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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-A20040-15


     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.

                                      -2-
J-A20040-15


     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.”

                                   -3-
J-A20040-15


     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


                                   -4-
J-A20040-15


     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 . . . .



                                  -5-
J-A20040-15


     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


                                    -6-
J-A20040-15


      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.



                                       -7-
J-A20040-15



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).

                                     -8-
J-A20040-15



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]?




                                     -9-
J-A20040-15



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).



                                          - 10 -
J-A20040-15



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).



                                          - 11 -
J-A20040-15



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

                                    - 12 -
J-A20040-15



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.”).

                                       - 13 -
J-A20040-15



      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

                                      - 14 -
J-A20040-15



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.




                                     - 15 -
J-A20040-15



       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
____________________________________________


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.



                                          - 16 -
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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,”

                                     - 17 -
J-A20040-15



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

____________________________________________


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.



                                          - 18 -
J-A20040-15



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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