J-A03020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    STEVEN D. WEISS                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FRITCH, INC., BOSTON                       :   No. 2332 EDA 2017
    ENVIRONMENTAL, L.L.C.                      :

                   Appeal from the Order Entered May 1, 2017
     In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                                 2016-C-1832


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

MEMORANDUM BY McLAUGHLIN, J.:                             FILED APRIL 25, 2018

        Appellant Steven D. Weiss appeals from the orders of the trial court

sustaining the Preliminary Objections that Appellee Boston Environmental,

L.L.C. (“Boston”) filed in response to Weiss’s Second and Fifth Amended

Complaints. The trial court held that Weiss’s negligence claims against Boston

in the Second Amended Complaint were precluded by the gist of the action

doctrine, and that Weiss failed to allege sufficient facts in the Fifth Amended

Complaint to support his claims under the Pennsylvania Unfair Trade Practices

and Consumer Protection Law (“UTPCPL”).1 We affirm.




____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   See 73 P.S. §§ 201-1 through 201-9.3.
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      Weiss first brought suit against both Fritch, Inc. (“Fritch”) and Boston in

2016. Weiss filed six complaints in total. Relevant to this appeal, Weiss filed

a Second Amended Complaint, in which Weiss alleged that in 2003, he had a

275-gallon aboveground oil storage tank in the basement of his home. Fritch,

the company which provided Weiss’s oil deliveries, gave Weiss a pamphlet

(“the Pamphlet”) promoting the new “TankSure Program” (hereinafter

“TankSure” or “the Program”).

      The Second Amended Complaint quoted portions of the Pamphlet, which

explained that under the Program, Fritch would add a “corrosion protection

product” to Weiss’s oil; annually test the tank for corrosion using a special

TankSure device; and warranty the payment of $1,000 toward a replacement

tank if the annual inspection showed that replacement was proactively

necessary. Second Amended Complaint at 39. Weiss also quoted portions of

a “Tank Replacement Payment Certificate” (“the Certificate”) he received,

although he does not state in the Complaint when or how he received the

Certificate. The Certificate further explained that the Program would provide

“coverage for the tanks that leak due to corrosion or manufacturer’s defects

and for non-leaking tanks which are identified for proactive replacement by

TankSure® Tank Analysis Software.” Id. at 24.

      Weiss alleged that Boston, a Delaware corporation, acted as the holder

of the trademark of the TankSure Program, and that Boston promoted,

marketed, advertised, and sold the Program to Weiss through Fritch. Weiss


                                      -2-
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quoted portions of the TankSure website and Facebook page, allegedly

operated by Boston. Aside from making claims regarding the necessity and

efficacy of the Program, the TankSure website stated that it is a “patent Data

Collection, Data Tracking & Mining, and Sales & Marketing process.” Second

Id. at ¶ 118. On a portion directed towards “home comfort providers,”2 the

website explained the data-tracking portion of the Program as follows:

       The TankSure® Program fulfills all inspection requirements
       including record keeping and data tracing through the TankSure®
       Cloud Database. The ultrasonic thickness gauges used for the
       TankSure® Program inspections are specifically designed for
       testing home heating oil tanks.

Id. at ¶ 126.

       As inspection data is entered, The TankSure® Program allows you
       to access Equipment Sales Reports and data in real time from any
       web browser. . . . All data is hosted in a secure data hosting
       facility. This facility employs the use of biometric security access,
       24/7 video surveillance, hospital grade back-up generators, fire
       suppression systems, and temperature humidity controls to
       ensure data integrity.

Id. at ¶ 120. The website also stated that the Program provides training for

employees of home comfort providers, including in tank evaluation and data

collection. Id. at ¶ 123.

       Weiss signed up for the Program and received regular TankSure

inspections, the most recent of which occurred in October 2013. According to

Weiss, “[t]he results of the 10/23/13 Fritch [m]aintenance was that the [tank]


____________________________________________


2Weiss asserts that Fritch is a “home comfort provider,” and Fritch does not
contest this categorization.

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was sound and in conformity with the applicable standards, including the

TankSure standard.” Id. at ¶ 44.

      Over a year after his last inspection, on December 1, 2014, Fritch refilled

Weiss’s tank with oil. Immediately following the Fritch employee’s departure,

the tank ruptured, spilling approximately 100 gallons of oil into Weiss’s

basement. Fritch removed the ruptured tank and installed a new tank.

However, according to the Second Amended Complaint, Fritch did not use

proper procedures when cleaning up the spill, causing further damage to

Weiss’s home and exposing Weiss to dangerous pollutants. Weiss had the

replacement tank independently inspected, and it was found to be installed

improperly. Fritch modified the tank and it passed an additional inspection.

      Based on these facts, Weiss asserted, among other claims, a claim of

negligence against Boston. According to Weiss, Fritch and Boston knew or

should have known that Weiss’s tank would be unable to withstand the final

oil delivery, and were negligent in assuring him that his tank was sound. Weiss

also claimed that he was misinformed about the integrity of his tank because

both Fritch and Boston were negligent in designing and developing the

TankSure Program, and in testing, inspecting, and analyzing his tank.

      Boston filed Preliminary Objections in the nature of a demurrer pursuant

to Pa.R.C.P. 1028(4), asserting that Weiss’s Second Amended Complaint did

not allege sufficient facts to sustain a negligence claim against Boston.




                                      -4-
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     Weiss filed a Memorandum of Law in opposition to Boston’s Preliminary

Objections, and attached both the Pamphlet and Certificate as an exhibit. The

Pamphlet displays Fritch’s logo, address, and phone number, and states that

the Program costs $55 per year. It makes the following claims regarding the

function of the TankSure Program:

     Imagine the peace of mind you can have knowing that Fritch, Inc.
     has the ability to predict when your oil tank will fail, and be able
     to replace it prior to that time with up to $1000.00 of the
     replacement cost covered by the TankSure® Program.

                                     ...

     The monitoring part of the program comes from an ultrasonic tank
     test that is conducted annually. By analyzing these measurements
     we are able to determine the integrity of your tank. If your tank
     is determined to be in need of replacement, while covered by this
     program, then the warranty part of the TankSure® Program will
     cover up to $1000.00 towards the replacement of the tank.

Memorandum of Law in Opposition to Preliminary Objections to Second

Amended Complaint at Ex. A.

     The Certificate displays a TankSure logo identical to the one in the

Pamphlet, and explains in greater detail the parameters of the Program. It

does not mention Fritch, but states that the Program is offered by the

“Company,” from which the homeowner must purchase all heating oil, and

that the Company will provide $1,000 towards a replacement tank and its

installation. Id. The Certificate states $1,000 towards a replacement tank is

the exclusive remedy “for tanks that leak due to corrosion or manufacturer’s

defects and for non-leaking tanks which are identified for proactive

preplacement by the TankSure® Analysis Software,” or “for defects in the

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tank caused by the manufacturer for any deficiency in the tank testing

equipment, tank test procedures, visual inspection process, or test results.”

Id. It also mentions Boston, but only to state that Boston disclaims all “other

liabilities” aside from $1,000 towards tank replacement, including costs

associated with tank repair, clean-up costs, and property damage. Id.3

        The court sustained the Preliminary Objections and dismissed the

negligence claim against Fritch and Boston without prejudice. The court

concluded that the claim was precluded by the “gist of the action” doctrine,

which prevents a plaintiff from recasting a breach of contract claim as a tort

claim. See Trial Court Opinion, filed Sept. 5, 2017, at 7-9.

        Weiss filed a Fifth Amended Complaint, in which he asserted (among

other counts), that the claims made on the TankSure website and Facebook


____________________________________________


3   The Certificate stated that Boston disclaims, “without limitation,”

        incidental, special, and consequential damages to Buyer,
        homeowner, or third parties; parts and labor associated with
        repair of the tank; costs associated with pumping out oil and
        otherwise clearing the tank as part of the replacement; damage
        to pipes to and from the tank; the replacement cost of any oil lost
        as a result of releases or otherwise; environmental liabilities and
        clean-up costs and all other costs arising from or related to
        discharges of oil or releases of contaminates from the tank or
        piping; costs associated with disposing of any oil contained in the
        tank; and all fines, penalties, and claims for property damage or
        diminution in property value, including those alleged or incurred
        by the homeowner or third-parties.

Memorandum of Law in Opposition to Preliminary Objections to Second
Amended Complaint at Ex. A.



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page (maintained by Boston) violated the UTPCPL.4 Weiss repeated that he

received the Pamphlet from Fritch in October 2003, and claimed that based

on the statements in the Pamphlet and oral assurances from Fritch, he decided

to enroll in the Program. Weiss also alleged, broadly, that “[f]rom 2003 to

2014,” he accessed and read information on the TankSure website and

Facebook page “in order to formulate the basis for acceptance [of] and annual

renewal” in the Program. Fifth Amended Complaint at ¶¶ 26, 59.

       The Fifth Amended Complaint again quoted portions of the TankSure

website and Facebook page. According to the Fifth Amended Complaint, the

website made claims regarding endorsements of the Program such as:

       The practice of ultrasonic testing is endorsed by insurance
       companies and State Environmental Protection Agencies[.]

id. at ¶ 36;

       Ultrasonic thickness gauges have been successfully utilized for
       nondestructive testing in a variety of industries and scenarios for
       over 30 years. Some of the larger primary industries currently
       utilizing ultrasonic are Oil & Gas, Aerospace, Aircraft, Power,
       Automotive, Structural Engineering, Military, Stamping, and
       Precision. A large number of industry segments are also utilizing
       this technology to fulfill their inspection requirements.

id. at ¶ 43;


____________________________________________


4 The UTPCPL provides a civil cause of action for any purchaser of a service,
for personal or household purposes, who suffers a loss as a result of “a
method, act, or practice declared unlawful by section 3 of this act[.]” 73 P.S
§ 201-9.2(a). Section 3 of the UTPCPL declares unlawful any “unfair or
deceptive acts or practices in the conduct of any trade or commerce” as
defined by subsections 201-2(4)(i) through (xxi). Id. at § 201-3.

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       [T]he Environmental Protection Agency (EPA) and American
       Petroleum Institute (API) approve ultrasonic testing as a method
       for determining the integrity of fuel oil storage tanks. While these
       agencies do not currently regulate home heating oil tanks, rather
       they regulate larger commercial tanks, the methods they approve
       are directly applicable to home heating oil tanks. In fact, the
       applications are identical. The process that the TankSure®
       Program employs for ultrasonic testing is based on EPA and API
       standards and guidelines. The TankSure® Program fulfills all
       inspection requirements including record keeping and data
       tracking through the TankSure® Could Database. The ultrasonic
       thickness gauges used for the TankSure® Program inspections
       are specifically designed for testing home heating oil tanks.
id. at ¶ 44;


       [T]he TankSure Program is the fuel oil industry’s standard for
       evaluating the safety and integrity of aboveground oil tanks. The
       program utilizes a patented ultrasonic testing and review process
       to help identify when your tank should be replaced before it
       actually starts leaking.
id. at ¶ 46.5

       Weiss claimed that the promotional materials he received from Boston,

and from Boston through Fritch, constituted deceptive trade practices which

violated portions of 73 P.S. § 201-2(4), “including, but not limited to” the

following subsections:

       (ii) Causing likelihood of confusion or of misunderstanding as to
       the source, sponsorship, approval or certification of goods or
       services;



____________________________________________


5 Weiss also alleged that Boston, in response to this suit, has since removed
“Homeowners” from the “Contact Us” portion of its website, indicating that
the prior version of the website was directed towards Homeowners, rather
than service providers. As this fact was not before the trial court, we cannot
consider it.

                                           -8-
J-A03020-18


      (iii) Causing likelihood of confusion or of misunderstanding as to
      affiliation, connection or association with, or certification by,
      another;

      (iv) Using deceptive representations or designations of geographic
      origin in connection with goods or services;

      (v) Representing that goods or services have sponsorship,
      approval, characteristics, ingredients, uses, benefits or quantities
      that they do not have or that a person has a sponsorship,
      approval, status, affiliation or connection that he does not have[.]

Id. at ¶ 226 (quoting 73 P.S. § 201-2(4)(ii-v)). Weiss claimed that these

subsections apply to the manner in which Boston “sponsored and/or certified

and/or represented and/or designated TankSure to [Weiss]”; “affiliated itself

and/or associated itself and/or certified itself with Fritch in relation to

[Weiss]”; and “affiliated TankSure and/or associated TankSure and/or

certified TankSure with Fritch in relation to [Weiss].” Id. at ¶¶ 227-230.

      Boston filed Preliminary Objections to the Fifth Amended Complaint.

Weiss filed a Memorandum of Law in objection to the Preliminary Objections.

The court sustained the Preliminary Objections and dismissed all counts

against Boston with prejudice. The court concluded that Weiss did not aver

that the TankSure marketing materials made claims that the Program “had

any benefits or qualities that it does not have,” and that the statements made

in the TankSure promotional literature “at worst, constitute puffery.” Trial Ct.

Op. at 11. Fritch thereafter settled the claims remaining against it.

      Weiss appealed the court’s orders sustaining Boston’s Preliminary

Objections to Weiss’s Second and Fifth Amended Complaints and dismissing


                                     -9-
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his claims of negligence and UTPCPL claims against Boston. Weiss raises the

following issues:

      1. Whether the trial court erred on December 6, 2016 in sustaining
      [Boston]’s Preliminary Objections to the Second Amended
      Complaint based on the Gist of the Action Doctrine for the same
      reasons as those set forth for co-Defendant Fritch and striking all
      claims against [Boston] without prejudice?

      2. Whether the trial court erred on May 1, 2017 in sustaining
      [Boston]’s Preliminary Objections to the Fifth Amended Complaint
      as to the claim asserted pursuant to the [UTPCPL] and dismissing
      [Boston] from the litigation with prejudice?

Weiss’s Br. at 5.

      Our standard of review on an appeal from an order sustaining

preliminary objections in the nature of a demurrer is “to determine whether

the complaint adequately states a claim for relief under any theory of law.”

Mistick, Inc. v. Nw. Nat’l Cas. Co., 806 A.2d 39, 42 (Pa.Super. 2002)

(quotation marks and citation omitted). We must accept as true “all material

facts as set forth in the complaint, as well as all inferences reasonably

deducible therefrom.” Bilt-Rite Contractors, Inc. v. The Architectural

Studio, 866 A.2d 270, 272 (Pa. 2005). If there is any doubt about whether

the demurrer should be sustained, then it should be overruled. Bruno v. Erie

Ins. Co., 106 A.3d 48, 56 (Pa. 2014).

                            I. Gist of the Action

      Weiss first argues that the trial court erred in dismissing his negligence

claim against Boston on the basis of the gist of the action doctrine. The court

concluded that the doctrine applied to bar the negligence claim in the instant

                                    - 10 -
J-A03020-18


case because any duty to advise Weiss that his tank was sound arose from

the contractual terms of the TankSure Program; the parties owed no duty to

inspect or monitor Weiss’s tank outside the terms of the contract. “[T]he

question of whether the gist of the action doctrine applies is an issue of law

subject to plenary review.” J.J. DeLuca Co. v. Toll Naval Assocs., 56 A.3d

402, 413 (Pa.Super. 2012) (citation omitted).

       Weiss argues that the gist of the action doctrine does not bar his

negligence claim because Boston’s negligent actions were collateral to his

contract with Fritch. Weiss cites Bruno for the proposition that tort claims can

arise collaterally to a contract even though the relationship of the parties arose

from a contract, and that, in such an instance, the gist of the action doctrine

does not apply. Weiss elaborates that his negligence claim was not grounded

in Boston’s failure to perform any obligations under the contract, but in its

negligent performance of the duties which arose from the contract.6 More

specifically, Weiss argues that Boston “acted in a negligent manner by making

false or reckless assurances regarding the integrity of [Weiss’s tank] and

foregoing to recommend to [Weiss], through Fritch, to replace his [tank].”

Weiss’s Br. at 28-29. Weiss asserts that, aside from the actions of Fritch

(which Weiss also imputes to Boston), Boston was negligent in designing



____________________________________________


6“The crux of [Weiss’s] allegations was not a failure to perform [contractual
duties], [but] rather, negligen[t] conduct in [the] performance thereof.”
Weiss’s Br. at 28.

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TankSure, training Fritch’s employees, entrusting Fritch’s employees, and

tracking and analyzing the collected TankSure data within the special

database.

      Weiss cites Bilt-Rite for the proposition that a negligence claim against

a third party can survive in conjunction with a contract claim, so long as the

tortfeasor is a business which provides information, for pecuniary gain, and

the business reasonably forsees that the information will be relied upon by

third parties in their business endeavors. Here, Weiss argues, Boston received

money in exchange for maintaining and analyzing and relaying the TankSure

test results, and Boston could have reasonably foreseen that it owed a duty

of care to any final purchaser of the Program.

      Finally, Weiss argues that Boston is liable for the negligent actions of

Fritch because Fritch was acting with “apparent authority” on behalf of Boston.

Weiss’s Br. at 34. Weiss claims that he sufficiently pleaded an agency

relationship by stating in the Second Amended complaint that Fritch and

Boston were working “in conjunction,” and that the pleaded facts demonstrate

that Weiss reasonably believed that Boston had granted Fritch authority

relating to TankSure. Weiss therefore not only argues that Boston’s duties

relating to the test of Weiss’s tank—including developing TankSure, training

Fritch’s employees, and storing and analyzing data—were collateral to the

terms of the contract with Fritch, and that Boston performed those duties

negligently; but also that Fritch was acting as Boston’s agent when performing


                                    - 12 -
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its data-collecting duties—duties that were collateral to the underlying

contract—and that Fritch performed them negligently on Boston’s behalf. On

both points, we disagree.

      The gist of the action doctrine “ensure[s] that a party does not bring a

tort claim for what is, in actuality, a claim for a breach of contract.” Bruno,

106 A.3d at 60. The “critical determinative factor” in determining whether a

claim is a tort or breach of contract claim is “the nature of the duty alleged to

have been breached.” Id. at 68. In other words, a breach of contract action

must be based on “a breach of any of the specific executory promises which

comprise the contract”; if the breach is of a “broader social duty,” then the

claim is in tort, and the contract “is regarded merely as the vehicle, or

mechanism, which established the relationship between the parties, during

which the tort of negligence was committed.” Id. at 70.

      In the instant case, the Pamphlet states that Fritch would monitor

Weiss’s tank, through an ultrasonic tank test and analysis, in order to

determine the need for a replacement due to corrosion. Weiss asserts Fritch

was acting as Boston’s agent, and that Boston also played a separate role in

analyzing and reporting the data. Weiss does not argue that the parties failed

to perform the test and track the data, but that the parties were negligent in

the performance of this duty, because Weiss was not warned that his tank was

corroded. This is an artificial distinction. The gist of Weiss’s action is that the

testing portion of the TankSure program failed. The complained-of actions are


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not collateral to the contract, but arise solely from the specific promises made

in the contract, and the failure to fulfill them. This is a contract claim.

      To be sure, negligent performance of duties assumed by contract can

give rise to a tort claim. But, in such an instance, the negligent act is collateral

to the promises made in the contract. For example, if Fritch had broken an

expensive doorknob while performing the test, or advised Weiss to clean his

carpets with carbolic acid, such actions or statements would have fallen

outside the duties imposed by the contract. Conversely, the duty to come to

Weiss’s house and properly perform a test to predict whether his tank would

fail was a duty completely contemplated and mandated by the contract.

      Weiss’s reliance on Bruno is misplaced. In Bruno, a contract existed

between a homeowner and home insurer for the detection and removal of

mold. 106 A.3d at 51. The home insurer retained an adjuster and engineer,

who gave false assurances to the homeowner regarding the toxicity of the

mold, and the homeowner relied on these statements in deciding whether to

renovate the basement of the house. Id. at 51-52. The homeowner sued the

home insurer in tort for the negligent misrepresentations of the adjuster and

engineer. Id. at 52. The Supreme Court held that the claim was not barred by

the gist of the action doctrine. Id. at 70-71. It explained that the

representations regarding the toxicity of the mold were collateral to the duties

imposed by the contract, and the insurer’s duty to maintain reasonable care

in making such statements arose from the general social policies underlying


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negligent misrepresentation. Id. Here, conversely, the duty to inspect Weiss’s

tank was at the heart of the TankSure program. According to the Second

Amended Complaint, Fritch (or Boston, through Fritch) did not relate the

results of the test incidentally to the duties imposed by the contract, but as

required under the contract.

       Bilt-Rite likewise affords Weiss no relief. In Bilt-Rite, the Supreme

Court held that an architect who designed plans for public construction

contract could be held liable for negligent misrepresentation to the building

contractor using those plans, despite the fact that there was no privity of

contract between the parties. 866 A.2d at 285. Here, however, Weiss asserts

that there is privity of contract, and Bilt-Rite therefore does not apply.7 The

trial court did not err in dismissing the negligence claim against Boston, as

pleaded in the Second Amended Complaint, pursuant to the gist of the action

doctrine.


____________________________________________


7 We note that the Certificate identifies Boston as a party, and clearly states
that Boston disclaims certain liabilities under the TankSure Program. See
Casey v. GAF Corp., 828 A.2d 362, 369 (Pa.Super. 2003) (a disclosed or
partially disclosed principal can be subject to liability upon contracts made by
an agent acting within its authority). If, instead, Boston were not a party to
the contract, and did in fact (as alleged by Weiss) assume some responsibility
in generating the results of the tank testing, then Boston would have been
subject to tort liability. See, e.g., Bilt-Rite, 866 A.2d at 285 (holding design
professional liable for negligent misrepresentation for faulty architectural
plans sold to foreseeable third party); Evans v. Otis Elevator Co., 168 A.2d
573, 576 (Pa. 1961) (holding elevator inspector liable for negligent inspection
to third-party victim); Scampone v. Grane Healthcare Co., 169 A.3d 600,
619 (Pa.Super. 2017) (holding corporation managing a nursing home liable
for negligence in providing care to third-party residents).

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                         II. Unfair Trade Practices

      In his second issue, Weiss argues that the court erred in sustaining

Boston’s Preliminary Objections to his Fifth Amended Complaint and

dismissing his claims under the UTPCPL. “The UTPCPL is Pennsylvania's

consumer protection law and seeks to prevent unfair methods of competition

and unfair or deceptive acts or practices in the conduct of any trade or

commerce.” Knight v. Springfield Hyundai, 81 A.3d 940, 949 (Pa.Super.

2013). “To bring a private cause of action under the UTPCPL, a plaintiff must

show that he justifiably relied on the defendant's wrongful conduct or

representation and that he suffered harm as a result of that reliance.” McCabe

v. Marywood Univ., 166 A.3d 1257, 1263 (Pa.Super. 2017) (quoting Yocca

v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004)).

      In his Fifth Amended Complaint, Weiss claimed that Boston engaged in

deceptive trade practices violating portions of 73 P.S. § 201-2(4), “including,

but not limited to” subsections (ii) through (v). On appeal, however, he asserts

that Boston violated subsections (v), (vii), (ix), and (xxi). Because Weiss

made no argument regarding subsections (vii), (ix), and (xxi) before the trial

court, Weiss’s arguments related to those subsections are waived. See

Pa.R.A.P. 302 (issues may not be raised for the first time on appeal). We will

therefore only consider whether the trial court erred in dismissing Weiss’s

claim that Boston violated subsection (v).




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       Subsection (v) of the UTPCPL prohibits “[r]epresenting that goods or

services have sponsorship, approval, characteristics, ingredients, uses,

benefits or quantities that they do not have or that a person has a sponsorship,

approval, status, affiliation or connection that he does not have[.]” 73 P.S. §

201-2(4)(v). Weiss argues that he relied on the “deceptive representations

and assurances” made by Boston, and Fritch through Boston, in the TankSure

Pamphlet, the website, and Facebook page, “in deciding to enroll and annually

re-enroll in the TankSure Program,” and contends that these representations

“would be deemed unlawful by the UTPCPL.” Weiss’s Br. at 37-38.8

       The statements that Weiss asserts are unlawful fall into two general

categories. In the first category are the statements made on the TankSure

website and Facebook page, which make such claims as that Tanksure “is the

fuel oil industry’s standard for evaluating the safety and integrity of

aboveground oil tanks,” and that the ultrasonic testing methods used by

Tanksure are “endorsed by insurance companies and State Environmental

Protection Agencies”; “have been successfully utilized . . . in a variety of




____________________________________________


8 Weiss also argues that the economic loss doctrine, which bars recovery in
negligence actions where no physical injury or property damage occurred,
does not apply to his UTPCPL claims (and, additionally, that he suffered
physical injury and property damage). Because the trial court did not reach
this issue, and because we dismiss Weiss’s claims on other bases, we need
not discuss it further.

                                          - 17 -
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industries and scenarios for over 30 years”; and are approved by the EPA and

API.

       Regarding these statements, we agree with the trial court that Weiss

failed to allege sufficient facts to conclude that these statements are

deceptive. Weiss did not argue in his Fifth Amended Complaint, and does not

assert on appeal, that, for example, the TankSure methods have not been in

use for “over 30 years,” that the methods vary from those approved or

endorsed by the EPA and API or insurance companies. Weiss has failed to

clarify in what way these statements could be construed as misleading, and

we therefore affirm the trial court’s dismissal of his claims in relation to those

statements.

       In the second category are the statements contained in the Pamphlet,

which include the claims that Fritch “has the ability to predict when your oil

tank will fail, and will be able to replace it prior to that time,” and “by analyzing

[the ultrasonic test] measurements [Fritch is] able to determine the integrity

of your tank.” We disagree with the trial court’s conclusion that Weiss failed

to allege that these statements are deceptive. Weiss alleged in the Fifth

Amended Complaint that, in direct contradiction with the statements, Fritch

did not have the ability to predict when his oil tank would fail, was not able to

replace it prior to failure, and that the ultrasonic test measurements were not

able to determine the integrity of Weiss’s tank.




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       However, we conclude that Weiss’s UTPCPL claim as related to these

statements is barred by the gist of the action doctrine, and therefore affirm

the trial court’s dismissal of these claims in the Fifth Amended Complaint. See

Richmond v. McHale, 35 A.3d 779, 786 n.2 (Pa.Super. 2012) (“[W]e are not

bound by the rationale of the trial court and may affirm on any basis”).9

       Our decision is guided in part by Knight, in which the plaintiff

complained that a car dealership misrepresented, among other things, the

vehicle’s mileage, accident history, ownership history, that the dealership

would send paperwork to the state, and that she would be eligible for refinance

after six months. 81 A.3d 940 at 951. We concluded that that the gist of the

action doctrine did not bar the plaintiff’s UTPCPL claims because the

misrepresentations occurred before the entry of the contract, were collateral

to the contract, and sounded in tort. Id. Implicit in our holding was the

converse: if the alleged misrepresentations were not collateral to the contract,

they would be bared by the gist of the action doctrine. See also Romeo v.

Pittsburgh Assocs., 787 A.2d 1027, 1033 (Pa.Super. 2001) (stating that

disclaimer for injury from stray balls, on back of ticket to baseball game, could

defeat claim under the UTPCPL).




____________________________________________


9 Given this holding, we need not review the trial court’s conclusion that the
statements constituted puffery and for that reason were not cognizable under
the UTPCPL.

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J-A03020-18


       Here, unlike in Knight, the statements that Fritch had the ability to

predict when Weiss’s tank would fail went to the heart of the contract

obligations. Weiss’s complaint is not that Boston, through Fritch, made

statements unrelated to the terms of the contract. Weiss’s complaint is that

TankSure failed to detect the integrity of his tank, as was promised by the

contract. However, this scenario was contemplated by the Program: the

Certificate references the possibility of an oil leak, and outlines the liability of

the parties in that event. Weiss cannot re-brand as false advertising a claim

that Fritch and Boston failed to successfully perform obligations arising from

the contract.10 We therefore affirm the trial court’s dismissal of the UTPCPL

claims in relation to these statements as well.

       Orders affirmed.




____________________________________________


10In any event, Weiss’s claim fails as a matter of law because he did not allege
facts supporting a conclusion that he justifiably relied on the advertising
statements indicating that Fritch could detect with 100% accuracy when his
tank would fail. See Yocca, 854 A.2d at 439 (affirming sustaining of
preliminary objections where plaintiff did not justifiably rely on
representations in sales brochure; alleged misrepresentations were belied by
the contract terms, and constituted parole evidence). Cf. Toy v. Metro. Life
Ins. Co., 928 A.2d 186, 206-08 (Pa. 2007) (holding that UTPCPL claims based
on insurance agent’s pre-sale misrepresentations regarding policy features
amounted to claim for fraud in execution, and were therefore not barred by
parole evidence rule); Boehm v. Riversource Life Ins. Co., 117 A.3d 308,
327 (Pa.Super. 2015).

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J-A03020-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/18




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