Grimes: Another Look At Reliance And Loss Under Pa.'s UTPCPL

The Pennsylvania Supreme Court is taking another look at justifiable reliance and "ascertainable loss" under Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL). On Jan. 30, the court granted allocatur in Grimes v. Enterprise Leasing Co. of Philadelphia, No. 488 MAL 2013 (Pa. Jan. 30, 2014), on the twin issues of whether: (1) a plaintiff alleging deceptive conduct under the UTPCPL's catch-all fraud provision must prove justifiable reliance; and (2) the act of hiring an attorney and incurring expense to challenge allegedly deceptive conduct constitutes an "ascertainable loss" under 73 Pa. Stat. Section 201-9.2. Grimes will revisit the relationship between Section 201-9.2, which requires both that a plaintiff purchase goods or services in reliance on and suffer an "ascertainable loss" resulting from proscribed conduct, and Section 201-2(4)(xxi)—the so-called "catch-all" provision—which has been read as requiring only deceptive conduct creating a likelihood of confusion or misunderstanding.

In Grimes, a short-term automobile lessee declined an optional damage waiver provision in a rental agreement, effectively agreeing to pay not only for repairs to the vehicle but also for administrative, loss of use and diminution in value fees. When the plaintiff returned the car scratched, she was charged a total of $840.42 for these categories. She did not pay the invoiced charges, choosing instead to file suit. While the plaintiff generally alleged "reliance" on the inflated invoices and concealed repair charges, she did not allege that she paid the inflated invoices. The plaintiff's "ascertainable loss" was the expense she incurred to assert her rights and protect herself legally against the rental company's charges—or put differently, her litigation costs. Liberally construing the UTPCPL, the Superior Court acknowledged the justifiable-reliance requirement, but found that the plaintiff had properly pleaded deceptive conduct under the catch-all provision. It further concluded that incurring costs and fees associated with asserting legal rights and preventing the collection of the debt was a cognizable ascertainable loss under Section 201-9.2.

Granting allocatur in Grimes should be read in historic context. In Prime Meats v. Yochim, 619 A.2d 769 (Pa. Super. 1993), the Superior Court ruled that the UTPCPL's catch-all fraud provision was coextensive with common-law fraud and, therefore, required proof of the elements of common-law...