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Firm wins dismissal of UTPCPL claim

Plaintiffs sometimes add improper Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) claims to their construction litigation to try to increase the amount of their recovery.

When we defend businesses facing such claims, we work to eliminate the improper UTPCPL claims from the litigation.

For example, we recently obtained a dismissal of a UTPCPL claim in a construction Dispute. Here is some of the argument and applicable law we sometimes use to eliminate improper UTPCPL claims from litigation involving businesses we represent.

A UTPCPL plaintiff must establish that the defendant’s UTPCPL violation itself caused a definable loss of money or property. This is because, to maintain any private action under the UTPCPL, a Plaintiff must allege and prove she sustained an “ascertainable loss of money or property . . . as a result of the defendant’s alleged UTPCPL-violation. 73 P.S.§ 201-9.2.

Accordingly, we have argued that UTPCPL claims must be dismissed when the harm alleged was not caused by the defendant’s purported UTPCPL-violation itself.

The Home Improvement Consumer Protection Act (the “Act”) does not preclude a non-compliant contractor from pursuing a cause of action in quantum meruit. Shafer Elec. & Constr. v. Mantia, 96 A.3d 989, 990 (Pa. 2014). It is well-settled that a party is not barred from bringing an action based in quantum meruit when one sounding in breach of express contract is not available. Id. The Supreme Court has held that “it is self-evident and plain that the Home Improvement Consumer Protection Act, 73 Pa. Stat. Ann. § 517.7(g), speaks only to the availability of remedies to a contractor who complies with § 517.7(a). [underlining added].” Id.

That is, the Act does not automatically create a UTPCPL cause of action every time a contractor’s written agreement fails to achieve full, technical compliance with § 517.7(a). see, id. As such, we have argued that a UTPCPL claim must be dismissed when the Defendant’s alleged non-compliance with § 517.7(a) of the Act does not give rise to a UTPCPL claim.

We have successfully argued that, when a Plaintiff’s alleged harm was not caused by the alleged UTPCPL-violation, the Plaintiff’s UTPCPL must be dismissed with prejudice.

The Supreme Court has held: “the statute clearly requires, in a private action, that a plaintiff suffer an ascertainable loss as a result of the defendant’s prohibited action.” [emphasis in original]. Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001)(“The [UTPCPL] clearly requires, in a private action, that a plaintiff suffer an ascertainable loss as a result of the defendant’s . . .  action [prohibited by the UTPCPL]”)(emphasis in original); Geesey v. CitiMortgage, Inc., 135 F. Supp. 3d 332, 354 (W.D. Pa. 2015)(“To maintain a private action under the UTPCPL, Plaintiffs are required to allege that they sustained an `ascertainable loss of money or property … as a result of’ the defendant’s allegedly deceptive conduct.”)[emphasis added]; Williams v. Empire Funding Corp., 227 F.R.D. 362, 371 (E.D.Pa. 2005) (a private UTPCPL plaintiff must allege “that defendant’s purportedly unlawful conduct caused a definable loss of money or property”).

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