Com., by Creamer v. Monumental Properties, Inc.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before JONES; ROBERTS; POMEROY, J., filed a dissenting opinion in which JONES; POMEROY; JONES
• Citation: 459 Pa. 450,329 A.2d 812
• Decision Date: 05 December 1974
• Parties: COMMONWEALTH of Pennsylvania, By J. Shane CREAMER, Attorney General, Appellant, v. MONUMENTAL PROPERTIES, INC., et al.

Page 812

329 A.2d 812 459 Pa. 450 COMMONWEALTH of Pennsylvania, By J. Shane CREAMER, Attorney
General, Appellant,
v.
MONUMENTAL PROPERTIES, INC., et al. Supreme Court of Pennsylvania. Dec. 5, 1974.

Page 813

[459 Pa. 454] Lawrence Silver and Allen C. Warshaw, Deputy Attys. Gen., for appellant.

Lee C. Swartz, Hepford, Zimmerman & Swartz, Patricia F. Kemp, Harrisburg, Milton S. Lazaroff, Samuel Lander, Philadelphia, Joseph A. Klein, Harrisburg, Joseph A. Damico, Jr., Fronefield, duFuria & Petrikin, Media, Thomas M. Kittredge, Philadelphia, Myron B. Markel, Pittsburgh, John P. McKelligott, Obermeyer, Rebmann, Maxwell & Hippel, Sigmund H. Steinberg, Philadelphia, Patrick M. O'Donnell, Pittsburgh, Samuel P. Kamin, Pittsburgh, John Havas, Harrisburg, Leonard M. Mendelson,

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Hollinshead & Mendelson, Pittsburgh, for appellees.

Calvin J. Collier, Gen. Counsel, Lee H. Simowitz, Washington, D.C., for Federal Trade Commission as amicus curiae.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This appeal presents questions of statutory interpretation concerning the applicability of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, §§ 1--9, 73 P.S. §§ 201--1 to 201--9 (1971).

The Commonwealth, pursuant to the Consumer Protection Law, initiated an original action in the Commonwealth Court against twenty-five landlords who use printed form leases allegedly in violation of the Law, and four companies which print and sell these form leases. Three violations of the Consumer Protection Law are asserted. First, because the leases employ, according to the complaint, 'archaic and technical language beyond the easy comprehension of the consumer of average intelligence,'[459 Pa. 455] it is maintained that the use of such leases constitutes an unfair or deceptive act or practice. The complaint next alleges that the inclusion of certain provisions in the printed form leases is unfair and deceptive. The provisions, the use of which is challenged by the Commonwealth, are '(a) lessor's 'right' to distrain for rent, (b) lessee's unconditional warrant of attorney, (c) lessor's unconditional 'right' to confess judgment, (d) lessee's unconditional waiver of unexplained rights including statutory rights, (e) lessor's unlimited discretion to accellerate (sic) lessee's rent, (f) lessee's waiver of claim for lessor's negligence, for himself and for third parties, (g) lessor affidavit of default is conclusive evidence of default, (h) lessee's waiver to oppose 'amicable' action in ejectment, (i) lessee's waiver of demand, notice, right of appeal, to a stay and standing to open or strike judgments.' Finally, the failure to include in the form leases notice to the tenant of his statutory rights ¹--some of which are nonwaivable ²--is, according to the Commonwealth, misleading and confusing.

Preliminary objections were filed by sixteen defendants, answers by five, and no responsive pleading by two. The preliminary objections raised the lack of jurisdiction under the Consumer Protection Law, failure to state a cause of action, the existence of an adequate remedy at law, and certain procedural challenges. The Commonwealth Court found it convenient, useful, and desirable to treat the pleadings as if there were a single preliminary objection. Commonwealth v. Monumental Properties, Inc., 10 Pa.Cmwlth. 596, 602, 314 A.2d 333, 335 (1973).

[459 Pa. 456] Without ruling on any of the procedural objections of appellees, ³ the Commonwealth

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Court held that the leasing of housing did not fall within the purview of the Consumer Protection Law. It then proceeded, apparently on the assumption that leasing is covered by the Law, to consider whether the Commonwealth otherwise stated a cause of action; it held that the Commonwealth had not. Next, the court concluded that the printing of form leases by the four 'form sellers' could be a violation of the Consumer Protection Law, but that in the instant case there were 'not sufficient allegations of clear violation to support the complaint and that it (with respect to the form sellers), therefore, must be dismissed.' 10 Pa.Cmwlth. at 617, 314 A.2d at 343. Continuing, the Commonwealth Court stated that it was not empowered to grant the relief requested by the Commonwealth. It then sustained the preliminary objections and dismissed [459 Pa. 457] the Commonwealth's complaint with respect to all defendants.

The Commonwealth appealed. ⁴ For reasons which follow, we affirm in part and vacate and remand in part.

I

The dominating question is whether the Consumer Protection Law covers allegedly unfair or deceptive practices in connection with the leasing of housing. We hold it does. Our review must begin at the beginning, with the language of the statute.

Section 3 states the legislative direction in clear and expansive language.

'Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.'

Despite this embracive mandate, appellees contend that their use of printed form leases is not covered by the Consumer Protection Law. The argument advanced, and accepted by the Commonwealth Court, is that the business of leasing housing is excluded from the Law's scope because it is not 'the conduct of any trade or commerce.' We cannot agree.

A

The Legislature sought by the Consumer Protection Law to benefit the public at large by eradicating, among other things, 'unfair or deceptive' business practices. ⁵ Just as earlier legislation was designed to [459 Pa. 458] equalize the position of employer and employee ⁶ and the position of insurer and

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insured, ⁷ this Law attempts to place on more equal terms seller and consumer. These remedial statutes are all predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace. ⁸ Instantly, the Legislature strove, by making certain modest adjustments, to ensure the fairness of market transactions. No sweeping changes in legal relationships were occasioned by the Consumer Protection Law, since prevention of deception and the exploitation of unfair advantage has always been an object of remedial legislation. ⁹

[459 Pa. 459] Although the Consumer Protection Law did articulate the evils desired to be remedied, the statute's underlying foundation is fraud prevention. This Court emphatically stated in Verona v. Schenley Farms Co., 312 Pa. 57, 64, 167 A. 317, 320 (1933), '(a)s a statute for the prevention of fraud, it must be liberally construed to effect the purpose. . . .' Accord, Commercial Banking Corp. v. Freeman, 353 Pa. 563, 567, 46 A.2d 233, 235 (1946); Alford v. Raschiatore, 163 Pa.Super. 635, 63 A.2d 366 (1949); Nolan v. Jones, 67 Pa.Super. 430 (1917), aff'd, 263 Pa. 124, 106 A. 235 (1919); Rudy v. Friedman, 54 Pa.D. & C.2d 628 (C.P. Delaware County 1971). ¹⁰ See generally 3 J. Sutherland, Statutes and [459 Pa. 460] Statutory Construction § 70.01 (C. Sands ed. 1974); 1 W. Blackstone, Commentaries *88--89.

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Since the Consumer Protection Law was in relevant part designed to thwart fraud in the statutory sense, it is to be construed liberally to effect its object of preventing unfair or deceptive practices.

B

Necessarily, we reject the Commonwealth Court's conclusion that the Consumer Protection Law must be strictly construed. The Commonwealth Court held that the statute was penal in nature and therefore required a strict construction. This characterization ignores settled case law, e.g., Commercial Banking Corp. v. Freeman, supra; Verona v. Schenley Farms Co., supra; Commonwealth v. Shaleen, 215 Pa. 595, 64 A. 797 (1906), and the clear language of the Statutory Construction Act, 1 Pa. S. § 1928 (Special Pamphlet, 1973).

To reach its result the hearing court focused on section 8 of the Consumer Protection Law. That section limits to $5000 the amount of fine payable upon violation of an injunction issued under section 4.

'(B)ecause the Act in question permits the Commonwealth to petition for civil penalties up to $5,000 (if an injunction is issued by this Court as a result of the present action) . . . the Act contains a penal provision, and therefore must be strictly construed.'

Commonwealth v. Monumental Properties, Inc., 10 Pa.Cmwlth. 596, 607, 314 A.2d 333, 337--338 (1974).

We, however, need not address the question whether section 8 is truly a penal provision, ¹¹ for even assuming arguendo that it is, the Commonwealth Court's conclusion cannot stand. The logical flaw in the reasoning of the hearing court is that, if a statute 'contains' a penal provision, the entire statute must be strictly construed. [459 Pa. 461] This notion is strikingly at odds with 1 Pa. S. § 1928 (Special Pamphlet, 1973). Section 1928 directs that although penal provisions are to be strictly construed, all others 'shall be liberally construed to effect their objects and to promote justice.' Id. § 1928(c). The legislative emphasis is on provisions, not statutes in their entirety. Our cases are in accord. See Commercial Banking Corp. v. Freeman, 353 Pa. at 567, 46 A.2d at 235--236; Verona v. Schenley Farms Co., 312 Pa. at 65, 167 A. at 320; Commonwealth v. Shaleen, 215 Pa. at 597, 64 A. at 798; Koch's Estate, 5 Rawle 338, 340 (Pa.1835); Commonwealth v. Yaste, 166 Pa.Super., 275, 70 A.2d 685 (1950); Commonwealth v. Hagy, 58 Lancaster L.Rev. 47, 49 (Pa.Q.S. Lancaster County 1962).

Here, we are concerned with the effect of provisions which are in no sense penal. Section 3 in sweeping language declares the concerns of the Legislature, and section 2 further and more fully defines those concerns. These expansive provisions reflect the legislative judgment that unfairness and deception in all consumer transactions must be halted. These sections of the Consumer Protection Law, in accordance with the legislative intent, are to be...