NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2545
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JOBE DANGANAN, ON BEHALF OF HIMSELF AND
ALL OTHERS SIMILARLY SITUATED,
Appellant
v.
GUARDIAN PROTECTION SERVICES
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-15-cv-01495)
District Judge: Honorable Cynthia R. Eddy
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Argued: February 3, 2020
Before: SHWARTZ, SCIRICA, and RENDELL, Circuit Judges
(Opinion Filed: May 21, 2020)
Michael D. Donovan [ARGUED]
Donovan Litigation Group
1855 Swedesford Road
Malvern, PA 19355
James M. Pietz
Suite 1616
429 Forbes Avenue
Pittsburgh, PA 15219
Counsel for Appellant
Michael A. Iannucci
Laura E. Vendzules [ARGUED]
Blank Rome
130 North 18th Street
One Logan Square
Philadelphia, PA 19103
Counsel for Appellee
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OPINION*
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SCIRICA, Circuit Judge
Plaintiff Jobe Danganan signed up for home-security services with Defendant
Guardian Protection Services—locking himself into a three-year commitment based on
the terms of the agreement. When he moved and sold his house, Guardian continued to
bill him. Danganan paid for four months of service after his move and then filed
consumer protection claims against Guardian, alleging fraudulent and deceptive trade
practices. The trial court dismissed for failure to state a claim. Because the clear terms of
the agreement authorized Guardian to continue to seek payment after Danganan moved
and did not constitute deceptive conduct on which Danganan could justifiably rely, we
will affirm.
I.
On April 23, 2013, Danganan and Guardian entered into an Authorized Dealer
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Sales and Monitoring Agreement that would provide Danganan home security services in
his Washington, D.C. home. In the Agreement, Danganan agreed to pay a “Monthly
Services Fee” of $44.95. Supp. App. 195. The Monthly Services Fee would be recurring
every month throughout the three-year initial term of the Agreement.1
The Agreement states that Danganan’s “obligations . . . continue even if [he]
sell[s] or leave[s] the Premises.” Supp. App. 198. (emphasis added). It only allows
Danganan to terminate the Agreement within three days of execution. Danganan was,
however, permitted to transfer the Agreement to “someone who purchases or rents [his]
Premises” if Guardian “approve[s] the transfer in writing.” Id.
In September 2014, Danganan moved from Washington, D.C. to San Francisco. In
November 2014, he sold his Washington, D.C. home. He then provided Guardian with
written and verbal notice of his desire to cancel his service. On November 17, 2014,
Guardian wrote a letter “confirm[ing] [Danganan’s] request that the 24-hour monitoring
of [his] security system be discontinued” and stating Guardian would “no longer respond
to any signals received from [Danganan’s] alarm system effective 11/18/14.” Supp. App.
1
The three-year term was typed into the Agreement as a “Special Condition[]” and was
separately initialed by both parties. Supp. App. 195. Though a preprinted section of the
Agreement stated that the initial term was five years, the “Special Condition[]” of three
years is controlling because it was added to the form contract, thereby representing the
parties’ true intent. See Flatley by Flatley v. Penman, 632 A.2d 1342, 1345 (Pa. Super.
Ct. 1993) (“When a contract contains either hand or typewritten terms which are in
conflict with the preprinted terms, the preprinted terms must always yield to the other
terms because the hand or typewritten term presumably evinces the deliberate expression
of the parties’ true intent.”). Regardless, as Danganan’s counsel admitted during oral
argument, whether the term is interpreted as three years or five years does not
meaningfully affect the analysis of Danganan’s claims.
3
47. The letter also stated—in bold—that “[t]his document serves only to provide
information regarding service provided and does not alter any of the terms or conditions
of the existing monitoring agreement in any way.” Id.
Guardian continued to bill Danganan after service had been discontinued, and
Danganan complained. On January 21, 2015, Guardian sent another letter “confirm[ing]
[Danganan’s] request that the 24-hour monitoring of [his] security system be
discontinued” and stating that Guardian would be stopping service. Supp. App. 51. In
bold, the letter informed Danganan that Guardian was “not intend[ing] to terminate [the]
existing agreement” and that “all terms and conditions, including [Danganan’s] financial
obligation under [the] monitoring agreement, continue to be in full force and effect.” Id.
(emphasis added). After service was discontinued, Danganan paid four months’ worth of
fees, until Guardian stopped billing.
On June 9, 2015, Danganan filed a class action complaint against Guardian in the
Philadelphia Court of Common Pleas. He brought claims under the Pennsylvania Unfair
Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1–201-9.2, and the
Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. § 2270.1, et seq. Guardian
removed the action to federal court in the Eastern District of Pennsylvania, and the case
was transferred to the Western District of Pennsylvania.
On June 13, 2019, the trial court granted a motion to dismiss, finding that
Danganan failed to allege that he justifiably relied on Guardian’s alleged deceptive
4
conduct and that Guardian’s alleged conduct caused a loss.2 Danganan now appeals.
II.3
Danganan raises two counts: one under the Pennsylvania Unfair Trade Practices
and Consumer Protection Law (“UTPCPL”) and one under the Pennsylvania Fair Credit
Extension Uniformity Act (“FCEUA”). He contends Guardian violated the UTPCPL by
engaging in fraudulent or deceptive conduct by requiring him to continue to pay for
services after he moved from, and sold, his home—and that such payment amounted to
an unlawful contractual penalty. He also contends Guardian violated the FCEUA by
attempting to collect money not owed under the Agreement because Guardian had
cancelled service. Both of Danganan’s claims ultimately fail because the Agreement
clearly states that Danganan’s financial obligations would continue after he moved or
sold his home, and therefore, Guardian did not act fraudulently or deceptively by
continuing to bill Danganan for payments he owed under the Agreement. Consequently,
Danganan did not justifiably rely on any deceptive conduct.4
2
Previously, on July 26, 2016, the trial court had dismissed the claims because it
determined that Danganan could not bring Pennsylvania consumer protection claims as a
non-resident. On appeal, we certified the question to the Pennsylvania Supreme Court,
which determined that Danganan could bring both claims as a non-resident—leading to a
reversal of the trial court. See Danganan v. Guardian Prot. Servs., 742 F. App’x 634, 637
(3d Cir. 2018); Danganan v. Guardian Prot. Servs., 179 A.3d 9, 17 (Pa. 2018).
3
The trial court had jurisdiction under 28 U.S.C. § 1332(d)(2). We have appellate
jurisdiction under 28 U.S.C. § 1291.
4
The trial court dismissed all claims on a 12(b)(6) motion to dismiss. Our review is
plenary. Ill. Nat’l Ins. Co. v. Wyndham Worldwide Operations, Inc., 653 F.3d 225, 230
(3d Cir. 2011). In reviewing whether Danganan stated a viable claim, we must accept as
true all plausible facts alleged in his complaint and draw all reasonable inferences in his
5
A.
Danganan’s claim under the UTPCPL fails because he does not allege he
justifiably relied on deceptive or fraudulent conduct by Guardian. The UTPCPL prohibits
unfair or deceptive trade practices and lists specific types of conduct that are inherently
deceptive. 73 P.S. § 201-3. Danganan, however, brings his UTPCPL claim under the
“catch-all” provision that generally prohibits “fraudulent or deceptive conduct which
creates a likelihood of confusion or of misunderstanding.” Id. § 201-2(4)(xxi). To state a
claim under the “catch-all” provision, a private plaintiff must plead justifiable reliance on
the alleged deceptive conduct. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 201–02 (Pa.
2007); see Hunt v. U.S. Tobacco Co., 538 F.3d 217, 221 (3d Cir. 2008). Justifiable
reliance requires a plaintiff to “show that he justifiably bought the product in the first
place (or engaged in some other detrimental activity) because of the [fraudulent or
deceptive conduct].” Hunt, 538 F.3d at 222 n.4 (citing Weinberg v. Sun Co., Inc., 777
A.2d 442, 446 (Pa. 2001)).
Danganan does not allege justifiable reliance on deceptive conduct because the
Agreement’s terms are clear. He does not allege he relied on any statement by Guardian
that he could move and sell his home and not continue to pay. There is no “presumption
of reliance,” see Hunt, 538 F.3d at 227, and Danganan has not pleaded that he relied on
any conduct by Guardian other than the terms of the Agreement itself, which stated that
favor. See, e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 n.2 (3d Cir. 2016).
We may rely on “exhibits attached to the complaint and matters of public record.” Bruni
v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir. 2016) (citation omitted).
6
“[Danganan’s] obligations . . . continue even if [Danganan] sell[s] or leave[s] the
Premises.” Supp. App. 198.
The clear terms are controlling. See Ins. Adjustment Bureau, Inc. v. Allstate Ins.
Co., 905 A.2d 462, 468–69 (Pa. 2006) (“When the terms of a contract are clear and
unambiguous, the intent of the parties is to be ascertained from the document itself.”).
Danganan moved from his home in September 2014 and sold his home in November
2014. He then tried to cancel the Agreement and stop his obligations—an action
prohibited by the clear terms. Danganan has not alleged reliance on any “fraudulent or
deceptive conduct.” See 73 P.S. § 201-2(4)(xxi). He has only alleged that Guardian
enforced the Agreement as written.
Danganan also argues that the post-contractual conduct by Guardian rises to a
UTPCPL violation because Guardian misrepresented the amount owed. But, when
Danganan attempted to cancel the Agreement, Guardian wrote back agreeing to
“discontinue[]” service and writing—in bold—that its response “does not alter any of the
terms or conditions of the existing monitoring agreement in any way.” Supp. App. 47. In
response to another attempt to cancel service by Danganan, Guardian wrote back that
service would be “discontinued” and—again, in bold—that the document was “not
intended to terminate [the] existing agreement, all terms and conditions, including
[Danganan’s] financial obligation under [the] monitoring agreement, continue to be in
full force and effect.” Supp. App. 51 (emphasis added). With each communication,
Guardian made clear that the terms of the Agreement continued to apply, which meant
that Danganan’s obligations continued after he moved and sold his home. Therefore,
7
Danganan cannot claim that he justifiably relied on any deceptive or fraudulent conduct
by Guardian that indicated he was absolved from making payments.5
Danganan further contends that an unlawful contractual penalty—even if based on
clear contractual terms—is itself a violation of the UTPCPL. Danganan only cites one
case for this proposition, Benson v. Budget Rent A Car Sys. Inc., No. 08-CV-4512, 2011
WL 4528334 (E.D. Pa. Sept. 29, 2011), which did not involve UTPCPL claims. In
Benson, the district court allowed a FCEUA claim to go forward based on a liquidated
damages clause, in part, because the formula was not stated in the contract—i.e. was not
a clear term. See 2011 WL 4528334, at *6. Here, the amount Danganan was required to
pay was spelled out as a clear term, making Benson inapposite.6
5
Danganan requests that we certify a question to the Pennsylvania Supreme Court,
arguing that Pennsylvania courts have not “set[] forth the justifiable reliance standard in
the context of post-contract performance.” Appellant’s Br. 49–50. Danganan is
attempting to create an exception to the justifiable reliance requirement under the
UTPCPL. The Pennsylvania Supreme Court, however, has “not recognized any
exceptions” to the justifiable reliance requirement and “has applied [the requirement] in a
variety of situations.” Hunt, 538 F.3d at 221. There is no legally significant difference
between pre- and post-contractual conduct related to the justifiable reliance requirement.
We decline to grant Danganan’s motion to certify his question.
6
Even if Danganan had pleaded justifiable reliance, he has not pleaded that a reliance on
Guardian’s alleged “fraudulent or deceptive conduct” caused an “ascertainable loss.” See
73 P.S. § 201-2(4)(xxi); id. § 201-9.2(a). Danganan claims that charging the full amounts
of the remaining Agreement after service has been discontinued operates as an unlawful
penalty. Assuming a claim for paying an unlawful contract penalty of the full contract
price could amount to a UTPCPL violation, Danganan’s claim here fails because he does
not allege that he actually paid that penalty. After Guardian discontinued service,
Danganan had at least 17 months remaining in the Agreement, but he only paid for four
months’ worth of service until Guardian stopped billing. The amount that he allegedly
lost due to deceptive conduct is a fraction of the amount he contends constitutes an
unlawful penalty. Thus, he failed to plead ascertainable loss based on an unlawful
penalty.
8
B.
Danganan’s FCEUA claim is based on the same arguments as his UTPCPL claim
and also fails due to the terms of the Agreement. The FCEUA prohibits creditors from
“us[ing] any false, deceptive or misleading representation or means” to collect any debt.
73 P.S. § 2270.4(b)(5). Danganan acknowledges that his claim under the FCEUA is
“derivative” of his UTPCPL claim. See Appellant Br. 5. In his FCEUA claim, he alleges
that Guardian has (1) “misrepresent[ed]” what Danganan owes; (2) “represented” that the
Agreement could not be terminated by the consumer after the first three business days;
(3) “represented” that Danganan was required to make payments after services had been
cancelled; and (4) continued to bill for services no longer provided. Supp. App. 26 ¶¶ 43–
45.
Danganan’s contentions all fail based on the terms of the Agreement. The only
representations Guardian has made are those that are in accord with the unambiguous
terms of the Agreement. Under the Agreement, Danganan continued to owe payment
after he moved. Therefore, Danganan has not alleged any “false, deceptive, or misleading
representations or means” that Guardian used to collect a debt.
Danganan contends that the FCEUA includes violations of the federal Fair Debt
Collection Practices Act (“FDCPA”), and that Guardian has violated the FCEUA by
violating the FDCPA. The FCEUA encompasses violations of the FDCPA. See 73 P.S. §
2270.4(a) (“It shall constitute an unfair or deceptive debt collection act or practice under
[the FCEUA] if a debt collector violates any of the provisions of the Fair Debt Collection
Practices Act.”). Under the FDCPA, any debt collected must be “expressly authorized by
9
the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1).7 Danganan
argues that Guardian is seeking to collect a payment that is not permitted by Pennsylvania
law. The FDCPA, however, states that a payment may be either expressly authorized by
an agreement or permitted by law. Here, the amount owed by Danganan was expressly
authorized by the Agreement—the monthly amount was explicit, and the requirement that
Danganan keep paying after he moved and sold his home was clear. Therefore, whether
or not Pennsylvania law permitted the payment is irrelevant. Neither the Agreement nor
Guardian’s subsequent actions to collect the amount owed violate the FCEUA.8
III.
For the foregoing reasons, we will affirm the trial court’s grant of the motion to
dismiss.
7
This is also a requirement under the FCEUA itself; using the same language as the
FDCPA. See 73 P.S. § 2270.4(b)(6)(i) (including as a violation the “collection of any
amount, including any interest, fee, charge or expense incidental to the principal
obligation, unless such amount is expressly authorized by the agreement creating the debt
or permitted by law”).
8
Danganan’s argument relating to the FDCPA fails for two additional reasons. First,
Danganan raised this argument for the first time in his reply brief, making the argument
waived. See Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 204 n.29 (3d Cir.
1990). Second, a FDCPA violation is actionable under the FCEUA only when it is
committed by a “debt collector.” 73 P.S. § 2270.4(a). Guardian, however, was a
“creditor” under the FCEUA, not a debt collector. See id. § 2270.3 (defining a “creditor”
as a person “to whom a debt is owed or alleged to be owed”); id. (defining a “debt
collector,” in relevant part, as a person, other than a creditor, “acting on behalf of a
creditor, engaging or aiding directly or indirectly in collecting a debt owed or alleged to
be owed”); Glover v. F.D.I.C., 698 F.3d 139, 152 (3d Cir. 2012) (interpreting these
provisions); Supp. App. 25 ¶ 36 (Danganan’s complaint, alleging that Guardian is a
“creditor” under the FCEUA).
10