.

Defense Digest

Shoddy Home-Improvement Contracting? Grounds for Recovering Treble Damages and Attorneys Fees under Pennsylvania Home Improvement Consumer Protection Act and Pennsylvania Unfair Trade Practices and Consumer Protection Law

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

by Robert A. Morton IV

Key Points:

  • Trial courts are determined to protect the individual consumer from bad-acting contractors, including with the award of treble damages and attorneys fees under the HICPA and URPCPL.
  • Home improvement contractors must ensure that they are familiar with the provisions of both HICPA and the UTPCPL and that they perform their home improvement renovations in a workmanlike manner.

As home improvement projects have sky-rocketed in Pennsylvania in the COVID and post-COVID era, thanks to the continued “work from home” model or some form thereof, so have claims against home improvement contractors under both the Pennsylvania Home Improvement Consumer Protection Act, otherwise known as HICPA, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL).

HICPA arose, at least in part, out of the need to protect consumers from unscrupulous home improvement contractors. To combat the deceptive practices of such actors, HICPA places certain requirements on these contractors, including that they register with the state, and dictates the terms and provisions which must be included in a contract with a homeowner, while also precluding certain terms and provisions that would act to limit a homeowner’s right to recover against such contractors.

While the aim is to protect consumers, both HICPA’s and UTPCPL’s requirements can sometimes appear arbitrary and onerous to home improvement contractors. However, contractors must ensure compliance with the statutes, as violations of HICPA and/or UTPCPL, even for seemingly minor technical violations, can form the basis of an award of treble damages or attorneys fees. This article addresses certain scenarios under HICPA and the UTPCPL where Pennsylvania Courts have awarded treble damages or attorney fees for violations of the statutes.

Per the UTPCPL, “unfair methods of competition” and “unfair or deceptive acts or practices in the conduct of any trade or commerce” are unlawful. 73 P.S. § 201-3. “Unfair methods of competition” and “unfair or deceptive acts or practices” include, under § 201-2(4)(xvi), “making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing.” Additionally, any violation of the HICPA is deemed a violation of the UTPCPL. 73 P.S. § 517.10. 

Any person who purchases services for personal, family, or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of an unlawful act under UTPCPL may bring a private action to recover actual damages. 73 P.S. § 201-9.2(a). Additionally, the court may, in its discretion, award up to three times the actual damages sustained and may provide such additional relief as it deems necessary or proper. 

A trial court has broad discretion to award treble damages for any violation of the UTPCPL, including violations of the HICPA. Johnson v. Hyundai Motor America, 698 A.2d 631, 639-640 (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, or ill-will, or such lack of support so as to be clearly erroneous. Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003). The court’s discretion as to treble damages under the UTPCPL should not be closely constrained by the common-law requirements associated with the award of punitive damages. Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007). Nevertheless, the discretion of courts of original jurisdiction is not limitless, and awards of treble damages may be reviewed by the appellate courts for rationality. 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. 

In actions for violations for the UTPCPL, the court may award to the plaintiff, in addition to other relief, costs and reasonable attorneys fees. 73 P.S. § 201-9.2(a). The trial court has discretion in awarding attorneys fees, and an appellate court will not disturb such an award unless the trial court abuses that discretion. Skurnowicz v. Lucci, 798 A.2d 788, 796 (Pa. Super. 2002) (superseded on other grounds). In exercising its discretion, the trial court must consider: 

(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.

Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1030-31 (Pa. Super. 2005).

The trial court must link the fee award to the amount of damages the plaintiff sustained under the UTPCPL and eliminate from the award of attorneys fees the efforts of counsel to recover on non-UTPCPL theories. Courts have acknowledged the difficulty of parsing out the time between UTPCPL claims and other causes of action where plaintiffs are proceeding on multiple theories of relief. See e.g. Krishnan v. Culter Group, Inc., 171 A.3d 856 (Pa. Super. 2017); Boehm v. Riversource Life Inc. Co., 117 A.3d 308 (Pa. Super. 2015).

In addition, a strict liability standard is now applied to all claims brought under the “catch-all” provision of the UTPCPL for conduct that has the potential to deceive a consumer. As a result, courts may impose an award of treble damages and attorneys fees for such a violation even without considering the state of mind of the actor.

The following summarizes a few factual scenarios that have warranted awards of treble damages or attorneys fees in UTPCPL and/or HICPA cases.

In Brandt v. Master Force Construction Corp., 236 A.3d 1112 (Pa. Super. 2020), the homeowners contracted with a home improvement contractor to replace a roof. However, the roof leaked after replacement. After the contractor claimed to have fixed the leak, the leaks persisted, and the homeowners decided to hire another contractor to actually fix the leaky roof. The Pennsylvania Superior Court ultimately upheld a trial court’s award of treble damages and attorneys fees because the court applied the Neal factors and only awarded fees and expenses for which counsel had prepared invoices and which Plaintiffs had actually paid.

In Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012), the buyers of a newly-constructed home were guaranteed by the builders that the roof, flooring, and foundational issues would be fixed, but issues persisted after construction was completed. The trial court ultimately awarded the plaintiffs double damages, and the appellate court found such award was soundly within the discretion of the trial court based on violation of the UTPCPL. 

In Krishnan, supra, home purchasers discovered chronic water infiltration issues due to construction failures committed by the defendant home builder. The trial court awarded attorneys fees, expert fees, and related costs. All were upheld.

In short, it is apparent that trial courts are determined to protect the individual consumer from bad-acting contractors, including with the award of treble damages and attorneys fees. Appellate courts will uphold such awards absent a significant overreach by the trial court. With that in mind, home improvement contractors must ensure that they are familiar with the provisions of both HICPA and the UTPCPL and that they perform their home improvement renovations in a workmanlike manner. 

 

 

Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.