Cnty. of Butler v. Centurylink Commc'ns, LLC

[J-74-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COUNTY OF BUTLER, : No. 66 WAP 2017

:

Appellee : Appeal from the Order of the

: Commonwealth Court entered on 6/8/17

: at No. 1506 CD 2016, reversing the

: order of the Court of Common Pleas of

v. : Butler County entered on 8/11/16 at No.

: 15-11007 and remanding

CENTURYLINK COMMUNICATIONS, :

LLC, AND ALL SUBSIDIARIES AND :

RELATED ENTITIES; THE UNITED :

TELEPHONE COMPANY OF :

PENNSYLVANIA LLC, AND ALL : ARGUED: October 23, 2018

SUBSIDIARIES AND RELATED :

ENTITIES; CONSOLIDATED :

COMMUNICATIONS OF :

PENNSYLVANIA, LLC, AND ALL :

SUBSIDIARIES AND RELATED :

ENTITIES; CONSOLIDATED :

COMMUNICATIONS ENTERPRISE :

SERVICES, INC., AND ALL :

SUBSIDIARIES AND RELATED :

ENTITIES; CORE COMMUNICATIONS, :

INC., AND ALL SUBSIDIARIES AND :

RELATED ENTITIES; INTERMEDIA :

COMMUNICATIONS OF FLORIDA, INC., :

AND ALL SUBSIDIARIES AND RELATED :

ENTITIES; VERIZON PENNSYLVANIA, :

INC., AND ALL SUBSIDIARIES AND :

RELATED ENTITIES; LEVEL 3 :

COMMUNICATIONS, LLC, AND ALL :

SUBSIDIARIES AND RELATED :

ENTITIES; TELCOVE OF EASTERN :

PENNSYLVANIA, AND ALL :

SUBSIDIARIES AND RELATED :

ENTITIES; AT&T CORP., AND ALL :

SUBSIDIARIES AND RELATED :

ENTITIES; TELEPORT :

COMMUNICATIONS AMERICA, LLC, :

AND ALL SUBSIDIARIES AND RELATED :

ENTITIES; US LEC OF PENNSYLVANIA, :

LLC, AND ALL SUBSIDIARIES AND :

RELATED ENTITIES; BANDWIDTH.COM :

CLEC, LLC, AND ALL SUBSIDIARIES :

AND RELATED ENTITIES; COMCAST :

PHONE OF PENNSYLVANIA, LLC, AND :

ALL SUBSIDIARIES AND RELATED :

ENTITIES; PEERLESS NETWORK OF :

PENNSYLVANIA, LLC, AND ALL :

SUBSIDIARIES AND RELATED :

ENTITIES; AND ABC COMPANIES 1 :

THROUGH 20, :

:

Appellants :

OPINION

CHIEF JUSTICE SAYLOR DECIDED: APRIL 26, 2019

This issue accepted for review concerns whether counties may advance common

law claims seeking legal redress against telecommunications companies for alleged

deficiencies in their administration of fees associated with 911 emergency

communication services.

I. Background

In 1990, the Pennsylvania General Assembly created a statutory scheme

regulating 911 emergency communication services throughout the Commonwealth.1

Per the enactment, counties bore the responsibility to operate 911 systems within their

jurisdictions. See 35 Pa.C.S. §5304(a)(1) (requiring each county to develop a plan for

“the implementation, operation and maintenance of a 911 system”) (superseded); see

1 See Act of July 9, 1990, P.L. 340, No. 78 (as amended 35 Pa.C.S. §5301-5312.1)

(superseded) (the “911 Act” or the “Act”).

[J-74-2018] - 2

also id. §5301, Historical and Statutory Notes (quoting Act of July 9, 1990, P.L, 340, No.

78, Preamble).2 In this vein, each county was obliged to make arrangements with

telephone companies providing local exchange telephone service within its boundaries

to provide 911 service. See 35 Pa.C.S. §5304(a)(2) (superseded). The Act also

extended to Interconnected Voice over Internet Protocol (“VoIP”) services. See id.

§5311.14 (repealed).

The enactment also contemplated the creation of a stream of funding to counties

for 911 systems via the imposition of a monthly assessment or charge upon telephone-

service customers in an amount denominated as the “contribution rate,” see, e.g., id.

§5305(g.1)(1) (superseded), as well as a specified fee attached to VoIP service, see id.

§5311.14 (repealed). Service providers were required to collect these fees from

customers and remit the proceeds to county treasurers. See id.; see also id.

§5307(a)(1) (superseded).3 Providers, however, were expressly relieved of any

obligation to take legal action to collect charges, as follows:

The local exchange telephone company shall not be

required to take any legal action to enforce the collection of

any charge imposed under this chapter. Action may be

2 This litigation pertains to matters occurring prior to the introduction of a series of

amendatory provisions into the 911 Act in 2015. See Act of June 29, 2015, P.L. 36, No.

12. Consequently, references herein are to the pre-amendment version of the

enactment.

3 A significant modification worked by the 2015 amendments was to redirect these

remunerations to the State Treasurer for deposit in a special fund dedicated to 911

services throughout the Commonwealth and administered by PEMA. See 35 Pa.C.S.

§5307(a)(1); see also id. §5306.1 (providing for the creation of the fund and delineating

the use and distribution of monies deposited therein).

Parenthetically, the Commonwealth Court offered further insight into this and other

significant changes to the 911 Act in its opinion in this case. See County of Butler v.

CenturyLink Commc’ns, LLC, 163 A.3d 504, 506 n.1 (Pa. Cmwlth. 2017).

[J-74-2018] - 3

brought by or on behalf of the public agency imposing the

charge.

Id. §5307(e)(1) (superseded).

From the state level, the scheme was overseen by the Pennsylvania Emergency

Management Agency (“PEMA”), which was specifically empowered to “take the actions

necessary to implement, administer and enforce” the 911 Act. Id. §5303(a)(12)

(specifying the “[p]owers and duties” of the agency) (superseded). The enactment

otherwise reaffirmed that, in addition to any powers otherwise expressly enumerated in

the 911 Act, PEMA:

has the power and duty to enforce and execute, by its

regulations or otherwise, this chapter. The agency may

institute injunction, mandamus or other appropriate legal

proceedings to enforce [the 911 Act and associated

regulations].

Id. §5311.13 (captioned “Enforcement”) (repealed).

In April 2016, Appellee, the County of Butler, filed a complaint against Appellant,

CenturyLink Communications, LLC, and other telecommunications companies

(collectively, “Providers”), contending that they failed to fulfill their responsibilities under

the 911 Act prior to August 1, 2015. Specifically, the County alleged that Providers did

not adequately charge customers or collect, remit, or report certain fees due to the

County. In particular, the County complained that Providers’ facilities accommodate

multiple lines on a single physical exchange line and/or offer packetized services but

that Providers failed to levy a fee for the use of each line, especially for business

customers employing multiple lines. The complaint advanced common law causes of

action sounding in breach of fiduciary duties, fraud, and negligent misrepresentation

and sought injunctive relief, monetary damages, and an accounting. Notably, the

County did not advance a pure statutory enforcement claim premised exclusively on

authority conferred by the 911 Act.

[J-74-2018] - 4

Providers filed joint preliminary objections in the nature of a demurrer. They

contended, inter alia, that the 911 Act invests exclusive enforcement authority in PEMA,

and accordingly, that the County was barred from bringing the action. From the outset,

Providers asserted that a longstanding and unbroken series of decisions of this Court

maintain that, where the Legislature confers express enforcement rights in a statute,

those rights must be deemed exclusive, and no other enforcement rights may be read

into the statute or otherwise advanced via the assertion of common law claims. See,

e.g., Defendants’ Joint Preliminary Objections in County of Butler v. CenturyLink

Commc’ns, LLC, AD No. 15-11007 (C.P. Butler), at ¶3 (citing White v. Conestoga Title

Ins. Co., 617 Pa. 498, 522, 53 A.3d 720, 735 (2012)).

The County responded with the argument that the 911 Act does not either

establish an exclusive enforcement power in PEMA or otherwise preclude the County

from pursuing common law causes of action. They also posited that the segment of

Section 5307(e)(1) providing that “[a]ction may be brought by or on behalf of the public

agency imposing the charge” expressly empowered counties to bring actions to enforce

the collection of fees against service providers. 35 Pa.C.S. §5307(e)(1) (superseded).

The common pleas court credited Providers’ position. See County of Butler v.

CenturyLink Commc’ns, LLC, AD No. 15-11007, slip op. at 10 (C.P. Butler Aug. 11,

2016) (Horan, J.) (concluding that “PEMA has the exclusive statutory power and duty to

regulate and enforce the 911 Act against service providers”). With respect to Section

5307(e)(1), the court explained that the provision confers a right upon counties to collect

a “charge” from non-paying customers, but not from service providers. See id. at 6-7.

In this regard, the court stressed that no “charges” are imposed on service providers

under the 911 Act. See id. at 7.

[J-74-2018] - 5

The common pleas court also commented on the complexity of

telecommunications management in relation to telephone subscribers and fees per the

Act and the concomitant desirability of consistency and predictability across county

lines. See id. at 7-8. As such, in the court’s view, “a single source of guidance is

appropriate.” Id. at 8. It is for this reason, the court believed, that the Legislature

conferred standing and exclusive authority upon PEMA to enforce the provisions of the

Act relative to service providers. See id.

In terms of the County’s attempt to advance common law claims, the county

court found those claims to be barred per Section 1504 of the Statutory Construction

Act, which provides:

In all cases where a remedy is provided or a duty is enjoined

or anything is directed to be done by any statute, the

directions of the statute shall be strictly pursued, and no

penalty shall be inflicted, or anything done agreeably to the

common law, in such cases, further than shall be necessary

for carrying such statute into effect.

1 Pa.C.S. §1504. The court proceeded to discuss this Court’s admonition, for example,

in White, that, “‘[w]here a statutory remedy is provided, the procedure prescribed therein

must be strictly pursued to the exclusion of other methods of redress;’ but, where the

legislature explicitly reveals in a statute that it does not intend for such exclusivity, a

statutory procedure for dispute resolution does not preempt common law claims.”

White, 617 Pa. at 519, 53 A.3d at 733 (quoting Jackson v. Centennial Sch. Dist., 509

Pa. 101, 105, 501 A.2d 218, 220 (1985), and DeLuca v. Buckeye Coal Co., 463 Pa.

513, 519, 345 A.2d 637, 640 (1975)).

As is presently relevant, the common pleas court found no evidence, in the 911

Act, of an intention for PEMA’s enforcement authority to be shared. Indeed, the court

discerned much contrary evidence in the statute, principally from the fact that Providers’

[J-74-2018] - 6

obligation to collect and remit fees is created exclusively by the Act, see 35 Pa.C.S.

§5307(a) (superseded), and from the enactment’s explicit repositing of enforcement

power over this statutory duty in PEMA, see id. §§5303(a)(12) (superseded), 5311.13

(repealed).

After the common pleas court issued its decision, the County submitted a motion

for reconsideration presenting, for the first time, an affidavit from Robert Mateff, who

was PEMA’s Deputy Director for 911 Services. Mr. Mateff attested that it was the

agency’s position that, “[w]hile PEMA had other responsibilities under the 911 Act that it

would enforce if necessary, the setting and monitoring of 911 surcharge fees for wireline

and VoIP services was not one of them.” Affidavit of Robert F. Mateff, Sr., dated Aug.

30, 2016, in CenturyLink, AD No. 15-11007, at ¶15. According to the affidavit, Section

5307(e)(1) conferred a right in the counties to pursue legal actions against service

providers related to the collection and remittal of 911 fees. See id. at ¶¶12-13 (“PEMA

has always interpreted Section 5307(e)(1) to authorize the counties to police the

telephone companies[’] collection practices.”). Mr. Mateff related that PEMA lacked any

interest in the funds collected by service providers and stated that the agency’s interest

was instead with how counties were expending the money that they received from 911

fees. See id. at ¶14. He also highlighted PEMA’s lack of any statutory audit or other

investigatory powers that could be exercised against telephone providers. See id. at ¶8.

The common pleas court rejected the affidavit, finding that it could not dictate a

judicial ruling on a matter of statutory interpretation. See CenturyLink, AD No. 15-

11007, slip op. at 3-4 (C.P. Butler Nov. 2, 2016). The court also appeared to be

troubled by Mr. Mateff’s downplaying of PEMA’s wide range of responsibilities under the

911 Act. See id. at 4; see also N.T., Sept. 8, 2016, at 27 (reflecting the common pleas

[J-74-2018] - 7

judge’s remark that the “PEMA Affidavit fails to address the very significant provisions of

the Act that empower PEMA and give PEMA broad authority to regulate and enforce”).

In its motion for reconsideration, the County also argued, for the first time, that it

was invested with due process rights that would be violated if it did not have the right to

sue service providers for damages under the 911 Act. The common pleas court

likewise disapproved this position, reasoning that the enactment simply did not grant

enforcement authority, relative to service providers, to the counties, “and there were no

property rights created for the counties to enforce as against service providers.”

CenturyLink, AD No. 15-11007, slip op. at 4 (C.P. Butler Nov. 2, 2016).

On appeal, the Commonwealth Court reversed in a published decision. See

CenturyLink, 163 A.3d 504. The panel initially agreed with Providers and the county

court concerning various matters of statutory interpretation presented. For example,

regarding Section 5307(e), the court reasoned:

We read former Section 5307(e) . . . as only having referred

to the collection of the 911 fees after the service provider

had billed the subscriber. Former Section 5307(e) was

silent, however, as to billing. Stated otherwise, former

Section 5307(e) did not address a situation where a

telecommunication service provider failed to bill the

subscriber or undercharged the subscriber.

Id. at 509 (emphasis in original). The panel also concurred with the common pleas

court’s rejection of Mr. Mateff’s affidavit, concluding that the document was entitled to

no deference. See id. at 510 n.7 (“The County does not cite to a single case, nor is this

Court aware of any, in support of the position that courts should grant deference to an

affidavit by a single employee of an administrative agency in civil litigation, particularly,

litigation in which the agency is not a part.”).

The panel, however, was not persuaded that the conferral of authority upon

PEMA to enforce the 911 Act was exclusive and precluded the County from bringing

[J-74-2018] - 8

suit. In this regard, the panel observed that PEMA’s, counties’, and service providers’

roles and responsibilities under the statutory scheme differ. While PEMA may enforce

the 911 Act, the panel opined, counties may also seek direction from courts as to their

roles in relation to PEMA and service providers. The panel concluded that, at a

minimum, counties are entitled to a court ruling on legal disputes. See id. at 510.

In holding that PEMA’s authority was nonexclusive, the panel took the

opportunity to examine Petty v. Hospital Service Association of Northeastern

Pennsylvania, 611 Pa. 119, 23 A.3d 1004 (2011), which held that that policyholders and

subscribers who had purchased medical insurance from a nonprofit corporation lacked

standing to maintain an action against the corporation under the statutory regime

governing nonprofit corporations. Distinguishing Petty, the panel couched the injury

alleged by the County in the present case as a “direct harm” and a “specific harm”

impacting the County’s ability to meet its obligations under the 911 Act, while noting that

the enactment did not specifically preclude the County from pursuing an action. See

CenturyLink, 163 A.2d at 512.

This appeal was allowed on Providers’ petition to consider the following question:

When the General Assembly plainly and unambiguously

grants the right to enforce a statute to a particular

Commonwealth agency, may a different plaintiff circumvent

this legislative directive by attempting to enforce the statute

through common-law damages claims?

Cnty. of Butler v. CenturyLink Commc'ns, LLC, ___ Pa. ___, 176 A.3d 852 (2017) (per

curiam). Our review of this legal issue is plenary. See, e.g., Yussen v. MCARE Fund,

616 Pa. 108, 117, 46 A.3d 685, 691 (2012).

In terms of the issue that was accepted by this Court for review, Providers

strongly differ with the Commonwealth Court’s determination concerning the viability of

common law claims. See, e.g., Brief for Appellants at 2 (“When the General Assembly

[J-74-2018] - 9

provides an express enforcement mechanism in a statute -- as it did in the 911 Act -- a

court may not create additional enforcement mechanisms.”); see also id. at 25 (“This

Court has long recognized that it is the General Assembly’s prerogative to decide how

its statutes shall be enforced.”). Providers claim that the strong weight of the prevailing

authority vindicates their position. See, e.g., id. at 15 (“For over 200 years,

Pennsylvania courts have held that, when the legislature expressly provides a means of

enforcing a statute, a party may not subvert that decision by trying to enforce the statute

through the common law.”). They also continue to stress the prohibitory language of

Section 1504 of the Statutory Construction Act. See 1 Pa.C.S. §1504.

Responding to the intermediate court’s reliance on the absence of any prohibitory

language in the 911 Act itself, Providers charge that this analysis “turns Pennsylvania

law on its head.” Brief for Appellants at 30. They contend that Pennsylvania law holds

that statutory remedies are presumed to be exclusive unless “the legislature explicitly

reveals in a statute that it does not intend for such exclusivity.” Id. (quoting White, 617

Pa. at 519, 53 A.3d at 733) (emphasis in original).

Turning to the panel’s discussion of the County’s obligations under the 911 Act

and its assertions of “direct harm” and “specific harm” arising from Providers’ alleged

violations of the statute, Providers’ explain that “[t]he violation of a statute and the fact

that some person suffered harm does not automatically give rise to a private cause of

action in favor of the injured person.” Id. at 3 (quoting Estate of Witthoeft v. Kiskaddon,

557 Pa. 340, 348, 733 A.2d 623, 627 (1999)); see also id. at 32 (“While allegations of a

direct injury may be necessary for a plaintiff to establish standing, they are not sufficient,

as Witthoeft makes clear, for that plaintiff to have a right of action to enforce a statute.”

(emphasis in original; citation omitted)). According to Providers, the harm alleged by

the County is no more direct or specific than injuries asserted in the many cases in

[J-74-2018] - 10

which Pennsylvania courts have held that a plaintiff cannot sue because the plaintiff

lacks statutory enforcement rights. See id. (citing, inter alia, D’Ambrosio v. Pa. Nat’l

Mut. Cas. Ins. Co., 494 Pa. 501, 511, 431 A.2d 966, 972 (1981) (holding that a

policyholder could not sustain an action against an insurance company based on an

allegation that emotional distress was caused by a bad-faith denial of an insurance

claim)).

Providers further criticize the Commonwealth Court’s decision to narrow its focus

to the Petty decision and maintain that the County lacks any constitutional right to

enforce the 911 Act. As to policy, they argue:

This case exemplifies the need for uniform administration of

the 911 Act. The central substantive issue in this lawsuit

(and [in] other county lawsuits) is that the pre-amendment

911 Act was silent as to how it applies to modern

telecommunications technologies that enable a single

physical line to transmit multiple telephone calls at once.

The General Assembly intended for PEMA to be able to fill

such gaps through regulations, which would provide

prospective guidance to the industry. Nothing in the 911 Act

confers on each of Pennsylvania’s 67 counties the authority

to try to exploit legislative silence by bringing common law

suits against an entire industry. As the Court of Common

Pleas correctly held, the General Assembly avoided this

unworkable result by “confer[ing] standing and exclusive

authority upon PEMA to enforce the provisions of the 911

Act, in relation to service providers.” Under the

Commonwealth Court’s holding, in contrast, each of

Pennsylvania’s counties is free to interpret the Act for itself.

This sort of patchwork enforcement of the 911 Act is the

opposite of what the General Assembly provided.

Id. at 40-41 (citations omitted). In terms of the allusion to “patchwork enforcement,”

Providers relate that the instant case is presently one of sixteen lawsuits that counties

have brought against more than eighty telephone companies throughout the state. See

id. at 1.

[J-74-2018] - 11

According to Providers, the General Assembly’s decision to impose on telephone

companies a statutory obligation to bill, collect, and remit 911 taxes and to select a

specific government entity to enforce that obligation raises no due process concerns. In

any event, Providers deem the constitutional argument to have been waived, as it was

raised by the County for the first time in a motion for reconsideration before the court of

common pleas.

Providers’ amici, the Chamber of Commerce of the United States of America and

the Pennsylvania Chamber of Business and Industry, also express concerns about

exposing telecommunications companies that are involuntarily enlisted to assist local

governments to disparate litigation in 67 counties across the Commonwealth. Further,

amici find the Commonwealth Court’s focus on the directness of relationships and harm

to be too amorphous to serve as a governing standard. To the contrary, amici urge the

decision as to where enforcement authority lies belongs to -- and for present purposes

has been made by -- the General Assembly.

Finally, Providers take the opportunity to defend the Commonwealth Court’s and

the county court’s interpretation of Section 5307(e)(1), as well as their treatment of Mr.

Mateff’s affidavit.4

4 Notably, the issue of statutory construction and the related matter of administrative-

agency deference were decided favorably to Providers at all previous stages of this

litigation, and the County did not lodge a cross-petition for allowance of appeal to

contest those determinations. These matters are also facially outside the scope of the

issue advanced in Providers’ petition for allowance of appeal and accepted for review,

which quite naturally is directed to the portion of the Commonwealth Court’s decision

that was adverse to Providers as petitioners and appellants. See CenturyLink, ___ Pa.

at ___, 176 A.3d at 852.

Nevertheless, commencing with the filing of its complaint, the County has intermittently

blended the statutory and common law theories in issue in this case. For example, as

noted, the County did not advance a pure statutory enforcement count in its complaint,

and thus, it arguably was not aggrieved by the intermediate court’s ruling on statutory

(continued…)

[J-74-2018] - 12

The County, on the other hand, criticizes the intermediate and county courts’

assessment of Section 5307(e)(1), maintaining that the statute expressly invested

authority in counties to enforce service providers’ obligations relative to the collection of

fees due under the 911 Act. In this regard, the County continues to rely upon Section

5307(e)(1)’s prescription that “[a]ction may be brought by or on behalf of the public

agency imposing the charge.” 35 Pa.C.S. §5307(e)(1) (superseded). The County

highlights that “action,” in this passage, harkens back to the statute’s previous reference

to “legal action to enforce the collection of any charge imposed under this chapter,” id.

(emphasis added); and that the “chapter” in question encompasses Section 5307,

governing county-imposed fees for traditional wireline service, as well as Section

5311.14, providing for fees associated with VoIP services. It is the County’s position

that it properly brought a legal action to enforce the collection by Providers of 911 fees

imposed under the relevant chapter of the 911 Act.

The County further contends that other provisions of the 911 Act also reflect its

authority to bring the present action. For example, the County explains that Section

5307(e)(3) accorded immunity to telephone service providers from lawsuits for

uncollectible 911 fees. The County posits, however, that no such immunity would be

necessary were providers not otherwise subject to such suits. Additionally, the County

(…continued)

interpretation and agency deference (given that all counts of the complaint remained

extant). Furthermore, the issue of statutory construction is an important one,

particularly given that we are advised that the present action is one of sixteen parallel

proceedings arising in various counties across the Commonwealth. Moreover, the

litigants on both sides have amply developed the respective positions on the matters.

And finally, as reflected in Part III, below, our analysis of the statutory and common-law

questions overlaps greatly, centering on legislative intent relative to enforcement.

Accordingly, we will address these questions on their terms.

[J-74-2018] - 13

notes that immunity only extended to “uncollectible amounts,” 35 Pa.C.S. §5307(e)(3)

(superseded), but there was no protection afforded relative to amounts that were

collectable. See Brief for Appellee at 16 (“The logical implication, then, is that the

General Assembly intended to permit lawsuits against service providers for failure to

collect and remit collectible amounts.” (emphasis added)). According to the County,

Providers’ contrary interpretation disregards the presumption that the Legislature

intended for all of the 911 Act to be effective. See 1 Pa.C.S. §1922(2).

The County also observes that, when the Legislature drafted the 911 Act, it

assigned defined terms to connote telephone companies’ customers, i.e., “telephone

subscribers” and “VoIP service customers.” 35 Pa.C.S. §5302 (superseded). The

County emphasizes that neither of these terms appeared in Section 5307(e)(1), thus, in

its view, undercutting the interpretation of the Commonwealth Court and the county

court. See Brief for Appellee at 18-19 (“If the legislature wanted to limit the County’s

enforcement power to lawsuits against [Providers’] customers, it would have used the

terms that it defined.”).

Further, the County relates that, in other parallel actions, several common pleas

courts have resolved preliminary objections favorably to local governments. The

County posits that the disparate treatment at the county-court level supports the

conclusion that Section 5307(e)(1) was ambiguous, and it maintains that any such

ambiguity should be resolved in favor of PEMA’s interpretation as reflected in Mr.

Mateff’s affidavit.

Additionally, the County purports to have the better position in terms of public

policy. In this regard, it urges that “it would be unreasonable to conclude that the

General Assembly intended to burden the County with the obligation to provide

emergency services throughout its jurisdiction, yet leave the County powerless to enjoin

[J-74-2018] - 14

and remedy significant interference with its ability to fund and provide those crucial

public services.” Brief for Appellee at 21.

To the extent that this Court would determine that the 911 Act did not authorize

the present lawsuit, the County asserts that the action remains viable based on the

contention that the 911 Act vested a constitutionally-protected property right in the

County. According to the County, Section 1504 can only apply to foreclose common

law actions if the General Assembly has created a remedy that is specific, exclusive,

and constitutionally adequate. See Brief for Appellee at 30 (citing Sch. Dist. of Borough

of W. Homestead v. Allegheny Cty. Bd. of Sch. Directors, 440 Pa. 113, 118, 269 A.2d

904, 907 (1970)). The County argues that subjugation to the discretion of an

administrative agency is an inadequate remedy, as evidenced by PEMA’s apparent

disinterest in the subject matter of the present litigation. In these regards, the County

also invokes the canon of constitutional avoidance. See 1 Pa.C.S. §1922(3) (codifying

the presumption that “the General Assembly does not intend to violate the Constitution

of the United States or of this Commonwealth”).

The County again cross-references other provisions of the 911 Act, this time as

demonstrating an implied enforcement power, to the degree that the Court would not

find an express one. For example, the County explains that Section 5304 of the 911 Act

provided that counties could execute “contracts, mutual aid agreements, cross-service

agreements and all other necessary documents which may be required in the

implementation of the county plan.” 35 Pa.C.S. §5304(a)(5) (superseded). Although

the 911 Act did not expressly authorize counties to enforce such contracts, agreements,

or other documents, the County asserts that such authority necessarily derives from the

structure of the 911 Act. See Brief for Appellee at 31.

[J-74-2018] - 15

Responding to the decisions referenced by Providers, the County indicates:

None of those cases involved a statutory framework that

imposed mandatory obligations on the plaintiff; none

involved a statutory framework that granted the plaintiff

some express enforcement authority; and none involved a

situation where the state agency allegedly possessing

exclusive enforcement authority under the statute declared

that the plaintiff did, in fact, have enforcement authority and

that the state agency had no interest in vindicating the

plaintiff’s rights.

Brief for Appellee at 36. Furthermore, the County defends the rationale of the

Commonwealth Court on its terms and argues that acceptance of Providers’ arguments

would leave the County without any practicable and effective remedy. Accord id. at 1

(“The rule that [Providers] propose would convert the General Assembly’s legislative

enactment from a funded mandate to an unfunded one.”).

Finally, the County and its amici -- the Counties of Beaver, Berks, Chester,

Clarion, Cumberland, Dauphin, Delaware, Washington, Westmoreland, and York -- rely

on a series of cases that stand for the general proposition that, where there is a right,

there is also a remedy. See, e.g., Willcox v. Penn Mut. Life Ins. Co., 357 Pa. 581, 600,

55 A.2d 521, 530-31 (1947).

II. Statutory Construction

The question of whether the 911 Act affords statutory enforcement authority to

the County relative to Providers -- like the issue specifically accepted for review -- is one

of law, over which this Court’s review is plenary. See Oliver v. City of Pittsburgh, 608

Pa. 386, 393, 11 A.3d 960, 964 (2011).

[J-74-2018] - 16

A. Ambiguity in Section 5307(e)(1)

At the outset, we agree with the County’s alternative position that Section

5307(e)(1) is ambiguous. On the one hand, contextually, we find that Providers’ reading

of the statute is the more natural one. See A.S. v. PSP, 636 Pa. 403, 418-20, 143 A.3d

896, 905-06 (2016) (stressing the role of context in statutory analysis). Under this

interpretation, “[a]ction” in the second sentence -- i.e., “[a]ction may be brought by or on

behalf of the public agency imposing the charge,” 35 Pa.C.S. §5307(e)(1) (superseded)

-- is understood to refer to the type of lawsuit discussed in the first sentence, that is,

“legal action to enforce the collection of any charge imposed under this chapter,” such

as might be taken by the “local exchange telephone compan[ies]” that are the

sentence’s subject. Id. Particularly since it would be unreasonable to presume that

such telephone companies would commence legal action against themselves, the

passage is most readily understood to address legal action against customers relative

to charges for which they are responsible and not actions against service providers in

their capacity as collectors involuntarily enlisted per the enactment. See 1 Pa.C.S.

§1922(1) (codifying the presumption that the General Assembly does not intend a result

that is absurd, impossible of execution, or unreasonable).5

Nevertheless, the second sentence of Section 5307(e)(1) entails some

shorthanding by the Legislature deriving from the first sentence, and the precise

predicate envisioned is not entirely clear. Thus, we find that it is possible for the second

sentence to be understood to invest broader enforcement authority in counties, as the

5The County’s argument that the immunity that was conferred by Section 5307(e)(3)

would be superfluous if counties were not empowered to bring suit overlooks PEMA’s

uncontested authority to otherwise pursue litigation. In other words, the immunity

accorded to Providers has little bearing on the question of who might be authorized to

pursue action against them, as long as some entity may do so.

[J-74-2018] - 17

“public agenc[ies]” imposing the charges and authorized to bring “[a]ction[s].” 35

Pa.C.S. §5307(e)(1) (superseded).6 Indeed, as the County reasonably observes, the

Legislature could have readily solidified the interpretation of Section 5307(e)(1)

advocated by Providers had it employed the defined terms that it devised to connote

telecommunication services customers.7 Given the ambiguity, we will employ tools of

statutory construction, see Oliver, 608 Pa. at 394, 11 A.3d at 965, albeit that our above

assessment of the context remains a substantial factor militating in Providers’ favor.

B. Deference to PEMA

Responding to the dispute concerning whether we should afford deference to

PEMA’s interpretation of Section 5307(e)(1) -- and while recognizing that the Court may

consider administrative interpretations in construing an ambiguous statute, accord 1

Pa.C.S. §1921(c)(8) -- we conclude that no deference is due here.

In this regard, we find little persuasiveness in the content of the affidavit. As the

common pleas court stressed, under the 911 Act, PEMA was invested with the power

and charged with the duty to take the actions necessary to implement, administer, and

6The term “public agency,” under the 911 Act, included political subdivisions. See 35

Pa.C.S. §5302 (superseded).

7 The county court’s focus on the word “charge” in Section 5307(e)(1) is not completely

dispositive, in our view, since the statute addressed “collection” of charges, an activity in

which Providers did engage. Moreover, while we agree with the Commonwealth Court

that the most natural reading of the statute does not connote billing, the statute does

refer to charges “imposed under this chapter,” and not only charges appearing on billing

statements transmitted to customers by service providers. Accordingly, to the degree

that the second sentence of Section 5307(e)(1) can be read to refer back to charges

under the statute in the abstract -- rather than such collection activities as might be

undertaken by local exchange telephone companies -- it can be understood to

encompass broader authorization.

[J-74-2018] - 18

enforce the enactment’s provisions. See 35 Pa.C.S. §5303(a)(12) (superseded). To

this end, PEMA was also afforded the power and, again, tasked with the obligation, to

adopt necessary rules and regulations.

PEMA should be no less aware than we are that there are many pending actions

by counties alleging that critical local emergency communications services were being

substantially underfunded on account of service providers’ alleged failures to adhere to

requirements of the 911 Act. In our considered judgment, regardless of whether the

counties enjoy enforcement authority under the statute, the statute very clearly imposes

the obligation squarely upon PEMA. To the degree that PEMA has taken no action to

evaluate the allegation of substantial underfunding of emergency communications

services, it seems rather clear that the agency is disregarding its duties under its own

enabling legislation.8 Indeed, the agency’s position that it has no interest whatsoever in

pervasive claims by local government units that critical government services within

PEMA’s purview are being underfunded in violation of the 911 Act is very difficult to

understand.

Finally, the practice of according deference to administrative agencies is

premised on respect for the exercise of agency expertise. See, e.g., Nationwide Ins.

Co. v. Schneider, 599 Pa. 131, 145, 960 A.2d 442, 450 (2008) (citing Popowsky v. PUC,

594 Pa. 583, 606, 937 A.2d 1040, 1054 (2007)). Here, Mr. Mateff’s affidavit fails to

demonstrate an understanding of PEMA’s duties under the 911 Act or to offer any sort

of persuasive explanation for the agency’s position grounded in agency expertise.

8 Certainly, PEMA would have no obligation to take further action should its judgment,

after reasonable review, be that service providers were complying with the 911 Act. Mr.

Mateff’s affidavit, however, offers no suggestion that PEMA has undertaken any such

review. Rather, he has explained that it is PEMA’s position that the counties should

simply be left to their own devices relative to their concerns about the amount of funding

collected by the service providers and distributed to the counties.

[J-74-2018] - 19

Accordingly, and again, PEMA’s position, as related by Mr. Mateff, will be accorded no

deference by this Court.

C. Other Principles of Statutory Construction Pertaining to Section 5307(e)(1)

When analyzing an ambiguous statute, a reviewing court is authorized to

consider relevant principles of construction, including the occasion and necessity for the

statute, the object to be attained, and the consequences of particular interpretations.

See 1 Pa.C.S. §1921(c)(1), (4), (6). There are also various presumptions that may

apply. See id. §1922.

In terms of the presumption of exclusivity advanced by Providers,9 we agree with

the County that the cases upon which they rely are more nuanced than Providers

portray. For example, Providers’ brief repeatedly intermixes statutory enforcement

powers of governmental units with statutory remedies made available to individuals who

otherwise lack any power of enforcement. See, e.g., Brief for Appellants at 30 (citing

White, 617 Pa. 519, 53 A.3d at 733, a case emphasizing the exclusiveness of statutory

remedies, for the proposition that statutory enforcement powers are also necessarily

exclusive). However, we do not read any of the decisions cited by Providers as holding

that, when the Legislature selects an enforcement agency to supervise regulation of the

statutory scheme at large, the authority is universally exclusive relative to various

governmental units which may be involved in discrete matters pertaining within that

regime.10 Although we find this factor (the General Assembly’s explicit prescription for

9 The arguments about exclusivity appear in the portion of Providers’ brief discussing

common law remedies, but they are also relevant to an assessment of Section

5307(e)(1) via principles of statutory construction.

10By way of example, Providers cite Lurie v. Republican All., 412 Pa. 61, 192 A.2d 367,

369 (1963), which concerned an attempt by two individual taxpayers to advance an

equity action seeking an accounting by a de facto political action committee. In our

(continued…)

[J-74-2018] - 20

enforcement responsibility in PEMA) to militate in Providers’ favor,11 we do not agree

that it creates a dispositive presumption in the construction of an ambiguous statutory

regime.

On the other hand, the principle that, where there is a right, there should also be

a remedy, referenced by the County and its amici, is equally subject to exception. See,

e.g., Salazar v. Allstate Ins. Co., 549 Pa. 658, 670, 702 A.2d 1038, 1044 (1997) (holding

that a remedy was unavailable to an insured for violation of a particular statutory duty on

the part of an insurer). Plainly, the Legislature enjoys additional latitude in the

prescription for remedies in instances in which it establishes a new duty or interest that

is purely a creation of statute and concomitantly determines the extent of any available

enforcement authority and/or remedial recourse. See, e.g., id. In this regard, there

(…continued)

judgment, the case has limited bearing on a matter involving competing claims by

governmental instrumentalities to enforcement authority relative to the funding for an

integral emergency communications system. Moreover, in Lurie, while the Court relied

on the general presumption that statutory remedies are exclusive, it also took the

opportunity to evaluate the adequacy of the remedy provided. See id. at 63-64, 192

A.2d at 369.

11 Similarly, as Providers highlight, the Legislature’s failure to grant enforcement

authority in the provision of the 911 Act specifying the “[p]owers and duties” of counties

suggests against implying enforcement authority based on ambiguous language. 35

Pa.C.S. §5304(a) (superseded). And, notably, this omission stands in contrast to the

specification of PEMA’s “[p]owers and duties,” including “[t]o take the actions necessary

to implement, administer and enforce the provisions of this chapter.” Id. §5303(a)(12)

(emphasis added) (superseded). See generally Commonwealth v. Berryman, 437 Pa.

Super. 258, 267, 649 A.2d 961, 965 (1994) (“Where a legislature includes specific

language in one section of a statute and excludes it from another, that language should

not be implied where excluded.”).

[J-74-2018] - 21

simply is no underlying vested entitlement to be protected, since the only interest or

entitlement derives from the statute itself.12

The current scenario concerns an interest, on the part of the County, that is

entirely statutory and was created at the same time that duties were imposed on

Providers. Significantly, moreover, under the 911 Act, service providers were “‘captive’

co-participants” in that they were required to perform under express statutory mandates

with “no contract, no business transaction, and no reciprocation.” Hamilton Cty.

Emergency Commc’ns Dist. v. BellSouth Telecommc’ns LLC, 852 F.3d 521, 532 (6th

Cir. 2017). We are circumspect about the notion that the Legislature would have

conscripted service providers into performing a governmental service -- and then

knowingly subjected them to disparate actions in 67 counties throughout the

Commonwealth pertaining to the new statutory duties involuntarily imposed -- without

clearly specifying its intentions in this regard. Instead, it is more likely that the

Legislature contemplated that any enforcement exercised against service providers

would be undertaken by PEMA in a centralized fashion, consistent with the agency’s

duties explicitly specified in the statute. See 1 Pa.C.S. §1504.13

12There is presently no need for us to discuss the range of circumstances under which

a constitutionally protected, vested interest might arise from the creation of a new right

or duty in a statute. Rather, our present analysis is directed to the circumstances at

hand, involving the Legislature’s conferral of a funding to subordinate governmental

units subject to terms and conditions contemplated by the Legislature, as well as the

associated enlistment of private companies to assist in the endeavor.

13 Our assessment, in this regard, is consistent with the “[e]nforcement” section of the

911 Act, per which the General Assembly invested in PEMA the “power and duty to

enforce and execute” the terms of the Act, including the right to “institute injunction,

mandamus or other appropriate legal proceedings to enforce this chapter and

regulations promulgated under this chapter.” 35 Pa.C.S. §5311.13 (emphasis added)

(repealed). Again, there was no corollary provision pertaining to counties.

(continued…)

[J-74-2018] - 22

As to the principle of constitutional avoidance referenced by the County, we find

that it does not pertain here. Again, the County had no vested entitlement to the

funding stream that was made available to it under the 911 Act that might foreclose the

Legislature from making reasonable policy judgments, and balancing respective

interests, by providing for centralized enforcement in the governing enactment itself.

Indeed, one purport of the County’s argument is that the General Assembly simply

could not centralize enforcement over a funding scheme benefitting counties in a state

agency without offending the property rights of local government. Even putting aside

the substantial question concerning whether subordinate government units may assert

property rights as such arising from funding mechanisms designed by the Legislature,

we differ with the position that such rights could be advanced so as to constrain

reasonable legislative policy judgments concerning enforcement.

After balancing the relevant considerations, and consistent with the rulings of the

Commonwealth Court and the court of common pleas, we hold that Section 5307(e)(1)

did not invest counties with the authority to pursue enforcement of new duties

involuntarily imposed on service providers under the 911 Act.14

(…continued)

As previously noted, the County explains that it had the express power to enter into

contracts for the implementation of a plan under the 911 Act. See 35 Pa.C.S.

§5304(a)(5) (superseded). Thus, it urges, to make such agreements meaningful it must

be afforded some implied enforcement authority. Of course, the duties arising under

contracts are not merely creatures of statute; although the statute serves as an enabling

platform, the contract is a voluntary undertaking on the part of the participants that itself

serves as the predicate for enforcement. As discussed above, the same is not true of

the collection responsibilities involuntarily imposed upon service providers per the 911

Act.

14 As an aside, we note that the General Assembly has removed even Section

5307(e)(1)’s more limited authorization from the statute. See 35 Pa.C.S. §5306.2(c)

(allocating this power as well to PEMA).

[J-74-2018] - 23

III. The County’s Common Law Claims

Based on essentially the same considerations discussed above, we also

conclude that the Legislature did not intend to sanction the advancement by counties of

common law claims to enforce the new duties that were imposed involuntarily on

service providers in the 911 Act.

Some jurisdictions have suggested that, where a legislature creates a new right

or duty that “is wholly the creature of statute,” common law claims are inapposite. Sch.

Comm. of Boston v. Reilly, 285 N.E.2d 795, 798 (Mass. 1972). From our point of view,

however, the matter generally is one of legislative intent to be discerned, ideally, from

the plain language of the enactment under review or, if necessary, via the application of

principles of statutory construction.

Responding to the Commonwealth Court’s analysis, there is no question that the

County’s interest here is substantial and that the harm to it, if its underlying legal

position is correct, may be great. Nevertheless, in our view, the Legislature has

balanced counties’ interests against those of other co-participants enlisted under the

911 Act and provided sufficient indicia evincing its intention to centralize enforcement

authority in the relevant state agency.15 Although we realize that the County may have

been disadvantaged by PEMA’s apparent failure to act, this unfortunate circumstance

does not control the judicial construction of a legislative enactment.

15The decision in Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983

A.2d 652 (2009), is distinguishable, inter alia, in that the obligations in issue were not

purely imposed involuntarily by statute but, rather, arose under a contractual overlay.

See id. at 210-12, 983 A.2d at 659; see also supra note 13.

[J-74-2018] - 24

The order of the Commonwealth Court is reversed, and the matter is remanded

for reinstatement of the order of the common pleas court.

Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.

Justices Todd and Wecht file concurring opinions.

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