Halpern v. Ricoh USA – Pa. Super. 87-28-23
https://www.pacourts.us/assets/opinions/Superior/out/J-S20016-23o%20-%20105619038233953299.pdf?cb=1
Held: Deception by omission only actionable if there is an affirmative duty to disclose a defect in a good or service, following Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa. Super. 2001), even though the court criticized Romeo.
The court stated in n. 5:
At best, this Court’s CPL analysis in Romeo v. Pittsburgh Assocs., 787 A.2d 1027, 1033 (Pa. Super. 2001), is sparse. The panel did not review the statute’s language, its legislative history, or similarly worded statutes from our Sister States or the Federal Government. See, e.g., Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745 (N.Y. 1995) (allowing plaintiff’s nondisclosure theory to proceed to trial under New York’s statutory equivalent of the CPL, “where the business alone possesses material information that is relevant to the consumer and fails to provide this information” without relying upon common-law duty to disclose); see also, Kyszenia v. Ricoh USA, Inc., 583 F. Supp. 3d 350, 360 (E.D.N.Y. 2022) (holding that a complaint nearly identical to Buyer’s amended complaint stated a claim against Ricoh for selling similarly defective Pentax cameras under the New York statute but dismissing action as time barred). Moreover, the Romeo court offered no explanation as to how a common-law duty to disclose (or lack thereof) could override the statutory mandates of the CPL. Presumably, the General Assembly adopted the remedial CPL to remove the old strictures of common-law pleading and proof from the law of consumer transactions. Romeo’s holding may have undermined that legislative goal.
Still, “it is beyond the power of a Superior Court panel to overrule a prior decision of the Superior Court, except in circumstances where intervening authority by our Supreme Court calls into question a previous decision of this Court.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). We know of no such intervening pronouncement. Nor do we think, as Buyer contends in his brief and reply brief, that Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 646 (Pa. 2021), did so. There, the question was what level of intent a vendor must have to violate the CPL-catch-all provision, not whether a common-law duty to disclose is a prerequisite to rendering a vendor’s nondisclosure actionable. The High Court held that no proof of mental state is required; thus, the catch-all provision imposes strict liablity. Buyer seems to conflate strict liablity (i.e., liablity without fault) with passive nondisclosure. An affirmative false statement and a deceptive nondisclosure may both be made intentionally (fraud), negligently (misrepresentation), or with the utmost care (strict liability). Thus, Gregg’s holding regarding strict liability under the catch-all provision did not overrule Romeo sub silentio.
Because there were no allegations in the complaint that established a common-law duty by Ricoh to disclose the defect in the Pentax camera to Buyer, under Romeo, Buyer failed to state a claim that Ricoh violated the catch-all provision of the CPL by its silence regarding the defective camera. The trial court correctly held that he did not satisfy the third prong of a CPL action, as the test is articulated in Gregg, supra, albeit for an incorrect reason.
