Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Nancy A. White, On Behalf of Herself and All Others Similarly v. Conestoga Title Insurance Company


August 20, 2012


Appeal from the Order of the Superior Court entered on October 2, 2009 at No. 1437 EDA 2008 reversing the Order of the Court of Common Pleas of Philadelphia County, Civil Division, entered on April 21, 2008 at No. 0388 December Term, 2006 987 A.2d 982 (Pa. Super. 2009)

The opinion of the court was delivered by: Madame Justice Todd


ARGUED: September 15, 2010


Alleging that Appellant Conestoga Title Insurance Company ("Conestoga" or the "Company") charged more for title insurance than its filed rates permitted, Appellee Nancy A. White asserted three claims against Conestoga in a class action complaint. We granted review to consider whether White is precluded from pursuing all of her claims because Article VII of the Insurance Department Act of 1921 (hereinafter, the "TIA")*fn1 provides her with an exclusive administrative remedy under Section 1504 of the Statutory Construction Act of 1972 (the "SCA").*fn2 For the reasons that follow, we reverse in part and affirm in part. Specifically, we reverse the Superior Court's order reversing the trial court's dismissal of White's common law claims for money had and received and for unjust enrichment, and we affirm, albeit on different grounds, the Superior Court's order reversing the trial court's dismissal of White's statutory claim brought under Pennsylvania's Unfair Trade Practices and Consumer Protection Law (the "UTPCPL")*fn3 and remanding for further proceedings.

At all relevant times, Conestoga was a licensed title insurer, engaged in the business of underwriting and issuing title insurance*fn4 for properties in Pennsylvania. As such, Conestoga was subject to the mandates of the TIA and the regulatory authority of Pennsylvania's Insurance Commissioner (the "Commissioner"), who has the power and duty to enforce and carry out all of the TIA's provisions. See 40 P.S. §§ 59, 910-1, 910-3, 910-22, 910-46(d). Under Section 737 of the TIA, Conestoga was required to file the rates it charged for title insurance with the Commissioner and was prohibited from charging "any fee for any policy or contract of title insurance except in accordance with filings or rates" it submitted. See 40 P.S. § 910-37(a)-(e), (h). Conestoga's filed rates, as set forth in the "Title Insurance Manual of Rates, Policies and Endorsements for the Commonwealth of Pennsylvania" (the "Rate Manual") submitted to the Department, were: (1) the "Basic Rate;" (2) the "Reissue Rate," which was 90% of the basic rate, and available if the property to be insured was identical to property insured within the last 10 years and evidence of the earlier policy was produced; and (3) the "Refinance Rate," which was 80% of the reissue rate, and available if the property to be insured had been insured by a reputable title insurer other than Conestoga within the last three years. Rate Manual (Exhibit I to Plaintiff's Motion for Class Certification).

On December 6, 2006, White filed a class action complaint against Conestoga in the Court of Common Pleas of Philadelphia County. In her complaint, White alleged that she refinanced the mortgage on the home she owned on October 30, 2002, obtaining title insurance at the closing, and refinanced the mortgage on her home once again on February 17, 2005, purchasing title insurance from Conestoga. She further alleged that, even though she satisfied the criteria for Conestoga's Refinance Rate of $406.63 for the title insurance she purchased in 2005, Conestoga charged her the higher rate of $508.28, thereby unlawfully pocketing $101.65 of her money. White also alleged that Conestoga's agents could have learned from documents tendered at closings that homeowners, like herself, were eligible for either one of the Conestoga's reduced rates, but knowingly and intentionally failed to avail themselves of that information, in order to charge the homeowners a higher premium. In addition, she averred that Conestoga engaged in a pervasive, long-standing scheme of deception in which it willfully refused to apply its Reissue and Refinance Rates to the financial detriment of hundreds of purported class members.

Based on these allegations, White asserted three claims in her individual capacity and as the representative of a class of all persons who refinanced their mortgages and were charged a title insurance premium that exceeded Conestoga's applicable discounted rate. In Count I, White brought a common law claim for money had and received, averring that Conestoga came into possession of money to which it had no right at law or in equity.*fn5 In Count II, she brought a common law claim for unjust enrichment, asking for restitution of the excessive amounts paid to Conestoga.*fn6 In Count III, she made a claim under Section 9.2 of the UTPCPL, averring that Conestoga committed a per se violation of the statute's proscription against unfair or deceptive trade practices by charging rates in excess of the rates the Company was permitted to charge under Section 737 of the TIA. See 73 Pa.C.S.A. § 201-9.2(a);*fn7 40 P.S. § 910-37(h).

In its answer and new matter, Conestoga denied that the premiums it charged White and class members she sought to represent did not comply with its filed rates,*fn8 and raised several defenses, including a challenge to the trial court's jurisdiction due to the existence of an exclusive statutory remedy. In opposing the motion for class certification filed by White at the close of discovery, Conestoga again questioned the trial court's jurisdiction. Specifically, Conestoga contended that, since Section 744(b) and Section 449 of the TIA provide an exclusive statutory remedy for resolution of the parties' dispute regarding the rate White was charged for title insurance, the trial court lacked jurisdiction to adjudicate her claims under Section 1504 of the SCA.

Given their centrality to the issues before us, we quote Sections 744 and 749 of the TIA, and Section 1504 of the SCA, in full. Sections 744 and 749 of the TIA provide: § 910-44. Information to be furnished insureds; hearings and appeals of insureds

(a) Every rating organization and every title insurance company which makes its own rates shall, within a reasonable time after receiving written request therefor and upon payment of such reasonable charge as it may make, furnish to any insured affected by a rate made by it, or to the authorized representative of such insured, all pertinent information as to such rate.

(b) Every rating organization and every title insurance company which makes its own rates shall provide, within this Commonwealth, reasonable means whereby any person aggrieved by the application of [a title insurer's] rating system may be heard, in person or by his authorized representative, on his written request to review the manner in which such rating system has been applied in connection with the insurance afforded him. If the rating organization or title insurance company fails to grant or reject such request within thirty days after it is made, the applicant may proceed in the same manner as if his application had been rejected. Any party affected by the action of such rating organization or such title insurance company on such request may, within thirty days after written notice of such action, appeal to the commissioner, who, after a hearing held upon not less than ten days written notice to the appellant and to such rating organization or insurer, may affirm or reverse such action.

§ 910-49. Hearing procedure and judicial review

(a) Any title insurance company, rating organization or person aggrieved by any action of the commissioner, except disapproval of a filing or a part thereof, or by any rule or regulation adopted and promulgated by the commissioner, shall have the right to file a complaint with the commissioner and to have a hearing thereon before the commissioner. Pending such hearing and the decision thereon, the commissioner may suspend or postpone the effective date of his previous action, rule or regulation.

(b) All hearings provided for in this article shall be conducted, and the decision of the commissioner on the issue or filing involved shall be rendered, in accordance with the provisions of the act of June 4, 1945 (P.L. 1388), known as the "Administrative Agency Law," relating to adjudication procedure.[*fn9] 40 P.S. §§ 910-44, 910-49 (footnotes omitted) (emphasis added). Section 1504 of the SCA provides:

§ 1504. Statutory remedy preferred over common law

In all cases where a remedy is provided or a duty is enjoined or anything is directed to be done by any statute, the directions of the statute shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect. 1 Pa.C.S.A. § 1504.

Following a hearing on White's motion for class certification, the trial court issued an opinion and order, in which it concluded that, regarding White's claims, the TIA sets forth an exclusive statutory mechanism within the meaning of Section 1504 of the SCA and that, therefore, White failed to exhaust her statutory remedy.*fn10 Accordingly, the trial court dismissed White's complaint with prejudice for lack of jurisdiction,*fn11 and denied White's motion for class certification as moot.

On appeal, in a published opinion, a unanimous panel of the Superior Court held that the trial court erred in dismissing White's claims and, accordingly, reversed and remanded. White, 982 A.2d at 997. Observing that the TIA provides a remedy to those "aggrieved" by a title insurer's "application" of its rates, the court concluded the TIA was "wholly inapplicable" in White's case because she alleged that Conestoga engaged in a pervasive scheme of deceptive business practices by disregarding, rather than applying, its filed rates. Id. at 1004 (quoting 40 P.S. § 910-44(b)) (emphasis omitted). The court reasoned:

White alleges that Conestoga engaged in deceptive business practices and pervasively overcharged policy holders, including herself, by imposing the highest approved rate, regardless of consumers' qualification for a discounted rate. White is not merely claiming that Conestoga failed to apply the proper rate, but rather alleged that Conestoga did not apply the rate structure at all; and merely imposed the highest rate on unsuspecting consumers without any discretion or deference to the rate structures approved by the Commissioner. Aside from the fact that White's complaint references the rate structure, we find that the [TIA] is wholly inapplicable to White's claims.

Id. (emphasis in original). The court added: "Perhaps a straight forward grievance concerning an overpayment due to misapplication of the rate can be solved exclusively in an administrative context, but when the claim involves alleged deceptive insurance company practices that fall under the UTPCPL, it is clear that the legislature did not intend for the [TIA] to provide an exclusive remedy." Id. at 1006.

In further support of its conclusion, the court reasoned: (1) the General Assembly could not have intended the TIA to be the exclusive remedy for claims of deceptive insurance practices, given that the Unfair Insurance Practices Act ("UIPA"), 40 P.S. §§ 1171.1-1171.15, a more pertinent statute incorporated into the TIA, did not provide a remedy to consumers for such claims; (2) just as the General Assembly did not intend to limit the Commissioner to the penalties articulated in the TIA for statutory violations, it did not intend to limit consumers of title insurance who were allegedly subjected to deceptive trade practices to the remedy for a rate misapplication in the TIA;*fn12 (3) the Commissioner's position, as amicus curiae, that the TIA's remedy does not displace the private right of action under the UTPCPL, was entitled to great weight; (4) the court's prior decision in the workers' compensation insurance setting, Maryland Casualty Co. v. Odyssey Contracting Corp., 894 A.2d 750 (Pa. Super. 2006), was inapt due to the absence in the present case of commercial parties governed by complicated rate classifications and a Pennsylvania rate manual;*fn13 and (5) the remedial provisions of the TIA, even when applicable, do not require a consumer alleging violations of the UTPCPL to complain first to the insurer to preserve his grievance, since the word "may" appears in Section 744(b) to describe the administrative steps available to a person allegedly aggrieved by a rate overcharge. White, 982 A.2d at 1004-1007 & n.7 (quoting 40 P.S. § 910-44(b)).

Lastly, the court addressed the doctrine of primary jurisdiction and concluded that the question of whether White and the class members she sought to represent were improperly denied a discounted rate did not require the expertise of the Commissioner and could be easily resolved by the trial court by application of the language in the Rate Manual. Id. at 1009.*fn14 Accordingly, the Superior Court instructed the trial court on remand as follows: "If it is determined that the class of consumers received an inflated rate, it is solely within the province of the trial court to subsequently determine whether Conestoga engaged in deceptive and fraudulent business practices in violation of the common law and the UTPCPL." Id.

We allowed appeal, on Conestoga's petition, to consider whether the TIA's remedial provisions constitute an exclusive remedy within the meaning of Section 1504 of the SCA. White v. Conestoga Title Ins. Co., 606 Pa. 50, 994 A.2d 1083 (2010) (order).*fn15 As this issue raises a question of law, our standard of review is de novo and our scope of review is plenary. Dechert LLP v. Commonwealth, 606 Pa. 334, 340, 998 A.2d 575, 579 (2010).*fn16

Conestoga argues that Section 1504 of the SCA codifies the long-standing rule in Pennsylvania that, when a statute articulates a remedy for the breach of a statutory obligation, that remedy is exclusive and must be strictly pursued to the exclusion of all "civil action remedies" seeking relief for the harm that results from an alleged breach of that obligation. See Brief of Conestoga Title Insurance Company at 34. Conestoga asserts that the TIA is one such statute, in that it obligated the Company to charge White no more than its applicable filed rate for the title insurance she purchased, and provides her with a process by which she may secure redress, if she establishes, as she averred in her complaint, that the Company should have charged her a lower rate. Thus, Conestoga contends, all three claims in White's complaint are foreclosed by Section 1504.

Conestoga continues that the Superior Court's ruling that the TIA is inapplicable flies in the face of the allegations in White's complaint, which repeatedly reference the TIA's mandate that Conestoga charge only its filed rates, and disregards that, but for the TIA, White would have no basis to complain about the rate she was charged. Conestoga also challenges the court's construction of the TIA's remedy as permissive, based on the General Assembly's use of the word "may" in Section 744(b), and its policy decision in Section 748 to allow for cumulative penalties. See 40 P.S. §§ 910-44(b), 948. According to the Company, use of the word "may" merely reflects the choice an insured has been given between foregoing and pursuing a statutory claim regarding the rate she was charged, while Section 748 relates only to the Insurance Commissioner's enforcement authority.

Conestoga also challenges the Superior Court's disregard of its precedent in Maryland Casualty, supra, arguing there is no principled basis upon which to distinguish the remedial scheme in the TIA from that established in the Workers' Compensation Act for resolving rate application disputes between an insurer and its insured. Relying on this Court's decision in Lilian v. Commonwealth, 467 Pa. 15, 20, 354 A.2d 250, 253 (1976), Conestoga further maintains that the Superior Court's decision impermissibly carves out an exception to the exclusivity of remedy rule in Section 1504 of the SCA for consumer claims brought in a class action complaint. In addition, the Company objects to the Superior Court's view that the TIA incorporated the UIPA, and asserts that, in any event, the UIPA has no bearing on the issue before us. As a final point, Conestoga complains that the Superior Court did not discuss White's common law causes of action for money had and received and unjust enrichment, but grounded its decision entirely on White's allegations of deceptive trade practices, which related only to her UTPCPL claim.

White counters that none of the claims in her complaint should be dismissed on the basis of the TIA's remedial provisions. Although White concedes a remedy is stated in Section 744(b) and another is stated in Section 749, she asserts that neither remedy applies in her case. It is her position that, since Section 744(b) concerns the "application" of a rate, while Section 749 concerns an "action" the Commissioner may take, the allegations in her complaint regarding Conestoga's systematic and deceptive disregard of its filed rates are simply not covered by either section. See 40 P.S. §§ 910-44(b), 910-49. White adds that Section 744(b) is incapable of addressing an insurer's scheme of deceptive trade conduct because there is no reference therein to a party's entitlement to the panoply of procedural rights the Administrative Agency Law provides, as there is in Section 749. Id.

White argues, alternatively, that, even if her allegations against Conestoga fall within the TIA's remedial scope, its remedies are cumulative and discretionary, given the permissive language the General Assembly used in Section 744(b) and the fact that penalties are made cumulative under Section 748. See id. §§ 910-44(b), 910-48. In addition, she suggests that construing the TIA's procedure as permissive is required under the Remedies Clause of the Pennsylvania Constitution so as not to deny her a means of redressing the fraud and deceit Conestoga allegedly perpetrated upon its customers. See Pa. Const. art. I, § 11.

Relying on this Court's recognition that, in certain circumstances, a party need not exhaust the administrative remedy the legislature has provided, White further argues that, because the TIA's administrative process is inadequate, she should be excused from pursuing it. See supra note 10. She asserts the inadequacy of the TIA's remedy is reflected in the fact that Conestoga neglected to establish a reasonable means whereby she or any other consumer can ask for review of the rate charged, as Section 744(b) requires. She also contends that any means of review Conestoga might establish thereunder will not, in any event, provide consumers with a meaningful process of dispute resolution. See 40 P.S. § 910-44(b). White further asserts the TIA's procedure, which gives her a refund of a premium over-payment, is inadequate because it does not make available the punitive or treble damages and the attorneys fees she seeks from Conestoga in the court of common pleas.

White also takes exception to Conestoga's characterization of the Superior Court's opinion as countenancing exceptions from Section 1504 of the SCA for consumer claims asserted in a class action. According to White, any references the Superior Court made to the class action allegations in her complaint were merely descriptive, and did not form the basis of the Superior Court's decision, nor did it contradict this Court's ruling in Lilian. Finally, White urges us to adopt the view expressed by the Insurance Commissioner throughout this litigation, as amicus, that the TIA does not preclude access to the right of action the UTPCPL provides to consumers who are victimized by an insurer's deceptive business practices.*fn17

We begin our analysis by observing that the rule stated in Section 1504 of the SCA regarding the exclusivity of a statutory remedy raises a question of statutory construction. See Liss, 603 Pa. 211-12, 983 A.2d at 660. When construing a statute, we must ascertain and effectuate the intent of the General Assembly in enacting the statute. 1 Pa.C.S.A. § 1921(a). In this regard, we are instructed: "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Id. Thus, the best indication of the General Assembly's intent in enacting a statute may be found in its plain language. Martin v. Commonwealth, Dep't of Transp., Bureau of Driver Licensing, 588 Pa. 429, 438, 905

A.2d 438, 443 (2006). In addition, we are to read the sections of a statute together and construe them to give effect to all of the statute's provisions. 1 Pa.C.S.A. § 1921(a). Except for words and phrases that have acquired a peculiar meaning or have an applicable definition, we are to construe the words and phrases in a statute "according to the rules of grammar and according to their common and approved usage." Id. § 1903. We are to presume that, "[w]hen a court of last resort has construed the language in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language." Id. § 1922(4). We are also to presume that the General Assembly is familiar with extant law when enacting legislation. White Deer Township v. Napp, 603 Pa. 562, 590, 985 A.2d 745, 762 (2009).

The rule regarding the exclusive nature of a statutory remedy is one of Pennsylvania's oldest legal principles. Over 200 years ago, in 1806, the General Assembly codified the rule, stating:

In all cases where a remedy is provided or duty enjoined or anything directed to be done in any act of assembly, the direction of the said act shall be strictly pursued and no penalty be inflicted or anything done agreeable to the provisions of the common law in such cases further than shall be necessary for carrying such Act into effect.

Act of March 21, 1806, P.L. 58, 4 Sm.L. 326 § 13 ("Act of 1806") (46 P.S. § 156).*fn18

Thereafter, we consistently construed the Act of 1806 as a mandate, which required a party to strictly follow a statutory remedy, when one is provided, to the exclusion of a common law claim. See, e.g., Pittsburgh Coal Co. v. Sch. Dist. of Forward Twp., 366 Pa. 489, 494 78 A.2d 253, 256 (1951) (explaining that the Act of 1806 is an inhibition against the use of a common law remedy where a statutory remedy obtains). Additionally, we construed the Act of 1806 to allow for the invocation of the common law only if necessary to supply omissions or correct defects in the statutory remedial procedure. Hare v. Commonwealth, 92 Pa. 141 (1879).*fn19 Moreover, our application of the statutory exclusivity rule in the Act of 1806 did not depend on the existence of terms in the governing statutory scheme which mandated a party, if aggrieved, to pursue the provided statutory relief. See, e.g., Calabrese v. Collier Twp. Mun. Auth., 430 Pa. 289, 294, 240 A.2d 544, 547 (1968) (a party who challenges the reasonableness of a sewage rate "may," according to this Court, bring suit under the Municipalities Authorities Act of 1945); Barton v. Northumberland County, 342 Pa. 163, 19 A.2d 263 (1941) (a party affected by abolition of grade crossings proceedings, in the words of the statute, "may" appeal under 66 P.S. § 811).

Accordingly, in case after case, upon observing that the General Assembly provided a statutory means to resolve a dispute and provide relief to a complaining party, we upheld the termination of a common law cause of action under the Act of 1806.*fn20 Where, however, the legislature made its intent clear in a statute that the mandate in the Act of 1806 was not to govern, we, of course, followed that directive.*fn21

In School Dist. of Borough of West Homestead, supra, a decision we presently find instructive, we addressed a school district's contention that, despite the command in the Act of 1806, the school district was free to bypass the procedure supplied in the Supplemental Reorganization Act (now repealed) for seeking relief from a board's organizational plan and ask a court sitting in equity for an injunction instead. The procedure at issue was set forth in several sections of the Act, which, when read together, permitted, but did not require, a school district, which was allegedly aggrieved by a county board's plan of organization, to appeal to the State Board, and, then, take a further appeal to the common pleas court. 440 Pa. at 119, 269 A.2d at 907-08. Concluding that "[e]ven the most cursory reading of the Act reveals a comprehensive and constitutionally adequate procedure which is the exclusive procedure available to a school district which considers itself aggrieved by the actions of the County and State Boards," we held that the school district could not avoid the legislature's chosen remedial scheme by commencing a common law action. 440 Pa. at 121, 269 A.2d at 908. In so doing, we rejected the school district's assertion that the statutory remedy was inadequate because the county board failed to comply with the procedural directives the Act imposed, observing that such a complaint could and should have been made in the administrative hearing before the State Board under the Act. 440 Pa. at 122, 269 A.2d at 909. Moreover, we summarized our construction of the Act of 1806, thusly:

This statute says in unambiguous language that, if the legislature provides a specific, [e]xclusive, constitutionally adequate method for the disposition of a particular kind of dispute, no action may be brought in any 'side' of the Common Pleas to adjudicate the dispute by any kind of 'common law' form of action [other] than the exclusive statutory method . . . unless the statute provides for it or unless there is some irreparable harm that will follow if the statutory procedure is followed.

It is equally clear that, if the method for disposing of the dispute is [n]ot exclusive, some appropriate form of common law action in the Court of Common Pleas may be available, and the Common Pleas may have jurisdiction. 440 Pa. at 118-19, 269 A.2d at 907.

Two years later, in 1972, the legislature repealed the Act of 1806 and simultaneously reenacted it in the SCA, at Section 1504, in almost identical language and without indicating any disagreement with this Court's prior construction of the statute. See supra pp. 6-7. Like the Act of 1806, with respect to Section 1504, we have reiterated: "[W]here a statutory remedy is provided, the procedure prescribed therein must be strictly pursued to the exclusion of other methods of redress;" but, where the legislature explicitly reveals in a statute that it does not intend for such exclusivity, a statutory procedure for dispute resolution does not preempt common law claims. See Jackson, 509 Pa. at 106, 501 A.2d at 220; Deluca v. Buckeye Coal Co., 463 Pa. 513, 519, 345 A.2d 637, 640 (1975). Moreover, we have declined to apply Section 1504 where we determined that a statutory procedure did not contemplate the grievance in question. Liss, 603 Pa. at 212, 983 A.2d at 660; see also Terminato v. Pennsylvania Nat. Ins. Co, 538 Pa. 60, 645 A.2d 1287 (1994) (quoting Lashe v. Northern York County School Dist., 52 Pa. Cmwlth. 541, 548, 417 A.2d 260, 264 (1980) ("If the statute does not apply to a controversy, it obviously is not intended to be any remedy, much less an exclusive remedy.")).

Further, in Lilian, supra, where the named plaintiffs bypassed the procedure the Tax Reform Code provided for securing a sales tax refund, and, instead, brought a class action in equity against the Commonwealth asking for a refund of the sales tax they and the class members had paid, we explained that the class action in Pennsylvania is a procedural device designed to promote efficiency in the handling of a large number of similar claims, such that class status or the lack of it, alone, is irrelevant to the question of whether a common law action is available in light of the existence of a statutory remedy. 467 Pa. at 21, 354 A.2d at 253-54. See Pa.R.C.P. 1702, Explanatory Comment ("Where a specific statutory remedy is provided for the processing of claims, numerosity of claims will not justify a class action. This follows the classic principle that a statutory form of relief must be followed exclusively.")

As applied to the instant case, our review of these guiding principles reveals a fundamental flaw in the Superior Court's approach, which, we observe, was echoed by the parties in their respective briefs. The court below assumed that a single analysis was sufficient to determine whether all the claims White asserted in her complaint could continue under Section 1504, and, accordingly, failed to differentiate between White's common law causes of action and her statutory claim under the UTPCPL, and focused only on the latter. We are of the view, however, that White's common law claims must be addressed separately from her UTPCPL claim, given the terms of Section 1504 and our long-standing construction of its mandate.

We, therefore, first consider White's common law claims for money had and received and unjust enrichment. Fundamentally, the allegations White made against Conestoga in Counts I and II of her complaint, and the position the Company has taken in its defense, concern whether the premium White paid for title insurance was in accordance with the Company's filed rates. On the one hand, White contends that Conestoga should have charged her no more than the Refinance Rate; on the other, Conestoga asserts its higher charge was entirely consistent with the Rate Manual it filed with the Commissioner. In this regard, Sections 744(b) and 749 of the TIA, when read together, set forth a procedure that both addresses the parties' dispute regarding the propriety of Conestoga's charge and provides White with a specific method for the disposition of her grievance. See School Dist. of Borough of West Homestead, 440 Pa. at 118, 269 A.2d at 907. Specifically, under Sections 744(b) and 749, as a person who considers herself "aggrieved" by the "application" of a title insurer's rating system, White has the right to: ask the Company to review the manner by which it applied its rating system, see 40 P.S. § 910-44(b); request that the Commissioner reverse or affirm, if affected by the Company's decision, see id.; pursue her position before the Commissioner under the procedures the Administrative Agency Law provides, if aggrieved by his "action," see id. § 910-49(a); and seek review in a court of law under the Administrative Agency Law, if aggrieved by the Commissioner's "adjudication" of the matter. See id. § 910-49(b); 2 Pa.C.S.A. §§ 101, 702(a); see generally supra pp. 5-6 and note 9.*fn22 Accordingly, as the TIA provides White with a statutory remedy, Section 1504's exclusivity rule is ostensibly triggered.

Moreover and significantly, our review of the TIA reveals nothing to demonstrate, either expressly or by implication, that the General Assembly intended the framework set forth in Sections 744(b) and 749 for addressing a rate application dispute between a title insurer and an insured to coexist with common law claims. While the General Assembly indicated its intent, in Section 748 of the TIA, to override the reluctance historically displayed by the courts to impose cumulative penalties - specifically, with respect to the Commissioner's authority, see supra note 12 - it did not indicate a corresponding intent, anywhere in the statute, to override the rule it articulated in Section 1504 of the SCA regarding the exclusivity of statutory remedies, or this Court's jurisprudence in this area. See Geffen v. Baltimore Markets, 325 Pa. 509, 516, 191 A. 24, 28 (1937) (explaining that the courts are loath to permit cumulative penalties, but, where it is plainly the intention of the legislature, they will do so). Furthermore, we have determined that the presence of the word "may" in Section 744(b) does not alone provide a basis to disregard Section 1504's plain meaning, nor, as we have discussed, does White's filing of a class action complaint, in and of itself, negate Section 1504's operation. See School Dist. of Borough of West Homestead, 440 Pa. at 119, 269 A.2d at 907-08; Lilian, 467 Pa. at 21, 354 A.2d at 253.

Further, White does not present any reasons we have found sufficient to excuse a litigant from exhausting the administrative remedy the legislature has provided.

White's contention that the TIA's remedy is inadequate and need not be exhausted because Conestoga is unable or unwilling to comply with the administrative review process in a meaningful way is unavailing. As we noted, in School Dist. of Borough of West Homestead, supra, we determined that such a complaint may be raised and addressed during the administrative process and does not render the administrative remedy inadequate. 440 Pa. at 119, 269 A.2d at 907-08. Moreover, taking account of the specific allegations made in Counts I and II of her complaint, while White alleges that Conestoga systematically overcharged its customers for title insurance, she is asserting only that Conestoga applied the wrong rate. She does not assert that there exists a substantial question of constitutional import concerning the validity of the TIA's administrative process, claim that Conestoga lacked the authority to apply its rate structure in the first place, or demonstrate that the TIA's administrative process is substantially defective or otherwise ill-suited to resolve the legal issues presented and provide relief to those who show that Conestoga charged them a higher premium than it was legally entitled to collect.

Therefore, we conclude that Section 1504's exclusivity of statutory remedy rule must be applied to Counts I and II of White's complaint in the instant action. Accordingly, we hold that White is precluded from pursuing the common law claims for money had and received and for unjust enrichment she asserted against Conestoga in the common pleas court.

But, the same cannot be said for the claim White asserted against Conestoga in Count III of her complaint pursuant to the UTPCPL. Under the clear and explicit words of Section 1504, the availability of an exclusive statutory remedy forecloses a common law cause of action; however, the existence of any such statutory remedy does not foreclose a distinct statutory cause of action. See School Dist. of Borough of West Homestead, 440 Pa. at 118, 269 A.2d at 907. A UTPCPL claim is a statutory creation of the General Assembly; it does not arise under the common law. See 73 Pa.C.S.A. § 201-9.2. Therefore, Section 1504, by its terms, does not apply to White's UTPCPL claim. Accordingly, on this basis, and in contrast to White's common law claims, we hold that the court of common pleas may adjudicate her UTPCPL claim.*fn23

On these distinct grounds, that part of the Superior Court's order reversing the trial court's order as to White's UTPCPL claim and remanding for further proceedings is affirmed, and, accordingly, that claim may be adjudicated in the trial court; furthermore, for the reasons expressed above, that part of the Superior Court order's reversing the trial court's order as to White's common law claims for money had and received and for unjust enrichment is reversed, and accordingly, those claims may not be adjudicated in the trial court.*fn24 *fn25

Jurisdiction relinquished.

Madame Justice Orie Melvin did not participate in the decision of this case. Messrs. Justice Saylor, Baer and McCaffery join the opinion.

Mr. Chief Justice Castille files a concurring opinion in which Mr. Justice Eakin joins.


NANCY A. WHITE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Appellees No. 30 EAP 2010 Appeal from the Opinion and Order of the Superior Court at No. 1437 EDA 2008, dated October 2, 2009, reversing the Order of the Philadelphia County Court of Common Pleas at No. 0612-0388, dated v. : April 21, 2008 : : 982 A.2d 997 (Pa. Super. 2009) CONESTOGA TITLE INSURANCE : COMPANY, : : Appellant : ARGUED: September 15, 2010 CONCURRING OPINION MR. CHIEF JUSTICE CASTILLE DECIDED: August 20, 2012 I join the Majority Opinion with the exception of that which I believe to be dicta in footnotes 10 and 11. For the reasons that follow, I respectfully disagree with the Majority's decision to speak broadly regarding aspects, not implicated or briefed in this appeal, of the nature and application of Section 1504 and the judicial doctrine of administrative exhaustion.

Here, this Court granted review to decide whether:

In reversing the Common Pleas Court's dismissal of this action for lack of jurisdiction by reason of the administrative remedy provided by the TICA at 40 P.S. § 910--44(b), did the Superior Court err by holding that the statutory and decisional rule that adequate administrative remedies are exclusive does not apply to consumer class actions?

White v. Conestoga Title Ins. Co., 994 A.2d 1083 (Pa. 2010) (per curiam). The Majority also states that it would address other grounds on which the Superior Court based its decision, see Maj. Slip Op. at 13 n.17, presumably because the Court could affirm on such other grounds. Id. at 11 (describing Superior Court's decision).

The several issues addressed in footnotes 10 and 11, however, are not among the specific bases on which the Superior Court decided the matter and, indeed, are ostensibly outside the grant of allowance of appeal. In footnote 10, the Majority begins by citing appellant's position that any distinction between the directive of Section 1504 and the judicial doctrine of administrative exhaustion is "immaterial" in this matter. The Majority, without challenging appellant's view, undertakes a lengthy discussion intended "to clarify" the question of whether such a distinction does or should exist, including in its discussion criticism of an existing case. The Majority describes the interplay between Section 1504 and the judicial doctrine of administrative exhaustion, holds that they are one legal consideration, and lists seemingly settled jurisprudential exceptions to the general rule. See Maj. Slip Op. at 7-8 n.10. Subsequently, the Majority concludes that appellee -- the plaintiff below -- has not in her complaint, and does not on appeal, rely on any such exception to argue the inapplicability of Section 1504. Id. at 24-25.

Meanwhile, in footnote 11, the Majority discusses whether Section 1504 is jurisdictional or prudential and collects cases which ascribe to either one or the other view. The Majority suggests that the distinction may be relevant to whether the Court could address the issue sua sponte. Ultimately, however, the Majority concludes that the conflict need not be resolved because appellant preserved the issue for appeal, and fails to offer any other purpose for its observations. Id. at 8-10 n.11.

This Court has suggested that we lack jurisdiction to decide issues outside the scope of the allowance of appeal granted. See Commonwealth v. Jones, 610 A.2d 439, 440 n.2 (Pa. 1992), abrogated on other grounds by Commonwealth v. Deemer, 705 A.2d 827 (Pa. 1997). Strict enforcement of that proposition is perhaps an impossible task, and, in my view, there may be perfectly good reasons for the Court to reach out and offer guidance beyond points actually accepted and briefed. Indeed, it has been my position that "the question of what issues are properly reachable in an appeal is a prudential matter, not an absolute, and it is not surprising that the members of the Court, reasonably and in good faith, may reach different conclusions when presented with a particular factual and legal matrix." Freed v. Geisinger Med. Ctr., 5 A.3d 212, 219 (Pa. 2010) (Castille, C.J., concurring).

Here, inquiries regarding the jurisdictional or jurisprudential nature of Section 1504 and the broader question of exceptions to the exclusive remedy/exhaustion consideration are collateral to the actual dispute. The Majority engages these issues after simply noting appellant's uncertainty regarding a related question on the interplay between Section 1504 and the judicial doctrine of administrative exhaustion. The Majority offers no insight either into any interest by the parties in pursuing the broader issues it addresses in footnotes 10 and 11, grants the parties no opportunity to brief the relevant points, and does not explain the necessity for the dictum.

In this particular situation, I believe that the perceived necessity for clarification is not sufficient to overcome prudential concerns in addressing points outside the scope of a discretionary appeal. Accord Harsh v. Petroll, 887 A.2d 209, 216 n.16 (Pa. 2005) ("While we acknowledge amicus's points in these regards and the desirability of additional clarification, the points are outside the scope of this limited appeal."). The parameters of the exhaustion doctrine (whether statutory or prudential) are of sufficient complexity, and the factual circumstances giving rise to exhaustion issues of sufficient variety, that I would not speak broadly or correctively in the area unless in the context of a case where we have a focused issue and targeted advocacy along those lines.

For example, footnote 10 lists the exceptions to Section 1504 in cases where the administrative remedy: "was unable to address the legal issues presented and effectively provide relief to all those in a position to seek it and presented a substantial question of constitutional import or would result in duplicative and piecemeal litigation likely to yield inconsistent results, or would lead to irreparable harm." Maj. Slip Op. at 8 n.10 (citing, inter alia, Kowenhoven v. County of Allegheny, 901 A.2d 1003 (Pa. 2006)). Derived by the Majority from caselaw, this mere listing does not capture the multifaceted calculus, of which Kowenhoven is illustrative, behind these decisions. In Kowenhoven, the majority decision, which I joined, excused compliance with Section 1504 to address a question of great constitutional importance and avert the need for a multiplicity of duplicative lawsuits on the single, controlling legal question presented. However, as a general matter, I would not consider duplicative litigation or, separately, the simple presentation of a constitutional question sufficient grounds to bypass the salutary function of the administrative process. Cf. Elgin v. Dep't of Treasury, 132 S.Ct. 2126, 2138 (2012) ("[W]e see nothing extraordinary in a statutory scheme that vests reviewable factfinding authority in a non-Article III entity that has jurisdiction over an action but cannot finally decide the legal question[, such as the constitutional claim at issue,] to which the facts pertain."). Accordingly, I am reticent to draw broad and non-fact specific lines of demarcation regarding instances in which the Court should find an exception to the exhaustion of administrative remedies requirement. I respect that the Majority may intend its comments to be a mere recitation or a compilation of relevant sources of settled law, but they are likely to be advanced by litigants, and cited by lower courts, as broadly deciding various issues that I, for one, believe may warrant deeper consideration.

For these reasons, I join the Majority Opinion subject to this one articulated reservation.

Mr. Justice Eakin joins this opinion.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.