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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