Superior Court: Automobile dealer didn't commit bait-and-switch, violate Unfair Trade Practices and Consumer Protection Law

By Nicholas Malfitano | Oct 11, 2016

HARRISBURG – The Superior Court of Pennsylvania affirmed a trial court’s granting of summary judgment to an automobile dealer in an action where its plaintiffs claimed said dealer violated lawful business practices.

On Oct. 7, Judge Anne E. Lazarus and colleagues Susan Peikes Gantman and William H. Platt affirmed a motion of summary judgment in favor of Sussman Automotive (doing business as Sussman Mazda) and Eric Sussman, and against plaintiffs Thomas and Dianne Kirwin, in their lawsuit alleging the defendants violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL).

On Feb. 15, 2013, the Kirwins received a direct electronic mail solicitation quoting the price of a 2012 Mazda CX-9 Touring Sport Utility Vehicle, with all listed options, for $23,991.00. However, when the Kirwins arrived at the Sussman Mazda dealership and spoke to a sales representative, they were informed that the purchase price of the Mazda was actually $26,980.00 – and that the lower price was a mistake caused by a computer glitch.

“The Kirwins replied that the price as posted on the vehicle’s window was also the lower number, $23,991.00, whereby, the salesperson apologized for the confusion, offered the Kirwins a two-year free maintenance package on the vehicle for the mistake, but remained firm on the higher purchase price,” Lazarus stated.

Though the Kirwins ended up purchasing the 2012 Mazda CX-9 Touring Sport Utility Vehicle for the higher price of $26,980.00, they then initiated legal action against the Sussman Automotive dealership pursuant to the UTPCPL.

The Kirwins’ amended complaint accused the defendants of engaging in “bait-and-switch” advertising which caused them to pay $2,889.00 more for their vehicle than they had intended or was advertised.

On June 22, 2015, the Montgomery County Court of Common Pleas approved the defense’s motion for summary judgment, dismissed the Kirwins’ complaint with prejudice and denied the Kirwins’ cross-motion for summary judgment, leading them to appeal to the Superior Court.

The Kirwins sought the Superior Court’s decision on whether they needed to include “common law” elements of fraud such as justifiable reliance, if said evidence could be “reconciled with the plain words and spirit of the statute” and if so, did they show sufficient proof as to survive the defense’s motion for summary judgment and proceed to trial.

The Court first addressed the issue of the Kirwins’ claims pertinent to the UTPCPL.

“The Kirwins initiated suit against Sussman based upon this [catchall] provision, which provides liability for ‘fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding,” Lazarus explained.

“Even with the broadening of the applicability of the catchall provision, in order to prevail on such a cause of action, ‘the UTPCPL plaintiff must still prove justifiable reliance and causation, because the legislature never intended the statutory language directed against consumer fraud to do away with the traditional common law elements of reliance and causation,” Lazarus added.

Lazarus continued common law required charges of both fraud and negligent misrepresentation to supply proof of justifiable reliance, therefore leaving the Kirwins’ first two issues raised on appeal (whether justifiable reliance must be proven within the UTPCPL) “without merit.”

Next, the Court turned to the Kirwins’ final issue on appeal, regarding whether they have shown sufficient proof of the justifiable reliance element.

“The Kirwins correctly note that whether justifiable reliance existed is ordinarily a question of fact. However, the Kirwins fail to present even a basic set of facts tending to show reliance on the lower advertised price,” Lazarus said.

Lazarus concurred with the views of the trial court, who quoted Thomas Kirwin’s deposition testimony where he “admitted that he was made aware of the price discrepancy between the vehicle’s advertised and actual price before signing any documents, admitted that he had two functioning vehicles at the time of the sale and could have walked away from the sale prior to signing, admitted that he signed the buyer’s order and final order fully aware of the price discrepancy, and admitted that he chose not to utilize the option to cancel in the buyer’s order post-signature because he wanted to renegotiate the deal.”

Lazarus indicated between those admissions and the Kirwins signing the purchase agreement at the higher price, it did not support the Kirwins’ claims of justifiable reliance.

“Accordingly, the Kirwins cannot make out a prima facie showing of justifiable reliance and their UTPCPL claim alleging a “bait and switch” tactic on the part of Sussman must fail,” Lazarus said.

The plaintiffs are represented by Predrag Filipovic in Philadelphia.

The defendants are represented by Thomas A. Kuzmick of Rawle & Henderson and Erick V. Violago of Mintzer Sarowitz Zeris Ledva & Meyers, also both in Philadelphia.

Superior Court of Pennsylvania case 2628 EDA 2015

Montgomery County Court of Common Pleas case A-2013-28177

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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