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.

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)