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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. ...

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