the st is whether the district court erred in dismissing plaintiffs claim that the continued collection of a forty five dollars monthly charge for a five year security monitoring contract constitutes an unlawful contractual penalty under pennsylvania  when the customer's moved out of the house and terminate the contract after a few months the nd is whether the customer's payment of over four months of the contract after the terminations of that monthly of that contract nearly two hundred dollars for you the charges in response to the company's done in letters properly pleads or quote unquote ascertainable loss under the pennsylvania statute let's go to the st issue about this continued collection as being a contractual penalty i cannot find a case where that concept has even been proffered the cases where about contractual penalty or cases where there's an enforcement action based upon a provision in a contract that sets forth that a damages or a you know a liquidated damages provision and you can say aha that's a that's a contractual penalty here you're saying that the continued collection of the amount due under the contract as provided for in the contract breach of contract claim and i think that's judge rendall's point is these cases that invoke the concept of contractual penalty all arise in the context of someone is alleging a breach of contract and the adverse party is saying you've got to take into account the damages they want is an unlawful contractual penalty and that's why i don't i understand where you're going with wes now i just don't see how it applies here we have no breach of contract and whether or not this is a penalty is a some party grease to pay in the end of an event of a breach which is fixed it's as a punishment the threat of which is designed to prevent the the breach how does that you know that's a contract action is just what the how does that fit here in both of those instances you are looking at the non breaching party bringing a breach of contract action against the breaching party its and the breaching party is contending that while you were attempting to collect a contract penalty from me and that's what exactly happened here because the debt collection activities here is the precursor to the breach of contract action and know my client did breach the contract according to guardian my client we client terminated early guarding contends that you may not terminate early if you do terminate early that's a breach and under par to a claim under the basin pennsylvania's consumer protection laws where there's no assertion of deception misunderstanding confusion i am having a difficult time seeing how this is a ca that act applies to any attempts to collect charges there are inflated penalties over charges or mr identify which provision of the statute you are relying upon for that purpose what set forth in paragraph twelve of the guardian's contract that to have p eight at that supplemental and expertise three those are classic contract penalties and in fact the eastern district of pennsylvania dealt with that in the adopted the nd circuit standard there and what the court said was that you can collect either a charge there is permitted expressly by state law or charge that isn't mentioned by state law but to permitted by agreement but where you cannot do if you cannot impose or collect a charge that is prohibited by state law even if the charge is set forth in the contract but the condition precedent for contracts will penalty to be improper is the fact that it's being sought in connection with a breach of contract here that's a circumstance i'll just i will i promise i'll let you finish sorry i'm sorry to bring these i don't say here we have a situation where we have a contract that permits unilateral terminations of an agreement by the guardian except for the budget reasons why they can terminate we have a clause your allegations in the complaint your client cancel the contract but none of that absolves his obligation to continue to pay that was his obligation under the contract so why is that not permissible under the law as well as alleged in this case because we again there is no breach of cause contract cause of action where contractual penalty pops up as sort of a mitigation  or a method by which to reduce damages no that's exactly right there isn't agreed by guardian there's a breach by us by by my client because he terminated earlier early and guardian says you can't terminate early and the rule time somebody stops performing under a contract and the other contracting parties to enforce the terms of the contract that is the fact that you agreed to pay the whole amount for the term of the contract that would control the penalty it is and you had to pay the whole amount no the what is deceptive about it is representing the that is a lawful post terminations charge to collect both profit and the  unexpired term when in fact state law prohibits imposing the full charge for an early terminations state law expressly says if you're you can't collect the entire mountain hooting all of your profit when contract i mean it is true that there is a law a small print i mean i couldn't even read a lot of the contract and the whole the fact that you know there's absolutely no cancellation allowed  argument on your part either in terms of that sort of effort to sometimes defeat allegations under a contract that's why i did what guarding is doing is foreseen the precise provisions of the contract and what we're said during that term you can continue it this property you could have your buyer could have taken on the only or you could have it at your your new house rules so you it really isn't a penalty it's you they would continue to provide you the services during those five that entire five year term right but but in this instance that preserves couldn't be provided in san francisco not the least of which because his new property was a high rise property two without will that have effect it could have been pleaded that well they couldn't they failed to they failed to perform on that aspect well it wasn't even a question of performing big big they couldn't perform they weren't providing the service out in san francisco at his new high rise building so it wasn't even an option it couldn't have been an option at all and it didn't come up until after he'd already terminated so that the point your honour's is even had this contract  come and said look you pay us twenty thousand dollars if you terminate earlier that would have been very clear and it would have been set forth in the contract that also would have been a penalty here you can calculate the unexpired term plus the profit that they would have earned on it one thousand eight hundred and eighty seven dollars that's a fixed penalty that's provided when they're not providing any service that violates pennsylvania law so to represent and here the reliance your hono bills is deceptive because they're attempting and representing to collect a charge that was not permitted by state law and that's the policy decision and the fact that he paid back charge is the rel is enterprise time trying to collect damages and they didn't bring a case and until he counter claim but if if the plaintiffs had paid anything towards the outstanding bill then he would have pleaded and contract terms three years or five years that's a good question you're on the district court deals with it in a way that it was five years there are two inconsistent provisions there's a provision and sub part b that says the initial term will be three years they differ court treats i think it's sub part a as this is a five year term i don't think it really makes much of a difference except for the fact that we've not clear don't but how much did he pay if he had paid for the eighteen months that he was there and then he paid for additional months or yes he paid well what it amounted to for you were late fees and everything you paid about two hundred dollars more so but it it d sunk they were asking to resolve the whole thing for five hundred and thirty five dollars i think that's in paragraph twelve there were three suits that have been instituted against guardian ever to this deck of the district court addressed amendment and thought it would be futile based on the allegations of the complaint yes because the problem is and of course this palace had it right on the head  hidden you can't really see i mean i would look at the contract and i would have no way of knowing that it's totally not cancellable you know it's just not kate leave the property and leave the property and also you're supposed to continue paying for the service you're not getting i five years continue even if you say no that would leave the premises correct and everything part of it talks about all the terminations rights of the guardian correct so is it always a unilateral determination right in this is how this contract work i think i think there are circumstances that guardian can look like if there were there was some provision for an act of god or something where they couldn't provide the services that were some kind of interference meaning my question is that only guardian could terminate the contract a consumer could cancel the services i don't want your services anymore but the obligations would continue to terminate as this language was written is that correct correct and as far as i know and there's no case for cited to indicate that that was in any way unlawful in any way what is it what if the contract was a twenty year contract instead of three or five years well and our people are our consumer paid for eighteen months and then left is it would it be permissible under the law to allow the guardian entity to continue to collect he's had numerous opportunities to change this junk this theory is lots of times but he had never changes course of action and isn't it true that if i read the materials in front of us correctly he's also never argued that the contract is is a contract to use still have you changed the form of i think they have actually left evidence because it would be i'm just curious right now i think they are trying to format the the contract differently diamond keeps saying it's in violation of state law and that's the police case police case they just the trial court dismissed the p c b out that's not a duty p c b are could claim at all in that case i don't know what state law is referring and yet when i enter into a contract with your eyes in a whomever and say i'm going to pay ten dollars or twenty dollars a month for that extra line if you break suspend and i decide i'm not going to i am another phone i still have to honor my obligations for whatever t it was that i agreed to and i know of nothing that says a three year or a five year term is per se unconscionable and by the way we have a very sophisticated person here and this this person was not misled he doesn't claim he was misled three he he does not even if he does not say that you didn't understand the contract language he just says per se this isn't a legal contract and he's no authority to tell you what you have found any case laws already that says this contractual penalty that as he describes it i know you would disagree that it you would presumably say it's not a contractual penalty but this pay ongoing payment obligation violate you the consumer protection law or the fair credit act under pennsylvania state law i am i was unaware of any authority and by the way the facts alleged in the complaint unsupported either because he stopped paying there are no allegations of payment after a certain time frame we didn't sue him for breach of contract we didn't sue him and the collections case all this talk about eight hundred dollars or whatever the amount was that was never collected it was two hundred dollars that was what was collected so you got four months and then you decided just to let it go basically well we were sued you know i mean i don't think they continued their collective collection efforts after they were sued in a nationwide class action case we were sued yes you can a claim for the rest of the money no but  with hanna claiming for four especially in federal court i handle this issue you can do it for some reason in state court i can't remember exactly what the nuances but but also you never filed an answer right now so we don't have any  act and we have discussed it but i was an offset or something to that effect recognize you're focusing on the consumer protection law ave your adversary stood up and said his main claim is actually the collection activity which is in the sequence of his complaint his complaint does it seem a fraud and then the nd so i hear you're focused on that point how do you respond to your adversary's contention that the collection activity of collecting that ongoing obligation to pay for service not being provided does not violate the the collection act of the state the f t c p a is a different story because i'd only applies to debt collectors lead debt collectors right i know of no case law that would support the idea that continuing to collect under the clear and explicit language in a contract that isn't misleading and deceptive is in any way violation of the consumer protection law it clothing the and therefore you can continue to collect those payments because they're lawful donovan the district court determined that any amendment would be futile here and to decline to permit amendment i'm not sure if you sought it or not you cannot appeal that aspect you have no desire to your complaint is that correct not in a subset substantive way your honor we only way you can do it right then and let me explain what i mean perhaps we should have reversed the count queen because that seems to have thing you say prohibits chris from using false deceptive misleading or unconscious if aaron conscionable means correct to collect about but not an unfair and unconscionable provision in a contract because yes we are strictly the collection activity and that applies to count one as well if your honor said so it wasn't perhaps it wasn't clear in the complaint would count one is the way you would force something that was based upon a force misstated or an overcharge bill so that would be your f c you claim if you didn't pay anything at all then you wouldn't have satisfied that element and you would have a duty p c b oakland that's k mark that a right that's also blind that's the pennsylvania supreme court's decision in grimes being enterprise leasing and there again you have a rental company attempting to collect and inflated charge that's alleged to have been an improper an authorized charge under state law because it's inflated they brought in f c you claim any u t p c p l on and there the supreme court addressed whether it was an ascertainable the question then is are these bills in fact an unfair or deceptive practice and we have demonstrated through the powers decision the budget the bensen be budget by picard decision the even the grimes decision that the attempt to collect a true artist is not permitted by state law because it's a contract amitie is unfair unconscionable and deceptive it's the bills that are deceptive we can challenge the content because it is that the  in phatic language and hunt about reliance ike knowledge that the difference here is that this court also addressed the causational in ray smith and the pennsylvania supreme court hinted at it in and your honour's oh i can do is point out that the bug the benson v budget case which is a time to collect a inflated damage bill same thing with enterprise same thing with other attempts to collect continuing charges including in the last profit that's the key thing is that very language is used in the budget events of advancing the budget case and there the court denied somebody judgment saying that that could be a unfair charge because you can't collect if the wool of law is that one may not profit from another or parties to see and if you're collecting profit that's an unfair contract penalty because you're not providing any