay in the
review of this appeal on the ground that the Department has failed to move forward in the
lower court on the remaining issues, for example, by requesting discovery.
[J-56A&B-2011] - 5
In its reply brief, the Department asserts that the Commonwealth Court’s order here
is distinguishable from the decision in Pennsylvania Bankers, which “neither granted nor
denied the relief sought by petitioners in that case.” According to the Department, in a
declaratory judgment action, the pendency of USOBA’s remaining claims does not affect
the appealability of the order entered by the lower court with respect to Sections 3(b) and
15(h) of Act 117.
Rule 341 provides that an appeal may be taken as of right from any final order of a
lower court. Pa.R.A.P. 341(a). In relevant part, a final order is any order that “(1) disposes
of all claims and of all parties; or (2) is expressly defined as a final order by statute; or (3) is
entered as a final order pursuant to subdivision (c) of this rule.” Pa.R.A.P. 341(b).
Subdivision (c) states that a trial court may enter a final order as to fewer than all the claims
for relief presented or parties involved, upon the express determination of the trial court that
an immediate appeal would facilitate resolution of the entire case. “In the absence of such
a determination and entry of a final order, any order or other form of decision that
adjudicates fewer than all the claims and parties shall not constitute a final order.”
Pa.R.A.P. 341(c). The Department relies on this Court’s decision in Wickett to argue that
the decision below is a final order and appealable as of right under Rule 341.
In Wickett, this Court held that a trial court has jurisdiction for only thirty days to
reconsider an order sustaining preliminary objections to a declaratory judgment action. 763
A.2d at 818 (citing 42 Pa.C.S. § 5505). The trial court sustained objections in the nature of
a demurrer, and dismissed three of the several defendants from the action. More than a
year later, the trial court vacated its original order based on a development in the caselaw,
and reinstated the cause of action against the dismissed defendants, including appellant.
On appeal to this Court, the appellant argued that the trial court’s initial order was final and
could only have been modified or appealed within thirty days after its entry. According to
the appellant, the trial court’s order declared the rights, status, and other legal relations of
[J-56A&B-2011] - 6
the parties, and was therefore defined by the DJA as a final order, appealable pursuant to
Rule 341(b)(2). Id. at 817 (citing 42 Pa.C.S. § 7532, Pa.R.A.P. 341(a), (b)(2)).3 The
appellees responded that the trial court’s order sustaining preliminary objections was
interlocutory because it did not dispose of all claims and all parties. But, we agreed with
the appellant and reversed. We concluded that the DJA defined the trial court’s order as
final, appeal was proper pursuant Rule 341(b)(2), and the trial court improperly modified the
order after the thirty day appeal period lapsed.
Recently, we revisited the Wickett decision and rejected its applicability under
circumstances similar to those before us. Thus, in Pennsylvania Bankers, we held that an
order in a declaratory judgment action, which merely dismisses one or some of several
alternative theories for relief without ultimately deciding the case, is not appealable under
Rule 341. 948 A.2d at 798. The appellant banks and banking associations (“the banks”)
had sought review of a Commonwealth Court decision sustaining in part the preliminary
objections of the appellee Commonwealth parties and dismissing two of the banks’ several
claims that the provision which exempts credit unions from most taxation was
unconstitutional. See id. at 791-92 (citing 17 Pa.C.S. § 517). The remaining claims, to
which objections were overruled, had the potential to afford the banks the full relief
originally requested. On direct appeal to this Court, the banks argued that the lower court’s
order was appealable because it declared conclusively that the banks’ dismissed claims
were invalid, and our decision in Wickett deemed such DJA orders final.
The
Commonwealth parties responded that the appeal was interlocutory because the
3
The DJA states that courts “have power to declare rights, status, and other legal
relations whether or not further relief is or could be claimed. . . . The declaration may be
either affirmative or negative in form and effect, and such declarations shall have the force
and effect of a final judgment or decree.” 42 Pa.C.S. § 7532.
[J-56A&B-2011] - 7
Commonwealth Court’s order did not end litigation against any party, and distinguished
Wickett on that basis.
We agreed with the Commonwealth parties and quashed the appeal. The Court
distinguished Wickett, stating that the Commonwealth Court below had simply narrowed the
scope of the declaratory judgment action, dismissing only claims, not parties from the
action. Pennsylvania Bankers, 948 A.2d at 799. We explained that the banks could
potentially obtain the relief they sought in the lower court, by pursuing their alternate claims,
and that the order dismissing some of their theories for relief “had no practical effect upon
the ultimate decision in th[e] case.” Id. at 798.4
In the lower court, USOBA requested relief in the form of a declaration that Act 117
in its entirety, as applied to DSS providers, is unconstitutional. But, when USOBA
requested a summary adjudication, the Commonwealth Court granted relief in part, striking
only two provisions of Act 117. The lower court did not address several of USOBA’s
arguments and did not ultimately decide whether USOBA was entitled to the full relief
originally requested, which remains available via USOBA’s alternate arguments.
Essentially, the lower court simply narrowed the scope of USOBA’s declaratory judgment
4
In framing its argument in this case, USOBA also relies on the responsive opinion of
Mr. Justice Saylor in Wickett. Justice Saylor dissented in Wickett on the ground that the
statutory scheme of the DJA did not support the majority’s conclusion that the finality
language of Section 7532 was intended by the General Assembly to modify the usual rules
of appealability. 763 A.2d at 819 (Saylor, J., dissenting). In a Pennsylvania Bankers
concurrence, Justice Saylor renewed his criticism of Wickett, stating that “it would be
preferable: to concede that this Court has had great difficulty with Wickett in the years since
its issuance; to recognize that Wickett’s rationale is irreconcilable with a scheme of
appealability implementing considered limits designed to control piecemeal litigation; and
therefore, to limit Wickett to its facts.” Pennsylvania Bankers, 948 A.2d at 801 (Saylor, J.,
concurring). Although the Pennsylvania Bankers majority did not go so far as the
concurrence to limit the Wickett decision to its facts, the majority certainly limited Wickett in
the context which is directly relevant here. Notably, the parties here do not request that we
either further limit or overrule the decision in Wickett.
[J-56A&B-2011] - 8
action, without ultimately deciding the case. Under the rule announced in Pennsylvania
Bankers, the Commonwealth Court’s order is interlocutory and not appealable. The
Department appealed an order which, in light of USOBA’s original challenge to Act 117,
granted USOBA only a partial declaration of the parties’ rights, status, or legal relations.
The Department emphasizes a different aspect distinguishing the present case from
Pennsylvania Bankers, and argues that it is dispositive of the appealability question.
According to the Department, the lower court here “permanently and unalterably” declared
Sections 3(b) and 15(h) unconstitutional, while in Pennsylvania Bankers, the court “neither
granted nor denied” the constitutional claim regarding the tax exemption provision at issue.
But, the Department fails to account for the actual basis of our prior decision or to identify
any tension in applying Pennsylvania Bankers here. The prevailing considerations in
Pennsylvania Bankers were the effect of the lower court’s decision on the scope of the
litigation and the practical effect on the ultimate decision in the case. Appellees in
Pennsylvania Bankers also urged this Court to permit an appeal because a particular
theory of relief was rejected conclusively. We rejected that approach in Pennsylvania
Bankers and, similarly, decline to adopt it here.
We note that the distinction between Pennsylvania Bankers and the present case
identified by the Department derives not from the application of Wickett in the postPennsylvania Bankers legal regime, but from the nature of the original challenge, i.e., a
challenge to a single provision versus multiple provisions. In other words, in Pennsylvania
Bankers, the banks challenged the constitutionality of a single provision and, if the lower
court had decided the constitutional issue and “granted or denied” relief, the order would
have decided rather than merely narrowed the dispute between the parties.
Here,
however, the constitutionality of multiple provisions remains in dispute and, even though
the Commonwealth Court granted USOBA relief as to two provisions, the dispute has not
[J-56A&B-2011] - 9
been resolved but merely narrowed. Therefore, the Pennsylvania Bankers decision is
relevant and dispositive.
We also reject the Department’s suggestion that it is entitled to preferential treatment
because of its status as a governmental entity. Rule 341 draws no distinction to separate
appealable from non-appealable orders on the basis of party type, whether the party is
challenging or defending a statute, or nature of the party, i.e., Commonwealth party versus
private individual; rather, the nature of the lower court’s order as final or interlocutory is the
pivotal factor. Compare Pa.R.A.P. 341 with, e.g., Pa.R.A.P. 1734, 1736 (Commonwealth
parties are subject to different security requirements to obtain stay pending appeal, than
other parties in civil litigation). Furthermore, the Department provides no support for the
assertion (nor can we find any evidence of legislative intent) that the General Assembly
created an exception to the general rules of appealability for Commonwealth parties
seeking to overturn a lower court decision striking a statute as unconstitutional. For these
reasons, we will not devise an ad hoc procedure to vindicate the interest advocated by the
Department. The Department has failed to persuade us that a straightforward application
of our decision in Pennsylvania Bankers is inappropriate here. Pursuant to precedent, the
Department’s present appeal is quashed.5
Jurisdiction over USOBA’s Appeal
In June 2010, the Court requested additional argument on the separate matters of
the Court’s jurisdiction over the Department’s and USOBA’s cross-appeals. Nonetheless,
in their supplemental briefs, both parties failed to address the jurisdictional predicate for
USOBA’s cross-appeal.
5
Consequently, we express no view regarding the merits of the Department’s appeal.
[J-56A&B-2011] - 10
The sole argument in support of jurisdiction over the cross-appeal appears in
USOBA’s jurisdictional statement. USOBA states only that it “filed its cross-appeal in case
this Court determines that it does have jurisdiction to hear the [Department’s] appeal.”
USOBA’s Jurisdictional Statement, at 1. USOBA’s position on that predicate point is that,
in fact, there is no jurisdiction over the Department’s appeal. In response to USOBA’s initial
filing, the Department rejected USOBA’s jurisdictional predicate as insufficient, and sought
to distinguish the procedural posture of the cross-appeal from that of its own appeal.
Asserting an argument akin to a claim that USOBA is not aggrieved by the lower court
decision, the Department claimed that the Commonwealth Court’s order was final for the
purposes of Sections 3(b) and 15(h) and its own appeal, but interlocutory regarding the
remainder of Act 117 and USOBA’s cross-appeal.
Although we reject the Department’s party-centered argument respecting
appealability under Rule 341, we nonetheless necessarily conclude that USOBA’s
contingent cross-appeal is interlocutory. We reiterate that the Commonwealth Court’s order
granted only part of the relief requested and merely narrowed the dispute between the
parties. The only argument raised by USOBA in support of finding that jurisdiction over the
cross-appeal exists is not persuasive in light of the reasoning supporting our disposition of
the Department’s appeal. Accordingly, USOBA’s cross-appeal is also quashed.
Both appeals quashed. Jurisdiction relinquished.
Messrs. Justice Eakin and Baer, Madame Justice Todd, Mr. Justice McCaffery and
Madame Justice Orie Melvin join the opinion.
Mr. Justice Saylor concurs in the result.
[J-56A&B-2011] - 11
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