2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-21-2006

Wise v. Amer Gen Life Ins Co

Precedential or Non-Precedential: Precedential

Docket No. 05-2715

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Recommended Citation

"Wise v. Amer Gen Life Ins Co" (2006). 2006 Decisions. Paper 504.

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*

 This case was argued before the panel of Judges Sloviter,

Fuentes, and Becker. Judge Becker died on May 19, 2006, before

the filing of the opinion. The decision is filed by a quorum of the

panel. 28 U.S.C. § 46(d).

1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-2715

 

DANIELLE WISE, individually and as ADMINISTRATRIX

OF THE ESTATE OF WILLIAM WISE,

Appellant

v.

AMERICAN GENERAL LIFE INSURANCE COMPANY,

INTELLIQUOTE INSURANCE SERVICES, GARY R.

LARDY

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. No. 04-cv-3711)

District Judge: Honorable Bruce W. Kauffman

 

Argued February 27, 2006

Before: SLOVITER, FUENTES, and BECKER,*

 Circuit Judges.

(Filed: August 21, 2006)
2

Richard L. Bazelon (Argued)

Natalie D’Amora

1515 Market Street, Suite 700

Philadelphia, PA 19102

ATTORNEYS FOR APPELLANT

Peter Jason (Argued)

Jonathan L. Swichar

Duane Morris LLP

30 South 17th Street

Philadelphia, PA 19103

James W. Gicking (Argued)

Marshall, Dennehey, Warner, Coleman & Goggin

1845 Walnut Street, 21st Floor

Philadelphia, PA 19103

ATTORNEYS FOR APPELLEES

 

 OPINION OF THE COURT

 

FUENTES, Circuit Judge.

After receiving a quote from an internet website, William

Wise applied for a life insurance policy from American General

Life Insurance Company. American General approved the

application and mailed Wise a policy on March 3, 2004. The

policy provided that the policy year would begin on the date of

issue, March 3, 2004, but that no coverage would be provided until

the first premium was paid by Wise while he remained in good

health. Wise died unexpectedly on March 10, 2004, the same day

that he received the policy in the mail, and one week after the “date

of issue” of the policy. His wife, Danielle Wise, mailed the first

premium to American General the following day. We are asked to

determine whether the life insurance policy was in effect at the
1

 The health problems that preclude an applicant from being

eligible for Temporary Insurance are any past incidence of a heart

attack, stroke, cancer, diabetes, or disorder of the immune system

or if the applicant has, during the last two years, “been confined in

a hospital or other health care facility or been advised to have any

diagnostic test or surgery not yet performed.” (Id. at 105.) Wise

indicated on his insurance application that he qualified for

Temporary Insurance. (Id.)

3

time of Wise’s death. Because, as of the date of Wise’s death,

Wise had not accepted the insurance contract by paying the

premium, we conclude that the life insurance policy never took

effect.

I. Factual and Procedural Background

In anticipation of the birth of his first child, William Wise

(“Wise”) used an internet website run by defendant Intelliquote

Insurance Services (“Intelliquote”) to research life insurance

policies for himself in January 2004. By entering personal

information on the Intelliquote website, Wise was able to obtain

quotes from several insurance carriers. After comparing the annual

premiums offered by each carrier, Wise selected an American

General policy, and Intelliquote sent him an application. 

The American General application mailed to Wise consisted

of two parts. Part A of the application required the applicant to

disclose personal information for the purposes of obtaining a

policy. It also described, among other things, an option for a

“Limited Temporary Life Insurance Agreement” (“Temporary

Insurance”). (Appendix “App.” at A107.) The application stated

that Temporary Insurance was available to the applicant only if 1)

the full first modal premium was submitted with the application

and 2) the applicant had not had certain health problems and was

not more than seventy years old.1

 (Id. at A105, A107.) The

application did not indicate the amount of the first premium

payment. 

Part A of the application also required Wise’s signature

acknowledging that he had read the application, that his statements
4

were true and complete, and that he understood that his application

would be the basis of his policy. Wise was also asked to affirm

that:

Except as may be provided in a Limited Temporary Life

Insurance Agreement (LTLIA), I understand and agree

that no insurance will be in effect pursuant to this

application, or under any new policy issued by the

Company, unless or until: the policy has been delivered

and accepted; the first full modal premium for the issued

policy has been paid; and there has been no change in

the health of any proposed insured that would change

the answers to any questions in the application.

(Id. at A107.) Part B required that Wise sign an identical statement

after providing his medical history. (Id. at A46.) Wise completed

the application, signed both statements, and returned it on or about

February 7, 2004. Wise did not submit a premium payment with

his application.

American General issued a life insurance policy to Wise on

March 3, 2004, in the amount of $500,000. American General

mailed the policy to Intelliquote, which in turn mailed the policy to

Wise, who received the policy on March 10, 2004. The letter

accompanying the policy stated, “[t]his policy is your contract and

is for you to keep with other important documents.” (Id. at A51.)

The letter briefly described the policy and stated: 

To place this coverage inforce [sic] the documents listed

below need to be completed, signed, and returned:

• Amount Due $600.00 (annual premium

due)

• Check must be made payable to American

General Life Insurance Company

• Delivery Receipt

All the above requirements must be in our office by

March 26th, 2004.

(Id.) 

The first page of the policy stated that the policy was “a

legal contract between the owner and American General.” (Id. at
2

Plaintiff originally filed suit in the Philadelphia Court of

Common Pleas. The action was removed to the United States

District Court for the Eastern District of Pennsylvania by American

General and Intelliquote. The District Court exercised subject

matter jurisdiction over this action pursuant to 28 U.S.C. § 1332.

We exercise jurisdiction over this appeal pursuant to 28 U.S.C. §

1291.

5

A53.) The policy stated that the entire contract consisted of the

policy received by Wise on March 10th, any riders and

endorsements, and the original application, along with any

amendments or supplemental applications. (Id. at 158.) The policy

bore a “date of issue” of March 3, 2004. (Id. at A55.) The date of

issue was described as the date on which the policy year and all

subsequent policy years would begin. (Id. at A57.) The policy

explained that, with the exception of the first premium, all

premiums not paid by the date of issue, March 3rd of each year,

would be in default. (Id.) The policy also stated that the first

premium was due on the date of issue and that insurance would

“not take effect until that premium [was] paid.” (Id.) Moreover,

the policy stated that, “[t]he owner may return this policy to us at

the above address or to the agent from whom it was purchased

within thirty days after receipt. This policy will then be cancelled

as of its date of issue and any premium paid will be refunded.” (Id.

at 55.)

The day that Wise received his policy in the mail, he died

suddenly and unexpectedly of a heart attack. His wife, Danielle

Wise (“Plaintiff”), mailed the annual premium payment to

American General the following day. When she requested the

proceeds of the policy, American General denied her claim and

returned her premium check. Plaintiff brings claims against

American General for breach of contract and bad faith under 42 Pa.

Cons. Stat. Ann. § 8371 (2005), and against American General,

Intelliquote, and insurance agent Gary R. Lardy for violations of

Pennsylvania’s Unfair Trade Practices and Consumer Protection

Law, 73 Pa. Cons. Stat. Ann. § 201-1 et seq. (2005) (the

“UTPCPL”).2

 

The United States District Court for the Eastern District of
3

 We exercise plenary review over the District Court’s Rule

12(b)(6) dismissal. See Allegheny Gen. Hosp. v. Philip Morris,

Inc., 228 F.3d 429, 434 (3d Cir. 2000) (citing Steamfitters Local

Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912,

919 (3d Cir. 1999)). “In judging that dismissal, we take all the

[plaintiffs’] factual allegations as true, and affirm only if it is

certain that no relief can be granted under any set of facts which

could be proved.” Id. at 434-35 (internal quotation marks and

citation omitted).

6

Pennsylvania dismissed the complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure for failure to state a claim

upon which relief can be granted. Wise v. Am. Gen. Life Ins. Co.,

No. 04-3711, 2005 WL 670697, at * 7 (E.D. Pa. Mar. 22, 2005).

The District Court found that, taking all the facts alleged in the

Complaint as true and making all inferences in favor of Plaintiff,

there was no contract formed for insurance because “there is no

indication in any of the documents of [American General’s] intent

to be bound prior to delivery of the policy, and no consideration

was offered by [Wise] from which liability might be inferred up to

that point.” Id. at *3. The District Court determined that the life

insurance policy unambiguously required the payment of the

premium before any insurance coverage was to take effect, and that

this provision was not waived by American General. Id. at *3-5.

The District Court reasoned that, because Wise never accepted the

offer of the policy by paying consideration in the form of the

premium, there was no insurance in effect at the time of his death.

Id. Based on this finding, the District Court dismissed all of

Plaintiff’s claims. Id. at *7. Plaintiff now appeals.

II. Analysis

A. There was no contractual obligation to provide coverage 

under the American General Policy

We must first determine whether American General was

contractually obligated to provide life insurance coverage for Wise

on the date of his death.3

 Under Pennsylvania law, the creation of

an insurance contract requires an offer, an acceptance, and a

meeting of the minds. See Moser Mfg. Co. v. Donegal & Conoy
4

As stated in the application and policy, and agreed by the

parties, the insurance contract at issue consists of the application

completed by Wise, all supporting documents, and the policy

issued on March 3, 2004. See Murray v. John Hancock Mut. Life

Ins. Co., 69 A.2d 182, 183 (Pa. Super. 1949) (stating that, as

general rule, insurance contract consists of both application and

subsequently issued policy).

5

The parties agree that Pennsylvania law applies to these

issues.

7

Mut. Fire Ins. Co., 66 A.2d 581, 582 (Pa. 1949). Plaintiff argues

that Wise’s insurance application constituted an offer, which

American General accepted as of March 3, 2004, by issuing the

policy. Plaintiff argues that American General was therefore

contractually obligated to provide insurance coverage to Wise as

of the March 3, 2004 date of issue.

The application for insurance and the documents

accompanying the policy explicitly stated that no coverage would

be in effect until and unless Wise paid the premium while he

remained in good health.4

 Under Pennsylvania law, this constitutes

a valid requirement that must be fulfilled before coverage begins.5

See Landy v. Philadelphia Life Ins. Co., 78 Pa. Super. 47, 54

(1921); see also Brodsky v. Equitable Life Assurance Soc’y of the

U.S., No. 99-1218, 1999 WL 637221, at *1 (E.D. Pa. Aug. 20,

1999), vacated on other grounds, 1999 WL 755184 (E.D. Pa. Sept.

20, 1999); 44 Corpus Juris Secundum Insurance § 324 (“A

stipulation or agreement by the company and applicant that a

policy of life insurance shall not take effect or be binding on the

company unless the first premium is paid while the applicant is

alive or in good or sound health is valid and will be given effect

according to its terms; it is a condition precedent to liability on the

part of the company . . . .”). Neither party was bound by the

insurance contract until Wise tendered the premium payment while

in good health; Wise was free to turn down the policy, and

American General was not obligated to provide insurance

coverage. See Landy, 78 Pa. Super. at 56 (holding that, where life

insurance policy stated it would only take effect when delivered

and accepted through payment of premium while applicant was in
8

good health, no coverage existed where applicant accepted while

at brink of death); Brodsky, 1999 WL 637221, at *1 (finding no

insurance coverage as matter of law where payment of premium

was required for coverage to begin and applicant died before

remitting first premium). Accordingly, because Wise did not fulfill

the requirement of remitting the first premium payment while there

was no change in his health, the insurance policy did not go into

effect, and American General had no contractual obligation to

provide insurance coverage to Wise upon his death.

Plaintiff contends that American General waived the

requirement of the premium payment by making it impossible for

Wise to comply with it. Plaintiff argues that, by mailing the policy

on March 3, 2004, the date of issue, American General ensured that

Wise could not receive the policy, pay the premium, and begin to

receive coverage until after the date of issue. Under Pennsylvania

law, “an insurer will not be permitted to take advantage of the

failure of the insured to perform a condition precedent contained in

the policy, where the insurer itself is the cause of the failure to

perform the condition.” Fratto v. New Amsterdam Cas. Co., 252

A.2d 606, 607 (Pa. 1969) (quoting Arlotte v. Nat’l Liberty Ins. Co.,

167 A. 295, 296 (Pa. 1933)). 

Plaintiff’s argument fails, however, because it relies on the

flawed assumption that, for coverage to begin, the policy required

payment of the premium by the March 3, 2004 date of issue.

Nowhere does the policy state that the initial premium must be paid

before the date of issue for coverage to take effect. To the

contrary, the policy simply states that coverage will not begin until

the applicant remits payment of the premium while he remains in

good health. Although the initial premium is “due” on the date of

issue, failure to pay the initial premium after the date of issue is not

considered a default under the terms of the policy. Had Wise

remained in good health and paid the policy upon its receipt on

March 10, 2004, coverage would have taken effect on that date.

Payment of the premium while Wise remained in good health was

made impossible by Wise’s unfortunate and untimely death rather

than by the actions of American General. We therefore conclude

that American General did not waive the requirement of payment

of the first premium by making compliance impossible.
9

Plaintiff also contends that American General’s practice of

backdating its policies is inherently unfair because it results in the

insured receiving less than a year’s insurance in return for his

annual premium. The practice of backdating a contract ensures that

the recipient of the policy cannot fulfill the requirement of payment

of the first premium until after the date of issue from which the

policy year is measured. This results in a period during the policy

year in which the insurer is not obligated to provide coverage to the

insured. Plaintiff argues that this unfairness should be remedied by

treating the insurance policy as if coverage began on the date of

issue, March 3, 2004, resulting in Wise receiving a full year’s

insurance coverage in return for his annual premium.

We find no support under Pennsylvania law for the notion

that backdating an insurance contract waives the requirement that

the first premium must be paid before coverage begins. In Sydnor

v. Metropolian Life Insurance Company, 26 Pa. Super. 521 (1904),

the Pennsylvania Superior Court examined a life insurance contract

dated March 31, 1902, which measured subsequent premium

payments from that date, but which provided that there would be

no coverage until the payment of the first premium. Id. at 522-23.

The policy was not delivered to the insured’s home until two days

after the date of issue, and the first premium was not paid until

three weeks after that. Id. at 522. The Sydnor court held that, once

the first premium had been paid, the parties were bound by the

terms of the contract, which provided that the policy year was to

begin on March 31, 1902, and that all future premium payments

would be measured from that date. Id. at 525. Moreover, the

Sydnor court explicitly noted that if, as here, the insured died

between the date of issue and the payment of the first premium,

“there could have been no recovery upon the policy.” Id.

Similarly, in McDonough v. Prudential Insurance Company

of America, 85 Pa. Super. 63 (1924), the Pennsylvania Superior

Court considered an insurance contract that was not effective until

the first premium was paid while the applicant was in good health,

but which was issued as of April 6, 1921, almost one month earlier.

Id. at 66. The contract stated that the policy year was to be

measured from April 6, 1921, and that premiums would be due on

a semi-annual basis as measured from that date. Id. Relying on

Sydnor, the McDonough court held that the policy was to be
10

enforced according to its terms, and that premiums were therefore

due on April 6 and October 6 of each year, notwithstanding the fact

that the contract did not go into effect until the first premium was

paid on May 3, 1921. Id. at 67-68. Like the court in Sydnor, the

McDonough court recognized that, until the first premium was

paid, the insurer had no obligation to provide insurance coverage

to the applicant. Id. at 67.

In Ford v. Fidelity Mutual Life Insurance Company, 170 A.

270 (Pa. 1934), the Pennsylvania Supreme Court relied on Sydnor

and McDonough in holding that backdated contracts are not

inherently unfair and should be enforced according to their explicit

terms. Id. at 271. In Ford, the parties had signed an insurance

contract with a February 10, 1931 date of issue, but which stated

that the anniversary of the policy was February 7, 1931, and that all

premium payments were to be measured from that date. Id. The

Pennsylvania Supreme Court held that the terms of the contract

were to be enforced, and that premiums were required to be paid on

the named dates. Id. Ford relied on Sydnor’s conclusion that

backdated contracts should be enforced according to their terms,

even where this results in the insured receiving no coverage

between the date of issue and the payment of the first premium. Id.

Pennsylvania’s enforcement of backdated contracts

according to their terms is consistent with the practice of the

majority of courts in other states that have considered the question

of whether backdating is inherently unfair or fraudulent. Like the

Pennsylvania Superior Court in Sydnor and McDonough, the

majority of courts in other states have enforced the terms of

backdated contracts even though this often results in a gap between

the date of issue and the beginning of insurance coverage. See,

e.g., Olsen v. Fed. Kemper Life Assurance Co., 700 P.2d 231, 233-

35 (Or. 1985) (where remaining in good health was a requirement

for insurance contract to become effective, no insurance contract

was formed where plaintiff was diagnosed with terminal cancer

before receiving contract and paying premium, even though policy

was dated and premium calculated one day before plaintiff’s

diagnosis); Life Ins. Co. of Southwest v. Overstreet, 603 S.W.2d

780, 782-83 (Tex. 1980) (noting that antedated insurance contract

with payment of the premium was required before insurance took

effect was “enforceable as written notwithstanding the fact that the
6

 Moreover, even if Pennsylvania were to change its position

to reject the practice of backdating, the states that have taken this

minority view on backdating have held that the backdating on such

contracts should be ignored, and that the policy year and all future

premium payments should be construed as beginning no later than

the date coverage takes effect upon the fulfillment of the

requirement of acceptance and payment of the first premium. See

Duerksen v. Brookings Int’l Life & Cas. Co., 166 N.W.2d 567,

569-71 (S.D. 1969); Guerin v. Cal. Western States Life Ins. Co., 40

Cal. Rptr. 344, 348 (Cal Dist. Ct. App. 1964); Carolina Life Ins.

Co. v. DuPont, 141 So.2d 624, 626 (Fla. Dist. Ct. App. 1962);

Lentin v. Cont’l Assurance Co., 105 N.E.2d 735, 738 (Ill. 1952);

Columbian Nat’l Life Ins. Co. v. McClain, 174 P.2d 348, 350, 352

(Colo. 1946); Hampe v. Metro. Life Ins., 21 S.W.2d 926, 927-29

(Mo. Ct. App. 1929). Here, the minority rule would entail moving

the date of issue to the date that Wise paid the first annual premium

11

first premium is paid . . . after it is ‘due’ and ‘payable’ . . . . This

is the rule even though the insured obtains less than a full year's

coverage for the first year's premium”); Boswell v. Gulf Life Ins.

Co., 29 S.E.2d 71, 72-73 (Ga. 1944) (no liability where coverage

conditioned upon receipt and acceptance and plaintiff died before

receipt, even though date of issuance predated his death); Fawcett

v. Sec. Benefit Ass’n, 104 P.2d 214, 219 (Utah 1940) (upholding

backdated insurance contract even though insured obtained less

than full month’s insurance for first month due to delay in contract

taking effect); Berry v. Prudential Ins. Co. of Am., 134 S.W.2d

886, 891-92 (Tenn. Ct. App. 1939) (insurance contract may be

backdated to contain a period during which insurer assumes no

risk); 44 A.L.R.2d 472 § 2 (2005) (“[I]n a large majority of the

cases where the question has been considered, it has been held that

the date stipulated in the policy as that from which premiums are

to be calculated must be given effect, notwithstanding the provision

that the coverage was not actually in force until a later date.”).

Thus, under the majority rule concerning the interpretation of

backdated contracts, American General was under no obligation to

provide insurance coverage for Wise, regardless of the fact that the

date of issue preceded the date of Wise’s death, because Wise did

not fulfill the requirement of paying the first premium while in

good health.6
while in good health. Because Wise was unable to fulfill the

requirement of payment of the first premium, no contract for

insurance was formed under the minority rule.

12

Plaintiff next argues that we should follow the reasoning of

the Fifth Circuit in Monumental Life Insurance Company v. HayesJenkins, 403 F.3d 304 (5th Cir. 2005), which held that a material

issue of fact existed as to whether an insurer that issued a

backdated policy had waived the condition precedent of payment

of the first premium. Id. at 311-12. In Monumental, a married

couple received an unsolicited application for a Monumental Life

Insurance Company (“Monumental”) policy through their

mortgage lender. Id. at 308. The application and accompanying

brochure stated that when their certificate/insurance policy arrived,

they would have thirty “risk free” days in which they could look it

over, during which they would be “fully covered.” Id. The

application told them that if they chose to return the policy during

that thirty-day period they would owe nothing. Id. It also assured

the applicants that they would not be required to mail a separate

check for their premium payments because their premiums would

be automatically added to their mortgage bills. Id. However, the

application also contained fine print that stated that their insurance

would not be in effect until their first premium was paid. Id. at

310. The couple completed and mailed the application and, on

March 14, 2001, they were informed that their policy had been

approved. Id. at 309. On April 4, 2001, the husband died. The

following day, the certificate/policy arrived in the mail. Id. The

policy stated that it was effective as of April 1, 2001, three days

before the husband’s death. Id. The applicants were not billed for

their first premium until their April mortgage bill was mailed on

April 10, 2001, and they timely paid the bill two weeks later. Id.

at 309-10.

The Fifth Circuit, applying Texas law, held that a material

issue of fact existed as to whether Monumental had waived its right

to insist on payment of the first premium as a condition precedent

to coverage. Id. at 314-15. The Fifth Circuit stated that

Monumental may have waived the condition precedent “when it

unconditionally approved [the applicants’] application on March

14, 2001, with an April 1, 2001 effective date, prior to receiving
13

[the applicants’] first premium payment directly, and in the full

knowledge that–under its arrangement with [the mortgage

holder]–[the applicants] could not possibly have been invoiced . .

. for their first premium until sometime after April 9, 2001.” Id.

Plaintiff notes that, similarly, here American General approved

Wise’s application with a March 3, 2004 date of issue with full

knowledge that, because it mailed the policy on the date of issue,

Wise could not pay the first premium until after that date.

Unlike the insurer in Monumental, American General did

not take action contradicting the requirement that the premium be

paid before insurance coverage began. Monumental guaranteed

that the applicants would receive thirty risk-free days of coverage

beginning with their receipt of the insurance policy, and instructed

the applicants not to send a premium check because the applicants

would pay the premium with their monthly mortgage payment. Id.

at 308. Monumental then made certain that the applicants could

not pay the premium until after they received the insurance

policy–well into the thirty days in which they were purportedly

“fully covered.” Id. at 309-10. Moreover, the insurance policy

stated that insurance coverage commenced on April 1, 2001–well

before the applicants received their April mortgage bill that

included their first premium, directly contradicting the condition

precedent stated on the application. Id. American General never

promised insurance coverage before payment of the premium, and

consistently informed Wise that coverage would not begin until the

premium was paid. Regardless, to the extent that Monumental

does stand for the proposition that backdating alone may waive the

requirement of payment of the first premium by creating ambiguity

as to when coverage takes effect, we find no support for this

proposition under Pennsylvania law.

B. Plaintiff’s causes of action for breach of contract, bad

faith, and violation of the UTPCPL

Because there was no contract for insurance as of Wise’s

death, Plaintiff’s breach of contract claim must fail. Similarly, the

District Court properly dismissed Plaintiff’s claim under

Pennsylvania’s bad faith statute. A plaintiff bringing a claim under

that statute must demonstrate that an insurer has acted in bad faith

toward the insured through “any frivolous or unfounded refusal to
14

pay proceeds of a policy.” Terletsky v. Prudential Prop. & Cas. Ins.

Co., 649 A.2d 680, 688 (Pa. Super. 1994). Because there was no

insurance policy in effect at the time of Wise’s death, Plaintiff

cannot establish a prima facie case under the bad faith statute.

Plaintiff’s claim under Pennsylvania’s Unfair Trade Practices and

Consumer Protection Law, 73 Pa. Cons. Stat. Ann. § 201-1 et seq.

(2005) (the “UTPCPL”), must also be dismissed because, as the

District Court noted, only purchasers of goods may bring actions

under that law. See Lauer v. McKean Corp., 2 Pa. D. & C. 4th

394, 395-96 (Pa. Com. Pl. 1989); Bonacci v. Save Our Unborn

Lives, Inc., 11 Pa. D. & C. 3d 259, 262 (Pa. Com. Pl. 1979). A

plaintiff who seeks to enter into a contract for purchase but fails to

do so may not bring a claim under the UTPCPL, even where the

plaintiff is prevented from making the purchase by the defendant’s

allegedly fraudulent conduct. See Lauer, 2 Pa. D. & C. 4th at 396.

Because Wise never purchased a life insurance policy from

American General, Plaintiff’s UTPCPL was properly dismissed. 

III. Conclusion

For the foregoing reasons, we affirm the District Court’s

dismissal of Plaintiff’s complaint.