ORDER

Re: ECF No.9

MARK R. HORNAK, District Judge.

AND NOW, this 17th day of July, 2014, after the Plaintiff; Anna Sibeto, filed an action in the above-captioned case, and after the Defendants filed a Motion to Dismiss [ECF No.9] and after a Report and Recommendation was filed by the United States Magistrate Judge giving the parties until June 30, 2014, to file written Objections thereto, [ECF No. 15] and upon consideration of the objections filed by Defendant [ECF No. 16] and the response to Objections filed by Plaintiff [ECF No. 17], and upon independent de novo review of the record, and upon consideration of the Magistrate Judge's Report and Recommendation, which is adopted as the Opinion of this Court, as supplemented by this Order,

IT IS HEREBY ORDERED that the Motion to Dismiss submitted on behalf of Defendant, ECF No.9, is GRANTED as to Plaintiffs negligent and intentional misrepresentation claims (Counts II and III), but denied as to her claim arising under the Pennsylvania Unfair Trade Practices Consumer Protection Law ("UTPCPL") (Count IV).

The Defendant has objected to the Report and Recommendation to the extent that it fails to recommend the dismissal of Count IV of the Complaint, asserting that the Magistrate Judge was in error in failing to conclude that the Plaintiff's purchase of educational services could not be for "personal, family or household" purposes as required for coverage by that statute. Defendant relies primarily on the argument that because, as Plaintiff pleads, higher education would open up better career opportunities for her as a teacher, these services could not therefore be "personal", but instead are necessarily for a profit-driven "business" motive. That argument misses the boat.

There can be little doubt that the process of obtaining further higher education would, presumably, have made the Plaintiff a more learned person. It is likely that employers, especially in the educational sector of the economy, would view that as a good and valuable thing. They likely would be willing to pay more for the personal services of just such a person (and the act of teaching others surely is a personal service, even if for compensation). The Plaintiff says in her Complaint that she anticipated as much. But, the fact that the services purchased by the Plaintiff from the Defendant would make her a more learned person whose personal services would be viewed by the marketplace as being more valuable does not make that education any less "personal". Otherwise, any service purchased and received by a "person" that could make them of marginally greater value as an employee in the American marketplace could never, under the Defendant's argument, come within the reach of the of the UTPCPL.1 According to the Defendant, purchasing services in order to become better at working for a living can never be "personal."2

The necessary result of the Defendant's argument is that any purchased educational service is categorically removed from coverage of the statute. That is not a result commanded by the language of the statute, nor by the decisions of the relevant appellate courts applying it. Otherwise, any service which adds "value" to a person (compare someone taking German lessons3 or learning how to make Excel spreadsheets on their own dime with paying to have the brakes replaced on your employer's delivery van, for instance) would fall outside of the statute, by definition. In the Court's view, that is not a result that the language chosen by the General Assembly mandates, nor is it one that the case law requires.4

The second Objection is that the Magistrate Judge focused, in error, on whether the Plaintiff was a "person" covered by the UTPCPL in the first place, with the Defendant saying that the Magistrate Judge confused the concepts of "personal" in terms of the "purpose" of the service provided with whether the Plaintiff was a "person" covered by the statute. The Court does not read the Report and Recommendation that way. Instead, it appears to the Court that the Magistrate Judge properly conducted two, separate, important inquiries. First, is the Plaintiff covered by the statute at all (is she a "person" for its purposes) and second, were the services purchased from the Defendant "personal" so as to be an arguably covered transaction? There was no error committed by the Magistrate Judge in these regards, and the Report and Recommendation is correct as to that issue.

The parties should also keep in mind at what juncture in the case this Motion falls. We are at the Complaint/Motion to Dismiss stage. The Defendant asks the Court to conclude that as a categorical and definitional matter, the educational services purchased here could not, as a matter of law, ever be covered by the UTPCPL, no matter the facts. For the reasons noted, that the Court cannot do, at least not yet. How that question might come out, on a full record developed in discovery, could be another issue. Thus, the Defendant may revisit that issue, if that factual record would support its reassertion, in a summary judgment motion.

IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, if any party wishes to appeal from this Order (to the extent it constitutes an appealable Order at all), a notice of appeal, as provided in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court, within thirty (30) days.