J-A20017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CINDY EMONDI                              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 T & G CAR SALES, LLC                      :
                                           :
                    Appellant              :   No. 1719 MDA 2018

            Appeal from the Judgment Entered January 17, 2019
    In the Court of Common Pleas of Cumberland County Civil Division at
                              No(s): 14-960


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED FEBRUARY 11, 2020

      T & G Car Sales, LLC (“T & G”), appeals from the judgment entered in

favor of Cindy Emondi following the trial court’s finding that T & G violated

the Unfair Trade Practices Consumer Protection Law (“UTPCPL”). T & G argues,

inter alia, that the trial court erred in concluding Emondi established the

element of justifiable reliance. We reverse.

      This case centers on Emondi’s allegations that T & G misrepresented the

condition of a car that had significant engine problems, and these

misrepresentations caused her to unknowingly purchase a defective car.

Emondi alleged that in so doing, T & G violated the UTPCPL, which prohibits

“unfair methods of competition and unfair or deceptive acts or practices in the

conduct of any trade or commerce.[]” 73 P.S. § 201-3. Emondi alleged that T

& G violated the UTPCPL in two ways: (1) “Representing that goods or services

are of a particular standard, quality or grade, or that goods are of a particular
J-A20017-19



style or model, if they are of another,” and (2) “Engaging in any other

fraudulent or deceptive conduct which creates a likelihood of confusion or of

misunderstanding.” 73 P.S. §§ 201-2(4)(vii), (xxi). Emondi also alleged T & G

had violated the statute by violating a regulation barring

      [t]he making of a representation or statement of a fact in an
      advertisement or sales presentation if the advertiser or
      salesperson knows or should know that the representation or
      statement is false and misleading or if the advertiser or
      salesperson does not have sufficient information upon which a
      reasonable belief in the truth of the representation could be based.

37 Pa. Code § 301.2(6); 73 P.S. § 201-3.1.

      Following a bench trial, the trial court found as follows. In March 2013,

Emondi was looking to buy a car. Trial Court Opinion, filed February 8, 2019,

at 3. Emondi approached Eddie Albright, whom she knew from school, the

lone salesperson for T & G and the son of its owner. Id.; N.T. (Trial), 5/30/17,

at 58. Albright showed Emondi a used BMW that he said was in “good

condition,” “seems good,” and would fit Emondi’s need for reliable

transportation. Tr. Ct. Op. at 3 & n.16. Albright told Emondi the car was “a

good running car” that “would last for awhile [sic].” Id. at 3 n.16.

      Emondi introduced into evidence the bill of sale, titled, “Used Vehicle

Order” (“UVO”). See N.T. at 64; Plaintiff’s Ex. 1. The UVO included a box,

marked with an “X,” next to the following statement:

      SOLD WITH WARRANTY. We the dealer warranty this vehicle for
      30 Days after delivery on a retail basis of parts and labor used.
      (Owner pays 50% and dealer pays 50% of total retail cost of parts
      and labor used.) All repairs must be made in our service shop or


                                     -2-
J-A20017-19


      shops authorized by dealer herein named. A full copy of the
      written warranty may be obtained.

Plaintiff’s Ex. 1 (emphasis in original).

      The bottom portion of the UVO stated, “I have read the face and back

of this order, and agree to this purchase contract.” Id. The reverse side of the

UVO stated, “All promises, statements, understandings or agreements of any

kind pertaining to this contract not specified herein are hereby expressly

waived.” Id. at 2, ¶ 3. Both parties signed the UVO. Id. at 1.

      Approximately six months after the purchase, Emondi took the car to

get an oil change and inspection at CR’s Motor Car Co. Inc. (“CR’s Motor”).

Id. at 4. Thereafter, Emondi noticed the heater did not function and took the

car back to CR’s Motor, which was unable to fix the heater. Id. at 4 & n.22.

      Approximately one month later, Emondi took the car to another

mechanic to have the heater fixed. The mechanic, who testified at trial as an

expert witness, diagnosed the car “with having a bad gasket, cracked or

warped head, or a cracked or warped engine block.” Tr. Ct. Op. at 4; see also

Plaintiff’s Ex. 9. He told Emondi that the engine would need extensive repair

work, and recommended that she have the engine replaced. Tr. Ct. Op. at 4.

He cautioned Emondi that without these repairs, the car was in a dangerous

driving condition. Id.

      He also told Emondi that he recognized her car as the same one that

had been brought to him in January of that year, and that it had exhibited the

same problems at that time. Id. When the mechanic told the previous owner



                                       -3-
J-A20017-19



of the engine problems, the owner replied that the car “would be traded.”1 Id.

Emondi stopped driving the car. N.T. at 81-82. By that time, she had driven

it approximately 8,000 miles. Id. at 93-94.

       Emondi confronted Albright, threatening legal action. Tr. Ct. Op. at 4-5.

The parties eventually arranged to meet, with their attorneys, at Emondi’s

home to collect an odometer reading from the car. Id. at 5. Two hours prior

to the arranged meeting time, Emondi discovered two T & G agents in her

driveway—one looking under the hood of the car, and the other seated in the

passenger compartment. Id.; N.T. at 77. Emondi’s neighbor also testified to

seeing the two men in Emondi’s driveway, one sitting in the car, while the

car’s hood was up. N.T. at 53-54. Once everyone else arrived, they turned on

the car and read the odometer. Tr. Ct. Op. at 5.

       Emondi took the car back to the shop, where the mechanic determined

that it was no longer displaying the previous engine problems. Id. at 5-6. He

told Emondi, and testified at trial, that the engine could not have recovered in

this manner unless a sealant had been added to the cooling system as a

temporary fix. Id. at 6. He was unable to confirm a sealant had been added,

as some sealants are colorless. Id.




____________________________________________


1 Emondi introduced into evidence the receipt describing the engine problem
which Forest Hill had given to the previous owner on January 26, 2013. See
N.T. at 24; Plaintiff’s Ex. 10. The receipt listed the same VIN as is listed on
the paperwork related to Emondi’s purchase of the car. See Plaintiff’s Ex’s. 1,
2, 3, and 5.

                                           -4-
J-A20017-19



       Emondi argued that Albright had represented that he was selling her a

good, reliable car, even though he had not performed an inspection to verify

its roadworthiness, and that the car was not roadworthy at the time she

purchased it. N.T. at 205-08. In addition, Emondi asserted that T & G agents

had surreptitiously added sealant to the engine on the day she found them in

her driveway, in an effort to mask the engine defect, and that T & G had

similarly added sealant to the engine before selling the car to her.

       Emondi sought compensation for the cost of a replacement engine, and

introduced evidence that it would cost $8,876.34. See Tr. Ct. Op. at 4 n.26;

N.T. at 24-25; Plaintiff’s Ex. 11. Emondi also sought reimbursement for the

interest she had paid on her auto loan, and introduced a document stating she

had paid $6,369.84 of finance charges. See Tr. Ct. Op. at 12 n.54; Plaintiff’s

Ex. 7. She requested reimbursement for her insurance premiums, and testified

that she paid $548.50 every six months for insurance. See Tr. Ct. Op. at 3

n.19; N.T. at 88. Emondi also introduced the auto repair bills she received

from Forest Hill, totaling $659.50, and CR’s Motor, totaling $239.56. See Tr.

Ct. Op. at 12; Plaintiff’s Ex.’s 6, 9-12.

       Albright testified that T & G had purchased the car at an auction in early

March 2013, and the seller had represented to T & G that the car was in

“sound” condition. Tr. Ct. Op. at 6.2 T & G did not conduct its own inspection

____________________________________________


2 T & G introduced the bill of sale documenting Albright’s purchase of the car
at auction. The agreement included an “AS IS” box, which was not checked.



                                           -5-
J-A20017-19



prior to or after purchasing the car, but Albright test-drove the car for 70

miles, and found it to be working properly. Id. at 6 & n.43; N.T. at 117, 121.

Albright testified that he believed the car to be in fit condition when he sold it

to Emondi. N.T. at 121-22. T & G introduced a rebuttal expert witness, the

mechanic from CR’s Motor, who testified that the car did not have an engine

problem. Tr. Ct. Op. at 4 n.24. T & G also introduced Michael Shatzer, who

testified that when he and another T & G agent arrived at Emondi’s home to

take the odometer reading, Emondi came outside to wait on the porch, and

her attorney arrived within a few minutes. N.T. at 188. Shatzer stated the T

& G agents were not two hours early, only stayed for 15 minutes, and did not

add anything to the engine. Id. at 189.

       T & G argued that Albright had not misrepresented the condition of the

car, because the car was roadworthy, and that, even if it was not, it was

roadworthy at the time of sale, and had presented no alleged problems until

8 months and 8,000 miles after the sale. T & G denied that it had masked any

engine problems either before or after the sale to Emondi. T & G also argued

that because Emondi had only a 30-day warranty, “to hold [it] responsible for

any of the costs that might occur after that warranty would largely turn the

entire auto industry on its head.” N.T. at 12. T & G asserted that if auto dealers

were held responsible for claims arising past the warranty, they “would

____________________________________________


Instead, the box marked “SOUND” was checked. Next to this box, the bill of
sale stated, “This vehicle is sold ‘sound,’” and “[i]t should not have any drive
train defect that will cost more than $1000 to repair[.]” Defendant’s Ex. 1.

                                           -6-
J-A20017-19



essentially be responsible for their vehicles for however many miles the

purchaser thinks they should last and that is not reasonable and not

something [T & G] should be held to.” Id.

       The trial court found that T & G engaged in deceptive conduct as defined

by section 202-2(4)(xxi) of the UTPCPL and 37 Pa.Code. § 301.2(6).3 Tr. Ct.

Op. at 8. The court found that Albright “admitted that he made no inspection

of the car prior to or after purchasing it in order to ensure that the

representations he made to [Emondi] were accurate,” and that he told Emondi

“that the car was a good, reliable car despite having (at best) no information

or (at worst) contrary information as to the quality of the car.” Id.

       The court concluded that Emondi justifiably relied on Albright’s

assurances, because Emondi had an existing relationship with Albright and

had specifically sought him out “to get a good running car.” Id. at 9 (citing

N.T. at 57-90). The court also found that as T & G is in the business of selling

cars, and Albright is the only salesperson on the car lot owned and operated
____________________________________________


3The court’s order announcing the verdict stated that on Count 1, it found by
a preponderance of the evidence that:

        . . . [Emondi] and [T & G] were involved in a commercial
       relationship as buyer and seller of a car used for a household
       purpose, that [T & G] misled [Emondi] during their dealings with
       respect to the quality and reliability of the car, knowing that
       [Emondi] may rely on his representations, that [Emondi]
       justifiably relied on those base representations and bought the car
       and suffered damages as a result.

Order, 9/14/18, at 1 ¶ 1. The court’s Rule 1925(a) opinion, which addressed
T & G’s challenges to the sufficiency and weight of the evidence, further
clarified its findings.

                                           -7-
J-A20017-19



by his family, and has “over thirty years’ experience in the car business and

considers himself a ‘sometime mechanic,’” Albright had an obligation to refrain

from making misrepresentations to consumers looking to purchase cars. Id.

at 9-10. The court found Emondi had no duty to conduct a private inspection

of the vehicle in order to prove justifiable reliance, as this holding “would place

undue burden on the consumer to protect themselves from the negligence or

malfeasance of the seller, which is precisely the conduct that the UTPCPL was

enacted to curtail.” Id. at 9.

      The court rejected T & G’s argument that Emondi was not justified in

relying on Albright’s statements because she purchased a 30-day warranty. It

stated, “[c]onsumers are not required under the law to take every possible

measure to combat misrepresentations of the seller,” and pointed out that the

problem with the vehicle’s engine did not become apparent until after the

warranty had expired. Id. at 9-10. The court also found that Emondi had

established the element of causation, because the evidence reflected that she

purchased the car based on T & G’s representations that the car was suitable

and in good condition. Id. at 10.

      The court awarded Emondi damages on the UTPCPL claim “in the

amount of $12,000.00 (representing actual damages to [Emondi] to repair

the faulty mechanics of the car and a partial award of other costs).” Order,

9/17/18, at 1, ¶ 1. The court found in favor of T & G on the counts for

fraudulent misrepresentation and fraudulent concealment. Id. at 1-2, ¶ 2. T




                                       -8-
J-A20017-19



& G filed a motion for post-trial relief, which the court denied. The court

entered judgment on the docket, and T & G appealed.4

       T & G raises the following issues:

       I. Whether the trial court committed an error of law and abused
       its discretion by entering judgment in favor of [Emondi] under the
       [UTPCPL] where [Emondi] failed to carry her burden of proof and
       the trial court lacked competent evidence to support its conclusion
       that T & G engaged in fraudulent or deceptive conduct creating a
       likelihood of confusion and misunderstanding, which are required
       to establish a right to relief under the UTPCPL.

       II. Whether the trial court committed error of law and abused its
       discretion by holding that [Emondi] proved justifiable reliance and
       causation, critical elements for relief under the UTPCPL where
       substantial record evidence established that the alleged problems
       with the vehicle arose after more than 8,000 miles of driving by
       [Emondi] and were not due to the condition of the vehicle at the
       time of sale and misrepresentation by T & G.

       III. Whether the trial court erred as a matter of law and abused
       its discretion by awarding $12,000 in damages representing
       “actual damages . . . and a partial award of other costs” where
       [Emondi] failed to produce evidence corroborating the damages
       figure and the term “other costs” was never defined.

T & G’s Br. at 2-3 (suggested answers omitted).

       We address only the second issue, as it is dispositive. T & G argues that

Emondi failed to establish she justifiably relied upon Albright’s assessment of

the condition of the vehicle, because she purchased the vehicle with a 30-day



____________________________________________


4 T & G filed notice of appeal prematurely, while the post-trial motions were
still pending before the trial court. As judgment has since been entered on the
docket, the appeal has been perfected. See Pa.R.A.P. 905(a)(5).



                                           -9-
J-A20017-19



warranty and did not make a claim during that time. 5 T & G claims that

because of the warranty, Emondi could not have justifiably relied on any

representations made as to the vehicle’s fitness after 30 days.6

       In reviewing this case, we are mindful that we are to construe the

provisions of the UTPCPL liberally, in order to effect the goal of protecting the

public of unfair or deceptive business practices. See Bennett v. A.T.

Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 151 (Pa.Super.

2012). Moreover, we will only reverse the decision of a trial court following a

non-jury trial if the court’s findings “are predicated on an error of law or are

unsupported by competent evidence in the record.” Boehm v. Riversource

Life Ins. Co., 117 A.3d 308, 321 (Pa.Super. 2015) (quoting Wallace v.

Pastore, 742 A.2d 1090, 1092 (Pa.Super. 1999)).

       In addition to other elements,7 an individual seeking relief under the

UTPCPL must establish the elements of justifiable reliance and causation.
____________________________________________


5 T & G also argues that Emondi declined an extended warranty. T & G’s Br.
at 15. The trial court noted that Emondi disputed this claim, and testified that
she was never offered an extended warranty. Tr. Ct. Op. at 6 n.45.

6 Due to our disposition, we need not address the following arguments that T
& G also lodges under this heading: (1) Emondi failed to establish she
justifiably relied upon Albright’s statements because she did not opt to have
the vehicle independently inspected, and (2) Emondi failed to prove causation,
because T & G did not misrepresent the condition of the car.

7 A private individual seeking relief under the UTPCPL must prove “1) the
defendant was engaged in unfair methods of competition and unfair or
deceptive acts or practices, and 2) the transaction between plaintiff and
defendant constituted ‘trade or commerce’ within the meaning of the UTPCPL.”



                                          - 10 -
J-A20017-19



Kirwin v. Sussman Auto., 149 A.3d 333, 336 (Pa.Super. 2016); Kern v.

Lehigh Valley Hosp., Inc., 108 A.3d 1281, 1289 (Pa.Super. 2015). These

requirements arise from the text of the UTPCPL. See 73 P.S. § 201–9.2

(providing the right to a private action to any person who “suffers any

ascertainable loss . . . as a result of” the unfair methods of competition and

unfair or deceptive acts or practices); Kern, 108 A.3d at 1289-90; Schwartz

v. Rockey, 932 A.2d 885, 898 n.16 (Pa. 2007).8

       A plaintiff asserting a UPTCPL claim cannot prove justifiable reliance

upon representations made prior to the entry of a contract, if that contract

addressed the subject matter of the misrepresentations and contained an

integration clause. In such a case, the terms of the contract supersede all

previous representations and agreements and preclude a finding of justifiable

reliance. See Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425,

439 (Pa. 2004).


____________________________________________


Fazio v. Guardian Life Ins. Co. of Am., 62 A.3d 396, 409 (Pa.Super. 2012)
(quoting Keller v. Volkswagen of Am., Inc., 733 A.2d 642, 646-47
(Pa.Super. 1999)); see also 73 P.S. § 201-3. The plaintiff must also establish:

       1) that he or she is a purchaser or lessee; 2) that the transaction
       is dealing with “goods or services”; 3) that the good or service
       was primarily for personal, family, or household purposes; and 4)
       that he or she suffered damages arising from the purchase or
       lease of goods or services.

Fazio, 62 A.3d at 409 (quoting Keller, 733 A.2d at 646-47).

8These elements were not affected by the 1996 amendments to the UTPCPL.
See Kern, 108 A.3d at 1289.

                                          - 11 -
J-A20017-19



       In Yocca, the plaintiffs purchased the right to buy annual season tickets

to see the Pittsburgh Steelers, after receiving a brochure that included

diagrams showing seat locations. Id. at 427-29. However, the plaintiffs each

signed an agreement – a “stadium builder license” (“SBL”) – that described

the location of the seats. The SBL included an integration clause. Id. at 430-

31. The plaintiffs brought suit under the UTPCPL asserting they were misled

by the seating diagrams. Id. at 431-32. The Supreme Court held the plaintiffs

could not establish they justifiably relied on the diagrams due to the

subsequent, integrated SBL agreement, which addressed the seat locations,

and which the plaintiffs did not claim was misleading. Id. at 439. The Court

explained that “by signing the SBL Agreement, which contained an integration

clause stating that the terms of the SBL Agreement superseded all of the

parties’ previous representations and agreements, [the plaintiffs] explicitly

disclaimed reliance on any such representations.” Id.9,   10




____________________________________________


9 Although, in Yocca, the parol evidence rule was not at issue in connection
with the UTPCPL claims, the Court held the plaintiffs could not establish
justifiable reliance on their UTPCPL claims “given this Commonwealth’s
adoption of the parol evidence rule.” Yocca, 854 A.2d at 439. The Court also
noted that “the law is not completely settled as to whether an SBL constitutes
either a good or a service.” Id. at 438.
10 See also Kirwin, 149 A.3d at 337 (finding plaintiff could not have justifiably
relied on advertised sales price of vehicle because plaintiff was aware of the
price difference prior to signing the sales contract); but see Toy v. Metro.
Life Ins. Co., 928 A.2d 186, 206-08 (Pa. 2007) (distinguishing between fraud
in the execution claims, as actionable under the UTPCPL notwithstanding an
integration clause, and fraud in the inducement claims); Boehm, 117 A.3d at
325-27 (same).

                                          - 12 -
J-A20017-19



      Here, Emondi claimed she relied upon Albright’s statements regarding

the fitness and longevity of the vehicle, that these statements induced her to

buy the car, and that she suffered harm when she later discovered the car

had severe engine problems. However, Emondi signed a contract stating T &

G only warranted the fitness of the car for 30 days following the sale, and that

the contract superseded any previous “promises, statements, understandings,

or agreements of any kind[.]” Plaintiff’s Ex. 1 at 2, ¶ 3.

      Thus, the contract was integrated, and it specifically addressed the

seller’s responsibility regarding the fitness of the vehicle. As a matter of law,

Emondi cannot have established that she justifiably relied on Albright’s

statements that the car “would last for awhile [sic].” Tr. Ct. Op. at 3 n.16;

Yocca, 854 A.2d at 439. Because Emondi’s claim is premised on

representations made before she entered a contract that specifically

disclaimed any warranty after 30 days, her claim must fail, and the trial court

erred in finding in her favor.

      Judgment reversed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/11/2020


                                     - 13 -
J-A20017-19




              - 14 -
