Wise v. Amer Gen Life Ins Co , 459 F.3d 443 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-21-2006
Wise v. Amer Gen Life Ins Co
Precedential or Non-Precedential: Precedential
Docket No. 05-2715
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2715
DANIELLE WISE, individually and as ADMINISTRATRIX
OF THE ESTATE OF WILLIAM WISE,
Appellant
v.
AMERICAN GENERAL LIFE INSURANCE COMPANY,
INTELLIQUOTE INSURANCE SERVICES, GARY R.
LARDY
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cv-3711)
District Judge: Honorable Bruce W. Kauffman
Argued February 27, 2006
Before: SLOVITER, FUENTES, and BECKER,* Circuit Judges.
(Filed: August 21, 2006)
*
This case was argued before the panel of Judges Sloviter,
Fuentes, and Becker. Judge Becker died on May 19, 2006, before
the filing of the opinion. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
1
Richard L. Bazelon (Argued)
Natalie D’Amora
1515 Market Street, Suite 700
Philadelphia, PA 19102
ATTORNEYS FOR APPELLANT
Peter Jason (Argued)
Jonathan L. Swichar
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103
James W. Gicking (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street, 21st Floor
Philadelphia, PA 19103
ATTORNEYS FOR APPELLEES
OPINION OF THE COURT
FUENTES, Circuit Judge.
After receiving a quote from an internet website, William
Wise applied for a life insurance policy from American General
Life Insurance Company. American General approved the
application and mailed Wise a policy on March 3, 2004. The
policy provided that the policy year would begin on the date of
issue, March 3, 2004, but that no coverage would be provided until
the first premium was paid by Wise while he remained in good
health. Wise died unexpectedly on March 10, 2004, the same day
that he received the policy in the mail, and one week after the “date
of issue” of the policy. His wife, Danielle Wise, mailed the first
premium to American General the following day. We are asked to
determine whether the life insurance policy was in effect at the
2
time of Wise’s death. Because, as of the date of Wise’s death,
Wise had not accepted the insurance contract by paying the
premium, we conclude that the life insurance policy never took
effect.
I. Factual and Procedural Background
In anticipation of the birth of his first child, William Wise
(“Wise”) used an internet website run by defendant Intelliquote
Insurance Services (“Intelliquote”) to research life insurance
policies for himself in January 2004. By entering personal
information on the Intelliquote website, Wise was able to obtain
quotes from several insurance carriers. After comparing the annual
premiums offered by each carrier, Wise selected an American
General policy, and Intelliquote sent him an application.
The American General application mailed to Wise consisted
of two parts. Part A of the application required the applicant to
disclose personal information for the purposes of obtaining a
policy. It also described, among other things, an option for a
“Limited Temporary Life Insurance Agreement” (“Temporary
Insurance”). (Appendix “App.” at A107.) The application stated
that Temporary Insurance was available to the applicant only if 1)
the full first modal premium was submitted with the application
and 2) the applicant had not had certain health problems and was
not more than seventy years old.1 (Id. at A105, A107.) The
application did not indicate the amount of the first premium
payment.
Part A of the application also required Wise’s signature
acknowledging that he had read the application, that his statements
1
The health problems that preclude an applicant from being
eligible for Temporary Insurance are any past incidence of a heart
attack, stroke, cancer, diabetes, or disorder of the immune system
or if the applicant has, during the last two years, “been confined in
a hospital or other health care facility or been advised to have any
diagnostic test or surgery not yet performed.” (Id. at 105.) Wise
indicated on his insurance application that he qualified for
Temporary Insurance. (Id.)
3
were true and complete, and that he understood that his application
would be the basis of his policy. Wise was also asked to affirm
that:
Except as may be provided in a Limited Temporary Life
Insurance Agreement (LTLIA), I understand and agree
that no insurance will be in effect pursuant to this
application, or under any new policy issued by the
Company, unless or until: the policy has been delivered
and accepted; the first full modal premium for the issued
policy has been paid; and there has been no change in
the health of any proposed insured that would change
the answers to any questions in the application.
(Id. at A107.) Part B required that Wise sign an identical statement
after providing his medical history. (Id. at A46.) Wise completed
the application, signed both statements, and returned it on or about
February 7, 2004. Wise did not submit a premium payment with
his application.
American General issued a life insurance policy to Wise on
March 3, 2004, in the amount of $500,000. American General
mailed the policy to Intelliquote, which in turn mailed the policy to
Wise, who received the policy on March 10, 2004. The letter
accompanying the policy stated, “[t]his policy is your contract and
is for you to keep with other important documents.” (Id. at A51.)
The letter briefly described the policy and stated:
To place this coverage inforce [sic] the documents listed
below need to be completed, signed, and returned:
• Amount Due $600.00 (annual premium
due)
• Check must be made payable to American
General Life Insurance Company
• Delivery Receipt
All the above requirements must be in our office by
March 26th, 2004.
(Id.)
The first page of the policy stated that the policy was “a
legal contract between the owner and American General.” (Id. at
4
A53.) The policy stated that the entire contract consisted of the
policy received by Wise on March 10th, any riders and
endorsements, and the original application, along with any
amendments or supplemental applications. (Id. at 158.) The policy
bore a “date of issue” of March 3, 2004. (Id. at A55.) The date of
issue was described as the date on which the policy year and all
subsequent policy years would begin. (Id. at A57.) The policy
explained that, with the exception of the first premium, all
premiums not paid by the date of issue, March 3rd of each year,
would be in default. (Id.) The policy also stated that the first
premium was due on the date of issue and that insurance would
“not take effect until that premium [was] paid.” (Id.) Moreover,
the policy stated that, “[t]he owner may return this policy to us at
the above address or to the agent from whom it was purchased
within thirty days after receipt. This policy will then be cancelled
as of its date of issue and any premium paid will be refunded.” (Id.
at 55.)
The day that Wise received his policy in the mail, he died
suddenly and unexpectedly of a heart attack. His wife, Danielle
Wise (“Plaintiff”), mailed the annual premium payment to
American General the following day. When she requested the
proceeds of the policy, American General denied her claim and
returned her premium check. Plaintiff brings claims against
American General for breach of contract and bad faith under 42 Pa.
Cons. Stat. Ann. § 8371 (2005), and against American General,
Intelliquote, and insurance agent Gary R. Lardy for violations of
Pennsylvania’s Unfair Trade Practices and Consumer Protection
Law, 73 Pa. Cons. Stat. Ann. § 201-1 et seq. (2005) (the
“UTPCPL”).2
The United States District Court for the Eastern District of
2
Plaintiff originally filed suit in the Philadelphia Court of
Common Pleas. The action was removed to the United States
District Court for the Eastern District of Pennsylvania by American
General and Intelliquote. The District Court exercised subject
matter jurisdiction over this action pursuant to 28 U.S.C. § 1332.
We exercise jurisdiction over this appeal pursuant to 28 U.S.C. §
1291.
5
Pennsylvania dismissed the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a claim
upon which relief can be granted. Wise v. Am. Gen. Life Ins. Co.,
No. 04-3711, 2005 WL 670697, at * 7 (E.D. Pa. Mar. 22, 2005).
The District Court found that, taking all the facts alleged in the
Complaint as true and making all inferences in favor of Plaintiff,
there was no contract formed for insurance because “there is no
indication in any of the documents of [American General’s] intent
to be bound prior to delivery of the policy, and no consideration
was offered by [Wise] from which liability might be inferred up to
that point.” Id. at *3. The District Court determined that the life
insurance policy unambiguously required the payment of the
premium before any insurance coverage was to take effect, and that
this provision was not waived by American General. Id. at *3-5.
The District Court reasoned that, because Wise never accepted the
offer of the policy by paying consideration in the form of the
premium, there was no insurance in effect at the time of his death.
Id. Based on this finding, the District Court dismissed all of
Plaintiff’s claims. Id. at *7. Plaintiff now appeals.
II. Analysis
A. There was no contractual obligation to provide coverage
under the American General Policy
We must first determine whether American General was
contractually obligated to provide life insurance coverage for Wise
on the date of his death.3 Under Pennsylvania law, the creation of
an insurance contract requires an offer, an acceptance, and a
meeting of the minds. See Moser Mfg. Co. v. Donegal & Conoy
3
We exercise plenary review over the District Court’s Rule
12(b)(6) dismissal. See Allegheny Gen. Hosp. v. Philip Morris,
Inc., 228 F.3d 429, 434 (3d Cir. 2000) (citing Steamfitters Local
Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912,
919 (3d Cir. 1999)). “In judging that dismissal, we take all the
[plaintiffs’] factual allegations as true, and affirm only if it is
certain that no relief can be granted under any set of facts which
could be proved.” Id. at 434-35 (internal quotation marks and
citation omitted).
6
Mut. Fire Ins. Co., 66 A.2d 581, 582 (Pa. 1949). Plaintiff argues
that Wise’s insurance application constituted an offer, which
American General accepted as of March 3, 2004, by issuing the
policy. Plaintiff argues that American General was therefore
contractually obligated to provide insurance coverage to Wise as
of the March 3, 2004 date of issue.
The application for insurance and the documents
accompanying the policy explicitly stated that no coverage would
be in effect until and unless Wise paid the premium while he
remained in good health.4 Under Pennsylvania law, this constitutes
a valid requirement that must be fulfilled before coverage begins.5
See Landy v. Philadelphia Life Ins. Co., 78 Pa. Super. 47, 54
(1921); see also Brodsky v. Equitable Life Assurance Soc’y of the
U.S., No. 99-1218, 1999 WL 637221, at *1 (E.D. Pa. Aug. 20,
1999), vacated on other grounds, 1999 WL 755184 (E.D. Pa. Sept.
20, 1999); 44 Corpus Juris Secundum Insurance § 324 (“A
stipulation or agreement by the company and applicant that a
policy of life insurance shall not take effect or be binding on the
company unless the first premium is paid while the applicant is
alive or in good or sound health is valid and will be given effect
according to its terms; it is a condition precedent to liability on the
part of the company . . . .”). Neither party was bound by the
insurance contract until Wise tendered the premium payment while
in good health; Wise was free to turn down the policy, and
American General was not obligated to provide insurance
coverage. See Landy, 78 Pa. Super. at 56 (holding that, where life
insurance policy stated it would only take effect when delivered
and accepted through payment of premium while applicant was in
4
As stated in the application and policy, and agreed by the
parties, the insurance contract at issue consists of the application
completed by Wise, all supporting documents, and the policy
issued on March 3, 2004. See Murray v. John Hancock Mut. Life
Ins. Co., 69 A.2d 182, 183 (Pa. Super. 1949) (stating that, as
general rule, insurance contract consists of both application and
subsequently issued policy).
5
The parties agree that Pennsylvania law applies to these
issues.
7
good health, no coverage existed where applicant accepted while
at brink of death); Brodsky, 1999 WL 637221, at *1 (finding no
insurance coverage as matter of law where payment of premium
was required for coverage to begin and applicant died before
remitting first premium). Accordingly, because Wise did not fulfill
the requirement of remitting the first premium payment while there
was no change in his health, the insurance policy did not go into
effect, and American General had no contractual obligation to
provide insurance coverage to Wise upon his death.
Plaintiff contends that American General waived the
requirement of the premium payment by making it impossible for
Wise to comply with it. Plaintiff argues that, by mailing the policy
on March 3, 2004, the date of issue, American General ensured that
Wise could not receive the policy, pay the premium, and begin to
receive coverage until after the date of issue. Under Pennsylvania
law, “an insurer will not be permitted to take advantage of the
failure of the insured to perform a condition precedent contained in
the policy, where the insurer itself is the cause of the failure to
perform the condition.” Fratto v. New Amsterdam Cas. Co., 252
A.2d 606, 607 (Pa. 1969) (quoting Arlotte v. Nat’l Liberty Ins. Co.,
167 A. 295, 296 (Pa. 1933)).
Plaintiff’s argument fails, however, because it relies on the
flawed assumption that, for coverage to begin, the policy required
payment of the premium by the March 3, 2004 date of issue.
Nowhere does the policy state that the initial premium must be paid
before the date of issue for coverage to take effect. To the
contrary, the policy simply states that coverage will not begin until
the applicant remits payment of the premium while he remains in
good health. Although the initial premium is “due” on the date of
issue, failure to pay the initial premium after the date of issue is not
considered a default under the terms of the policy. Had Wise
remained in good health and paid the policy upon its receipt on
March 10, 2004, coverage would have taken effect on that date.
Payment of the premium while Wise remained in good health was
made impossible by Wise’s unfortunate and untimely death rather
than by the actions of American General. We therefore conclude
that American General did not waive the requirement of payment
of the first premium by making compliance impossible.
8
Plaintiff also contends that American General’s practice of
backdating its policies is inherently unfair because it results in the
insured receiving less than a year’s insurance in return for his
annual premium. The practice of backdating a contract ensures that
the recipient of the policy cannot fulfill the requirement of payment
of the first premium until after the date of issue from which the
policy year is measured. This results in a period during the policy
year in which the insurer is not obligated to provide coverage to the
insured. Plaintiff argues that this unfairness should be remedied by
treating the insurance policy as if coverage began on the date of
issue, March 3, 2004, resulting in Wise receiving a full year’s
insurance coverage in return for his annual premium.
We find no support under Pennsylvania law for the notion
that backdating an insurance contract waives the requirement that
the first premium must be paid before coverage begins. In Sydnor
v. Metropolian Life Insurance Company, 26 Pa. Super. 521 (1904),
the Pennsylvania Superior Court examined a life insurance contract
dated March 31, 1902, which measured subsequent premium
payments from that date, but which provided that there would be
no coverage until the payment of the first premium. Id. at 522-23.
The policy was not delivered to the insured’s home until two days
after the date of issue, and the first premium was not paid until
three weeks after that. Id. at 522. The Sydnor court held that, once
the first premium had been paid, the parties were bound by the
terms of the contract, which provided that the policy year was to
begin on March 31, 1902, and that all future premium payments
would be measured from that date. Id. at 525. Moreover, the
Sydnor court explicitly noted that if, as here, the insured died
between the date of issue and the payment of the first premium,
“there could have been no recovery upon the policy.” Id.
Similarly, in McDonough v. Prudential Insurance Company
of America, 85 Pa. Super. 63 (1924), the Pennsylvania Superior
Court considered an insurance contract that was not effective until
the first premium was paid while the applicant was in good health,
but which was issued as of April 6, 1921, almost one month earlier.
Id. at 66. The contract stated that the policy year was to be
measured from April 6, 1921, and that premiums would be due on
a semi-annual basis as measured from that date. Id. Relying on
Sydnor, the McDonough court held that the policy was to be
9
enforced according to its terms, and that premiums were therefore
due on April 6 and October 6 of each year, notwithstanding the fact
that the contract did not go into effect until the first premium was
paid on May 3, 1921. Id. at 67-68. Like the court in Sydnor, the
McDonough court recognized that, until the first premium was
paid, the insurer had no obligation to provide insurance coverage
to the applicant. Id. at 67.
In Ford v. Fidelity Mutual Life Insurance Company, 170 A.
270 (Pa. 1934), the Pennsylvania Supreme Court relied on Sydnor
and McDonough in holding that backdated contracts are not
inherently unfair and should be enforced according to their explicit
terms. Id. at 271. In Ford, the parties had signed an insurance
contract with a February 10, 1931 date of issue, but which stated
that the anniversary of the policy was February 7, 1931, and that all
premium payments were to be measured from that date. Id. The
Pennsylvania Supreme Court held that the terms of the contract
were to be enforced, and that premiums were required to be paid on
the named dates. Id. Ford relied on Sydnor’s conclusion that
backdated contracts should be enforced according to their terms,
even where this results in the insured receiving no coverage
between the date of issue and the payment of the first premium. Id.
Pennsylvania’s enforcement of backdated contracts
according to their terms is consistent with the practice of the
majority of courts in other states that have considered the question
of whether backdating is inherently unfair or fraudulent. Like the
Pennsylvania Superior Court in Sydnor and McDonough, the
majority of courts in other states have enforced the terms of
backdated contracts even though this often results in a gap between
the date of issue and the beginning of insurance coverage. See,
e.g., Olsen v. Fed. Kemper Life Assurance Co., 700 P.2d 231, 233-
35 (Or. 1985) (where remaining in good health was a requirement
for insurance contract to become effective, no insurance contract
was formed where plaintiff was diagnosed with terminal cancer
before receiving contract and paying premium, even though policy
was dated and premium calculated one day before plaintiff’s
diagnosis); Life Ins. Co. of Southwest v. Overstreet, 603 S.W.2d
780, 782-83 (Tex. 1980) (noting that antedated insurance contract
with payment of the premium was required before insurance took
effect was “enforceable as written notwithstanding the fact that the
10
first premium is paid . . . after it is ‘due’ and ‘payable’ . . . . This
is the rule even though the insured obtains less than a full year's
coverage for the first year's premium”); Boswell v. Gulf Life Ins.
Co., 29 S.E.2d 71, 72-73 (Ga. 1944) (no liability where coverage
conditioned upon receipt and acceptance and plaintiff died before
receipt, even though date of issuance predated his death); Fawcett
v. Sec. Benefit Ass’n, 104 P.2d 214, 219 (Utah 1940) (upholding
backdated insurance contract even though insured obtained less
than full month’s insurance for first month due to delay in contract
taking effect); Berry v. Prudential Ins. Co. of Am., 134 S.W.2d
886, 891-92 (Tenn. Ct. App. 1939) (insurance contract may be
backdated to contain a period during which insurer assumes no
risk); 44 A.L.R. 2d 472 § 2 (2005) (“[I]n a large majority of the
cases where the question has been considered, it has been held that
the date stipulated in the policy as that from which premiums are
to be calculated must be given effect, notwithstanding the provision
that the coverage was not actually in force until a later date.”).
Thus, under the majority rule concerning the interpretation of
backdated contracts, American General was under no obligation to
provide insurance coverage for Wise, regardless of the fact that the
date of issue preceded the date of Wise’s death, because Wise did
not fulfill the requirement of paying the first premium while in
good health.6
6
Moreover, even if Pennsylvania were to change its position
to reject the practice of backdating, the states that have taken this
minority view on backdating have held that the backdating on such
contracts should be ignored, and that the policy year and all future
premium payments should be construed as beginning no later than
the date coverage takes effect upon the fulfillment of the
requirement of acceptance and payment of the first premium. See
Duerksen v. Brookings Int’l Life & Cas. Co., 166 N.W.2d 567,
569-71 (S.D. 1969); Guerin v. Cal. Western States Life Ins. Co., 40
Cal. Rptr. 344, 348 (Cal Dist. Ct. App. 1964); Carolina Life Ins.
Co. v. DuPont, 141 So. 2d 624, 626 (Fla. Dist. Ct. App. 1962);
Lentin v. Cont’l Assurance Co., 105 N.E.2d 735, 738 (Ill. 1952);
Columbian Nat’l Life Ins. Co. v. McClain, 174 P.2d 348, 350, 352
(Colo. 1946); Hampe v. Metro. Life Ins., 21 S.W.2d 926, 927-29
(Mo. Ct. App. 1929). Here, the minority rule would entail moving
the date of issue to the date that Wise paid the first annual premium
11
Plaintiff next argues that we should follow the reasoning of
the Fifth Circuit in Monumental Life Insurance Company v. Hayes-
Jenkins, 403 F.3d 304 (5th Cir. 2005), which held that a material
issue of fact existed as to whether an insurer that issued a
backdated policy had waived the condition precedent of payment
of the first premium. Id. at 311-12. In Monumental, a married
couple received an unsolicited application for a Monumental Life
Insurance Company (“Monumental”) policy through their
mortgage lender. Id. at 308. The application and accompanying
brochure stated that when their certificate/insurance policy arrived,
they would have thirty “risk free” days in which they could look it
over, during which they would be “fully covered.” Id. The
application told them that if they chose to return the policy during
that thirty-day period they would owe nothing. Id. It also assured
the applicants that they would not be required to mail a separate
check for their premium payments because their premiums would
be automatically added to their mortgage bills. Id. However, the
application also contained fine print that stated that their insurance
would not be in effect until their first premium was paid. Id. at
310. The couple completed and mailed the application and, on
March 14, 2001, they were informed that their policy had been
approved. Id. at 309. On April 4, 2001, the husband died. The
following day, the certificate/policy arrived in the mail. Id. The
policy stated that it was effective as of April 1, 2001, three days
before the husband’s death. Id. The applicants were not billed for
their first premium until their April mortgage bill was mailed on
April 10, 2001, and they timely paid the bill two weeks later. Id.
at 309-10.
The Fifth Circuit, applying Texas law, held that a material
issue of fact existed as to whether Monumental had waived its right
to insist on payment of the first premium as a condition precedent
to coverage. Id. at 314-15. The Fifth Circuit stated that
Monumental may have waived the condition precedent “when it
unconditionally approved [the applicants’] application on March
14, 2001, with an April 1, 2001 effective date, prior to receiving
while in good health. Because Wise was unable to fulfill the
requirement of payment of the first premium, no contract for
insurance was formed under the minority rule.
12
[the applicants’] first premium payment directly, and in the full
knowledge that–under its arrangement with [the mortgage
holder]–[the applicants] could not possibly have been invoiced . .
. for their first premium until sometime after April 9, 2001.” Id.
Plaintiff notes that, similarly, here American General approved
Wise’s application with a March 3, 2004 date of issue with full
knowledge that, because it mailed the policy on the date of issue,
Wise could not pay the first premium until after that date.
Unlike the insurer in Monumental, American General did
not take action contradicting the requirement that the premium be
paid before insurance coverage began. Monumental guaranteed
that the applicants would receive thirty risk-free days of coverage
beginning with their receipt of the insurance policy, and instructed
the applicants not to send a premium check because the applicants
would pay the premium with their monthly mortgage payment. Id.
at 308. Monumental then made certain that the applicants could
not pay the premium until after they received the insurance
policy–well into the thirty days in which they were purportedly
“fully covered.” Id. at 309-10. Moreover, the insurance policy
stated that insurance coverage commenced on April 1, 2001–well
before the applicants received their April mortgage bill that
included their first premium, directly contradicting the condition
precedent stated on the application. Id. American General never
promised insurance coverage before payment of the premium, and
consistently informed Wise that coverage would not begin until the
premium was paid. Regardless, to the extent that Monumental
does stand for the proposition that backdating alone may waive the
requirement of payment of the first premium by creating ambiguity
as to when coverage takes effect, we find no support for this
proposition under Pennsylvania law.
B. Plaintiff’s causes of action for breach of contract, bad
faith, and violation of the UTPCPL
Because there was no contract for insurance as of Wise’s
death, Plaintiff’s breach of contract claim must fail. Similarly, the
District Court properly dismissed Plaintiff’s claim under
Pennsylvania’s bad faith statute. A plaintiff bringing a claim under
that statute must demonstrate that an insurer has acted in bad faith
toward the insured through “any frivolous or unfounded refusal to
13
pay proceeds of a policy.” Terletsky v. Prudential Prop. & Cas. Ins.
Co., 649 A.2d 680, 688 (Pa. Super. 1994). Because there was no
insurance policy in effect at the time of Wise’s death, Plaintiff
cannot establish a prima facie case under the bad faith statute.
Plaintiff’s claim under Pennsylvania’s Unfair Trade Practices and
Consumer Protection Law, 73 Pa. Cons. Stat. Ann. § 201-1 et seq.
(2005) (the “UTPCPL”), must also be dismissed because, as the
District Court noted, only purchasers of goods may bring actions
under that law. See Lauer v. McKean Corp., 2 Pa. D. & C. 4th
394, 395-96 (Pa. Com. Pl. 1989); Bonacci v. Save Our Unborn
Lives, Inc., 11 Pa. D. & C. 3d 259, 262 (Pa. Com. Pl. 1979). A
plaintiff who seeks to enter into a contract for purchase but fails to
do so may not bring a claim under the UTPCPL, even where the
plaintiff is prevented from making the purchase by the defendant’s
allegedly fraudulent conduct. See Lauer, 2 Pa. D. & C. 4th at 396.
Because Wise never purchased a life insurance policy from
American General, Plaintiff’s UTPCPL was properly dismissed.
III. Conclusion
For the foregoing reasons, we affirm the District Court’s
dismissal of Plaintiff’s complaint.
14