Plaintiffs sometimes add improper Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) claims to their construction litigation to try to increase the amount of their recovery.
When we defend businesses facing such claims, we work to eliminate the improper UTPCPL claims from the litigation.
For example, we recently obtained a dismissal of a UTPCPL claim in a construction Dispute. Here is some of the argument and applicable law we sometimes use to eliminate improper UTPCPL claims from litigation involving businesses we represent.
A UTPCPL plaintiff must establish that the defendant’s UTPCPL violation itself caused a definable loss of money or property. This is because, to maintain any private action under the UTPCPL, a Plaintiff must allege and prove she sustained an “ascertainable loss of money or property . . . as a result of“ the defendant’s alleged UTPCPL-violation. 73 P.S.§ 201-9.2.
Accordingly, we have argued that UTPCPL claims must be dismissed when the harm alleged was not caused by the defendant’s purported UTPCPL-violation itself.
The Home Improvement Consumer Protection Act (the “Act”) does not preclude a non-compliant contractor from pursuing a cause of action in quantum meruit. Shafer Elec. & Constr. v. Mantia, 96 A.3d 989, 990 (Pa. 2014). It is well-settled that a party is not barred from bringing an action based in quantum meruit when one sounding in breach of express contract is not available. Id. The Supreme Court has held that “it is self-evident and plain that the Home Improvement Consumer Protection Act, 73 Pa. Stat. Ann. § 517.7(g), speaks only to the availability of remedies to a contractor who complies with § 517.7(a). [underlining added].” Id.
That is, the Act does not automatically create a UTPCPL cause of action every time a contractor’s written agreement fails to achieve full, technical compliance with § 517.7(a). see, id. As such, we have argued that a UTPCPL claim must be dismissed when the Defendant’s alleged non-compliance with § 517.7(a) of the Act does not give rise to a UTPCPL claim.
We have successfully argued that, when a Plaintiff’s alleged harm was not caused by the alleged UTPCPL-violation, the Plaintiff’s UTPCPL must be dismissed with prejudice.
The Supreme Court has held: “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]. Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001)(“The [UTPCPL] clearly requires, in a private action, that a plaintiff suffer an ascertainable loss as a result of the defendant’s . . . action [prohibited by the UTPCPL]”)(emphasis in original); Geesey v. CitiMortgage, Inc., 135 F. Supp. 3d 332, 354 (W.D. Pa. 2015)(“To maintain a private action under the UTPCPL, Plaintiffs are required to allege that they sustained an `ascertainable loss of money or property … as a result of’ the defendant’s allegedly deceptive conduct.”)[emphasis added]; Williams v. Empire Funding Corp., 227 F.R.D. 362, 371 (E.D.Pa. 2005) (a private UTPCPL plaintiff must allege “that defendant’s purportedly unlawful conduct caused a definable loss of money or property”).
"[Regarding] Mr. Polishan… I’ve seen him on many cases in court…. he’s an outstanding lawyer in all respects. He’s an outstanding trial lawyer. He’s an outstanding litigator. He’s an outstanding researcher. He has great credibility with the Court." - (Statement made by judge in federal court proceeding).
"[Mr. Polishan’s] assistance … has included incisive, informed advice on every occasion …. I’ve seen many… lawyers … from some of the largest, most reputable firms in the country… and none of them surpass [the] talent, wisdom, and … common sense that [Mr. Polishan has] brought to this case from the time we began working together." - (Statement by plaintiff’s counsel).
"[Mr.] Polishan is doing a fantastic job on your behalf and achieving a fantastic result…. Both his work with you . . . and with the law enforcement [agents]… are examples of the finest in our profession and you should bless the day that you found him." - (Statement by former federal prosecutor).
"Congratulations on a very impressive outcome. Fantastic!" - (Statement by defense counsel).
"Tim and I have worked together on a complex and highly publicized litigation matter that has extended over several years and his performance throughout has been superb. Outstanding integrity, highly knowledgeable, and with a true feel for the nuances that often provide the competitive edge in litigation. I would recommend him to any client or fellow practitioner." - (Statement by former director and shareholder at Philadelphia law firm known as a national leader in class actions and other complex commercial litigation).
"Tim is a terrific trial lawyer. Quick on his feet. Great when it comes to cross examination. He has won cases against all odds." - (Statement by partner at Northeastern Pennsylvania law firm).
"Attorney Polishan is one of the brightest professionals I have encountered in 25 years living in NEPA. He is detail and results oriented, creative, intellectual, grounded." - (Statement by physician and president of medical group).
"Tim’s breadth of legal knowledge and excellent communication skills make him a great professional resource and a valuable asset to the northeastern PA community." - (Statement by a wealth management professional).
"I have had the opportunity to work with Tim on multiple occasions. Tim and his legal team are of the highest caliber and an absolute joy to work with. They were very instrumental in handling all of my legal needs since 2004. The firm is top notch and very trustworthy. Over the years Tim and his firm have not only been great in providing legal services but I consider Tim a friend." - (Statement by a senior enterprise architect for large health plan).
"Tim is straight forward and professional, asks the questions that make sense and then suggests workable solutions. I highly recommend to assist anyone with legal issues." - (Statement by Northeaster Pennsylvania business owner).