# Pennsylvania Department of Banking v. NCAS of Delaware, LLC

> Commonwealth Court of Pennsylvania · April 28, 2010 · 995 A.2d 422

URL: https://www.frixlaw.com/law-library/cases/9712018

## Case

- **Full name:** PENNSYLVANIA DEPARTMENT OF BANKING, and Commonwealth of Pennsylvania, Acting by Attorney General Thomas W. Corbett, Jr., Plaintiffs v. NCAS OF DELAWARE, LLC, D/B/A Advance America Cash Advance Centers, and Advance America Cash Advance Centers, Inc., Defendants
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** April 28, 2010
- **Citations:** 995 A.2d 422; 2010 Pa. Commw. LEXIS 212; 2010 WL 1729740
- **Precedential status:** Published
- **Opinion:** Concurrence by Leavitt
- **Judges:** Leadbetter, McGinley, Pellegrini, Jubelirer, Simpson, Leavitt, Butler
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712018

## How later opinions describe it (automated extraction)

- explaining that “the LIPL does not invalidate, in its entirety, a loan agreement with a usurious interest rate,” but instead only renders the loan agreement voidable as to the excess interest
- applying “deceptive” standard for catchall provision and outlining split in interpretations of statute by Commonwealth and Superior Courts

## Opinion text

CONCURRING OPINION BY
Judge LEAVITT.
I join the majority’s opinion, which I admire for its thorough and well reasoned analysis. I write separately to explain further why the Attorney General does not enjoy parens patriae authority in a usury case to seek damages on behalf of individual citizens, who may wish to pursue such actions on their own behalf.
The powers of the Attorney General begin with the Pennsylvania Constitution, and it states, in relevant part, as follows:
An Attorney General shall be chosen by the qualified electors of the Commonwealth ...[.] [H]e shall be the chief law *448 officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.
Pa. Const, art. IV, § 4.1 (emphasis added). The law that imposes those powers and duties is the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 — 732-506. Further, that act is the exclusive source of the Attorney General’s powers; stated otherwise, the Attorney General’s powers and duties have no basis in the common law, which is the source of the parens patriae doctrine. 1
This was not always the case. Article IV, section 4.1 was added to the Pennsylvania Constitution by amendment in 1978. Prior to that amendment, the Attorney General was appointed by the governor; he, or she, served as a member of the governor’s cabinet as head of the Department of Justice. Then, the Attorney General’s powers and duties were set forth in the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§ 51-732, and they were augmented by common law powers. In a landmark case, Minerd v. Margiotti, 325 Pa. 17 , 188 A. 524 (1936), our Supreme Court expounded at some length on the historic antecedents of the Attorney General’s common law power. It concluded that Pennsylvania’s Attorney General
is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right ... to supersede and set aside the district attorney when in the Attorney General’s judgment such action may be necessary.
Id. at 30-31 , 188 A. at 530 (emphasis added).
The Attorney General’s common law powers were not limited to the power to supersede a district attorney. The Attorney General also enjoyed the common law power to intervene in charitable trust cases on behalf of the citizens of Pennsylvania. See, e.g., Commonwealth v. Barnes Foundation, 398 Pa. 458, 467 , 159 A.2d 500, 505 (1960) (holding that the Attorney General enjoys the common law power to participate in litigation involving charitable trusts).
In 1978, our Supreme Court overruled Minerd , finding “the reasoning in this line of decisions to be erroneous.... ” Commonwealth v. Schab, 477 Pa. 55, 60 , 383 A.2d 819, 821 (1978). Accordingly, the Supreme Court held that the Attorney General lacked the power to supersede a district attorney in a criminal law enforcement matter. That same year the voters adopted Article IV, section 4.1 to institute the selection of our Attorney General by election, as opposed to gubernatorial appointment.
Thereafter, the newly elected Attorney General attempted to supersede a district attorney in a criminal case, arguing that the holding in Schab was no longer viable in light of the constitutional amendment. Specifically, in Commonwealth v. Carsia, *449 512 Pa. 509 , 517 A.2d 956 (1986), the Attorney General argued that the
Commonwealth Attorneys Act is but one source of the Attorney General’s powers, and that, moreover, the language of Article 4, section 4.1, of our state constitution and that of the Act evidence an intent to retain the common law powers of the Attorney General.
Id. at 512 , 517 A.2d at 957-958 (emphasis added). The Supreme Court soundly rejected the claim that the Pennsylvania Constitution conferred any common law powers upon the elected Attorney General.
Our Supreme Court explained the meaning of Article IV, section 4.1 of the Pennsylvania Constitution as follows:
In our view, the use of the language “as may be imposed” clearly shows an extension of power to the legislature to statutorily define and regulate the powers and duties of the Attorney General. The General Assembly utilized that grant of constitutional powers in 1980, and enacted the Commonwealth Attorneys Act. That Act made it clear that the powers of the state Attorney General are no longer an emanation from some bed of common law precepts, but are now strictly a matter of legislative designation and enumeration.
Id. at 513 , 517 A.2d at 958 (emphasis added). In sum, under the Pennsylvania Constitution, the powers of the Attorney General are “strictly a matter of legislative designation and enumeration.” Id.
In reaching this conclusion, the Supreme Court relied expressly upon a report of the Joint State Government Commission that had been prepared on the legislation needed to establish the scope and powers of the new Office of Attorney General. The Commission’s final report explained that
[IJegislation enacted by the General Assembly is the exclusive source of the powers and duties of the elected Attorney General pursuant to Article IV, Section 4.1....
Joint State Gov’t Comm’n, Office Of Elected Attorney GeneRal, Final RepoRT 4 (1978). The legislation that was the subject of the Joint State Government Commission’s report became the Commonwealth Attorneys Act.
The Commonwealth Attorneys Act does not invest the Attorney General with the parens patriae power that may have existed as a matter of common law prior to the Schab decision. However, the Act has invested the Attorney General with this type of power, ie., the power to initiate actions on behalf of citizens, in two circumstances. The Attorney General is invested with authority to intervene in charitable matters on behalf of citizens. 71 P.S. § 732-204(c). 2 Likewise, the Attorney General is authorized to represent the Commonwealth “and its citizens in any action brought for violation of the antitrust laws of the United States and the Commonwealth.” Id. (emphasis added). The Commonwealth has not enacted a state antitrust statute, as expected. 3
*450 In Commonwealth v. TAP Pharmaceutical Products, Inc., 885 A.2d 1127 (Pa.Cmwlth.2005) (TAP II), the Attorney General filed suit against pharmaceutical companies under the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 — 201-9.3. The Attorney General asserted that he had parens patri-ae authority to pursue damages on behalf of Pennsylvania’s citizens for “common law claims and claims under [the Unfair Trade Practices and Consumer Protection Law].” Attorney General Brief, TAP II, at 48. In preliminary objections, the respondents asserted that the Attorney General had improperly invoked parens patriae powers because he had not identified a sovereign interest in the challenged conduct, i.e., overpricing. Finding that the Attorney General’s complaint identified a quasi-sovereign interest in his claim for damages, we overruled the respondents’ preliminary objections.
In considering the respondents’ preliminary objections in TAP II, this Court relied upon the parens patriae analysis of Snapp v. Puerto Rico, 458 U.S. 592 , 102 S.Ct. 3260 , 73 L.Ed.2d 995 (1982), the leading case on the scope of a state’s parens patriae authority. Briefly, the United States Supreme Court held in Snapp that, generally, a state may not sue on behalf of its citizens without showing that a separate sovereign interest will also be served. Id. at 607 , 102 S.Ct. 3260 . In this case, the majority concludes, correctly, that the Attorney General’s complaint exceeds the bounds of parens patriae as enunciated in Snapp because the sovereign interest is not implicated in the complaint.
Snapp explains the ambit of a state’s parens patriae powers. However, it does not require a state to exercise parens pat-riae authority on behalf of its citizens, and it does not identify which state official will exercise those powers. These questions can only be determined by each state in accordance with its own constitution. In Pennsylvania, our Constitution has limited the Attorney General’s powers to those established by “legislative designation and enumeration.” Carsia, 512 Pa. at 513 , 517 A.2d at 958 . 4 The legislature has authorized the Attorney General to bring suit “on behalf of citizens,” a parens patriae power, but only for violations of the Federal antitrust laws. 5 Neither the Commonwealth Attorneys Act nor any of Pennsylvania’s usury laws authorize the Attorney General to seek damages “on behalf of citizens” for violations of our usury statutes. 6
*451 The General Assembly has charged the Attorney General with responsibility for enforcement of the Commonwealth’s usury laws. Notably absent from that authority is the power to recover damages on behalf of individual borrowers. Absent this legislative “designation and enumeration,” the conclusion that the Attorney General lacks parens patriae authority in this case could not be clearer given our Supreme Court’s holding in Carsia, 512 Pa. 509 , 517 A.2d 956 .
. The origin of the parens patriae doctrine can be traced to medieval England. Conceptually, the doctrine is derived from the king's royal prerogative to act as the guardian of an individual unable to protect his own interests. The attorney general, at common law, was the chief legal representative of the sovereign in the courts and was the only officer who could prosecute on behalf of the people in order to protect the interests of the crown. As in England, a colonial attorney general, acting as the chief legal officer of a British colony, enjoyed broad common law power to bring suit in parens patriae on behalf of colonial citizens. Jay L. Himes, State Parens Patriae Authority: The Evolution of the State Attorney General's Authority 1-2, 18-19 (The Institute for Law and Economic Policy Symposium paper, Apr. 23, 2004), available at http://www. abanet.org/antitrusl/at-committees/at-state/ pdf/publications/other-pubs/parens.pdf.
. It states, in relevant part:
The Attorney General shall represent the Commonwealth and all Commonwealth agencies and upon request, the Departments of Auditor General and State Treasury and the Public Utility Commission in any action brought by or against the Commonwealth or its agencies, and may intervene in any other action, including those involving charitable bequests and trusts or the constitutionality of any statute.
71 P.S. § 732-204(c) (emphasis added).
. At the time the Joint State Government Commission filed its report, the General Assembly was considering 1977 House Bill 845, intended to create intrastate antitrust enforcement authority for the Attorney General. Joint State Gov't Comm’n, Office Of Elected *450 Attorney General, Final Report 11 (1978). The bill died in committee and never passed the House. Pennsylvania General Assembly, Bill Information, Regular Session 1977-1978, House Bill 845, available at http://www.legis. state.pa.us/cfdocs/billinfo/billinfo.cfm?syear= 1977&sind=0&body = H&type=B&BN= 0845.
.State agencies, which are creatures of statute, do not enjoy common law powers. See Aetna Casualty and Surety Company v. Insurance Department, 536 Pa. 105, 118 , 638 A.2d 194, 200 (1994) (holding that an agency can "only exercise those powers which have been conferred upon it by the Legislature in clear and unmistakable language”) (quotation omitted).
. Should Pennsylvania ever enact a state antitrust law, the Attorney General’s power to bring suit on behalf of citizens will extend to that law as well.
. The usury statutes at issue in this appeal are: Consumer Discount Company Act, Act of April 8, 1937, P.L. 262, as amended, 7 P.S. §§ 6201-6219; Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 — 201-9.3; the act commonly known as the "Loan Interest and Protection Law,” Act of January 30, 1974, P.L. 13, as amended, 41 P.S. §§ 101-605.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712018. Public record. Not legal advice.