J-A11036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA DEBOLT-FRIED                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

GARY BARBERA’S AUTOLAND

                         Appellee                      No. 2331 EDA 2014


            Appeal from the Judgment Entered on June 30, 2014
            In the Court of Common Pleas of Philadelphia County
              Civil Division at No.: 2364 November Term, 2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                 FILED JULY 30, 2015

      Barbara Debolt-Fried appeals from the judgment entered on June 30,

2014, following a jury verdict in her favor in this action under the New Motor

Vehicle Damage Disclosure Act (“the Act”), 73 P.S. § 1970.3. We affirm.

      The trial court set forth the underlying facts of this case as follows:

      [Debolt-Fried] instituted suit against [Gary Barbera’s Autoland
      (“Barbera’s”)] alleging inter alia violation of the [Act] arising
      from the purchase of a new Chrysler 200 in January of 2012 for
      approximately $21,831.00. [Debolt-Fried] maintained that the
      vehicle contained bubbling and scratches to the paint as well as
      defects to the side panels and molding between the doors.
      [Debolt-Fried] returned the car to [Barbera’s] for repairs about
      6-8 times between the purchase date, beginning in February
      2012, until September 2012. Although [Barbera’s] attempted to
      remedy the problem, and did so as best as possible as reflected
      in the trial testimony, it was clear that [Barbera’s] failed to notify
      [Debolt-Fried] in writing of these defects at the time of sale.

      The Act required [Barbera’s], as a dealer, to so notify [Debolt-
      Fried] in writing at the time of sale of damages to the vehicle
      which exceeded the greater of $500.00 or 3% of the purchase
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     price. It was stipulated at trial that the threshold amount in this
     case was $660.00. The matter was tried before [the trial c]ourt
     and the jury as to whether [Barbera’s] violated provisions of the
     Act. On April 3, 2014[,] the jury returned a verdict in favor of
     [Debolt-Fried]. The [c]ourt by Order of April 4, 2014, with the
     agreement of counsel, set in motion a procedure for determining
     damages both under the Act as well as under the Pennsylvania
     Unfair Trade Practices and Consumer Protection Law, 73 P.S.
     § 201-9.2, (hereinafter referred to as “[UTPCPL]”). The [Act]
     also provides for remedies available under the Pennsylvania
     Trade Practices Act. On June 2, 2014, the [c]ourt held a hearing
     assessing damages in favor of [Debolt-Fried] as stated in the
     amount of $5,000.00 and $8,000.00 in attorney’s fees totaling
     $13,000.

Trial Court Opinion (“T.C.O.”), at 1-2. Debolt-Fried filed a notice of appeal

on June 3, 2014, which was subsequently quashed as premature. On June

9, 2014, Debolt-Fried filed post-trial motions, demanding treble damages,

rescission of the original contract of sale, and higher attorney’s fees. The

motions were denied on June 26, 2014, and final judgment was entered on

June 30, 2014. Debolt-Fried timely filed a notice of appeal on July 23, 2014.

The trial court did not order Debolt-Fried to file a statement pursuant to

Pa.R.A.P. 1925(b).   The court entered an opinion pursuant to Pa.R.A.P.

1925(a) on August 21, 2014.

     Debolt-Fried raises three questions for our review:

     1.     When Supreme Court precedent requires only intentional,
     reckless, or wrongful conduct for treble damages, did not the
     [trial] court err by denying treble damages because in the
     court’s view defendant’s conduct was not malicious or wanton?

     2.    Did not the [trial] court err by not granting rescission?

     3.   Should not [Debolt-Fried] be awarded her costs and
     requested attorneys’ fees?


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Debolt-Fried’s Brief at 2 (capitalization modified).

      In her first issue, Debolt-Fried contends that the trial court “used the

wrong standard to deny [her] treble damages.” Id. at 21. Specifically, she

contends that the court erred when it determined that she was not entitled

to treble damages because Barbera’s conduct was not “malicious or wanton.”

Id. Debolt-Fried asks, in lieu of remand, that we simply order that treble

damages be awarded. Id. at 25. We disagree.

      “A violation of [the New Motor Vehicle Damage Disclosure Act] shall

constitute a violation under the act of December 17, 1968 (P.L. 1224, No.

387), known as the Unfair Trade Practices and Consumer Protection Law,

and shall be subject to the enforcement provisions and private rights of

action contained in that act.” 73 P.S. § 1970.8. Under the UTPCPL, “[t]he

court may, in its discretion, award up to three times the actual damages

sustained, but not less than one hundred dollars ($100), and may provide

such additional relief as it deems necessary or proper. The court may award

to the plaintiff, in addition to other relief provided in this section, costs and

reasonable attorney fees.” 73 P.S. § 201-9.2(a).

      A trial court is given broad discretion to determine whether to award

treble damages upon determination that the Act has been violated.           See

Johnson v. Hyundai Motor Am., 698 A.2d 631, 639-40 (Pa. Super. 1997).

“An abuse of discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires . . . manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

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support so as to be clearly erroneous.” Nelson v. Airco Welders Supply,

107 A.3d 146, 171 (Pa. Super. 2014).

      Here, the jury returned a verdict finding that Barbera’s had violated

the Act by failing to notify Debolt-Fried in writing at the time of sale of

damages to her vehicle which exceeded $500.00.             See T.C.O. at 2

(“Although [Barbera’s] attempted to remedy the problem, and did so as best

as possible as reflected in the trial testimony, it was clear that [Barbera’s]

failed to notify [Debolt-Fried] in writing of these defects at the time of

sale.”).   However, upon review of Barbera’s subsequent conduct for

purposes of assessing Debolt-Fried’s damages, the trial court determined:

      [T]here was clearly nothing malicious or wanton in the conduct
      of [Barbera’s].    [Debolt-Fried] had taken the car back to
      [Barbera’s] approximately 6-8 times; [Barbera’s] made every
      reasonable effort to make the repairs free of costs with an
      approximate value for parts and labor of $2,700.00.       Two
      videotapes of the car which [were filmed] in June of 2012 and
      January of 2014 were presented to the jury indicating that the
      vehicle was in excellent condition.

T.C.O. at 2-3.

      Debolt-Fried contends that the trial court misapplied the law by using

the wrong standard of “malicious or wanton” behavior, arguing instead that,

under Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007), any “intentional or

reckless, wrongful conduct” merits an award of treble damages under the

UTPCPL. Debolt-Fried’s Brief at 22. Therefore, she argues, the jury’s verdict

in her favor proves that Barbera’s engaged in wrongful conduct, and she

must be awarded treble damages as a matter of law.

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     However, in Schwartz, our Supreme Court discussed the role of the

court in assessing treble damages pursuant to the UTPCPL as follows:

     [T]he statute, on its plain terms, does not provide any standard
     pursuant to which a trial court may award treble damages. In
     construing its terms, we find particularly relevant the principles
     of statutory construction authorizing consideration of the
     occasion and necessity for the statute, the mischief to be
     remedied, the object to be attained, and the consequences of a
     particular interpretation. See 1 Pa.C.S. §1921(c).

     On the one hand, as the Superior Court has recognized, the
     trebling of damages obviously has a strong punitive dynamic.
     See, e.g., Johnson, 698 A.2d at 638. Additionally, this Court
     has otherwise borrowed from the common law in fleshing out
     prevailing liability standards under the UTPCPL. See Yocca v.
     Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438-39 (Pa.
     2004) (explaining that justifiable reliance on the part of a
     plaintiff is required to support a cause of action for fraud under
     the UTPCPL based upon common law requirements, albeit that
     such requirement is not directly included on the face of the
     UTPCPL). Further, Pennsylvania courts have recognized, as a
     general proposition, that the law “abhors forfeitures and
     penalties and enforces them with the greatest reluctance when a
     proper case is presented.” Acme Markets, Inc. v. Federal
     Armored Exp., Inc., 648 A.2d 1218, 1221 (Pa. 1994) (quoting
     Fogel Refrigerator Co. v. Oteri, 137 A.2d 225, 231 (Pa.
     1958)). On the other hand, many individual claims asserted
     under the UTPCPL will be small, as the statute covers a wide
     range of consumer transactions. Thus, it seems reasonably
     likely that the Legislature wished to enhance the impact of
     monetary awards under the statute to deter wrongful trade
     practices affecting the public at large.

     Although the issue is a very close one, we believe that it is best
     to adhere as closely as possible to the plain language of the
     statute, in the absence of any claim that it offends constitutional
     norms.     We conclude, therefore, as a matter of statutory
     construction, that the courts’ discretion to treble damages under
     the UTPCPL should not be closely constrained by the common-
     law requirements associated with the award of punitive
     damages. Cf. Marshall v. Miller, 276 S.E.2d 397, 402 (N.C.
     1981) (explaining that a consumer protection statute requiring

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      awards of treble damages for violations is, in effect, a hybrid,
      with both punitive and remedial aspects, and therefore,
      reasoning that common-law requirements governing the award
      of punitive damages should not control). Nevertheless, the
      discretion of courts of original jurisdiction is not limitless, as we
      believe that awards of treble damages may be reviewed by the
      appellate courts for rationality, akin to appellate review of the
      discretionary aspect of equitable awards, as previously
      discussed. Centrally, courts of original jurisdiction should focus
      on the presence of intentional or reckless, wrongful conduct, as
      to which an award of treble damages would be consistent with,
      and in furtherance of, the remedial purposes of the UTPCPL.

Schwartz, 932 A.2d at 897-898 (citations modified, footnotes omitted).

Thus, Debolt-Fried is incorrect that a jury verdict in her favor per se entitles

her to treble damages. Rather, Schwartz reaffirms that “the discretion of

courts of original jurisdiction is not limitless, as we believe that awards of

treble damages may be reviewed by the appellate courts for rationality.” Id.

Here, because of Barbera’s repeated efforts to repair the defects free of

charge, and because the vehicle itself was in excellent condition, Barbera’s

failure to disclose the defects in the car’s paint job in writing at the time of

sale did not warrant treble damages.        Accordingly, the trial court did not

abuse its discretion when it properly focused upon “intentional or reckless,

wrongful conduct” and declined to award treble damages. This issue does

not merit relief.

      Second, Debolt-Fried argues that, while the trial court “correctly

acknowledged that rescission was a potential remedy,” its reasons for

denying rescission were “inconsistent with the [Act]” and “inconsistent with

the jury verdict.” Debolt-Fried’s Brief at 25. We disagree.


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      Rescission is an equitable remedy, to be granted only where the

parties to a contract can be placed in their former positions with regard to

the subject matter of the contract.     Sullivan v. Allegheny Ford Truck

Sales, Inc., 423 A.2d 1292 (Pa. Super. 1980).        It is well known that the

purpose of equitable rescission is to return the parties as nearly as possible

to their original positions when warranted by the circumstances of the

transaction.    Baker v. Cambridge Chase, Inc., 725 A.2d 757, 766 (Pa.

Super. 1999).

      Our standard of review in matters of equity is to determine whether

the findings of fact are supported by competent evidence, whether an error

of law has been committed, or whether there has been a manifest abuse of

discretion. Possessky v. Diem, 655 A.2d 1004, 1008 (Pa. Super. 1995).

To do so, we must “examine the entire record” and “where the equities

warrant . . . this Court will not hesitate to find an abuse of discretion.”

Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269, 1280

(Pa. Super. 2005) (quoting Reid v. Boohar, 856 A.2d 156, 159 (Pa. Super.

2004)).

      It is well settled that:

      in order for a party to have a right to rescission, it is [her] duty
      to act promptly, and, if [she] elects to rescind, to notify the
      other party within a reasonable time so that the rescission may
      be accomplished at a time when the parties may still be restored
      as nearly as possible, to their original positions.

Schwartz, 932 A.2d at 889 (quotation marks omitted).



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      Here, the trial court determined that, because Debolt-Fried enjoyed

the use of her car for three years, she had forfeited the right to rescission of

the contract as a remedy. Instead, she affirmed the contract by repeatedly

bringing the car to Barbera’s for repairs, and never requesting to return the

car or rescind the contract of sale.    Debolt-Fried claims that she did not

rescind the contract because Barbera’s refused to take the car, but points to

nowhere in the record to support this assertion. Furthermore, Debolt-Fried’s

own expert testified that the car was now worth only $9,000.          Notes of

Testimony (“N.T.”), 4/3/2014, at 24.     Therefore, rescission of the contract

would not be capable of restoring the parties to their original positions, and

the trial court did not abuse its equitable discretion by declining to award

this remedy.

      Debolt-Fried further argues that, if a buyer is not entitled to rescission

under the Act if her damages do not exceed the threshold of $500 or three

percent of the manufacturer’s suggested retail price, then she must be

entitled to rescission of her damages do exceed the threshold.          Debolt-

Fried’s Brief at 26.   This conclusion simply does not follow, as it is well-

settled that the trial court has discretion in awarding damages, and Debold-

Fried cites no authority for her claim.      Nowhere does she support this

argument that the trial court erred as a matter of law by declining to award

rescission the contract. This issue does not merit relief.




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      Third, Debolt-Fried alleges that “the [trial] court erred in failing to

award . . . her costs and in reducing the attorneys’ fee from [Debolt-Fried’s]

fee petition.” Debolt-Fried’s Brief at 33. We disagree.

      Because the Act authorizes remedies available under the UTPCPL, the

court may award reasonable attorney’s fees.         The UTPCPL provides that

“[t]he court may award to the plaintiff, in addition to other relief provided in

this section, costs and reasonable attorney fees.”       73 P.S. § 201-9.2(a).

Therefore, attorney’s fees in this case are authorized by statute.

      Generally, where the award of attorneys’ fees is authorized by
      statute, an appellate court reviews the propriety of the amount
      awarded by the trial court under an abuse of discretion standard.
      We will not find an abuse of discretion in the award of counsel
      fees merely because [we] might have reached a different
      conclusion.    Rather, we require a showing of manifest
      unreasonableness, partiality, prejudice, bias, ill-will, or such lack
      of support in the law or record for the award to be clearly
      erroneous.

Sayler v. Skutches, 40 A.3d 135, 139 (Pa. Super. 2012) (citations and

internal quotation marks omitted).     “Our review of a trial court’s award of

attorneys’ fees is limited. We may only consider whether the court palpably

abused its discretion in making a fee award.”       In re Barnes Found., 74

A.3d 129, 135 (Pa. Super. 2013).        Furthermore, “[w]hile the amount of

compensatory damages is one of several considerations when assessing the

reasonableness of an attorneys’ fee request, Pennsylvania does not employ a

strict rule of proportionality.” Ambrose v. Citizens Nat'l Bank of Evans

City, 5   A.3d 413, 418       (Pa. Super. 2010).        When discussing       the


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determination of reasonable attorney fees, our Court has discussed the

factors for assessing fees in the Act’s federal counterpart, the Magnuson-

Moss Act, 15 U.S.C.A. § 2301 et seq. as follows:

         (1) The time and labor required, the novelty and difficulty of the
         questions involved and the skill requisite properly to conduct the
         case; (2) The customary charges of the members of the bar for
         similar services; (3) The amount involved in the controversy and
         the benefits resulting to the client or clients from the services,
         and (4) The contingency or certainty of the compensation.

Croft v. P & W Foreign Car Service, Inc., 557 A.2d 18, 20 (Pa. Super.

1989).

         In the instant case, Debolt-Fried requested “an award of attorney and

paralegal fees of $28,192 and costs of $3,331.98.” Debolt-Fried’s Brief at

33. The trial court, however, the trial court assessed damages of $5,000.00

and $8,000.00 in attorney’s fees, for a total award of $13,000. In doing so,

the court reviewed the number of hours for which counsel requested

compensation and observed that “[t]he firm representing [Debolt-Fried] in

this matter are experts in the field [of Lemon Law cases] and therefore it

would require them to spend much less time in filing and preparation of this

case than indicated in their Petition.”         T.C.O. at 3.   The trial court also

considered the       proportionality of the      fees and damages, while       not

determinative of its award, and the court noted that counsel was granted

more than 150% percent of the compensatory damages assessed to Debolt-

Fried.     Id.   Thus, the trial court’s determination of counsel fees was

reasonable, and we cannot conclude that it abused its discretion in denying

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Debolt-Fried’s claim for further recovery. Sayler, 40 A.3d at 139. Debolt-

Fried’s third claim does not merit relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2015




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