Justice TODD.
Alleging that Appellant Conestoga Title Insurance Company ("Conestoga" or the "Company") charged more for title insurance than its filed rates permitted, Appellee Nancy A. White asserted three claims against Conestoga in a class action complaint. We granted review to consider whether White is precluded from pursuing all of her claims because Article VII of the Insurance Department Act of 1921 (hereinafter, the "TIA")
At all relevant times, Conestoga was a licensed title insurer, engaged in the business of underwriting and issuing title insurance
On December 6, 2006, White filed a class action complaint against Conestoga in the Court of Common Pleas of Philadelphia County. In her complaint, White alleged that she refinanced the mortgage on the home she owned on October 30, 2002, obtaining title insurance at the closing, and refinanced the mortgage on her home once again on February 17, 2005, purchasing title insurance from Conestoga. She further alleged that, even though she satisfied the criteria for Conestoga's Refinance Rate of $406.63 for the title insurance she purchased in 2005, Conestoga charged her the higher rate of $508.28, thereby unlawfully pocketing $101.65 of her money. White also alleged that Conestoga's agents could have learned from documents tendered at closings that homeowners, like herself, were eligible for either one of the Conestoga's reduced rates, but knowingly and intentionally failed to avail themselves of that information, in order to charge the homeowners a higher premium. In addition, she averred that Conestoga engaged in a pervasive, long-standing scheme of deception in which it willfully refused to apply its Reissue and Refinance Rates to the financial detriment of hundreds of purported class members.
Based on these allegations, White asserted three claims in her individual capacity and as the representative of a class of all persons who refinanced their mortgages and were charged a title insurance premium that exceeded Conestoga's applicable discounted rate. In Count I, White brought a common law claim for money had and received, averring that Conestoga came into possession of money to which it had no right at law or in equity.
Given their centrality to the issues before us, we quote Sections 744 and 749 of the TIA, and Section 1504 of the SCA, in full. Sections 744 and 749 of the TIA provide:
40 P.S. §§ 910-44, 910-49 (footnotes omitted) (emphasis added). Section 1504 of the SCA provides:
1 Pa.C.S.A. § 1504.
Following a hearing on White's motion for class certification, the trial court issued an opinion and order, in which it concluded that, regarding White's claims, the TIA sets forth an exclusive statutory mechanism within the meaning of Section 1504 of the SCA and that, therefore, White failed to exhaust her statutory remedy.
Id. (emphasis in original). The court added: "Perhaps a straight forward grievance concerning an overpayment due to misapplication of the rate can be solved exclusively in an administrative context, but when the claim involves alleged deceptive insurance company practices that fall under the UTPCPL, it is clear that the legislature did not intend for the [TIA] to provide an exclusive remedy." Id. at 1006.
In further support of its conclusion, the court reasoned: (1) the General Assembly could not have intended the TIA to be the exclusive remedy for claims of deceptive insurance practices, given that the Unfair Insurance Practices Act ("UIPA"), 40 P.S. §§ 1171.1-1171.15, a more pertinent statute incorporated into the TIA, did not provide a remedy to consumers for such claims; (2) just as the General Assembly did not intend to limit the Commissioner to the penalties articulated in the TIA for statutory violations, it did not intend to limit consumers of title insurance who were allegedly subjected to deceptive trade practices to the remedy for a rate misapplication in the TIA;
Lastly, the court addressed the doctrine of primary jurisdiction and concluded that the question of whether White and the class members she sought to represent were improperly denied a discounted rate did not require the expertise of the Commissioner and could be easily resolved by the trial court by application of the language in the Rate Manual. Id. at 1009.
We allowed appeal, on Conestoga's petition, to consider whether the TIA's remedial provisions constitute an exclusive remedy within the meaning of Section 1504 of the SCA. White v. Conestoga Title Ins. Co., 606 Pa. 50, 994 A.2d 1083 (2010) (order).
Conestoga continues that the Superior Court's ruling that the TIA is inapplicable flies in the face of the allegations in White's complaint, which repeatedly reference the TIA's mandate that Conestoga charge only its filed rates, and disregards that, but for the TIA, White would have no basis to complain about the rate she was charged. Conestoga also challenges the court's construction of the TIA's remedy as permissive, based on the General Assembly's use of the word "may" in Section 744(b), and its policy decision in Section 748 to allow for cumulative penalties. See 40 P.S. §§ 910-44(b), 948. According to the Company, use of the word "may" merely reflects the choice an insured has been given between foregoing and pursuing a statutory claim regarding the rate she was charged, while Section 748 relates only to the Insurance Commissioner's enforcement authority.
Conestoga also challenges the Superior Court's disregard of its precedent in Maryland Casualty, supra, arguing there is no principled basis upon which to distinguish the remedial scheme in the TIA from that established in the Workers' Compensation Act for resolving rate application disputes between an insurer and its insured. Relying on this Court's decision in Lilian v. Commonwealth, 467 Pa. 15, 20, 354 A.2d 250, 253 (1976), Conestoga further maintains that the Superior Court's decision impermissibly carves out an exception to the exclusivity of remedy rule in Section 1504 of the SCA for consumer claims brought in a class action complaint. In addition, the Company objects to the Superior Court's view that the TIA incorporated the UIPA, and asserts that, in any event, the UIPA has no bearing on the issue before us. As a final point, Conestoga complains that the Superior Court did not discuss White's common law causes of action for money had and received and unjust enrichment, but grounded its decision entirely on White's allegations of deceptive trade practices, which related only to her UTPCPL claim.
White counters that none of the claims in her complaint should be dismissed on the basis of the TIA's remedial provisions. Although White concedes a remedy is stated in Section 744(b) and another is stated in Section 749, she asserts that neither remedy applies in her case. It is her position that, since Section 744(b) concerns the "application" of a rate, while Section 749 concerns an "action" the Commissioner may take, the allegations in her complaint regarding Conestoga's systematic and deceptive disregard of its filed rates are simply not covered by either section. See 40 P.S. §§ 910-44(b), 910-49. White adds that Section 744(b) is incapable of addressing
White argues, alternatively, that, even if her allegations against Conestoga fall within the TIA's remedial scope, its remedies are cumulative and discretionary, given the permissive language the General Assembly used in Section 744(b) and the fact that penalties are made cumulative under Section 748. See id. §§ 910-44(b), 910-48. In addition, she suggests that construing the TIA's procedure as permissive is required under the Remedies Clause of the Pennsylvania Constitution so as not to deny her a means of redressing the fraud and deceit Conestoga allegedly perpetrated upon its customers. See Pa. Const. art. I, § 11.
Relying on this Court's recognition that, in certain circumstances, a party need not exhaust the administrative remedy the legislature has provided, White further argues that, because the TIA's administrative process is inadequate, she should be excused from pursuing it. See supra note 10. She asserts the inadequacy of the TIA's remedy is reflected in the fact that Conestoga neglected to establish a reasonable means whereby she or any other consumer can ask for review of the rate charged, as Section 744(b) requires. She also contends that any means of review Conestoga might establish thereunder will not, in any event, provide consumers with a meaningful process of dispute resolution. See 40 P.S. § 910-44(b). White further asserts the TIA's procedure, which gives her a refund of a premium over-payment, is inadequate because it does not make available the punitive or treble damages and the attorneys fees she seeks from Conestoga in the court of common pleas.
White also takes exception to Conestoga's characterization of the Superior Court's opinion as countenancing exceptions from Section 1504 of the SCA for consumer claims asserted in a class action. According to White, any references the Superior Court made to the class action allegations in her complaint were merely descriptive, and did not form the basis of the Superior Court's decision, nor did it contradict this Court's ruling in Lilian. Finally, White urges us to adopt the view expressed by the Insurance Commissioner throughout this litigation, as amicus, that the TIA does not preclude access to the right of action the UTPCPL provides to consumers who are victimized by an insurer's deceptive business practices.
We begin our analysis by observing that the rule stated in Section 1504 of the SCA regarding the exclusivity of a statutory remedy raises a question of statutory
The rule regarding the exclusive nature of a statutory remedy is one of Pennsylvania's oldest legal principles. Over 200 years ago, in 1806, the General Assembly codified the rule, stating:
Act of March 21, 1806, P.L. 58, 4 Sm.L. 326 § 13 ("Act of 1806") (46 P.S. § 156).
Thereafter, we consistently construed the Act of 1806 as a mandate, which required a party to strictly follow a statutory remedy, when one is provided, to the exclusion of a common law claim. See, e.g., Pittsburgh Coal Co. v. Sch. Dist. of Forward Twp., 366 Pa. 489, 494 78 A.2d 253, 256 (1951) (explaining that the Act of 1806 is an inhibition against the use of a common law remedy where a statutory remedy obtains). Additionally, we construed the Act of 1806 to allow for the invocation of the common law only if necessary to supply omissions or correct defects in the statutory remedial procedure. Hare v. Commonwealth, 92 Pa. 141 (1879).
Accordingly, in case after case, upon observing that the General Assembly provided a statutory means to resolve a dispute and provide relief to a complaining party, we upheld the termination of a common law cause of action under the Act of 1806.
In School Dist. of Borough of West Homestead, supra, a decision we presently find instructive, we addressed a school district's contention that, despite the command in the Act of 1806, the school district was free to bypass the procedure supplied in the Supplemental Reorganization Act (now repealed) for seeking relief from a board's organizational plan and ask a court sitting in equity for an injunction instead. The procedure at issue was set forth in several sections of the Act, which, when read together, permitted, but did not require, a school district, which was allegedly aggrieved by a county board's plan of organization, to appeal to the State Board, and, then, take a further appeal to the common pleas court. 440 Pa. at 119, 269 A.2d at 907-08. Concluding that "[e]ven the most cursory reading of the Act reveals a comprehensive and constitutionally adequate procedure which is the exclusive procedure available to a school district which considers itself aggrieved by the actions of the County and State Boards," we held that the school district could not avoid the legislature's chosen remedial scheme by commencing a common law action. 440 Pa. at 121, 269 A.2d at 908. In so doing, we rejected the school district's assertion that the statutory remedy was inadequate because the county board failed to comply with the procedural directives the Act imposed, observing that such a complaint could and should have been made in the administrative hearing before the State Board under the Act. 440 Pa. at 122, 269 A.2d at 909. Moreover, we summarized our construction of the Act of 1806, thusly:
440 Pa. at 118-19, 269 A.2d at 907.
Two years later, in 1972, the legislature repealed the Act of 1806 and simultaneously reenacted it in the SCA, at Section 1504, in almost identical language and without indicating any disagreement with this Court's prior construction of the statute. See supra pp. 6-7. Like the Act of 1806, with respect to Section 1504, we have reiterated: "[W]here a statutory remedy is provided, the procedure prescribed therein must be strictly pursued to the exclusion of other methods of redress;" but, where the legislature explicitly reveals in a statute that it does not intend for such exclusivity, a statutory procedure for dispute resolution does not preempt common law claims. See Jackson, 509 Pa. at 106, 501 A.2d at 220; Deluca v. Buckeye Coal Co., 463 Pa. 513, 519, 345 A.2d 637, 640 (1975). Moreover, we have declined to apply Section 1504 where we determined that a statutory procedure did not contemplate the grievance in question. Liss, 603 Pa. at 212, 983 A.2d at 660; see also Terminato v. Pennsylvania Nat. Ins. Co., 538 Pa. 60, 645 A.2d 1287 (1994) (quoting Lashe v. Northern York County School Dist., 52 Pa.Cmwlth. 541, 548, 417 A.2d 260, 264 (1980) ("If the statute does not apply to a controversy, it obviously is not intended to be any remedy, much less an exclusive remedy.")).
Further, in Lilian, supra, where the named plaintiffs bypassed the procedure the Tax Reform Code provided for securing a sales tax refund, and, instead, brought a class action in equity against the Commonwealth asking for a refund of the sales tax they and the class members had paid, we explained that the class action in Pennsylvania is a procedural device designed to promote efficiency in the handling of a large number of similar claims, such that class status or the lack of it, alone, is irrelevant to the question of whether a common law action is available in light of the existence of a statutory remedy. 467 Pa. at 21, 354 A.2d at 253-54. See Pa.R.C.P. 1702, Explanatory Comment ("Where a specific statutory remedy is provided for the processing of claims, numerosity of claims will not justify a class action. This follows the classic principle that a statutory form of relief must be followed exclusively.")
As applied to the instant case, our review of these guiding principles reveals a fundamental flaw in the Superior Court's approach, which, we observe, was echoed by the parties in their respective briefs. The court below assumed that a single analysis was sufficient to determine whether all the claims White asserted in her complaint could continue under Section 1504, and, accordingly, failed to differentiate between White's common law causes of action and her statutory claim under the UTPCPL, and focused only on the latter. We are of the view, however, that White's common law claims must be addressed separately from her UTPCPL claim, given the terms of Section 1504 and our long-standing construction of its mandate.
We, therefore, first consider White's common law claims for money had and received and unjust enrichment. Fundamentally, the allegations White made against Conestoga in Counts I and II of her complaint, and the position the Company has taken in its defense, concern whether the premium White paid for title
Moreover and significantly, our review of the TIA reveals nothing to demonstrate, either expressly or by implication, that the General Assembly intended the framework set forth in Sections 744(b) and 749 for addressing a rate application dispute between a title insurer and an insured to coexist with common law claims. While the General Assembly indicated its intent, in Section 748 of the TIA, to override the reluctance historically displayed by the courts to impose cumulative penalties — specifically, with respect to the Commissioner's authority, see supra note 12 — it did not indicate a corresponding intent, anywhere in the statute, to override the rule it articulated in Section 1504 of the SCA regarding the exclusivity of statutory remedies, or this Court's jurisprudence in this area. See Geffen v. Baltimore Markets, 325 Pa. 509, 516, 191 A. 24, 28 (1937) (explaining that the courts are loath to permit cumulative penalties, but, where it is plainly the intention of the legislature, they will do so). Furthermore, we have determined that the presence of the word "may" in Section 744(b) does not alone provide a basis to disregard Section 1504's plain meaning, nor, as we have discussed, does White's filing of a class action complaint, in and of itself, negate Section 1504's operation. See School Dist. of Borough of West Homestead, 440 Pa. at 119, 269 A.2d at 907-08; Lilian, 467 Pa. at 21, 354 A.2d at 253.
Further, White does not present any reasons we have found sufficient to excuse a litigant from exhausting the administrative remedy the legislature has provided. White's contention that the TIA's remedy is inadequate and need not be exhausted because Conestoga is unable or unwilling to comply with the administrative review
Therefore, we conclude that Section 1504's exclusivity of statutory remedy rule must be applied to Counts I and II of White's complaint in the instant action. Accordingly, we hold that White is precluded from pursuing the common law claims for money had and received and for unjust enrichment she asserted against Conestoga in the common pleas court.
But, the same cannot be said for the claim White asserted against Conestoga in Count Ml of her complaint pursuant to the UTPCPL. Under the clear and explicit words of Section 1504, the availability of an exclusive statutory remedy forecloses a common law cause of action; however, the existence of any such statutory remedy does not foreclose a distinct statutory cause of action. See School Dist. of Borough of West Homestead, 440 Pa. at 118, 269 A.2d at 907. A UTPCPL claim is a statutory creation of the General Assembly; it does not arise under the common law. See 73 Pa.S.A. § 201-9.2. Therefore, Section 1504, by its terms, does not apply to White's UTPCPL claim. Accordingly, on this basis, and in contrast to White's common law claims, we hold that the court of common pleas may adjudicate her UTPCPL claim.
On these distinct grounds, that part of the Superior Court's order reversing the trial court's order as to White's UTPCPL claim and remanding for further proceedings is affirmed, and, accordingly, that claim may be adjudicated in the trial court; furthermore, for the reasons expressed above, that part of the Superior Court order's reversing the trial court's order as to White's common law claims for money had and received and for unjust enrichment is reversed, and accordingly, those claims may not be adjudicated in the trial court.
Jurisdiction relinquished.
Justices SAYLOR, BAER and McCAFFERY join the opinion.
Chief Justice CASTILLE files a concurring opinion in which Justice EAKIN joins.
Chief Justice CASTILLE, concurring.
I join the Majority Opinion with the exception of that which I believe to be dicta in footnotes 10 and 11. For the reasons that follow, I respectfully disagree with the Majority's decision to speak broadly regarding aspects, not implicated or briefed in this appeal, of the nature and application of Section 1504 and the judicial doctrine of administrative exhaustion.
Here, this Court granted review to decide whether:
White v. Conestoga Title Ins. Co., 606 Pa. 50, 994 A.2d 1083 (2010) (per curiam). The Majority also states that it would address other grounds on which the Superior Court based its decision, see Maj. Op. at 730-31 n. 17, presumably because the Court could affirm on such other grounds. Id. at 727-28 (describing Superior Court's decision).
The several issues addressed in footnotes 10 and 11, however, are not among the specific bases on which the Superior Court decided the matter and, indeed, are ostensibly outside the grant of allowance of appeal. In footnote 10, the Majority begins by citing appellant's position that any distinction between the directive of Section 1504 and the judicial doctrine of administrative exhaustion is "immaterial" in this matter. The Majority, without challenging appellant's view, undertakes a lengthy discussion intended "to clarify" the question of whether such a distinction does or should exist, including in its discussion criticism of an existing case. The Majority describes the interplay between Section 1504 and the judicial doctrine of administrative exhaustion, holds that they are one legal consideration, and lists seemingly settled jurisprudential exceptions to the general rule. See Maj. Op. at 725-26 n. 10. Subsequently, the Majority concludes that appellee — the plaintiff below — has not in her complaint, and does not on appeal, rely on any such exception to argue the inapplicability of Section 1504. Id. at 735-36.
Meanwhile, in footnote 11, the Majority discusses whether Section 1504 is jurisdictional or prudential and collects cases which ascribe to either one or the other view. The Majority suggests that the distinction may be relevant to whether the Court could address the issue sua sponte. Ultimately, however, the Majority concludes that the conflict need not be resolved because appellant preserved the issue for appeal, and fails to offer any other purpose for its observations. Id. at 726-27 n. 11.
Here, inquiries regarding the jurisdictional or jurisprudential nature of Section 1504 and the broader question of exceptions to the exclusive remedy/exhaustion consideration are collateral to the actual dispute. The Majority engages these issues after simply noting appellant's uncertainty regarding a related question on the interplay between Section 1504 and the judicial doctrine of administrative exhaustion. The Majority offers no insight either into any interest by the parties in pursuing the broader issues it addresses in footnotes 10 and 11, grants the parties no opportunity to brief the relevant points, and does not explain the necessity for the dictum.
In this particular situation, I believe that the perceived necessity for clarification is not sufficient to overcome prudential concerns in addressing points outside the scope of a discretionary appeal. Accord Harsh v. Petroll, 584 Pa. 606, 887 A.2d 209, 216 n. 16 (2005) ("While we acknowledge amicus's points in these regards and the desirability of additional clarification, the points are outside the scope of this limited appeal."). The parameters of the exhaustion doctrine (whether statutory or prudential) are of sufficient complexity, and the factual circumstances giving rise to exhaustion issues of sufficient variety, that I would not speak broadly or correctively in the area unless in the context of a case where we have a focused issue and targeted advocacy along those lines.
For example, footnote 10 lists the exceptions to Section 1504 in cases where the administrative remedy: "was unable to address the legal issues presented and effectively provide relief to all those in a position to seek it and presented a substantial question of constitutional import or would result in duplicative and piecemeal litigation likely to yield inconsistent results, or would lead to irreparable harm." Maj. Op. at 726 n. 10 (citing, inter alia, Kowenhoven v. County of Allegheny, 587 Pa. 545, 901 A.2d 1003 (2006)). Derived by the Majority from caselaw, this mere listing does not capture the multifaceted calculus, of which Kowenhoven is illustrative, behind these decisions. In Kowenhoven, the majority decision, which I joined, excused compliance with Section 1504 to address a question of great constitutional importance and avert the need for a multiplicity of duplicative lawsuits on the single, controlling legal question presented. However, as a general matter, I would not consider duplicative litigation or, separately, the simple presentation of a constitutional question sufficient grounds to bypass the salutary function of the administrative process. Cf. Elgin v. Dep't of Treasury, ___ U.S. ___, 132 S.Ct. 2126, 2138, 183 L.Ed.2d 1 (2012) ("[W]e see nothing extraordinary in a statutory scheme that vests reviewable factfinding authority in a non-Article III entity that has jurisdiction over an action but cannot finally decide the legal question[, such as
For these reasons, I join the Majority Opinion subject to this one articulated reservation.
Justice EAKIN joins this opinion.
40 P.S. § 910-1(1).
73 P.S. § 201-9.2(a) (footnote omitted).
In Liss, the plaintiff law firm brought a breach of contract claim against the defendants on behalf of its client and others similarly situated, seeking to recover alleged overcharges for the copying of medical records. In upholding the entry of summary judgment in the plaintiff's favor, we rejected the defendants' argument that the plaintiff was precluded from asserting a common law claim because of the statutory remedy set forth in the Medical Records Act ("MRA"), 42 Pa.C.S. §§ 6151-6160. We determined that the obligation to exhaust administrative remedies did not apply because the MRA has no administrative process to which the plaintiff would have had resort before filing its common law claim. 603 Pa. at 211, 983 A.2d at 660. We further determined that Section 1504's directive was not implicated because there is no evidence of legislative intent in the MRA to limit the plaintiff's common law rights or preempt common law causes of action. 603 Pa. at 212, 983 A.2d at 660. In so doing, we observed that the defendants "appear to confuse two doctrines: exhaustion of administrative remedies and preference of statutory remedies over the common law [under Section 1504,]" and stated that "even if [the defendants'] argument were clear, however, we would not afford [them] relief under either theory." 603 Pa. at 211, 983 A.2d at 660.
We take this opportunity to clarify it is not the case, as suggested in Liss, that there is a rule of exhaustion premised on Section 1504 and a separate judicial exhaustion doctrine based solely on jurisprudential considerations. Rather, as our case law reveals, the rule of exhaustion stated in Section 1504 works in concert with the exhaustion doctrine developed by this Court. We long ago recognized that Section 1504's command that a statutory remedy "shall be strictly pursued" states an exhaustion requirement, such that a litigant can neither forgo nor abandon, before completion, the administrative process the legislature has devised as a means of resolving a dispute. Ohio Cas. Group of Ins. Cos. v. Argonaut Ins. Co., 514 Pa. 430, 435, 525 A.2d 1195, 1197 (1987) (citing 1 Pa.C.S.A. § 1504); Jackson v. Centennial Sch. Dist., 509 Pa. 101, 107, 501 A.2d 218, 220 (1985). That said, and notwithstanding Section 1504's facial command that a statutory remedy is to be strictly pursued in "all cases," see 1 Pa.C.S.A. § 1504, this Court has determined the rule of exhaustion encompassed therein does not apply absolutely, and has developed exceptions to Section 1504's mandate based on prudential concerns. Thus, for example, where the administrative remedy was deemed inadequate, i.e., it was unable to address the legal issues presented and effectively provide relief to all those in a position to seek it and presented a substantial question of constitutional import or would result in duplicative and piecemeal litigation likely to yield inconsistent results, or would lead to irreparable harm, we permitted a litigant to bypass the administrative process and seek relief in a court of law. See, e.g., Kowenhoven v. County of Allegheny, 587 Pa. 545, 901 A.2d 1003 (2006); Pentlong Corp. v. GLS Capital, Inc., 573 Pa. 34, 820 A.2d 1240 (2003); Borough of Green Tree v. Bd. of Prop. Assessments, Appeals & Review, 459 Pa. 268, 278, 328 A.2d 819, 824 (1974) (plurality); Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, 451, 211 A.2d 532, 535 (1985). Accordingly, we consider the respective arguments the parties have made in the instant appeal within this framework, and we determine whether Section 744(b) and Section 449 of the TIA constitute a remedy for White that falls within Section 1504's mandate in the first instance, and if so, whether White presents any of the reasons we have accepted as sufficient to excuse her from exhausting the administrative process the legislature has provided.
However, in other cases, we have characterized the doctrine of administrative exhaustion as jurisprudential, i.e., a rule that does not divest a court of subject matter jurisdiction, but, rather, serves as a prerequisite to the court's exercise of its subject-matter jurisdiction. Jackson, 509 Pa. at 107 n. 5, 501 A.2d at 221 n. 5 ("Frequently, it is said that the failure to exhaust administrative remedies divests the court of `jurisdiction.' This is not subject-matter jurisdiction, however, but rather the judge-made rule that exhaustion of administrative remedies is a prerequisite to the court's exercise of subject-matter jurisdiction."); see also Beattie v. Allegheny County, 589 Pa. 113, 124 n. 5, 907 A.2d 519, 526 n. 5 (2006) (emphasis in original) ("This exception [which recognizes that the administrative process is ill-suited to resolve certain types of constitutional questions] has at times been couched in terms of whether the trial court has equity jurisdiction to entertain the complaint. We have clarified, however, that the requirement of administrative exhaustion is a judge-made rule and does not pertain to the existence of subject matter jurisdiction, but to whether such jurisdiction is properly exercised.").
We need not address how this conflict may (or may not) affect a trial court's ability to raise sua sponte Section 1504 — or the exhaustion doctrine generally — since Conestoga asserted a statutory-exclusivity defense at the court of common pleas level, see Answer to Complaint with New Matter at 5 (R.R. 45a), and the issue has been preserved throughout this litigation, see, e.g., White v. Conestoga Title Insurance Co., 982 A.2d 997, 1002 (Pa.Super.2009). Parenthetically, however, we observe that, under our civil procedural rules, a defendant's failure to include such a defense in its preliminary objection, answer, or reply does not result in a waiver of that defense. See Pa.R.Civ.P. 1032(a).
Briefly, the doctrine of primary jurisdiction is jurisprudential, developed by this Court to accommodate "the respective spheres of adjudicatory authority" of the Commonwealth's administrative agencies and the common pleas courts. Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 131-32, 420 A.2d 371, 374 (1980). Under the doctrine, a trial court, which has subject matter jurisdiction over a claim, determines that an agency's expertise is needed on a particular issue. Accordingly, it refers the question to the agency and stays judicial proceedings, pending the agency's determination. The agency's subsequent determination on the issue, when final, is binding and not subject to collateral attack upon the resumption of judicial proceedings. 491 Pa. at 133-34, 420 A.2d at 376-77.
Petition at 3. However, Conestoga's question was not cast in the form our Rules of Appellate Procedure contemplate for Petitions of Allowance of Appeal. See Pa.R.A.P. 1115(a)(3). Rather, it was a summary of only one of the several reasons Conestoga gave in its Petition for its broad contention that the Superior Court's ruling that the TIA's remedy did not fall within the purview of Section 1504, and thereby precluded White from pursuing her claims, was erroneous and, therefore, worthy of our discretionary review. Our review thus encompasses each of those several reasons.
The AARP, the Philadelphia Unemployment Project, and the Class Action Plaintiffs also serve as White's amici. The Title Insurance Bureau of Pennsylvania filed amicus curiae briefs in support of Conestoga.
