Schwartz v. Rockey

consensus, recover mutual and action the law of torts. from duty primarily of that derives breach deter- properly we conclude Consequently, tort statutorily-created § is a an action under mined subject to the an action is and therefore hold such action we 5524. under Pa.C.S. statute of limitations two-year relinquished. Order affirmed. Jurisdiction in the participate did not Former Justice NEWMAN case. decision CASTILLE, CAPPY, Justice and

Chief Justice Justice joined the opinion. BAER and Justice BALDWIN in the result. concurred Justice SAYLOR 932 A.2d 885 Schwartz, Melanie A. and Richard H. SCHWARTZ Wife, Appellees Husband and

v. Rockey, Connie M. R. ROCKEY and William Wife, Appellants Husband and v. Appellees. Company, Holly Howard Hanna Corace and Schwartz, Melanie A. Richard H. Schwartz Wife, Appellees Husband and

v. Rockey, Rockey Connie M. R. William Wife, Appellees Husband Appellants. Holly Company, Hanna Corace and Howard Pennsylvania. Supreme Court Argued March 2007. Decided Oct. Gordon, L.L.P., Soller, Eric Bosick & George Pietragallo, Co., appel- Hanna Pittsburgh, Holly Corace Howard lants. Gricks, III, Titus, H. Harrison

Thomas Paul Schanader C. Lewis, L/L.P., Cherin & Pittsburgh; & Eckert Seamans Segal Mellott, L.L.C., M. Rockey Rockey, R. and Connie for William appellees. Sentner, Cannonsburg,

Fred for Richard H. Schwartz J. Schwartz, A. appellees. and Melanie SAYLOR, CAPPY, C.J., CASTILLE, EAKIN, BEFORE: BALDWIN, BAER AND JJ.

OPINION SAYLOR. Justice action home appeal purchas-

This involves a civil initiated against ers sellers for fraudulent non-disclosure and/or questions presented concealment water infiltration. The made an election of purchasers/plaintiffs concern whether the rescission, finding remedies foreclosed and whether support conduct is outrageous egregious required private of treble action under Unfair Trade Practices and Protection Law. Consumer

In March Richard Melanie Schwartz Appellees (“Buyers”), against Appel- commenced the action underlying lants, (“Sellers”), Rockey William and Connie and Sellers joined agent as additional defendants real estate who Corace, Holly marketed the as Howard property, well Company, Hanna the real estate which Ms. company with Sellers, (collectively, “Appel- was associated Corace with lants”). claims of common-law fraud and pursued Trade Practices and Consumer Protec- violations Unfair Law,1 under both initially seeking compensatory damages tion relief, theories of in addition to treble and attorneys’ 17, 1968, (as 1. Act of December P.L. 1244 no. 387 reenacted and 201-1-201-9.2) (the “UTPCPL”). §§ 73 P.S. amended fees under the UTPCPL. See P.S. 201-9.2. Subse- however, quently, Buyers sought to their complaint amend substitute a demand for purchase rescission of their restitution. That amendment permitted was on the written submissions and after argument, with the common pleas court in indicating its order that Buyers’ delay caused a lack of due diligence. trial, After a non-jury the court entered a in verdict of Buyers, favor awarding them compensatory $26,000, the amount of representing diminution in value on property account of material non-disclosure court, concealment.2 however, declined to and/or rescission, restitution, treble damages, or fees. attorneys’

In verdict, connection with the the common pleas court issued factual findings developing the fraudulent conduct un- derlying Buyers’ claims. See Schwartz v. Rockey, No. 2000- (C.P. 5705, 2004). slip op. Washington 30, Jun. Within the period in which Sellers subject owned the on property located Stafford Drive Peters Township, the property experienced several instances substantial water infiltration. The court developed that major the most events occurred as a result of a connection between basement and outside stairwell drains to the local municipal storm system. sewer During period of intense use in the storm water system became over- loaded as a result of a main, broken water and water backed up through the floor drainage system into the interior and outside-stairwell drains the Stafford Drive property. Sub- sequently, Sellers installed a back-up preventer flow in the drain, and, interior floor they also installed a sump pump in the stairwell, sidewall of the which was most immedi- ately responsive to more modest infiltration that occasionally pleas 2. The common court derived this assessment from evidence Sellers, N.T., 423, since, presented by see at consistent with their effort to obtain opposed rescission and money damages, restitution as Buyers' expert testimony impact was to the effect upon that the value of property's experience with water infiltration could not be reason- N.T., ably quantified. beyond scope appeal 194. It is of this to comment on the common approach awarding court’s com- pensatory damages after the substituting request amendment equitable prior relief prayer for the seeking for relief compensatory damages. drain from leaves from stairwell blockage resulted efforts, however, in Despite preventative other debris. overloaded, system again the municipal June in the outside accumulation of water collected substantial property. pressure, To relieve of the Stafford Drive stairwell basement, reach- discharged into the eventually the water was floor inches from the up eighteen a maximum level of ing in a finished coverings portion and wall ruining carpeting and (and re- personally) immediately the Sellers basement. the including lower damage, replacement paired wallboard, and painting, carpeting. section of that, detail months after findings The court’s also two agree- a sales flooding, listing Sellers entered into June 1998 Han- Appellants Holly and identifying ment Corace Howard and agent listing and listing agency nah as the Company time, broker, completed At the same Sellers respectively. Corace, on by they Ms. disclosure statement furnished which experienced that the had water generally property disclosed as drain infiltration, variously described “storm causing backup.” water backup” plugged and “storm drain 1997 installation of the external Sellers characterized the flooding the more recent sump remedy, despite pump Further, found common court that Sellers incident. these disclosures were appropriate, asked Ms. Corace whether knew, to indicate “the less reply [she] and her court, received the disclo- According Buyers better.” to the that the installa- sure statement next month assumed issue, had tion of the in 1997 cured water sump pump nor them of extensive neither Ms. Corace advised Sellers a home inspection, a few months before. After flooding only provided only general at which the court found that Sellers seepage and the remedial efforts regarding information water condition,3 a taken in 1997 to address that sale was consum- $214,000. The at a purchase price mated in December 1998 testimony concerning during what Sellers disclosed trial conflicting, Rockey maintaining inspection was home with Mr. length inspector Mrs. he told the home Schwartz of and/or Schwartz, inspector, flooding, and Ms. June and Mrs. the home contrary. testifying to the Corace that, court indicated shortly after the purchase, Buyers learned of the flooding June 1998 incident. It found as a fact that, sale, had been prior aware event to the they would have purchased property. Buyers’ claims,

On merits of common-law fraud common pleas court determined that all elements of fraud present, were centered on non-disclosure active con- and/or cealment Sellers and Ms. Corace of material defects to the See, Schwartz, premises. 2000-5705, e.g., No. slip op. at 14 (finding that agent “the real estate and the Defendants acted intentionally dissuade the making Plaintiffs from a more careful inspection calculated to disclose the full extent of the water damage.”). In terms of damages, the common pleas recognized that, upon fraud, discovery of actionable under prevailing Pennsylvania law an innocent party to an agreement affected may either affirm the contract seek damages at law or repudiate the contract and commence an See, action for rescission. e.g., Diner, Wedgewood Inc. v. Good, 480, 482-83, 368 Pa.Super. 537, (1987). 534 A.2d 538-39 noted, The however, court that once a party elects a remedy, he by 482, is bound it. 487, See id. at 534 A.2d at 540-41 alia, (explaining, inter that “once a party makes a binding election of one another, remedy over precluded he will be from thereafter other”). maintaining an action on the The court that, also observed in order for a party to a right have rescission, “it is his duty and, to act promptly, if he 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 possible, as to their Schwartz, original positions.” 2000-5705, slip op. at 15 (quot- ing v. Co., Galati Potamkin Chevrolet 533, 537, 198 Pa.Super. (1962)). 181 A.2d 902 Applying these principles, the court held that Buyers not were entitled to rescind the sales con- tract, because had they effectively affirmed the contract by living the house years for six not promptly seeking to rescind once they became aware of the undisclosed water damage, when parties might still have been restored to their original positions. The common pleas court stressed 1998 incident almost two aware of June were however, their original complaint; to the

years prior filing mone- only not rescission but in that did seek complaint tary damages. damages for treble under Buyers’ claim

Concerning UTPCPL, not explicitly court that the statute does noted award, an see 73 P.S. any findings require specific support 201-9.2(a) that, in a action under the private § (prescribing UTPCPL, toup in its three may, court discretion award “[t]he sustained”), finding such as a damages times the actual required be outrageous egregious conduct would common law. damages an under support punitive award Merriam, 383, 395, Pa. Feld v. generally be damages may (explaining “punitive 747-48 because of the defen outrageous, for conduct that is awarded rights indifference to the evil motive or his reckless dant’s 908(2) others.”) (Second) Torts (quoting Restatement discretion, (1977)). However, in of its channeling exercise America, on Motor Hyundai relied Johnson standard (Pa.Super.1997), applied heightened A.2d under the availability damages for treble assessing UTPCPL, provid has not reasoning legislature that “since the specific outrageous for a conduct before finding ed contract/warranty be of treble for breach guided by we must that the courts will be imposed, trust governing punitive of law general principles well-established Id. when discretion under the UTPCPL.” exercising that, although court concluded it believed that fraudulent, Rockeys’ and Ms. Corace’s conduct was “it does necessary this Court to necessarily rise to the level Schwartz, 2000-5705, 17.4 damages.” slip op. at award treble attorneys’ The court also declined to award fees. that, 2000, Parenthetically, undisputed Ms. it was at trial December

4. indicating Buyers to that "the condition of the Corace sent a letter penetration" was at home basement and the June water discussed the presence inspector inspection in of the home and Mrs. Schwartz. N.T., testimony hedged Although her was and inconsistent See at 310. specifically point falsity, juncture Ms. did on the at one Corace regard, at acknowledge that was false in the above See id. her letter 311, Rockey's only upon Mr. and maintained that she sent the letter she

545 denied, by parties Post-trial motions filed both sets of were Court, sought which vacat Buyers Superior review ed the of the common in an judgment pleas unpublished, court 2004, panel decision. See Schwartz v. No. 2036 Rockey, WDA 14-15, slip at A.2d 528 op. (Pa.Super.2006). 897 On question, Superior rescission initially credited that, common court’s of an pleas understanding as victims fraud, asserted an Buyers presented were with election remedies. See id. at 14-15 v. Textron (citing Eigen Lycoming Division, (Pa.Su Reciprocating Engine 874 A.2d Diner, per.2005), and Wedgewood Pa.Super. at 538). court, however, A.2d at The pleas read the common court’s opinion refusing grant remedy solely on the grounds Buyers’ for relief prayer seeking compensatory law, at forth in original as set complaint, constituted election of remedies that affirmed the contract and precluded view, See id. at In the panel’s rescission. 14. such filing complaint did not bar an amendment pursue rescission and restitution after addi obtained amend, tional discovery information via requested leave granted the common by pleas upon finding was court proceeded had with due id. diligence. See Thus, panel determined course appropriate remand to common court pleas to reconsider its decision concerning rescission See availability and restitution. (“[T]he id. at 16 grant decision whether to rescission restitution, restitution, or merely is a matter that be must instance.”). addressed the trial court the first On the matter of treble damages, initially, the Superior that, established, Court noted once fraudulent conduct its UTPCPL on face no requires showing further to sustain an award of treble damages. Ct. at 17 Op. (citing Lucci, Skurnowicz (Pa.Super.2002)). Therefore, the court concluded that the common pleas "hounding." See id. at 311-12. common court did not offer

findings concerning might or conclusions as it to the conduct relate treble-damages question. and remanded this issue an incorrect standard

applied point on this as well.5 reconsideration on a limited basis consider appeal We allowed of of remedies of the law elections application appropriate alone, fraud, standing is sufficient to finding of whether To extent treble under the UTPCPL. support law, of our standard of are issues questions presented novo, of It is scope plenary. is de and our review is review (as that, matters connection with equity also relevant rescission), deny appel decision to common court’s pleas concerning are questions late courts authorized to review factual supports findings; sufficient whether evidence correct; are legal factual inferences and conclusions whether or been an error of law abuse of there has whether Co., 148, 161, & 570 Pa. discretion. See Hess v. Gebhard (2002). 912, 920 A.2d Remedies

I. Election argue that the Court read Presently, Appellants Superior on the election-of-remedies pleas the common court’s decision court’s point narrowly, emphasis upon too undue placing compensatory Buyers’ seeking reference to initial approach note original complaint. Appellants at law in their in the context of the common pleas that this reference was ac general requirement prompt application court’s remedy. of the rescission availability tion connected with the See, 404, 406, Gording, 424 Pa. Fichera v. e.g., (citation omitted). In regard, Appellants 643-44 only initial demand one factor observe Buyers’ court, the common also discussed pleas referenced Buyers’ discovery time between passage years’ two filing and the concerning information June flood passage as the original complaint, subsequent well circumstances, years. Appellants’ argue, more In several pleas correctly determined common that the common court would 5. The Court also indicated availability attorneys' opportunity another consider the also have fees. to ensure the best proceeded expeditiously should have more original posi- to their parties chance for the to be returned line long tions.6 reference what indicate is a Appellants reversing, from trial court affirming, of decisions this Court came too late.”7 Alter- rulings where the “notice of rescission understanding natively, Superior consistent with Court’s decision pleas Buyers’ that the common court concluded that original to at in their pursue compensatory damages remedies, binding a election of foreclos- complaint represented rescission, that such an is a ing Appellants argue approach correct one. criticize the Court’s Finally, Appellants filing focus on the common court’s decision to pleas permit of an amended to assert the of rescission. complaint remedy decision, Appellants argue procedural that such was which of liberal keeping policy arising with amendment under rules, our procedural way civil was no determinative con- cerning the availability remedy, substantive rescission adjudication. later resolved on the merits a upon full hand, Buyers, on the other on the rely pleas common court’s amendment, permitting order they contend should be considered “akin to regard law of case” with to whether not Buyers had their to right Buyers posit waived rescission. that, had the common Buyers’ petition denied rescission, requesting the case proceeded would have at law identify, examples why 6. parties Sellers cannot be restored to ante, quo Buyers' swimming pool status installation of a on the property, accomplishment Stafford Drive grading. and the of various It noted, however, testimony should be that uncontradicted trial demon- pool ground, strates that Buyers intending was above with relocate, they grading remove it should comprised and the was landscaping activity. modest See, 150, 152, 662, e.g., Martsolf, Sixsmith v. 413 Pa. 663 (1964) (explaining twenty-five that an action for rescission commenced months after the require- consummation of a sale would not meet the action); Fichero, prompt ment of 424 Pa. at 227 A.2d at 643-44 (holding purchasers years who waited over five to seek rescission purchase property of a contract a residential failed to act with rescission); promptitude support remedy sufficient Muehlhof Boltz, 124, 129, that, (indicating v. 215 Pa. A. 429 where purchaser operated becoming a mill for over seven months after rescission, alleged pursuing aware of fraud before "notice came too support remedy). late” to damage approached have damages, they would Buyers, According differently. much of the case portion and Ms. Corace’s knowledge full Sellers’ did not have they they complaint, initial they filed their fraud at the time discovery upon promptly to amend for leave petition filed than more serious significantly problem that the water that, aas Buyers assert Finally, to believe. had been led at law does law, complaint of a filing the mere matter itself, and, in and of foreclose election binding constitute Diner, Wedgewood Accord rescission. pursue later effort to 482-83, 534 A.2d at 538-39. Pa.Super. outset, confusing congeries note that “[a] At the we under the election together lumped have been doctrines Bank In Holton Citizens Kansas State remedies label.” E.), (William (J.W.), Windsor, Simmons Simmons Bank of Cir.1984) A. (8th 18 C. (quoting Wright, 737 F.2d Miller & E. Cooper, and Procedure Practice Federal (1981)). of application substantive primary The § 772 for a recovery single to double prevent the doctrine has been (2007), and Remedies 3 Election see 25 Am.Jur.2d injury, of inconsistent reme thus, among required an election should be The judgment. of a final entry to point prior dies at some to prevent also has been used doctrine election-of-remedies of relief inconsistent forms pleading pursuing from and parties of approach common-law an of a outgrowth litigation, v. Corp. Hotels Olympia for trial. See issues winnowing (7th F.2d 1371 Corp., 908 Development Wax Johnson Cir.1990). to this common- adhere jurisdictions some While courts, apply the federal including majority, a approach,8 pleading simultaneous pleading permit modern rules of id.; see also Kansas for relief. See of inconsistent claims Bank, that the use of (explaining at 1499 737 F.2d State from parties plead- “to prevent election of remedies doctrine Nadal, Annotation, Necessity Real-Estate generally Andrea G. 8. See of Remedy Remedy Rescission and Between Purchaser’s Election of of Annotation, Fraud, (1985 Supp.2007); Damages 627 & 40 A.L.R.4th On Commencement Remedies As Predicated Conclusive Election Merits, Act, Judgment On The 6 A.L.R.2d Short Or Its Prosecution (1949 Supp.2007). & ing inconsistent theories of ... relief has been eviscerated by permissive 8(a) rules of pleading under Fed.R.Civ.P. 8(e)(2).”).9 Within the supporting rationale is concern that requiring early election may operate prejudice to the of an innocent party, given the inability predict the course of the litigation relative to any particular claim for relief.10 More- over, as Buyers highlight, great deal of information relevant plaintiffs election of remedies reside the hands of defendant, thus, may not be available to the plaintiff pending discovery. generally Rodman, Browning 575, 577, Pa. 111 A. (explaining that “[t]he question [hjence waiver ... intentf;] one largely acts done in affirmance of the contract can amount to a waiver the fraud only where they are done with full knowledge fraud facts, and of all material and with the intention clearly contract.”). manifested of abiding by the This appeal does not require us to definitively deter mine whether inconsistent remedies may be simultaneously pursued in a civil action in Pennsylvania, rather, but only 9. pertinent It should be noted that the speak federal rules terms permitting plaintiff plead of alternative "claims for relief’ or claim," 8(a), (e)(2), "statements of a see Fed.R.Civ.P. Pennsyl- whereas procedural vania's civil pertaining rule pleading such concern "causes action,” 1020(c), Pa.R.Civ.P. which is a generally distinct term not employed to refer to alternative remedies. regard, In this one court following hypothetical offered the explanation: It would be [plaintiff] unreasonable to make choose between two damages forms of before trial Suppose [plaintiff's] and verdict. $10,000 $20,000. contract were and its fraud jury might [plaintiff] good find that had a claim for breach but not fraud, [plaintiff] $10,000. and in that event would be entitled to If Lplaintiff] trial, had been forced to elect before and had elected to count, drop [plaintiff] the contract get nothing. Alternatively would jury might [plaintiff] find good that had a claim for fraud but not contract, $20,000. breach of [plaintiff] and then would be entitled to If it had remedy elected its dropped contract and remedy, the fraud [plaintiff] again get nothing. would Both are results unsound and prevented by are confining the doctrine of election of remedies to awards, the limited preventing duplicative office of damages $20,000 placing ceiling thus of a of [plaintiff's] on damages in our hypothetical case.

Olympia, 908 F.2d at 1371-1372.

550 a seeking for relief complaint containing prayer whether amendment subsequent forecloses a contract-based inconsistent, that remedy. We find substituting equitable an not, that the plaintiff at it is alleged it should least where facts, in the of of material absence knowledge lacked party. by opposing detrimental reliance demonstrated in supports our conclusion Early this Court precedent Co., Pa. 319 regard. Egan Improvement v. United Gas (“Institution 17, 683, plaintiff 21, by A. 178 685 right to his assumpsit is not bar the vindication suit forum.”); in the Baker pursue present [to rescission] cf. Chase, Inc., (Pa.Super.1999) A.2d 767-68 Cambridge 725 of inconsistent remedies apparent pursuit (holding the complaint); a real did not void party agreement to estate Diner, at 539 Wedgewood Pa.Super. at (“[W]here mere of a there is more than the institution nothing or dismissed before suit as abandoned proceeding, which on which to base an judgment, nothing estoppel there —no detriment.”) Am.Jur.2d Election (quoting benefit and no 16). similar those devel- policy Remedies For reasons of the simultaneous oped pursuit allowance supporting above remedies, and as information rele- particularly of inconsistent plaintiff to an election first become available vant Buyers’ initial discovery process, conclude we not regard- should be pursuit compensatory ed, itself, of their contract in and of as an affirmation with such, the action As the commencement of did Sellers. subsequent invoking foreclose amendment definitively Buyers’ restitution. remedies of rescission and equitable said, com agree That with Appellants we unavailable, court, equitable remedies finding mon pleas as, in Buyers’ complaint treat filing original did not itself, Rather, require court invoked the dispositive. remedy ment action is a prompt prerequisite which 643-44,11 rescission, Fichera, Pa. at A.2d at see states: Fichera party rescission of his con- When a tract, discovers facts warrant rescind, duty promptly, and he elects to it is his to act in case and determined that did not act in promptly light factors, several including passage of time between their of the discovery June 1998 flood and the commencement of the Thus, civil action in 2001. as Appellants argue, Court failed to account for the common court’s full rationale.

As concerns this perspective, Buyers broader presented evidence in the form testimony explain Mr. Schwartz to rescission, their delay pursuing proceeded follows: Q. After we filed suit for it changed we to one of

rescission. happened What after filed for damages we until you we—what caused then to decide to file for rescission? Well, mean, I

A. we continued through discovery pro-

cess—we didn’t stop— Listen to Q. my question. Did you any discover additional

evidence concerning water the basement?

A. Yes.

Q. What you did discover? A. We had discovered that it had to a happened previous mean,

owner. We discovered that —I there were other things concerning water the area. neigh- One our bors was having problems.

Q. Do you recall the deposition of Mr. Rockey? A. Yeah. That happened too, in that time period but all—

yeah got new information us really concerned. —all mean, I just it elevated the level of concern.

Q. you Were also concerned with any problem concerning

sinking house, or something like that? notify party delay, the other without or within a reasonable time. If possible, the rescission should be parties made while the can still be original restored to positions. Failure to rescind within a evidence, evidence, reasonable time is be conclusive of an election to affirm the contract. Id. (quoting 227 A.2d at 643-44 Pennsylvania Encyclope- Law approval). dia with know, building under anytime

A. You water Sure. mean, you you can tell when stand I anything. under out, beach, in, goes your the tide the tide comes on the mean, we’re concerned yeah, I foot sinks. that’s— know, You see the house. we’d about the foundation of hills, do is thing we that on the first would houses were of the look at the because wall go downstairs the the on ground of on the water wall pressure mean,— I wall. after filed suit you The result of discovered we

Q. what than much more severe that the water was problem was led originally had been to believe? you A. Yes. We were shocked. why filed for rescission?

Q. [you] And that’s A. Yes.

N.T., at 355-56. findings and conclusions the common court’s

Although pleas deficient, to this they no consideration express are as afford a evidence, not that the circumstances warrant do believe we It is availability equitable relief. concerning remand had Buyers that the summer of clear from the record in an event flooding learned that there had been undisclosed property significant Drive basement Stafford pump summoned to enough department that the fire Indeed, N.T., See at 66-71. premises. from the water found) (and the common original complaint avers that, aware Buyers already at the outset of the were litigation, purchased that not they of water issue so serious would have Mr. had of it the sale. property they prior known above, in terms testimony, unspecific is quoted Schwartz’s as materially Buyers information learned particular what Further, of the circumstances.12 changed understanding their garnered example, to information 12. For while Mr. Schwartz referred evidence, already Buyers’ had neighbors, according other from having problems garnered concerning neighbors similar information N.T., The prior filing original complaint. at 70-71. to the their Buyers significant apparently event which learned between most (other specific filing original complaints more and amended than basis complaint set forth the identical factual Buyers’ amended complaint— original as was contained in the supporting relief pleading. no in averred additional facts this amended requirement prompt The action to maintain for status protects against changes quo claim rescission prove occur time and be difficult to over and/or not quantify. Certainly Buyers’ position is unreasonable collected, of additional information that they the accumulation time, passage changed have As perspective. noted, however, have previously appellate we review equity explained: matters is limited. Court has adjudication The function on an from appeal equity is to substitute its that of lower view tribunal; “a judicial our task rather determine whether mind, on evidence, whole, due consideration of all reasonably could have reached the conclusion of tribu- nal.”

Hess, (citations omitted). 161, 570 Pa. at 808 at A.2d 920 On us, application this standard to the record before we Superior conclude that the Court should not have disturbed the pleas holding Buyers common court’s that to pursue failed rescission promptitude with sufficient to support an award of such remedy.13

Finally, agree we Appellants with that the common pleas court’s decision to the permit filing an amended complaint remedy to assert the disposi- rescission was not incident) concerning flooding appears details the June 1998 to have event, however, flooding

concerned the 1995 incident. This was some- unique precipitated what in that it water a broken main. impossible pleas It is to assess the of the correctness common passage years Buyers’ court's further reference to the of six between discovery flooding litigation of the incident and the of the end before court, specific findings concerning that at in the least absence of delay ensuing during pendency litigation whether or not the the of the Appellants was attributable to or whether there were and/or appreciable changes affecting property during period. the In the regard, given undisputed evidentiary latter evidence adduced in the proceedings, contrary Appellants' arguments, to the installation of above-ground pool grading support appear an modest to would finding meaningful change. supra a of a See note 5. Appel- action. As requirement prompt concerning tive decision, submissions upon made written argue, lants such evidentiary the benefit of an and after but without argument pleas to reflect common can be read hearing, readily policy appli- implement court’s effort to the liberal-amendment generally Hoare Pennsylvania. pleadings cable 1112, Co., A.2d Tel. 509 Pa. Bell of the liberal amendment permit that “our rules (explaining proper determination in order secure pleadings merits”). litigation course Certainly, subsequent had intention of common no confirms that pre-trial their merits at the resolving the claims on equitable stage.14 Damages

II. Treble Appellants argue treble damages, the matter of On in character and such awards punitive such award judicial historically finding conditioned on have been See, Feld, 506 Pa. e.g., outrageous egregious conduct. Indeed, according Appellants, 485 A.2d at 747-48. dam permit in this case to treble Court’s decision Superior its own of fraud alone is inconsistent with upon showing ages Johnson, (“[W]e trust A.2d at 639 must precedent. See general guided by that the courts will be well-established exercising punitive damages governing when principles UTPCPL.”). hand on the other Buyers, under the discretion language support UTPCPL rely upon plain no on the of treble there is limitation position cases, one, that fraudulent as this involve such Skurnow They develop conduct. decision, icz, 788, limited of the Johnson the effect A.2d to under on claims the UTPCPL by Appellants, relied (stating fraud. See id. at 797 opposed in contract as sound indication, pre- at the recognize pleas court's 14. We that the common diligence, with stage, Buyers proceeded with due is in tension trial Buyers prompti- not act with later did sufficient its determination however, Again, only latter was made support tude to rescission. evidentiary determina- upon an record and in the context the merits tion. that, “[h]ere, has been already fraudulent behavior appellees’ reck- showing Act no further requires established and the lessness.”). of treble dam- stress the deterrent effect ready contend that avail- ages under the UTPCPL and of the statute to thwart ability design is consistent with in to be maintained fraud and the liberal construction generally Com- purpose. furtherance of such remedial Inc., Properties, monwealth ex rel. Creamer v. Monumental (1974). Further, 450, 459, according 459 Pa. 329 A.2d the statute requires even if the Court finds that Buyers, fraud, conduct in the showing Appellants’ more than a standard, be- higher case should suffice under this present wanton, malicious, willful, exhibit- oppressive, cause it and interests. Buyers’ rights ed a reckless indifference UTPCPL, governing private 9.2 of the actions under Section enactment, in provides, part: relevant or Any person goods or leases services purchases who or household primarily personal, family purposes thereby any money property, suffers ascertainable loss of or employment by real or as a result of the use or personal, method, of a act or declared unlawful any person practice act, may recovery 3 of this action to bring private section ($100), actual or one hundred dollars whichever is discretion, in award may, up The court its greater. sustained, but not less than three times the actual ($100), such may provide one hundred dollars additional relief as it deems The court necessary proper. to the in addition to the relief plaintiff, provided section, fees. attorney this costs and reasonable added).15 recog § all (emphasis parties 73 P.S. 201-9.2 As nize, statute, terms, any on its does not plain provide Buyers' presented appeal concerning 15. There is no issue this limited statute, standing complaining to invoke since are of loss purchase property, opposed to the connection with their of real facially purchase “goods or which the or lease of services” to statute pertains. Parenthetically, has 73 P.S. 201-9.2. held, considerations, private-right-of-action policy based that the on transactions, provision of the UTPCPL extends to real estate see Gabriel O’Hara, 388-92, (1987), Pa.Super. 491-93 556 treble a trial court to which pursuant

standard terms, rele- particularly its we find damages. construing In con- authorizing statutory construction principles vant the statute, the the necessity of the occasion and sideration attained, the remedied, to be object the mischief to be 1 Pa.C.S. interpretation. particular of a consequences 1921(c). § the hand, recognized, Court has the one as the

On strong punitive dynamic. a trebling damages obviously has See, Johnson, Additionally, this Court 698 A.2d at 638. e.g., out fleshing common from the law has otherwise borrowed See Yocca liability standards under UTPCPL. prevailing 425, Inc., 479, Pa. Sports, 578 Pittsburgh v. Steelers (2004) part reliance on the justifiable that (explaining 438-39 a cause of action for fraud support of a is plaintiff required upon requirements, based common law under UTPCPL on the directly is not included requirement albeit such UTPCPL).16 Further, Pennsylvania courts have face of the “abhors as a recognized, general proposition, greatest enforces them forfeitures and with penalties Markets, Acme presented.” reluctance a case is proper when 48, Inc., 41, 437 648 Exp., Pa.Super. Inc. v. Federal Armored 1218, Fogel Refrigerator 1221 Co. (quoting A.2d (1958)). Oteri, 195, 225, A.2d 231 On 391 Pa. 137 hand, asserted under many other individual' claims small, range the statute covers a wide UTPCPL be as will Thus, reasonably likely it consumer transactions. seems monetary impact to enhance the Legislature wished commentary although subject to as such decision has been critical See, e.g., being plain of the statute. James inconsistent with the terms Nehf, Judges Interpret- Lessons From P. Textualism in the Lower Courts: (1994). Rutgers ing Legislation, 61 n. 229 Consumer 26 L.J. however, Notably, justifiable criterion derives from the reliance express requirement on the face of section 9.2. See causation who, right persons (affording private of action to 73 P.S. 201-9.2 alia, employment of an act inter suffer loss "as a result of” use 612, 618, Co., UTPCPL); Weinbergv. Pa. made unlawful Sun (2001) ("The private clearly requires, in a A.2d [UTPCPL] action, plaintiff an ascertainable loss as a result that a suffer means, case, plaintiff must prohibited action. This defendant’s reliance____” original)). allege (emphasis in practices wrongful the statute to deter trade awards under at large. affecting public one,

Although very the issue is close we believe plain to the closely possible that it is best adhere as statute, that it any in the absence of claim language of the therefore, conclude, as a offends constitutional norms. We construction, the to statutory matter of that courts’ discretion closely treble under be the UTPCPL should not damages the requirements constrained common-law associated with by Miller, the punitive damages. award of Marshall v. Cf. N.C. a con (explaining 276 S.E.2d that protection sumer statute awards of treble requiring damages is, effect, in violations with both and hybrid, punitive therefore, remedial aspects, reasoning that common-law requirements the governing punitive damages should control). Nevertheless, not original the discretion of courts of jurisdiction limitless, is not as we that awards treble believe damages may appellate be reviewed the courts for rational akin ity, to the appellate discretionary aspect review of awards, equitable as previously Centrally, discussed. courts of original jurisdiction on presence should focus inten reckless, conduct, tional or wrongful as to which an award with, treble would be consistent and in furtherance of, purposes the remedial of the UTPCPL.17

The order of is Superior Court reversed to the extent that the panel vacated the common court’s decision to deny rescission and affirmed as concerns the ruling regarding treble and the damages, matter remanded for further consistent proceedings opinion. with this CASTILLE, EAKIN, Justices BAER and Justice join opinion. BALDWIN

Chief CAPPY concurring dissenting Justice files a opinion. understanding, unnecessary distinguish

17. With this we find it to be- fraud, sounding tween action in causes of in contract versus terms of UTPCPL, availability treble private actions under the governing statutory distinction is not made face that on the of the provision. CAPPY, concurring dissenting. Chief Justice in this case asks the Court of allocatur grant limited issues: consider two

1) the law of election misapply Did Superior court hold the trial incorrectly and therefore remedies it when held that Plaintiffs were misapplied had affirmed effectively because entitled to rescission the contract?

2) fraud holding Superior proof Did the Court err alone, more, treble is sufficient for a to award without damages under UTPCPL? reasons, analy- I the Majority’s concur with following

For issue, analysis dissent as respectfully but sis first of the second. issue, majority holds that the

As first .the holding Appellee the trial court’s upsetting Court erred of rescission requirements had failed meet purchasers in seeking remedy. to a to take action the prompt due failure that the as separately emphasize inquiries I I agree. write remedy a certain pursue has elected to plaintiff to whether a evidence, whether, all the is light plaintiff in of note, I that are distinct. this remedy indeed entitled to On only oblique- of remedies concept believe the election that this, issue, resolving the in case and that in this ly implicated to whether the trial court erred only need look Court to restitu- finding purchasers that were entitled Appellee tion. on an analysis entirely its

The Court focused Superior court It stated: “The trial election of remedies rationale. the that on deny grounds based its rescission decision contract, thereby the complaint affirmed Appellants’ original Rockey, No. 2036 WDA rescission.” Schwartz v. precluding 2006) at 14. The court slip (Pa.Super. January op. case, the circumstances we further stated: “Under consider- barring any the trial court erred conclude that the grounds Appel- and restitution on ation rescission Id. inconsistent remedies.” at 16. seeking lants were that it Superior opinion Court’s makes it clear viewed court’s trial denial rescission and restitution indica- position filing tive of that court’s the initial complaint damages, plaintiffs conclusively had elected reme- dy, barring any thus consideration whether rescission and trial Holding restitution were warranted. that “the court’s opinion governing demonstrates confusion elec- over tion be timing of remedies and of when an election must made,” Court Superior reversed and remanded for the trial to again equitable consider the reme- propriety dies. it be accurate that mere filing While complaint does not serve to necessarily conclusively elect remedy, beyond this issue is of this purview appeal. The not, believed, trial court did as the Court its Superior base decision on election of grounds. remedies assertions,

Contrary Court’s trial court did not foreclose consideration of because rescission Rather, remedy. inconsistent election of the trial court specif- ically plaintiffs’ considered the merits of the case for such remedy, they satisfy but found that had failed to the require- ments for rescission. The court stated:

The Plaintiffs were aware of the water damage problem penetration with water the basement almost two years Furthermore, prior filing Original Complaint. Original Complaint Plaintiffs’ did not seek rescission but on the only damages grounds misrepresenta- of fraud and tion. This finds the amount of time that passed damage the Plaintiffs aware of water becoming between and the time before Original filed Complaint couple with the fact that Plaintiffs did not seek rescission until their amending Original Complaint, the Plaintiffs have their right only waived to seek rescission and are afforded monetary damages.1 Court, by puzzled While the issue is not before the I am the trial damages court's decision to award to as an alternative rescission and I restitution. remedies, believe that this does violate the doctrine of election original complaint as well as law of the When the case. was equity, remedy by amended to seek a claim in was that elected the Further, plaintiffs. permit the decision of the trial court to amendment (C.P. 2000-5705, Washington slip Rockey, op. No.

Schwartz 2004). mentioned the peripherally the court June While conclusions, it in its legal of remedies doctrine election on grounds rescission not its not to permit based decision seeking election, requirement party on the that but rather so the parties may has to act that duty promptly rescission to original positions. closely possible be returned as as for rescission. claim requirement This a substantive is (1967). 643-44 Gording, Fichera v. 424 Pa. therefore, I agree majority, with the court’s the full rationale of trial failed to take into account and remand were and that its reversal denial rescission clear, then, that this abundantly I make misplaced. would court’s entirely trial premised upon decision is Court’s to the claim for rescission and not decision as the merits of of election of remedies. upon grounds issue, court’s majority As holds that a to the second Trade under Unfair discretion award treble be Protection Law should not con- Practices Consumer requirements associated with the strained the common-law I dissent. punitive damages. respectfully statutory First, majority’s I with the construction disagree plain It its on the analysis. language to rest decision purports statute, “it reasonably considers that seems of the but also likely impact enhance the Legislature wished trade wrongful awards under the statute deter monetary Majority Slip Opinion at affecting public large.” practices construction, these statements statutory at 20. As a matter of Act mandates contradictory. Statutory are Construction are clear and free from all of a statute words “[w]hen disregarded not to be under the letter of it is ambiguity, 1921(b). Only if its 1 Pa.C.S. pretext pursuing spirit.” of a is not a court plain language explicit statute undertake an of extraneous considerations deter- analysis seemingly undo the The trial court’s decision to case. remedy monetary equitable to award is election of an order However, particular beyond questionable very best. issue argued by grant nor the limited of allocatur and was neither raised below, beyond ability parties to address. it is our

561 Thus, Legislature. majority mine as the the intent of the purports language to decide this case under the plain statute, it improper it is for also to consider extrinsic factors in treble determining legislative underlying intent damage provisions UTPCPL. Trade Practices and Protection Unfair Consumer Law

states in pertinent part:

(a) Any person purchases goods who or or services leases primarily personal, family or household purposes any money suffers or thereby property, ascertainable loss of real or as a result of or personal, employment by the use any method, of a act person or declared practice unlawful act, action, section of this may bring private 3 to recover ($100), actual or damages one hundred dollars whichever is greater. discretion, The court inmay, its up to three times actual sustained, damages but not less than one ($100), dollars hundred such provide additional relief as it deems necessary or proper. 201-9.2(a).

73 P.S. The majority concludes that the statute require does not a court to adhere to traditional principles punitive damages when determining whether to award treble damages. disagree. I

It is well established that “statutes not presumed are make in changes principles rules the common law or prior existing law beyond expressly what is declared in Greenbaum, their provisions.” 196, Carrozza v. 591 916 Pa. 553, Miller, A.2d 566 (quoting Commonwealth v. 469 24, (1976)). Thus, Pa. 364 A.2d 887 the Court bewill reluctant to disturb legal established ex principles without Carrozza, press direction from Legislature. 916 A.2d at 565-66.

While such, this Court has never stated treble expressly damages punitive are essentially nature. This well is recognized by the lower courts of this Commonwealth. See America, Hyundai Johnson v. Motor (“It (Pa.Super.1997) is undisputed imposition of exem- plary nature.”); treble essentially punitive Lucci, (“the

Skurnowicz (Pa.Super.2002) A.2d to award treble the trial court discretion gives UTPCPL nature.”). I are believe damages, punitive nature of is well regarding punitive case principle applied evidences the common-law reasoned and the statute does not Pennsylvania. language plain Thus, express absent such alter expressly principle. I contrary, believe Legislature direction from preserve requirement was intended UTPCPL predicated upon punitive treble be an award of Therefore, I respectfully dissent. damage analysis.

932A.2d 1261 Appellant Pennsylvania, COMMONWEALTH CARTER, Appellee. F. Alfonso Supreme Pennsylvania. 8,May

Argued 2006. Oct. Decided

Case Details

Case Name: Schwartz v. Rockey

Court Name: Supreme Court of Pennsylvania

Date Published: Oct 17, 2007

Citation: 932 A.2d 885

Docket Number: 35, 36 WAP 2006

Court Abbreviation: Pa.