ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-223)
Before Rosenn, Garth and Sloviter, Circuit Judges.
This case requires us to decide whether a per capita tax levied by a Pennsylvania taxing district is a "debt" encompassed within the scope of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (Supp. II 1978). The district court held that it was not, and dismissed the action brought under that statute for lack of jurisdiction.
Appellants Fred G. Staub and Yvonne G. Staub (hereinafter "Staubs"), are husband and wife living in New Oxford, Adams County, Pennsylvania. They are subject to per capita taxes in the following taxing districts in which they reside: Conewago Valley School District, Hamilton Township and the County of Adams. The Staubs were delinquent in paying certain of these per capita taxes levied by these taxing districts for 1972 through 1977 in the amount of $235.21.
The taxing districts hired G. H. Harris and James P. Harris, of G. H. Harris Associates (hereinafter "Harris"), a private agency, to collect their delinquent taxes.*fn1 Harris is a profit-making business entity which collects debts owed or due or asserted to be owed or due to a party other than itself. It is neither an employee nor officer of the United States or of any state or local government. Nonetheless, it held itself out as a "deputy tax collector."*fn2
On June 13, 1978, the Harrises served a document titled "Final Notice Before Being Posted For Sale or Other Means of Collections to be Instituted" on one of the Staubs' children. The notice threatened the sale of the Staubs' home and personal goods unless they paid $323.75 by June 17, 1978.*fn3 It was embossed with the legend "Delinquent Tax Collector," and was signed "J. P. Harris, Deputy # 48." It stated that any action on the part of the Staubs to interfere with the proposed actions was a criminal misdemeanor which could result in a $500 fine or 30 days' imprisonment or both.
Alleging jurisdiction under the Federal Debt Collection Practices Act (hereinafter "FDCPA")*fn4, the Staubs then brought suit against the individual defendants and against G. H. Harris Associates for harassment and abuse, false and misleading representation, unfair practices, and failure to validate the debt, all in violation of the FDCPA. They sought declaratory and injunctive relief as well as compensatory and exemplary damages.
Defendants filed a motion to dismiss alleging that there was no jurisdiction because any cause of action under the FDCPA must be incident to collection of a "debt", and a tax was not a debt under the statute. The district court granted the motion to dismiss, holding that taxes are not encompassed within the definition of "debt" under the statute.
The FDCPA was enacted in 1977 as an amendment to the Consumer Credit Protection Act "to protect consumers from a host of unfair, harassing, and deceptive debt collection practices without imposing unnecessary restrictions on ethical debt collectors." Consumer Credit Protection Act, Sen.Rep. No. 95-382, 95th Cong., 1st Sess. 1-2, reprinted in (1977) U.S. Code Cong. & Admin. News, pp. 1695, 1696. Among the specific practices prohibited are threats of violence, obscene language, the publishing of "shame lists," harassing or anonymous telephone calls, impersonating a government official or attorney, misrepresenting the consumer's legal rights, simulating court process, obtaining information under false pretenses, collecting more than is legally owing, and misusing postdated checks. See 15 U.S.C. §§ 1692d, 1692e, 1692f. The statute does not apply to persons or businesses collecting debts on their own behalf. Id. § 1692a(4). It is directed to those persons who are engaged in business for the principal purpose of collecting debts. Id. § 1692a(6). In order to prevent collection action against the wrong person or against a debtor who has already paid, the Act requires the debt collector to validate the debt. Id. § 1692g. Within five days after the initial communication, the debt collector must send the consumer written notice stating the name of the creditor and the amount owed. Id. § 1692g(a)(1)-(2). If the consumer disputes the validity of the debt within 30 days, the debt collector must cease collection until s/he sends the consumer verification. Id. § 1692g(b). Congress viewed the statute as primarily self-enforcing. Sen.Rep. No. 95-382 at 5, reprinted in (1977) U.S. Code Cong. & Admin. News at 1699. The statute provides for suit by the aggrieved consumer who may recover actual damages, attorney's fees and costs, and additional damages to be assessed as the court deems appropriate, not exceeding $1,000. 15 U.S.C. § 1692k(a).
Plaintiff's complaint alleges that the Harrises' actions consisted, inter alia, of harassment, false representation of the Harrises' status, and failure to validate the debt. In the posture of this case, we must assume that the allegations of the complaint are true. Therefore, if the transaction is covered by the FDCPA, defendants' actions would fall within the behavior proscribed by the statute.
Defendants moved to dismiss on the ground that the statute only authorizes a cause of action incident to collection of a "debt" and taxes are not included within the definition of "debt" set ...