Danganan, J., Aplt. v. Guardian Protection Svc.

[J-85-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
JOBE DANGANAN, ON BEHALF OF : No. 36 WAP 2017
HIMSELF AND ALL OTHERS SIMILARLY :
SITUATED, : Certification of Question of Law from the
: United States Court of Appeals for the
: Third Circuit in No. 16-3379
Appellant :
:
:
v. :
:
GUARDIAN PROTECTION SERVICES, :
:
Appellee :
: ARGUED: November 28, 2017
OPINION
CHIEF JUSTICE SAYLOR DECIDED: FEBRUARY 21, 2018
This matter presents issues of Pennsylvania law on certification from the United
States Court of Appeals for the Third Circuit, centering on the reach of Pennsylvania’s
Unfair Trade Practices and Consumer Protection Law (the “UTPCPL” or the “Law”).1
I. Background
The UTPCPL provides, in relevant part, that “[u]nfair methods of competition and
unfair or deceptive acts or practices in the conduct of any trade or commerce . . . are . .
. unlawful.” 73 P.S. §201-3. The Law permits any “person” to bring a private action
against any other “person” for violations of the statute. Id. §201-9.2(a). The UTPCPL
defines “person” as “natural persons, corporations, trusts, partnerships, incorporated or
1 Act of Dec. 17, 1968, P.L. 1224, No. 387 (as amended 73 P.S. §§201-1 to 201-9.3).
unincorporated associations, and any other legal entities,” and the term is employed to
describe both alleged victims and purported offenders. Id. §201-2(2). “Trade” and
“commerce” are defined as
the advertising, offering for sale, sale or distribution of any services and
any property, tangible or intangible, real, personal or mixed, and any other
article, commodity, or thing of value wherever situate, and includes any
trade or commerce directly or indirectly affecting the people of this
Commonwealth.
Id. §201-2(3).
This case has its genesis in Appellant Jobe Danganan’s contracting with
Appellee Guardian Protection Services (“Guardian”), a Pennsylvania-headquartered
business, for home security equipment and services at his then home in Washington,
D.C. The contract signed by Appellant, a standardized form agreement employed by
Guardian, contained, inter alia, a choice-of-law provision, stating that the “Agreement
shall be governed by the laws of Pennsylvania.” Authorized Dealer Sales and
Monitoring Agreement (“Agreement”) ¶19, at 4. Another clause required that any suit or
legal proceeding pertaining to the Agreement be brought in the other party’s district or
county of residence and mandated that the parties consent to jurisdiction in such venue.
See Agreement ¶17, at 4.
Prior to the expiration of the Agreement’s purported three-year initial term,
Appellant moved to California and sold his Washington, D.C. house, notifying Guardian
of his intent to cancel the contract and related home protection services. However,
Guardian continued to bill Appellant, citing provisions of the Agreement that it claimed
authorized ongoing charges through the contract’s term, regardless of cancellation
attempts. Appellant filed a complaint in the Court of Common Pleas of Philadelphia
County on behalf of himself and a putative class of nationwide plaintiffs who were
subject to the same form contract. His claims for relief were predicated exclusively on
[J-85-2017] - 2
Pennsylvania statutory grounds, namely, the UTPCPL and Pennsylvania’s Fair Credit
Extension Uniformity Act.2 Guardian sought removal to federal court on the basis of
diversity jurisdiction, and the matter ultimately proceeded in the United States District
Court for the Western District of Pennsylvania.
Thereafter, Guardian filed a motion to dismiss, arguing that Appellant had not,
pursuant to the UTPCPL, demonstrated a “sufficient nexus” between the
Commonwealth and the improper conduct alleged in the complaint. Wolfe v. McNeill-
PPC, Inc., 773 F. Supp. 2d 561, 574-75 (E.D. Pa. 2011) (explaining that a sufficient
nexus is required to maintain a UTPCPL claim and that prior decisions indicate that the
Law only provides a remedy to Pennsylvania residents (citing Haggart v. Endogastric
Sols., Inc., No. 10–346, 2011 WL 466684, at *7 (W.D. Pa. Feb. 4, 2011); Baker v.
Family Credit Counseling Corp., 440 F. Supp. 2d 392, 413 (E.D. Pa. 2006))). The
district court agreed, dismissing the case with prejudice. See Danganan v. Guardian
Prot. Servs., 2016 WL 3977488, at *3 (W.D. Pa. July 25, 2016).
In its reasoning, the district court initially acknowledged that the UTPCPL is to be
liberally construed to effectuate its purpose of preventing fraud and deceptive practices.
See Commonwealth by Creamer v. Monumental Props., Inc., 459 Pa. 450, 459, 329
A.2d 812, 816 (1974). However, the court deemed the Law restricted to protecting the
citizens of Pennsylvania, misattributing that precept to this Court. See Danganan, 2016
WL 3977488, at *2 (referring to Commonwealth by Packel v. Ziomek, 145 Pa. Cmwlth.
675, 680, 352 A.2d 235, 238 (1976) (original jurisdiction, single-judge opinion), as a
decision of the Supreme Court of Pennsylvania). Nevertheless, the court supported its
view in this regard by reference to a number of federal district court decisions that had
2 Act of March 28, 2000, P.L. 23, No. 7 (as amended 73 P.S. §§2270.1-2270.6).
Appellant’s claims under the Fair Credit Extension Uniformity Act are not presently
pertinent.
[J-85-2017] - 3
determined that the Law did not generally permit recovery by non-residents, absent
having engaged in a transaction within the state. See, e.g., Beye v. Horizon Blue Cross
Blue Shield of N.J., 568 F. Supp. 2d 556, 570 (D.N.J. 2008); Baker, 440 F. Supp. 2d at
414; Lyon v. Caterpillar, Inc., 194 F.R.D. 206, 213 (E.D. Pa. 2000).
The district court additionally concluded that Guardian’s headquarters in
Pennsylvania did not suffice to establish a sufficient nexus. See In re Avandia Mktg.,
Sales Practices & Prods. Liab. Litig., Nos. 2007-MD-1871, 09-CV-730, 10-CV-2475, 10-
CV-5419, 2013 WL 5761202, at *9 (E.D. Pa. Oct. 23, 2013) (holding that defendant’s
headquarters in Pennsylvania, where the purported misconduct was orchestrated and
emanated from, did not support a cause of action under the UTPCPL by non-residents).
Along this same line, the trial court rejected Appellant’s claim that Guardian’s drafting of
the form Agreement and unreasonable interpretation of it at its Pennsylvania
headquarters established sufficient contacts. Instead, the court suggested that
Washington, D.C. and/or California constituted the sites of Appellant’s alleged injuries.
Next, citing the Agreement’s choice-of-law provision, the district court explained
that it could not be employed to broaden the limited scope of the Law, assuming
arguendo that the clause implicated the UTPCPL in the first instance. In this regard, the
court emphasized that “trade” and “commerce,” as defined in the UTPCPL, were
“restricted to only apply to conduct which ‘directly or indirectly affect[s] the people of this
Commonwealth.” Danganan, 2016 WL 3977488, at *3 (quoting 73 P.S. §201-2(3))
(alteration in original).
On appeal, the Third Circuit Court of Appeals sought certification to this Court
concerning the potential residential and geographical restrictions of the UTPCPL. The
Third Circuit explained that such issues have arisen previously in federal district and
bankruptcy courts, see Petition for Certification of Question of State Law at 5-6
[J-85-2017] - 4
(collecting cases), but that there is a dearth of Pennsylvania state court decisions
providing direction. The federal appellate court further observed that consumer
protection claims are often raised in class action suits, which are frequently removed to
federal court. We granted the request for certification of the following questions of state
law, as framed by the Third Circuit:
1) Whether a non-Pennsylvania resident may bring suit under the
[UTPCPL], against a business headquartered in and operating from
Pennsylvania, based on transactions which occurred outside of
Pennsylvania?
2) If the UTPCPL does not allow a non-Pennsylvania resident to invoke
its protections, whether the parties can, through a choice-of-law provision,
expand its protections to parties to the contract who are non-Pennsylvania
resident consumers?
Danganan v. Guardian Prot. Servs., __ Pa. __, 170 A.3d 981 (2017) (table) (alteration
added).
II. UTPCPL’s Scope
As to the first issue, Appellant argues that, pursuant to the plain language of the
UTPCPL, a non-resident may bring a claim against a Pennsylvania business premised
on an out-of-state transaction, emphasizing that the definition of “person” lacks any
geographic limitation or specification on residency. See 73 P.S. §201-2(2). He further
notes that the term “person” is employed by the statute to reference both a consumer
victim and merchant perpetrator. See, e.g., id. §201-9.2(a) (“Any person who
purchases or leases goods or services . . . and thereby suffers any ascertainable loss . .
. as a result of the use or employment by any person of a method, act or practice
declared unlawful . . . may bring a private action . . ..”). Thus, he contends that it would
be problematic to construe a complainant “person” as constituting only a resident, since
such a restriction would necessarily apply to businesses as well, and consequently, the
[J-85-2017] - 5
Law would not protect Pennsylvanians who are victimized by out-of-state operations.
Cf. Haggart, No. 10-0346, 2011 WL 466684, at *7 (“[N]ot applying the statute to
nonresidents . . . would invite fraud upon nonresidents in transactions within the state.”
(emphasis in original) (quoting Mikola v. Penn Lyon Homes, Inc., No. 07-612, 2008 WL
2357688, at *3 (M.D. Pa. June 4, 2008))). Appellant finds support for this view in the
decision in Cash America Net of Nevada, LLC v. Department of Banking, 607 Pa. 432, 8
A.3d 282 (2010), in which the term “person,” as used in the Consumer Discount
Company Act, 7 P.S. §§6201-6219, was interpreted as encompassing non-resident
businesses. See Cash America, 607 Pa. at 451, 8 A.3d at 293-94.
To the degree that “person” may be found ambiguous, see, e.g., Meyer v. Cmty.
Coll. of Beaver Cty., 625 Pa. 563, 575-76, 93 A.3d 806, 814 (2104), Appellant
references the interpretive considerations of the Statutory Construction Act, see id.(citing 1 Pa.C.S. §1921(c)), and opines that they support his interpretation of the Law.
He further argues that the terms of the UTPCPL reflect its remedial nature, as well as
the Legislature’s intent to provide broad protections and deter misconduct predicated on
the belief that competition best operates in the light of honest disclosures. See, e.g., id.
at 571-72, 93 A.3d at 811 (explaining that the UTPCPL was designed to close the
“doctrinal gap” of the common law and “place the seller and consumer on more equal
terms” (internal quotation marks and citation omitted)). Appellant also cites this Court’s
description of the Law as designed to “benefit the public at large by eradicating unfair or
deceptive business practices [and] to ensure fairness of market transactions.”
Monumental Props., 459 Pa. at 457-58, 470, 329 A.2d at 815-16, 822. In light of these
objectives, he advances that the statute requires a liberal and pragmatic construction.
See id. at 460, 329 A.2d at 817.
[J-85-2017] - 6
As for “trade” and “commerce,” similar to his reasoning with respect to “person,”
Appellant observes that the definition of these terms lacks any residency or geographic
restrictions. See 73 P.S. §201-2(3). From Appellant’s perspective, the district court’s
limited construction, premised on the “directly or indirectly affecting the people of this
Commonwealth” clause, contravenes the express language of the Law, which covers
mercantile activity “wherever situate,” and is, by its plain terms, broad so as to
“include[]” conduct affecting Pennsylvanians. 73 P.S. §201-2(3). Further contrasting
with the district court’s view, he contends that the use of “includes” signals that the trade
or commerce encompassed by the UTPCPL may occur outside of the state, since it
need only impact, directly or indirectly, the Commonwealth’s citizenry. In this respect,
he again draws a parallel to the non-residential business operation at issue in Cash
America.
Appellant cites several cases to support his broad-application view of the Law,
particularly emphasizing Thornell v. Seattle Service Bureau, Inc., 363 P.3d 587 (Wash.
2015).3 In that case, a Texas resident brought a claim against a Washington-
headquartered collection agent, alleging the use of deceptive practices proscribed by
Washington’s consumer protection law.4 In determining whether a non-resident lacking
connections to the state could maintain the action, the Washington Supreme Court
highlighted the “broadly worded” definitions for “person” and “commerce,” the latter of
3 Many of the cases referenced by Appellant involve transactions that occurred within
the subject state and, thus, are of little support to his extraterritorial construction. See,
e.g., Boyes v. Greenwich Boat Works, Inc., 27 F. Supp. 2d 543, 546 (D.N.J. 1998).
4 Mirroring the present circumstances, the plaintiff in Thornell initially filed her class
action suit in Washington state court, only to have it removed to federal court, which
ultimately resulted in questions of law certified to the Washington Supreme Court.
[J-85-2017] - 7
which included reference to “any commerce directly or indirectly affecting the people of
the state of Washington.” Id. at 590 (quoting WASH. REV. CODE §19.86.010(1), (2)).5
The Washington court explained that the “indirectly affecting” aspect of the
commerce definition, along with the liberal construction and statutory purpose to foster
“fair and honest competition,” see id. at 591 (quoting W ASH. REV. CODE §19.86.920),
required interpreting the statute as protecting non-residents. In this respect, the court
reasoned that, if out-of-state citizens could not forward claims against Washington-
based entities, “[h]onest businesses could be placed at a competitive disadvantage
competing against a business that generates revenue from unlawful acts that violate the
statute.” Id. (emphasis in original); see also id. (“[T]he commerce and trade [that the
abusive company] brings into Washington, and the alleged unfair and dishonest method
by which it does so, affects the state economy and thus affects the Washington public at
large.” (quoting Schall v. AT&T Wireless Servs., Inc., 259 P.3d 129, 143 (Wash. 2011)
(Sander, J., dissenting))). Appellant contends that the Thornell court’s reasoning is on
all fours with the present matter, given the similarity in the definitions of the pertinent
terms and the paralleling remedial purposes and liberal interpretation required by the
statutes.
Relative to the sufficient nexus test, Appellant highlights that the UTPCPL does
not employ that term and emphasizes again that there is no textual basis mandating
such a test or any residency or geographical limitations. He further criticizes, as
5The Washington statute’s definitions for “person” and “trade” and “commerce” closely
parallel the UTPCPL’s definitions of these terms. Compare W ASH. REV. CODE
§19.86.010(1), (2), with 73 P.S. §201-2(2), (3).
[J-85-2017] - 8
excessively limiting and ambiguously defined, Guardian’s proffer that the sufficient
nexus test requires a primary and substantial connection to the state.6
As for Guardian’s complaint that Appellant’s view would permit anyone anywhere
to advance a claim under the UTPCPL, he observes that choice-of-law rules and
jurisdictional principles may operate as limitations on statutory causes of action relative
to the parties’ residency.7 In this respect, he develops that, in circumstances such as
are present here, the federal trial courts should begin with a choice-of-law analysis.
See, e.g., Lewis v. Bayer AG, 70 Pa. D. & C. 4th 52, 76-77 (C.P. Phila. 2004)
(explaining that, pursuant to choice-of-law rules, nationwide class certification for a
UTPCPL claim was inappropriate, since the states in which each individual resided
possessed an overriding interest in protecting their own citizens). Appellant notes,
however, that use of choice-of-law rules is unnecessary where, as here, the parties
have already stipulated which law is to apply via a contractual choice-of-law provision.
Guardian’s argument largely aligns with the district court’s reasoning, namely,
that the UTPCPL only applies to non-residents when there exists a sufficient nexus
between the transaction or injury and the forum state, such that the improper conduct
6 Appellant also repeats his contention that, since the drafting and review of the
Agreement occurred at Guardian’s headquarters in Pennsylvania, the transaction may
be viewed as occurring within the Commonwealth. See Brief for Appellant at 30.
However, the first issue is specifically limited to the UTPCPL’s applicability with respect
to “transactions which occurred outside of Pennsylvania.” Danganan, 170 A.3d at 981
(order granting review).
7 “Choice-of-law rules” refers to the precepts used to select which jurisdiction’s laws to
apply in a lawsuit, with the controversy often arising in federal diversity suits. See, e.g.,
Gregory E Smith, Choice of Law in the United States, 38 HASTINGS L.J. 1041, 1041 n.1
(1987). In contrast, a choice-of-law provision, as in the Agreement here, pertains to a
contractual agreement between the parties as to which jurisdiction’s laws will govern the
parties’ relationship. See, e.g., John F. Coyle, The Canons of Construction for Choice-
of-Law Clauses, 92 WASH. L. REV. 631, 633 & n.6 (2017).
[J-85-2017] - 9
primarily and substantially occurred in Pennsylvania. Guardian contends that this test
strikes an appropriate balance between each state’s right to apply its own consumer
protection statutes to its own citizens and Pennsylvania’s right to govern conduct that
occurs within its borders. In this respect, Guardian observes that “[s]tate consumer
protection acts are designed to protect the residents of the states in which a deceptive
act occurs or the individual resides and therefore the state where the individual resides
has an overriding interest in applying the law of that state.” Brief for Guardian at 9
(quoting Lewis, 70 Pa. D. & C. 4th at 76). Further, Guardian posits that the sufficient
nexus test protects non-residents when the transaction or injury occurs in-state, citing a
number of cases demonstrating application of this principle. See Brief for Guardian at
10-11 (citing, inter alia, Wolfe, 773 F. Supp. 2d at 574-75; Mikola, No. 4:CV-07-0612,
2008 U.S.Dist. LEXIS 44201, at *9-10); see also A.H. Jr. v. Janssen Pharms., Inc., 2015
WL 6442359, at *8-9 (C.P. Phila. Oct. 1, 2015). Guardian proffers that the courts have
uniformly agreed that UTPCPL claims cannot be pursued by non-residents for an injury
that occurred extraterritorially. As for those victims who may remain unprotected under
this formulation, Guardian contends that the forum states’ consumer protection laws will
cover any potential gaps left by the UTPCPL’s limited reach.
Guardian also disputes Appellant’s textual interpretation of “person,” opining that
many of the statutory construction factors outlined in Meyer favor a sufficient nexus test,
ensuring that the focus of the claim remains where the allegedly deceptive act occurs.
Guardian particularly emphasizes that, as a consequence of Appellant’s interpretation,
anyone from anywhere in the world could assert a claim under the UTPCPL. See also
Lewis, 70 Pa. D. & C. 4th at 78 (“To hold that Pennsylvania law applies to [an
extraterritorial] transaction affords Pennsylvania law [a] scope [not] contemplated by the
Pennsylvania Legislature in enacting our choice of law rules [and would] require
[J-85-2017] - 10
manufacturers to adhere to the most restrictive standards imposed by any state[,
effectively granting] . . . national jurisdiction to every state legislature.” (alterations
added)).
Guardian further advances that “person” must be read in context, highlighting the
reference to “trade” and “commerce” and, in turn, those terms’ definition that cabins the
Law’s application to activities “directly or indirectly affecting the people of this
Commonwealth.” 73 P.S. §201-2(3). Guardian proffers that this view comports with the
notion that the UTPCPL is designed to address conduct that impacts Pennsylvania. As
for the “wherever situate” language in the definition of trade and commerce, id.,
Guardian explains that it modifies the property or services that underlie the purportedly
improper practices, but does not broaden the Law’s applicability. All of this, Guardian
develops, dovetails with the UTPCPL’s purpose of protecting Pennsylvanians, while
respecting each state’s interest in enforcing its own consumer protection law. Guardian
contends that employment of the sufficient nexus test, in this regard, ensures these
goals.
Guardian additionally contests the import of Thornell, distinguishing that case
insofar as it relied on an express legislative purpose section providing an intent to
“foster ‘fair and honest competition,’” which the UTPCPL does not have. Thornell, 363
P.3d at 591 (quoting WASH. REV. CODE §19.86.920). Guardian observes other statutory
differences, including that the Washington consumer protection statute does not require
reliance as an element of a plaintiff’s claim, whereas the UTPCPL does. Compare id. at
592, with Kern v. Lehigh Valley Hosp., Inc., 108 A.3d 1281, 1289-90 (Pa. Super. 2015).
Guardian concludes that the animating purpose and governing standards differ between
the laws such that Thornell does not support Appellant’s position.
[J-85-2017] - 11
Moreover, Guardian notes that, on remand, the trial court in Thornell ultimately
engaged in a choice-of-law analysis and concluded that a different jurisdiction had the
most significant relationship to the cause of action, employing reasoning that
substantively aligns with the sufficient nexus test. Guardian opines that the “rule
advanced by the Washington Supreme Court in Thornell proved to be an unworkable
standard in that very case.” Brief for Guardian at 22 (emphasis in original).
Additionally, Guardian contends that a choice-of-law analysis in this matter would reveal
that the UTPCPL only applies to non-residents when the allegedly wrongful conduct
occurred in Pennsylvania. See In re Actiq Sales & Mktg. Practices Litig., 790 F. Supp.
2d 313, 321 (E.D. Pa. 2011) (holding that, where the only contact to Pennsylvania is the
fact of the location of the defendant’s principal place of business, the UTPCPL will not
apply).
The question of whether the UTPCPL permits a non-Pennsylvania resident to
maintain a cause of action against a Commonwealth-headquartered business, based on
out-of-state transactions, presents a matter of statutory interpretation, for which our
review is de novo and plenary. See Commonwealth v. Cullen-Doyle, __ Pa. __, __, 164
A.3d 1239, 1241 (2017) (citation omitted). Our objective is to ascertain and effectuate
the Legislature’s intent. See 1 Pa.C.S. §1921(a); Commonwealth v. Griffith, 613 Pa.
171, 177, 32 A.3d 1231, 1235 (2011). Words that are clear and free from all ambiguity
are presumed to be the best indicator of legislative intent. See Commonwealth v.
Fields, 630 Pa. 625, 633, 107 A.3d 738, 743 (2014) (citing 1 Pa.C.S. §1921(b)).
Respecting the specific terms employed by the UTPCPL, we agree with
Appellant’s observation that the plain language definitions of “person” and “trade” and
“commerce” evidence no geographic limitation or residency requirement relative to the
Law’s application. Although the trade and commerce definition includes a clause
[J-85-2017] - 12
relating to conduct that “directly or indirectly affect[s] the people of this Commonwealth,”
that phrase does not modify or qualify the preceding terms. 73 P.S. §201-2(3). Instead,
it is appended to the end of the definition and prefaced by “and includes,” thus indicating
an inclusive and broader view of trade and commerce than expressed by the
antecedent language. See id. (defining those terms as “the advertising, offering for
sale, sale or distribution of any services and any property, . . . and any other article,
commodity, or thing of value wherever situate, and includes any trade or commerce
directly or indirectly affecting the people of this Commonwealth”).
Additionally, the notion of the UTPCPL as remedial legislation -- as well as its
corollary liberal interpretation, so as to “effect its object of preventing unfair or deceptive
practices” -- lends additional support to an understanding of the Law as protective of
non-residents in the absence of contrary statutory language. Monumental Props., Inc.,
459 Pa. at 460, 329 A.2d at 817. In this respect, we recognize, as we previously have,
the wide range of conduct the Law was designed to address, including equalizing the
bargaining power of the seller and consumer, ensuring the fairness of market
transactions, and preventing deception and exploitation, all of which harmonize with the
statute’s broad underlying foundation of fraud prevention. See id. at 458-59, 329 A.2d
at 815-16.
The Thornell court’s reasoning offers further persuasive support for this view.
Although Guardian accurately notes that the Washington Supreme Court relied, in part,
on the express legislative purpose provision of that state’s consumer protection law,
which the UTPCPL lacks, the two acts, which are analogous with respect to their
pertinent terms, reflect similarly broad goals predicated on preventing consumer fraud
and ensuring competitive fairness. Compare W ASH. REV. CODE §19.86.920 (providing
that the act is intended to foster “fair and honest competition”), with 73 P.S. §201-3
[J-85-2017] - 13
(“Unfair methods of competition and unfair or deceptive acts or practice . . . are hereby
declared unlawful.”). Additionally, as the Thornell opinion suggests, the alleged
misconduct of one Pennsylvania business may affect, in both direct and indirect ways,
the people of the Commonwealth, even if the subject transactions are aimed at non-
residents and occur wholly outside the state’s borders. See Thornell, 363 P.3d at 591
(“The commerce and trade that the abusive company brings into Washington, and the
alleged unfair and dishonest method by which it does so, affects the state economy and
thus affects the Washington public at large.” (alterations, quotation marks, and citation
omitted)). Accordingly, we find that the Law’s prescription against deceptive practices
employed by Pennsylvania-based businesses may encompass misconduct that has
occurred in other jurisdictions.
By viewing the UTPCPL in this manner, we necessarily reject the sufficient nexus
test as employed by the trial court and advanced by Guardian. Although the limitations
dictated by that test may have merit in terms of a policy approach, there is no textual
basis in the UTPCPL for its imposition, and the Court may not supply additional terms
to, or alter, the language that the Legislature has chosen. See Commonwealth v.
Tarbert, 517 Pa. 277, 295, 535 A.2d 1035, 1044 (1987). Moreover, the sufficient nexus
test, at least as it is described by Guardian, seems to be grounded in the notion that the
injury or transaction at issue must occur within the state, a concept that appears to
restate the now-rejected lex loci delecti rule. See Griffith v. United Air Lines, Inc., 416
Pa. 1, 21, 203 A.2d 796, 805 (Pa. 1964).
Regarding Guardian’s concern that any person around the globe may file a
cause of action pursuant to the UTPCPL without any connection to the Commonwealth,
Appellant accurately observes that other legal precepts may offer limitations, such as
jurisdictional principles and choice-of-law rules. To the degree that disputes pertaining
[J-85-2017] - 14
to these matters may remain in this case, they are for the district court to resolve. See,
e.g., SUMMARY OF PA. JURISPRUDENCE 2d §1:10 (explaining that a choice-of-law analysis
must be made “within the context of [the] specific litigation” (citing McSwain v. McSwain,
420 Pa. 86, 96-97, 215 A.2d 677, 683 (1966))).
III. Contractual Choice-of-Law Provision
The second issue certified for review, pertaining to the contractual expansion of
the UTPCPL’s purported limited reach, is dependent on a finding that “the UTPCPL
does not allow a non-Pennsylvania resident to invoke its protections.” Danganan, __
Pa. __, 170 A.3d 981 (order certifying questions of state law). Thus, in light of our
conclusion, pursuant to the first issue, that the text of the UTPCPL does not preclude its
application to non-residents, the second issue is now moot.8 See, e.g., Stevens v. MTR
Gaming Grp., Inc., 788 S.E.2d 59, 66 (W. Va. 2016) (“We decline to answer the second
and third certified questions, because they are mooted by our answer to the first
certified question.”); see also In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978)
(“It is well established in this jurisdiction that this Court will not decide moot questions.”
(citing Wortex Mills v. Textile Workers Union, 369 Pa. 359, 370, 85 A.2d 851, 857
(1952))).
IV. Conclusion
8 The parties also develop positions pertaining to whether the particular language of the
Agreement’s choice-of-law provision was intended by them to be limited to contract
causes of actions, rather than all claims arising from their contractual relationship,
including those pursuant to the UTPCPL. This advocacy concerns matters of
contractual interpretation, which are not presently suggested or subsumed by the
second issue under review. See Danganan, __ Pa. __, 170 A.3d 981 (order certifying
questions of state law). To the degree that the above contention remains at issue in this
case, it is for the district court to resolve in the first instance.
[J-85-2017] - 15
Accordingly, in response to the first certified question, we hold that a non-
Pennsylvania resident may bring suit under the UTPCPL against a Commonwealth-
headquartered business based on transactions that occurred out-of-state. We further
conclude that our answer to the first issue eliminates the predicate to the second
question certified for review. The matter is returned to the Third Circuit Court of
Appeals.
Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.
[J-85-2017] - 16