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83 a 30-day comment period. e new regulations add several definitions to the UTPCPL and also appear to alter existing practice with regard to enforcement and use of documents obtained through investigative subpoenas. First, the regulations add definitions for "unfair market trade practices," "unfair conduct," and "deceptive conduct," as well as deeming violations of these terms to be violations of the UTPCPL. ese terms are defined nowhere in the UTPCPL, but now have been added by regulation rather than by amendment to the legislation. Another major change contemplated by these regulations should raise serious concerns in the area of investigations and responses to subpoenas by servicers and lenders. e Attorney General added a regulatory section entitled "subpoena power" at § 311.10. ere is an important legal distinction here. e Administrative Code granted the Attorney General the power to subpoena records in enforcement of that Act—and not the UTPCPL. e subpoena power granted under § 307-3(b) of the Administrative Code states that the Attorney General may use material produced pursuant to a subpoena "as he deems necessary in the enforcement of this act." 71 P.S. § 307-3(b) (emphasis added). Over 40 years ago, the Commonwealth Court ruled that the term "this act" meant only the Administrative Code, and not the UTPCPL. us, any materials produced pursuant to a subpoena issued under the Administrative Code could not be used by the Attorney General in subsequent enforcement actions under the separate law known as the UTPCPL. See Commonwealth by Packel v. Shults, 362 A.2d 1179 (1976). WHAT THE INDUSTRY NEEDS TO KNOW Now, in this regulation promulgated under the UTPCPL, the Attorney General declares that "the Attorney General or any attorney designated by him may use this documentary material or copies thereof as he determines necessary in the enforcement of this act, including presentation before any court …" e term "this act" would now mean the UTPCPL and not the Administrative Code. erefore, by regulation instead of legislative action, the Attorney General is seeking to extend or alter the UTPCPL itself to include a grant of subpoena power to himself under the UTPCPL. is appears to be an attempt to subvert the Commonwealth Court precedent in the Shults case. With these new changes set to go into effect, servicers and lenders need to be aware of these new requirements and some pitfalls that may result. Prior to this proposed regulation, when a lender or servicer responded to a subpoena issued under the Administrative Code, that lender or servicer maintained a protection that such materials could not be used against it in a subsequent legal enforcement proceeding under the UTPCPL. at may no longer be the case. Under the right circumstances, some challenges to the regulations themselves may be warranted, as the regulations seem to go beyond the wording of the UTPCPL statute itself. e question also will need to be answered as to whether the Attorney General has the power to overrule an appellate court opinion by simply promulgating regulations, or whether such a "fix" must be accomplished by the state legislature via an amendment to the UTPCPL. Stephen M. Hladik As Partner at Hladik, Onorato & Federman, LLP (HOF), Stephen M. Hladik brings a broad range of experience to his foreclosure, bankruptcy, and UDAAP practice. Hladik obtained his law degree from Widener University with honors, where he served as Internal Managing Editor of the Law Review. He gained significant expertise in lending law enforcement, handling UDAP, FDCPA, RESPA, and TILA cases in his role as Deputy Attorney General in charge of the Harrisburg office of the Bureau of Consumer Protection. Hladik currently serves as Vice Chair of the Legal League 100. This new set of proposed regulations represents a significant step by the Attorney General and certainly defines new terms that will affect servicers and lenders in the state of Pennsylvania.

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