Kirwin, T. v. Sussman Automotive

J-A17028-16
2016 PA Super 222THOMAS 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?
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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
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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
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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)
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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).
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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
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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.
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