which gives the defendants adequate notice of the claim and its basis. The complaint specifically alleges two violations of the Unfair Trade Practices and Consumer Protection Law (the Act), Pa. Stat. Ann. tit. 73, § 201-1 et seq. (Purdon 1983) (Plaintiff's complaint, paras. 28, 29). From these paragraphs, the defendants have notice of the plaintiff's averments that she was the purchaser who relied upon the defendants' unfair practices, and that such reliance caused "ascertainable loss of money or property, real or personal." Pa. Stat. Ann. tit. 73, § 201-9.2 (Purdon 1983).
Defendants are correct in much of what they assert in their memorandum in support of the motion. While it is true that the Act was intended to benefit the public at large, Commonwealth By Kane v. Flick, 33 Pa. Commw. 553, 559, 382 A.2d 762, 765 (1978), it is also true that it limits private actions to "any person who purchases . . . goods . . . primarily for personal, family, or household purposes. . . ." Pa. Stat. Ann. tit. 73, § 201-9.2 (Purdon 1983). In addition, such a purchase must be made in reliance on the deceptive practice alleged. Mason v. National Central Bank, 19 Pa. D. & C. 3d 229, 232 (Chester County Ct. C.P. 1980).
However, plaintiff asserts that she is a "purchasing consumer" and therefore entitled to protection under the Act. (Plaintiff's Answer to Defendant's Motion to Dismiss, p.4). Though it is not clear from the pleadings that the plaintiff was the purchaser or that she purchased the dishes in reliance on the "unbreakable" claim, the plaintiff's complaint "is to be liberally construed in favor of the plaintiff" when evaluating a motion to dismiss. Allen Organ Co. v. North American Rockwell Corp., 363 F. Supp. 1117, 1124 (E.D. Pa. 1973). These issues can be settled more appropriately on a motion for summary judgment or at trial.
Defendants are also correct in asserting that the plaintiff's recovery is limited to the cost of the dish. Plaintiff misinterprets the references to "further compensatory damages" in the cases she cites. Flick, 33 Pa. Commw. at 560, 382 A.2d at 765; Commonwealth By Packel v. Ziomek, 145 Pa. Commw. 675, 352 A.2d 235, 238 (1976) (Pa. Commw. Ct.). Each of those actions was brought by the Attorney General, who sought civil fines for violations of injunctions which had been issued in public actions under the Act. Pa. Stat. Ann. tit. 73, §§ 201-4, 201-8 (Purdon 1983). The "further compensatory damages" which were mentioned were intended to reimburse the purchasers for their original outlays made in reliance on the deceptive practices. Flick, 33 Pa. Commw. at 559, 382 A.2d at 764; Ziomek, 352 A.2d at 237.
Since this case is a private action, not a public one (i.e., not one brought by the Attorney General on behalf of the public), the damaged plaintiff is recovering directly. As I interpret Pennsylvania law, the language limiting recovery to "ascertainable loss" suffered as a result of a deceptive practice limits plaintiff's damage award to only reimbursement for her original outlay. Thus, this is not a case where "further compensatory damages" are appropriate.
Still, the plaintiff does have a claim for the price of the dishes. Since this is compensable under the terms of the Act, plaintiff has stated a claim upon which relief may be granted. Therefore, defendants' motion to dismiss Count V of the plaintiff's complaint is denied.
AND NOW, this 22nd day of June, 1983, it is hereby Ordered that defendants' motion to dismiss Counts IV and V of plaintiff's complaint is DENIED.
AND IT IS SO ORDERED.
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