J-A20040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DR. JOHN D. HARDING AND DR. LINDA IN THE SUPERIOR COURT OF
K. KRUUS, H/W PENNSYLVANIA
Appellees
v.
THE CUTLER GROUP, INC. D/B/A THE
DAVID CUTLER GROUP
Appellant No. 135 EDA 2015
Appeal from the Judgment Entered on December 29, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No.: 2010-24681
BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 10, 2015
The Cutler Group, Inc., D/B/A/ the David Cutler Group, appeals the
December 29, 2014 judgment in favor of Dr. John Harding and his wife, Dr.
Linda Kruus (collectively “the Hardings”). For the reasons discussed herein,
we conclude that the trial court erred in awarding damages to the Hardings
under the Pennsylvania Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”), 73 Pa.C.S. § 201, et seq. Hence, we reverse in part and affirm
in part.
The trial court summarized the factual and procedural history of this
case as follows:
[The Hardings] are the owners of a home located at 2424 April
Drive, Jamison, Pennsylvania (“the home”). The home is a two-
story structure located in Warwick Township, Bucks County. The
front of the home faces south and has a brick façade. The side
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and rear walls have stucco façades. . . . The Cutler Group, Inc.
is a business entity [that] constructed the [home].
The parties signed an Agreement of Sale for the [home] on
March 15, 2008. Additionally, the parties signed a Limited
Warranty Home Warranty Agreement (“the Warranty”) dated
June 30, 2008, which provided, in pertinent part, as follows:
1. . . . Seller warrants said premises to be free of
structural or mechanical defects for a period of one (1)
year from the date of settlement, and Seller shall be
responsible for the correction of such defects found at the
premises during said one (1)-year period, and shall act
with reasonable promptness to repair, reconstruct or
otherwise correct at Seller’s sole discretion such defects
upon receipt of notice in writing from Buyer of any such
structural or mechanical defects, and after Seller inspects
same at said premises.
2. Coverage During Second Year. During the second year
after the commencement date, the Builder continues to
warrant that the home will be free from major construction
defects and that the plumbing, electrical, heating and
cooling systems will perform according to the Approved
Standards, unless their failure is the result of a defect in
an appliance, fixture, or item of equipment. A major
construction defect is actual damage to the load-bearing
portion of the home (including damage due to subsidence,
expansion or lateral movement of soil from causes other
than floor [sic] or earthquake) which affects its load-
bearing function and which vitally affects (or is imminently
likely to produce a vita [sic] effect on) the use of the home
for residential purposes.
3. In addition, Seller specifically warrants as follows, but
not in limitation of the general warranty stated above:
a. Your home has been constructed in accordance with the
accepted home-building practice of this locality and, prior
to delivery, has been inspected by our trained personnel as
well as the building inspector.
Paragraph 12 of the Exclusions section of the Warranty provides
that [the Cutler Group] will not make any reimbursements for
work completed by an outside contractor unless pre-authorized
in writing by the Cutler Group.
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Approximately ninety (90) days after the date of
settlement/commencement on June 30, 2008, the Hardings
provided [the Cutler Group] with a written “punch list” of
problems with their new home. The ninety (90)-day punch list
identified, inter alia, water intrusion and leaking in the family
room (rear of the home) and stucco cracking. In response, [the
Cutler Group] came to the home on more than one occasion to
caulk the leaking window to the right of the fireplace in the rear
of the home.
In September 2009, the Hardings notified [the Cutler Group] of
discoloration around a window and ceiling marks in one of the
bedrooms. [The Cutler Group] came to the home and removed
the window, re-caulked, and then replaced the window. [The
Hardings] notified [the Cutler Group] about concerning odors,
and [the Cutler Group] came to the home again and painted
over markings on the wall. [The Hardings] also reported
concerns of mold growth to [the Cutler Group] because the smell
continued to intensify.
In March 2010, the home experienced severe water intrusion in
the family room by the window that had been caulked
previously. Water was “flowing” into the basement. The
Hardings used pans, buckets, and towels to collect the water and
clean up the mess. On March 19, 2010, [the Cutler Group] sent
a contractor, Justin McCarty, to the home to test the moisture
levels in the wall of the family room surrounding the leaky
window. McCarty stated that the moisture readings on all three
sides of the family room showed high moisture measurements.
McCarty stated that the high moisture level was concerning
because it meant the wood behind the walls could be breaking
down and/or that there would be mold growth as well. The
Hardings were particularly [concerned about] the potential [for]
mold growth since their young son, Will, suffered from asthma
and other allergies.
Linda [Kruus] contacted an air quality specialist called NAL to
investigate the odor in the two bedrooms and the front living
room. By the time the Hardings contacted NAL, the worsening
odor was also apparent in the front living room and the bedroom
of the Hardings’ two-year-old son. After NAL completed its
evaluation, [Dr. Kruus] contacted Eric Labor, at the Cutler
Group, and pleaded for his help. Mr. Labor provided [the
Hardings] with contact information for David Burkhardt, an air
quality expert, even though “he wasn’t supposed to do this.”
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David Burkhardt, an industrial hygienist and indoor air quality
specialist employed by Eagle Industrial, visited the home on April
28, 2010, to conduct an inspection and test for moisture. Mr.
Burkhardt conducted approximately sixty probes and found
elevated moisture readings on the three outside [walls] of the
home that had stucco cladding. The leaks originating from
outside the home had begun to saturate the Oriented Strand
Board (OSB) wall sheathing and the moisture could be detected
on the interior surface of the wall sheathing. Elevated moisture
readings on the inside of the wall sheathing typically indicate
even higher moisture readings on the outside of the wall because
water moves from the outside to the inside. Mr. Burkhardt
found “excessive moisture” on the inside of the wall sheathing
. . . in the office and the family room. Evidence of water
damage also was visible in the basement of the home.
Mr. Burkhardt found the side walls of the home had the following
elevated moisture levels when measured from the outside:
a. The right side wall of the family room contained an
elevated moisture level of greater than 40%
b. The left side wall at the kitchen contained an elevated
moisture level of greater than 40%
c. The left side wall at the master bedroom contained
elevated moisture levels of 21.3%, 37.7%, and 29.3%
d. The first-floor bathroom on the right side of the house
contained an elevated moisture level of 31.3%
e. The right side of the house near the rear corner
contained an elevated moisture level of 38.8%
f. The right front side of the house near the electric meter
contained elevated moisture levels of 23.3%, 35.3%,
and greater than 40%
While all wood products have some level of moisture, a level of
approximately 10% is expected in the building materials in a
constructed home. A moisture reading of 15% or less is
considered acceptable in wood. A moisture reading in the range
of 20% is wet enough to cause deterioration of the building
materials and mold growth. The Indoor Air Quality Association,
American Industrial Hygiene Association, and the Environmental
Protection Agency all consider wood building materials with a
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moisture content of 20% to be “wet.” A moisture reading of
40% is considered “excessively wet.” Multiple locations of the
home had readings that registered [in excess of] 40% moisture
content. Mr. Burkhardt’s expert opinion was that removal of all
of the stucco was necessary in order to curtail mold growth and
to prevent further damage to the structure. Mr. Burkhardt
testified as follows:
As a result of our findings, I’ve outlined a recommended
plan of action, which starts on Page 9 of the report. And
this action plan was designed following accepted mold and
water damage remediation practices relative to the
protection of the interior of the house, so you don’t get
contamination and distribution of debris as the work is
done.
Based on the findings of wet building materials on all three
sides of the house, my recommendation was . . . [to
remove] the stucco, the wire lath, and the building wrap
. . . from all areas that have stucco to expose the oriented
strand board, and at that point, to determine the extent of
the water damage to the oriented strand board; [and] to
remove water-damaged oriented strand board and to clean
the wall cavities as needed based upon this further
deconstruction and investigation that would take place.
The evaluations frequently reveal that there is water
damage, mold growth, and structural deterioration of the
framing members of the house. But this is something that
you can’t determine until the removal process is started.
Additionally, Burkhardt opined that, left unabated, the mold
growth and deterioration at the Hardings’ home would worsen
every day.
In April 2010, [the Cutler Group] agreed to submit a work order
to fix the family room bump out, but only if [the Hardings]
executed a Confidentiality Agreement. In June 2010, the
[Hardings] provided [the Cutler Group] with copies of an expert
reports indicating water intrusion in the home. In August 2010,
[the Cutler Group] wrote to [the Hardings] and rejected the
experts’ findings of moisture levels in the home. [The Cutler
Group] did not send a representative to inspect the home after
being provided with the reports . . . .
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From May 2010 until the completion of the remediation by [the
Hardings] in November 2010, [the Hardings] occupied only two
of the four bedrooms in their new home, with four persons
occupying the master bedroom due to moisture and odors
relating to water leaks in two of the bedrooms.
[The Hardings] hired Mark Werther, a forensic architect, to
evaluate the construction of the home. He testified that the OSB
was “badly damaged,” that the thickness of the stucco was in
violation of the applicable Code, that a window in the area of a
water leak had an incomplete expansion bead and was not
installed in accordance with the window manufacturer’s
instructions, and that there was excessive stapling through the
flashing, which caused moisture to get into the OSB and caused
“penetration of the water to affect the structure.”
[The Hardings] also hired Jerry Yedinak, an expert in the field of
stucco installation, to inspect the stucco on their home. He
testified that the stucco siding at the Hardings’ residence did not
include expansion joints, weep screeds, proper window sealants
or drainage plains, and that the stucco was not properly
installed.
The “accepted home building practice” referenced in the
Warranty in effect for Warwick Township at the time [the Cutler
Group] built the Hardings’ home is set forth in the 2003
International Residential Code (IRC). R703.1 of the IRC sets
forth that “[e]xterior walls shall provide the building with a
weather-resistant exterior wall envelope.” The Hardings’ home
did not include a weather-resistant exterior wall envelope when
[the Cutler Group] sold the home to the Hardings. [The Cutler
Group] admitted that the entire rear façade of the home, and
portions of the sides of the home, had water damage and
needed to be remediated.
On June 28, 2010, [the Hardings] notified [the Cutler Group] of
the expert reports they obtained recommending the removal of
stucco and remediation of the back and side walls of the home.
On August 16, 2010, the Hardings’ counsel wrote to the Cutler
Group and advised that Dugan Construction would begin removal
of the stucco and other work on the home on August 25, 2010.1
In response, [the Cutler Group] offered to remove the rear wall
of the home and locate the moisture to determine if the side
walls needed to be remediated. [The Hardings] rejected this
proposal. [The Cutler Group] then offered to remove all three
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walls of stucco with the caveat that [the Hardings] would
reimburse [the Cutler Group] for the remediation costs of the
sides of the property if they showed no sign of water infiltration.
Ultimately, this offer was rejected, and Dugan Construction
began to repair the home in late October 2010. [The Cutler
Group] never tested for the source of the water intrusion in the
two years between the time that [the Hardings] first reported
the water intrusion in September 2008 and the start of the
repairs in October 2010. [The Cutler Group] refused to pay for
Dugan Construction to remove the stucco [from] all three sides
of the home. [The Hardings] paid Dugan Construction
$75,802.50 to repair the defects to the home.
1
Dugan Construction did not begin to work on the home
on August 25, 2010, because the Hardings delayed the
work to give [the Cutler Group] time to correct the defects.
During the course of the negotiations between [the Hardings]
and [the Cutler Group, the Hardings] filed a complaint against
[the Cutler Group] on August 19, 2010, alleging breach of
contract/warranty and violation of the [UTPCPL]. A three day
bench trial was conducted . . . on January 13-15, 2014. On the
second day of trial, [the Hardings] filed a motion for leave to file
an amended complaint in order to clarify their claims and
conform the pleadings to the evidence presented [at trial]. On
February 7, 2014, the [trial] court granted [the Hardings’]
motion, . . . and [the Hardings] filed an amended complaint on
February 14, 2014. The amended complaint added the following
sentence to the original complaint: “Further, [the Cutler Group’s]
failure to honor the terms of the warranty is a violation of § 201-
2(xiv) of the UTPCPL.”
Trial Court Opinion (“T.C.O.”), 2/18/2015, at 1-8 (minor modifications for
clarity; citations to notes of testimony omitted).
On March 4, 2014, the trial court entered its findings of fact and its
decision. The trial court held that the Cutler Group was liable to the
Hardings for breach of contract/warranty (count one of the Hardings’
amended complaint), and awarded the Hardings damages of $78,827.50.
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The court also found that the Cutler Group was liable to the Hardings’ under
the UTPCPL (count two of the Hardings’ amended complaint), and awarded
the Hardings damages of $157,655.00. On March 12, 2014, the Cutler
Group filed a post-trial motion, wherein it sought a new trial or, in the
alternative, a remittitur striking the damages awarded under the UTPCPL.
On March 14, 2014, the Hardings filed a post-trial motion seeking attorneys’
fees and costs. On June 12, 2014, following a hearing, the trial court denied
both of those motions.
On July 10, 2014, the Cutler Group filed a notice of appeal. On July
18, 2014, the Hardings also filed a notice of appeal. On July 29, 2014, the
trial court requested that this Court remand both cases so that the trial court
could vacate the judgment and enter a revised order. On September 8,
2014, we entered an order remanding the cases to the trial court and
relinquishing jurisdiction. See Order, 9/8/2014, at 1.
On October 6, 2014, the trial court entered a revised decision, which
reduced the statutory damages awarded to the Hardings under the UTPCPL
from $157,655.00 to $78,827.50. The trial court also awarded the Hardings
$80,347.06 for attorneys’ fees and costs. The Cutler Group filed a post-trial
motion, which the trial court denied on December 5, 2014. The trial court
entered judgment on December 29, 2014.
On December 30, 2014, the Cutler Group filed a notice of appeal. On
December 31, 2014, the trial court ordered the Cutler Group to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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The Cutler Group timely complied. On February 18, 2015, the trial court
filed a Pa.R.A.P. 1925(a) opinion.
The Cutler Group presents six issues for our consideration:
1. Did the trial court commit an error of law and abuse its
discretion by finding the [Hardings] were not required to
establish the common[-]law elements of fraud in order to
support their claims under the [UTPCPL] and by finding [the
Cutler Group] violated the UTPCPL by breaching the warranty
and failing to construct the subject home in accordance with
home building[-]practices in [the Hardings’] locality?
2. Is a decision which awards statutory damages and attorney’s
fees under the [UTPCPL] an error of law and an abuse of
discretion when the record does not support a finding that
[the Cutler Group] violated the act?
3. Did the trial court commit an error of law and abuse its
discretion by allowing [the Hardings] to amend their
complaint and add an additional theory of recovery under the
provisions of the [UTPCPL] following the close of trial?
4. Did the trial court commit an error of law and abuse its
discretion by finding that [the Cutler Group] was liable to the
[Hardings] under the [UTPCPL] under the catch[-]all
provision?
5. Did the trial court commit an error of law and abuse its
discretion by changing its findings of fact and decision in its
order and decision of October 3, 2014, and issuing a
subsequent opinion of February 18, 2015, admitting to an
error of law?
6. Did the trial court abused [sic] its discretion and committed
[sic] an error of law by finding that [the Cutler Group]
breached its limited warranty with the [Hardings] where such
a finding was clearly against the weight of the evidence
produced at trial and shocking to the conscious[sic]?
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Brief for the Cutler Group at 7-8 (capitalization modified).1
In their first and second issues, the Cutler Group challenges the trial
court’s finding that “the [Hardings] were not required to establish the
common[-]law elements of fraud in order to support their claims under the
[UTPCPL].”2 Brief for the Cutler Group at 27 (capitalization modified). In its
Rule 1925 opinion, the trial court agreed that the Hardings’ UTPCPL claim
“require[d] a showing of common[-]law fraud.” T.C.O. at 18. Because the
Hardings did not prove the elements of common-law fraud, the trial court
conceded that it erred in awarding the Hardings statutory damages and
attorney’s fees pursuant to the UTPCPL. Id. For the reasons that follow, we
disagree that the UTPCPL requires plaintiffs to demonstrate all of the
elements of common-law fraud; nonetheless, we agree that the trial
evidence in support of the Hardings’ UTPCPL claims was insufficient as a
matter of law.
Whether the UTPCPL requires that plaintiffs plead and prove the
elements of common-law fraud is an issue of statutory interpretation, a
question of law. Accordingly, our standard of review is de novo and our
____________________________________________
1
We have reordered the Cutler Group’s issues for ease of disposition.
2
A claim for common-law fraud requires a plaintiff to demonstrate: (1)
a representation; (2) material to the transaction at issue; (3) made falsely,
with; (4) either knowledge or reckless disregard of its falsity; (5) with the
intent to mislead another person or induce justifiable reliance; and (6) an
injury caused by the reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa.
1999).
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scope of review is plenary. See Stoloff v. Neiman Marcus Group, Inc.,
24 A.3d 366, 369 (Pa. Super. 2011). Generally, with respect to statutes,
“the object of all interpretation and construction is to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a).
“Because the legislature is presumed to have intended to avoid mere
surplusage, every word, sentence, and provision of a statute must be given
effect.” Allegheny Cty. Sportsmen’s League v. Rendell, 860 A.2d 10, 19
(Pa. 2004). We also may assume that the legislature does not intend a
result that is absurd, unreasonable, or impossible of execution. 1 Pa.C.S.
§ 1922.
Pennsylvania’s consumer protection law, the UTPCPL, proscribes
“unfair methods of competition” and “unfair or deceptive acts or practices” in
connection with trade or commerce.3 73 Pa.C.S. § 201-3. Upon a finding of
liability under the UTPCPL, the trial court may award “up to three times the
actual damages sustained” and any additional relief it deems proper. 73
Pa.C.S. § 201-9.2. Subsection 201-2(4) enumerates twenty specific unfair
methods of competition and unfair or deceptive acts or practices, and
includes a catchall provision. Relevant to the case sub judice, the General
Assembly has defined “unfair methods of competition” and “unfair or
deceptive acts or practices” to include “[f]ailing to comply with the terms of
____________________________________________
3
The UTPCPL also applies to residential real estate transactions. See
Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007).
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any written guarantee or warranty given to the buyer at, prior to or after a
contract for the purchase of goods or services is made.” 73 Pa.C.S. § 201-
2(4)(xiv).
Since the enactment of the UTPCPL in 1968, Pennsylvania courts have
struggled to define which UTPCPL claims, if any, require proof of each of the
elements of common-law fraud. Compare Ross v. Foremost Ins. Co.,
998 A.2d 648, 654 (Pa. Super. 2010) (“In order to establish a violation of
[the UTPCPL’s] catch[-]all provision, a plaintiff must prove all of the
elements of common-law fraud.”); with Bennett v. A.T. Masterpiece
Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012) (holding that
a plaintiff need not prove all of the elements of common law fraud in order
to establish a violation of the UTPCPL’s catch-all provision); see also
DiLucido v. Terminix Int’l, Inc., 676 A.2d 1237, 1239 (Pa. Super. 1996),
abrogated by Toy v. Metro. Life Ins. Co., 928 A.2d 186 (Pa. 2007). This
question is complicated by the fact that most of the practices proscribed by
subsection 201-2(4) involve fraudulent or deceptive conduct, see e.g., 73
Pa.C.S. § 201-2(4)(vi) (“Representing that goods are original or new if they
are deteriorated, altered, reconditioned, reclaimed, used or secondhand”),
but a few do not. See, e.g., 73 Pa.C.S. § 201-2(4)(xviii) (prohibiting
confession-of-judgment clauses in consumer contracts); 73 Pa.C.S. § 201-
2(4)(xii) (prohibiting certain buyer-referral agreements).
Although no appellate court in Pennsylvania has considered whether
subsection 201-2(4)(xiv) of the UTPCPL requires plaintiffs to plead and prove
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each of the elements of common law fraud, it is well-settled that private
parties bringing claims under the UTPCPL must demonstrate that they have
standing to do so. “The [UTPCPL] creates a private right of action in persons
upon whom unfair methods of competition and unfair or deceptive acts or
practices are employed and who[,] as a result, sustain an ascertainable
loss.” Toy, 928 A.2d 186, 191 (Pa. 2007); see 73 Pa.C.S. § 201-9.2.
The Pennsylvania Supreme Court repeatedly has held that, due to the
causation element in the UTPCPL’s standing provision, see 73 Pa.C.S. § 201-
9.2(a) (allowing for actions by private plaintiffs who suffer a loss “as a result
of” the defendant’s deception), a private plaintiff pursuing a claim under the
statute must demonstrate the justifiable reliance element of common-law
fraud. See Schwartz v. Rockey, 932 A.2d 885, 897 n.16 (Pa. 2007)
(“[T]he justifiable reliance criterion derives from the causation
requirement[,] which is express on the face of section 9.2.”); Toy, 928 A.2d
at 202 (“[A] plaintiff alleging violations of the Consumer Protection Law must
prove justifiable reliance.”); Yocca v. Pittsburgh Steelers Sports, Inc.,
854 A.2d 425, 438 (Pa. 2004) (“To bring a private cause of action under the
[UTPCPL], a plaintiff must show that he justifiably relied on the defendant’s
wrongful conduct or representation and that he suffered harm as a result of
that reliance.”); Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001) (“The
statute clearly requires, in a private action, that a plaintiff suffer an
ascertainable loss as a result of the defendant’s prohibited action. That
means . . . a plaintiff must allege reliance.”).
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Both the Cutler Group and the trial court cite Toy and Weinberg,
which they interpret to require that a plaintiff prove common-law fraud in
order to prevail on a claim under the UTPCPL. This is incorrect. Those cases
require only that private plaintiffs demonstrate one element of common-law
fraud, justifiable reliance, in order to bring a claim under the UTPCPL.
See Toy, 928 A.2d at 208 (“[T]his Court’s decision in Weinberg . . . stands
for the proposition that that a plaintiff alleging violations of the [UTPCPL]
must prove the common[-]law fraud element of justifiable reliance.”).
Notwithstanding Toy and Weinberg, the Hardings maintain that
“justifiable reliance cannot be an element of a claim under [subsection] 201-
2(4)(xiv).” Brief for the Hardings at 28. They reason that such an
interpretation of the statute would yield an absurd result because subsection
201-2(4)(xiv) “makes it a violation [of the UTPCPL] to fail to comply with a
written guarantee or warranty given to the buyer after the transaction was
made.” Id. at 27 (emphasis in original). The Hardings question how a
plaintiff could rely justifiably upon a written warranty that they received only
after the transaction was completed, and they maintain that the General
Assembly could not have intended to draft such an illogical provision.
The Hardings misunderstand the UTPCPL’s justifiable reliance
requirement. A private plaintiff is not required to demonstrate that the
written guarantee or warranty justifiably induced him to purchase goods or
services. Instead, the plaintiff must demonstrate that he justifiably relied
upon the defendant’s wrongful conduct or representation and that he
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suffered some harm as a result of that reliance. See Weinberg, 777 A.2d
at 446 (“The statute clearly requires, in a private action, that a plaintiff
suffer an ascertainable loss as a result of the defendant’s prohibited action.”
(emphasis in original)). Furthermore, the justifiable reliance requirement
does not render the entire statute illogical, because it applies only in actions
brought by private plaintiffs. The statute allows the Attorney General to
bring an action on behalf of the Commonwealth without demonstrating
justifiable reliance. See 73 Pa.C.S. § 201-4. In any event, Toy and
Weinberg are binding precedent, which this Court must apply without
regard to the rules of statutory construction.
Although the Cutler Group overstates the dictates of Toy and
Weinberg, its conclusion that the trial court erred in awarding damages to
the Hardings under the UTPCPL nevertheless is correct. Because the
Hardings neither alleged in their complaint, nor proved at trial, justifiable
reliance, their UTPCPL claims must fail as a matter of law. Accordingly, we
reverse the trial court’s finding of liability and award of damages and
attorneys’ fees under the UTPCPL.
In their third issue, the Cutler Group argues that the trial court abused
its discretion in allowing the Hardings to amend their complaint to include a
claim that the Cutler Group was liable pursuant to subsection 201-2(4)(xiv)
of the UTPCPL. Because we already have concluded that the Cutler Group
was not liable to the Hardings under the UTPCPL, this issue is moot.
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In their fourth issue, the Cutler Group contends that the trial court
erred in finding that the Cutler Group was liable to the Hardings under the
catch-all provision of the UTPCPL. This issue is moot. In its revised
decision, from which the Cutler Group has appealed, the trial court found
that that the Cutler Group had not violated the UTPCPL’s catch-all provision.
The Cutler Group’s fifth issue concerns the trial court’s amended
decision and findings of fact. The Cutler Group argues that “[i]t was not
only inappropriate for the [trial] court to change [its] factual findings after
final judgment and jurisdiction of the lower court had been relinquished, it
was legal error to do so.” Brief for the Cutler Group at 21. We disagree.
After a party files a notice of appeal, according to the Pennsylvania
Rules of Appellate Procedure, a trial court may “[t]ake any action directed or
authorized on application by the appellate court.” Pa.R.A.P. 1701(b)(5).
Here, the trial court requested that this Court remand the matter so that it
could vacate the judgment and enter a revised decision. We then granted
the trial court’s request and relinquished our jurisdiction.
Although the trial court’s revised decision did include more specific
factual findings, the substance of those findings also appeared in the court’s
original decision.4 For example, in its revised decision, the trial court noted
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4
The principal difference between the trial court’s original decision and
its revised decision relates to the Hardings’ UTPCPL claims. As explained,
supra, the trial court, in any event, erred in finding that the Cutler Group
violated the UTPCPL.
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that “[t]he 2003 International Residential Code (IRC) established the
accepted home building practice[s] and standards in Warwick Township,”
and then listed specific provisions of the IRC with which the Cutler Group
failed to comply. Order and Decision, 10/3/2014, at 2. However, in its
original decision, the trial court simply stated that the Cutler Group failed to
construct the home “in accordance with the accepted home[-]building
practice[s] in Warwick Township.” Findings and Decision, 3/4/2014, at 9.
The Cutler Group has not persuaded us that it was “severely
prejudiced” by these minor discrepancies. Brief for the Cutler Group at 22.
Moreover, the Cutler Group does not cite any case law to support its
contention that the trial court “should have ordered a new trial” under these
circumstances, and we are aware of none. See id. at 19. Accordingly, this
issue is without merit.
Finally, the Cutler Group argues that “the trial court abused its
discretion and committed an error of law by finding that [the Cutler Group]
breached its limited warranty with [the Hardings] where such a finding was
clearly against the weight of the evidence produced at trial and shocking to
the conscious.” Brief for the Cutler Group at 39.
Despite our best efforts, we fail to comprehend the Cutler Group’s
argument on this issue. Indeed, it is not clear whether the Cutler Group is
challenging the weight of the evidence, the sufficiency of the evidence, the
trial court’s legal conclusions, or something else entirely. See id. (arguing
that the trial court’s finding was “clearly against the weight of the evidence,”
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and “shocking to the conscious [sic]”); id. at 41 (arguing that the trial court
“failed to apply its own finding[s] of fact to its decision”); id. at 42 (arguing
that “it was an abuse of discretion and error of law to find that [the Cutler
Group] breached the limited warranty”).
The Cutler Group’s failure to set forth the standard of review applicable
to their claim adds further ambiguity to their argument. In fact, this section
of the Cutler Group’s brief is devoid of any citation to relevant legal
authority.5 Because the Cutler Group has not developed this issue, it is
waived. See Pa.R.A.P. 2101 (this Court may quash or dismiss matter if
defects in briefs or reproduced record are substantial), 2111 (rules
governing content of briefs), and 2119 (requiring discussion and citation of
authority). We will not act as counsel to develop arguments on behalf of
appellants. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007). When defects in a brief impede this Court from conducting
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5
In their brief, the Cutler Group cites a single case, Henderson v.
Benson-Hartman Motors, Inc., 33 Pa. D. & C.3d 6 (Pa. Com. Pl. 1983),
for the proposition that “implied warranties may be limited in duration.”
Brief for the Cutler Group at 40. That citation is unproductive for several
reasons. First, it is well-settled that “appellate courts are not bound by the
decisions of the Courts of Common Pleas.” Sysco Corp. v. FW
Chocolatier, LLC, 85 A.3d 515, 520 (Pa. Super. 2014). Second, the
language in Henderson that the Cutler Group relies upon comes from a
federal statute not at issue in this case. See 15 U.S.C. § 2308(b). Third,
Henderson in no way relates to the issue that the Cutler Group has
preserved for our review, i.e., whether the trial court’s finding was contrary
to the weight of the evidence. See Statement of Matters Complained of on
Appeal, 1/19/2015, at 1; Brief for the Cutler Group at 39.
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meaningful appellate review, we may dismiss the appeal entirely or find that
certain issues are waived. Id.; see also Commonwealth v. Luktisch, 680
A.2d 877 (Pa. Super. 1996) (deeming issue waived where defendant failed
to develop argument in his appellate brief and cited no authority).
For the forgoing reasons, the trial court erred in holding that the Cutler
Group violated the UTPCPL. Because the Hardings failed to demonstrate
justifiable reliance, the trial court erred in awarding the Hardings damages
under the UTPCPL. In all other respects, we affirm.
Affirmed in part and reversed in part. Case remanded. Jurisdiction
relinquished.
Judge Donohue joins the memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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