Friday, April 19, 2013

Consumer Protection - deceptive conduct - ascertainable loss

Grimes v. Enterprise Leasing – superior Court – March 19, 2013

Deceptive conduct v. misrepresenatation

A plaintiff need not specifically allege a misrepresentation. As this Court recently observed, any deceptive conduct will suffice under the UTPCPL’s catchall provision. See Bennett v. A.T.

Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 151 (Pa. Super. 2012).. Here, Grimes alleged that Enterprise engaged in deceptive conduct “[b]y intentionally and artificially inflating the costs it incurred under the rental car contracts, and by concealing from [Grimes] the true costs it incurred ….” …. Then, in attempting to collect the money it believed it was owed, Enterprise “threaten[ed] and plann[ed] to contact [Grimes’] insurer and credit card issuer ….” . In our view, these allegations plainly meet the UTPCPL catchall provision’s requirement of “fraudulent or deceptive conduct  which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi); see also Commonwealth by Fisher v. Cole, 709 A.2d 994, 997 (Pa. Cmwlth. 1998) (holding a physician’s efforts to collect debts from former patients that were barred by the statute of limitations constituted a violation of the UTPCPL), appeal denied, 736 A.2d 606 (Pa. 1999). Therefore, we conclude Grimes has pled facts sufficient to state a cause of action for deceptive conduct under the UTPCPL catchall provision.

Pleading "justifiable reliance" not required
The trial court also noted that “[Grimes] can[not] establish justifiable reliance” in furtherance of her UTPCPL claim.   The claim under the catchall provision of the UTPCPL alleges that Enterprise’s conduct was both fraudulent and deceptive. . As this Court recently held in Bennett, when a plaintiff alleges a claim under the UTPCPL catchall provision under the theory of deceptive conduct, the plaintiff need not prove the elements of common law fraud, including “induc[ment of] justifiable reliance ….” Bennett, supra at 152 n.5, 154-155. Therefore, to the extent that Grimes alleges Enterprise’s conduct was deceptive, as opposed to fraudulent, she need not allege justifiable reliance.

Ascertainable loss
Plaintiff averred that she incurred costs and fees associated with asserting her rights and protecting herself against Enterprise’s alleged deceptive trade practices. This Court has held that in determining whether there has been an “[a]scertainable loss [, it] must be established from the factual circumstances surrounding each case ….” Agoliori v. Metro. Life Ins. Co., 879 A.2d 315, 320 (Pa. Super. 2005). We further observe the UTPCPL has a deterrent effect. This is relevant when determining whether there is an ascertainable loss in each case. Id. On

this issue, we find the analysis set forth in Agoliori and Jarzyna v. Home Properties, L.P., 763 F. Supp. 2d 742 (E.D. Pa. 2011), to be dispositive.  Grimes alleges the same loss as the plaintiff in Jarzyna. Plaintiff here alleges that she has incurred costs and fees associated with asserting her rights and preventing Enterprise from collecting its debt.