David J. Meyer, et al. v. Community College of Beaver County, Aplt. (concurring)
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[J-22A-2013 and J-22B-2013] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT DAVID J. MEYER, DALLAS BERRY, CHARLES J. BROWN, JEREMY LEE FOX, MARTIN GORECKI, ANTHONY J. HOLLIBAUGH, LISA L. SALYERS, ROCHELL SYKES, JOSEPH W. VUCICK, DAVID L. WIGLEY, DENNIS W. WOODLEY, CHRIS MACK AND TAMMY MUSLO, : : : : : : : : : : : : : : : : : : : No. 22 WAP 2012 TIMOTHY L. BARR, JOHN J. BATTAGLIA, : MARK BROWN, CHRIS FERRAGONIO, : CRAIG P. FRASER, MATT FRASER, : IVAN GLENZ, JUSTIN HAFFEY, STEVE : HALL, DUSTIN HUFF, JOSEPH A. KANAI, : MICHAEL KEALLY, STEPHEN E. KUSMA : IV, WILLIAM J. LATUSZEWSKI, JOHN : KURT LEITSCHAFT, BOB MASILON, : MICHAEL MATZIE, ALEXIS M. MILLER, : JOSEPH A. MUSSER, TIMOTHY : POLAND, BRIAN A. SALES, MATTHEW : J. TEMPLE, TORIE TYSON, JARED : UNEN, DALE A. VALENSON, MARK C. : WILLIAMS AND AMY M. ZIMMEL, : : Appellees : : : v. : : No. 23 WAP 2012 Appellees v. COMMUNITY COLLEGE OF BEAVER COUNTY, Appellant Appeal from the Order of the Commonwealth Court entered October 27, 2011 at No. 1141 CD 2008, affirming the Order of the Court of Common Pleas of Beaver County entered June 17, 2008 at No. 11345 of 2002. ARGUED: April 10, 2013 Appeal from the Order of the Commonwealth Court entered October 27, 2011 at No. 1142 CD 2008, affirming the Order of the Court of Common Pleas of Beaver County entered June 17, 2008 at No. 11381 of 2002. COMMUNITY COLLEGE OF BEAVER COUNTY, Appellant : : : : : ARGUED: April 10, 2013 CONCURRING OPINION MR. CHIEF JUSTICE CASTILLE DECIDED: JUNE 16, 2014 I agree with the Majority s conclusion that the term person as used in the Unfair Trade Practices and Consumer Protection Law ( UTPCPL ), 73 P.S. §§ 201-1 - 201-9.3, does not include political subdivision agencies such as appellant, Community College of Beaver County ( CCBC ), and thus I join the Majority Opinion and its mandate that the Commonwealth Court s order must be reversed, and the matter be remanded for further proceedings on the remaining contract and warranty claims. I write separately regarding an additional reason to support the Majority s construction, although I recognize that the point is not squarely argued before us here. In order to be liable under the UTPCPL, a defendant must, in addition to being a person as defined in that statute, also be engaged in the conduct of any trade or commerce. 73 P.S. § 201-3. As the Majority notes, the legislature enacted the UTPCPL to account for the fundamental inequality between buyer and seller, and to protect consumers from exploitative merchants. Majority Slip Op. at 15. In my view, CCBC is not a merchant, and is not engaged in trade or commerce as envisioned in the UTPCPL. I agree with Judge (now President Judge) Pellegrini s expression on this point in his dissent below: Trade or commerce is mercantile activity in which the person engaged in that business is doing so for private profit which could motivate unfair or deceptive practices for private gain or, more accurately, private greed. All of the provisions of the [UTPCPL] are aimed at private businesses. The Community College is not engaged in the conduct of trade or commerce [J-22A-2013 and J-22B-2013] - 2 but is carrying out a public responsibility with tax dollars to provide students with an affordable education to citizens of the Commonwealth. In other words, when a governmental entity is carrying out a public duty, it is not engaged in the conduct of a trade or commerce, but in the conduct of government. Meyer v. Community College of Beaver County, 30 A.3d 587, 601-02 (Pa. Cmwlth. 2011) (Pellegrini, J., dissenting). See also id. at 604 (Leavitt, J., dissenting) (CCBC is public institution and was not created to compete with private educational institutions, whether non-profit or for-profit; CCBC was created to fill need not filled by other institutions). CCBC is engaged in providing education; the fact that it accepts tuition funds in exchange for providing that education does not establish that its mission is profit-making trade or commerce. As Judge Leavitt further observed in her dissent below, [s]tate parks offer overnight campsites at state parks, and so do private campgrounds. This does not mean that the Commonwealth has undertaken trade or commerce in the creation of its state park system. Id. at 603 n.6 (Leavitt, J., dissenting). Accordingly, I find further support for the conclusion that CCBC is not subject to liability under the UTPCPL in the fact that it simply is not engaged in trade or commerce. [J-22A-2013 and J-22B-2013] - 3
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