Kern v. Lehigh Valley Hospital, Inc.

J-A17042-14
2015 Pa. Super. 19
CONNIE W. KERN, ON BEHALF OF IN THE SUPERIOR COURT OF
HIMSELF AND ALL OTHERS SIMILARLY PENNSYLVANIA
SITUATED
Appellant
v.
LEHIGH VALLEY HOSPITAL, INC., A
PENNSYLVANIA CORPORATION LEHIGH
VALLEY HOSPITAL-MUHLENBERG, A
PENNSYLVANIA CORPORATION, AND
LEHIGH VALLEY HEALTH NETWORK, INC.
A PENNSYLVANIA CORPORATION,
TOGETHER DOING BUSINESS AS
LEHIGH VALLEY HEALTH NETWORK, AND
DOES 1 THROUGH 25, INCLUSIVE
Appellee
No. 2843 EDA 2013
APPEAL OF: CONNIE W. KERN
Appeal from the Order entered August 14, 2013
In the Court of Common Pleas of Lehigh County
Civil Division at No: Case No. 2012-C-3438
BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.
OPINION BY STABILE, J.: FILED JANUARY 28, 2015
Appellant/plaintiff Connie W. Kern appeals from the August 13, 2013,1
order of the Court of Common Pleas of Lehigh County (trial court), which
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1
The docket indicates that the order was filed on August 14, 2013.
Accordingly, we have corrected the caption in this case.
J-A17042-14
denied his motion for class certification for his claims against
Appellee/defendant Lehigh Valley Hospital, Inc.2 Upon review, we affirm.
This facts and procedural history of this case are undisputed. As
relayed by the trial court:
The case . . . arises from the hospital visit of [Appellant] on
June 9, 2011. On that date, [Appellant] was transported by
ambulance to the emergency room at the Cedar Crest campus of
[Lehigh Valley Hospital] [(]LVH[)] for injuries sustained at an
amusement park. Prior to treatment, [Appellant] signed the
[a]uthorization for [t]reatment document admitted into
evidence. The heart of the issue raised by [Appellant] is based
on the [p]ayment [g]uarantee paragraph of the [a]uthorization
for [t]reatment document, where [Appellant] and other
uninsured patients are not informed of the price they will pay
versus what a privately insured or government insured patient
would pay for the same services. [Appellant] alleges that
[Appellees] conceal that uninsured patients will be billed
according to a “Chargemaster” list, which cannot be obtained by
patients.
On June 16, 2011, [Appellant] received a medical bill from
LVH for $14,626.53. Although [Appellant] settled his claim
against the amusement park for his injuries for $1,000, he never
attempted to pay LVH any of the amount billed for services,
despite several notices. On March 28, 2012, [Appellees] sent
[Appellant] a [r]educed [c]ost of [c]are [a]pplication, which
[Appellant] never completed, and [Appellant] never attempted to
pay any amount of his medical bill. On April 13, 2012,
[Appellant] was served with a complaint for payment of debt
owed for medical services which had been provided to him on
June 9, 2011. On August 16, 2012, the original [c]omplaint was
filed in the action at bar and on September 4, 2012 [Appellees]
withdrew [their] action for the collection of [Appellant’s] debt.
This case was briefly removed to Federal Court but was
then returned to State Court by stipulation of the parties. On
November 26, 2012, [Appellant] filed an [a]mended [c]omplaint
alleging three counts; breach of contract, breach of the covenant
of good faith and fair dealing, and violation of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law 73 P.S.
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2
We note that an order refusing to certify a class is an appealable collateral
order. Hanson v. Federal Signal Corp., 679 A.2d 785, 788 (Pa. Super.
1996).
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§ 201-1, et seq. (“UTPCPL”).[3] Following preliminary objections
by the [Appellees], this [trial court] issued an opinion on
February 12, 2013 dismissing the breach of contract count
because [Appellant’s] pleadings were based on the Uniform
Commercial Code and this case involves a services contract. In
that opinion, th[e] [trial court] also dismissed the breach of the
covenant of good faith and fair dealing count because LVH was
acting as a creditor at the time of the relevant allegations and,
as a creditor, was entitled to collection of the owed debt.
Finally, in that opinion, [the trial court] overruled the objection
to the count for violation of the UTPCPL, holding that a private
citizen has standing under the statute merely because of the
harm of a pending lawsuit. Following that opinion, th[e] [court]
established a schedule for the parties to submit briefs on the
issue of certification of the class and for a hearing on the issue of
certification. The parties elected to present [a joint stipulation of
facts] and certain exhibits by stipulation in lieu of presenting
testimony at the hearing. The hearing was held on July 12,
2013 and both parties presented extensive argument.
Trial Court Opinion, 8/14/13, at 1-3 (internal record citation omitted).
Following the hearing, the trial court issued an order and opinion, denying
Appellant’s motion for class certification. In so doing, the trial court
concluded that Appellant failed to meet two of the five prerequisites to
sustain a viable class action under Pa.R.C.P. No. 1702.4 Id. at 15.
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3
Appellant also alleged in his amended complaint that “[LVH’s] conduct . . .
violates . . . [Section 2270.4(b)(5) of the] Fair Credit Extension Uniformity
Act (FCEUA), 73 P.S. § 2270.1 et seq., which prohibits the use of false,
deceptive or misleading representation or means with the collection of any
debt.” Amended Complaint, 11/26/12, at ¶ 59.
4
Pennsylvania Rules of Civil Procedure 1701-1717 govern class action
lawsuits. Rule 1702 specifies the prerequisites to class certification:
One or more members of a class may sue or be sued as
representative parties on behalf of all members in a class action
only if
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(Footnote Continued Next Page)
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Specifically, the trial court held that, under Rule 1702(2), (5), Appellant
failed to establish his claims presented “questions of law or fact common to
the class” and the class action method of adjudication was “fair and
efficient.”5 Id. at 16.
With respect to common questions of law or fact under Rule 1702(2),
the trial court examined a litany of appellate cases dealing with the element
of “reliance” concerning UTPCPL claims. Relying chiefly upon Weinberg v.
_______________________
(Footnote Continued)
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert
and protect the interests of the class under the criteria set forth
in Rule 1709; and
(5) a class action provides a fair and efficient method for
adjudication of the controversy under the criteria set forth in
Rule 1708.
Pa.R.C.P. No. 1702. The plain language of the rule indicates that failure to
meet any one of the five prerequisites can be fatal to certification.
At a class certification hearing, the burden of proof lies with the
proponent; however, since the hearing is akin to a preliminary
hearing, it is not a heavy burden. The proponent need only
present evidence sufficient to make out a prima facie case from
which the court can conclude that the five class certification
requirements are met. This will suffice unless the class
opponent comes forward with contrary evidence; if there is an
actual conflict on an essential fact, the proponent bears the risk
of non-persuasion.
Clark v. Pfizer Inc., 990 A.2d 17, 24 (Pa. Super. 2010) (internal citation
and quotation marks omitted) (emphasis added), appeal denied, 13 A.3d
473 (Pa. 2010).
5
The class action method of adjudication is fair and efficient if the “common
questions of law or fact predominate over any question affecting only
individual members.” Liss & Marion, P.C. v. Recordex Acquisition
Corp., 983 A.2d 652, 663 (Pa. 2009) (citing Pa.R.C.P. No. 1708(a)(1))
(emphasis in original).
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Sun Co., 777 A.2d 442 (Pa. 2001) and Toy v. Metro. Life Ins. Co., 928
A.2d 186 (Pa. 2007), the court concluded that Appellant’s UTPCPL claim
“includes the element of individual reliance and therefore, does not meet the
commonality of fact or law prerequisites for a class action.” Id. at 7.
With regard to the “fair and efficient method for adjudication”
requirement under Rule 1702(5), the trial court concluded that “individual
reliance would be the predominant factor over the common issues.” Id. at
11. The court compared the instant matter to Debbs v. Chrysler Corp.,
810 A.2d 137 (Pa. Super. 2002), appeal denied, 810 A.2d 137 (Pa. 2003).
In so doing, it reasoned:
In Debbs, the Superior Court found that allegations that a car
manufacturer did not disclose certain safety information, as
applied to the UTPCPL, was a question predominated by
individual reliance on that information. Debbs, 810 A.2d at 158.
Different consumers would have different opinions about the
materiality of the disclosure based on their personal aversion to
risk. Id. Some consumers may seek to replace an unsafe
airbag, some may get a new car, and some may weigh the risks
and take no action, all of which are reasonable and depend on
the individual. Id. This analysis is well-suited for the case at
bar where [Appellant] is alleging the hospital concealed
information about its billing practices in the emergency room. It
is reasonable to conclude that some individuals with lesser
injuries would seek another hospital, some individuals are
desperate for treatment and would not consider the information,
while even other individuals would not care. As in Debbs,
individual reliance would be a predominate factor over common
issues.
Id. Accordingly, the trial court concluded that “common questions do not
predominate over any question affecting only individual members.” Id.
Finally, to buttress its determination that class action would not be a
fair and efficient method of adjudication, the trial court concluded that
Appellant failed to meet its burden of proof under Rule 1708(a)(6), which
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provides “whether in view of the complexities of the issues or the expenses
of litigation the separate claims of individual class members are insufficient
in the amount to support separate actions.” Pa.R.C.P. No. 1708(a)(6). The
court found that Appellant “did not even attempt to prove” its burden in this
regard. Trial Court Opinion, 8/14/13, at 14. In particular, the trial court
found:
[Appellant acknowledges he owes [Appellees] something for his
services but claims the amount should be less than the
Chargemaster amount. This [c]ourt has not been provided with
the amounts which other prospective members were billed. It
would seem reasonable to assume that the cost of medical
treatment is fairly substantial and that most of the class
members could have medical bills in the thousands if not
hundreds of dollars. . . . In addition to members most likely
having substantial bills, 73 P.S. § 201-9.2 permits the [c]ourt to
award treble damages in private causes of action under the
UTPCPL.
Id. at 13-14. The trial court concluded, “[b]ased on the potential damages
and lack of evidence provided by [Appellant], this [c]ourt finds that
individual members would have a sufficient incentive to bring separate
causes of action if a class is not certified.” Id.
Ultimately, the trial court concluded that class certification would not
be appropriate because each class member would be required to prove
justifiable reliance. Id. at 16. Appellant appealed to this Court.6
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6
The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors. In lieu of filing a Pa.R.A.P. 1925(a) opinion, the trial court filed a
Rule 1925(a) statement, adopting its August 14, 2013, opinion.
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On appeal,7 Appellant raises two issues for our review:
1. Whether the trial court erred as a matter of law and
abused its discretion when it concluded that a showing of class-
wide, justifiable reliance was required for [Appellant’s] UTP[CPL]
claim on behalf of a putative class of uninsured emergency room
patients, thus precluding class certification, even though all class
members (a) signed contracts with identical payment-obligation
provisions and (b) were, like [Appellant], billed amounts based
on excessive, discriminating rates[?]
2. Whether the trial court’s determination that [Appellant]
failed to show unfeasibility of individual actions because such
actions are potentially lucrative rests on a clearly erroneous fact
and thus constitutes an abuse of discretion[?]
Appellant’s Brief at 3-4. In his first argument, Appellant essentially invites
us to conclude that the trial court applied the wrong legal standard with
respect to justifiable reliance under the UTPCPL and, as a result, erred in its
determination under Rule 1702(2) and (5) to deny class certification. We
thus begin our analysis with the central issue on appeal, i.e., whether
individual, justifiable reliance is required for private actions under Section
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7
Our standard for review of a trial court decision concerning class
certification is well-established. “[C]lass certification is a mixed question of
law and fact.” Weismer v. Beech-Nut Nutrition Corp., 615 A.2d 428,
430 (Pa. Super. 1992) (citation omitted). A trial court’s order granting or
denying certification “will not be disturbed on appeal unless the court
neglected to consider the requirements of the rules governing class
certification [(i.e., Rules 1702 and 1708)], or unless the court abused its
discretion in applying [them].” Eisen v. Independence Blue Cross, 839
A.2d 369, 371 (Pa. Super. 2003) (quoting Baldassari v. Suburban Cable
TV Co., Inc., 808 A.2d 184, 189 (Pa. Super. 2002) (citations omitted)),
appeal denied, 857 A.2d 679 (Pa. 2004). “[I]t is the strong and oft-
repeated policy of this Commonwealth that in applying the rules for class
certification, decisions should be made liberally and in favor of maintaining a
class action.” Liss & Marion, P.C. v. Recordex Acquisition Corp., 937
A.2d 503, 508 (Pa. Super. 2007), aff’d, 983 A.2d 652 (Pa. 2009).
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201-9.2 of the UTPCPL. We need not look far for the answer to this
question, as our Supreme Court has decided and reaffirmed that justifiable
reliance is an element of all private claims under the UTPCPL.
In Weinberg, plaintiffs brought a class action against Sun Oil
Company (Sunoco) under the UTPCPL. The plaintiffs “alleged that Sunoco’s
advertisements induced consumers to purchase Ultra® when their vehicles
did not need the high level of octane the gasoline contained.” Weinberg,
777 A.2d at 443-44. The Supreme Court distinguished private actions under
Section 201-9.2 of the UTPCPL from actions brought by the Attorney General
in the name of the Commonwealth under Section 201-4 of the UTPCPL.8 In
so distinguishing, the court rejected this Court’s conclusion that the UTPCPL
did not require plaintiffs to prove the traditional elements of common law
fraud in all of their UTPCPL claims.9 Weinberg, 777 A.2d at 446-47. The
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8
Section 201-4 provides:
Whenever the Attorney General or a District Attorney has reason
to believe that any person is using or is about to use any
method, act or practice declared by section 3 of this act to be
unlawful, and that proceedings would be in the public interest,
he may bring an action in the name of the Commonwealth
against such person to restrain by temporary or permanent
injunction the use of such method, act or practice.
73 P.S. § 201-4.
9
This Court had determined that although some of the claims plaintiffs
brought under Section 201-2(4) (substantive section) of the UTPCPL were
fraud-based and required proof of traditional elements of common law fraud,
the false advertisement claims under Section 201-2(4) were different and
did not require a showing of reliance. Weinberg, 777 A.2d 444-45.
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Supreme Court determined that this Court’s application of the UTPCPL was
erroneous because it was premised on the considerations that guide the
Attorney General when he/she is pursuing an enforcement action under
Section 201-4. Id. at 445-46 (“There is no authority which would permit a
private plaintiff to pursue an advertiser because an advertisement might
deceive members of the audience and might influence a purchasing decision
when the plaintiff himself was neither deceived nor influenced.”). The court,
noting that the UTPCPL’s underlying foundation is fraud prevention, held that
nothing in the legislative history of the UTPCPL ever intended statutory
language directed at consumer fraud to do away with the traditional
elements of reliance and causation in a private action under the UTPCPL.
Id. at 446. The court, therefore, concluded that in private actions under
Section 201-9.2, the plaintiffs had to “allege reliance, that they purchased
Ultra® because they heard and believed Sunoco’s false advertising that
Ultra® would enhance engine performance.” Id.
A short time later, in Yocca v. Pittsburgh Steelers Sports, Inc.,
854 A.2d 425 (Pa. 2004), the court was called upon to decide, in part,
whether plaintiffs, season ticket holders, failed to state a cause of action
under the UTPCPL for false representations alleged to have been made in
connection with the sale of stadium builder licenses. In holding that
plaintiffs did not state a UTPCPL claim, the Supreme Court, citing
Weinberg, concluded that a plaintiff in a private action under the UTPCPL
“must show he justifiably relied on the defendant’s wrongful conduct or
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representation and that he suffered harm because of that reliance.” Yocca,
854 A.2d at 438. Because the plaintiffs had explicitly disclaimed reliance on
any representations under the terms of their sales contract, the court held
the plaintiffs could not state a claim based upon reliance under the UTPCPL.
Id. at 439.
In Toy, the Supreme Court held that its decision in Weinberg did
indeed settle that justifiable reliance is an element of claims brought under
the UTPCPL. At their class certification hearing, the plaintiffs in Toy argued
individual class member need not show reliance on the defendant’s allegedly
deceptive ads to state a claim under the UTPCPL. Toy, 928 A.2d at 202.
Citing again to its decision in Weinberg, the court held a plaintiff alleging
violations of the UTPCPL must prove justifiable reliance.
Finally, in Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007), in the
context of addressing whether a court’s discretion to treble damages under
the UTPCPL should be constrained by common law requirements associated
with punitive damages, the Supreme Court again noted that the justifiable
reliance criteria under the UTPCPL derives from the causation requirement
on the face of Section 201-9.2 that a plaintiff suffer an ascertainable loss as
a result of a defendant’s prohibited action. Schwartz, 932 A.2d at 897,
n.16.
Despite this plethora of precedent, Appellant contends Weinberg, and
all cases derivative of Weinberg, are not binding on cases involving post-
1996 deceptive conduct, an obvious reference to the year in which our
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Legislature amended the UTPCPL to include deceptive conduct as a violation
of the UTPCPL. Instead, Appellant cites our decision in Grimes v. Enter.
Leasing Co. of Philadelphia, LLC, 66 A.3d 330 (Pa. Super. 2013), rev’d
on other grounds, __ A.3d __, 2014 WL 7088933 (Pa. 2014),10 and
dismisses our decision in DeArmitt v. New York Life Ins. Co., 73 A.3d
578 (Pa. Super. 2013), to argue a plaintiff need not allege justifiable reliance
in a private cause of action under the UTPCPL. We disagree.
In Grimes, we were confronted with the issue of whether the trial
court erred in finding a plaintiff could not prevail on her UTPCPL claim
because she did not allege a misrepresentation with respect to the deceptive
conduct alleged in her complaint. Citing Bennett v. A.T. Masterpiece
Homes At Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012),11 we held
the plaintiff need not allege a misrepresentation because any deceptive
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10
Following argument in this case, our Supreme Court issued a per curiam
decision in Grimes on December 15, 2014, concluding that the appellee
failed to allege in her pleadings that she suffered an ascertainable loss
sufficient to support a verdict in her favor. Grimes, __ A.3d __, 2014 WL
7088933, at *3-4. Given its conclusion, the court declined to address
“whether a private plaintiff who alleges deceptive conduct under the
UTPCPL’s ‘catchall’ provision need not plead or prove justifiable reliance.”
Id. at *3 n.3.
11
Bennett did not address the issue whether justifiable reliance was a
required element in a private action under the UTPCPL. Rather, Bennett
only decided the trial court correctly charged the jury on the relevant
standard for the UTPCPL catchall provision when it stated “misleading
conduct” could constitute a violation under the UTPCPL, and then properly
doubled the damage award.
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conduct alleged under the catchall provision of the UTPCPL would be
sufficient to state a private cause of action. This Court’s passing reference in
a footnote that plaintiff need not allege justifiable reliance was stated in the
context of explaining that plaintiff need not prove the elements of common
law fraud in an action that alleges deceptive conduct. Within days of our
decision in Grimes, we decided DeArmitt, citing our Supreme Court’s
decision in Toy, where we reaffirmed a UTPCPL plaintiff still must prove
justifiable reliance and causation in a private action, because our legislature
never intended to do away with traditional common law elements of reliance
and causation in an UTPCPL action. Our decisions in Grimes and DeArmitt,
therefore, are not inconsistent with the decisions of our Supreme Court in
Weinberg and its progeny.
We disagree with Appellant that Weinberg and its progeny are
inapplicable to the matter sub judice. Importantly, those cases did not
address private causes of action under the UTPCPL post-1996 when
“deceptive conduct” was added as a violation to the catchall provision of the
UTPCPL. Prior to 1996, the catchall provision at Section 201-2(4)(xvii) of
the UTPCPL12 only referenced “fraudulent conduct.” At the core of
Appellant’s argument is his belief the element of justifiable reliance only is a
product of fraudulent conduct. Appellant fails to recognize that the element
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12
This provision was subsequently recodified at 73 P.S. § 201-2(4)(xxi).
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of justifiable reliance under the UTPCPL is the product of both (a) the
Legislature’s intent not to do away with traditional elements of reliance and
causation under the UTPCPL, and (b) the express provision under 201-9.2
that requires a private action plaintiff to prove an “ascertainable loss . . . as
a result of the use or employment by any person of a method, act or
practice declared unlawful” under Section 201-3 the UTPCPL. 73 P.S. § 201-
9.2(a) (emphasis added). See also Weinberg, Schwartz, supra.
Accordingly, the element of justifiable reliance always was a part of private
actions under the statutory language of the UTPCPL. Amendments in 1996
that added deceptive conduct to the catchall provision simply included other
conduct that did not require proof of all elements of common-law fraud.
See Bennett, supra.
Consistent with the foregoing cases, we conclude that the trial court
here was correct in its determination that justifiable reliance is an element of
private actions under Section 201-9.2 of the UTPCPL. As such, Appellant
had to demonstrate that he and all prospective class members justifiably
relied on Appellee’s alleged violations of the UTPCPL and, as a result of those
alleged violations, suffered an ascertainable loss. Thus, given its correct
application of the law, the trial court did not abuse its discretion in
determining that Appellant did not meet the second and fifth prerequisite of
Rule 1702. The trial court determined that the requirement for justifiable
reliance as set forth in Section 201-9.2 of the UTPCPL defeats Rule 1702(2)’s
requirement of commonality of facts and law between prospective class
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members. Trial Court Opinion, 11/14/13, at 5-6. In addition, the trial court
determined that, under Rule 1702(5), class action would not be a fair and
efficient method of adjudication because individual reliance would be the
predominant factor over the common issues. Id. at 11.
To the extent Appellant argues that the trial court erred in failing to
consider and evaluate his claim under Section 2270.4(b)(5)13 of the FCEUA
for purposes of class certification and reliance, see supra footnote 3, we
disagree. The enforcement provision at Section 2270.5 of the FCEUA
provides “[i]f a debt collector or creditor engages in an unfair or deceptive
debt collection act or practice under this act, it shall constitute a violation of
the [UTPCPL].” 73 P.S. § 2270.5 (emphasis added). The inclusion of a
violation of the FCEUA as also being a violation of the UTPCPL, evinces a
clear intent by our Legislature that FCEUA claims be treated in the same
manner as other private action claims under the UTPCPL. Because violations
of the UTPCPL can be filed as private actions, the inclusion of FECUA claims
as additional violations of the UTPCPL permits them to be brought as private
actions as well. See also 1 Pa. C.S.A. § 1932 (statutes in pari materia shall
be construed together, if possible, as one statute). As a private action under
Section 201.9.2 of the UTPCPL, FECUA claims therefore must plead that a
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13
Appellant incorrectly provides the citation to this statute in his amended
complaint as Section 2270.4(5). We have corrected the citation for
purposes of this discussion.
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plaintiff suffered an ascertainable loss as a result of a defendant’s prohibited
action. As stated earlier, this requires that justifiable reliance be pled. See
Schwartz, supra. Accordingly, at worst, it was harmless error for the trial
court not to have considered Appellant’s claim that justifiable reliance was
not required to be pled under his FECUA claim.
Appellant next contends that, in determining whether class action is a
fair and efficient method of adjudication,14 the trial court abused its
discretion with respect to Rule 1708(a)(6). Specifically, Appellant challenges
the trial court’s conclusion that prospective class members most likely would
have substantial bills and, as a result, if successful in their potential actions
against Appellees, may benefit from the treble damages provision of the
UTPCPL (Section 201-9.2(a)). We, however, reject his argument as lacking
merit. With respect to the question of whether the separate claims of
individual class members are insufficient in the amount to support separate
actions, Appellant’s own brief lends credence to the trial court’s conclusion.
We observe that, in his brief, Appellant points out that he submitted
evidence to the trial court demonstrating that the average hospital bill was
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14
As noted above, Rule 1708(a)(6) provides:
[i]n determining whether a class action is a fair and efficient
method of adjudication . . . the court shall consider . . . whether
in view of the complexities of the issues or the expenses of
litigation the separate claims of individual class members are
insufficient in the amount to support separate actions.
Pa.R.C.P. No. 1708(a)(6).
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$3,093.73 and that his own bill was $14,626.53. Appellant’s Reply Brief at
14. The trial court, however, determined that Appellant failed to satisfy the
requirements of Rule 1708(a)(6). Here, Appellant failed to present enough
evidence to demonstrate that the amount of the individual claims would be
insufficient to warrant grant of class certification. With respect to the trial
court’s observation that prospective class members may benefit from the
treble damages provision, we discern no error. Section 201-9.2(a) of the
UTPCPL explicitly provides that “[t]he court may, in its discretion, award up
to three times the actual damages sustained.” 73 P.S. § 201-9.2(a)
(emphasis added).
In sum, because we determine that the trial court employed the
proper legal standard regarding justifiable reliance under the private action
provision of the UTPCPL, we do not disturb its ruling on Appellant’s motion
for class certification under Rule 1702.
Order affirmed.
Judge Panella joins the opinion.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
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