PRINTER'S NO. 672
No. 633 Session of 1975
INTRODUCED BY WOOD AND HOBBS, APRIL 28, 1975
REFERRED TO CONSUMER AFFAIRS, APRIL 28, 1975
AN ACT
1 Reenacting and amending the act of December 17, 1968 (P.L.1224,
2 No.387), entitled "An act prohibiting unfair methods of
3 competition and unfair or deceptive acts or practices in the
4 conduct of any trade or commerce, giving the Attorney General
5 and District Attorneys certain powers and duties and
6 providing penalties," prohibiting additional unfair methods
7 of competition and unfair or deceptive acts or practices, and
8 giving additional powers and rights to consumers.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. The act of December 17, 1968 (P.L.1224, No.387),
12 known as the "Unfair Trade Practices and Consumer Protection
13 Law," is reenacted and amended to read:
14 Section 1. Short Title.--This act shall be known and may be
15 cited as the "Unfair Trade Practices and Consumer Protection
16 Law."
17 Section 2. Definitions.--As used in this act.
18 (1) "Documentary material" means the original or a copy of
19 any book, record, report, memorandum, paper, communication,
20 tabulation, map, chart, photograph, mechanical transcription or
21 other tangible document or recording, wherever situate.
1 (1.1) "Goods" means any property, tangible or intangible,
2 real, personal or mixed, and any other article, commodity, or
3 thing of value.
4 (2) "Person" means natural persons, corporations, trusts,
5 partnerships, incorporated or unincorporated associations, and
6 any other legal entities.
7 (3) "Trade" and "commerce" mean the advertising, offering
8 for sale, sale or distribution of any services and any property,
9 tangible or intangible, real, personal or mixed, and any other
10 article, commodity, or thing of value wherever situate, and
11 includes any trade or commerce directly or indirectly affecting
12 the people of this Commonwealth.
13 (4) "Unfair methods of competition" and "unfair or deceptive
14 acts or practices" mean any one or more of the following:
15 (i) Passing off goods or services as those of another;
16 (ii) Causing likelihood of confusion or of misunderstanding
17 as to the source, sponsorship, approval or certification of
18 goods or services;
19 (iii) Causing likelihood of confusion or of misunderstanding
20 as to affiliation, connection or association with, or
21 certification by, another;
22 (iv) Using deceptive representations or designations of
23 geographic origin in connection with goods or services;
24 (v) Representing that goods or services have sponsorship,
25 approval, characteristics, ingredients, uses, benefits or
26 quantities that they do not have or that a person has a
27 sponsorship, approval, status, affiliation or connection that he
28 does not have;
29 (vi) Representing that goods are original or new if they are
30 deteriorated, altered, reconditioned, reclaimed, used or
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1 secondhand;
2 (vii) Representing that goods or services are of a
3 particular standard, quality or grade, or that goods are of a
4 particular style or model, if they are of another;
5 (viii) Disparaging the goods, services or business of
6 another by false or misleading representation of fact;
7 (ix) Advertising goods or services with intent not to sell
8 them as advertised;
9 (x) Advertising goods or services with intent not to supply
10 reasonably expectable public demand, unless the advertisement
11 discloses a limitation of quantity;
12 (xi) Making false or misleading statements of fact
13 concerning the reasons for, existence of, or amounts of price
14 reductions;
15 (xii) Promising or offering to pay, credit or allow to any
16 buyer, any compensation or reward for the procurement of a
17 contract [of purchase with others;] for purchase of goods or
18 services with another or others, or for the referral of the name
19 or names of another or others for the purpose of attempting to
20 procure or procuring such a contract of purchase with such other
21 person or persons;
22 [(xiii) Engaging in any other fraudulent conduct which
23 creates a likelihood of confusion or of misunderstanding.]
24 (xiv) Promoting or engaging in any plan by which goods or
25 services are sold to a person for a consideration and upon the
26 further consideration that the purchaser secure or attempt to
27 secure one or more persons likewise to join the said plan; each
28 purchaser to be given the right to secure money, goods or
29 services depending upon the number of persons joining the plan.
30 In addition, promoting or engaging in any plan, commonly known
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1 as or similar to the so-called "Chain-Letter Plan" or "Pyramid
2 Club." The terms "Chain-Letter Plan" or "Pyramid Club" mean any
3 scheme for the disposal or distribution of property, services or
4 anything of value whereby a participant pays valuable
5 consideration, in whole or in part, for an opportunity to
6 receive compensation for introducing or attempting to introduce
7 one or more additional persons to participate in the scheme or
8 for the opportunity to receive compensation when a person
9 introduced by the participant introduces a new participant;
10 (xv) Failing to comply with any of the provisions of the act
11 of October 28, 1966 (P.L.55, No.7), known as the "Goods and
12 Services Installment Sales Act"; the act of August 14, 1963
13 (P.L.1082, No.464), known as the "Home Improvement Finance Act";
14 the act of June 28, 1947 (P.L.1110, No.476), known as the "Motor
15 Vehicle Sales Finance Act"; or any other law of the Commonwealth
16 of Pennsylvania designed to protect the consumer who purchases
17 either with cash or with credit;
18 (xvi) Failing to comply with the terms of any written or
19 oral guarantee or warranty given to the buyer at, prior to or
20 after a contract for the purchase of goods or services is made;
21 (xvii) Representing that services, replacements or repairs
22 are needed if they are not needed; or providing services,
23 replacements or repairs that are not needed;
24 (xviii) Engaging in any trade or commerce as defined in this
25 act without first obtaining a license or other permit to engage
26 in the same when said license or other permit is required by any
27 applicable law; or representing that such a license has been
28 obtained when it has not;
29 (xix) Making repairs, improvements or replacements on
30 tangible, real or personal property, of a nature or quality
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1 inferior to or below the standard of that promised;
2 (xx) Engaging in any other conduct which creates a
3 likelihood of confusion or of misunderstanding;
4 (xxi) Engaging in any other act or practice which is unfair
5 or deceptive to the consumer.
6 Section 3. Unlawful Acts or Practices; Exclusions.--Unfair
7 methods of competition and unfair or deceptive acts or practices
8 in the conduct of any trade or commerce as defined by section 2
9 (4) and regulations promulgated under section 3.1 are hereby
10 declared unlawful. The provisions of this act shall not apply to
11 any owner, agent or employe of any radio or television station,
12 or to any owner, publisher, printer, agent or employe of a
13 newspaper or other publication, periodical or circular, who, in
14 good faith and without knowledge of the falsity or deceptive
15 character thereof, publishes, causes to be published or takes
16 part in the publication of such advertisement.
17 Section 3.1. Regulations.--The Attorney General may adopt
18 such rules and regulations as may be necessary for the
19 enforcement and administration of this act, including
20 regulations clarifying and further defining "unfair methods of
21 competition" and "unfair or deceptive acts or practices" as set
22 forth in section 2 (4). Such rules and regulations when
23 promulgated pursuant to the act of July 31, 1968 (P.L.769,
24 No.240), known as the "Commonwealth Documents Law," shall have
25 the force and effect of law.
26 Section 4. Restraining Prohibited Acts.--Whenever the
27 Attorney General, [or a] any District Attorney, or the solicitor
28 of any county of the second class or city of the first or second
29 class has reason to believe that any person is using or is about
30 to use any method, act or practice declared by section 3 of this
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1 act to be unlawful, and that proceedings would be in the public
2 interest, he may bring an action in the name of the Commonwealth
3 against such person to restrain by temporary or permanent
4 injunction the use of such method, act or practice. The action
5 may be brought in the court of common pleas of the county in
6 which such person resides, has his principal place of business,
7 or is doing business, or may be brought in the Commonwealth
8 Court. The said courts are authorized to issue temporary or
9 permanent injunctions to restrain and prevent violations of this
10 act, and such injunctions shall be issued without bond.
11 Section 4.1. Payment of Costs and Restitution.--Whenever any
12 court issues a permanent injunction to restrain and prevent
13 violations of this act as authorized in section 4, the court may
14 in its discretion provide for payment by defendant or defendants
15 to the Commonwealth of the costs and disbursements of the action
16 and the costs of the investigation leading to the action. In
17 addition, the court may in its discretion direct that the
18 defendant or defendants restore to any person in interest any
19 moneys or property, real or personal, which may have been
20 acquired by means of any violation of this act, under terms and
21 conditions to be established by the court.
22 Section 5. Assurances of Voluntary Compliance.--In the
23 administration of this act, the Attorney General may accept an
24 assurance of voluntary compliance with respect to any method,
25 act or practice deemed to be violative of the act from any
26 person who has engaged or was about to engage in such method,
27 act or practice. Such assurance may include a stipulation for
28 voluntary payment by the alleged violator of the costs of
29 investigation by the Attorney General and may also include a
30 stipulation for the restitution by the alleged violator to
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1 consumers, of money, property or other things received from them
2 in connection with a violation of this act. Any such assurance
3 shall be in writing and be filed with the court of common pleas
4 in which the alleged violator resides, has his principal place
5 of business, or is doing business, or the Commonwealth Court.
6 Such assurance of voluntary compliance shall not be considered
7 an admission of violation for any purpose. Matters thus closed
8 may at any time be reopened by the Attorney General for further
9 proceedings in the public interest, pursuant to section 4.
10 Section 6. Civil Investigative Demand.--(a) Whenever the
11 Attorney General believes that any person may be in possession,
12 custody, or control of the original or a copy of any documentary
13 material relevant to the subject matter of an investigation of a
14 possible violation of this act, he may execute in writing and
15 cause to be served upon such a person, a civil investigative
16 demand requiring such person to produce such documentary
17 material and permit inspection and copying; providing that this
18 section shall not be applicable to criminal prosecutions.
19 (b) Each such demand shall:
20 (1) State the statute or regulation and section thereof, the
21 alleged violation of which is under investigation, and the
22 general subject matter of the investigation;
23 (2) Describe the class or classes of documentary material to
24 be produced thereunder with reasonable specificity so as fairly
25 to indicate the material demanded;
26 (3) Prescribe a return date within which the documentary
27 material is to be produced; and
28 (4) Identify the members of the Attorney General's staff to
29 whom such documentary material is to be made available for
30 inspection and copying.
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1 (c) No such demand shall:
2 (1) Contain any requirement which would be unreasonable or
3 improper if contained in a subpoena duces tecum issued by a
4 court of this State; or
5 (2) Require the disclosure of any documentary material which
6 would be privileged, or which for any other reason would not be
7 required by a subpoena duces tecum issued by a court of this
8 State.
9 (d) Service of any such demand may be made by:
10 (1) Delivering a duly executed copy thereof to the person to
11 be served or to a partner or to any officer or agent authorized
12 by appointment or by law to receive service of process on behalf
13 of such person;
14 (2) Delivering a duly executed copy thereof to the principal
15 place of business in this State of the person to be served; or
16 (3) Mailing by registered or certified mail a duly executed
17 copy thereof addressed to the person to be served at the
18 principal place of business in this State, or, if said person
19 has no place of business in this State, to his principal office
20 or place of business.
21 (e) Documentary material demanded pursuant to the provisions
22 of this section shall be produced for inspection and copying
23 during normal business hours at the principal office or place of
24 business of the person served, or at such other times and places
25 as may be designated by the Attorney General.
26 (f) No documentary material produced pursuant to a demand
27 under this section shall, unless otherwise ordered by a court
28 for good cause shown, be produced for inspection or copying by,
29 nor shall the contents thereof be disclosed to, any person other
30 than the authorized employe of the Attorney General, without the
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1 consent of the person who produced such material: Provided, That
2 under such reasonable terms and conditions as the Attorney
3 General shall prescribe, such documentary material shall be
4 available for inspection and copying by the person who produced
5 such material or any duly authorized representative of such
6 person. The Attorney General or any attorney designated by him
7 may use such documentary material or copies thereof as he
8 determines necessary in the enforcement of this act, including
9 presentation before any court: Provided, That any such material
10 which contains trade secrets or other highly confidential matter
11 shall not be presented except with the approval of the court in
12 which the action is pending after adequate notice to the person
13 furnishing such material.
14 (g) At any time before the return date specified in the
15 demand, or within twenty days after the demand has been served,
16 whichever period is shorter, a petition to extend the return
17 date for, or to modify or set aside the demand, stating good
18 cause, may be filed in the court of common pleas of the county
19 where the parties reside or in the Commonwealth Court.
20 (h) A person upon whom a demand is served pursuant to the
21 provisions of this section shall comply with the terms thereof
22 unless otherwise provided by order of court. Any person who,
23 with intent to avoid, evade or prevent compliance, in whole or
24 in part, with any civil investigative demand under this section,
25 removes from any place, conceals, withholds or destroys,
26 mutilates, alters or by any other means falsifies any
27 documentary material in the possession, custody or control of
28 any person subject of any such demand shall be guilty of an
29 offense against the Commonwealth of Pennsylvania, and shall be
30 subject, upon conviction thereof, to a fine not to exceed five
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1 thousand dollars ($5,000), or to imprisonment for a term of not
2 more than one year, or both.
3 (i) Whenever any person fails to comply with any civil
4 investigative demand duly served upon him under this section or
5 whenever satisfactory copying or reproduction of any such
6 material cannot be done and such person refuses to surrender
7 such material, the Attorney General, through such officers or
8 attorneys as he may designate, may file, in the court of common
9 pleas of the county in which such person resides, is found, or
10 transacts business, and serve upon such person a petition for an
11 order of such court for the enforcement of this section, except
12 that if such person transacts business in more than one county,
13 such petition shall be filed in the county in which such person
14 maintains his principal place of business, or in the
15 Commonwealth Court. Whenever any petition is filed in the court
16 of common pleas as authorized under this section, such court
17 shall have jurisdiction to hear and determine the matter so
18 presented, and to enter such order or orders as may be required
19 to carry into effect the provisions of this section. [Any final
20 order so entered shall be subject to appeal to the Pennsylvania
21 Supreme Court.]
22 Section 7. [Avoidance of Contract or Sale.--] Contracts;
23 Effect of Rescission.--(a) Where [merchandise] goods or services
24 having a sale price of twenty-five dollars ($25) or more [is]
25 are sold or contracted to be sold to a consumer, as a result of,
26 or in connection with, a [direct contract] contract with or call
27 on the consumer at his residence, that consumer may avoid the
28 contract or sale by notifying, in writing, the seller within
29 [two] three full business days following the day on which the
30 contract or sale was made and by returning or holding available
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1 for return to the seller, in its original condition, any
2 merchandise received under the contract or sale. Such notice of
3 rescission shall be effective upon depositing the same in the
4 United States mail or upon other service which gives the seller
5 notice of rescission. The buyer shall be provided a printed form
6 by the seller which shall explain the right of rescission and
7 notify the buyer where the notice should be directed, and said
8 printed form shall be in such form that it can be returned to
9 the seller as the notice of rescission. Said form shall be
10 printed in at least ten-point bold type with the headline
11 "notice" at the top. Unless an emergency requires otherwise, no
12 services shall be performed and no goods delivered until three
13 days have expired from the signing of the contract and the
14 delivery of said form for the rescission of said contract unless
15 expressly waived in the buyer's own handwriting setting forth
16 the reasons for the waiver and the emergency which requires the
17 same. The time period provided for in this section [does] shall
18 not begin to run unless and until the [consumer] buyer is
19 furnished the name of the seller and the address at which notice
20 to the seller can be given [. If these conditions are met,] and
21 the rescission form herein required has been provided. Where the
22 same is rescinded as provided herein, the seller must return to
23 the consumer the full amount of any payment made or
24 consideration given under the contract. As used in this section,
25 merchandise shall not be construed to mean real property.
26 (b) When a consumer exercises his right to rescind under
27 subsection (a), he is not liable for any finance or other
28 charge, and any security interest becomes void upon such a
29 rescission. Within ten days after receipt of a notice of
30 rescission, the creditor shall return to the consumer any money
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1 or property given as earnest money, down payment, or otherwise,
2 and shall take any action necessary or appropriate to reflect
3 the termination of any security interest created under the
4 transaction. If the creditor has delivered any property to the
5 consumer, the consumer may retain possession of it. Upon the
6 performance of the creditor's obligations under this section,
7 the consumer shall tender the property to the creditor, except
8 that if return of the property in kind would be impracticable or
9 inequitable, the consumer shall tender its reasonable value.
10 Tender shall be made at the location of the property or at the
11 residence of the consumer, at the option of the consumer. If the
12 creditor does not take possession of the property within ten
13 days after tender by the consumer, ownership of the property
14 vests in the consumer without obligation on his part to pay for
15 it.
16 Section 8. Civil Penalties.--(a) Any person who violates the
17 terms of an injunction issued under section 4 of this act or any
18 of the terms of an assurance of voluntary compliance duly filed
19 in court under section 5 shall forfeit and pay to the
20 Commonwealth a civil penalty of not more than [five thousand
21 dollars ($5,000)] twenty-five thousand dollars ($25,000) for
22 each violation. For the purposes of this section, the court [of
23 common pleas] issuing an injunction or in which an assurance of
24 voluntary compliance is filed shall retain jurisdiction, and the
25 cause shall be continued; and, in such cases, the Attorney
26 General, the appropriate District Attorney, or solicitor acting
27 in the name of the Commonwealth of Pennsylvania, may petition
28 for recovery of civil penalties and any other equitable relief
29 deemed needed or proper.
30 (b) In any action brought under section 4, if the court
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1 finds that a person, firm or corporation is wilfully using or
2 has wilfully used a method, act or practice declared unlawful by
3 section 3, the Attorney General or the appropriate District
4 Attorney, acting in the name of the Commonwealth of
5 Pennsylvania, may recover, on behalf of the Commonwealth of
6 Pennsylvania, a civil penalty of not exceeding five thousand
7 dollars ($5,000) per violation, which civil penalty shall be in
8 addition to other relief which may be granted under sections 4
9 and 4.1.
10 Section 9. Forfeiture of [Corporate] Franchise or Right to
11 Do Business; Appointment of Receiver.-- Upon petition by the
12 Attorney General, District Attorney, or solicitor, the court [of
13 common pleas of the county] having jurisdiction, [as
14 hereinbefore authorized,] may, in its discretion, order the
15 dissolution, [or] suspension or forfeiture of the franchise of
16 any person, firm or corporation which violates the terms [of an
17 injunction issued under section 4] of this act. In addition, the
18 court may appoint a receiver of the assets of the company.
19 Section 9.1. Powers of Receiver.--When a receiver is
20 appointed by the court pursuant to this act, he shall have the
21 power to sue for, collect, receive and take into his possession
22 all the goods and chattels, rights and credits, moneys, and
23 effects, lands and tenements, books, records, documents, papers,
24 choses in action, bills, notes and property of every description
25 of the person or persons for whom the receiver is appointed,
26 received by means of any practice declared to be illegal and
27 prohibited by this act, including property with which such
28 property has been mingled if it cannot be identified in kind
29 because of such commingling, and to sell, convey, and assign the
30 same and hold and dispose of the proceeds thereof under the
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1 direction of the court. Any person who has suffered damages as a
2 result of the use or employment of any unlawful practices and
3 submits proof to the satisfaction of the court that he has in
4 fact been damaged, may participate with general creditors in the
5 distribution of the assets to the extent he has sustained
6 provable losses. The court shall have jurisdiction of all
7 questions arising in such proceedings and may make such orders
8 and judgments therein as may be required.
9 Section 9.2. Private and Class Actions.--(a) Any person who
10 purchases or leases goods or services primarily for personal,
11 family or household purposes and thereby suffers any
12 ascertainable loss of money or property, real or personal, as a
13 result of the use or employment by any person of a method, act
14 or practice declared unlawful by section 3, may bring an action
15 in the court of common pleas of the county or judicial district
16 in which the seller resides or has his principal place of
17 business or is doing business or in which the transaction took
18 place or where the buyer resides, to recover actual damages or
19 five hundred dollars ($500), whichever is greater. The court
20 may, in its discretion, award up to three times the actual
21 damages sustained, but not less than five hundred dollars
22 ($500), and may provide such additional relief as it deems
23 necessary or proper.
24 (b) In any action brought by a person under subsection (a),
25 where such person prevails in whole or in part, the court shall
26 award to the person commencing said action, in addition to the
27 relief provided in this section, reasonable attorney's fees and
28 costs.
29 (c) Any permanent injunction, judgment or order of the court
30 made under section 4 shall be prima facie evidence in an action
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1 brought under section 9.2 that the defendant used or employed
2 acts or practices declared unlawful by section 3.
3 Section 9.3. Contract Evidence.--Any contract which is
4 entered into, in whole or in part, as the result of an unfair
5 method of competition or unfair, deceptive act or practice as
6 defined in this act, or which is entered into in whole or in
7 part as a result of a violation or in violation of any statute
8 of the Commonwealth of Pennsylvania or the United States of
9 America designed to protect persons who purchase consumer goods
10 or services for cash or for credit shall be voidable at the
11 option of the consumer; and in the event of such avoidance all
12 consideration given by such consumer shall be returned to him
13 and he shall be entitled to such other relief as would be
14 available to him under this act or otherwise.
15 Section 9.4. Interpretation of This Act.--It is the intent
16 of the Legislature that in construing the provisions of section
17 2 (4), and regulations promulgated under section 3.1,
18 consideration and great weight shall be given to the
19 interpretations of the Federal Trade Commission and the Federal
20 Courts relating to section 5 (a) (1) of the Federal Trade
21 Commission Act (15 U.S.C. 45 (a) (1)), as from time to time
22 amended.
23 Section 10. Effective Date.--This act shall take effect
24 immediately.
25 Section 2. This act shall take effect immediately.
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