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PENNSYLVANIA BANKERS ASSOCIATION ET AL. v. COMMONWEALTH PENNSYLVANIA (04/01/81)

decided: April 1, 1981.

PENNSYLVANIA BANKERS ASSOCIATION ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF CONSUMER PROTECTION, RESPONDENT



Original jurisdiction in case of Pennsylvania Bankers Association, Bank of Hanover and Trust Company and New Holland Farmers National Bank v. Bureau of Consumer Protection.

COUNSEL

John J. Brennan, Dechert, Price & Rhoads, for petitioners.

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

Marjorie A. Janoski, with her Theodore Clattenberg Jr., for Consumer Education and Protective Association International, Inc., John Geiger, Katherine Geiger and Emma Wilson, Proposed Intervenors, Amicus Curiae.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, Williams, Jr. and Palladino. Judges Blatt and MacPhail did not participate. Opinion by President Judge Crumlish. Judge Wilkinson, Jr., concurs in the result only. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

Author: Crumlish

[ 58 Pa. Commw. Page 172]

The Director of the Bureau of Consumer Protection and the Attorney General of Pennsylvania filed preliminary objections in the nature of a demurrer to the Petition For Review of the Pennsylvania Bankers Association and other interested banks challenging the debt collection trade regulations recently promulgated by the Pennsylvania Bureau of Consumer Protection, 37 Pa. Code § 303.1 et seq. The preliminary objections are sustained in part, and overruled in part.

Petitioners have invoked our original jurisdiction seeking declaratory relief from the regulations which were promulgated by the Bureau under the authority of the Unfair Trade Practices and Consumer Protection Law (Consumer Protection Law).*fn1 The regulations provide that it shall be unfair or a 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.

[ 58 Pa. Commw. Page 173]

In Count I of the Petition For Review, the Banking Association argues that application of the Bureau's debt collection regulations to National Banks conflicts with federal law in that they interfere with the regulatory scheme devised by the Federal Government to control National Banks. In short, the Association asserts that the Commonwealth is pre-empted from applying the regulations to National Banks. We disagree.

National Banks are creatures of Federal legislation, instrumentalities of the Federal Government, and are necessarily subject to the paramount authority of the United States. Nevertheless, National Banks are subject to the laws of the several states unless they (1) interfere with the purposes of their creation, (2) tend to impair or destroy their efficacy as federal agencies or (3) conflict with the paramount law of the United States. Anderson National Bank v. Luckett, 321 U.S. 233 (1944); Jennings v. United States Fidelity and Guaranty Co., 294 U.S. 216 (1935); Lewis v. Fidelity and Guaranty Co., 292 U.S. 559 (1934).

Since our review fails to disclose federal legislation which deals with the precise area of debt collection by a National Bank, it is axiomatic that there can be no conflict within the meaning of Anderson.*fn2 Moreover, the Third Circuit has clearly stated that the rights of National Banks "to contract, collect debts, and acquire and transfer property are all based on state law". National State Bank v. Long, 630 F.2d 981, 985 (1980) (emphasis supplied).

Pressing our inquiry, we note that a second prong of the three part disjunctive test in Anderson prohibits a state from ...


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