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February 2021 Docket Review

Posted by Corrie Woods | Feb 28, 2021 | 0 Comments

This month, the Court issued 2 precedential opinions and 5 orders granting allocatur.

On the opinion side, Gregg is a shockwave in Pennsylvania consumer protection law. For decades, both federal and state courts have struggled with how to properly interpret a 1996 amendment to the “catchall provision” of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). At its adoption, the text of the UTPCPL created augmented common-law fraud claims, identifying business practices which might not have otherwise been seen as fraudulent — e.g., making false statements as to the geographic origin of goods — as fraudulent, providing a residual catchall provision prohibiting “any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding,” and providing significant additional remedies as compared to common-law fraud claims, including treble damages, costs, and attorneys' fees. Courts were less than generous in the degree to which they went along with this augmentation, and particularly so with the catchall, requiring plaintiffs to prove common-law fraud. But in 1996, the General Assembly modified the catchall provision to prohibit not only “fraudulent,” but also “deceptive” conduct in consumer transactions. Over the last two-plus decades, federal and state courts have slow-walked this expansion as well. Initially, some simply ignored the fact that the amendment existed, and most again narrowly construed the catchall provision as related to common-law fraud principles.

No more. In Gregg, the Court applied a largely textualist interpretive approach to hold that businesses are obliged not only to avoid intentionally defrauding their consumer customers, and not only to take reasonable care not to confuse them, but are strictly responsible for all conduct that leads to consumer confusion. Such a standard is not unheard of, but the day Gregg was decided, February 17, should probably be marked as a holiday on the calendar of every consumer-protection attorney.

One question that arises from Gregg is “wither justifiable reliance”? Early decisions rooted in common-law fraud doctrines essentially held that, because a plaintiff must prove that a violation of the UTPCPL “caused” a pecuniary loss, a plaintiff had to prove that the business's fraud caused him to justifiably rely on a misrepresentation. But those two things are not the same, at least in terms of “justifiability,” which doesn't appear anywhere in the text of the UTPCPL, and, if the burden is on businesses to be clear, rather than consumers to be astute, it might be worth another look.

On the allocatur side, one item of interest is that, in Lorino, the petitioner has framed his issue as whether or not the Commonwealth Court's interpretation of a fee-shifting provision of the Workers' Compensation law violates the separation of powers. He may live to regret it. Repeat readers will recall last month's entry regarding the Lamar case, in which the petitioner raised only the issue of whether the Commonwealth Court's decision in that case conflicted with another of its decisions. Although the litigants and several of the Justices assumed that they would be addressing the substantive zoning issue in that case, the majority opinion merely distinguished the two Commonwealth Court cases and affirmed. In Lorino,ostensibly, the mere fact that a court has provided a gloss on a legislative provision does not ipso facto violate the separation of powers. It will be interesting to see whether the Court is inclined to address the true substantive issue — the statutory construction issue — so close to its decision in Lamar.

Precedential Opinions

  • Gregg v. Ameriprise Financial, Inc., 29 WAP 2019 (Opinion by Wecht, J.) (holding that actors are strictly liable for violations of the Unfair Trade Practices and Consumer Protection Law's prohibition on “deceptive” conduct in consumer transactions)

  • J.F. v. Dept. of Hum. Servs., 72 MAP 2019 (Opinion by Dougherty, J.) (holding that the subject of a report of child abuse designated “founded” due to the subject's ensuing entry into alternative rehabilitative disposition in the collateral criminal matter is entitled to an evidentiary hearing to challenge the designation)

    • See also Dissenting Opinion by Mundy, J.

Allocatur Grants

  • Commonwealth v. Destefano, 266 WAL 2020 (granting review to determine whether the Superior Court applied the appropriate standard of review for challenges to the admissibility of evidence)

  • Lorino v. WCAB (Commonwealth), 427 EAL 2020 (granting review to consider a challenge to the Superior Court's holding that a workers' compensation claimant may only recover attorneys' fees where an employer unreasonably contests his eligibility for benefits as violative of separation of powers)

  • Szwerc v. Lehigh Valley Health Network, 443 MAL 2020 (granting review to consider whether a request for attorney's fees was timely and justiciable)

  • In the interest of S.K.L.R., et al., 360-61 WAL 2020 (granting review to consider whether the Superior Court applied the appropriate standard of review in a domestic relations matter)

  • Pasquini v. Fairmount Behavioral Health System, 192 EAL 2020 (granting review to consider whether a patient's status as a registered sexual offender is confidential under the Mental Health Procedures Act and within psychiatrist/psychologist-patient privilege)

About the Author

Corrie Woods

Corrie is our primary litigator, and focuses his practice on appellate, criminal, and post-conviction cases. Corrie also authors the firm's blog, SCOPABlog, which is the only regularly updated blog providing comprehensive coverage of the Supreme Court of Pennsylvania's docket. Corrie became an a...


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