Sunday, November 05, 2017

consumer protection - attorney fees - fraud - etc.

Krishnan v. Cutler Group – Pa. Super. – October 2, 2017

Held:  Contractor which built subject to chronic water infiltration and damage to home was liable for attorney fees and expert costs under the state consumer protection law.

Attorney fees – multiple theories of relief
A court in awarding attorney fees under the UTPCPL must eliminate the efforts of counsel to recover on non-UTPCPL theories.  Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1031-2 (Pa. Super. 2005)  There “is no statutory authority for awarding attorney[s’] fees for the time spent pursuing non-UTPCPL counts.” Id. at 1032  However, the Superior Court has also recognized the difficulty in differentiating the time spent pursuing UTPCPL claims from non-UTPCPL claims. For instance, it has noted that “where the plaintiffs are proceeding on multiple theories of relief, including under the UTPCPL, it is difficult to parse out the time between the UTPCPL claim and other causes of action.” Boehm, 117 A.3d at 335. In such scenarios, “[m]uch of the time spent in pre-trial litigation would relate to both UTPCPL and common law causes of action.”

Statute of Limitations
The court rejected the argument that the SOL should begin on the date of settlement for the home.  Rather, it held that it was the failure to honor the contract warranty, not necessarily the issuance of the warranty that triggered liability and generated a UTPCPL claim.”  Thus, the trial court explained that it wasn’t until the homeowners and Cutler learned of the water infiltration caused by the construction failures,  Cutler failed to search for and solve the problem, and refused to abide by its warranty that the violation occurred and the claim arose.

Fraud and the UTPCPL
The court rejected that argument that the homeowner had to prove the elements of common law fraud in order to prevail under the catchall provision of the UTPCPL, holding that  it “has established that a plaintiff does not need to prove common law fraud to state a claim under the current catchall provision. See Bennett, 40 A.3d at 154 (“A contrary reading that adheres to the common law fraud requirement for cases arising under the post-amendment catchall provision ignores the textual changes of the 1996 amendment as well as the rules of statutory construction.”). Furthermore, Cutler has not cited any appellate authority to support that subsections 201-2(4)(vii) and 201-2(4)(xiv) require Appellees to prove each of the elements of common law fraud.”

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)