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PENNSYLVANIA RETAILERS' ASSOCIATION ET AL. v. TERRY LAZIN (03/03/81)

decided: March 3, 1981.

PENNSYLVANIA RETAILERS' ASSOCIATION ET AL., PETITIONERS
v.
TERRY LAZIN, DIRECTOR, BUREAU OF CONSUMER PROTECTION ET AL., RESPONDENTS



Original jurisdiction in case of Pennsylvania Retailers' Association et al. v. Terry Lazin, Director, Bureau of Consumer Protection et al.

COUNSEL

H. Lee Roussel, with him C. Grainger Bowman, and Robert A. Mills, McNees, Wallace & Nurick, for petitioners.

Andrew S. Gordon, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, Chief, Civil Litigation, and Harvey Bartle, III, Attorney General, for respondents.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, Williams, Jr. and Palladino. Judges Blatt and MacPhail did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 57 Pa. Commw. Page 234]

This matter is before us on the preliminary objection in the nature of a demurrer*fn1 filed by the respondents, the Director of the Bureau of Consumer Protection and the Attorney General of Pennsylvania, to the Petition for Review of a number of debt collectors' associations, and of others interested in the field, challenging regulations of debt collectors.

The Petition for Review is addressed to our original jurisdiction and seeks injunctive and declaratory relief from the Debt Collection Trade Practices regulations, 37 Pa. Code § 303.1 et seq., promulgated by the respondents under the authority of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. § 201-1 et seq. (UTPCPL).*fn2 The regulations provide that it shall be an unfair or deceptive act or practice for a debt collector to engage in many activities described in Section 303.3 of the regulations, 37 Pa. Code § 303.3.

[ 57 Pa. Commw. Page 235]

Count I of the Petition for Review is directed against the respondent Director of the Bureau of Consumer Protection. This count sets forth seven theories under which the petitioners assert that the regulations are invalid. Count II is directed against the respondent Attorney General and merely incorporates by reference the allegations contained in count I. Each count I and II ask us to restrain enforcement of the regulations. Count III incorporates by reference all the averments contained in counts I and II and seeks a declaration that the regulations are null and void. All material averments are contained in count I of the Petition for Review and respondents' demurrer stands or falls on the merits of that count. We will discuss each of the petitioners' bases for invalidating the regulations and respondents' responses seriatim.

I

In paragraph 13 of the Petition for Review it is alleged that the Attorney General lacks authority to promulgate the debt collection regulations. The petitioners base this contention upon the following legislative history of the 1976 amendments to the UTPCPL, Act of November 24, 1976, P.L. 1166, § 1, which added, inter alia, Section 3.1 to the UTPCPL. As originally proposed, Section 3.1 authorized the Attorney General to promulgate regulations "clarifying and further defining 'unfair methods of competition' and 'unfair or deceptive acts or practices'" as set forth in Section 2(4) of the UTPCPL, 73 P.S. § 201-2(4). See H.B. 485, Printer's No. 587 (1975). This language was deleted from Section 3.1 by the House Committee on Consumer Protection. See id., Printer's No. 1979 (1975). As finally adopted, Section 3.1 states that the Attorney General may adopt "such rules and regulations as may be necessary for the enforcement and administration of" the UTPCPL. Section 3.1 of the UTPCPL, 73 P.S. § 201-3.1, added by the Act of

[ 57 Pa. Commw. Page 236]

November 24, 1976, supra. The petitioners contend that the debt collection regulations are regulations which clarify and further define unfair or deceptive acts or practices and thus, under the 1976 amendments, are unauthorized. Respondents demur to this averment on the ground that the power to enforce and administer the UTPCPL granted to the Attorney General in Section 3.1 includes the power to proscribe categories of conduct which are unlawful under the UTPCPL.

It is true that Section 3.1 of the UTPCPL states only that the Attorney General may promulgate regulations as may be necessary for the enforcement and administration of the UTPCPL. However, the 1976 amendments also added the language, here ...


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