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COMMONWEALTH PENNSYLVANIA ACTING BY ATTORNEY GENERAL J. SHANE CREAMER v. PENNSYLVANIA APSCO SYSTEM (08/30/73)

decided: August 30, 1973.

COMMONWEALTH OF PENNSYLVANIA ACTING BY ATTORNEY GENERAL J. SHANE CREAMER, PLAINTIFF,
v.
PENNSYLVANIA APSCO SYSTEM, INC. AND DANIEL GOLDSTEIN, INDIVIDUALLY AND AS PRESIDENT OF PENNSYLVANIA APSCO SYSTEM, INC. AND MARK MYERS, INDIVIDUALLY AND AS TREASURER OF PENNSYLVANIA APSCO SYSTEM, INC. AND KENNETH L. MISKINIS, INDIVIDUALLY AND AS VICE PRESIDENT OF PENNSYLVANIA APSCO SYSTEM, INC., DEFENDANTS



Original jurisdiction in case of Commonwealth of Pennsylvania acting by Attorney General J. Shane Creamer v. Pennsylvania APSCO System, Inc., and David Goldstein, Individually and as President of Pennsylvania APSCO System, Inc. and Mark Myers, Individually and as Treasurer of Pennsylvania APSCO System, Inc. and Kenneth L. Miskinis, Individually and as Vice President of Pennsylvania APSCO System, Inc.

COUNSEL

Manuel Grife, with him Gever & Grife, for defendants.

Jeffrey A. Ernico, Deputy Attorney General, for plaintiff.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 10 Pa. Commw. Page 139]

This case is before us on preliminary objections to the Commonwealth's complaint alleging violations of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, 73 P.S. § 201-1 et seq. The preliminary objections as filed cover

[ 10 Pa. Commw. Page 140]

    a request for a more specific pleading, striking off the complaint because it contains impertinent matter and a demurrer. The parties agreed to a stipulation of facts as to the organization and structure of the APSCO System. The use of the stipulation was expressly limited to the argument on these preliminary objections.

In the statement of questions involved, the briefs filed, and in oral argument, the parties have restricted themselves to arguing the demurrer and have neither briefed nor argued the questions of a more specific complaint or impertinent matter alleged. Accordingly, we will consider the preliminary objections with regard to specificity and impertinent matter as having been abandoned and will consider only the matter of the demurrer.

The first question raised is stated to be: "I. Is the Unfair Trade Practices and Consumer Protection Law so vague and indefinite as to violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution?" This question we must answer in the negative. In Commonwealth v. Hush-Tone Industries, Inc., 4 Pa. Commonwealth Ct. 1, A.2d (1971), Judge Rogers discusses the history of the Unfair Trade Practices and Consumer Protection Law. With appropriate citations of authority, the opinion explains and the decision of this Court held that the Act was enforceable and an injunction issued.

The second question raised is: "II. Does the Court have the authority to order restitution under the Unfair Trade Practices and Consumer Protection Law?" Again, we must answer this question in the negative. In Hush-Tone, as in this case, in addition to the request for an injunction which was granted, the Commonwealth requested restitution be ordered to Pennsylvania purchasers. Without deciding this Court did not

[ 10 Pa. Commw. Page 141]

    have authority to do so, the request was denied, and it was pointed out that individual purchasers had adequate remedies at their disposal. Here, after full argument, we are prepared to and do hold ...


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