Jackowski v. Guardian Protection Services Inc.

61 Pa. D. & C.4th 83, 2001 Pa. Dist. & Cnty. Dec. LEXIS 162
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 29, 2001
Docketno. 233
StatusPublished

This text of 61 Pa. D. & C.4th 83 (Jackowski v. Guardian Protection Services Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackowski v. Guardian Protection Services Inc., 61 Pa. D. & C.4th 83, 2001 Pa. Dist. & Cnty. Dec. LEXIS 162 (Pa. Super. Ct. 2001).

Opinion

LEVIN, S.J.,

INTRODUCTION

Patricia A. Jackowski and James Gaither, plaintiffs, bring claims for monetary damages on behalf of a proposed class of similarly situated individuals against Guardian Protection Services Inc., defendant, arising out of defendant’s alleged misrepresentation of material facts to plaintiffs and members of the class in connection with the marketing and sale of “free” home burglar alarm systems. Plaintiffs assert that defendant’s use of the word “free” amounted to a violation of the Consumer Protection Law. Specifically, plaintiffs argue that defendant’s use of the term “free” in its advertisements had a “tendency to deceive a substantial segment of the audience and was likely to have made a difference in the consumer’s purchasing decisions.” (Plaintiffs’ reply brief sur motion for class action at p. 3.)

Plaintiffs’ counsel offers two individuals as class representatives. The first class representative, Patricia Jackowski, completed defendant’s contest entry form at the Franklin Mills Mall in Philadelphia. Soon thereafter she received a telephone call at her home advising her that [85]*85she “won” the “free” home security alarm system, and that a representative of defendant’s corporation would soon visit her home to install the security system. A representative from defendant’s company came to Ms. Jackowski’s home and installed the home security system. When the installation was completed, the installer asked Ms. Jackowski to sign a contract, which she initialed in two places and signed. She did not read the contract and therefore was unaware of the agreement into which she had just entered. Not until Ms. Jackowski received her first monthly monitoring bill about two weeks after installation did she realize that she was responsible for paying a monthly monitoring fee.

Having executed the monitoring agreement, Ms. Jackowski made one monthly payment of $27.95. After making the first payment, however, Ms. Jackowski did not make any more of the monthly payments. Thereafter, defendant corporation sued Ms. Jackowski before a district justice in Allegheny County. However, due to the intervention of her present legal counsel, defendant withdrew the action. Nevertheless, defendant sued Ms. Jackowski in the Municipal Court of Philadelphia, but withdrew the action upon the intervention of counsel.

The second class representative, James Gaither, completed one of defendant’s “entry” forms at the Franklin Mills Mall in early March 1996. Mr. Gaither was soon contacted by defendant and told that he had “won” the “contest” for a “free” installed home security system. Then, on March 27, 1996, defendant’s installer visited Mr. Gaither’s home when Mr. Gaither was not present. Mr. Gaither’s housemate, Sylenthia English, was home when the installer from defendant’s company arrived. [86]*86After completing installation of the system the installer asked Ms. English to sign the monitoring agreement, which she did by handwriting her name and Mr. Gaither’s name at the top of the agreement, by initialing in two places, and by signing at the bottom of the contract.

Shortly thereafter, Mr. Gaither and Ms. English received a monthly monitoring bill from defendant. As Mr. Gaither had not personally signed the monthly monitoring agreement, he only became aware of his new obligation to defendant upon his receipt of the first monthly monitoring bill. Mr. Gaither made approximately five monthly payments of $27.95 to defendant, but ceased making any further payments. As a result, defendant sued both Mr. Gaither and Ms. English in a district court in Allegheny County. The court entered a default judgment in the amount of $2,213.80, which defendant later transferred to the Municipal Court of Philadelphia.

Plaintiffs claim that defendant has violated the Consumer Protection Law, 73 P. S. §211-2(4)(ix), relating to false advertising. Specifically, plaintiffs claim that defendant’s offer of a “free” alarm system was a material misrepresentation, “and was likely to have made a difference in the consumer’s purchasing decisions.” (Plaintiffs’ revised proposed findings of fact and conclusions of law, ¶4.)1 Plaintiffs assert that the defendant’s “contest” was “merely a sham for the purpose of obtaining sales leads, because defendant intended that every [87]*87person who entered the ‘contest’ would be advised that they had won the ‘contest.’ ” (Plaintiffs’ motion for class certification, ¶6a.)2 Furthermore, plaintiffs assert that all the forms related to the offering of a “free” alarm system were unlawful because they failed to “adequately advise potential customers that the alarm system was not ‘free,’ but required] a monitoring contract in order to obtain said alarm system.” (Plaintiffs’ motion for class certification, ¶6^)

Plaintiffs assert that defendant has violated three specific sections of the CPL: (1) 73 P.S. §201-7 (notice of cancellation), (2) 73 P.S. §211-2(4)(ix), and (3) 73 P.S. §201-2(4)(xvii) and as amended section 201-2(4)(xxi) (fraudulent and deceptive conduct: catch all). (Plaintiffs’ seventh amended complaint.) Plaintiffs further argue that, by violating the CPL, defendant has thereby breached the terms of the assurance of voluntary compliance entered into between defendant and the Pennsylvania Attorney General.

The assurance is an agreement entered into on November 10, 1994, between defendant and the attorney general in which defendant agrees, inter alia, to “comply with the Pennsylvania Consumer Protection Law and pursuant thereto, the Federal Trade Commission Guidelines on the use of the term ‘free’ and related issues.” (See assurance of voluntary compliance, plaintiffs’ seventh amended class action complaint, exhibit “F” at p. [88]*882.) Furthermore, plaintiffs argue that defendant has breached the FTC regulations relating to the term “free.” The FTC regulations state in pertinent part, “disclosure of the terms of the offer set forth in a footnote of an advertisement to which reference is made by an asterisk or other symbol placed next to the offer, is not regarded as making disclosure at the outset.” 16 C.F.R. §251.1(C).3

Plaintiffs seek various equitable and legal damages for these alleged violations of the CPL. First, plaintiffs seek to have all Allegheny and Philadelphia judgments “stricken and the actions terminated and defendant be enjoined from continuing the aforesaid deceptive practices.” (Plaintiffs’ motion for class certification, |6f.) Plaintiffs further seek damages pursuant to 73 P.S. §201-9.2, which they claim entitles them to actual damages or $100 per violation of the CPL, whichever is greater, and to any additional relief that is necessary and proper. (Plaintiffs’ post-hearing memorandum, pp. 1-2). Third, plaintiffs seek restitution of any monies they have paid in monthly monitoring fees; and fourth, plaintiffs seek rescission of the contract. (Plaintiffs’ reply brief sur motion for class action at p. 8.)

The pleadings in this matter are closed, and plaintiffs’ motion for class certification was heard on November 28, 2000. Accordingly, this court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

(1) Plaintiffs are citizens of the Commonwealth of Pennsylvania who, on or after August 30,1994, entered [89]

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Bluebook (online)
61 Pa. D. & C.4th 83, 2001 Pa. Dist. & Cnty. Dec. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackowski-v-guardian-protection-services-inc-pactcomplphilad-2001.