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.
