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PA Supreme Court Ruling: Attorney Fees are Not an “Ascertainable Loss” Under the PA UTPCPL

The extent of consumer protection of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) was brought to the attention of the Supreme Court in Christina Grimes v. Enterprise Leasing Company of Philadelphia, LLC, 4 MAP 2014. The Court finally decided legal fees alone do not satisfy “any ascertainable loss” as described by the UTPCPL.

In December 2010 Ms. Christina Grimes rented a car from Enterprise Leasing Company of Philadelphia, LLC. Upon return of the vehicle, Grimes was informed that she would be held monetarily responsible for a scratch found on the car. Soon, Grimes was billed for $840.42 to cover the administrative, loss-of-use and diminishment-of-value fees associated with the damage. In response, Grimes hired an attorney and filed suit against Enterprise, asserting a claim under the UTPCPL.

Grimes claimed that she had been a victim of fraud and was thus protected under the UTPCPL. She alleged that she had incurred costs that satisfied an “ascertainable loss” as established by the law:

Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use of employment by any person of a method, act or practice declared unlawful by [73 P.S. § 201-3] may bring private action, to recover actual damages or one hundred dollars ($100), whichever is greater. […] The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.”

73 P.S. § 201-9.2 (a)

Initially, the Superior Court of Pennsylvania (2013 Pa. Super 57) claimed that Grimes did in fact incur an “ascertainable loss”. The court reasoned that the UTPCPL should be “construed liberally […] in order to effect the legislative goal of consumer protection.”

The Supreme Court disagreed on appeal.  The Court decided that legal fees alone may not be considered an “ascertainable loss of money and property.”  The opinion of the Court noted that the law differentiated between any associated costs and legal fees: “Here, the operative statute initially provides for damages relative to ‘ascertainable loss[es],’ then separately provides for awards of ‘costs and reasonable attorney fees.’ 73 P.S. §201-9.2(a).”  The Supreme Court decided that in the cases cited by the Superior Court, the plaintiffs had “a specific loss of money,” unlike Grimes.

The most important piece of evidence, however, for the Court’s decision was Grimes’s admission that she never paid Enterprise any money for the alleged damages. This was key to the defendant’s argument that the plaintiff had not incurred in any “ascertainable loss of money or property.” The defendants also argued that if the mere acquisition of counsel were an “ascertainable loss,” this would imply that one would only have to incur in legal costs to be protected by the UTPCPL. The Supreme Court sympathized with the defendant’s argument, and further supported the defendants claim by stating, “we presume that such an unreasonable result was not intended by the General Assembly.”

The Supreme Court’s decision in Grimes v. Enterprise is significant as it establishes that plaintiffs’ claiming civil action under the UTPCPL may only be protected when they have incurred an “ascertainable loss of money or property” different from merely incurring legal fees.

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