J-A20040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DR. JOHN D. HARDING AND DR. LINDA 

K. KRUUS, H/W

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

THE CUTLER GROUP, INC. D/B/A THE 

DAVID CUTLER GROUP

Appellant No. 135 EDA 2015

Appeal from the Judgment Entered on December 29, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No.: 2010-24681

BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED NOVEMBER 10, 2015

The Cutler Group, Inc., D/B/A/ the David Cutler Group, appeals the 

December 29, 2014 judgment in favor of Dr. John Harding and his wife, Dr. 

Linda Kruus (collectively “the Hardings”). For the reasons discussed herein, 

we conclude that the trial court erred in awarding damages to the Hardings 

under the Pennsylvania Unfair Trade Practices and Consumer Protection Law 

(“UTPCPL”), 73 Pa.C.S. § 201, et seq. Hence, we reverse in part and affirm 

in part. 

The trial court summarized the factual and procedural history of this 

case as follows:

[The Hardings] are the owners of a home located at 2424 April 

Drive, Jamison, Pennsylvania (“the home”). The home is a twostory structure located in Warwick Township, Bucks County. The 

front of the home faces south and has a brick façade. The side 
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and rear walls have stucco façades. . . . The Cutler Group, Inc. 

is a business entity [that] constructed the [home]. 

The parties signed an Agreement of Sale for the [home] on 

March 15, 2008. Additionally, the parties signed a Limited 

Warranty Home Warranty Agreement (“the Warranty”) dated 

June 30, 2008, which provided, in pertinent part, as follows: 

1. . . . Seller warrants said premises to be free of 

structural or mechanical defects for a period of one (1) 

year from the date of settlement, and Seller shall be 

responsible for the correction of such defects found at the 

premises during said one (1)-year period, and shall act 

with reasonable promptness to repair, reconstruct or 

otherwise correct at Seller’s sole discretion such defects 

upon receipt of notice in writing from Buyer of any such 

structural or mechanical defects, and after Seller inspects 

same at said premises. 

2. Coverage During Second Year. During the second year 

after the commencement date, the Builder continues to 

warrant that the home will be free from major construction 

defects and that the plumbing, electrical, heating and 

cooling systems will perform according to the Approved 

Standards, unless their failure is the result of a defect in 

an appliance, fixture, or item of equipment. A major 

construction defect is actual damage to the load-bearing 

portion of the home (including damage due to subsidence, 

expansion or lateral movement of soil from causes other 

than floor [sic] or earthquake) which affects its loadbearing function and which vitally affects (or is imminently 

likely to produce a vita [sic] effect on) the use of the home 

for residential purposes. 

3. In addition, Seller specifically warrants as follows, but 

not in limitation of the general warranty stated above: 

a. Your home has been constructed in accordance with the 

accepted home-building practice of this locality and, prior 

to delivery, has been inspected by our trained personnel as 

well as the building inspector. 

Paragraph 12 of the Exclusions section of the Warranty provides 

that [the Cutler Group] will not make any reimbursements for 

work completed by an outside contractor unless pre-authorized

in writing by the Cutler Group. 
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Approximately ninety (90) days after the date of 

settlement/commencement on June 30, 2008, the Hardings 

provided [the Cutler Group] with a written “punch list” of 

problems with their new home. The ninety (90)-day punch list 

identified, inter alia, water intrusion and leaking in the family 

room (rear of the home) and stucco cracking. In response, [the 

Cutler Group] came to the home on more than one occasion to 

caulk the leaking window to the right of the fireplace in the rear 

of the home. 

In September 2009, the Hardings notified [the Cutler Group] of 

discoloration around a window and ceiling marks in one of the 

bedrooms. [The Cutler Group] came to the home and removed 

the window, re-caulked, and then replaced the window. [The 

Hardings] notified [the Cutler Group] about concerning odors, 

and [the Cutler Group] came to the home again and painted 

over markings on the wall. [The Hardings] also reported 

concerns of mold growth to [the Cutler Group] because the smell 

continued to intensify. 

In March 2010, the home experienced severe water intrusion in 

the family room by the window that had been caulked 

previously. Water was “flowing” into the basement. The 

Hardings used pans, buckets, and towels to collect the water and 

clean up the mess. On March 19, 2010, [the Cutler Group] sent 

a contractor, Justin McCarty, to the home to test the moisture 

levels in the wall of the family room surrounding the leaky 

window. McCarty stated that the moisture readings on all three 

sides of the family room showed high moisture measurements. 

McCarty stated that the high moisture level was concerning 

because it meant the wood behind the walls could be breaking 

down and/or that there would be mold growth as well. The 

Hardings were particularly [concerned about] the potential [for] 

mold growth since their young son, Will, suffered from asthma 

and other allergies. 

Linda [Kruus] contacted an air quality specialist called NAL to 

investigate the odor in the two bedrooms and the front living 

room. By the time the Hardings contacted NAL, the worsening 

odor was also apparent in the front living room and the bedroom 

of the Hardings’ two-year-old son. After NAL completed its 

evaluation, [Dr. Kruus] contacted Eric Labor, at the Cutler 

Group, and pleaded for his help. Mr. Labor provided [the 

Hardings] with contact information for David Burkhardt, an air 

quality expert, even though “he wasn’t supposed to do this.” 
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David Burkhardt, an industrial hygienist and indoor air quality 

specialist employed by Eagle Industrial, visited the home on April 

28, 2010, to conduct an inspection and test for moisture. Mr. 

Burkhardt conducted approximately sixty probes and found 

elevated moisture readings on the three outside [walls] of the 

home that had stucco cladding. The leaks originating from 

outside the home had begun to saturate the Oriented Strand 

Board (OSB) wall sheathing and the moisture could be detected 

on the interior surface of the wall sheathing. Elevated moisture 

readings on the inside of the wall sheathing typically indicate 

even higher moisture readings on the outside of the wall because 

water moves from the outside to the inside. Mr. Burkhardt 

found “excessive moisture” on the inside of the wall sheathing 

. . . in the office and the family room. Evidence of water 

damage also was visible in the basement of the home. 

Mr. Burkhardt found the side walls of the home had the following 

elevated moisture levels when measured from the outside: 

a. The right side wall of the family room contained an 

elevated moisture level of greater than 40%

b. The left side wall at the kitchen contained an elevated 

moisture level of greater than 40%

c. The left side wall at the master bedroom contained 

elevated moisture levels of 21.3%, 37.7%, and 29.3%

d. The first-floor bathroom on the right side of the house 

contained an elevated moisture level of 31.3% 

e. The right side of the house near the rear corner 

contained an elevated moisture level of 38.8%

f. The right front side of the house near the electric meter 

contained elevated moisture levels of 23.3%, 35.3%, 

and greater than 40%

While all wood products have some level of moisture, a level of 

approximately 10% is expected in the building materials in a 

constructed home. A moisture reading of 15% or less is 

considered acceptable in wood. A moisture reading in the range 

of 20% is wet enough to cause deterioration of the building 

materials and mold growth. The Indoor Air Quality Association, 

American Industrial Hygiene Association, and the Environmental 

Protection Agency all consider wood building materials with a 
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moisture content of 20% to be “wet.” A moisture reading of 

40% is considered “excessively wet.” Multiple locations of the 

home had readings that registered [in excess of] 40% moisture 

content. Mr. Burkhardt’s expert opinion was that removal of all 

of the stucco was necessary in order to curtail mold growth and 

to prevent further damage to the structure. Mr. Burkhardt 

testified as follows: 

As a result of our findings, I’ve outlined a recommended 

plan of action, which starts on Page 9 of the report. And 

this action plan was designed following accepted mold and 

water damage remediation practices relative to the 

protection of the interior of the house, so you don’t get 

contamination and distribution of debris as the work is 

done. 

Based on the findings of wet building materials on all three 

sides of the house, my recommendation was . . . [to 

remove] the stucco, the wire lath, and the building wrap 

. . . from all areas that have stucco to expose the oriented 

strand board, and at that point, to determine the extent of 

the water damage to the oriented strand board; [and] to 

remove water-damaged oriented strand board and to clean 

the wall cavities as needed based upon this further 

deconstruction and investigation that would take place. 

The evaluations frequently reveal that there is water 

damage, mold growth, and structural deterioration of the 

framing members of the house. But this is something that 

you can’t determine until the removal process is started. 

Additionally, Burkhardt opined that, left unabated, the mold 

growth and deterioration at the Hardings’ home would worsen 

every day. 

In April 2010, [the Cutler Group] agreed to submit a work order 

to fix the family room bump out, but only if [the Hardings] 

executed a Confidentiality Agreement. In June 2010, the 

[Hardings] provided [the Cutler Group] with copies of an expert 

reports indicating water intrusion in the home. In August 2010, 

[the Cutler Group] wrote to [the Hardings] and rejected the 

experts’ findings of moisture levels in the home. [The Cutler 

Group] did not send a representative to inspect the home after 

being provided with the reports . . . .
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From May 2010 until the completion of the remediation by [the 

Hardings] in November 2010, [the Hardings] occupied only two 

of the four bedrooms in their new home, with four persons 

occupying the master bedroom due to moisture and odors 

relating to water leaks in two of the bedrooms. 

[The Hardings] hired Mark Werther, a forensic architect, to 

evaluate the construction of the home. He testified that the OSB 

was “badly damaged,” that the thickness of the stucco was in 

violation of the applicable Code, that a window in the area of a 

water leak had an incomplete expansion bead and was not 

installed in accordance with the window manufacturer’s 

instructions, and that there was excessive stapling through the 

flashing, which caused moisture to get into the OSB and caused 

“penetration of the water to affect the structure.” 

[The Hardings] also hired Jerry Yedinak, an expert in the field of 

stucco installation, to inspect the stucco on their home. He 

testified that the stucco siding at the Hardings’ residence did not 

include expansion joints, weep screeds, proper window sealants 

or drainage plains, and that the stucco was not properly 

installed. 

The “accepted home building practice” referenced in the 

Warranty in effect for Warwick Township at the time [the Cutler 

Group] built the Hardings’ home is set forth in the 2003 

International Residential Code (IRC). R703.1 of the IRC sets 

forth that “[e]xterior walls shall provide the building with a 

weather-resistant exterior wall envelope.” The Hardings’ home 

did not include a weather-resistant exterior wall envelope when 

[the Cutler Group] sold the home to the Hardings. [The Cutler 

Group] admitted that the entire rear façade of the home, and 

portions of the sides of the home, had water damage and 

needed to be remediated. 

On June 28, 2010, [the Hardings] notified [the Cutler Group] of 

the expert reports they obtained recommending the removal of 

stucco and remediation of the back and side walls of the home. 

On August 16, 2010, the Hardings’ counsel wrote to the Cutler 

Group and advised that Dugan Construction would begin removal 

of the stucco and other work on the home on August 25, 2010.

1

 

In response, [the Cutler Group] offered to remove the rear wall 

of the home and locate the moisture to determine if the side 

walls needed to be remediated. [The Hardings] rejected this 

proposal. [The Cutler Group] then offered to remove all three 
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walls of stucco with the caveat that [the Hardings] would 

reimburse [the Cutler Group] for the remediation costs of the 

sides of the property if they showed no sign of water infiltration. 

Ultimately, this offer was rejected, and Dugan Construction 

began to repair the home in late October 2010. [The Cutler 

Group] never tested for the source of the water intrusion in the 

two years between the time that [the Hardings] first reported 

the water intrusion in September 2008 and the start of the 

repairs in October 2010. [The Cutler Group] refused to pay for 

Dugan Construction to remove the stucco [from] all three sides 

of the home. [The Hardings] paid Dugan Construction 

$75,802.50 to repair the defects to the home. 

1 Dugan Construction did not begin to work on the home 

on August 25, 2010, because the Hardings delayed the 

work to give [the Cutler Group] time to correct the defects. 

During the course of the negotiations between [the Hardings] 

and [the Cutler Group, the Hardings] filed a complaint against 

[the Cutler Group] on August 19, 2010, alleging breach of 

contract/warranty and violation of the [UTPCPL]. A three day 

bench trial was conducted . . . on January 13-15, 2014. On the 

second day of trial, [the Hardings] filed a motion for leave to file 

an amended complaint in order to clarify their claims and 

conform the pleadings to the evidence presented [at trial]. On 

February 7, 2014, the [trial] court granted [the Hardings’] 

motion, . . . and [the Hardings] filed an amended complaint on 

February 14, 2014. The amended complaint added the following 

sentence to the original complaint: “Further, [the Cutler Group’s] 

failure to honor the terms of the warranty is a violation of § 201-

2(xiv) of the UTPCPL.” 

Trial Court Opinion (“T.C.O.”), 2/18/2015, at 1-8 (minor modifications for 

clarity; citations to notes of testimony omitted). 

On March 4, 2014, the trial court entered its findings of fact and its 

decision. The trial court held that the Cutler Group was liable to the 

Hardings for breach of contract/warranty (count one of the Hardings’ 

amended complaint), and awarded the Hardings damages of $78,827.50. 
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The court also found that the Cutler Group was liable to the Hardings’ under 

the UTPCPL (count two of the Hardings’ amended complaint), and awarded 

the Hardings damages of $157,655.00. On March 12, 2014, the Cutler 

Group filed a post-trial motion, wherein it sought a new trial or, in the 

alternative, a remittitur striking the damages awarded under the UTPCPL. 

On March 14, 2014, the Hardings filed a post-trial motion seeking attorneys’ 

fees and costs. On June 12, 2014, following a hearing, the trial court denied 

both of those motions. 

On July 10, 2014, the Cutler Group filed a notice of appeal. On July 

18, 2014, the Hardings also filed a notice of appeal. On July 29, 2014, the 

trial court requested that this Court remand both cases so that the trial court 

could vacate the judgment and enter a revised order. On September 8, 

2014, we entered an order remanding the cases to the trial court and 

relinquishing jurisdiction. See Order, 9/8/2014, at 1. 

On October 6, 2014, the trial court entered a revised decision, which 

reduced the statutory damages awarded to the Hardings under the UTPCPL 

from $157,655.00 to $78,827.50. The trial court also awarded the Hardings

$80,347.06 for attorneys’ fees and costs. The Cutler Group filed a post-trial 

motion, which the trial court denied on December 5, 2014. The trial court 

entered judgment on December 29, 2014. 

On December 30, 2014, the Cutler Group filed a notice of appeal. On 

December 31, 2014, the trial court ordered the Cutler Group to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 
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The Cutler Group timely complied. On February 18, 2015, the trial court 

filed a Pa.R.A.P. 1925(a) opinion. 

The Cutler Group presents six issues for our consideration: 

1. Did the trial court commit an error of law and abuse its 

discretion by finding the [Hardings] were not required to 

establish the common[-]law elements of fraud in order to 

support their claims under the [UTPCPL] and by finding [the 

Cutler Group] violated the UTPCPL by breaching the warranty 

and failing to construct the subject home in accordance with 

home building[-]practices in [the Hardings’] locality? 

2. Is a decision which awards statutory damages and attorney’s 

fees under the [UTPCPL] an error of law and an abuse of 

discretion when the record does not support a finding that 

[the Cutler Group] violated the act?

3. Did the trial court commit an error of law and abuse its 

discretion by allowing [the Hardings] to amend their 

complaint and add an additional theory of recovery under the 

provisions of the [UTPCPL] following the close of trial? 

4. Did the trial court commit an error of law and abuse its 

discretion by finding that [the Cutler Group] was liable to the 

[Hardings] under the [UTPCPL] under the catch[-]all 

provision? 

5. Did the trial court commit an error of law and abuse its 

discretion by changing its findings of fact and decision in its 

order and decision of October 3, 2014, and issuing a 

subsequent opinion of February 18, 2015, admitting to an 

error of law?

6. Did the trial court abused [sic] its discretion and committed 

[sic] an error of law by finding that [the Cutler Group] 

breached its limited warranty with the [Hardings] where such 

a finding was clearly against the weight of the evidence 

produced at trial and shocking to the conscious[sic]? 
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Brief for the Cutler Group at 7-8 (capitalization modified).1 

In their first and second issues, the Cutler Group challenges the trial 

court’s finding that “the [Hardings] were not required to establish the 

common[-]law elements of fraud in order to support their claims under the 

[UTPCPL].”2 Brief for the Cutler Group at 27 (capitalization modified). In its 

Rule 1925 opinion, the trial court agreed that the Hardings’ UTPCPL claim 

“require[d] a showing of common[-]law fraud.” T.C.O. at 18. Because the 

Hardings did not prove the elements of common-law fraud, the trial court 

conceded that it erred in awarding the Hardings statutory damages and 

attorney’s fees pursuant to the UTPCPL. Id. For the reasons that follow, we 

disagree that the UTPCPL requires plaintiffs to demonstrate all of the 

elements of common-law fraud; nonetheless, we agree that the trial 

evidence in support of the Hardings’ UTPCPL claims was insufficient as a 

matter of law. 

Whether the UTPCPL requires that plaintiffs plead and prove the 

elements of common-law fraud is an issue of statutory interpretation, a 

question of law. Accordingly, our standard of review is de novo and our 

____________________________________________

1 We have reordered the Cutler Group’s issues for ease of disposition.

2 A claim for common-law fraud requires a plaintiff to demonstrate: (1) 

a representation; (2) material to the transaction at issue; (3) made falsely, 

with; (4) either knowledge or reckless disregard of its falsity; (5) with the 

intent to mislead another person or induce justifiable reliance; and (6) an 

injury caused by the reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 

1999). 
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scope of review is plenary. See Stoloff v. Neiman Marcus Group, Inc.,

24 A.3d 366, 369 (Pa. Super. 2011). Generally, with respect to statutes, 

“the object of all interpretation and construction is to ascertain and 

effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). 

“Because the legislature is presumed to have intended to avoid mere 

surplusage, every word, sentence, and provision of a statute must be given 

effect.” Allegheny Cty. Sportsmen’s League v. Rendell, 860 A.2d 10, 19 

(Pa. 2004). We also may assume that the legislature does not intend a 

result that is absurd, unreasonable, or impossible of execution. 1 Pa.C.S. 

§ 1922. 

Pennsylvania’s consumer protection law, the UTPCPL, proscribes 

“unfair methods of competition” and “unfair or deceptive acts or practices” in 

connection with trade or commerce.3 73 Pa.C.S. § 201-3. Upon a finding of 

liability under the UTPCPL, the trial court may award “up to three times the 

actual damages sustained” and any additional relief it deems proper. 73 

Pa.C.S. § 201-9.2. Subsection 201-2(4) enumerates twenty specific unfair 

methods of competition and unfair or deceptive acts or practices, and 

includes a catchall provision. Relevant to the case sub judice, the General 

Assembly has defined “unfair methods of competition” and “unfair or 

deceptive acts or practices” to include “[f]ailing to comply with the terms of 

____________________________________________

3 The UTPCPL also applies to residential real estate transactions. See 

Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007). 
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any written guarantee or warranty given to the buyer at, prior to or after a 

contract for the purchase of goods or services is made.” 73 Pa.C.S. § 201-

2(4)(xiv). 

Since the enactment of the UTPCPL in 1968, Pennsylvania courts have 

struggled to define which UTPCPL claims, if any, require proof of each of the 

elements of common-law fraud. Compare Ross v. Foremost Ins. Co., 

998 A.2d 648, 654 (Pa. Super. 2010) (“In order to establish a violation of 

[the UTPCPL’s] catch[-]all provision, a plaintiff must prove all of the 

elements of common-law fraud.”); with Bennett v. A.T. Masterpiece 

Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012) (holding that 

a plaintiff need not prove all of the elements of common law fraud in order 

to establish a violation of the UTPCPL’s catch-all provision); see also 

DiLucido v. Terminix Int’l, Inc., 676 A.2d 1237, 1239 (Pa. Super. 1996), 

abrogated by Toy v. Metro. Life Ins. Co., 928 A.2d 186 (Pa. 2007). This 

question is complicated by the fact that most of the practices proscribed by 

subsection 201-2(4) involve fraudulent or deceptive conduct, see e.g., 73 

Pa.C.S. § 201-2(4)(vi) (“Representing that goods are original or new if they 

are deteriorated, altered, reconditioned, reclaimed, used or secondhand”), 

but a few do not. See, e.g., 73 Pa.C.S. § 201-2(4)(xviii) (prohibiting 

confession-of-judgment clauses in consumer contracts); 73 Pa.C.S. § 201-

2(4)(xii) (prohibiting certain buyer-referral agreements). 

Although no appellate court in Pennsylvania has considered whether 

subsection 201-2(4)(xiv) of the UTPCPL requires plaintiffs to plead and prove 
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each of the elements of common law fraud, it is well-settled that private 

parties bringing claims under the UTPCPL must demonstrate that they have 

standing to do so. “The [UTPCPL] creates a private right of action in persons 

upon whom unfair methods of competition and unfair or deceptive acts or 

practices are employed and who[,] as a result, sustain an ascertainable 

loss.” Toy, 928 A.2d 186, 191 (Pa. 2007); see 73 Pa.C.S. § 201-9.2. 

The Pennsylvania Supreme Court repeatedly has held that, due to the 

causation element in the UTPCPL’s standing provision, see 73 Pa.C.S. § 201-

9.2(a) (allowing for actions by private plaintiffs who suffer a loss “as a result 

of” the defendant’s deception), a private plaintiff pursuing a claim under the 

statute must demonstrate the justifiable reliance element of common-law 

fraud. See Schwartz v. Rockey, 932 A.2d 885, 897 n.16 (Pa. 2007) 

(“[T]he justifiable reliance criterion derives from the causation 

requirement[,] which is express on the face of section 9.2.”); Toy, 928 A.2d 

at 202 (“[A] plaintiff alleging violations of the Consumer Protection Law must 

prove justifiable reliance.”); Yocca v. Pittsburgh Steelers Sports, Inc., 

854 A.2d 425, 438 (Pa. 2004) (“To bring a private cause of action under the 

[UTPCPL], a plaintiff must show that he justifiably relied on the defendant’s 

wrongful conduct or representation and that he suffered harm as a result of 

that reliance.”); Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001) (“The 

statute clearly requires, in a private action, that a plaintiff suffer an 

ascertainable loss as a result of the defendant’s prohibited action. That 

means . . . a plaintiff must allege reliance.”). 
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Both the Cutler Group and the trial court cite Toy and Weinberg, 

which they interpret to require that a plaintiff prove common-law fraud in 

order to prevail on a claim under the UTPCPL. This is incorrect. Those cases 

require only that private plaintiffs demonstrate one element of common-law 

fraud, justifiable reliance, in order to bring a claim under the UTPCPL. 

See Toy, 928 A.2d at 208 (“[T]his Court’s decision in Weinberg . . . stands 

for the proposition that that a plaintiff alleging violations of the [UTPCPL] 

must prove the common[-]law fraud element of justifiable reliance.”). 

Notwithstanding Toy and Weinberg, the Hardings maintain that 

“justifiable reliance cannot be an element of a claim under [subsection] 201-

2(4)(xiv).” Brief for the Hardings at 28. They reason that such an 

interpretation of the statute would yield an absurd result because subsection 

201-2(4)(xiv) “makes it a violation [of the UTPCPL] to fail to comply with a 

written guarantee or warranty given to the buyer after the transaction was 

made.” Id. at 27 (emphasis in original). The Hardings question how a 

plaintiff could rely justifiably upon a written warranty that they received only

after the transaction was completed, and they maintain that the General 

Assembly could not have intended to draft such an illogical provision. 

The Hardings misunderstand the UTPCPL’s justifiable reliance 

requirement. A private plaintiff is not required to demonstrate that the 

written guarantee or warranty justifiably induced him to purchase goods or 

services. Instead, the plaintiff must demonstrate that he justifiably relied 

upon the defendant’s wrongful conduct or representation and that he 
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suffered some harm as a result of that reliance. See Weinberg, 777 A.2d 

at 446 (“The statute clearly requires, in a private action, that a plaintiff 

suffer an ascertainable loss as a result of the defendant’s prohibited action.” 

(emphasis in original)). Furthermore, the justifiable reliance requirement 

does not render the entire statute illogical, because it applies only in actions 

brought by private plaintiffs. The statute allows the Attorney General to 

bring an action on behalf of the Commonwealth without demonstrating 

justifiable reliance. See 73 Pa.C.S. § 201-4. In any event, Toy and 

Weinberg are binding precedent, which this Court must apply without 

regard to the rules of statutory construction. 

Although the Cutler Group overstates the dictates of Toy and 

Weinberg, its conclusion that the trial court erred in awarding damages to 

the Hardings under the UTPCPL nevertheless is correct. Because the 

Hardings neither alleged in their complaint, nor proved at trial, justifiable 

reliance, their UTPCPL claims must fail as a matter of law. Accordingly, we 

reverse the trial court’s finding of liability and award of damages and 

attorneys’ fees under the UTPCPL.

In their third issue, the Cutler Group argues that the trial court abused 

its discretion in allowing the Hardings to amend their complaint to include a 

claim that the Cutler Group was liable pursuant to subsection 201-2(4)(xiv) 

of the UTPCPL. Because we already have concluded that the Cutler Group 

was not liable to the Hardings under the UTPCPL, this issue is moot. 
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In their fourth issue, the Cutler Group contends that the trial court 

erred in finding that the Cutler Group was liable to the Hardings under the 

catch-all provision of the UTPCPL. This issue is moot. In its revised 

decision, from which the Cutler Group has appealed, the trial court found 

that that the Cutler Group had not violated the UTPCPL’s catch-all provision. 

The Cutler Group’s fifth issue concerns the trial court’s amended 

decision and findings of fact. The Cutler Group argues that “[i]t was not 

only inappropriate for the [trial] court to change [its] factual findings after 

final judgment and jurisdiction of the lower court had been relinquished, it 

was legal error to do so.” Brief for the Cutler Group at 21. We disagree. 

After a party files a notice of appeal, according to the Pennsylvania 

Rules of Appellate Procedure, a trial court may “[t]ake any action directed or 

authorized on application by the appellate court.” Pa.R.A.P. 1701(b)(5). 

Here, the trial court requested that this Court remand the matter so that it 

could vacate the judgment and enter a revised decision. We then granted 

the trial court’s request and relinquished our jurisdiction. 

Although the trial court’s revised decision did include more specific 

factual findings, the substance of those findings also appeared in the court’s 

original decision.4 For example, in its revised decision, the trial court noted 

____________________________________________

4 The principal difference between the trial court’s original decision and 

its revised decision relates to the Hardings’ UTPCPL claims. As explained, 

supra, the trial court, in any event, erred in finding that the Cutler Group 

violated the UTPCPL. 
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that “[t]he 2003 International Residential Code (IRC) established the 

accepted home building practice[s] and standards in Warwick Township,” 

and then listed specific provisions of the IRC with which the Cutler Group 

failed to comply. Order and Decision, 10/3/2014, at 2. However, in its 

original decision, the trial court simply stated that the Cutler Group failed to 

construct the home “in accordance with the accepted home[-]building 

practice[s] in Warwick Township.” Findings and Decision, 3/4/2014, at 9. 

The Cutler Group has not persuaded us that it was “severely 

prejudiced” by these minor discrepancies. Brief for the Cutler Group at 22. 

Moreover, the Cutler Group does not cite any case law to support its 

contention that the trial court “should have ordered a new trial” under these 

circumstances, and we are aware of none. See id. at 19. Accordingly, this 

issue is without merit. 

Finally, the Cutler Group argues that “the trial court abused its 

discretion and committed an error of law by finding that [the Cutler Group] 

breached its limited warranty with [the Hardings] where such a finding was 

clearly against the weight of the evidence produced at trial and shocking to 

the conscious.” Brief for the Cutler Group at 39. 

Despite our best efforts, we fail to comprehend the Cutler Group’s 

argument on this issue. Indeed, it is not clear whether the Cutler Group is 

challenging the weight of the evidence, the sufficiency of the evidence, the 

trial court’s legal conclusions, or something else entirely. See id. (arguing 

that the trial court’s finding was “clearly against the weight of the evidence,” 
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and “shocking to the conscious [sic]”); id. at 41 (arguing that the trial court 

“failed to apply its own finding[s] of fact to its decision”); id. at 42 (arguing 

that “it was an abuse of discretion and error of law to find that [the Cutler 

Group] breached the limited warranty”). 

The Cutler Group’s failure to set forth the standard of review applicable 

to their claim adds further ambiguity to their argument. In fact, this section 

of the Cutler Group’s brief is devoid of any citation to relevant legal 

authority.5 Because the Cutler Group has not developed this issue, it is 

waived. See Pa.R.A.P. 2101 (this Court may quash or dismiss matter if 

defects in briefs or reproduced record are substantial), 2111 (rules 

governing content of briefs), and 2119 (requiring discussion and citation of 

authority). We will not act as counsel to develop arguments on behalf of 

appellants. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 

2007). When defects in a brief impede this Court from conducting 

____________________________________________

5

In their brief, the Cutler Group cites a single case, Henderson v. 

Benson-Hartman Motors, Inc., 33 Pa. D. & C.3d 6 (Pa. Com. Pl. 1983), 

for the proposition that “implied warranties may be limited in duration.” 

Brief for the Cutler Group at 40. That citation is unproductive for several 

reasons. First, it is well-settled that “appellate courts are not bound by the 

decisions of the Courts of Common Pleas.” Sysco Corp. v. FW 

Chocolatier, LLC, 85 A.3d 515, 520 (Pa. Super. 2014). Second, the 

language in Henderson that the Cutler Group relies upon comes from a 

federal statute not at issue in this case. See 15 U.S.C. § 2308(b). Third, 

Henderson in no way relates to the issue that the Cutler Group has 

preserved for our review, i.e., whether the trial court’s finding was contrary 

to the weight of the evidence. See Statement of Matters Complained of on 

Appeal, 1/19/2015, at 1; Brief for the Cutler Group at 39. 
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meaningful appellate review, we may dismiss the appeal entirely or find that 

certain issues are waived. Id.; see also Commonwealth v. Luktisch, 680 

A.2d 877 (Pa. Super. 1996) (deeming issue waived where defendant failed 

to develop argument in his appellate brief and cited no authority). 

For the forgoing reasons, the trial court erred in holding that the Cutler 

Group violated the UTPCPL. Because the Hardings failed to demonstrate 

justifiable reliance, the trial court erred in awarding the Hardings damages 

under the UTPCPL. In all other respects, we affirm. 

Affirmed in part and reversed in part. Case remanded. Jurisdiction 

relinquished.

Judge Donohue joins the memorandum.

Judge Shogan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2015