Kevin Brobson
PHILADELPHIA – A split Pennsylvania Supreme Court won’t stretch the state’s consumer-protection law to include things companies should have said, in a ruling a dissenting justice called at odds “with life and logic.”
The case piqued the interest of business groups and trial lawyers and involved a camera that had a propensity for malfunctioning. Philadelphia lawyer Robert Halpern bought one and was faced with a $260 repair, so he tried to allege its maker, Ricoh U.S.A., had violated the Unfair Trade Practices and Consumer Protection Law.
There are 20 specific acts and practices considered violations in the UTPCPA, which also includes a “catch-all” provision that covers “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”
Twenty-five years ago, the state Superior Court determined what that meant in a case like Halpern’s, which says the “catch-all” provision covers an omission – like not disclosing that a part of a camera sticks and causes images to appear black or dark. The court said it is only a violation of the UTPCPA if the defendant had an “affirmative duty” to disclose what it instead omitted.
The Supreme Court took up Halpern’s case to determine whether that still remains “good law,” Justice Kevin Brobson wrote for the 4-3 majority March 31. A vendor does not create a deceptive impression by placing an allegedly defective product into the marketplace, he said.
“Rather, the implied warranty of merchantability ensures buyers that a product is inherently sound, making it suitable for the purpose for which it was designed,” Brobson wrote.
“Moreover, if a vendor expressly warranties a product for a period of time, the vendor is directly communicating to a buyer the vendor’s promise that the product will work as intended for the specified time period, placing the ordinary consumer on notice of what his or her minimum expectations for the product should be.”
Halpern certainly wouldn’t agree. He bought a Pentax Model K-50 camera in 2015, but five years later its shutter lens began to malfunction after less than 9,000 pictures. The camera had an expected lifespan of at least 100,000 photos.
When he noticed other customers complaining online about similar problems, he realized a part called a solenoid was sticking. Ricoh told him to visit a service center for a chargeable $260 repair. He replaced it himself by buying an older lens for $166 to install on his camera and then filed a class action lawsuit under the UTPCPL.
The Pennsylvania Association for Justice – the state’s group for plaintiff lawyers – joined his cause with an amicus brief to the state Supreme Court. They convinced three justices but missed out on a fourth.
Justice David Wecht wrote a dissenting opinion that argues the 2001 Superior Court ruling, known as Romeo, now considered “good law” didn’t say what the majority thinks it did.
In that case, a woman sued the Pittsburgh Pirates after being struck by a foul ball. Her UTPCPL claim failed when the Superior Court ruled the Pirates had no legal duty to warn spectators of the risks of foul balls.
Wecht said the woman had never alleged a violation of the “catch-all” provision at issue in Halpern’s case. The ruling actually pertained to “deceptive business practices,” Wecht said.
“Had the Romeo court actually been attempting to interpret the phrase “deceptive conduct” in the UTPCPL’s catch-all provision, the analysis likely would have looked quite different,” Wecht wrote.
“Phrases like ‘deceptive conduct’ and ‘deceptive acts’ have well-established meanings in the consumer protection realm, meanings that consumer protection statutes almost universally embrace.”
Finding sellers can’t deceive consumers by omitting facts – without an affirmative legal duty to disclose them – was a “clumsy interpretation” of the law, Wecht wrote. He agreed with Halpern that the Federal Trade Commission’s meaning of “deceptive conduct” includes a seller’s failure to disclose a product does not meet an ordinary consumer’s minimum performance expectation.
“(T)he majority cannot bring itself to admit that a seller lacking a duty to speak could ever engage in conduct that has the capacity to deceive,” Wecht said.
“The majority’s rule is at odds not only with the UTPCPL’s text, but also with life and logic themselves.”
Justices Christine Donohue and Sallie Updyke Mundy joined Wecht’s dissent. Justices Daniel McCaffery and Kevin Dougherty and Chief Justice Debra Todd joined Brobson in the majority.
Amicus briefs supporting the result came from the Product Liability Advisory Council, the U.S. and Pennsylvania chambers of commerce, the American Property Casualty Insurance Association, the Pennsylvania Coalition for Civil Justice Reform and the Pennsylvania Manufacturers’ Association.
