Halpern, R., Aplt. v. Ricoh U.S.A., Inc.

[J-4-2025] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

ROBERT N. HALPERN, ON BEHALF OF : No. 7 EAP 2024 HIMSELF AND ALL OTHERS SIMILARLY : SITUATED, : Appeal from the Order of the : Superior Court entered on July 28, Appellant : 2023, at No. 226 EDA 2023, : affirming the Order entered on : January 12, 2023, in the Court of v. : Common Pleas of Philadelphia : County, Civil Division, at : No. 220301922.

RICOH U.S.A., INC., : : ARGUED: March 4, 2025 Appellee :

OPINION

JUSTICE BROBSON DECIDED: March 31, 2026 Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL)1 “enumerates twenty distinct unfair methods of competition and unfair or deceptive acts and practices that are unlawful” in Section 2(4)(i)-(xx), 73 P.S. § 201-2(4)(i)-(xx). Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 646 (Pa. 2021). The UTPCPL also contains a so-called “catch-all” provision, which prohibits vendors of goods and services from “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi). In Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa. Super. 2001), the Superior Court held that, to establish a claim of a deceptive omission against a vendor for violating the UTPCPL, a buyer must

In the instant matter, the Superior Court relied on Romeo’s holding in determining that a plaintiff/buyer did not state a cause of action under the catch-all provision of the UTPCPL, because the plaintiff/buyer failed to allege that the defendant/vendor had an obligation to disclose the subject of a purported deceptive omission regarding a camera.

We granted allowance of appeal to consider whether the holding in Romeo is good law.

After careful review, we answer that question in the affirmative. Consequently, we affirm the Superior Court’s judgment.

I. BACKGROUND In March 2022, Appellant Robert Halpern (Halpern), an attorney acting pro se, filed a putative class action complaint in the Court of Common Pleas of Philadelphia County (trial court), naming Appellee Ricoh U.S.A., Inc. (Ricoh), as the defendant. Ricoh removed the litigation to the United States District Court for the Eastern District of Pennsylvania (District Court). For reasons that are irrelevant to this appeal, Halpern subsequently filed a motion to remand the matter back to the trial court, and the District Court granted the motion. On remand to the trial court, Ricoh filed preliminary objections to Halpern’s complaint. Halpern then filed an amended complaint. In the amended complaint, Halpern made the following, relevant allegations.

Ricoh sells cameras under the Pentax brand name. In April 2015, Halpern purchased a Pentax Model K-50 (Camera), which replaced the Model K-30. The Camera operated well until February 2020, when its aperture-control mechanism, i.e., the shutter lens, began to malfunction. This malfunction caused the Camera to produce images that appeared black or dark with normal exposure settings. At that point, Halpern had taken

[J-4-2025] - 2 fewer than 9,000 pictures with the Camera, though the Camera has an expected lifespan of 100,000 or more pictures.

After doing an internet search, Halpern learned that many other Pentax users reported similar issues with their cameras and that the Camera’s malfunction was due to the solenoid sticking.2 Pentax’s solenoids began sticking frequently after Ricoh changed the solenoids in the Model K-30 and Model K-50 from white Teflon to green polyester.

Ricoh has not published any public warnings about the malfunctioning aperture-control mechanisms, nor has the company provided Halpern with any information regarding this issue. Ricoh has extrapolated that 11,411 Model K-50s and Model K-30s have been impacted by failures of their aperture-control mechanisms.

In 2020, Halpern mailed several letters to Ricoh, complaining about the aperture-control issue. In an email dated October 6, 2020, Ricoh’s technical solutions manager suggested to Halpern that he send the Camera to an authorized service center for a chargeable repair, as the Camera was no longer covered by its one-year warranty.

A service center stated that the cost of the repair would be $260. Halpern, however, learned that he could bypass the aperture problem by using an older lens, which cost him $166.

Halpern’s amended complaint alleged that Ricoh violated the UTPCPL by engaging in conduct that fell within the catch-all provision. Halpern averred that, in Gregg, this Court stated that the catch-all provision “may be characterized as a strict liability offense.” (Amended Complaint, 8/15/2022, ¶ 79 (quoting Gregg, 245 A.3d at 650).)

[J-4-2025] - 3 According to the amended complaint, “[t]his means that a vendor is liable for ‘deceptive conduct during a consumer transaction that creates a likelihood of confusion or misunderstanding [and] upon which the consumer relies to his or her financial detriment’—without regard to the vendor’s intent or state of mind.” (Id. ¶ 80 (citing Gregg, A.3d at 649-50).) Halpern further noted that “[t]he consumer must show that he or she justifiably relied upon the vender’s deceptive conduct when making a purchasing decision.” (Id. ¶ 82.)

The amended complaint alleged that, when Ricoh sold the Camera to Halpern, the Camera’s aperture-control mechanism was defective. Halpern asserted that “Ricoh’s failure to disclose this defect was a deceptive omission, as it tended to cause confusion or misunderstanding.” (Id. ¶ 89.) Halpern further stated that “Ricoh is strictly liable for its failure to disclose the defect in the Camera, and in the cameras of those similarly situated.” (Id. ¶ 91.) He claimed that, had he known that the Model K-50 had a defective aperture-control mechanism, he would not have purchased the Camera. Halpern averred that he suffered damages due to Ricoh’s violation of the UTPCPL and that these damages can be measured by the cost of repairing or replacing the aperture-control mechanism.

Ricoh filed a preliminary objection in the nature of a demurrer to the amended complaint.3 Ricoh suggested that Halpern’s claim is based upon Ricoh’s alleged failure to disclose a defect in the Model K-30 and Model K-50. Ricoh argued that a UTPCPL claim based on a pure omission “is actionable only if there is a duty to disclose.” (Preliminary Objection, 9/6/2022, ¶ 41 (quoting DeSimone v. U.S. Claims Servs., Inc. (E.D. Pa., No. 19-6150, filed Mar. 11, 2020), slip op. at 3).) Ricoh averred that it “had no

[J-4-2025] - 4 duty to speak under the circumstances, and [Halpern] has alleged no basis to impute such a duty.” (Id. ¶ 47.)

Ricoh further submitted that Halpern’s reliance on this Court’s decision in Gregg was misplaced. Ricoh stated that, while the Court in Gregg “held that intent to deceive is not an element of a UTPCPL claim based on affirmative representations,” the Court “did not abrogate the well-established principle of Pennsylvania law that a pure omission cannot support liability unless there is a duty to disclose.” (Id. ¶ 53 (emphasis omitted).)

Ricoh took the position that, “[a]s a matter of law, a party’s failure to disclose information that it is not dutybound to disclose cannot be deceptive under the UTPCPL.” (Id. ¶ 54.)

Ricoh added that Halpern’s claim also failed because he did not allege that he was exposed to pre-purchase false statements made by Ricoh or that he justifiably relied on such false statements.

The trial court entered an order sustaining Ricoh’s preliminary objection. In its opinion in support of that decision, the trial court asserted that, “[f]irst, Halpern must prove Ricoh engaged in deceptive conduct.” (Trial Court Opinion, 3/7/2023, at 4.) According to the court, Halpern failed in this regard because he did not “allege pre-purchase interactions, communications, advertisements or promises from Ricoh, let alone any false or deceptive statements.” (Id.) “Second,” the trial court opined, “Halpern must prove he justifiably relied on a misrepresentation.” (Id.) The trial court concluded that Halpern did not “allege that he read, was aware of, considered, or relied upon any statement or representation from Ricoh regarding the [C]amera.” (Id.) Halpern appealed to the Superior Court.

A three-judge panel of the Superior Court unanimously affirmed the trial court’s order in a published opinion. Halpern v. Ricoh U.S.A., Inc., 299 A.3d 1023 (Pa.

[J-4-2025] - 5 Super. 2023). In so doing, the Superior Court explained that, to maintain a cause of action pursuant to the UTPCPL, a plaintiff must demonstrate: (1) [the plaintiff] purchased or leased goods or services primarily for a personal, family, or household purpose; (2) [the plaintiff] suffered an ascertainable loss of money or property; (3) the loss occurred as a result of the use or employment by a vendor of a method, act, or practice declared unlawful by the [UTPCPL]; and (4) the consumer justifiably relied upon the unfair or deceptive business practice when making the purchasing decision.

Halpern, 299 A.3d at 1027 (quoting Gregg, 245 A.3d at 646).

As to the third prong, the Superior Court agreed with Halpern “that the trial court erred when it held that he did not state a [UTPCPL]-catch-all cause of action, simply because he failed to plead ‘any false or deceptive statements.’” Id. at 1028 (quoting Trial Court Opinion, 3/7/2023, at 4). The Superior Court reasoned: Lack of pre-purchase false or deceptive statements does not, in and of itself, defeat a claim for relief under the plain language of the [UTPCPL]-catch-all provision. The trial court’s interpretation would confine the statute to outlawing only a vendor’s deceptive words that likely create confusion or misunderstanding, rather than a vendor’s “deceptive conduct” that also likely creates confusion or misunderstanding. 73 P.S. § 201-2(4)(xxi).

Given the plain language and the remedial nature of the statute, the trial court’s narrow application of the [UTPCPL] was erroneous.

Id. at 1028-29.

The Superior Court, nevertheless, determined that the trial court reached the correct result, relying on the right-for-any-reason doctrine.4 In so doing, the Superior Court relied upon its decision in Romeo, which we pause to summarize. Romeo involved a husband and wife, Nancy Romeo (Nancy) and James Romeo (collectively, the Romeos). The Romeos purchased tickets to a Pittsburgh Pirates (Pirates) baseball “The ‘right for any reason’ doctrine allows an appellate court to affirm the trial court’s decision on any basis that is supported by the record.” In re A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018).

[J-4-2025] - 6 game. “The back of these tickets contained a disclaimer, which stated that ticket holders assumed the risk of certain dangers during the course of the game, including batted balls.”

Romeo, 787 A.2d at 1029. During the game, Nancy was injured when a line drive hit her in the face. The Romeos sued the Pirates, claiming, inter alia, that the Pirates violated the catch-all provision of the UTPCPL. See Romeos’ Compl. ¶ 34 (Allegheny Cnty. Com.

Pl. Ct., No. GD 00-22436, Feb. 9, 2001) (alleging that defendant’s “conduct . . . represent[ed] violations of the [UTPCPL]”), available at 2001 WL 34758713. After the trial court sustained the Pirates’ preliminary objections and dismissed the Romeos’ complaint, the Romeos appealed to the Superior Court.

In affirming the trial court’s order, the Superior Court in Romeo initially determined that the Pirates had no common law “duty to protect [the Romeos] from or to warn them about the risk of injury from a foul ball.” Id. at 1031. Regarding the Romeos’ UTPCPL claim, the Superior Court reiterated that the Pirates had no duty to warn the Romeos of the risk posed by foul balls and then stated that “nothing [the Pirates] did or did not do can be characterized as a ‘deceptive business practice.’” Id. at 1033. The Superior Court explained that “[t]his situation is not one against which the law was designed to protect.”

Id. Turning back to the Superior Court’s opinion in the instant matter, the Superior Court observed that “the Romeo [c]ourt established the principle that, under the catch-all provision, a [UTPCPL] nondisclosure theory of deceptive conduct is only actionable if a vendor had an affirmative duty to disclose the defect in the good or service.” Halpern, 299 A.3d at 1029 (footnote omitted). Because Halpern’s amended complaint failed to allege that Ricoh had a common law duty to disclose the defect in the Camera, the Superior Court concluded that Halpern did not “state a claim that Ricoh violated the

[J-4-2025] - 7 catch-all provision of the [UTPCPL] by its silence regarding the defective camera.” Id. at 1030.

Importantly, the Superior Court criticized Romeo in a footnote, characterizing the Romeo court’s analysis as sparse at best. The Superior Court stated that the Romeo court did not review the language of the UTPCPL, “its legislative history, or similarly worded statutes from our Sister States or the Federal Government.” Id. at 1029 n.5. The Superior Court further opined: [T]he Romeo court offered no explanation as to how a common-law duty to disclose (or lack thereof) could override the statutory mandates of the [UTPCPL]. Presumably, the General Assembly adopted the remedial [UTPCPL] to remove the old strictures of common-law pleading and proof from the law of consumer transactions. Romeo’s holding may have undermined that legislative goal.

Still, “it is beyond the power of a Superior Court panel to overrule a prior decision of the Superior Court, except in circumstances where intervening authority by our Supreme Court calls into question a previous decision of this [c]ourt.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). We know of no such intervening pronouncement. Nor do we think, as [Halpern] contends in his brief and reply brief, that [Gregg] did so.

There, the question was what level of intent a vendor must have to violate the [UTPCPL]-catch-all provision, not whether a common-law duty to disclose is a prerequisite to rendering a vendor’s nondisclosure actionable.

The High Court held that no proof of mental state is required; thus, the catch-all provision imposes strict liability. [Halpern] seems to conflate strict liability (i.e., liability without fault) with passive nondisclosure. An affirmative false statement and a deceptive nondisclosure may both be made intentionally (fraud), negligently (misrepresentation), or with the utmost care (strict liability). Thus, Gregg’s holding regarding strict liability under the catch-all provision did not overrule Romeo sub silentio. Id. II. ISSUE This Court granted allowance of appeal to consider the following issue, as phrased by Halpern:

[J-4-2025] - 8 Whether, in this case of first impression, this Court should overrule the 2001 Superior Court holding in Romeo v. Pittsburgh Associates that a deceptive omission under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law is actionable only if a vendor had an affirmative duty to disclose a defect in a good or service.

Halpern v. Ricoh U.S.A., Inc., 314 A.3d 513, 514 (Pa. 2024) (per curiam).

III. DISCUSSION A. Scope and Standard of Review This appeal is from an order sustaining a preliminary objection in the nature of a demurrer. Consequently, our standard of review is de novo, and our scope of review is plenary. Raynor v. D’Annunzio, 243 A.3d 41, 52 (Pa. 2020). A preliminary objection in the nature of a demurrer challenges the legal sufficiency of a pleading.

Pa.R.Civ.P. 1028(a)(4). In evaluating such an objection, courts “must consider as true all of the well-pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts.” Am. Hous. Tr., III v. Jones, 696 A.2d 1181, 1183 (Pa. 1997). “In conducting our appellate review, we observe that preliminary objections, the end result of which would be dismissal of the action, may be properly sustained by the trial court only if the case is free and clear of doubt.” Id. at 1184.

B. Analysis “Prior to the adoption of the [UTPCPL], individual consumers who had been victimized in the marketplace by unscrupulous vendors could vindicate their rights only under the common law theories of negligent and fraudulent misrepresentation.” Gregg, A.3d at 645. To establish a claim of fraudulent or intentional misrepresentation, a plaintiff must prove: (1) a representation; (2) material to the transaction at issue; (3) made falsely, with either knowledge or reckless disregard of its falsity; (4) with the intent to mislead another person; (5) justifiable reliance on the misrepresentation; and (6) an injury caused by that reliance. Id. at 645-46. To succeed on a claim of negligent

[J-4-2025] - 9 misrepresentation, a plaintiff must prove: “(1) a misrepresentation of a material fact; (2) made under circumstances in which the actor should have known of its falsity; (3) with an intent to induce another to act on it; (4) thereby causing injury to a party who justifiably relied upon the misrepresentation.” Id. at 646.

As noted above, to succeed on a claim under the UTPCPL, a plaintiff must demonstrate, inter alia, that his or her ascertainable loss of money or property “occurred as a result of the use or employment by a vendor of a method, act, or practice declared unlawful by the [UTPCPL.]” Gregg, 245 A.3d at 646 (internal quotation marks omitted) (quoting 73 P.S. § 201-9.2(a)). “While Section [2(4) of the UTPCPL] enumerates twenty distinct unfair methods of competition and unfair or deceptive acts and practices that are unlawful, the legislature also included the catch-all provision in Section []2(4)(xxi).” Id. From 1968 to 1996, the catch-all provision prohibited vendors from engaging in “any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xvii) (1968) (amended 1996) (emphasis added).

In 1996, the General Assembly amended the catch-all provision to include a prohibition against vendors engaging in “deceptive conduct.” Consequently, since 1996, the catch-all provision has proscribed “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S.

§ 201-2(4)(xxi) (emphasis added). Despite the 1996 amendment, the Superior Court continued to interpret the catch-all provision as requiring proof of fraudulent conduct until its 2012 decision in Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012), wherein the Superior Court recognized, inter alia, that “maintaining a standard that demands fraud even after the amendment would render the legislature’s addition of ‘deceptive’ redundant and meaningless in a manner inconsistent

[J-4-2025] - 10 with well-established principles of statutory interpretation.”5 Bennett, 40 A.3d at 154.

Notably, the Superior Court decided Romeo in 2001—after the 1996 amendment but before Bennett.

Springing forward, the issue before this Court in our 2021 decision in Gregg was whether the catch-all provision of the UTPCPL requires a strict liability standard or, rather, proof of the vendor’s intent. The Court in Gregg explained that “[t]he addition of ‘deceptive’ to describe the type of conduct barred by the catch-all provision of the [UTPCPL] expanded that provision beyond fraudulent conduct.” Gregg, 245 A.3d at 647.

This Court reasoned that “the plain language of the amended [catch-all] provision eliminates the state of mind element that was required prior to the amendment.” Id. at 649.

This Court in Gregg further opined that the “plain language of the current statute imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding.” Id. In reaching this conclusion, the Court explained that the catch-all provision has a “lesser, more relaxed standard than that for fraudulent or negligent misrepresentation.” Id. According to Gregg, “all that the statute requires the plaintiff to prove is that the acts or practices are capable of being interpreted in a misleading way.” Id. (citation and internal quotation marks omitted).

We agree with the Superior Court insomuch as it determined that the issue in this litigation differs substantially from the issue presented in Gregg and that Gregg, therefore, did not overrule Romeo sub silentio. Unlike in Gregg, we are not called upon in this appeal to decipher whether the catch-all provision requires proof of a vendor’s intent.

[J-4-2025] - 11 That issue was put to rest in Gregg. Rather, the current appeal requires the Court to examine whether a plaintiff who claims that a vendor engaged in deceptive conduct in the form of an omission must allege and eventually prove that the vendor had an obligation to disclose the alleged defect that is at the heart of the omission. This issue presents a question of law. Consequently, we employ a de novo standard of review, and our scope of review is plenary. Id. at 644.

The answer to the issue before the Court largely requires that we interpret the UTPCPL. The task of interpreting a statute is guided by the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991 (Statutory Construction Act). The Statutory Construction Act provides that the “object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa. C.S.

§ 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b).

We further note that, [w]hen interpreting a statute, courts should read the sections of a statute together and construe them to give effect to all of the statute’s provisions.

1 Pa. C.S.[] § 1921(a). In giving effect to the words of the legislature, we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.

Roethlein v. Portnoff L. Assocs., Ltd., 81 A.3d 816, 822 (Pa. 2013). “Additionally, ‘[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage,’ though ‘technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in [the Statutory Construction Act] shall be construed according to such peculiar and appropriate meaning or definition.’” Ursinus Coll. v. Prevailing Wage Appeals Bd., 310 A.3d 154, 171 (Pa. 2024) (alterations in original) (quoting 1 Pa. C.S. § 1903(a)). Moreover, because the UTPCPL “is a remedial statute, we must construe it liberally.” Gregg, 245 A.3d at 647.

[J-4-2025] - 12 Applying these interpretive standards, we further agree with the Superior Court’s conclusion that the plain language of the catch-all provision dictates that a vendor’s omission can constitute “deceptive conduct.” In this regard, we note that, in Gregg, this Court determined that the General Assembly intended “deceptive conduct” to take on the meaning that the United States Supreme Court assigned to that phrase in Federal Trade Commission v. Algoma Lumber Company, 291 U.S. 67 (1934). Gregg, 245 A.3d at 648.

In the context of consumer protection law, the High Court in Algoma Lumber Company defined “deceptive conduct” as “conduct that has the ‘capacity to deceive.’” Id. (quoting Algoma Lumber Co., 291 U.S. at 81).

For purposes of the issue currently before us, we further highlight that “[t]he word ‘conduct’ . . . covers both acts and omissions.” Conduct, Black’s Law Dictionary (12th ed. 2024) (second alteration in original) (quoting J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 13 n.2, 24 (16th ed. 1952)); see id. (defining “conduct” as, inter alia, “[p]ersonal behavior, whether by action or inaction, verbal or nonverbal” (emphasis added)). Consequently, conduct that has the capacity to deceive can encompass omissions. The question, therefore, becomes when does an omission have the capacity to deceive.

Halpern argues that “[t]here is no suggestion in the text of the [UTPCPL] that a plaintiff must allege that the defendant has a duty to disclose certain facts.” (Halpern’s Brief at 7.) He further maintains that the holding in Romeo is outdated because “it likely has a fraud lineage, as it falls within the time period between 1996 and 2012 when the Superior Court was disregarding the catch[-]all amendment.” (Id. at 9 (internal quotation marks omitted).) In addition, Halpern asserts that the UTPCPL is modeled after the

[J-4-2025] - 13 Federal Trade Commission Act (FTCA), 15 U.S.C. §§ 41-58, and that “the FTCA does not require a duty to disclose for deceptive omissions.”6 (Id. at 10.)

As we explained in Gregg, to establish a cause of action under the catch-all provision, “all that the statute requires the plaintiff to prove is that the acts or practices are capable of being interpreted in a misleading way.” Gregg, 245 A.3d at 649 (citation and internal quotation marks omitted). Logic dictates that the only way a buyer could interpret a vendor’s silence in a misleading way is if: (1) the vendor had a duty to disclose information to the buyer; and (2) the vendor’s silence was, in essence, a representation that he had no information that needed to be disclosed. In other words, a vendor’s silence, absent a duty to speak, is meaningless and incapable of deception. See Daugherty v. Am. Honda Motor Co., 51 Cal. Rptr. 3d 118, 128 (Cal. Ct. App. 2006) (interpreting California’s unfair competition law (UCL) and stating, “[w]e cannot agree that a failure to disclose a fact one has no affirmative duty to disclose is ‘likely to deceive’ anyone within the meaning of the UCL”), superseded by statute as recognized in Kowalsky v. Hewlett-Packard Co., 771 F. Supp. 2d 1156, 1159 n.1 (N.D. Cal. 2011). We essentially recognized this principle in our decision in Milliken v. Jacono, 103 A.3d 806 (Pa. 2014), where we stated that, “if there was no legal obligation to reveal [an] alleged defect, there can be no liability for [an] appellant’s claims,” which included a claim that the seller of a home violated the catch-all provision of the UTPCPL by failing to disclose that a murder/suicide had occurred in the home. Milliken, 103 A.3d at 809.

The following entities filed amicus briefs in support of Ricoh: Pennsylvania Coalition for Civil Justice Reform, Pennsylvania Manufacturers Association, and American Property Casualty Insurance Association; Product Liability Council, Inc.; Chamber of Commerce of the United States, and Pennsylvania Chamber of Business and Industry; and Product Liability Advisory Council, Inc.

[J-4-2025] - 14 This interpretation of the catch-all provision comports with the context in which it appears, i.e., within the UTPCPL’s definition of “unfair methods of competition” and “unfair or deceptive acts or practices.” As noted above, immediately preceding the catch-all provision are “twenty distinct unfair methods of competition and unfair or deceptive acts and practices that are unlawful” for purposes of the UTPCPL. Gregg, 245 A.3d at 646; see 73 P.S. § 201-2(4)(i)-(xx).7 In this regard, we agree with Ricoh insomuch as it points Section 2(4)(i)-(xx) of the UTPCPL provides, in relevant part:

(4) “Unfair methods of competition” and “unfair or deceptive acts or practices” mean any one or more of the following: (i) Passing off goods or services as those of another; (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services; (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; (iv) Using deceptive representations or designations of geographic origin in connection with goods or services; (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have; (vi) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (viii) Disparaging the goods, services or business of another by false or misleading representation of fact; (ix) Advertising goods or services with intent not to sell them as advertised; (continued…) [J-4-2025] - 15 (x) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity; (xi) Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; (xii) Promising or offering prior to time of sale to pay, credit or allow to any buyer, any compensation or reward for the procurement of a contract for purchase of goods or services with another or others, or for the referral of the name or names of another or others for the purpose of attempting to procure or procuring such a contract of purchase with such other person or persons when such payment, credit, compensation or reward is contingent upon the occurrence of an event subsequent to the time of the signing of a contract to purchase; (xiii) Promoting or engaging in any plan by which goods or services are sold to a person for a consideration and upon the further consideration that the purchaser secure or attempt to secure one or more persons likewise to join the said plan . . . ; (xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made; (xv) Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed; (xvi) Making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing; (xvii) Making solicitations for sales of goods or services over the telephone without first clearly, affirmatively and expressly stating[, inter alia,] the identity of the seller; .... (xviii) Using a contract, form or any other document related to a consumer transaction which contains a confessed judgment clause that waives the consumer’s right to assert a legal defense to an action; (xix) Soliciting any order for the sale of goods to be ordered by the buyer through the mails or by telephone unless, at the time (continued…) [J-4-2025] - 16 out that “[n]one of the [twenty] categories preceding the catch-all provision involve silence unaccompanied by some affirmative statement or unaccompanied by direct interaction with consumers[; r]ather, whether expressly or in context, each involves either an affirmative misrepresentation or partial statement rendered misleading by an omission.” (Ricoh’s Brief at 32 (footnote omitted).) Consequently, our interpretation of the catch-all provision fits the overall scheme of the UTPCPL’s definition of “unfair methods of competition” and “unfair or deceptive acts or practices.”

Moreover, as Ricoh emphasizes, Halpern’s position turns warranty law on its head. (Ricoh’s Brief at 50-57.) For example, it is undisputed that the Camera was covered by a one-year express warranty and that the Camera functioned appropriately while under that warranty. As the Superior Court has explained, “express warranties are bargained, ‘dickered,’ individualized promises that the goods will perform up to the specific standards set forth in that warranty.” Goodman v. PPG Indus., Inc., 849 A.2d 1239, 1245 (Pa. Super. 2004) (citing 13 Pa. C.S. § 2313, Official Comment, ¶ 1), aff’d, 885 A.2d 982 (Pa. 2005) (per curiam). “Pennsylvania’s breach of warranty law supplies a suitable framework for regulating and enforcing the expectations and obligations of the parties as to product performance. It provides a disappointed purchaser a complete remedy for loss of the product itself and of its use within the limits of the parties’ contractual understandings.” REM Coal Co. v. Clark Equip. Co., 563 A.2d 128, 133 (Pa. Super. 1989) of the solicitation, the seller has a reasonable basis to expect that it will be able to ship any ordered merchandise to the buyer [under specific circumstances;] .... (xx) Failing to inform the purchaser of a new motor vehicle offered for sale at retail by a motor vehicle dealer of [rustproofing information.]

73 P.S. § 201-2(4)(i)-(xx).

[J-4-2025] - 17 (en banc). Of further note, in Pennsylvania, the implied warranty of merchantability requires goods to “have an inherent soundness which makes them suitable for the purpose for which they are designed.” Phillips v. Cricket Lighters, 883 A.2d 439, 444 (Pa. 2005) (citation omitted). A cause of action for a breach of an implied warranty of merchantability must be commenced within four years after the cause of action has accrued. See 13 Pa. C.S. § 2725(a) (providing four-year statute of limitations for “breach of any contract for sale”); 13 Pa. C.S. § 2314(a) (explaining that “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind” (emphasis added)).

Despite failing to identify a duty that required Ricoh to disclose the purported defect in the Camera, Halpern, in effect, advocates that: (1) Ricoh is required to extend the protections of the Camera’s one-year warranty to cover the cost of repairing the Camera’s malfunctioning aperture-control mechanism; or (2) the four-year statute of limitations for breach of an implied warranty of merchantability does not apply to his claim that the Camera is not suitable for its designed purpose. (Compare Amended Complaint, 8/15/2022, ¶ 27 n.5 (claiming that Model-K50s have “an expected lifespan of 100,000 or more actuations”) with id. ¶ 27 (averring that Camera failed after “fewer than 9,000 actuations” (internal quotation marks omitted)).) Yet, according to Halpern’s amended complaint, the Camera performed appropriately for approximately five years after Halpern purchased it. In other words, the Camera “functioned well[] and produced excellent images” for years after its express warranty terminated and for a period after the expiration of the implied warranty of merchantability. (Id. ¶ 8.) Because the UTPCPL in no way provides an “end around” of warranty law, we refuse to adopt Halpern’s position, especially in light of the fact that the UTPCPL has a specific provision that defines “unfair methods of competition” and “unfair or deceptive acts or practices” as “[f]ailing to comply

[J-4-2025] - 18 with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made.” 73 P.S. § 201-2(4)(xiv).

For similar reasons, we are unpersuaded by Halpern’s contention that the FTCA somehow requires a different result. (Halpern’s Brief at 9-12.) This Court has explained that “the [UTPCPL] is based upon the [FTCA] and the Lanham Act,” 15 U.S.C. §§ 1051-1127. Gregg, 245 A.3d at 647 (citing Commonwealth by Creamer v. Monumental Props., Inc., 329 A.2d 812, 818 (Pa. 1974) (Monumental Props.)). In the context of interpreting the UTPCPL, this Court has stated that “we may look to the decisions under those [a]cts for guidance and interpretation.” Monumental Props., 329 A.2d at 818 (emphasis added) (citation and internal quotation marks omitted).

Halpern shares that “there are two situations in which the Federal Trade Commission [(FTC)] finds omissions to be actionable.” (Halpern’s Brief at 10.)

First, it can be deceptive to tell only half the truth, and to omit the rest . . . .

Second, it can be deceptive for a seller to simply remain silent, if he does so under circumstances that constitute an implied but false representation, such as where a misleading impression arise[s] from the physical appearance of the product, or from the circumstances of a specific transaction, or . . . based on ordinary consumer expectations as to the irreducible minimum performance standards of a particular class of good. (quoting from In re International Harvester Co., 104 F.T.C. 949 (1984) [(International Harvester)]). (Id. (some alterations in original) (internal quotation marks omitted) (quoting Tomasella v. Nestlé USA, Inc., 364 F. Supp. 3d 26, 34 (D. Mass. 2019)).)

Halpern further notes that, [i]n 2017, the Acting Commissioner of the FTC elaborated on the second situation, stating: [O]ffering a product for sale implies that the product is “reasonably fit for [its] intended uses,” and that it is “free of gross safety hazards.” If the product does not meet ordinary consumer expectations of minimum performance, or if the product is not reasonably fit for its intended uses, the seller must disclose that.

[J-4-2025] - 19 (Id. at 11 (some alterations and emphasis in original) (quoting Statement of Acting Chairman Maureen K. Ohlhausen In the Matter of Lenovo, Inc., September 5, 2017).)

Halpern then acknowledges that “[m]any omissions might be annoying or unexpected, but if the product does not fall below an ‘irreducible minimum,’ disclosure is not required.” (Id.) As Ricoh points out, “it is undisputed that Ricoh did not make any half statement that would render any omission misleading.” (Ricoh’s Brief at 43.) We also agree with Ricoh that “it cannot be said that [Halpern’s] camera failed an ‘irreducible minimum performance standard’ when it performed perfectly beyond the period for asserting any implied (or express) warranty claims.” (Id. (footnote omitted); see id. (“It would be fundamentally inconsistent with the [FTC’s] analysis in International Harvester for there to be an implied obligation to speak to performance beyond the applicable warranty period.”).) Moreover, we do not dispute that sellers must disclose if a product does not meet ordinary consumer expectations of minimum performance or is not reasonably fit for its intended uses. We, however, note that, if a seller fails in this regard, the cause of action would be breach of an express warranty or breach of the implied warranty of merchantability.

In closing, we address the concerns expressed by the dissent. As best we understand, the dissent would interpret the catch-all provision of the UTPCPL as providing a buyer with an omission-based cause of action that survives a vendor’s preliminary objection in the nature of a demurrer simply if the buyer avers in a civil complaint that: (1) the product at issue was defective insomuch as the buyer believes that the product “is not what it purports to be and will not meet the ordinary consumer’s bare minimum performance expectation for the class of product;” and (2) the vendor did not disclose the alleged defect. (Dissenting Op. at 8.) The dissent suggests that such an

[J-4-2025] - 20 averment amounts to an allegation that the seller “engage[d] in silent ‘deceptive conduct[.]’” (Id. at 9.) According to the dissent, “when the General Assembly amended the catch-all [provision] in 1996 to prohibit deceptive conduct in addition to fraudulent conduct, it necessarily imposed upon sellers a duty to speak whenever failure to do so would be ‘deceptive.’” (Id. at 6.) The dissent, therefore, appears to opine that, in amending the catch-all provision to include “deceptive conduct,” the General Assembly intended to provide a buyer with a successful, omission-based cause of action against a vendor if the buyer merely alleges and eventually proves that the vendor put a defective product into commerce and failed to inform the public of this action.

We are of the view that the General Assembly did not intend “deceptive conduct” to encompass the expansive principle that, if a vendor merely sells a defective product, the vendor was “deceptive” as a matter of law under the UTPCPL’s catch-all provision.

Indeed, selling a defective product does not, in and of itself, evince that a vendor engaged in conduct that has the capacity to deceive. To hold otherwise would give rise to the possibility that all product defect cases also may be pursued under the UTPCPL and subject to its various remedies, such as treble damages and the award of attorneys’ fees.

73 P.S. § 201-9.2. On the other hand, requiring a buyer that is pursuing an omission-based claim under the catch-all provision to allege and eventually prove that a vendor had an obligation to disclose something about the product at issue is consistent with the language of the catch-all provision and avoids unreasonably expanding the statute beyond its boundaries.

Of further note, unlike the dissent, we do not believe that a vendor silently creates a deceptive impression that a product meets the ordinary consumer’s bare minimum expectations for the product merely by placing an allegedly defective product into commerce. Rather, the implied warranty of merchantability ensures buyers that a product

[J-4-2025] - 21 is inherently sound, making it suitable for the purpose for which it was designed.

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. Through these warranties, vendors affirmatively inform buyers that their products may fail after these warranties extinguish.

Lastly, we address the dissent’s interest in flashlights that are not flashlights and automobiles that are lawnmowers in disguise and its concern that our construction of the statute in this case would foreclose suits under the catch-all provision of the UTPCPL where “a seller fails to disclose that the product he is selling is not what it purports to be on its face.” (Id. at 8-9, 10, 14.) If a seller misleads, by commission or omission, a consumer into believing that a product is something that it is not, our analysis does not foreclose a potential claim against the seller for that alleged deception. That is not what Halpern alleges in this case. He did not purchase a digital camera that was not, in fact, a digital camera. To the contrary, he purchased an actual digital camera that operated well even years after the express warranty period expired. If Halpern had purchased what he thought was a digital camera but that turned out to be a pencil sharpener, he might have a claim under the catch-all provision of the UTPCPL if the seller engaged in any deceptive conduct that contributed to his false belief. But that is not this case.

IV. CONCLUSION In Romeo, the Superior Court concluded that a plaintiff must establish that a vendor had a duty to disclose the subject of an omission-based claim when he or she brings such a claim pursuant to the UTPCPL. Although the Superior Court’s UTPCPL analysis in Romeo was undoubtedly sparse, we nevertheless hold that Romeo reached

[J-4-2025] - 22 the correct result. Here, Halpern failed to allege that Ricoh had an obligation to disclose the alleged defect in the Camera’s aperture-control mechanism. He, therefore, failed to state a claim that Ricoh violated the UTPCPL’s catch-all provision.8 Because the Superior Court’s judgment reflects the correct result, we affirm that judgment, which affirmed the trial court’s order sustaining Ricoh’s preliminary objection in the nature of a demurrer.

Chief Justice Todd and Justices Dougherty and McCaffery join the opinion.

Justice Wecht files a dissenting opinion in which Justices Donohue and Mundy join.

[J-4-2025] - 23

[J-4-2025] [MO: Brobson, J.]

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

ROBERT N. HALPERN, ON BEHALF OF : No. 7 EAP 2024 HIMSELF AND ALL OTHERS SIMILARLY : SITUATED, : Appeal from the Order of the : Superior Court entered on July 28, Appellant : 2023, at No. 226 EDA 2023, : affirming the Order of the Court of : Common Pleas of Philadelphia v. : County, Civil Division, entered on : January 12, 2023, at No. : 220301922.

RICOH U.S.A., INC., : : ARGUED: March 4, 2025 Appellee :

DISSENTING OPINION

JUSTICE WECHT DECIDED: March 31, 2026 The Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) prohibits sellers of goods or services from engaging in “unfair or deceptive acts or practices.”1 The UTPCPL defines “unfair or deceptive acts or practices” by enumerating twenty different forbidden sales practices.2 In addition to the twenty specifically enumerated practices, the statute also contains a catch-all provision, which broadly forbids sellers from engaging

1 73 P.S. § 201-3 (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . are hereby declared unlawful.”).

2 The listed practices include, for example, misrepresenting that used goods are new, misstating a product’s country of origin, and breaching the terms of a written warranty. Id. § 201-2(4)(iv) (defining “unfair or deceptive acts or practices” to include “using deceptive representations or designations of geographic origin”); id. § 201-2(4)(vi) (“representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand”); id. § 201-2(4)(xiv) (“failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made”). in “any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”3 The UTPCPL’s catch-all provision has undergone one major amendment in its history. From 1968 to 1996, the catch-all simply prohibited “any other fraudulent conduct which creates a likelihood of confusion or misunderstanding.”4 Appellate courts interpreting this language consistently held that claims made under the catch-all required proof of each of the elements of common law fraud.5 Apparently unsatisfied with this interpretation, the General Assembly amended the UTPCPL in 1996, broadening the catch-all to prohibit not just “fraudulent conduct,” but also merely “deceptive conduct.”6 Even after the UTPCPL’s 1996 amendment, the Superior Court continued to hold—contrary to the revised statutory language—that a claim under the UTPCPL’s catch-all provision required proof of common law fraud.7 Various federal courts and the Commonwealth Court criticized the Superior Court for its failure to revisit its catch-all jurisprudence after the legislature’s 1996 revision.8 Responding to these criticisms, the

3 Id. § 201-2(4)(xxi).

4 Id. § 201-2(4)(xvii) (1968).

5 See, e.g., Hammer v. Nikol, 659 A.2d 617, 619-20 (Pa. Cmwlth. 1995) (“[T]o recover under the catchall provision, the elements of common law fraud must be proven.”).

6 73 P.S. § 201-2(4)(xxi) (prohibiting “any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding”).

7 Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 648 (Pa. 2021) (citing a half-dozen cases in which the Superior Court “continued to interpret Section 201-2(4)(xxi) to require proof of common law fraud without regard to the effect of the 1996 amendment”).

8 Commonwealth v. Percudani, 825 A.2d 743, 747 (Pa. Cmwlth. 2003) (“[M]aintaining the pre-1996 [fraud] pleading requiremen[t] would render the words ‘or deceptive conduct’ redundant and superfluous, which is contrary to the rules of statutory construction.”); Flores v. Shapiro & Kreisman, 246 F. Supp. 2d 427, 432 (E.D. Pa. 2002) (“[B]y adding a prohibition on ‘deceptive’ conduct, the 1996 amendment to the [UTPCPL] (continued…) [J-4-2025] [MO: Brobson, J.] - 2 Superior Court eventually reversed its earlier decisions, belatedly recognizing in 2012 that “the legislature’s inclusion of ‘deceptive’ in 1996 signaled that either fraudulent or deceptive conduct would constitute a catchall violation.”9 In the present case, Appellant Robert Halpern alleges that Ricoh U.S.A. engaged in “deceptive conduct” in violation of the UTPCPL’s catch-all provision when it sold him a digital camera without disclosing that the product had a defective aperture-control mechanism, of which Ricoh supposedly was aware. The trial court dismissed Halpern’s UTPCPL claim on preliminary objections, with the Superior Court affirming that dismissal on appeal based on the strength of the rule announced in Romeo v. Pittsburgh Associates.10 In Romeo, a stadium spectator who was struck by a foul ball sued the Pittsburgh Pirates baseball organization under a litany of legal theories, including various common law torts and a statutory claim under the UTPCPL. The trial court sustained the baseball team’s preliminary objections and dismissed the spectator’s complaint. On appeal, the Superior Court dedicated almost all of its opinion to analyzing the spectator’s common law claims, ultimately concluding that baseball teams owe no legal duty to warn stadium spectators of the risks associated with foul balls.

At the very end of its decision, the Romeo court turned to the spectator’s UTPCPL claim. Without even identifying the subsection of the UTPCPL under which the spectator’s claims arose, the panel stated:

eliminated the need to plead all of the elements of common law fraud[.]”); In re Patterson, 263 B.R. 82, 92 (Bankr. E.D. Pa. 2001) (declining to follow the Superior Court’s case law because it fails to account for “the legislature’s [1996] expansion of the scope of the catchall provision beyond fraudulent conduct”).

9 Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 154 (Pa. Super. 2012) (emphasis added).

10 787 A.2d 1027 (Pa. Super. 2001).

[J-4-2025] [MO: Brobson, J.] - 3 In order to state a claim under the UTPCPL, a plaintiff must allege one of the “unfair or deceptive practices” set forth in [the statute]. In considering these causes of action[,] it is important to remember that “[t]he general purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices.” Lennon v. Wyeth-Ayerst Laboratories, Inc., 2001 WL 755944, at *2 (Pa. Super. filed June 14, 2001) (citing Burke v. Yingling, 666 A.2d 288, 291 (Pa. Super. 1995)).

As we have repeatedly stated, appellee had “no-duty” to warn appellants about the risk of foul balls, and therefore nothing appellee did or did not do can be characterized as a “deceptive business practice.” This situation is not one against which the law was designed to protect.11

Romeo has come to stand for the proposition that a seller’s omission cannot constitute “deceptive conduct” under the UTPCPL’s catch-all provision unless the seller was under some affirmative legal duty to disclose the withheld information.12 But the Romeo court was not actually interpreting the UTPCPL’s catch-all provision. In her civil complaint against the baseball team, the plaintiff in Romeo never even alleged a violation of the catch-all.13 The court instead was discussing “deceptive business practices” generally, practices that the panel said were the harms “against which the [UTPCPL] was designed to protect.”14

11 Id. at 1033.

12 See Halpern v. Ricoh U.S.A., Inc., 299 A.3d 1023, 1029 (Pa. Super. 2023) (“[A] UTPCPL nondisclosure theory of deceptive conduct is only actionable if a vendor had an affirmative duty to disclose the defect in the good or service.”). In practice, this view holds that a seller’s mere silence cannot constitute “deceptive conduct” under the UTPCPL’s catch-all unless the law elsewhere imposes upon the seller an affirmative duty to speak under the circumstances. An example of such duty is found in Pennsylvania’s Real Estate Seller Disclosure Law (“RESDL”), which requires those selling real property to disclose certain material defects to real estate buyers. See 68 Pa.C.S. §§ 7301-7315. Given this affirmative disclosure obligation, a seller’s failure to disclose a known defect under RESDL could also constitute a violation of the UTPCPL’s catch-all, per Romeo.

13 Romeo v. Pittsburgh Associates, 2001 WL 34758713 (Pa. Com. Pl. 2001).

14 Romeo, 787 A.2d at 1033.

[J-4-2025] [MO: Brobson, J.] - 4 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. Phrases like “deceptive conduct” and “deceptive acts” have well-established meanings in the consumer protection realm, meanings that consumer protection statutes almost universally embrace. For example, Section 5(a) of the Federal Trade Commission Act (“FTCA”)—upon which Section 3 of the UTPCPL was based—prohibits “unfair or deceptive acts or practices.”15 A court attempting to discern the scope of the UTPCPL’s catch-all prohibition on “deceptive conduct” likely would consult decisions interpreting the FTCA for persuasive guidance informing the state law inquiry.16 Alternatively, a court deciding what the General Assembly meant by “deceptive conduct” in the catch-all provision might consult dictionaries to determine the ordinary meaning of (and thus likely intent behind) the phrase. The Romeo court did neither of these things. It simply declared, with no analysis, that seller omissions are incapable of deceiving consumers absent an affirmative legal duty to speak.

Today’s Majority affirms Romeo’s clumsy interpretation of the UTPCPL, concluding that a seller’s omission cannot constitute deceptive conduct under the law’s catch-all unless the seller had some affirmative legal duty to disclose the withheld fact. Because 15 15 U.S.C. § 45(a)(1) (“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”); compare 73 P.S. § 201-3 (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce as defined by . . . this act and regulations promulgated under . . . this act are hereby declared unlawful.”); see Creamer v. Monumental Props., Inc., 329 A.2d 812, 818 n.15 (Pa. 1974) (“[S]everal of the appellees concede that the genesis of the [UTPCPL] lies in the FTC and Lanham Acts.”).

16 Monumental Props., 329 A.2d at 818 (“[W]e may look to the decisions under [the FTCA] for guidance and interpretation [of the UTPCPL].”); see, e.g., Tomasella v. Nestle USA, Inc., 364 F. Supp. 3d 26, 34 (D. Mass. 2019) (interpreting the Massachusetts consumer protection law consistently with the FTC’s interpretation of similar language in the FTCA).

[J-4-2025] [MO: Brobson, J.] - 5 the Romeo court offered no legal analysis for its holding, the Majority tries its best to backfill some logic to support it now. But there is no plausible textual basis for the Romeo rule. “Deceptive conduct,” as that phrase is used in the UTPCPL, refers to “conduct that has the capacity to deceive.”17 Both affirmative acts and negative omissions have the capacity to deceive, as the Majority admits.18 This means that, when the General Assembly amended the catch-all in 1996 to prohibit deceptive conduct in addition to fraudulent conduct, it necessarily imposed upon sellers a duty to speak whenever failure to do so would be “deceptive.”

The Majority takes an astonishingly narrow view of deceptive omissions, saying “logic dictates” that a seller’s silence can deceive only in the rare instance when the seller is under some affirmative legal duty to disclose material information.19 That blanket presupposition is incorrect. A seller’s omission has the capacity to deceive regardless of whether some other statute or legal doctrine imposes an affirmative disclosure obligation on the seller. As the FTC explained in International Harvester Co.,20 most omissions in the marketplace occur when “the seller has simply said nothing, in circumstances that do not give any particular meaning to [the] silence.”21 Such “pure omissions” are not deceptive within the meaning of the FTCA, even though they “may lead to erroneous

17 Gregg, 245 A.3d at 648.

18 Majority Opinion at 13 (“[C]onduct that has the capacity to deceive can encompass omissions.”).

19 Majority Opinion at 14 (“Logic dictates that the only way a buyer could interpret a vendor’s silence in a misleading way is if: (1) the vendor had a duty to disclose information to the buyer; and (2) the vendor’s silence was, in essence, a representation that he had no information that needed to be disclosed.”); id. (“[A] vendor’s silence, absent a [legal] duty to speak is meaningless and incapable of deception.”).

20 In re Int’l Harvester Co., 104 F.T.C. 949 (1984).

21 Id. at 1059.

[J-4-2025] [MO: Brobson, J.] - 6 consumer beliefs if [the] consumer had a false, pre-existing conception which the seller failed to correct.”22 But, while pure omissions are not considered deceptive under the FTCA, the FTC has identified certain circumstances in which seller omissions can be deceptive, even in the absence of a legal duty to disclose: Actionable deception theory is not limited to false or misleading statements.

Under two general circumstances it can also reach omissions. First, it can be deceptive to tell only half the truth, and to omit the rest. This may occur where a seller fails to disclose qualifying information necessary to prevent one of his affirmative statements from creating a misleading impression. **** It can also be deceptive for a seller to simply remain silent, if he does so under circumstances that constitute an implied but false representation.

Such implied representations may take any of several forms. They may arise from the physical appearance of the product, or from the circumstances of a specific transaction, or they may be based on ordinary consumer expectations as to the irreducible minimum performance standards of a particular class of good.23

Halpern argues that Ricoh’s silence in this case was deceptive under the FTC’s “irreducible minimum performance” theory. He claims that Ricoh’s silence created the deceptive impression that the camera he was purchasing met the ordinary consumer’s minimum expectations for a camera. To illustrate this minimum-expectations theory of 22 Id. The FTC in International Harvester opined that classifying pure omissions as deceptive under the FTCA would risk expanding the concept of deceptiveness “virtually beyond limits.” Id. This is so, the FTC reasoned, because “[i]ndividual consumers may have erroneous preconceptions about issues as diverse as the entire range of human error, and it would be both impractical and very costly to require [sellers to provide] corrective information on all such points.” Id. 23 Id. at 1057-58 (footnotes omitted). Expanding upon the irreducible-minimum theory of deception, the FTC has explained that “[o]ffering a product for sale implies that the product is ‘reasonably fit for its intended uses,’ and that it is ‘free of gross safety hazards.’ If the product does not meet ordinary consumer expectations of minimum performance, or if the product is not reasonably fit for its intended uses, the seller must disclose that” fact, because failure to do so would be deceptive. Statement of Acting Chairman Maureen K. Ohlhausen In the Matter of Lenovo, Inc., Trade Reg. Rep. 17728 (Sept. 5, 2017).

[J-4-2025] [MO: Brobson, J.] - 7 deceptive conduct, Halpern gives the example of a seller who fails to mention that a car being sold cannot accelerate faster than thirty-five miles per hour. Withholding this information would be deceptive, Halpern argues, because the ordinary consumer reasonably would expect that all cars being sold can travel at highway speeds. “On the other hand, if a vendor does not disclose an annoyingly loud seatbelt alarm, that would not be deceptive, as it would still meet ordinary expectations of minimum performance.”24 I agree with Halpern and the FTC that the plain meaning of “deceptive conduct” necessarily encompasses a seller’s failure to disclose that the product being sold is not what it purports to be and will not meet the ordinary consumer’s bare minimum performance expectation for the class of product.25 To illustrate this concept, consider a merchant who remains silent while selling an item that plainly appears to be a flashlight but which contains no electronics and does not illuminate. Such a seller, by exploiting the near-universal expectations of his customers in order to mislead them, unquestionably engages in conduct that “has the capacity or tendency to deceive.”26 The fact that the seller never uttered the words “this is a flashlight” is of no consequence. Deception is deception. Selling a hollow metal tube designed to look like a flashlight is conduct that

24 Brief for Halpern at 11; accord Statement of Acting Chairman Ohlhausen, supra note 23, at 17728 (explaining that “[m]ere annoyances that leave the product reasonably fit for its intended use” cannot form the basis of a deceptive omission claim).

25 While not at issue in this case, I also agree with the FTC that a partial omission, which occurs when the seller tells only half of the truth and omits the rest, could also constitute “deceptive conduct” under the catch-all.

26 Shapiro v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1023 (Pa. 2018) (explaining that “[a]n act or a practice is deceptive or unfair if it has the capacity or tendency to deceive”); see FTC Statement of Basis and Purpose of Trade Regulation Rule, 29 Fed.Reg. 8325, 8352 (July 1964) (“Section 5 forbids sellers to exploit the normal expectations of consumers in order to deceive just as it forbids sellers to create false expectations by affirmative acts.”).

[J-4-2025] [MO: Brobson, J.] - 8 has the capacity to deceive regardless of whether or not there exists a Flashlight Seller Disclosure Law of the sort that the Majority would require.

The logic underlying the FTC’s deceptive omissions framework is sound. A statutory prohibition on deceptive conduct does not merely prevent sellers from deceiving affirmatively; it also forbids them from deceiving by omission “under circumstances that constitute an implied but false representation.”27 Such implied representations can take different forms. To give the obvious example, it is well-established that sellers offering goods for sale impliedly represent to consumers that those goods are reasonably fit for their obvious intended uses.28 A seller who fails to disclose that his product cannot perform as would be expected based upon the product’s appearance engages in silent “deceptive conduct” under any reasonable understanding of deception.29 Notwithstanding this straightforward understanding of deception, the 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.30 The Majority’s rule is at odds not only with the UTPCPL’s text, but also with life and logic themselves.

27 In re Int’l Harvester Co., 104 F.T.C. at 1058.

28 Id. (“One generalization that emerges from these cases is that by the very act of offering goods for sale the seller impliedly represents that they are reasonably fit for their intended uses.”).

29 Conduct, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “conduct” to mean “[p]ersonal behavior, whether by action or inaction, verbal or nonverbal”); Golden Gate Nat’l Senior Care, 194 A.3d at 1023 (explaining that conduct is deceptive under the UTPCPL if it has “the capacity or tendency to deceive”); id. (“[I]t need only be shown that the acts and practices are capable of being interpreted in a misleading way.”); accord Commonwealth v. Chesapeake Energy Corp., 247 A.3d 934, 936 (Pa. 2021) (“As a remedial statute, the UTPCPL is to be liberally construed to effectuate its objective of protecting the consumers of this Commonwealth from fraud and unfair or deceptive business practices.”).

30 Majority Opinion at 14 (“[A] vendor’s silence, absent a duty to speak, is meaningless and incapable of deception.”).

[J-4-2025] [MO: Brobson, J.] - 9 Romeo’s incompatibility with the statutory text of the catch-all is perhaps not all that surprising. As noted, the catch-all was not even at issue in Romeo, and the court there did not purport to interpret the phrase “deceptive conduct” within the meaning of that provision. Moreover, Romeo was decided in an era when the Superior Court was actively disregarding the plain language of the UTPCPL by continuing to require proof of fraud under the catch-all even after the General Assembly’s 1996 broadening of the provision. Romeo can only be understood as an artifact of that benighted period.31 While I concede that the Romeo court’s precise rationale is unknowable given its sparse analysis, I tend to agree with Halpern that Romeo “likely has a fraud lineage.”32 Although the Majority claims that today’s decision is based upon the plain language of the UTPCPL, the Majority does not explain the basis for its apparent belief that no “deceptive conduct” occurs when a seller fails to disclose that the product he is selling is not what it purports to be on its face. The Majority engages only perfunctorily with the FTC’s irreducible minimum performance theory. The Majority simply claims that Halpern’s camera met or exceeded the ordinary consumer’s minimum expectations for a camera.33 That’s not the question. Whether Halpern’s specific claim would succeed or

31 When seller disclosure of known defects is legally required, and the seller does not disclose any such defects, the non-disclosure essentially conveys to the buyer that there are no defects. The failure to disclose a known defect when disclosure is legally required is therefore tantamount to fraud. Romeo, in other words, fits neatly within the flawed Superior Court jurisprudence of the time.

32 Brief for Halpern at 9 (speculating that Romeo “likely has a fraud lineage, as it falls within the time period between 1996 and 2012 when the Superior Court was disregarding the [1996] catchall amendment”).

33 Majority Opinion at 20 (“[I]t cannot be said that [Halpern’s] camera failed an ‘irreducible minimum performance standard’ when it performed perfectly beyond the period for asserting any implied (or express) warranty claims.” (quoting Ricoh’s Brief at 43)). The Majority opines similarly regarding the FTC’s “half-truths” theory of deceptive omissions, stating that “it is undisputed that Ricoh did not make any half statement that would render any omission misleading.” Id. (quoting Ricoh’s Brief at 43).

[J-4-2025] [MO: Brobson, J.] - 10 fail on the merits under the FTC’s irreducible minimum theory is not relevant. The only question for us is whether, as a matter of statutory interpretation, the UTPCPL’s catch-all ban on “deceptive conduct” encompasses deceptive omissions made by a seller who is under no affirmative legal obligation (outside of the UTPCPL) to disclose the truth. If it is even theoretically possible for sellers to deceive customers by omission in the absence of a legal duty, then Romeo must be overturned.

In affirming Romeo, the Majority necessarily rejects the irreducible minimum performance theory of deceptive omissions. The Majority then attempts to defend that holding by suggesting that Halpern’s specific claim would fail under the irreducible minimum approach. This analysis does not hold water. Because our interpretation of the catch-all will bind all future litigants, we cannot use the perceived merits deficiencies in any one case to justify a flawed reading of the statute. Two things can be true at the same time. It is entirely possible that “deceptive conduct” under the catch-all encompasses deceptive omissions under an irreducible minimum theory and that Halpern, in this case, does not have a meritorious claim. We should not foreclose the possibility of a specific theory of deception simply because we believe a particular litigant before us has invoked the theory erroneously.

The Majority offers three primary excuses for departing from the plain language of the UTPCPL, none of which are convincing. First, the Majority claims that this Court “essentially” affirmed Romeo’s holding in Milliken v. Jacono,34 which we did not do. The Milliken Court did not consider whether an omission can constitute “deceptive conduct” under the UTPCPL absent an affirmative disclosure duty. The Milliken Court treated a duty to speak under the RESDL as a prerequisite because that happened to be the

34 103 A.3d 806 (Pa. 2014).

[J-4-2025] [MO: Brobson, J.] - 11 plaintiff’s legal theory in that RESDL case.35 Nothing in Milliken holds that deceptive omissions cannot constitute “deceptive conduct” absent an affirmative legal duty.36 Next, the Majority claims that its interpretation of the catch-all “fits the overall scheme of” the UTPCPL and “comports with the context in which it appears.”37 (It, of course, does not comport with the plain language of the provision, which—I think we can agree—is more important.) Specifically, the Majority notes that none of the twenty specific practices that precede the catch-all in the UTPCPL “involve silence unaccompanied by some affirmative statement or unaccompanied by direct interaction with consumers.”38 The Majority’s theory, I suppose, is that the catch-all should be interpreted no more broadly—or at least not too much more broadly—than the list of prohibited practices that comes before it. But the entire point of the UTPCPL’s catch-all is to proscribe a range of conduct beyond what is explicitly listed. Otherwise, there would be nothing for the catch-all to catch. Furthermore, the “deceptive conduct” language was purposefully added to the UTPCPL in 1996 to expand the catch-all’s reach beyond that of the pre-existing statute. It is illogical to suggest that we now must interpret “deceptive conduct” narrowly because of “the overall scheme” of the balance of the statute, which the General Assembly in the 1990s necessarily deemed insufficient on its own.

Lastly, the Majority claims that enforcing the UTPCPL’s prohibition on deceptive conduct as written could provide an “end around” warranty law or might even somehow 35 Id. at 809 (“Each of appellant’s claims relies upon the existence of a material defect in the property and upon the failure to reveal such defect. Thus, if the murder/ suicide cannot be considered a material defect, or if there was no legal obligation to reveal this alleged defect, there can be no liability for appellant’s claims.”).

36 In re L.J., 79 A.3d 1073, 1081 (Pa. 2013) (noting that stare decisis “only applies to issues actually raised, argued[,] and adjudicated”).

37 Majority Opinion at 15, 17.

38 Id. at 17 (quoting Ricoh’s Brief at 32).

[J-4-2025] [MO: Brobson, J.] - 12 “turn warranty law on its head.”39 Not so. This case has nothing to do with warranties.

The UTPCPL is a wide-ranging consumer protection scheme that serves an important purpose beyond mere vindication of consumers’ warranty claims. The UTPCPL was enacted “to benefit the public at large by eradicating” from the consumer marketplace all “fraudulent and deceptive business practices.”40 Indeed, the UTPCPL does not just give purchasers of goods and services a private cause of action against sellers who engage in unfair or deceptive practices, it also allows the Commonwealth (either the Attorney General or a local district attorney) to bring an enforcement action to enjoin a seller from engaging in any deceptive practice.41 We must give full effect to this comprehensive consumer-protection scheme. It would be an error to insist upon a narrow construction of the UTPCPL’s catch-all simply because customers who are deceived by sellers might have other common law remedies available to them.42 In response to my analysis, the Majority does not defend any of the three rationales that it has offered for today’s decision. The Majority instead casts the FTC’s approach to deceptive omissions as some sort of “expansive principle” that will make all sellers of

39 Id. (“Halpern’s position turns warranty law on its head.”); id. at 18 (“Because the UTPCPL in no way provides an ‘end around’ of warranty law, we refuse to adopt Halpern’s position.”).

40 Monumental Props, 329 A.2d at 815 (explaining that the UTPCPL was intended “to benefit the public at large by eradicating, among other things, ‘unfair or deceptive’ business practices” (footnote omitted)); id. at 815-16 (“Just as earlier legislation was designed to equalize the position of employer and employee and the position of insurer and insured, this Law attempts to place on more equal terms seller and consumer. These remedial statutes are all predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace.” (footnotes omitted)).

41 73 P.S. § 201-4.

42 Furthermore, the FTCA already prohibits deceptive omissions under an irreducible minimum performance theory. So, if adopting Halpern’s argument would “turn warranty law on its head,” then warranty law already is upside down in the federal courts.

[J-4-2025] [MO: Brobson, J.] - 13 “defective” products liable under the UTPCPL.43 The Majority misunderstands the FTC’s framework. We are not talking about merely “defective” products here. We are talking about flashlights that do not light and automobiles that contain lawnmower engines.

Under the FTC’s approach, seller omissions almost never are deceptive.44 An omission becomes deceptive only when a seller remains silent “under circumstances that constitute an implied but false representation.”45 Such implied representations occur only rarely, like when a product is not what it physically appears to be or when a product falls below the bare minimum performance that any reasonable consumer would expect from the type of good. This is not an “expansive” principle.46 Because the International Harvester framework is nowhere near as broad as the Majority makes it out to be, my only guess is that the Majority is surmising from my dissent an unstated belief that Halpern’s defective-camera claim would succeed under the UTPCPL. This is a mistake. I express no opinion regarding whether Halpern sufficiently

43 Majority Opinion at 21 (“We are of the view that the General Assembly did not intend ‘deceptive conduct’ to encompass the expansive principle that, if a vendor merely sells a defective product, the vendor was ‘deceptive’ as a matter of law under the UTPCPL’s catch-all provision.”).

44 Int’l Harvester Co., 104 F.T.C. at 1059 (distinguishing “pure omissions” from deceptive omissions).

45 Id. 46 See Tomasella, 364 F.Supp.3d at 35 (finding that a plaintiff failed to plead a deceptive omission claim under the FTCA where the complaint alleged that Nestlé did not disclose the use of child slave labor in its chocolate supply chain); id. (“Nestlé’s act of offering chocolate for sale implies that the product is fit for human consumption, see International Harvester, 104 F.T.C. at 1058-59, but does not on its own give rise to any misleading impression about how Nestlé or its suppliers treat their workers.”). The Majority’s theory that adopting International Harvester would allow “all product defect cases [to] be pursued under the UTPCPL” (Majority Opinion at 21) can be disproven just by looking at the holding in International Harvester, where the FTC declined to find that a company which sold defective tractors engaged in deception. International Harvester, F.T.C. at 1063.

[J-4-2025] [MO: Brobson, J.] - 14 pleaded a claim under the catch-all. My focus instead is on the underlying statutory interpretation question. My position, which I think I have made quite clear, is that: (1) the UTPCPL’s text does not support Romeo’s imagined restriction on the kinds of omissions that can be deceptive; (2) the FTC’s framework disproves Romeo’s core assumption that seller omissions cannot be deceptive absent a duty to disclose; and (3) the Majority is using the perceived weaknesses of Halpern’s specific claim to give a narrow, anti- consumer interpretation to the entire consumer protection law.

The Majority’s response to my analysis speaks mostly to an imagined, bogeyman rule that makes all sellers of defective products liable under the UTPCPL. The Majority does eventually address the genuine irreducible-minimum performance theory, albeit in the penultimate paragraph of today’s decision. There, the Majority offers only a single sentence before veering to its preferred subject: Halpern’s digital camera.47 In the sole 47 At several pivotal points in today’s decision, just when it seems that the Majority will be forced to confront the fact that omissions can be deceptive without a seller disclosure duty in place, the Majority shifts focus and diverts the reader’s attention to the specifics of Halpern’s claim. See Majority Opinion at 17 (“[I]t is undisputed that [Halpern’s camera] was covered by a one-year express warranty and that the camera functioned appropriately while under that warranty.”); id. at 20 (“Ricoh did not make any half statement that would render any omission misleading.”); id. (“[I]t cannot be said that [Halpern’s] camera failed an ‘irreducible minimum performance standard’ when it performed perfectly beyond the period for asserting any implied (or express) warranty claims.”); id. 24 (“That is not what Halpern alleges in this case.”). The Majority baldly declares that “a vendor’s silence, absent a duty to speak, is meaningless and incapable of deception.” Id. at 14. I have attempted to examine that claim, and have detailed circumstances in which the logic does not hold true. The Majority shrugs off my discussion of hypotheticals beyond the present appeal as some sort of tangential “interest” of mine. Id. at 22 (stating “[l]astly, we address the dissent’s interest in flashlights,” as if I have wandered afield). I am aware, of course, that Halpern did not purchase a digital camera “that turned out to be a pencil sharpener.” Id. I grant that this is funny, but my point has nothing to do with Halpern. My point is that an omission could be deceptive even in the absence of a seller disclosure duty, which proves that Romeo is wrong.

[J-4-2025] [MO: Brobson, J.] - 15 on-topic sentence, the Majority asserts that its holding will “not foreclose a potential [UTPCPL] claim against” a seller who silently misleads “a consumer into believing that a product is something that it is not.”48 Of course it will. The Majority’s rule—mandated by fixed “logic,” we are told—is that a seller’s omission literally cannot deceive a customer unless the seller has an affirmative legal duty to speak.49 This means that sellers of goods and services will be free to mislead by silently exploiting customers’ ordinary expectations in most circumstances (so long as there is no legal duty to disclose). The Majority cannot have it both ways. It can either embrace Romeo’s rule that deception by omission is impossible absent a seller duty to speak, or it can admit that selling a product that is not what it appears to be is deceptive even absent an affirmative disclosure duty. It is not at all clear which the Majority believes. Compare Majority Opinion at 14 (“[A] vendor’s silence, absent a duty to speak, is meaningless and incapable of deception.”), with id. at (“If a seller misleads, by commission or omission, a consumer into believing that a product is something that it is not, our analysis does not foreclose a potential claim against

48 Id. at 22 (“If a seller misleads, by commission or omission, a consumer into believing that a product is something that it is not, our analysis does not foreclose a potential claim against the seller for that alleged deception.”).

49 Id. at 14 (“Logic dictates that the only way a buyer could interpret a vendor’s silence in a misleading way is if: (1) the vendor had a duty to disclose information to the buyer; and (2) the vendor’s silence was, in essence, a representation that he had no information that needed to be disclosed.” (emphasis added)); id. (“[A] vendor’s silence, absent a duty to speak, is meaningless and incapable of deception.”); id. at 21 (“[R]equiring a buyer that is pursuing an omission-based claim under the catch-all provision to allege and eventually prove that a vendor had an obligation to disclose something about the product at issue is consistent with the language of the catch-all provision and avoids unreasonably expanding the statute beyond its boundaries.”); id. at 22-23 (“Although the Superior Court’s UTPCPL analysis in Romeo was undoubtedly sparse, we nevertheless hold that Romeo reached the correct result.”).

[J-4-2025] [MO: Brobson, J.] - 16 the seller for that alleged deception.”). It is clear only that the Majority knows that Halpern should lose.50 The UTPCPL’s prohibition on “deceptive conduct” is phrased broadly enough to encompass deceptive omissions. While nearly all seller omissions in the marketplace are “pure omissions,” which do not give rise to deception, I agree with the FTC that there are a small number of instances—such as in the irreducible minimum performance context— where a seller’s omission can (and in fact is intended to) deceive the ordinary, reasonable consumer. We therefore must reject Romeo’s holding, or alleged holding, that deceptive omission claims under the catch-all require that the seller must have some affirmative legal duty of disclosure.51 I respectfully dissent.

Justices Donohue and Mundy join this dissenting opinion.

50 The Majority’s only other response to my analysis is to suggest that my position risks “expanding the statute beyond its boundaries.” Majority Opinion at 21. I am unaware of the “boundaries” that the Majority is talking about. The UTPCPL’s “boundaries” are those expressed in the statutory text, 1 Pa.C.S. § 1921(b). The UTPCPL’s text does not limit the types of omissions that can be considered deceptive.

The statute broadly prohibits any act or omission that has the capacity or tendency to deceive, without regard to whether an omission runs afoul of some affirmative legal obligation to disclose material information. The “boundaries” that the Majority is imposing are not in the UTPCPL. They are erected today by this Court, and are accordingly an impermissible judicial amendment of the statute.

51 Credit is owed to the panel below, which correctly recognized that Romeo is a flawed and unsupported decision. Halpern, 299 A.3d at 1029 (“At best, this Court’s [UTPCPL] analysis in [Romeo] is sparse. The panel did not review the statute’s language, its legislative history, or similarly worded statutes from our Sister States or the Federal Government. Moreover, the Romeo court offered no explanation as to how a common- law duty to disclose (or lack thereof) could override the statutory mandates of the [UTPCPL].” (citations omitted)). The court below nevertheless acknowledged that it was bound by Superior Court precedent and applied Romeo out of obligation. Today’s Majority can make no similar excuse.

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