Otherwise, compliance would require the out-of-state lender to set up a Pennsylvania subsidiary, which would violate the Dormant Commerce Clause

A requires the lender seeking a license to be organized as a Pennsylvania corporation; this is a requirement that could only be imposed on a Pennsylvania lender

Fourth, the Department’s interpretation gives no meaning to the requirement that the lender be a “domestic business corporation organized under ? the Business Corporation Law of this Commonwealth?” Section 3.A of the CDCA, 7 P.S. § 6203.A. When one parses Section 3.A, it reads

no person shall engage ? in the business of ? making loans ? and charge ? in excess of the interest that the lender would ? be permitted by law to charge if not licensed ? except a domestic business corporation ? after first obtaining a license?

The Department contends that the fact that the Internet did not exist in 1937 should not have any bearing on the construction of the CDCA. I agree with this premise. The Internet is only one of several means of interstate communication. Others include mail, telephone and telegraph, which did exist in 1937. However, the Department uses the Internet as a smokescreen to obscure the words in Section 3.A that can only be understood to limit the scope of the CDCA to intrastate loan transactions.

For example, acknowledging that the CDCA addresses those who do business “in this Commonwealth” as a “principal, employe, agent or broker,” the Department explains that Cash America is doing business in Pennsylvania as a principal. By this logic, Cash America, a Nevada-licensed lender, is present electronically in Pennsylvania. If that is so, then the loan transaction is an intrastate transaction, with both the lender and borrower “in this Commonwealth.” This circular conclusion underscores the fact that Section 3.

In short, it is irrelevant that Cash America is making loans by means of the Internet. The point is that the CDCA does not, and was never intended to, apply to interstate transactions, whether effected by the mail, by telephone or by the Internet. The Department has not thought through the issues presented by the language of Section 3.A. 10 The legislature needs to amend the CDCA to expand its scope to interstate consumer loan transactions that involve Pennsylvania residents, if it so desires that result.

A was never intended to apply to interstate loans

Indeed, our Supreme Court has cautioned against an agency ushering in a new regulatory regime that is directly contrary to a long-standing prior regulatory position, without authorizing legislation. In Malt Beverages Distributors Association v. Pennsylvania Liquor Control Board, — Pa. —-, 974 A.2d 1144 (2009), our Supreme Court refused to uphold the issuance of a retailer’s license to Sheetz to sell take-out beer. It explained:

While a policy determination in this regard may well be accomplished by our legislature, it is not our role to sanction such a momentous transformation. Uniontown Newspapers, Inc. v. Roberts, 576 Pa. 231, 839 A.2d 185, 194 (2003) (providing that policy considerations do not lie with the courts, but are reserved for the legislative body to resolve.)

Id., at 1154 (emphasis added). Likewise, the “momentous transformation” sought here by the Department of Banking should be accomplished by the legislature and not by the courts.

As a final point, the relief ordered by the majority exceeds the bounds of a declaratory judgment action. The majority “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 [the Loan Interest and Protection Law].” Majority op. at —-. The Department agreed to delay the effective date of its enforcement initiative date until this Court decided whether the Department’s Notice correctly construed the CDCA, so Cash America cannot be in https://installmentloansgroup.com/installment-loans-ks/ violation of a yet-to-be initiated enforcement action. Further, it is a misdemeanor to violate the licensing requirements of the CDCA. The judgment of the majority, as stated, prejudges the outcome of a criminal case, which, inter alia, violates the rules of criminal procedure as well as due process.