The Pennsylvania Supreme Court has agreed to review whether a plaintiff can circumvent a state agency’s right to enforce a statute by seeking to do so through common-law damages claims.

The justices granted allocatur Dec. 26, 2017, in Butler County v. CenturyLink Communications, a case stemming from the county’s allegations that a group of telecommunications providers failed to adequately charge customers for fees related to 911 emergency communications and remit the money to the county.

A unanimous three-judge panel of the Commonwealth Court ruled June 8, 2017, that the 911 Act, which tasked Pennsylvania’s counties with implementing, operating and maintaining a 911 system and provided funding to address associated costs, did not provide exclusive enforcement authority to the Pennsylvania Emergency Management Agency.

“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,” Judge P. Kevin Brobson wrote for the court, reversing and remanding a trial court decision that had sustained the service providers’ preliminary objections to the county’s complaint. “At the very least, the county is entitled to a court ruling on its legal dispute.”

The order granting the service providers’ petition for allocatur said the high court will hear argument on a plaintiff’s ability to pursue common-law damages “when the General Assembly plainly and unambiguously grants the right to enforce a statute to a particular commonwealth agency.”

In February 2016, Butler County filed a complaint alleging that the service providers breached their fiduciary obligations; committed fraud by failing to charge, collect, report and remit the 911 fees as required by the act; and provided false representations to the county through inaccurate forms. The county sought an accounting of underpaid fees and monetary damages.

The services providers’ joint preliminary objections included an assertion that the 911 Act provides PEMA exclusive enforcement authority, which the trial court sustained.

The county filed a motion for reconsideration and attached an affidavit of PEMA’s deputy director, who interpreted the act as authorizing the state’s counties to police telephone companies’ collection practices. The motion was denied.

On appeal, the county argued that Section 5307(e)(1) of the former 911 Act, which was amended in 2015, authorized it to pursue its case, or, in the alternative, that it was at least ambiguous and the court should afford deference to PEMA’s interpretation as explained by the deputy director’s affidavit.

The service providers argued that Section 5307(e)(1) pertains only to the collection of 911 fees, not the allegedly noncompliant billing of 911 fees, and that the affidavit cannot trump the plain language of the statute. Because the act provides a sufficient statutory remedy (notifying PEMA), the Statutory Construction Act precludes the county from pursuing common-law claims, the service providers asserted.

The court agreed with the service providers that the old version of the act “clearly and unambiguously does not provide the county with authority to bring this suit,” Brobson said, because it was silent as to billing practices such as those at issue. Nonetheless, he said, “we are not persuaded that PEMA’s authority precludes the county from bringing its suit.”

The applicable provision is from the amended 911 Act, Brobson said, which was in place when the county brought its action. That version of the act similarly makes clear that PEMA has enforcement authority, but PEMA, the counties and the various services providers “differ in their understanding of their respective roles and responsibilities under the statutory scheme,” he said.

“We conclude, therefore, that the 911 Act does not preclude the county from bringing its dispute to a court for resolution,” Brobson said.

Justin Proper of White and Williams in Philadelphia, who represents CenturyLink in the case, referred comment to Gregory Skidmore of Robinson Bradshaw in North Carolina, representing service provider Verizon Pennsylvania, who declined to comment. Joshua Wolson of Dilworth Paxson in Philadelphia, who represents Butler County, did not return a call for comment.