911 Act; Statutory Construction Act Section 1504 and Common Law

County of Butler v. Centurylink Communications, LLC,  163 A.3d 504 (Pa. Cmwlth. 2017), allocatur granted Dec. 27, 2017, 66 WAP 2017

Pursuant to the statute that establishes the 911 emergency communication system, Pennsylvania counties are responsible for the system’s “implementation, operation and maintenance.” 35 Pa. C.S. §§ 5301–5312.1. However, other entities are involved in the process.  The Pennsylvania Emergency Management Agency (PEMA) has a statutorily prescribed role, including the right to enforce the statute.  Telecommunication providers are also responsible for various billing matters. The dispute in this case involves whether PEMA’s right is exclusive, and whether counties, who lack statutory authority to enforce the statute, but who have a clear stake in matters relating to the 911 system, may bring suit under common law rights notwithstanding absence of statutory authority, to enforce the statutory provisions that deal with collection of funds to support the 911 system. Analysis of the statutory questions presented are complicated by the fact that the 911 Act was amended in 2015, after the complained of actions occurred, resulting in the repeal of certain provisions that affect the analysis, but the complaint initiating the lawsuit was filed under the provisions of the statute as amended.

The County of Butler sued Centurylink and other telecommunication service providers in the court of common pleas of Butler County in 2016, alleging that the providers failed to charge customers adequately and to collect, remit, and report certain fees under the services fee scheme of the 911 emergency communication system. The providers filed preliminary objections asserting, inter alia, that the 911 Act provides the PEMA exclusive authority to enforce the 911 Act. The trial court sustained the providers’ preliminary objection, highlighting PEMA’s authority under now-repealed Section 5311.13 of the 911 Act, which provided:

In addition to any powers expressly enumerated in this chapter, the agency [PEMA] has the power and duty to enforce and execute, by its regulations or otherwise, this chapter. The agency may institute injunction, mandamus[,] or other appropriate legal proceedings to enforce this chapter and regulations promulgated under this chapter.

The trial court reasoned that, given PEMA’s authority under now-repealed Section 5311.13 of the 911 Act, the County had no authority to bring its case, either because Section 1504 of the Statutory Construction Act forbids the County from doing under common law what is clearly not granted to it under the applicable statute, or because the County lacked standing.

On appeal, the Commonwealth Court agreed with the trial court that the 911 Act clearly and unambiguously withholds authority from the County to bring suit:

Subsections (1) and (2) of former Section 5307(e) both contained the phrase “charge imposed under this chapter.” Subsection (2) addressed the “charge imposed” that a subscriber fails to pay after that subscriber had received a bill. We read former Section 5307(e), therefore, as only having referred to the collection of the 911 fees after the service provider had billed the subscriber. Former Section 5307(e) was silent, however, as to billing. Stated otherwise, former Section 5307(e) did not address a situation where a telecommunication service provider failed to bill the subscriber or undercharged the subscriber.  Because former Section 5307(e) pertained to the collection—as opposed to the billing—of 911 fees, we agree with the trial court that former Section 5307(e) did not provide the authority for the County to bring its claims in this case.

Slip Op., at 9 (emphasis in original).

However, the court went on to find that PEMA’s authority is not exclusive, and that the counties may also sue to enforce their rights under common law, notwithstanding Section 1504 of the Statutory Construction Act:

The Service Providers cite to Petty v. Hospital Service Association of Northeastern Pennsylvania, 611 Pa. 119, 23 A.3d 1004 (2011), in support of their contention that the County’s option to notify PEMA of the alleged violation of the 911 Act constitutes a sufficient remedy for the County. The Service Providers further argue that because the 911 Act provides a sufficient statutory remedy, Section 1504 of the Statutory Construction Act precludes the County from pursuing common law claims.

…

We disagree with the trial court’s conclusion that PEMA’s authority is exclusive. PEMA, the counties of the Commonwealth, and the various service providers all have different roles and responsibilities under the Commonwealth’s emergency response statutory scheme. Pertinent to this case, these parties differ in their understanding of their respective roles and responsibilities under the statutory scheme. In addition to PEMA’s ability to enforce the 911 Act, the County may also seek direction from a court as to its role and that of PEMA and the Service Providers. At the very least, the County is entitled to a court ruling on its legal dispute.

Slip Op., at 8-11.

The court went on to conclude:

The County is alleging a specific harm that stems from its direct relationship with the Service Providers under the 911 Act’s statutory scheme. The County has obligations under this statutory scheme and its ability to meet those obligations is dependent on the Service Providers charging consumers in compliance with the 911 Act. …We conclude, therefore, that the 911 Act does not preclude the County from bringing its dispute to a court for resolution.

Slip Op., at 14.

The Supreme Court granted allocatur to decide:

When the General Assembly plainly and unambiguously grants the right to enforce a statute to a particular Commonwealth agency, may a different plaintiff circumvent this legislative directive by attempting to enforce the statute through common-law damages claims?

For more information, contact Kevin McKeon or Dennis Whitaker.