J-A26008-19

2020 PA Super 26

JEFFREY R. WENK AND LEE ANN 

WENK A/K/A LEE ANN MADDEN

v.

STATE FARM FIRE AND CASUALTY 

COMPANY AND H.J.M. ENTERPRISES, 

INC. TDBA FIREDEX OF PITTSBURGH

APPEAL OF: STATE FARM FIRE AND 

CASUALTY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1284 WDA 2018

Appeal from the Judgment Entered July 25, 2018

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): No. GD 08-018845

JEFFREY R. WENK AND LEE ANN 

WENK A/K/A LEE ANN MADDEN 

Appellants

v.

STATE FARM FIRE AND CASUALTY 

COMPANY AND H.J.M. ENTERPRISES, 

INC. TDBA FIREDEX OF PITTSBURGH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1287 WDA 2018

Appeal from the Judgment Entered July 25, 2018

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD 08-018845

JEFFREY R. WENK AND LEE ANN 

WENK A/K/A LEE ANN MADDEN

v.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
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STATE FARM FIRE AND CASUALTY 

COMPANY AND H.J.M. ENTERPRISES, 

INC. TDBA FIREDEX OF PITTSBURGH

APPEAL OF: H.J.M. ENTERPRISES, 

INC. TDBA FIREDEX OF PITTSBURGH

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 No. 1288 WDA 2018

Appeal from the Judgment Entered July 25, 2018

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): No. GD-08-018845

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

OPINION BY SHOGAN, J.: FILED FEBRUARY 7, 2020

Jeffrey and Lee Ann Wenk (“the Wenks” or “Appellants”),1 who are 

Allegheny County homeowners in Upper St. Clair Township in Allegheny 

County, appeal from the judgment entered in this case on July 25, 2018, 

following a bench trial. State Farm Fire and Casualty Company (“State Farm”

or “Appellee”) and H.J.M. Enterprises, Inc. tdba FireDEX of Pittsburgh 

(“FireDEX” or “Appellee”) filed cross appeals. We affirm in part and vacate

and remand in part.

The Wenks filed a complaint against State Farm and FireDEX asserting 

claims of bad faith against State Farm and the following claims against both 

State Farm and FireDEX: breach of contract; breach of warranty; violations 

of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law 

____________________________________________

1

 The Wenks are the designated Appellants in this consolidated appeal. Order, 

12/27/18.
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(“UTPCPL”), 73 P.S. §§ 201-1, et seq.; and intentional infliction of emotional 

distress.

In a Memorandum Opinion accompanying the verdict, the trial court 

summarized the facts of the case as follows:

The Plaintiffs, (hereinafter “the Wenks”) are homeowners in 

Allegheny County. The Wenks hired a contractor[2]to perform 

remodeling on their home. In the process, the contractor, in an 

attempt to destroy a bee’s nest, poured gasoline within the 

framework of the Wenks’ home,3thereby contaminating the wood 

structure in a corner of the house. The Wenks contacted their 

homeowner’s insurer, State Farm, to submit a claim and request 

assistance in repairing the damage. Following consultation with 

State Farm, the Wenks agreed to permit a State Farm approved 

contractor, FireDEX, to perform the remedial work on their home. 

FireDEX prepared an estimate including a scope of work that 

involved removing all of the contaminated lumber plus four 

additional feet of contaminated material, replacing the material, 

and returning the home to its original condition.

During the course of FireDEX’s work, the Wenks, and in 

particular Mr. Wenk[,] took issue with an ever-increasing number 

of perceived deficiencies in the work performed by FireDEX. 

Additionally, the Wenks began to believe that the work performed 

by FireDEX was causing additional structural damage to other 

aspects of their home. The Wenks requested that State Farm 

engage an engineer to address their concerns regarding FireDEX’s

work and their concerns regarding damage to their home. State 

Farm declined to do so. The Wenks independently engaged their 

____________________________________________

2 The contractor was D & R Equipment, Inc., tdba Mt. Pleasant Window and 

Remodeling Co., which subcontracted with Kohl Building Products, Inc. and 

Ronald Eubanks. The Wenks and State Farm, which asserted its subrogation 

interest and sought reimbursement of amounts payable to the Wenks, sued 

these entities separately in 2009, Wenk v. D&R Equipment, Allegheny 

County Common Pleas docket number GD 09-011729 (“D&R Equipment”), 

for claims of negligence, UTPCPL, trespass, breach of contract, and breach of 

warranty, many of the same claims sought herein.

3 The complaint alleges the incident occurred on September 10, 2007.
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own engineer to conduct a review of the work being performed. 

The Wenks’ engineer identified what he considered to be deficient 

aspects of the work performed and offered an alternative remedial 

scope of work necessary to return the home to its original 

condition. State Farm declined to accept these recommendations. 

Nonetheless, as complaints and concerns continued to escalate, 

State Farm ultimately did review the work being performed by 

FireDEX, engaged an engineer of its choosing to review the work 

of FireDEX, and did ultimately confirm that some of the work was 

deficient.

In the process of allowing for and permitting the reinspection of their home by each of the engineers, the Wenks 

made the unilateral decision to remove large portions of walls, 

flooring, and ceiling to allow the inspectors and engineers to see 

what the Wenks believed was evidence of deficient work by 

FireDEX. The Wenks’ engineer agreed that these deconstruction 

exposures were helpful in permitting him to understand the 

problems and formulate solutions to the problems. State Farm’s 

engineer did not believe that these deconstruction exposures of 

the home were at all necessary, but rather constituted 

unnecessary destruction of areas of the home. Principally because 

of the removal of the floors and walls, the Wenks’ home became, 

in the Wenks’ view, uninhabitable. Accordingly, they moved to 

alternative housing. Because they moved, they requested 

alternative living[-]expense payments under their State Farm 

insurance policy. Payment for these expenses were [sic] originally 

declined by State Farm, however, they were later approved, 

essentially, (in the view of State Farm,) as a good will gesture. In 

addition, the deconstruction of the home by the Wenks created a 

need for additional work to return the home to its original 

condition.

The Wenks’ engineer and State Farm’s engineer did not 

agree as to what remedial structural changes were necessary in 

order to ensure a structurally sound reconstruction of the Wenks’ 

home so as to return it to its original condition. The Wenks 

generally became dissatisfied and suspicious of the work 

performed by FireDEX. In particular, the Wenks believed that 

FireDEX’s work was unworkmanlike, unprofessional and often 

performed contrary to the applicable building codes and 

regulations. As a result, the Wenks ordered FireDEX from the site 

and refused to permit FireDEX to continue any work on the home.
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The Wenks ultimately engaged CCTV [Technology (“CCTV”)] 

to perform the reconstruction work consistent with the plans and 

design drawings of the Wenks’ independently engaged engineer. 

CCTV is an entity owned by Mr. Wenk’s parents. Mr. Wenk 

acknowledged that his father plays no active role in the company 

and that his mother serves purely as a treasurer. Mr. Wenk, while 

not an “owner” of CCTV, serves as the company’s project manager 

and is personally in charge of all material operations of the 

company.[4] Accordingly, Mr. Wenk agreed with the proposition 

advanced by defense counsel that he, Mr. Wenk, negotiated an 

oral contract on behalf of the Wenks (himself and his wife) with 

himself, as project manager of and on behalf of CCTV, wherein 

CCTV would perform reconstruction work on the Wenks’ home. 

Mr. Wenk offered extensive testimony regarding the manner in 

which he attempted to ensure that CCTV’s costs and expenses 

charged to the Wenks were fair and reasonable. Nonetheless, 

because of the close relationship between CCTV and the Wenks,

[State Farm and FireDEX] questioned the fairness and 

reasonableness of the CCTV estimate, charges, and expenses.

Memorandum Opinion and Verdict, 6/7/17, at 1–3.

All parties filed motions for summary judgment, which were denied on 

September 21, 2016. A bench trial occurred between April 17, and April 28, 

2017.5 The trial court issued a Memorandum Opinion and Verdict on June 7, 

2017, and judgment was entered by praecipe on July 25, 2018. The trial court 

found as follows:

 In favor of State Farm and against the Wenks on claims sounding 

in breach of warranty, intentional infliction of emotional distress, 

UTPCPL and bad faith (whether statutory or institutional), including the 

demand for exemplary treble and punitive damages;

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4

 Mr. Wenk described CCTV as follows: “Our primary role is we integrate 

camera systems in what’s called biometrics, maybe with lock systems or 

payroll systems and that type of technology.” N.T., 4/17/17, at 383, 467.

5 The trial court erroneously stated that the trial occurred between May 17, 

and May 28, 2017. Memorandum Opinion and Verdict, 6/7/17, at 1.
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 In favor of the Wenks and against State Farm on the Wenks’ claim 

for breach of contract and granted judgment for the Wenks in the 

amount of $27,500;

 In favor of the Wenks and against FireDEX on the Wenks’ claim 

for breach of contract, breach of warranty, and UTPCPL, awarding the 

Wenks $70,000 but declining to award exemplary treble damages, 

punitive damages, or attorney fees on the Wenks’ UTPCPL claims and 

ruling the $70,000 was recoverable against either FireDEX or State Farm 

because FireDEX had acted under the direction and supervision of State 

Farm.

Memorandum Opinion and Verdict, 6/7/17, at 5–7. All parties filed post-trial 

motions. At a status conference on August 30, 2017, all parties agreed that 

the trial court would defer ruling on post-trial motions pending its ruling on 

State Farm and FireDEX’s argument that the Wenks’ award should be offset 

by the settlement, filed under seal, in the related case, Wenk v. D&R 

Equipment. The Wenks argued that the settlement should not be offset 

because State Farm and FireDEX were not joint tortfeasors in the related 

case.6

On March 6, 2018, the trial court denied setoff. Order, 3/6/18. State 

Farm filed a praecipe on July 25, 2018, for entry of judgment upon a nonjury 

verdict pursuant to Pa.R.C.P. 227.4. The Wenks assert that as a result, the 

trial court did not rule on the parties’ motions for post-trial relief other than 

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6 State Farm was a plaintiff in the related case, and FireDEX was not a party.
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the setoff issue raised by State Farm and FireDEX.7 Appellant’s Brief at 7. The 

Wenks appealed on August 23, 2018, and both State Farm and FireDEX filed 

cross-appeals on September 5, 2018. All parties and the trial court complied 

with Pa.R.A.P. 1925.

Issues in the Wenks’ Appeal, 1287 WDA 2018

The Wenks raise the following issues:

1. Whether institutional evidence, such as an insurer’s corporate 

policies and practices related to the handling of claims by its 

insureds, is as a matter of law irrelevant to a claim for insurance 

bad faith under 42 Pa. C.S. § 8371?

2. Irrespective of the answer to the Question No. 1, supra,

whether the trial court abused its discretion when it determined 

that “it cannot be reasonably said, given the facts and evidence 

adduced at trial, that State Farm lacked a reasonable basis for 

denying benefits and/or that State Farm knew or recklessly 

disregarded its lack of a reasonable basis to deny benefits to the 

[the Wenks?]”

3. Whether an insurance company’s handling of claims is a 

consumer transaction of the nature intended to be protected 

under Pennsylvania’s Unfair Trade Practices and Consumer 

Protection Law (“UTPCPL”), 73 Pa. C.S. § 201-1, et seq[?]

4. Whether the UTPCPL requires plaintiffs to establish fraudulent 

and deceptive conduct when bringing claims based on violations 

of § 201-2(4), other than the “catch-all” provision at § 201-

2(4)(xxi) of the statute[?]

5. If the answer to Question No. 4, supra, is “Yes,” whether the 

trial court abused its discretion by finding that the evidence in this 

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7 Unlike the rules of criminal procedure requiring a court to act within 120 

days of the filing of the post-trial motion or it will be deemed denied by 

operation of law, see Pa.R.Crim.P. 720(B)(3), the rules of civil procedure do 

not provide a similar automatic mechanism. Rather, a party is required to 

praecipe for entry of judgment to move the case forward, where the court has 

not decided the motion within 120 days after its filing. Pa.R.C.P. 227.4(1)(b).
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case was insufficient to satisfy the clear and convincing 

standard[?]

The Wenks’ Brief at 3–4 (emphasis in original).

Issues in State Farm’s Appeal, 1284 WDA 2018

1. Whether the [t]rial [c]ourt erred in in permitting the Wenks to 

obtain a double recovery by denying State Farm’s Motion to apply 

a set-off for the amount recovered by the Wenks pursuant to a 

settlement agreement in a separate lawsuit filed against the 

original contractors who damaged their home with gasoline when 

the Wenks sought and recovered money for the . . . same 

categories of damages in both lawsuits?

2. Whether the [t]rial [c]ourt erred in finding that FireDEX acted 

at the “direction and supervision” of State Farm when the weight 

of the evidence reveals that State Farm did not direct, supervise, 

or otherwise control FireDEX’s work and, therefore, should not be 

liable for the $70,000.00 awarded against FireDEX?

State Farm’s Brief at 4.

Issues in FireDEX’s Appeal, 1288 WDA 2018

A. When an owner terminates a contractor’s performance of 

repair work on a home and, thereby, deprives the contractor of 

the opportunity to cure any defects in its work, is the contractor 

entitled to judgment [notwithstanding the verdict (“JNOV”)] on 

claims for damages due to inadequate repairs brought under 

theories of breach of contract or warranty or under the Unfair 

Trade Practices and Consumer Protection Law predicated upon a 

breach of warranty?

B. When homeowners settled their claims against remodeling 

contractors that allegedly damaged their home—claims which 

necessary[il]y included the original loss as well as any 

enhancement of damages due to another contractor’s faulty 

repairs of the original damage—is the second contractor entitled 

to a setoff of any damages recovered from the original contractors 

to prevent a duplicate recovery by the owners?

FireDEX’s Brief at 3.
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We first address the Wenks’ issues assailing the trial court’s conclusion 

that the Wenks did not carry their burden of proof for claims of bad faith.8 

The Wenks assert that they introduced extensive evidence that State Farm 

acted in bad faith specifically directed toward the Wenks during State Farm’s 

handling of the Wenks’ claims. The Wenks’ Brief at 29. The Wenks maintain 

that such evidence “included institutionalized conduct,” such as State Farm’s

policies, practices, and other acts.” Id. The Wenks contend, contrary to the 

trial court, that institutional evidence of bad faith is relevant in Pennsylvania 

under 42 Pa.C.S. § 8371. The Wenks’ Brief at 22, 28–35. The Wenks aver 

that institutional bad faith is not a separate cause of action from statutory bad 

faith. Id. at 23, 30–31.

The Wenks cite to Berg v. Nationwide Mut. Ins. Co., 44 A.3d 1164 

(Pa. Super. 2012), where this Court concluded that the trial court erred in 

directing a verdict on the plaintiffs’ bad-faith claim and remanded for a new 

trial, where the plaintiffs would have the burden to prove their bad-faith 

____________________________________________

8 The Wenks’ Brief is a combination of argument on their issues presented in 

their appeal docketed at 1284 WDA 2018 and response to both State Farm 

and FireDEX cross-appeals. Unlike State Farm and FireDEX, the Wenks do not 

separate the claims—their arguments and responses to Appellees’ arguments 

are co-mingled and presented as one.

Moreover, we are compelled to comment on the confusing and 

inconsistent presentation of this brief, which delineates issues 1–5 in the 

Statement of Questions Involved but provides argument labeled A–E, where 

the alphabetical sections do not correspond to the numbered issues. See, 

e.g., issue 3 purporting to address the UTPCPL, the Wenks’ Brief at 3, and 

Argument C, addressing bad faith.
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allegations by clear and convincing evidence. The Wenks’ Brief at 34. On 

remand, the Bergs obtained an eighteen-million-dollar verdict against 

Nationwide, and on appeal, this Court vacated the judgment and remanded 

for entry of judgment in favor of Nationwide. Berg v. Nationwide Mut. Ins. 

Co., 189 A.3d 1030 (Pa. Super. 2018), petition for allowance of appeal 

granted in part, 205 A.3d 318, 569 MAL 2018 (Pa. filed March 29, 2019). The 

Wenks cite Berg as evidence that Pennsylvania courts consider institutional 

bad faith. The Wenks also maintain that consideration of institutional evidence 

of bad faith in Pennsylvania is consistent with other jurisdictions. The Wenks’ 

Brief at 38 (citing State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 

408 (2003)).

Pennsylvania’s Bad Faith Statute, 42 Pa.C.S. § 8371, creates a cause of 

action against an insurance company “if the court finds that the insurer has 

acted in bad faith toward the insured.” The statute provides as follows:

In an action arising under an insurance policy, if the court finds 

that the insurer has acted in bad faith toward the insured, the 

court may take all of the following actions:

(1) Award interest on the amount of the claim from the date 

the claim was made by the insured in an amount equal to 

the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S. § 8371. The statute does not define “bad faith,” but courts

generally have defined the term as “any frivolous or unfounded refusal to pay 
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proceeds of a policy.” Rancosky v. Washinton National Ins. Co., 170 A.3d 

364, 365, 372–373 (Pa. 2017) (quoting Terletsky v. Prudential Property 

& Casualty Ins. Co., 649 A.2d 680, 688 (Pa. Super. 1994)). To recover on 

a bad-faith claim, a claimant is required to show, by clear and convincing 

evidence, that the insurer: (1) did not have a reasonable basis for denying 

benefits under the policy, and (2) knew or recklessly disregarded its lack of 

reasonable basis when it denied the claim. Rancosky, 170 A.3d at 365. 

Claims of bad faith are fact specific and depend on the conduct of the insurer 

toward its insured. Condio v. Erie Ins. Exch., 899 A.2d 1136, 1143 (Pa. 

Super. 2006).

The trial court concluded the Wenks failed to meet their burden of 

proving State Farm acted in bad faith. The trial court stated:

With respect to [the Wenks’] claims for statutory bad faith 

pursuant to 42 Pa.C.S. § 8371, I conclude that [the Wenks] have 

not met their burden, and I find in favor of Defendant State Farm. 

It cannot be reasonably said, given the facts and evidence 

adduced at trial, that State Farm lacked a reasonable basis for 

denying benefits and/or that State Farm knew or recklessly 

disregarded its lack of a reasonable basis to deny benefits to [the 

Wenks]. Mere negligence or bad judgment in failing to pay a claim 

does not constitute bad faith. An insurer may always aggressively 

investigate and protect its interests. Particularly in light of the 

higher burden of proof, specifically the requirement that [the 

Wenks] must prove a bad faith claim by “clear and convincing”

evidence, the record in this case does not support the assertion of 

statutory bad faith on behalf of State Farm. Accordingly, I find for 

the Defendant, State Farm.

Memorandum Opinion and Verdict, 6/7/17, at 6.
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Our review of the record compels the conclusion that the trial court did 

not abuse its discretion in concluding that the Wenks failed to present clear 

and convincing evidence that State Farm acted in bad faith under 42 Pa.C.S. 

§ 8371. As noted above, to establish a violation of Section 8371, the Wenks 

must have shown by clear and convincing evidence that State Farm lacked a 

reasonable basis for denying the Wenks benefits, and that it knew or recklessly 

disregarded its lack of a reasonable basis. Rancosky, 170 A.3d at 377.

The Wenks assert that State Farm acted in bad faith by refusing to pay 

their engineering fees and delaying hiring its own engineer for over a year 

when the opportunity to address the Wenks’ issues had already passed. The 

Wenks’ Brief at 42, 44. They contend that when State Farm did hire an 

engineer, it “restricted the engineer’s ability to offer opinions on the Wenks’ 

concerns.” Id. at 46. The Wenks maintain that State Farm also acted in bad 

faith by instructing “FireDEX and its engineer to disregard [building] code 

compliance issues raised by the Wenks.” Id. at 51.

State Farm denies acting in bad faith and points to their payment of 

project management fees of $16,640, which included payment of engineering 

fees. State Farm’s Brief at 26 (citing Exh. 111, Jones Construction estimate, 

3/26/10). State Farm defends their initial decision not to hire an engineer 

based upon information provided by FireDEX, Mr. Wenk, and the building code 

officer. State Farm’s Brief at 26 (citing N.T., 4/17/17, at 252–256). State 

Farm also responds that once the Wenks agreed to provide a list of their 
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concerns, State Farm agreed to hire an engineer to evaluate those issues. 

State Farm’s Brief at 28 (citing Exh. 166; N.T., 4/17/17, at 280). State Farm’s 

engineer, Randall Lee Exley, testified that his inspection did not find that the 

Wenks’ home was structurally unsound or uninhabitable. N.T., 4/17/17, at 

1161–1162, 1170–1171. Regarding the alleged building code noncompliance, 

Nikole Sullivan, the State Farm claims adjuster assigned to the Wenks, 

testified she never told FireDEX that the building code did not apply to the 

repairs of the Wenks’ home; indeed, it was State Farm’s expectation that 

FireDEX would complete the repairs “in accordance with the existing code.” 

N.T., 4/18/17, at 251–252.

We have reviewed the extensive record. We agree with the trial court’s 

conclusion that the Wenks failed to meet their burden of proving bad faith by 

State Farm by clear and convincing evidence. As espoused by State Farm, 

Section 8371 limits bad faith actions to the company’s conduct toward the 

insured asserting the claim. Under this premise, this Court has held that 

“[b]ad faith claims are fact specific and depend on the conduct of the insurer 

vis a vis the insured.” State Farm’s Brief at 36 (citing Williams v. 

Nationwide Mut. Ins. Co., 750 A.2d 881, 887 (Pa. Super. 2000)). The trial 

court, as the fact finder, was responsible for determining the credibility of the 

witnesses and the evidence. Based upon our review of the record, we cannot 

say the trial court erred in concluding that the Wenks did not prove by clear 

and convincing evidence that State Farm did not have a reasonable basis for 
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denying them benefits under the policy, and did not know or recklessly 

disregard a lack of reasonable basis when it denied the claim. Rancosky, 170 

A.3d at 365.

Finally, the trial court properly concluded that there is no separate cause 

of action of institutional bad faith. Memorandum Opinion and Verdict, 6/7/17, 

at 6. Indeed, the Wenks agree that institutional bad faith is not a separate 

cause of action from statutory bad faith. The Wenks’ Brief at 30. We disagree 

with the Wenks’ contention that the trial court’s statement, “With respect to 

[the Wenks’] claims of ‘institutional bad faith,’ I find for . . . State Farm. 

Pennsylvania law does not recognize claims for institutional bad faith,” 

equates to the conclusion that the trial court refused to consider the Wenks’ 

evidence relating to State Farms’ conduct and practices. The Wenks’ Brief at 

30. Our review of the record reveals that the Wenks produced evidence of 

State Farm’s manuals, guidelines, and procedures, all of which was considered 

by the trial court. Section 8371, however, authorizes specified actions by the 

trial court “if the court finds that the insurer has acted in bad faith toward 

the insured . . . ,” not to the world at large. 42 Pa.C.S. § 8371 (emphasis 

added). Thus, herein, the trial court, when presented with evidence of State 

Farm’s policies and procedures, did not find them to be improper when 

applied to the Wenks’ claim, although not a separate claim concerning 

“institutional bad faith.” The Wenks failed to establish a nexus between State 
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Farm’s business policies and the specific claims the Wenks asserted in support 

of bad faith.

The Wenks alternatively ask this Court to “reverse the trial court’s 

dismissal of the Wenks’ claim based on State Farm’s violations of 

Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.” The 

Wenks’ Brief at 67. They assert they presented uncontroverted evidence at 

trial that State Farm engaged in fraudulent and deceptive conduct. Id. at 25, 

67. They allege the following deceptive and misleading conduct by State 

Farm:

a) Misrepresentations of State Farm’s relationship to [State Farm’s 

Premier Service Provider network] contractors generally, and 

FireDEX in particular, in regard to the supervision and control that 

State Farm exerts over it/them. 

b) Misrepresentations to Mr. Wenk in March 2008 that the building 

code did not apply to the construction at his home.

c) Misrepresentations to the Wenks that their home was 

structurally sound and safe when there was no reasonable basis 

for making that assertion.

The Wenks’ Brief at 69. The Wenks ask this Court to vacate the verdict 

dismissing their UTPCPL claims against State Farm and remand for entry of 

judgment in favor of the Wenks and an award of damages, including punitive 

damages, interest, and counsel fees. Id.

The Wenks contend the trial court also failed to address their UTPCPL 

claims against FireDEX. The Wenks allege these violations by FireDEX:

1. FireDEX misrepresented to the Wenks that it had the expertise 

and experience necessary to perform the contracted services 
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when FireDEX knew that State Farm would prevent it from making 

repairs in accordance with the representations FireDEX made to 

the Wenks;

2. FireDEX failed to comply with the terms of the warranty given 

to the Wenks in violation of 73 P.S. §201-2(xiv);

3. FireDEX made repairs and replacements to the Wenks’ house 

that were inferior to or below the standard of that agreed to in 

writing in violation of 73 P.S. §201-2(xvi);

4. FireDEX misrepresented the nature of its relationship with State 

Farm, including failure to disclose that the performance of its work 

would be subject to a separate contract with State Farm that 

allowed State Farm to direct and supervise FireDEX, in violation 

of 73 P.S. §201-2(4)(iii);

5. FireDEX misrepresented the requirements of the applicable 

building codes, ordinances and regulations; and

6. FireDEX misrepresented that its repair services were of a 

particular standard or quality, in order to induce the Wenks to 

utilize FireDEX in violation of 73 P.S. §201-2(4)(vii).

The Wenks’ Brief at 70–71. They argue that the trial court concluded only 

that FireDEX’s UTPCPL violations were limited to its failure to comply with the 

terms of a written guarantee or warranty to the Wenks and failed to address 

the Wenks’ other UTPCPL claims. Id. at 72, 73. The Wenks ask this Court to 

vacate the verdict “that erroneously required the Wenks to show that 

FireDEX’s conduct was ‘deceptive or fraudulent’ with respect to its violation of 

73 P.S. § 201-2(xiv)” and remand to the trial court with instructions to award 

treble damages, costs, and reasonable counsel fees. Id. at 76–77.

The UTPCPL was enacted to protect consumers “from fraud and unfair 

or deceptive business practices.” Commonwealth ex rel. Corbett v. 
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Peoples Benefit Servs., Inc., 923 A.2d 1230, 1236 (Pa. Cmwlth. 2007) 

(citing Commonwealth by Creamer v. Monumental Properties, Inc., 329 

A.2d 812 (Pa. 1974)). The UTPCPL applies to the sale of an insurance policy, 

it does not apply to the handling of insurance claims, as alleged herein. 

Neustein v. Government Employees Insurance Co., 2018 WL 6603640 

(W.D. Pa. filed November 29, 2018) (slip op. at *2) (emphasis added).

9

Rather, 42 Pa.C.S. § 8371 “provides the exclusive statutory remedy applicable 

to claims handling.” Id.

____________________________________________

9

 We acknowledge that: 

federal court decisions do not control the determinations of the 

Superior Court. Our law clearly states that, absent a United States 

Supreme Court pronouncement, the decisions of federal courts are 

not binding on Pennsylvania state courts, even when a federal 

question is involved . . . . [However, w]henever possible, 

Pennsylvania state courts follow the Third Circuit [Court of 

Appeals] so that litigants do not improperly “walk across the 

street” to achieve a different result in federal court than would be 

obtained in state court.

McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 106 n.13 (Pa. 

Super. 2015) (quoting NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 

A.3d 296, 303 (Pa. Super. 2012) (citations omitted)). Further: 

When confronted with a question heretofore unaddressed by the 

courts of this Commonwealth, we may turn to the courts of other 

jurisdictions. “Although we are not bound by those decisions,” “we 

may use decisions from other jurisdictions for guidance to the 

degree we find them useful and not incompatible with 

Pennsylvania law.”

Commonwealth v. Manivannan, 186 A.3d 472, 483–484 (Pa. Super. 2018)

(citing Newell v. Mont. W., Inc., 154 A.3d 819, 823 and n.6 (Pa. Super. 

2017) (citation and internal quotation marks omitted)).
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We rely upon the trial court’s explanation in addressing State Farm’s 

and FireDEX’s UTPCPL issues. The trial court explained as follows:

With respect to the Unfair Trade Practices and Consumer

Protection Law claims against State Farm, I find for State Farm. 

Although I have considered all of the specific allegations asserted 

by [the Wenks] against State Farm, it is sufficient for purposes of 

this Memorandum to simply note that I do not conclude that State 

Farm engaged in fraudulent or deceptive conduct. I also note 

decisional law of this [c]ourt and Pennsylvania state and federal 

jurisdiction concluding that Unfair Trade Practices and Consumer 

Protection Law claims are not amenable to claims which are, in 

substance, principally assertions of inappropriate claims handling 

by insurance companies, because claims handling is not a 

consumer transaction of the nature intended to be protected 

under the Unfair, Trade Practices Consumer Protection Law.

* * *

With respect to the Unfair Trade Practices and Consumer 

Protection Law claims brought by the [Wenks] against Firedex, I 

am constrained to find for the Wenks and against Firedex. While

the [Wenks] advance numerous theories supporting their Unfair 

Trade Practices and Consumer Protection Law claims, and point to 

multiple issues of contention respecting the work performed by 

Firedex, representations and conduct of Firedex during the job, 

including of Firedex’s purportedly misleading, dishonest, and 

disreputable tactics, and strategies, I am not persuaded based 

upon what I find to be the competent and credible evidence of 

record that Firedex engaged in any deceptive or fraudulent 

conduct as defined by or required under the Unfair Trade Practice

and Consumer Protection Law. A detailed discussion of all of the 

allegations and evidence proffered in support and rebuttal of each 

is not warranted in the context of this Memorandum. However, it 

is worth noting a particular piece of testimony by Mr. Wenk, 

wherein he observes that he believed that Mr. Fanning, the project 

manager for Firedex, was dutifully working on behalf of the Wenks 

in a sustained effort to repair the Wenks’ home (and would have 

succeeded if only, in the mind of Mr. Wenk, State Farm had 

permitted him to do so).

Notwithstanding my conclusion that Firedex, did not engage 

in deceptive or fraudulent conduct, my interpretation of the Unfair 
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Trade Practices and Consumer Protection Law found at 73 P.S. 

§201-2 (4)(xiv) compels me to conclude that Firedex has violated 

the UTPCPL. The relevant section of the Act indicates:

“Unfair methods of competition” and “Unfair or 

deceptive acts or practices” mean any one or more 

of the following: (xiv) failing to comply with the terms 

of any written, guarantee or warranty given to the 

buyer at, prior to or after a contract for the purpose 

of goods or services is made;

Accordingly, Firedex’s breach of its warranty, 

notwithstanding its good intentions and lack of fraudulent or 

deceptive intentions, in and of itself, constitutes a violation of the 

UTPCPL. In this instance, that violation warrants recovery of the 

same compensatory losses the Wenks would be entitled to under 

the breach of contract claim. (Which are themselves, also 

recoverable against State Farm). While the Wenks are 

theoretically entitled to additional damages under the UTPCPL, 

these damages are recoverable at the discretion of the fact 

finder,[10] and are only warranted where the conduct of the 

Defendant is, in some respect egregious, offensive or otherwise 

recklessly or intentionally dismissive of the rights of the Plaintiff. 

I do not conclude that Firedex’s conduct meets this standard.

Accordingly, while I recognize the availability of exemplary 

damages under the UTPCPL, I do not believe the facts in this case 

warrant the imposition of the same.

Memorandum Opinion and Verdict, 6/7/17, at 5–8 (emphases in original).

In sum, the trial court rejected the applicability of the UTPCPL to the 

Wenks’ claims against State Farm. The UTPCPL applies to consumer 

transactions, which are statutorily defined; the handling of an insurance claim 

does not meet the statutory definition. See, e.g., Neustein. As to the claims 

____________________________________________

10

 73 P.S. § 201-9.2 provides, inter alia, that a “court may, in its discretion, 

award up to three times the actual damages sustained . . . .” (emphasis 

added).
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against FireDEX, the trial court found for the Wenks but exercised its 

discretion, Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007), and rejected the 

Wenks’ claim for enhanced damages under the UTPCPL. Nexus Real Estate, 

LLC v. Erickson, 174 A.3d 1, 5 (Pa. Super. 2017) (Trial courts “should focus 

on the presence of intentional or reckless, wrongful conduct,” with which an 

award of treble damages would be consistent, “in furtherance of the remedial 

purposes of the UTPCPL.”) (quoting Schwartz, 932 A.2d at 897–898). We 

affirm the trial court’s discretionary finding that the Wenks failed to prove 

reckless or intentional misconduct by FireDEX that would warrant additional 

statutory relief, and we affirm the trial court’s resolution of the UTPCPL claims.

In its cross appeal, FireDEX argues that it was entitled to JNOV because 

the Wenks, in terminating FireDEX before work was completed, deprived it of 

the opportunity to cure any defects. FireDEX’s Brief at 16. FireDEX improperly 

cites to Wyse v. Leone, 121 A.3d 1118, 201 WDA 2014 (Pa. Super. 2015)

(unpublished memorandum), in support.11 We rely on the trial court’s 

disposition in rejecting this claim, as follows:

FireDEX asserts that, because FireDEX was fired by [the 

Wenks] without being afforded an opportunity to cure the defects 

in FireDEX’s work, this [c]ourt erred in holding that FireDEX

breached its contract and warranty. Initially, the [c]ourt notes 

that the present case did not involve a situation where the work 

____________________________________________

11

 Although Pa.R.A.P. 126 recently was amended to allow parties to rely on 

non-precedential unpublished decisions of this Court as persuasive authority, 

this amendment applies only to decisions filed after May 1, 2019. As Wyse

was filed four years earlier, on April 1, 2015, this unpublished memorandum 

cannot serve as persuasive authority.
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performed by FireDEX was merely incomplete. Rather, there was

ample evidence to support [the Wenks’] contention that FireDEX 

failed to perform its work consistent with industry standards 

and/or applicable codes and regulations, and that FireDEX thus 

performed its work in an unworkmanlike manner. Further, 

FireDEX was afforded an opportunity to remedy the 

deficiencies in its work when it was informed by [the 

Wenks] of their dissatisfaction with FireDEX’s work, 

specifically with respect to FireDEX’s failure to adhere to applicable 

codes and regulations. Despite knowledge of [the Wenks’]

dissatisfaction, FireDEX continued to perform its work in an 

unworkmanlike manner. For these reasons, FireDEX’s citation to 

Wyse v. Leone, 2015 WL 7424731 (Pa. Super. Apr. 1, 2015) 

[(unpublished memorandum)] does not support FireDEX’s 

argument that this [c]ourt erred in holding that FireDEX breached 

its contract and warranty.

Pa.R.A.P. 1925(a) Opinion, 11/30/18, at 3 (emphasis added).

Also in their cross-appeals, State Farm12 and FireDEX both assail the 

trial court’s determination that they were not entitled to a setoff of the 

settlement in D&R Equipment, the case against the original remodeling 

contractors who poured gasoline on the Wenks’ home. FireDEX’s Brief at 23–

29; State Farm’s Brief at 53–58. Because the settlement of that lawsuit 

specifically included recovery for damages the Wenks also sought in the case 

sub judice, including money to compensate them for damage to their home 

and personal property, additional living expenses, loss of the use of the home, 

and loss of market value, the trial court granted leave to State Farm and

FireDEX prior to trial in the instant case, to amend their New Matter to assert 

____________________________________________

12

 We do not address State Farm’s issue concerning liability of the $70,000 

award to the Wenks due to our vacation of that judgment, infra.
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a claim for a setoff. The trial court ultimately denied applying a setoff of the 

amounts recovered in D&R Equipment against the verdict herein.

In denying the setoff, which was sought by Appellees in post-trial 

motions, the trial court explained as follows:

[The Wenks] settled with the original contractor for a certain 

sum, which was compensation for a variety of damages. 

[Appellees] now argue that they are entitled to a setoff because 

the settlement fully compensates [the Wenks] for their damages, 

and under Pennsylvania law, [the Wenks] are not entitled to 

recover twice for the same injury. [The Wenks] argue that 

[Appellees] are not entitled to a setoff because [Appellees] and 

the original contractor are not joint tortfeasors. See Amato v. Bell 

& Gossett, 116 A.3d 607, 616 (Pa. Super. 2015), citing Ball v. 

Johns–Manville Corp., 625 A.2d 650, 659-60 (Pa. Super. 1993) 

(While some states...permit the apportionment of liability among 

all tortfeasors, even those who have not been made parties, 

Pennsylvania’s statute does not so provide).

I agree with [the Wenks] that the original contractor and 

[Appellees] are not joint tortfeasors and therefore, [Appellees] are 

not entitled to a setoff. I recognize that [Appellees] have 

proffered a well reasoned and sensible argument that they 

are not required to be joint tortfeasors in order to be 

entitled to a setoff. In Lasprogata v. Qualls, 397 A.2d 803 (Pa. 

Super. 1979), [the] Plaintiff sustained injuries during a traffic 

accident and sustained further injuries after alleged negligent

treatment of that injury. [The] Plaintiff brought suit against both 

the driver and the doctor who treated his injuries. Id. at 804. 

Citing § 457 of the Restatement (Second) of Torts,1the court held 

that the driver was liable for all of the Plaintiff[’]s injuries even 

though the driver and the doctor were not joint tortfeasors. Id. 

at 806. § 457 of the Restatement, however, deals only with bodily 

injury, so it does not apply to the damages in this case. 

Accordingly, [Appellees] argument is insufficient to overcome the 

rationale and dictates of Amato. Given that [Appellees] and the 

original contractor are not joint tortfeasors, [Appellees] are not 

entitled to a setoff, and I am denying their Motion.

1 “If the negligent actor is liable for another’s bodily 

injury, he is also subject to liability for any additional 
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bodily harm resulting from normal efforts of third 

parties in rendering aid which the other’s injury 

reasonably requires, irrespective of whether such acts 

are done in a proper or negligent manner.”

Memorandum and Order of Court, 3/6/18, at 1–2 (emphasis added).

State Farm argues the trial court erred in refusing to apply a setoff 

“because Pennsylvania law clearly allows only one recovery for an injury,” and 

allowing the Wenks to recover “from different parties for the same damages 

affords them a double recovery,” which violates Pennsylvania law. State 

Farm’s Brief at 23. State Farm asserts, contrary to the trial court, that 

Pennsylvania law does not require State Farm to be a joint tortfeasor with 

D&R Equipment, Inc. for a set-off to apply. Id. at 54.

FireDEX similarly contends the action in D&R Equipment sought some 

of the same elements of damages as were pled in this case. FireDEX’s Brief 

at 16. It takes issue, like State Farm, with the trial court’s holding that a 

setoff is not permitted because Appellees were not joint tortfeasors with D&R 

Equipment. Id. at 23.

Both State Farm and FireDEX cite Lasprogata v. Qualls, 397 A.2d 803 

(Pa. Super. 1979), in support. While Lasprogata is factually distinguishable, 

it is relevant in theory. In that case, the plaintiff was injured in a motor vehicle 

accident and required surgery, during which a complication occurred, 

hindering recovery and necessitating additional treatment. Lasprogata, 397 

A.2d at 804. The plaintiff settled his lawsuit against the other driver and later 

filed suit against the doctor who performed the surgery. This Court 
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determined, despite the fact that the doctor was not a joint tortfeasor with 

the other driver, that damages recovered from each defendant must be 

apportioned to prevent the plaintiff from receiving a double recovery. Id. at 

806–807. The trial court herein improperly limited Lasprogata to bodilyinjury claims. Neither the Wenks or the trial court cite authority, nor have we 

found any, that requires such a narrow view.

Amato v. Bell & Gossett, 116 A.3d 607 (Pa. Super. 2015),13 cited by 

the trial court, is distinguishable. That case involved contribution among 

asbestos manufacturers who were alleged to be joint tortfeasors. We agree 

with FireDEX that the Amato Court distinguished Lasprogata, which 

“recognized the difference between joint tortfeasors[,] whose wrongdoing 

combined to cause a single harm[,] and successive tortfeasors[, who] caused 

distinct injuries or damages,” and this Court “allowed apportionment, not 

contribution.” FireDEX’s Brief at 27. Moreover, herein, unlike in Amato,

14

Appellees’ liability is predicated upon the negligence of D&R Equipment, the 

____________________________________________

13

 Thomas Amato, a boilermaker, developed mesothelioma and sued twentyfour manufacturers of asbestos-containing products, one of which was 

Cranite, a sheet gasket material supplied by Crane Co. The jury determined 

that Mr. Amato’s exposure to Cranite was a factual cause of his mesothelioma. 

Amato, 116 A.3d at 612. 

14

 In Amato, this Court emphasized that Crane’s liability was not predicated 

“upon the liability of any third party, i.e., the settling defendants or nonparties,” who were the asbestos manufacturers.” Rather, Crane Co.’s liability 

was based on the “deleterious effects of its own products upon [Mr. Amato].” 

Amato, 116 A.3d at 616.
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non-party tortfeasor. Amato’s holding with respect to the “requirement” that 

an offset is appropriate only when the defendant and a settling non-party are 

joint tortfeasors was modified by the crucial distinction that Crane Co.’s 

liability was not predicated on the negligence of the settling tortfeasors, the 

asbestos manufacturers, a distinction absent in the instant case. State Farm’s 

Reply Brief at 2–3; see also Brown v. City of Pittsburgh, 186 A.2d 399, 

402 (Pa. 1962) (“[F]or the same injury, an injured party may have but one 

satisfaction . . . .”).

We conclude the trial court erred in dismissing, as a matter of law, State 

Farm’s and FireDEX’s requests for a setoff and instead, should have analyzed 

the facts of the claims sought in both cases and the settlement reached in 

D&R Equipment, in order to ensure that there was no duplication of recovery. 

Therefore, we remand the matter for the trial court to hold an evidentiary 

hearing to receive additional evidence, if any, and hear argument regarding 

the injuries and damages claimed in each case, the amounts the Wenks 

received, and the terms of the release in D&R Equipment.

15

Thus, we affirm the dismissal of the bad faith and UTPCPL claims against 

State Farm. We vacate the $70,000 judgment recoverable against State Farm 

and/or FireDEX and remand to the trial court to hold an evidentiary hearing 

____________________________________________

15

 In light of our remand and our vacation of the $70,000 damage award, we 

need not address State Farm’s argument that the trial court’s award of 

$70,000 in damages to the Wenks’ due to improper work by FireDEX is

recoverable against either FireDEX or State Farm.
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and examine the damages recovered in D&R Equipment and apply a setoff, 

if necessary.

Judgment in favor of the Wenks in the amount of $70,000 recoverable 

against FireDEX and/or State Farm is vacated. Case remanded for 

proceedings in accordance with this Opinion. In all other respects, the 

judgment is affirmed. Application for Relief is denied.

16

 Jurisdiction is 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2020

____________________________________________

16

 The Wenks filed an Application for Relief on August 16, 2019, in which they 

request inclusion of a transcribed portion of a video exhibit into the record

that was prepared in October, 2018, eighteen months after the conclusion of 

the trial in this case. N.T., 3/12/19, at 2–3. At trial, the trial court reviewed 

a portion of the video file, which is contained on a flash drive, and played a 

portion of the video at trial. N.T., 4/18/17, at 192–197. The Wenks did not 

offer a transcript of the video at trial, the trial court stated that the audio of 

the video clip was “contested” and “undecipherable,” and the Wenks declined 

and did not object when the trial court excused the court reporter and asked 

if they wanted “anything you’re saying on the record.” Id. at 194. The trial 

court heard argument and correctly granted the joint motion to strike the 

transcript of the video from the record because it “was not entered nor offered 

at the time of trial, the audio of the videoclip “was significantly compromised,” 

and the trial court determined that it “was unable to discern any material 

relevant evidence to be derived therefrom.” Order, 3/15/19. The Application 

is denied.
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