[PatNY]

Originally Posted by hrosvit

You say "we are looking at two different types of mistakes in this thread", and that "it (the portion of the AG's website) likely covers processing mistakes". Why does it likely cover them?

Because, as I mentioned, if it didn't then companies would send items unsolicited with expectation of payment and say merely that it was a processing error. By including processing errors under the law, there is no out for companies who might intentionally abuse the law using a flimsy excuse.

Again, that portion of the AG's website only covers deliberate deliveries; not mistaken ones. It is a very specific kind of scam, known as the negative option. It has absolutely nothing to do with "mistakes" of any kind. In this thread, the amount of iPads sent is a mistake (I don't think anyone would argue that Best Buy intentionally sent five iPads with the intent to later come back and charge her for the additional four). You choose to lump "processing mistake" in with "purposeful delivery of item never ordered", rather than lumping it in with "delivery mistakes". I would, rather, argue that the two types of "mistakes" should be lumped together, and obligate the recipient to return (or at least make reasonable efforts), while the "deliberate" delivery does not obligate the recipient at all, and falls under the protection of the PA AG and USPS sites you linked. One is a deliberate action; the other two are mistakes (by the person entering the address, the person processing the order, or the person delivering the package).

In am well aware of negative option clubs. I used to belong to a few of them myself. Negative option clubs and similar type offers are probably at the root of these laws. But since the law can't distinguish between purposely sent unsolicited items and items sent as a result of a processing error, it considers all items sent unsolicited to a correct address as the same in order to protect consumers.

And, yes, we do have a disagreement on how the law views "processing errors." We also have a disagreement about the usage of the term "deliberate deliveries" as the instance with the iPads should be considered a "deliberate delivery" (albeit following a screw up in processing). And while you consider "delivered under a mistake" in the PA statute to include processing errors, I believe it refers strictly to delivery mistakes.

We will probably have to agree to disagree. I realize this was just an intellectual exercise, rather than a specific forumite asking for advice, but we're all aware that legal advice obtained on a e-reading forum is worth exactly what was paid for it. And that is not a snide remark about your advice; I'm talking about mine.

My interest in this at the moment is not to advise anyone what to do in such situations. Nor is it to consider the ethical implications (each person needs to consider that for themselves), rather it is to determine the situation from a strictly legal perspective.

Keep in mind that the The Consumerist site agrees with my take on the law. They said in no uncertain terms that it was legal for the customer to keep the iPads without making any effort to return them. I realize that laws can differ among many states, but I would be surprised if PA law was in direct conflict with federal law on this matter.

A quick search of the interweb shows that several other states (AZ, MD, KY, NJ, etc.) all have statutes that are worded almost exactly the same as PA's.

I do have experience with the PA Crimes Code, but that doesn't mean I'm right.

But are any of those states interpreting those similarly worded statutes as broadly as you are? Can you find a single instance of case law where a state has forced a customer to return an item sent unsolicited to the correct person and address? You say you have experience with the PA crimes code and I assume it is as a legal professional, and not as a defendant. So, you probably have access to legal search tools that I don't have. Can you do a search at your convenience and find out what precedence is on this? I am seriously interested to know the case law on this. Especially at the higher court levels.

--Pat