Friday, November 04, 2016

consumer protection - UTPCPL - justifiable reliance - causation

Kirwin v. Sussman Automotive – Pa. Superior Court – October 7, 2016


Held:  No violation of “catchall” provision of Consumer Protection Law, 73 P.S. 201-2)4)(xxi), where
- plaintiff got email solicitation from dealer with one price
- when P went to dealer, he was told that there had been computer error and actual price was $3,000 more
- knowing of this discrepancy, P paid the higher price, then sued under CPL

 UTPCPL’s “catchall” provision in 73 P.S. § 201-2(4)(xxi), which J-A17028-16 - 4 - provides liability for “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”  

“Deceptive conduct ordinarily can only take one of two forms, either fraudulent or negligent. . . . [T]he pre-1996 catchall provision covered only fraudulently deceptive practices. The broadening of the UTPCPL . . . makes negligent deception, e.g., negligent misrepresentations, actionable under the post-1996 catchall provision.” Dixon v. Northwestern Mutual, 2016 PA Super 186, -- A.3d -- (Aug. 25, 2016). Even with the broadening of the applicability of the catchall provision, in order to prevail on such a cause of action, “the UTPCPL plaintiff must still prove justifiable reliance and causation, because the legislature never intended [the] statutory language directed against consumer fraud to do away with the traditional common law elements of reliance and causation.” 

There was no “justifiable reliance” in this case, since P signed contract of sale with knowledge of the price discrepancy.  P did not make out a prima facie showing of justifiable reliance.,  and the UTPCPL claim alleging a “bait and switch” tactic on the part of car dealer must fail.
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