Wenk, J. v. State Farm Fire and Casualty

J-A26008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEFFREY R. WENK AND LEE ANN : IN THE SUPERIOR COURT OF
WENK A/K/A LEE ANN MADDEN : PENNSYLVANIA
:
:
v. :
:
:
STATE FARM FIRE AND CASUALTY :
COMPANY AND H.J.M. ENTERPRISES, : No. 1284 WDA 2018
INC. TDBA FIREDEX OF PITTSBURGH :
:
:
APPEAL OF: STATE FARM FIRE AND :
CASUALTY :

Appeal from the Judgment Entered July 25, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. GD 08-018845

JEFFREY R. WENK AND LEE ANN : IN THE SUPERIOR COURT OF
WENK A/K/A LEE ANN MADDEN : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1287 WDA 2018
STATE FARM FIRE AND CASUALTY :
COMPANY AND H.J.M. ENTERPRISES, :
INC. TDBA FIREDEX OF PITTSBURGH :

Appeal from the Judgment Entered July 25, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 08-018845

JEFFREY R. WENK AND LEE ANN : IN THE SUPERIOR COURT OF
WENK A/K/A LEE ANN MADDEN : PENNSYLVANIA
:
:
v. :
J-A26008-19

STATE FARM FIRE AND CASUALTY :
COMPANY AND H.J.M. ENTERPRISES, :
INC. TDBA FIREDEX OF PITTSBURGH :
: No. 1288 WDA 2018
:
APPEAL OF: H.J.M. ENTERPRISES, :
INC. TDBA FIREDEX OF PITTSBURGH :
:
:

Appeal from the Judgment Entered July 25, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. GD-08-018845

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 14, 2020

Jeffrey and Lee Ann Wenk (“the Wenks” or “Appellants”),1 who are

Allegheny County homeowners in Upper St. Clair Township in Allegheny

County, appeal from the judgment entered in this case on July 25, 2018,

following a bench trial. State Farm Fire and Casualty Company (“State Farm”

or “Appellee”) and H.J.M. Enterprises, Inc. tdba FireDEX of Pittsburgh

(“FireDEX” or “Appellee”) filed cross appeals. We affirm in part and vacate

and remand in part.

The Wenks filed a complaint against State Farm and FireDEX asserting

claims of bad faith against State Farm and the following claims against both

State Farm and FireDEX: breach of contract; breach of warranty; violations

____________________________________________

1 The Wenks are the designated Appellants in this consolidated appeal. Order,
12/27/18.

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of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law

(“UTPCPL”), 73 P.S. §§ 201-1, et seq.; and intentional infliction of emotional

distress.

In a Memorandum Opinion accompanying the verdict, the trial court

summarized the facts of the case as follows:

The Plaintiffs, (hereinafter “the Wenks”) are homeowners in
Allegheny County. The Wenks hired a contractor[2] to perform
remodeling on their home. In the process, the contractor, in an
attempt to destroy a bee’s nest, poured gasoline within the
framework of the Wenks’ home,3 thereby contaminating the wood
structure in a corner of the house. The Wenks contacted their
homeowner’s insurer, State Farm, to submit a claim and request
assistance in repairing the damage. Following consultation with
State Farm, the Wenks agreed to permit a State Farm approved
contractor, FireDEX, to perform the remedial work on their home.
FireDEX prepared an estimate including a scope of work that
involved removing all of the contaminated lumber plus four
additional feet of contaminated material, replacing the material,
and returning the home to its original condition.

During the course of FireDEX’s work, the Wenks, and in
particular Mr. Wenk[,] took issue with an ever-increasing number
of perceived deficiencies in the work performed by FireDEX.
Additionally, the Wenks began to believe that the work performed
by FireDEX was causing additional structural damage to other
aspects of their home. The Wenks requested that State Farm
engage an engineer to address their concerns regarding FireDEX’s
____________________________________________

2 The contractor was D & R Equipment, Inc., tdba Mt. Pleasant Window and
Remodeling Co., which subcontracted with Kohl Building Products, Inc. and
Ronald Eubanks. The Wenks and State Farm, which asserted its subrogation
interest and sought reimbursement of amounts payable to the Wenks, sued
these entities separately in 2009, Wenk v. D&R Equipment, Allegheny
County Common Pleas docket number GD 09-011729 (“D&R Equipment”),
for claims of negligence, UTPCPL, trespass, breach of contract, and breach of
warranty, many of the same claims sought herein.

3 The complaint alleges the incident occurred on September 10, 2007.

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work and their concerns regarding damage to their home. State
Farm declined to do so. The Wenks independently engaged their
own engineer to conduct a review of the work being performed.
The Wenks’ engineer identified what he considered to be deficient
aspects of the work performed and offered an alternative remedial
scope of work necessary to return the home to its original
condition. State Farm declined to accept these recommendations.
Nonetheless, as complaints and concerns continued to escalate,
State Farm ultimately did review the work being performed by
FireDEX, engaged an engineer of its choosing to review the work
of FireDEX, and did ultimately confirm that some of the work was
deficient.

In the process of allowing for and permitting the re-
inspection of their home by each of the engineers, the Wenks
made the unilateral decision to remove large portions of walls,
flooring, and ceiling to allow the inspectors and engineers to see
what the Wenks believed was evidence of deficient work by
FireDEX. The Wenks’ engineer agreed that these deconstruction
exposures were helpful in permitting him to understand the
problems and formulate solutions to the problems. State Farm’s
engineer did not believe that these deconstruction exposures of
the home were at all necessary, but rather constituted
unnecessary destruction of areas of the home. Principally because
of the removal of the floors and walls, the Wenks’ home became,
in the Wenks’ view, uninhabitable. Accordingly, they moved to
alternative housing. Because they moved, they requested
alternative living[-]expense payments under their State Farm
insurance policy. Payment for these expenses were [sic] originally
declined by State Farm, however, they were later approved,
essentially, (in the view of State Farm,) as a good will gesture. In
addition, the deconstruction of the home by the Wenks created a
need for additional work to return the home to its original
condition.

The Wenks’ engineer and State Farm’s engineer did not
agree as to what remedial structural changes were necessary in
order to ensure a structurally sound reconstruction of the Wenks’
home so as to return it to its original condition. The Wenks
generally became dissatisfied and suspicious of the work
performed by FireDEX. In particular, the Wenks believed that
FireDEX’s work was unworkmanlike, unprofessional and often
performed contrary to the applicable building codes and

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regulations. As a result, the Wenks ordered FireDEX from the site
and refused to permit FireDEX to continue any work on the home.

The Wenks ultimately engaged CCTV [Technology (“CCTV”)]
to perform the reconstruction work consistent with the plans and
design drawings of the Wenks’ independently engaged engineer.
CCTV is an entity owned by Mr. Wenk’s parents. Mr. Wenk
acknowledged that his father plays no active role in the company
and that his mother serves purely as a treasurer. Mr. Wenk, while
not an “owner” of CCTV, serves as the company’s project manager
and is personally in charge of all material operations of the
company.[4] Accordingly, Mr. Wenk agreed with the proposition
advanced by defense counsel that he, Mr. Wenk, negotiated an
oral contract on behalf of the Wenks (himself and his wife) with
himself, as project manager of and on behalf of CCTV, wherein
CCTV would perform reconstruction work on the Wenks’ home.
Mr. Wenk offered extensive testimony regarding the manner in
which he attempted to ensure that CCTV’s costs and expenses
charged to the Wenks were fair and reasonable. Nonetheless,
because of the close relationship between CCTV and the Wenks,
[State Farm and FireDEX] questioned the fairness and
reasonableness of the CCTV estimate, charges, and expenses.

Memorandum Opinion and Verdict, 6/7/17, at 1–3.

All parties filed motions for summary judgment, which were denied on

September 21, 2016. A bench trial occurred between April 17, and April 28,

2017.5 The trial court issued a Memorandum Opinion and Verdict on June 7,

2017, and judgment was entered by praecipe on July 25, 2018. The trial court

found as follows:

____________________________________________

4 Mr. Wenk described CCTV as follows: “Our primary role is we integrate
camera systems in what’s called biometrics, maybe with lock systems or
payroll systems and that type of technology.” N.T., 4/17/17, at 383, 467.

5 The trial court erroneously stated that the trial occurred between May 17,
and May 28, 2017. Memorandum Opinion and Verdict, 6/7/17, at 1.

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 In favor of State Farm and against the Wenks on claims sounding
in breach of warranty, intentional infliction of emotional distress,
UTPCPL and bad faith (whether statutory or institutional), including the
demand for exemplary treble and punitive damages;

 In favor of the Wenks and against State Farm on the Wenks’ claim
for breach of contract and granted judgment for the Wenks in the
amount of $27,500;

 In favor of the Wenks and against FireDEX on the Wenks’ claim
for breach of contract, breach of warranty, and UTPCPL, awarding the
Wenks $70,000 but declining to award exemplary treble damages,
punitive damages, or attorney fees on the Wenks’ UTPCPL claims and
ruling the $70,000 was recoverable against either FireDEX or State Farm
because FireDEX had acted under the direction and supervision of State
Farm.

Memorandum Opinion and Verdict, 6/7/17, at 5–7. All parties filed post-trial

motions. At a status conference on August 30, 2017, all parties agreed that

the trial court would defer ruling on post-trial motions pending its ruling on

State Farm and FireDEX’s argument that the Wenks’ award should be offset

by the settlement, filed under seal, in the related case, Wenk v. D&R

Equipment. The Wenks argued that the settlement should not be offset

because State Farm and FireDEX were not joint tortfeasors in the related

case.6

On March 6, 2018, the trial court denied setoff. Order, 3/6/18. State

Farm filed a praecipe on July 25, 2018, for entry of judgment upon a nonjury

verdict pursuant to Pa.R.C.P. 227.4. The Wenks assert that as a result, the

____________________________________________

6 State Farm was a plaintiff in the related case, and FireDEX was not a party.

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trial court did not rule on the parties’ motions for post-trial relief other than

the setoff issue raised by State Farm and FireDEX.7 Appellant’s Brief at 7. The

Wenks appealed on August 23, 2018, and both State Farm and FireDEX filed

cross-appeals on September 5, 2018. All parties and the trial court complied

with Pa.R.A.P. 1925.

Issues in the Wenks’ Appeal, 1287 WDA 2018

The Wenks raise the following issues:

1. Whether institutional evidence, such as an insurer’s corporate
policies and practices related to the handling of claims by its
insureds, is as a matter of law irrelevant to a claim for insurance
bad faith under 42 Pa. C.S. § 8371?

2. Irrespective of the answer to the Question No. 1, supra,
whether the trial court abused its discretion when it determined
that “it cannot be reasonably said, given the facts and evidence
adduced at trial, that State Farm lacked a reasonable basis for
denying benefits and/or that State Farm knew or recklessly
disregarded its lack of a reasonable basis to deny benefits to the
[the Wenks?]”

3. Whether an insurance company’s handling of claims is a
consumer transaction of the nature intended to be protected
under Pennsylvania’s Unfair Trade Practices and Consumer
Protection Law (“UTPCPL”), 73 Pa. C.S. § 201-1, et seq[?]

4. Whether the UTPCPL requires plaintiffs to establish fraudulent
and deceptive conduct when bringing claims based on violations
of § 201-2(4), other than the “catch-all” provision at § 201-
2(4)(xxi) of the statute[?]

____________________________________________

7 Unlike the rules of criminal procedure requiring a court to act within 120
days of the filing of the post-trial motion or it will be deemed denied by
operation of law, see Pa.R.Crim.P. 720(B)(3), the rules of civil procedure do
not provide a similar automatic mechanism. Rather, a party is required to
praecipe for entry of judgment to move the case forward, where the court has
not decided the motion within 120 days after its filing. Pa.R.C.P. 227.4(1)(b).

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5. If the answer to Question No. 4, supra, is “Yes,” whether the
trial court abused its discretion by finding that the evidence in this
case was insufficient to satisfy the clear and convincing
standard[?]

The Wenks’ Brief at 3–4 (emphasis in original).

Issues in State Farm’s Appeal, 1284 WDA 2018

1. Whether the [t]rial [c]ourt erred in in permitting the Wenks to
obtain a double recovery by denying State Farm’s Motion to apply
a set-off for the amount recovered by the Wenks pursuant to a
settlement agreement in a separate lawsuit filed against the
original contractors who damaged their home with gasoline when
the Wenks sought and recovered money for the . . . same
categories of damages in both lawsuits?

2. Whether the [t]rial [c]ourt erred in finding that FireDEX acted
at the “direction and supervision” of State Farm when the weight
of the evidence reveals that State Farm did not direct, supervise,
or otherwise control FireDEX’s work and, therefore, should not be
liable for the $70,000.00 awarded against FireDEX?

State Farm’s Brief at 4.

Issues in FireDEX’s Appeal, 1288 WDA 2018

A. When an owner terminates a contractor’s performance of
repair work on a home and, thereby, deprives the contractor of
the opportunity to cure any defects in its work, is the contractor
entitled to judgment [notwithstanding the verdict (“JNOV”)] on
claims for damages due to inadequate repairs brought under
theories of breach of contract or warranty or under the Unfair
Trade Practices and Consumer Protection Law predicated upon a
breach of warranty?

B. When homeowners settled their claims against remodeling
contractors that allegedly damaged their home—claims which
necessary[il]y included the original loss as well as any
enhancement of damages due to another contractor’s faulty
repairs of the original damage—is the second contractor entitled
to a setoff of any damages recovered from the original contractors
to prevent a duplicate recovery by the owners?

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FireDEX’s Brief at 3.

We first address the Wenks’ issues assailing the trial court’s conclusion

that the Wenks did not carry their burden of proof for claims of bad faith.8

The Wenks assert that they introduced extensive evidence that State Farm

acted in bad faith specifically directed toward the Wenks during State Farm’s

handling of the Wenks’ claims. The Wenks’ Brief at 29. The Wenks maintain

that such evidence “included institutionalized conduct,” such as State Farm’s

policies, practices, and other acts.” Id. The Wenks contend, contrary to the

trial court, that institutional evidence of bad faith is relevant in Pennsylvania

under 42 Pa.C.S. § 8371. The Wenks’ Brief at 22, 28–35. The Wenks aver

that institutional bad faith is not a separate cause of action from statutory bad

faith. Id. at 23, 30–31.

The Wenks cite to Berg v. Nationwide Mut. Ins. Co., 44 A.3d 1164

(Pa. Super. 2012), where this Court concluded that the trial court erred in

directing a verdict on the plaintiffs’ bad-faith claim and remanded for a new

____________________________________________

8 The Wenks’ Brief is a combination of argument on their issues presented in
their appeal docketed at 1284 WDA 2018 and response to both State Farm
and FireDEX cross-appeals. Unlike State Farm and FireDEX, the Wenks do not
separate the claims—their arguments and responses to Appellees’ arguments
are co-mingled and presented as one.

Moreover, we are compelled to comment on the confusing and
inconsistent presentation of this brief, which delineates issues 1–5 in the
Statement of Questions Involved but provides argument labeled A–E, where
the alphabetical sections do not correspond to the numbered issues. See,
e.g., issue 3 purporting to address the UTPCPL, the Wenks’ Brief at 3, and
Argument C, addressing bad faith.

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trial, where the plaintiffs would have the burden to prove their bad-faith

allegations by clear and convincing evidence. The Wenks’ Brief at 34. On

remand, the Bergs obtained an eighteen-million-dollar verdict against

Nationwide, and on appeal, this Court vacated the judgment and remanded

for entry of judgment in favor of Nationwide. Berg v. Nationwide Mut. Ins.

Co., 189 A.3d 1030 (Pa. Super. 2018). The Wenks cite Berg as evidence that

Pennsylvania courts consider institutional bad faith. The Wenks also maintain

that consideration of institutional evidence of bad faith in Pennsylvania is

consistent with other jurisdictions. The Wenks’ Brief at 38 (citing State Farm

Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003)).

Pennsylvania’s Bad Faith Statute, 42 Pa.C.S. § 8371, creates a cause of

action against an insurance company “if the court finds that the insurer has

acted in bad faith toward the insured.” The statute provides as follows:

In an action arising under an insurance policy, if the court finds
that the insurer has acted in bad faith toward the insured, the
court may take all of the following actions:

(1) Award interest on the amount of the claim from the date
the claim was made by the insured in an amount equal to
the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S. § 8371. The statute does not define “bad faith,” but courts

generally have defined the term as “any frivolous or unfounded refusal to pay

proceeds of a policy.” Rancosky v. Washinton National Ins. Co., 170 A.3d

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364, 365, 372–373 (Pa. 2017) (quoting Terletsky v. Prudential Property

& Casualty Ins. Co., 649 A.2d 680, 688 (Pa. Super. 1994)). To recover on

a bad-faith claim, a claimant is required to show, by clear and convincing

evidence, that the insurer: (1) did not have a reasonable basis for denying

benefits under the policy, and (2) knew or recklessly disregarded its lack of

reasonable basis when it denied the claim. Rancosky, 170 A.3d at 365.

Claims of bad faith are fact specific and depend on the conduct of the insurer

toward its insured. Condio v. Erie Ins. Exch., 899 A.2d 1136, 1143 (Pa.

Super. 2006).

The trial court concluded the Wenks failed to meet their burden of

proving State Farm acted in bad faith. The trial court stated:

With respect to [the Wenks’] claims for statutory bad faith
pursuant to 42 Pa.C.S. § 8371, I conclude that [the Wenks] have
not met their burden, and I find in favor of Defendant State Farm.
It cannot be reasonably said, given the facts and evidence
adduced at trial, that State Farm lacked a reasonable basis for
denying benefits and/or that State Farm knew or recklessly
disregarded its lack of a reasonable basis to deny benefits to [the
Wenks]. Mere negligence or bad judgment in failing to pay a claim
does not constitute bad faith. An insurer may always aggressively
investigate and protect its interests. Particularly in light of the
higher burden of proof, specifically the requirement that [the
Wenks] must prove a bad faith claim by “clear and convincing”
evidence, the record in this case does not support the assertion of
statutory bad faith on behalf of State Farm. Accordingly, I find for
the Defendant, State Farm.

Memorandum Opinion and Verdict, 6/7/17, at 6.

Our review of the record compels the conclusion that the trial court did

not abuse its discretion in concluding that the Wenks failed to present clear

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and convincing evidence that State Farm acted in bad faith under 42 Pa.C.S.

§ 8371. As noted above, to establish a violation of Section 8371, the Wenks

must have shown by clear and convincing evidence that State Farm lacked a

reasonable basis for denying the Wenks benefits, and that it knew or recklessly

disregarded its lack of a reasonable basis. Rancosky, 170 A.3d at 377.

The Wenks assert that State Farm acted in bad faith by refusing to pay

their engineering fees and delaying hiring its own engineer for over a year

when the opportunity to address the Wenks’ issues had already passed. The

Wenks’ Brief at 42, 44. They contend that when State Farm did hire an

engineer, it “restricted the engineer’s ability to offer opinions on the Wenks’

concerns.” Id. at 46. The Wenks maintain that State Farm also acted in bad

faith by instructing “FireDEX and its engineer to disregard [building] code

compliance issues raised by the Wenks.” Id. at 51.

State Farm denies acting in bad faith and points to their payment of

project management fees of $16,640, which included payment of engineering

fees. State Farm’s Brief at 26 (citing Exh. 111, Jones Construction estimate,

3/26/10). State Farm defends their initial decision not to hire an engineer

based upon information provided by FireDEX, Mr. Wenk, and the building code

officer. State Farm’s Brief at 26 (citing N.T., 4/17/17, at 252–256). State

Farm also responds that once the Wenks agreed to provide a list of their

concerns, State Farm agreed to hire an engineer to evaluate those issues.

State Farm’s Brief at 28 (citing Exh. 166; N.T., 4/17/17, at 280). State Farm’s

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engineer, Randall Lee Exley, testified that his inspection did not find that the

Wenks’ home was structurally unsound or uninhabitable. N.T., 4/17/17, at

1161–1162, 1170–1171. Regarding the alleged building code noncompliance,

Nikole Sullivan, the State Farm claims adjuster assigned to the Wenks,

testified she never told FireDEX that the building code did not apply to the

repairs of the Wenks’ home; indeed, it was State Farm’s expectation that

FireDEX would complete the repairs “in accordance with the existing code.”

N.T., 4/18/17, at 251–252.

We have reviewed the extensive record. We agree with the trial court’s

conclusion that the Wenks failed to meet their burden of proving bad faith by

State Farm by clear and convincing evidence. As espoused by State Farm,

Section 8371 limits bad faith actions to the company’s conduct toward the

insured asserting the claim. Under this premise, this Court has held that “bad

faith claims are fact specific and depend on the conduct of the insurer vis a

vis the insured.” State Farm’s Brief at 36 (citing Williams v. Nationwide

Mut. Ins. Co., 750 A.2d 881, 887 (Pa. Super. 2000)). The trial court, as the

fact finder, was responsible for determining the credibility of the witnesses

and the evidence. Based upon our review of the record, we cannot say the

trial court erred in concluding that the Wenks did not prove by clear and

convincing evidence that State Farm did not have a reasonable basis for

denying them benefits under the policy, and did not know or recklessly

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disregard a lack of reasonable basis when it denied the claim. Rancosky, 170

A.3d at 365.

Finally, the trial court properly concluded that there is no separate cause

of action of institutional bad faith. Memorandum Opinion and Verdict, 6/7/17,

at 6. Indeed, the Wenks agree that institutional bad faith is not a separate

cause of action from statutory bad faith. The Wenks’ Brief at 30. We disagree

with the Wenks’ contention that the trial court’s statement, “With respect to

[the Wenks’] claims of ‘institutional bad faith,’ I find for . . . State Farm.

Pennsylvania law does not recognize claims for institutional bad faith,”

equates to the conclusion that the trial court refused to consider the Wenks’

evidence relating to State Farms’ conduct and practices. The Wenks’ Brief at

30. Our review of the record reveals that the Wenks produced evidence of

State Farm’s manuals, guidelines, and procedures, all of which was considered

by the trial court. Section 8371, however, authorizes specified actions by the

trial court “if the court finds that the insurer has acted in bad faith toward

the insured . . . ,” not to the world at large. 42 Pa.C.S. § 8371 (emphasis

added). Thus, herein, the trial court, when presented with evidence of State

Farm’s policies and procedures, did not find them to be improper when

applied to the Wenks’ claim, although not a separate claim concerning

“institutional bad faith.” The Wenks failed to establish a nexus between State

Farm’s business policies and the specific claims the Wenks asserted in support

of bad faith.

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The Wenks alternatively ask this Court to “reverse the trial court’s

dismissal of the Wenks’ claim based on State Farm’s violations of

Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.” The

Wenks’ Brief at 67. They assert they presented uncontroverted evidence at

trial that State Farm engaged in fraudulent and deceptive conduct. Id. at 25,

67. They allege the following deceptive and misleading conduct by State

Farm:

a) Misrepresentations of State Farm’s relationship to [State Farm’s
Premier Service Provider network] contractors generally, and
FireDEX in particular, in regard to the supervision and control that
State Farm exerts over it/them.

b) Misrepresentations to Mr. Wenk in March 2008 that the building
code did not apply to the construction at his home.

c) Misrepresentations to the Wenks that their home was
structurally sound and safe when there was no reasonable basis
for making that assertion.

The Wenks’ Brief at 69. The Wenks ask this Court to vacate the verdict

dismissing their UTPCPL claims against State Farm and remand for entry of

judgment in favor of the Wenks and an award of damages, including punitive

damages, interest, and counsel fees. Id.

The Wenks contend the trial court also failed to address their UTPCPL

claims against FireDEX. The Wenks allege these violations by FireDEX:

1. FireDEX misrepresented to the Wenks that it had the expertise
and experience necessary to perform the contracted services
when FireDEX knew that State Farm would prevent it from making
repairs in accordance with the representations FireDEX made to
the Wenks;

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2. FireDEX failed to comply with the terms of the warranty given
to the Wenks in violation of 73 P.S. §201-2(xiv);

3. FireDEX made repairs and replacements to the Wenks’ house
that were inferior to or below the standard of that agreed to in
writing in violation of 73 P.S. §201-2(xvi);

4. FireDEX misrepresented the nature of its relationship with State
Farm, including failure to disclose that the performance of its work
would be subject to a separate contract with State Farm that
allowed State Farm to direct and supervise FireDEX, in violation
of 73 P.S. §201-2(4)(iii);

5. FireDEX misrepresented the requirements of the applicable
building codes, ordinances and regulations; and

6. FireDEX misrepresented that its repair services were of a
particular standard or quality, in order to induce the Wenks to
utilize FireDEX in violation of 73 P.S. §201-2(4)(vii).

The Wenks’ Brief at 70–71. They argue that the trial court concluded only

that FireDEX’s UTPCPL violations were limited to its failure to comply with the

terms of a written guarantee or warranty to the Wenks and failed to address

the Wenks’ other UTPCPL claims. Id. at 72, 73. The Wenks ask this Court to

vacate the verdict “that erroneously required the Wenks to show that

FireDEX’s conduct was ‘deceptive or fraudulent’ with respect to its violation of

73 P.S. § 201-2(xiv)” and remand to the trial court with instructions to award

treble damages, costs, and reasonable counsel fees. Id. at 76–77.

The UTPCPL was enacted to protect consumers “from fraud and unfair

or deceptive business practices.” Commonwealth ex rel. Corbett v.

Peoples Benefit Servs., Inc., 923 A.2d 1230, 1236 (Pa. Cmwlth. 2007)

(citing Commonwealth by Creamer v. Monumental Properties, Inc., 329

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A.2d 812 (Pa. 1974)). The UTPCPL applies to the sale of an insurance policy,

it does not apply to the handling of insurance claims, as alleged herein.

Neustein v. Government Employees Insurance Co., 2018 WL 6603640

(W.D. Pa. filed November 29, 2018) (slip op. at *2) (emphasis added).9

Rather, 42 Pa.C.S. § 8371 “provides the exclusive statutory remedy applicable

to claims handling.” Id.

We rely upon the trial court’s explanation in addressing State Farm’s

and FireDEX’s UTPCPL issues. The trial court explained as follows:

____________________________________________

9 We acknowledge that:

federal court decisions do not control the determinations of the
Superior Court. Our law clearly states that, absent a United States
Supreme Court pronouncement, the decisions of federal courts are
not binding on Pennsylvania state courts, even when a federal
question is involved . . . . [However, w]henever possible,
Pennsylvania state courts follow the Third Circuit [Court of
Appeals] so that litigants do not improperly “walk across the
street” to achieve a different result in federal court than would be
obtained in state court.

McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 106 n.13 (Pa.
Super. 2015) (quoting NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52
A.3d 296, 303 (Pa. Super. 2012) (citations omitted)). Further:

When confronted with a question heretofore unaddressed by the
courts of this Commonwealth, we may turn to the courts of other
jurisdictions. “Although we are not bound by those decisions,” “we
may use decisions from other jurisdictions for guidance to the
degree we find them useful and not incompatible with
Pennsylvania law.”

Commonwealth v. Manivannan, 186 A.3d 472, 483–484 (Pa. Super. 2018)
(citing Newell v. Mont. W., Inc., 154 A.3d 819, 823 and n.6 (Pa. Super.
2017) (citation and internal quotation marks omitted)).

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With respect to the Unfair Trade Practices and Consumer
Protection Law claims against State Farm, I find for State Farm.
Although I have considered all of the specific allegations asserted
by [the Wenks] against State Farm, it is sufficient for purposes of
this Memorandum to simply note that I do not conclude that State
Farm engaged in fraudulent or deceptive conduct. I also note
decisional law of this [c]ourt and Pennsylvania state and federal
jurisdiction concluding that Unfair Trade Practices and Consumer
Protection Law claims are not amenable to claims which are, in
substance, principally assertions of inappropriate claims handling
by insurance companies, because claims handling is not a
consumer transaction of the nature intended to be protected
under the Unfair, Trade Practices Consumer Protection Law.

* * *

With respect to the Unfair Trade Practices and Consumer
Protection Law claims brought by the [Wenks] against Firedex, I
am constrained to find for the Wenks and against Firedex. While
the [Wenks] advance numerous theories supporting their Unfair
Trade Practices and Consumer Protection Law claims, and point to
multiple issues of contention respecting the work performed by
Firedex, representations and conduct of Firedex during the job,
including of Firedex’s purportedly misleading, dishonest, and
disreputable tactics, and strategies, I am not persuaded based
upon what I find to be the competent and credible evidence of
record that Firedex engaged in any deceptive or fraudulent
conduct as defined by or required under the Unfair Trade Practice
and Consumer Protection Law. A detailed discussion of all of the
allegations and evidence proffered in support and rebuttal of each
is not warranted in the context of this Memorandum. However, it
is worth noting a particular piece of testimony by Mr. Wenk,
wherein he observes that he believed that Mr. Fanning, the project
manager for Firedex, was dutifully working on behalf of the Wenks
in a sustained effort to repair the Wenks’ home (and would have
succeeded if only, in the mind of Mr. Wenk, State Farm had
permitted him to do so).

Notwithstanding my conclusion that Firedex, did not engage
in deceptive or fraudulent conduct, my interpretation of the Unfair
Trade Practices and Consumer Protection Law found at 73 P.S.
§201-2 (4)(xiv) compels me to conclude that Firedex has violated
the UTPCPL. The relevant section of the Act indicates:

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“Unfair methods of competition” and “Unfair or
deceptive acts or practices” mean any one or more
of the following: (xiv) failing to comply with the terms
of any written, guarantee or warranty given to the
buyer at, prior to or after a contract for the purpose
of goods or services is made;

Accordingly, Firedex’s breach of its warranty,
notwithstanding its good intentions and lack of fraudulent or
deceptive intentions, in and of itself, constitutes a violation of the
UTPCPL. In this instance, that violation warrants recovery of the
same compensatory losses the Wenks would be entitled to under
the breach of contract claim. (Which are themselves, also
recoverable against State Farm). While the Wenks are
theoretically entitled to additional damages under the UTPCPL,
these damages are recoverable at the discretion of the fact
finder,[10] and are only warranted where the conduct of the
Defendant is, in some respect egregious, offensive or otherwise
recklessly or intentionally dismissive of the rights of the Plaintiff.
I do not conclude that Firedex’s conduct meets this standard.
Accordingly, while I recognize the availability of exemplary
damages under the UTPCPL, I do not believe the facts in this case
warrant the imposition of the same.

Memorandum Opinion and Verdict, 6/7/17, at 5–8 (emphases in original).

In sum, the trial court rejected the applicability of the UTPCPL to the

Wenks’ claims against State Farm. The UTPCPL applies to consumer

transactions, which are statutorily defined; the handling of an insurance claim

does not meet the statutory definition. See, e.g., Neustein. As to the claims

against FireDEX, the trial court found for the Wenks but exercised its

discretion, Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007), and rejected the

____________________________________________

1073 P.S. § 201-9.2 provides, inter alia, that a “court may, in its discretion,
award up to three times the actual damages sustained . . . .” (emphasis
added).

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Wenks’ claim for enhanced damages under the UTPCPL. Nexus Real Estate,

LLC v. Erickson, 174 A.3d 1, 5 (Pa. Super. 2017) (Trial courts “should focus

on the presence of intentional or reckless, wrongful conduct,” with which an

award of treble damages would be consistent, “in furtherance of the remedial

purposes of the UTPCPL.”) (quoting Schwartz, 932 A.2d at 897–898). We

affirm the trial court’s discretionary finding that the Wenks failed to prove

reckless or intentional misconduct by FireDEX that would warrant additional

statutory relief, and we affirm the trial court’s resolution of the UTPCPL claims.

In its cross appeal, FireDEX argues that it was entitled to JNOV because

the Wenks, in terminating FireDEX before work was completed, deprived it of

the opportunity to cure any defects. FireDEX’s Brief at 16. FireDEX improperly

cites to Wyse v. Leone, 121 A.3d 1118, 201 WDA 2014 (Pa. Super. 2015)

(unpublished memorandum), in support.11 We rely on the trial court’s

disposition in rejecting this claim, as follows:

FireDEX asserts that, because FireDEX was fired by [the
Wenks] without being afforded an opportunity to cure the defects
in FireDEX’s work, this [c]ourt erred in holding that FireDEX
breached its contract and warranty. Initially, the [c]ourt notes
that the present case did not involve a situation where the work
performed by FireDEX was merely incomplete. Rather, there was
ample evidence to support [the Wenks’] contention that FireDEX
failed to perform its work consistent with industry standards
and/or applicable codes and regulations, and that FireDEX thus
____________________________________________

11 Although Pa.R.A.P. 126 recently was amended to allow parties to rely on
non-precedential unpublished decisions of this Court as persuasive authority,
this amendment applies only to decisions filed after May 1, 2019. As Wyse
was filed four years earlier, on April 1, 2015, this unpublished memorandum
cannot serve as persuasive authority.

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J-A26008-19

performed its work in an unworkmanlike manner. Further,
FireDEX was afforded an opportunity to remedy the
deficiencies in its work when it was informed by [the
Wenks] of their dissatisfaction with FireDEX’s work,
specifically with respect to FireDEX’s failure to adhere to applicable
codes and regulations. Despite knowledge of [the Wenks’]
dissatisfaction, FireDEX continued to perform its work in an
unworkmanlike manner. For these reasons, FireDEX’s citation to
Wyse v. Leone, 2015 WL 7424731 (Pa. Super. Apr. 1, 2015)
[(unpublished memorandum)] does not support FireDEX’s
argument that this [c]ourt erred in holding that FireDEX breached
its contract and warranty.

Pa.R.A.P. 1925(a) Opinion, 11/30/18, at 3 (emphasis added).

Also in their cross-appeals, State Farm12 and FireDEX both assail the

trial court’s determination that they were not entitled to a setoff of the

settlement in D&R Equipment, the case against the original remodeling

contractors who poured gasoline on the Wenks’ home. FireDEX’s Brief at 23–

29; State Farm’s Brief at 53–58. Because the settlement of that lawsuit

specifically included recovery for damages the Wenks also sought in the case

sub judice, including money to compensate them for damage to their home

and personal property, additional living expenses, loss of the use of the home,

and loss of market value, the trial court granted leave to State Farm and

FireDEX prior to trial in the instant case, to amend their New Matter to assert

a claim for a setoff. The trial court ultimately denied applying a setoff of the

amounts recovered in D&R Equipment against the verdict herein.

____________________________________________

12We do not address State Farm’s issue concerning liability of the $70,000
award to the Wenks due to our vacation of that judgment, infra.

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J-A26008-19

In denying the setoff, which was sought by Appellees in post-trial

motions, the trial court explained as follows:

[The Wenks] settled with the original contractor for a certain
sum, which was compensation for a variety of damages.
[Appellees] now argue that they are entitled to a setoff because
the settlement fully compensates [the Wenks] for their damages,
and under Pennsylvania law, [the Wenks] are not entitled to
recover twice for the same injury. [The Wenks] argue that
[Appellees] are not entitled to a setoff because [Appellees] and
the original contractor are not joint tortfeasors. See Amato v. Bell
& Gossett, 116 A.3d 607, 616 (Pa. Super. 2015), citing Ball v.
Johns–Manville Corp., 625 A.2d 650, 659-60 (Pa. Super. 1993)
(While some states...permit the apportionment of liability among
all tortfeasors, even those who have not been made parties,
Pennsylvania’s statute does not so provide).

I agree with [the Wenks] that the original contractor and
[Appellees] are not joint tortfeasors and therefore, [Appellees] are
not entitled to a setoff. I recognize that [Appellees] have
proffered a well reasoned and sensible argument that they
are not required to be joint tortfeasors in order to be
entitled to a setoff. In Lasprogata v. Qualls, 397 A.2d 803 (Pa.
Super. 1979), [the] Plaintiff sustained injuries during a traffic
accident and sustained further injuries after alleged negligent
treatment of that injury. [The] Plaintiff brought suit against both
the driver and the doctor who treated his injuries. Id. at 804.
Citing § 457 of the Restatement (Second) of Torts,1 the court held
that the driver was liable for all of the Plaintiff[’]s injuries even
though the driver and the doctor were not joint tortfeasors. Id.
at 806. § 457 of the Restatement, however, deals only with bodily
injury, so it does not apply to the damages in this case.
Accordingly, [Appellees] argument is insufficient to overcome the
rationale and dictates of Amato. Given that [Appellees] and the
original contractor are not joint tortfeasors, [Appellees] are not
entitled to a setoff, and I am denying their Motion.

1 “If the negligent actor is liable for another’s bodily
injury, he is also subject to liability for any additional
bodily harm resulting from normal efforts of third
parties in rendering aid which the other’s injury
reasonably requires, irrespective of whether such acts
are done in a proper or negligent manner.”

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J-A26008-19

Memorandum and Order of Court, 3/6/18, at 1–2 (emphasis added).

State Farm argues the trial court erred in refusing to apply a setoff

“because Pennsylvania law clearly allows only one recovery for an injury,” and

allowing the Wenks to recover “from different parties for the same damages

affords them a double recovery,” which violates Pennsylvania law. State

Farm’s Brief at 23. State Farm asserts, contrary to the trial court, that

Pennsylvania law does not require State Farm to be a joint tortfeasor with

D&R Equipment, Inc. for a set-off to apply. Id. at 54.

FireDEX similarly contends the action in D&R Equipment sought some

of the same elements of damages as were pled in this case. FireDEX’s Brief

at 16. It takes issue, like State Farm, with the trial court’s holding that a

setoff is not permitted because Appellees were not joint tortfeasors with D&R

Equipment. Id. at 23.

Both State Farm and FireDEX cite Lasprogata v. Qualls, 397 A.2d 803

(Pa. Super. 1979), in support. While Lasprogata is factually distinguishable,

it is relevant in theory. In that case, the plaintiff was injured in a motor vehicle

accident and required surgery, during which a complication occurred,

hindering recovery and necessitating additional treatment. Lasprogata, 397

A.2d at 804. The plaintiff settled his lawsuit against the other driver and later

filed suit against the doctor who performed the surgery. This Court

determined, despite the fact that the doctor was not a joint tortfeasor with

the other driver, that damages recovered from each defendant must be

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J-A26008-19

apportioned to prevent the plaintiff from receiving a double recovery. Id. at

806–807. The trial court herein improperly limited Lasprogata to bodily-

injury claims. Neither the Wenks or the trial court cite authority, nor have we

found any, that requires such a narrow view.

Amato v. Bell & Gossett, 116 A.3d 607 (Pa. Super. 2015),13 cited by

the trial court, is distinguishable. That case involved contribution among

asbestos manufacturers who were alleged to be joint tortfeasors. We agree

with FireDEX that the Amato Court distinguished Lasprogata, which

“recognized the difference between joint tortfeasors[,] whose wrongdoing

combined to cause a single harm[,] and successive tortfeasors[, who] caused

distinct injuries or damages,” and this Court “allowed apportionment, not

contribution.” FireDEX’s Brief at 27. Moreover, herein, unlike in Amato,14

Appellees’ liability is predicated upon the negligence of D&R Equipment, the

non-party tortfeasor. Amato’s holding with respect to the “requirement” that

an offset is appropriate only when the defendant and a settling non-party are

____________________________________________

13 Thomas Amato, a boilermaker, developed mesothelioma and sued twenty-
four manufacturers of asbestos-containing products, one of which was
Cranite, a sheet gasket material supplied by Crane Co. The jury determined
that Mr. Amato’s exposure to Cranite was a factual cause of his mesothelioma.
Amato, 116 A.3d at 612.

14 In Amato, this Court emphasized that Crane’s liability was not predicated
“upon the liability of any third party, i.e., the settling defendants or non-
parties,” who were the asbestos manufacturers.” Rather, Crane Co.’s liability
was based on the “deleterious effects of its own products upon [Mr. Amato].”
Amato, 116 A.3d at 616.

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J-A26008-19

joint tortfeasors was modified by the crucial distinction that Crane Co.’s

liability was not predicated on the negligence of the settling tortfeasors, the

asbestos manufacturers, a distinction absent in the instant case. State Farm’s

Reply Brief at 2–3; see also Brown v. City of Pittsburgh, 186 A.2d 399,

402 (Pa. 1962) (“[F]or the same injury, an injured party may have but one

satisfaction.”).

We conclude the trial court erred in dismissing, as a matter of law, State

Farm’s and FireDEX’s requests for a setoff and instead, should have analyzed

the facts of the claims sought in both cases and the settlement reached in

D&R Equipment, in order to ensure that there was no duplication of recovery.

Therefore, we remand the matter for the trial court to hold an evidentiary

hearing to receive additional evidence, if any, and hear argument regarding

the injuries and damages claimed in each case, the amounts the Wenks

received, and the terms of the release in D&R Equipment.15

Thus, we affirm the dismissal of the bad faith and UTPCPL claims against

State Farm. We vacate the $70,000 judgment recoverable against State Farm

and/or FireDEX and remand to the trial court to hold an evidentiary hearing

and examine the damages recovered in D&R Equipment and apply a setoff,

if necessary.

____________________________________________

15 In light of our remand and our vacation of the $70,000 damage award, we
need not address State Farm’s argument that the trial court’s award of
$70,000 in damages to the Wenks’ due to improper work by FireDEX is
recoverable against either FireDEX or State Farm.

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J-A26008-19

Judgment in favor of the Wenks in the amount of $70,000 recoverable

against FireDEX and/or State Farm is vacated. Case remanded for

proceedings in accordance with this Memorandum. In all other respects, the

judgment is affirmed. Application for Relief is denied.16 Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/14/2020

____________________________________________

16 The Wenks filed an Application for Relief on August 16, 2019, in which they
request inclusion of a transcribed portion of a video exhibit into the record
that was prepared in October, 2018, eighteen months after the conclusion of
the trial in this case. N.T., 3/12/19, at 2–3. At trial, the trial court reviewed
a portion of the video file, which is contained on a flash drive, and played a
portion of the video at trial. N.T., 4/18/17, at 192–197. The Wenks did not
offer a transcript of the video at trial, the trial court stated that the audio of
the video clip was “contested” and “undecipherable,” and the Wenks declined
and did not object when the trial court excused the court reporter and asked
if they wanted “anything you’re saying on the record.” Id. at 194. The trial
court heard argument and correctly granted the joint motion to strike the
transcript of the video from the record because it “was not entered nor offered
at the time of trial, the audio of the videoclip “was significantly compromised,”
and the trial court determined that it “was unable to discern any material
relevant evidence to be derived therefrom.” Order, 3/15/19. The Application
is denied.

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