J-A17028-16


                                  2016 PA Super 222

THOMAS KIRWIN AND                                    IN THE SUPERIOR COURT OF
DIANNE KIRWIN                                              PENNSYLVANIA

                             Appellants

                        v.

SUSSMAN AUTOMOTIVE D/B/A
SUSSMAN MAZDA AND ERIC SUSSMAN

                             Appellees                      No. 2628 EDA 2015


                     Appeal from the Order June 24, 2015
             In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): A-2013-28177


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                               FILED OCTOBER 07, 2016

        Thomas Kirwin and Dianne Kirwin (collectively “the Kirwins”) appeal

from the order entered in the Court of Common Pleas of Montgomery

County, which granted the motion for summary judgment filed by Sussman

Automotive      d/b/a    Sussman       Mazda   and   Eric    Sussman   (collectively

“Sussman”). After careful review, we affirm.

        The trial court summarized the relevant facts as follows:

        On February 15, 2013, [Appellants] Thomas and [Dianne] Kirwin
        received a direct electronic mail solicitation quoting a 2012
        Mazda CX-9 Touring Sport Utility Vehicle, with all of the listed
        options, for $23,991.00 However, when the [Kirwins] arrived at
        the dealership and spoke to the salesperson, they were informed
        that the purchase price of the Mazda was actually $26,980.00,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A17028-16


      and that the lower price was a mistake caused by a computer
      glitch. The [Kirwins] replied that the price as posted on the
      vehicle’s window was also the lower number, $23,991.00,
      whereby, the sales person apologized for the confusion, offered
      [the Kirwins] a two (2) year free maintenance package on the
      vehicle for the mistake, but remained firm on the higher
      purchase price. The [Kirwins] ultimately purchased the 2012
      Mazda CX-9 Touring Sport Utility Vehicle for the higher price of
      $26,980.00. However, they then filed suit against the [Appellee]
      dealership pursuant to the Pennsylvania Unfair Trade Practices
      and Consumer Protection Law (hereafter “UTPCPL”).

      In their Amended Complaint, the [Kirwins] alleged that
      [Sussman] engaged in “bait and switch” advertising which
      caused [the Kirwins] to pay [$2,889.00] more for their vehicle
      than they had intended.

                                     ...

      On June 22, 2015, after oral argument and review of briefs, the
      trial court issued two (2) orders in the above[-]captioned matter
      addressing the parties’ Cross-Motions for Summary Judgment.
      The court granted [Sussman’s] Motion for Summary Judgment
      and dismissed [the Kirwins’] action with prejudice. The court
      also denied the [Kirwins’] Cross-Motion for Summary Judgment
      as moot.

Trial Court Opinion, 12/14/15, at 1-3 (citations omitted).

      The Kirwins filed a timely notice of appeal and court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On appeal, the Kirwins raise the following issues for our review:

      1. Whether a claim alleging deceptive conduct brought under
         [the] “catchall” provision of Pennsylvania’s Unfair Trade
         Practices and Consumer Protection Law, 73 P.S. §[§] 201.1-
         201-9.3, found in section 201-2(4)(xxi), [] requires proof of
         “common law fraud” elements, including justifiable reliance?

      2. Whether contrary interpretation requiring proof of common
         law elements including justifiable reliance can be reconciled
         with the plain words and the spirit of the statute?



                                     -2-
J-A17028-16


      3. Arguendo, if justifiable reliance is required, then did the
         [Kirwins] show sufficient proof thereof to survive summary
         judgment and proceed to trial, as the law typically mandates
         on this element[]?

Brief for Plaintiff-Appellant, at 4-5.

      Our scope and standard of review are well-settled:

      Our scope of review of an order granting summary judgment is
      plenary. [W]e apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there
      exists a genuine issue of material fact. We view the record in
      the light most favorable to the non-moving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party. Only where there is no
      genuine issue as to any material fact and it is clear that the
      moving party is entitled to a judgment as a matter of law will
      summary judgment be entered.

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585 (Pa. Super. 2013)

(citations and quotation marks omitted).

      As Pennsylvania’s consumer protection law, the UTPCPL has the

purpose of protecting the public from unfair or deceptive business practices

and provides for a private right of action. Id. at 591. The right to pursue

an action is as follows:

      Any person who purchases or leases goods or services primarily
      for personal, family or household purposes and thereby suffers
      any ascertainable loss of money or property, real or personal, as
      a result of the use or employment by any person of a method,
      act or practice declared unlawful by section 3 of this act, may
      bring a private action to recover actual damages or one hundred
      dollars ($100), whichever is greater.

73 P.S. § 201-9.2 (footnote omitted). The unlawful practices noted above

include the UTPCPL’s “catchall” provision in 73 P.S. § 201-2(4)(xxi).     The

Kirwins initiated suit against Sussman based upon this provision, which


                                         -3-
J-A17028-16



provides liability for “fraudulent or deceptive conduct which creates a

likelihood of confusion or of misunderstanding.” Id.

       We note that “[d]eceptive 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.”1
____________________________________________


1
  The Kirwins rely on Grimes v. Enter. Leasing Co. of Philadelphia, LLC,
66 A.3d 330 (Pa. Super. 2013), reversed on other grounds, 105 A.3d 1188
(Pa. 2014), which indicates that

       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. . . . Therefore, to the extent
       that Grimes alleges Enterprise’s conduct was deceptive, as
       opposed to fraudulent, she need not allege justifiable reliance.

Grimes, 66 A.3d at 337 n.4 (citation omitted). While our Supreme Court
originally granted allowance of appeal to consider the question of whether
justifiable reliance must be pled and proven in a UTPCPL catchall claim, the
Supreme Court ultimately determined that Grimes had not demonstrated an
ascertainable loss and reversed this Court’s order on that ground alone.
(Footnote Continued Next Page)


                                           -4-
J-A17028-16



DeArmitt, supra at 592. Indeed, at common law, both fraud and negligent

misrepresentation require proof of justifiable reliance. See Bortz v. Noon,

729 A.2d 555, 560-61 (Pa. 1999).                 Accordingly, the first two issues the

Kirwins raise regarding whether justifiable reliance must be proven in the

UTPCPL context are without merit.

      Because the UTPCPL requires a showing of justifiable reliance, we turn

to the Kirwins’ final issue on appeal, regarding whether they have shown

sufficient proof of this element to survive the summary judgment stage of

the proceedings.

      The Kirwins correctly note that whether justifiable reliance existed is

ordinarily a question of fact. See e.g., DeArmitt, supra at 593 (“justifiable

reliance is typically a question of fact for a fact-finder to decide”). However,

the Kirwins fail to present even a basic set of facts tending to show reliance

on the lower advertised price. As the trial court summarized,

      [Appellant Thomas Kirwin’s] own deposition testimony belies
      justifiable reliance on the alleged deceptive advertisement. That
      is, during his October 23, 2014, deposition, Thomas Kiriwn
      admitted that he was made aware of the price discrepancy
      between [the] vehicle’s advertised and actual price before
      signing any documents[,] admitted that he had two functioning
                       _______________________
(Footnote Continued)

Accordingly, the footnote in Grimes, supra, is of limited precedential value.
Additionally, this Court thereafter published its opinion in DeArmitt, supra,
holding that justifiable reliance has always remained an element of
actionable deceptive conduct under the UTPCPL. See also Kern v. Lehigh
Valley Hosp., Inc., 108 A.3d 1281, 1289 (Pa. Super. 2015) (reiterating
that justifiable reliance is element of individual cause of action under
UTPCPL).



                                            -5-
J-A17028-16


       vehicles at the time of the sale and could have walked away
       from the sale prior to signing[,] admitted that he signed the
       buyer’s order and final order fully aware of the price
       discrepancy[,] and[] admitted that he chose not to utilize the
       option to cancel in the buyer’s order post-signature because he
       wanted to renegotiate the deal. Thus, after [the Kirwins] spoke
       to the salesperson at the dealership, [they] clearly knew that the
       vehicle at issue would cost them $26,980.00, and not[] the
       lower advertised price of $23,991.00. Despite this knowledge,
       they chose to proceed with the purchase.

Trial Court Opinion, 12/14/15, at 6-7 (citations omitted) (emphasis in

original). Accordingly, the Kirwins cannot make out a prima facie showing of

justifiable reliance and their UTPCPL claim alleging a “bait and switch” tactic

on the part of Sussman must fail.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016

____________________________________________


2
  We note that in their pleadings and exhibits, the Kirwins make allegations
and provide evidence only as to the pricing for the vehicle they purchased.
Sussman offered a service package for two years to the Kirwins for the
vehicle, which indicates acknowledgment of a one-time mistake.             The
Kirwins neither argue nor provide evidence that Sussman advertised any
other vehicles at incorrect prices in order to lure customers to the
dealership, only to be informed of the actual, higher price at the time of
purchase.    Accordingly, we do not address whether such practices would
violate the UTPCPL catchall provision if routinely conducted at a dealership.



                                           -6-
