Garcia, D. v. Foot Locker Retail, Inc.

293 A.3d 262

• Court: Superior Court of Pennsylvania
• Decided: March 14, 2023
• Docket: 1453 WDA 2021
• Status: Published

Opinion

J-A18007-22

2023 PA SUPER 40

DANIEL GARCIA, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF ON BEHALF OF ALL OTHERS : PENNSYLVANIA SIMILARLY SITUATED : : : v. : : : FOOT LOCKER RETAIL, INC., FOOT : No. 1453 WDA 2021 LOCKER SPECIALTY, INC., AND FOOT : LOCKER STORES, INC. : : Appellants :

Appeal from the Order Entered September 2, 2021 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-21-002107

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

CONCURRING OPINION BY McLAUGHLIN, J.: FILED: MARCH 14, 2023

In Feeney v. Dell Inc., 908 N.E.2d 753 (Mass. 2009), the

Massachusetts Supreme Judicial Court considered a similar issue regarding

Massachusetts’ consumer protection statute. There, retailers argued that the

erroneous collection of sales tax “falls outside ‘the conduct of trade or

commerce’ as those terms are used in” the statute. Id. at 769. The

Massachusetts statute uses terms identical in all material ways to

Pennsylvania’s Unfair Trade Practice and Consumer Protection Law (“UTPCPL”)

and prohibits “unfair or deceptive practices in the conduct of any trade or

commerce.” Id. at 770 (quoting Mass. Gen. Laws ch. 93A, § 2).

Like the majority here, the Massachusetts Supreme Judicial Court in

Feeney concluded that the allegations there did not fall within the scope of J-A18007-22

the statute. It did, however, identify a fact pattern that it concluded would

compel a different result:

Of course, if a retailer deceptively collects a charge that the retailer terms a “sales tax” and keeps the proceeds of the “tax” for the retailer's own enrichment rather than remit them to the Commonwealth, a different result would obtain. In such a circumstance, the collection of the “tax” would be motivated by business reasons, not by a legislative mandate, and would constitute a “deceptive practice” under G.L. c. 93A. There is no such allegation here.

Id. at 771 n.37.

I join the majority on the understanding that it addresses the allegations

of the complaint in our case and expresses no opinion on whether a case such

as the Massachusetts court identified would be actionable under the UTPCPL.

Judge Stabile and Judge Murray join the concurring opinion.

-2-