The UTPCPL Catch-all Provision and Common Law Fraud.

Posted By Cliff Tuttle | May 27, 2015

No. 1,160

FAZIO v. GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, 62 A.3d 396 (Superior Ct., 2012)

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The Unfair Trade Practices and Consumer Protection Law (UTPCPL) contains 20 specifically enumerated sections where its provisions apply and one “catch-all” provision. The catch-all provision is set forth in 73 Pa.S.A. § 201-2(4)(xxi).

“The pre-1996 catchall provision”, said the Superior Court,” prohibited ‘fraudulent conduct’ that created a likelihood of confusion or misunderstanding. In 1996, the General Assembly amended the UTPCPL and revised Section 201-2(4)(xxi) to add ‘deceptive conduct’ as a prohibited practice. The current catchall provision proscribes ‘fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.’

Under the pre-1996 language, referring only to “fraudulent conduct,” Pennsylvania Courts required proof of all of the elements of common law fraud to state a claim under the catch-all provision.  After the amendment, these courts continued to require that the elements of common law fraud be plead and proven. Pre-amendment cases were cited to justify the continuation of this requirement.

However, in a series of cases, the Commonwealth Court began to question whether this interpretation was correct.  In Commonwealth v. Percudani, 825 A.2d 743 (Pa. Cmwlth. 2003) , it stated that the “Superior Court has failed to provide any rational basis for its continuing restrictive view of the Law.”  In Percudani, the Commonwealth Court concluded that the Commonwealth had sufficiently plead “deceptive conduct” and that it was not necessary to plead all of the elements of common law fraud.

In Fazio, the Superior Court reviews a series of cases, mostly in the federal courts, that recently held that proof of common law fraud was not required and concludes:

“Notwithstanding prior case law on the catchall provision, our review of decisions from the Commonwealth Court, the federal courts interpreting Pennsylvania law, as well as the statutory language of the post-amendment catchall provision leads us to conclude the court’s jury instruction regarding ‘misleading’ conduct accurately set forth the standard of liability under the amended catchall provision.”

In a lengthy discussion of cases holding to the contrary, this court distinguishes or otherwise disposes of all.  While this case addresses other issues, the firm rejection of the common law fraud requirement is the most important.

Appellants in this and other cases have brought petitions for allowance for appeal to the Supreme Court without avail.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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