The Department’s initial brief first asserts that Pennsylvania has authority to apply its laws to Cash America, quoting Aldens, Inc
Cash America Net of Nevada, LLC (Cash America) filed its petition for review in the nature of a complaint in equity on seeking to have the Notice declared unlawful and to enjoin Respondents from implementing or enforcing it. It averred that it is a limited liability company existing under the laws of Delaware and that it is qualified to do business in Nevada. Further, it has no personnel physically present in Pennsylvania acting as principal, employee, agent or broker and has no office of any kind in Pennsylvania. It characterized the Notice as a binding norm setting forth a bright-line non-discretionary rule.
In Pennsylvania Human Relations Commission v. Norristown Area School District, 473 Pa. 334, 350, 374 A.2d 671, 679 (1977), the Supreme Court held that agency action constitutes a regulation, as opposed to a general statement of policy, when it purports to establish a “binding norm.” In Norristown the court explained that a general statement of policy is neither a rule nor a precedent but is merely an announcement to the public of the policy that an agency intends to implement in future rulemakings or adjudications. A properly adopted substantive rule establishes a standard of conduct that has the force of law, and the underlying policy generally is not subject to challenge before the agency. Id. A statement of policy does not establish a binding norm. Id. To determine whether an agency has attempted to establish a binding norm without required procedure, courts consider the plain language of the enactment, the manner in which the agency implemented the provision and whether its discretion is restricted by the provision. R.M. v. Pennsylvania Housing Finance Agency of Commonwealth, 740 A.2d 302 (Pa.Cmwlth.1999). Citing Eastwood Nursing & Rehabilitation Center v. Department of Public Welfare, 910 A.2d 134 (Pa.Cmwlth.2006), Cash America submits that the Notice is a regulation: it provides that out-of-state lenders must be licensed, is not phrased in terms of future rulemakings and leaves no leeway as to licensure.
v. Packel, 524 F.2d 38, 43 (3d Cir.1975) (holding that “Pennsylvania’s interest in the rates which its residents pay for the use of money for purchase of goods delivered into Pennsylvania” justified application of the Goods and Services Installment Sales Act to an Illinois company with no physical presence in the Commonwealth). Moreover, it contends, Cash America is violating the LIPL by charging exorbitant interest greatly in excess of 6% annual interest, which is the maximum permitted for loans under $50,000 in general by Section 201(a), 41 P.S. § 201(a). This has been a feature of Pennsylvania law for more than 150 years.
” Equitable Credit & Discount Co. v. Geier, 342 Pa. 445, 453, 455, 21 A.2d 53, 57, 58 (1941). Remedial statutes “are to be liberally construed to effect their objects.” O’Rourke v. Department of Corrections, 566 Pa. 161, 177, 778 A.2d 1194, 1203 (2001). 5
Pursuant to Pa. R.A.P. 1532(b), summary relief may be granted when a party’s right to judgment is clear and no material issues of fact are in dispute. Jubelirer v. Rendell, 598 Pa. 16, 953 A.2d 514 (2008). Based upon its review of the issues and relevant statutory and case law authority, the Court concludes that the Department’s right to judgment is clear and no material facts are in dispute. The Department therefore is entitled to sumerica failed to establish that it is entitled to summary relief, its application for such relief is denied. Accordingly, the Court hereby erica’s practice of making payday loans to Pennsylvania residents is not authorized by the laws of this Commonwealth and that such lending specifically violates the CDCA and LIPL.
The Department also argues that the remedial purpose of the CDCA, its legislative history and Department experience support application of the CDCA to Cash America
nonmortgage consumer lending to Pennsylvania residents by any means, including by means of the internet or by mail, constitutes engaging in such business “in this Commonwealth” as contemplated by Section 3.A of the Consumer Discount Company Act (CDCA) (7 P.S. § 6203.A).
Its central purpose is to protect borrowers “against extortionate interest charges” for “loans of comparatively small amounts, since the business of making such loans profoundly affects the social life of the community
Indeed, the legislature could have easily amended the CDCA to apply to interstate transactions. For example, the Goods and Services Installment Sales Act, 6 the Pennsylvania Securities Act of 1972 7 and the Debt Management Services Act 8 all include provisions which specifically make those statutes applicable to transactions made by out-of-state entities with Pennsylvania residents. 9 Clearly, the legislature knows how to craft a statute to make it applicable to an out-of-state actor. The legislature did not, however, use this knowledge to amend the CDCA.
The issues surrounding payday loans should be presented to the legislature. The legislature can then decide what is best for Pennsylvania residents and determine whether to outlaw entirely or to regulate payday lending practices. Legislation is the means necessary to usher in the “change in policy” sought by the Department as well as amici curiae. For the Department to outlaw payday loans by administrative fiat violates the long-standing principle that an “administrative agency can only exercise those powers which have been conferred upon it by the Legislature in clear and unmistakable language.” Aetna Casualty and Surety Co. v. Insurance Department, 536 Pa. 105, 118, 638 A.2d 194, 200 (1994) (citation omitted).