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.”
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.”
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