As Cash America admits, the Department’s previous letters did not bind the courts or have the force of law

As Cash America admits, the Department’s previous letters did not bind the courts or have the force of law

A clearly and unambiguously excludes from the CDCA’s purview an out-of-state lender with no principal, employee, agent, broker or office in Pennsylvania

The Department counters that it issued the Notice under its authority pursuant to Section 202.D of the Department of Banking Code, Act of ended, 71 P.S. § 733-202.D, to “issue statements of policy and interpretive letters necessary and appropriate to administer this act or any other statute within the department’s jurisdiction to administer or enforce.” The Notice merely interprets the CDCA and revises the Department’s interpretation in prior interpretive letters. An interpretation established through interpretive letter may be changed by a new interpretive letter. The Department announced the change in the Pennsylvania Bulletin to assure the widest possible public notice. In terms of R.M., the plain language states that the Department is announcing a new interpretation that will be applied in the future; the manner is consistent with its authority under the Department of Banking Code to interpret the CDCA; and the Notice preserves discretion by stating that violators may be subject to enforcement. See Chimenti v. Pennsylvania Department of Corrections, 720 A.2d 205 (Pa.Cmwlth.1998) (holding that document interpreting wiretapping act but reserving agency’s discretion in applying the policy was a statement of policy), aff’d, 559 Pa. 379, 740 A.2d 1139 (1999).

The Court accepts the Department’s position on this issue. Although Cash America insists that the Department’s prior interpretations were correct, it concedes that they were contained in interpretive letters. The Department states that no principle of administrative law prevents an agency from reconsidering its interpretation of a statute that it enforces. The Department does not claim that its new interpretation is binding on the courts or even the Department. The manner of adopting the change was consistent with the Department’s authority to enforce the CDCA through interpretive letters, and it reserved some discretion. The Notice therefore represents a statement of policy. See Insurance Fed’n of Pennsylvania, Inc. v. Insurance Department, 929 A.2d 1243 (Pa.Cmwlth.2007) (holding that agency notice was statement of policy that interpreted existing law), judgment aff’d, — Pa. —-, 970 A.2d 1108 (2009).

In addition, Cash America notes that when the CDCA was enacted in 1937 the Commerce installment loans Illinois Clause of the United States Constitution was interpreted by the United States Supreme Court to prohibit states from imposing licensure or other requirements on out-of-state businesses

Cash America argues on its substantive challenge that Section 3. Cash America submits that the phrase “either as principal, employe, agent or broker” is a modifier to the immediately preceding phrase “in this Commonwealth.” Thus if a lender does not have a “principal, employe, agent or broker” in Pennsylvania, then the lender is not “in this Commonwealth.” Cash America contends that this is the only interpretation that gives meaning to all of the act’s words. See Lee Publ’ns, Inc. v. Dickinson School of Law, 848 A.2d 178 (Pa.Cmwlth.2004) (stating that if possible courts must construe a law to give effect to all provisions so that all words have meaning and none are treated as surplusage); 1 Pa.C.S. § 1921(a). 3 It points out that for more than 70 years no one suggested that the CDCA applied to out-of-state lenders, and it bristles at the assertion that the only natural reading of Section 3.A is the opposite of what the Department has said for years.

It quotes Crutcher v. Kentucky, 141 U.S. 47, 58, 11 S.Ct. 851, 35 L.Ed. 649 (1891), which invalidated a statute requiring in-state agents of out-of-state companies to obtain a license before doing business in Kentucky, even though the agent was located in Kentucky and did substantial intrastate business, and stated that “a state law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce?” While the Commerce Clause is no longer interpreted so strictly, the Pennsylvania Supreme Court ic view of the constitutionality of a statute that would measure legislative intent in light of constitutional authority that did not exist when the legislature acted. Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042 (2003). 4