DocketNumber： 1141 C.D. 2008
Judges： Leadbetter, McGinley, Pellegrini, Simpson, Leavitt, Brobson, McCullough
Filed Date： 10/27/2011
Status： Precedential
Modified Date： 10/26/2024
OPINION BY
This first of two related interlocutory appeals by permission returns to us after our Supreme Court vacated our prior decision in Meyer v. Community College of Beaver County, 965 A.2d 406 (Pa.Cmwlth.2009) (en banc) and remanded the case to us. In doing so, the Supreme Court determined that the part of the Judicial Code commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act)
Generally, the Community College appeals an interlocutory order of the Court of Common Pleas of Beaver County (trial court) denying its motion for partial summary judgment. A group of former students (Plaintiffs)
I. Pleadings
In May 2002, before Plaintiffs completed the Academy’s course of study, the Pennsylvania Municipal Police Officers’ Education and Training Commission (Training Commission) suspended the Academy’s Act 120 certification. The Training Commission based the suspension on numerous violations. The Training Commission officially revoked the Academy’s Act 120 certification in August 2002.
Thereafter, Plaintiffs filed a complaint against the Community College that alleged as follows. In its 2000-01
The Community College filed preliminary objections, only some of which are relevant now. In addition to issues regarding whether it is subject to liability under the CPL and whether it is immune from statutory-based claims, the Community College challenged the sufficiency of averments of fraud.
As pertinent to the current discussion, the trial court allowed CPL claims sounding in contract to proceed; however, the trial court sustained objections to all claims sounding in fraud, including CPL claims, because the averments did not establish scienter on the part of the Community College.
Plaintiffs filed an amended complaint. They repeated their previous claims for breach of contract and breach of warranty. As to claims under the CPL, they removed averments of fraudulent conduct, but they retained averments that conduct was unfair and deceptive. This pleading will be discussed below. Plaintiffs alleged substantial economic losses as a result of the Community College’s violations of the CPL. They also sought treble damages and an award of costs and attorney fees under Section 9.2 of the CPL.
A second round of preliminary objections was filed. Relevant now, the Community College challenged Plaintiffs’ pleading of misrepresentations, asserting the averments reintroduced CPL claims sounding in fraud, contrary to the trial court’s ruling on the first set of preliminary objections. Accepting Plaintiffs’ arguments that the language sought to bolster breach of contract and warranty claims and not to plead a cause of action in fraud, the trial court overruled the objections.
II. Partial Summary Judgment
After the close of pleadings and discovery, the Community College filed a motion for partial summary judgment. Relevant to this appeal, the Community College argued the CPL does not apply to community colleges and, as a local agency, a community college is immune from CPL claims under 42 Pa.C.S. § 8541, part of the Tort Claims Act.
Ultimately, the trial court denied the Community College’s motion for partial summary judgment. The trial court rejected the assertion the CPL does not apply to community colleges. It further rejected the immunity defense on the basis that some of Plaintiffs’ CPL claims sound in contract, not in tort. In denying the motion for partial summary judgment, the trial court reasoned (with emphasis added):
The party opposing a motion for summary judgment must provide an eviden-tiary foundation to demonstrate the existence of a genuine issue of material fact. In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather*590 to determine whether any such issues exist.
Our courts have been reluctant to recognize claims of educational malpractice in the academic environment but they have recognized that a contract exists between a student and a college. The courts have held that in general, the basic legal relationship between a student and a private university or college is contractual in nature. The catalogs, bulletins, circulars, and regulations of the institution made available to the matriculant become part of the contract. Questions of discipline, academic matters, and tuition and scholarship disputes have been addressed by courts and resolved on contract principles. At the same time, however, courts have been reluctant to apply strict contract concepts to the unique relationship that exists between students and universities or colleges.
Trial Ct. Slip Op., 5/12/08, at 5, Reproduced Record (R.R.) at 258.
In response to the denial of its motion, the Community College filed a motion to amend the order to certify for an interlocutory appeal of the following two issues: whether the Community College is a “person” as defined in Section 2(2) of the CPL, 73 P.S. § 201-2(2); and, whether the Community College is immune to prosecution because the CPL sounds in tort and the Community College is immune to tort actions under the Tort Claims Act. The trial court granted the Community College’s motion. This Court allowed the appeal.
III. Meyer II
After argument, an en banc panel of this Court reversed the trial court, holding that regardless of whether the Community College was a “person” under the CPL, it was immune from claims for statutory damages under the Tort Claims Act. The Supreme Court, however, permitted a discretionary appeal. Ultimately, it reversed and remanded, with direction.
The majority opinion was authored by Mr. Justice Saylor. The majority concluded that our application of the Tort Claims Act to statutory damages was not sustainable. The majority emphasized the main policy considerations historically underlying tort law, centered on injury to a person or property. See Meyer II, 606 Pa. at 54445, 2 A.3d at 502. This was contrasted with the central focus of contract law, the protection of bargained-for expectations. Id. The Torts Claims Act was intended to apply to the former, not the latter. Id. Consequently, the Supreme Court held that governmental immunity does not extend to all statutory causes of action, regardless of whether they sound in tort or contract. See id. at 545-46, 2 A.3d at 503.
In a lengthy note responding to the concurring opinion, the majority presumed the first order of business on remand would be for this Court to undertake the threshold determination of whether the Legislature intended for the government to be subject to private actions under Section 9.2 of the CPL. Id. at 546 n. 6, 2 A.3d at 503 n. 6. The majority highlighted the Plaintiffs’ argument referencing Commonwealth Court opinions holding that the Legislature did not intend to include governmental entities within a listing of persons and entities which might technically encompass them where it did not include the governmental entity expressly. See, e.g., Huffman v. Borough of Millvale, 139 Pa.Cmwlth. 349, 591 A.2d 1137 (1991); see also Leonard v. Masterson, 70 A.D.3d 697, 896 N.Y.S.2d 358 (N.Y.App.Div.2010).
In her concurring opinion, Madame Justice Orie Melvin expressed her preference for directing this Court “to examine the pleadings on remand to determine whether
IV. Issues
A. “Person” Under CPL
1. Contentions
The Community College first asserts it is not included in the CPL’s definition of a “person” and thus not subject to prosecution under Section 9.2 of the CPL. Section 2(2) of the CPL, 73 P.S. § 201-2(2), defines a “person” as follows (with emphasis added):
‘Person’ means natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entities.
Clearly, no form of government unit or public authority is expressly included in the definition. What is less clear is whether the phrase “any other legal entities” extends to public agencies.
Section 9.2(a) of the CPL, which deals with private actions for alleged violations of that statute, uses the defined term “person” as follows:
(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.
73 P.S. § 201-9.2(a) (emphasis added). Notably, this provision uses the term “person” to describe both a plaintiff and a defendant in a private action under the CPL.
The Community College contends that public subdivisions and municipal corporations are recognized as unique statutory entities and are afforded defenses based on that status. One such defense is the well-established prohibition against a presumption that a public entity is subject to suit without having been specifically identified within the statute.
The Community College relies on-various Pennsylvania appellate court decisions for the proposition that unless specifically named, public entities are excluded from the reach of statutes even where “catchall” language is present. E.g., In re Keifer, 430 Pa. 491, 243 A.2d 336 (1968) (an established principle of statutory construction: an act does not deprive the Commonwealth of any prerogative, right, or property unless the Commonwealth is specifically named or the intention to include it is necessarily implied); Hoffman v. City of Pittsburgh, 365 Pa. 386, 75 A.2d 649 (1950) (applicability of statutes to public entities never presumed); Huffman (borough beyond reach of Wage and Payment
Further, the Community College cites various Pennsylvania statutes as evidence that the General Assembly knew how to specifically include public entities within “catch-all” provisions.
In contrast, Plaintiffs assert that a “plain language” reading of the CPL definition of “person” leads to the. conclusion that it includes the Community College, which is a legal entity. Citing TIG, they argue that statutory construction rules in general, and the rule of expressio unius est exclusio alterius in particular, should not be applied where the words of a statute are clear and unambiguous.
Plaintiffs also contend that there is no rule of construction that would require the General Assembly to name community colleges in a statute in order to evince its intent to apply the statute to those entities. Many of the cases referenced by the Community College are inapplicable because they deal with the sovereign, the Commonwealth, and not with a local agency. Also, those cases make clear that the rule of construction was applied to protect the Commonwealth’s rights and prerogatives from diminution, as by the application of a statute of limitations. Because application of the CPL to the Community College will not involve the Commonwealth as a party or the diminution of any right of the Commonwealth, the cases are inappo-site. Plaintiffs also remind this Court of the reasoning which compelled the Supreme Court to abolish sovereign immunity.
Further, Plaintiffs contend there is no legislative intent to exclude community colleges from application of the CPL. Assuming that resort to rules of construction is appropriate, various rules support their position. Thus, although a court must assume that the General Assembly intends the entire statute to be effective, 1 Pa.C.S. § 1922(2), the Community College approach would render the definitional phrase “any other legal entities” ineffective. Also, cases require that the CPL be liberally construed to effectuate the legislative goal of consumer protection. Com
Finally, Plaintiffs seek to distinguish Huffman, which involved the definition of “employer” under the Wage and Payment Collection Law, and the other statutory definitions upon which the Community College relies.
2. Discussion
a.Statutory Construction
The parties here advance competing interpretations regarding the meaning of “person” as defined in the CPL. Because the parties offer conflicting interpretations of the relevant statutory provision, the term is ambiguous. See, e.g., Malt Beverage Distribs. Ass’n v. Pa. Liquor Control Bd., 601 Pa. 449, 974 A.2d 1144 (2009). (statute is ambiguous where parties offered conflicting, but plausible interpretations). “As in all cases where a latent ambiguity in [a] statute exists, we resort to the canons of statutory construction to discover the Legislature’s intent.” Id. at 463, 974 A.2d at 1153.
When statutory language is not explicit, the intention of the General Assembly may be ascertained by considering the mischief to be remedied, the object to be attained, and the consequences of a particular interpretation. 1 Pa.C.S. § 1921(c)(3), (4), (6). Further, in ascertaining legislative intent, the Statutory Construction Act requires a presumption that “the General Assembly did not intend a result that is absurd or unreasonable” as well as a presumption that “the General Assembly intends to favor the public interest as against any private interest.” 1 Pa.C.S. § 1922(1), (5).
b.Dual Use of “Person”
The General Assembly’s intent is revealed by a careful examination of the entire CPL. As noted above, the term “person” in Section 9.2 is used not just to refer to a defendant, such as the Community College here, but also to refer to a plaintiff. This dual use of the term is consistent throughout the CPL. See, e.g., Section 4.1 of the CPL,
Examining the context in which “person” is used throughout the CPL, we conclude that the General Assembly intended the term to have a uniform meaning. Thus, there is nothing in the way the General Assembly used the term to indicate it meant something different depending on whether it referred to a plaintiff or a defendant. Also, there is nothing in the way the General Assembly used the term to indicate it meant something different in each section of the CPL.
c.“Person” as Plaintiff/ Actions in the Public Interest
We first consider use of the term “person” to connote a plaintiff in an action based on violations of the CPL. Evaluating the consequences of a particular interpre
Moreover, the absurdity of such a construction is most evident with regard to Sections 4,
A construction under which a local agency is not a plaintiff “person” results in the inability of a local agency to recover past lost sums under Section 4.1. This is true even if suit brought in the public interest is successful and prospective injunctive relief is granted. In short, even where suit in the public interest is successful, a local agency would have no retrospective remedy, only a prospective remedy. Such a result is indefensible, clearly not in the public interest, and inconsistent with our
d. “Person” as Defendant/ Liberal Construction
We now consider use of the term “person” to mean a defendant in a suit based on violations of the CPL. One way to protect the public fisc is to construe the CPL so that local agencies are not “persons” and therefore can never be defendants. As discussed above, however, such an overbroad prohibition absurdly limits the right of local agencies to recover as plaintiffs. Moreover, such a construction unnecessarily restricts the rights of ordinary consumers or other legal entities to recover against local agencies should agency practices be unfair or deceptive so as to violate the CPL. Such a construction is not consistent with our charge to liberally construe the CPL to achieve its objectives. Id.
A more targeted approach to protecting the public interest is to limit those circumstances in which a “person,” can be liable. Indeed, the CPL contains express limitations on liability.
First, a “person” is only liable if it is engaged in trade or commerce, as those terms are defined. See Section 2(3) of the CPL, 73 P.S. § 201-2(3). This status filter operates to protect defendant “persons,” including local agencies, from broad liability-
Second, Section 3 of the CPL, 73 P.S. § 201-3, contains specific exclusions from liability. The exclusions cover those who, in good faith and without knowledge of falsity or deceptive character, are involved in the broadcast or publication of an advertisement which may violate the CPL. Tellingly, the exclusions do not more broadly shield local agencies from liability.
Third, Section 9.2 of the CPL, addressing actions other than those brought in the public interest, limits liability on the basis of the purpose of the transaction. In particular, before a “person” can be liable as a defendant in such an action, the transaction must involve “personal, family or household purposes.” See Valley Forge Towers S. Condo, v. Ron-Ike Foam Insulators, Inc., 393 Pa.Super. 339, 574 A.2d 641 (1990), aff'd, 529 Pa. 512, 605 A.2d 798 (1992). Through this additional transaction-purpose filter, the General Assembly endeavored to focus recovery on consumer-based practices and to protect defendant “persons,” including local agencies, from expansive liability.
Fourth, a careful review of Sections 4, 4.1, and 8(b) of the CPL, relating to suits brought in the public interest, supports our analysis. Thus, suits by the Attorney General or district attorney in the name of the Commonwealth must be based on a determination by an elected official that such a suit is in the public interest. See Weinberg v. Sun Co., Inc., 565 Pa. 612, 777 A.2d 442 (2001). This determination is a prerequisite to injunctive relief under Section 4 (prospective), restorative relief under Section 4.1 (retrospective), and civil penalties under Section 8(b). We conclude that this additional “public interest” filter functions to protect all defendant “persons,” including local agencies, from inappropriate suit.
In sum, considering the statute’s dual use of the term “person” to mean both plaintiff and defendant, the provisions for suits in the public interest, the consequences of a construction in which the phrase “any other legal entities” does not include local agencies, and the existence of additional filters to protect all “persons,”
e. Community College’s Arguments
The Community College does not acknowledge the dual use issue, and it does not address use of the term “person” throughout the CPL. Also, the Community College does not address the import of provisions for suits in the public interest. Because the Community College does not contemplate the full implications of the construction for which it advocates, its contentions are not persuasive.
Also, given our analysis based on the terms and structure of the CPL, we specifically reject those arguments based on cases which do not involve this statute and those arguments based on unrelated statutes. In particular, we reject as inapplicable the argument based on Kiefer, Hoffman, and Huffman
Further, we distinguish Leonard, which was referenced by our Supreme Court majority in Meyer II. Leonard, involved a suit in mandamus seeking to compel a superintendent of highways to commence proceedings to declare a private road over land owned by a county. Thus, the petitioner sought a private taking of public land under the Highway Law. The Supreme Court, Appellate Division, determined:
The Highway Law provisions at issue do not specifically or necessarily include governmental entities such as the County. Indeed, by providing for the payment of damages to a ‘person or persons’ through whose land the private road is to pass (Highway Law § 307), the Legislature evinced an intention not to provide for the taking of land owned by a governmental entity. It has long been the law ... that the term ‘person’ generally does not include a governmental entity ... unless a statutory definition expressly includes that governmental entity within the meaning of the term.
70 A.D.3d at 698, 896 N.Y.S.2d at 360 (citations omitted).
For the reasons discussed, we conclude that the Community College is a “person” as defined in the CPL. Therefore, no trial court error is evident on this issue.
B. Immunity under Tort Claims Act
1. Contentions
The Community College next asserts that as a public entity it is immune from tort actions under the Tort Claims Act, except for certain exceptions not relevant here. For several reasons, it asserts the CPL sounds in tort; accordingly, an action for violation of the CPL is a tort action to which immunity under the Tort Claims Act applies.
As to the standard by which to distinguish actions sounding in tort from actions sounding in contract, the Community College advocates several approaches. First, it suggests that for an action to sound in contract there must be an underlying enforceable contract. Where, as here, there is no underlying enforceable contract, the claim cannot sound in contract and must therefore sound in tort. Moreover, courts recognize that attempts to circumvent the Torts Claim Act by reclassifying an action as sounding in contract are not sufficient to avoid immunity.
Citing Matarazzo v. Millers Mutual Group, Inc., 927 A.2d 689 (Pa.Cmwlth.2007) (application of Tort Claims Act to municipal authority despite attempts to raise contract claim; CPL not involved), the Community College suggests another approach to distinguishing between actions sounding in tort and actions sounding in contract. Under this approach, tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual agreements between the parties. Id. at 694. Because the CPL is intended to remedy a breach of social policy related to fraud and unfair and deceptive trade practices, suit for violation of the CPL provisions in question here sounds in tort.
As a third approach, the Community College offers the misfeasance/nonfeasance dichotomy discussed in Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936 (Pa.Cmwlth.2002), rev’d on other grounds, 578 Pa. 479, 854 A.2d 425 (2004) (class action by season ticket holders under CPL; preliminary objections). Under this approach, where, as here, there is misfeasance, the “gist” of the action sounds in tort.
Further, the Community College reminds us that judicial and statutory limitations to damages available against a public entity would be reversed by a decision against it. The Community College specifically refers to treble damages available under Section 9.2 of the CPL.
Finally, the Community College seeks to distinguish cases relied upon by Plaintiffs,
In response, Plaintiffs contend that the Tort Claims Act does not apply to their claims. Claims under the CPL may sound in contract, warranty, tort, fraud and other common law forms of action. The trial court correctly determined that Plaintiffs’ claims sound in contract or warranty. The claims are not based on general social obligations but on private agreements between the parties.
Plaintiffs also assail the Community College’s argument that they attempt to plead contract claims as a way of avoiding immunity. In the process of disputing this argument, Plaintiffs seek to distinguish cases upon which the Community College relies, including Matarazzo and cases discussing the relationship between a student and a college.
Addressing the damages available under the CPL, Plaintiffs contend that statutory damages, including possible treble damages and attorneys’ fees, do not transform contract claims into tort claims. The statutory damages are legislative remedies, not punitive damages.
Finally, Plaintiffs argue that the question of whether their claims sound in contract cannot be answered by reference to a social policy allegedly embodied in the CPL. In their discussion of this point, Plaintiffs reference the Supreme Court’s decision in Weinberg, which addressed a private plaintiff’s burden of proof in the context of class certification.
2. Discussion
In her concurring opinion, Madame Justice Orie Melvin encouraged this Court “to examine the pleadings on remand to determine whether the [Plaintiffs’] claims satisfy the CPL. If sufficient facts have been pled, the Commonwealth Court should ascertain whether the claims sound in tort or in contract and dispose of the matter accordingly.” Meyer II, 606 Pa. at 549, 2 A.3d at 505. As to ascertaining whether the claims sound in tort or in contract, Mr. Justice Saylor, writing for the majority, reminded us that the central focus of contract law is the protection of bargained-for expectations. Id. at 544-45, 2 A.3d at 502.
In their amended complaint, Plaintiffs alleged the Community College violated the CPL in the following manner:
56. In connection with the sale of its educational services and collection of tuition, fees and costs related thereto, the College committed various unfair and deceptive acts and practices in violation of the CPL, including, but not limited to:
(a) Representing, warranting and guaranteeing in writing that the Academy was in compliance with Act 120 when in fact it was not;
(b) Representing that the Plaintiffs would be eligible for certification under Act 120 upon completion of the Academy, when they would not be eligible;
(c) Misrepresenting the nature and qualifications of the Academy;
(d) Making the material representations described in Paragraphs 3 through 51 of this Complaint; and
(e) Oppressing and abusing Plaintiffs by charging and collecting unauthorized and illegal fees, costs, expenses and tuition.
57. Each Plaintiff relied upon the various warranties and misrepresentations*599 of the College in entering their agreements with the College and in continuing to make payments to the College. 58. The College’s unfair and deceptive conduct (a) constituted untrue representations of the approval, characteristics, certifications, sponsorships, affiliations, uses and benefits of the College’s educational services; (b) constituted untrue representations that the Academy was of a particular standard or quality; (c) caused confusion and misunderstanding as to the Academy’s certification and approval; (d) constituted a failure to comply with the terms of a written guarantee or warranty; and (e) constituted deceptive conduct which created a likelihood of confusion and misunderstanding — all within the meaning of [Section 3 of the CPL] and Sections 2(4)(ii), (iii), (v), (vii), (xiv) and (xxi) of the CPL],
Pis.’ First Am. Compl. at 13, R.R. at 114. Thus, Plaintiffs allege conduct proscribed by the CPL as defined in Sections 2(4)(ii), (iii), (v), (vii), (xiv) and (xxi), 73 P.S. § 201-2(4)(ii), (iii), (v), (vii), (xiv), (xxi).
Moreover, we conclude that these aver-ments sound in contract rather than tort. Clearly, the averments relate to the sale of educational services. Under these aver-ments, the protection of bargained-for expectations is implicated.
Further, Plaintiffs brought an action under Section 9.2 of the CPL. As discussed elsewhere, such an action may be brought by a person “who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss_”73 P.S. § 201-9.2. Thus, an action under Section 9.2 of the CPL must be transaction based. For this additional reason, we conclude Plaintiffs’ action under the CPL sounds in contract.
Regarding the Community College’s argument raising the specter of treble damages, no ruling is necessary at this time, for several reasons. First and foremost, the trial court did not address this issue in denying the motion for partial summary judgment. Second, “[Plaintiffs] are not sure to recover [treble] damages.... ” See Meyer II, 606 Pa. at 549, 2 A.3d at 505 (Orie Melvin, J., concurring opinion). The speculative nature of such recovery is highlighted by the trial court’s decision on the first round of preliminary objections and the current pleadings. In particular, the trial court struck off claims for fraud
As a consequence of these conclusions, we hold that immunity under the Tort Claims Act does not apply to Plaintiffs’ CPL claims. Therefore, we discern no error in the trial court’s ruling on this issue.
V. Conclusion
For all the foregoing reasons, we affirm the decision of the trial court denying the Community College’s motion for partial summary judgment. The case is returned to the trial court.
ORDER
AND NOW, this 27th day of October, 2011, the order of the Court of Common Pleas of Beaver County denying the Motion for Partial Summary Judgment is AFFIRMED.
Jurisdiction is relinquished.
. 42 Pa.C.S. §§ 8541-42.
. Act of December 16, 1968, P.L. 1224, as amended, 73 P.S. §§ 201.1-201-9.3.
. Plaintiffs are David J. Meyer, Dallas Berry, Charles J. Brown, Jeremy Lee Fox, Martin Górecki, Anthony J. Hollibaugh, Lisa L. Sal-yers, Rochell Sykes, Joseph W. Vucick, David L. Wigley, Dennis W. Woodley, Chris Mack and Tammy Muslo. This appeal was argued seriately with Community College of Beaver County v. Barr, 31 A.3d 994 (Pa.Cmwlth., No. 1142 C.D. 2008, filed October 27, 2011). The only significant difference between the two cases is Plaintiffs here completed one half of their course of study; the Barr plaintiffs completed virtually the entire course of study.
.Although Plaintiffs attended the Academy during the 2001-02 school year, the College provided them with 2000-01 catalogs. The College did not receive its 2001-02 catalogs until October 2001. See App. to the College’s Br. in Supp. of Mot. for Summ. J., Tab 26 (Dep. of Harriet Ann Wallace at 3).
. Section 9.2 of the CPL was added by the Act of November 24, 1976, P.L. 1166, as amended, 73 P.S. § 201-9.2.
. Thereafter, the Community College filed an answer and new matter denying Plaintiffs’ allegations. In its new matter, the Community College asserted various claims and defenses including failure to state a cause of action, immunity, and statute of limitations.
. Our scope of review of a trial court’s order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion. Kincel v. Dep’t of Transp., 867 A.2d 758 (Pa.Cmwlth.2005).
. Act of July 14, 1961, P.L. 114, as amended, 43 P.S. §§ 260.1-260.45.
. Section 102(b) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-102(b) (definition of "person” expressly includes "government or governmental subdivision or agency” in addition to "any other legal entity”); Section 911(h)(3) of the Crimes Code, 18 Pa.C.S. § 911(h)(3) (definition of "enterprise” specifically includes "legitimate as well as illegitimate entities and governmental entities" in addition to "other legal entity” for purposes of corrupt organization sanctions); Section 103 of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. § 6018.103 (definition of "person” specifically includes "municipal authority, Federal Government or agency, State institution and agency” as well as "any other legal entity whatsoever....”).
. Section 4.1 of the CPL was added by the Act of November 23, 1976, P.L. 1166, 73 P.S. § 201-4.1.
. Section 9.1 of the CPL was added by the Act of November 23, 1976, P.L. 1166, 73 P.S. § 201-9.1.
. It is undisputed that the Community College is a local agency for purposes of governmental immunity. Meyer II, 606 Pa. at 542 n. 2, 2 A.3d at 500 n. 2.
. Section 4 of the CPL, 73 P.S. § 201-4, provides in pertinent part:
Whenever the Attorney General ... has reason to believe that any person is using or is about to use any method, act or practice declared by section 3 of this act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the Commonwealth against such person to restrain by temporary or permanent injunction the use of such method, act or practice.
. Section 4.1 of the CPL, 73 P.S. § 201-4.1, provides in pertinent part:
Whenever any court issues a permanent injunction to restrain and prevent violations of this act as authorized in section 4 above, the court may in its discretion direct that the defendant or defendants restore to any person in interest any moneys or property, real or personal, which may have been acquired by any means of any violation of this act, under terms and conditions to be established by the court.
.Section 8(b) of the CPL, 73 P.S. § 201-8(b), provides in pertinent part:
(b) In any action brought under section 4 of this act, if the court finds that a person, firm or corporation is willfully using or has willfully used a method, act or practice declared unlawful by section 3 of this act, the Attorney General or the appropriate District Attorney, acting in the name of the Commonwealth of Pennsylvania, may recover, on behalf of the Commonwealth of Pennsylvania, a civil penalty of not exceeding one thousand dollars ($1,000) per violation, which civil penalty shall be in addition to other relief which may be granted under sections 4 and 4.1 of this act. Where the victim ... is sixty years of age or older, the civil penalty shall not exceed three thousand dollars ($3,000) per violation, which penalty shall be in addition to other relief which may be granted under sections 2 and 4.1 of this act.
. We decline to adopt the approach em- . braced by Judge Brobson in his dissenting opinion. While he posits that many public agency activities may satisfy the "trade or commerce” requirement of the CPL, he does not address the "transaction-purpose” requirement for actions under Section 9.2. Also, he does not address the most fundamental limitation on liability: that trade or commerce conduct must be "unfair or deceptive.” See Section 3 of the CPL, 73 P.S. § 201-3. We see nothing in the language or structure of the CPL to suggest a legislative intent to insulate local agencies engaged in trade or commerce from responsibility for unfair or deceptive practices which cause a loss to Pennsylvania consumers.
. Although not controlling, we observe that the United States District Court for the Middle District of Pennsylvania declined to follow Huffman and the expressio unius est exclusio alterius rule; rather, the court predicted the Supreme Court of Pennsylvania would hold that the Wage Payment and Collection Law applies to municipal corporations. See Carstetter v. Adams County Transit Auth., 2008 WL 2704600 (M.D.Pa.2008) at *31-32 (unpublished opinion).
. Section 2(4) of the CPL, 73 P.S. § 201-2(4), provides in relevant part:
(4) "Unfair methods of competition” and "unfair or deceptive acts or practices” mean any one or more of the following:
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(ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another;
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(v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;
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(vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
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(xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made;
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(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.