PRINTER'S NO. 2125
No. 1748 Session of 1995
INTRODUCED BY DALEY, SHANER, BELARDI, TIGUE, HANNA, HALUSKA AND
MELIO, JUNE 15, 1995
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, JUNE 15, 1995
AN ACT
1 Amending the act of December 17, 1968 (P.L.1224, No.387),
2 entitled "An act prohibiting unfair methods of competition
3 and unfair or deceptive acts or practices in the conduct of
4 any trade or commerce, giving the Attorney General and
5 District Attorneys certain powers and duties and providing
6 penalties," further providing for regulation of professional
7 services, for unfair practices and for unlawful acts;
8 providing for use of subpoenaed documents; and further
9 providing for civil and criminal penalties and for private
10 actions.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Sections 2 and 3 of the act of December 17, 1968
14 (P.L.1224, No.387), known as the Unfair Trade Practices and
15 Consumer Protection Law, reenacted and amended November 24, 1976
16 (P.L.1166, No.260), are amended to read:
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 (2) "Person" means natural persons, corporations, trusts,
2 partnerships, incorporated or unincorporated associations, and
3 any other legal entities.
4 (3) "Trade" and "commerce" mean the advertising, offering
5 for sale, sale or distribution of any services, including
6 professional services which include, but are not limited to,
7 medical services and any property, tangible or intangible, real,
8 personal or mixed, and any other article, commodity, or thing of
9 value wherever situate, and includes any trade or commerce
10 directly or indirectly affecting the people of this
11 Commonwealth.
12 (4) "Unfair methods of competition" and "unfair or deceptive
13 acts or practices" mean any one or more of the following:
14 (i) Passing off goods or services as those of another;
15 (ii) Causing likelihood of confusion or of misunderstanding
16 as to the source, sponsorship, approval or certification of
17 goods or services;
18 (iii) Causing likelihood of confusion or of misunderstanding
19 as to affiliation, connection or association with, or
20 certification by, another;
21 (iv) Using deceptive representations or designations of
22 geographic origin in connection with goods or services;
23 (v) Representing that goods or services have sponsorship,
24 approval, characteristics, ingredients, uses, benefits or
25 quantities that they do not have or that a person has a
26 sponsorship, approval, status, affiliation or connection that he
27 does not have;
28 (vi) Representing that goods are original or new if they are
29 deteriorated, altered, reconditioned, reclaimed, used or
30 secondhand;
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1 (vii) Representing that goods or services are of a
2 particular standard, quality or grade, or that goods are of a
3 particular style or model, if they are of another;
4 (viii) Disparaging the goods, services or business of
5 another by false or misleading representation of fact;
6 (ix) Advertising goods or services with intent not to sell
7 them as advertised;
8 (x) Advertising goods or services with intent not to supply
9 reasonably expectable public demand, unless the advertisement
10 discloses a limitation of quantity;
11 (xi) Making false or misleading statements of fact
12 concerning the reasons for, existence of, or amounts of price
13 reductions;
14 (xii) Promising or offering prior to time of sale to pay,
15 credit or allow to any buyer, any compensation or reward for the
16 procurement of a contract for purchase of goods or services with
17 another or others, or for the referral of the name or names of
18 another or others for the purpose of attempting to procure or
19 procuring such a contract of purchase with such other person or
20 persons when such payment, credit, compensation or reward is
21 contingent upon the occurrence of an event subsequent to the
22 time of the signing of a contract to purchase;
23 (xiii) Promoting or engaging in any plan by which goods or
24 services are sold to a person for a consideration and upon the
25 further consideration that the purchaser secure or attempt to
26 secure one or more persons likewise to join the said plan; each
27 purchaser to be given the right to secure money, goods or
28 services depending upon the number of persons joining the plan.
29 In addition, promoting or engaging in any plan, commonly known
30 as or similar to the so-called "Chain-Letter Plan" or "Pyramid
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1 Club." The terms "Chain-Letter Plan" or "Pyramid Club" mean any
2 scheme for the disposal or distribution of property, services or
3 anything of value whereby a participant pays valuable
4 consideration, in whole or in part, for an opportunity to
5 receive compensation for introducing or attempting to introduce
6 one or more additional persons to participate in the scheme or
7 for the opportunity to receive compensation when a person
8 introduced by the participant introduces a new participant. As
9 used in this subclause the term "consideration" means an
10 investment of cash or the purchase of goods, other property,
11 training or services, but does not include payments made for
12 sales demonstration equipment and materials for use in making
13 sales and not for resale furnished at no profit to any person in
14 the program or to the company or corporation, nor does the term
15 apply to a minimal initial payment of twenty-five dollars ($25)
16 or less;
17 (xiv) Failing to comply with the terms of any written
18 guarantee or warranty given to the buyer at, prior to or after a
19 contract for the purchase of goods or services is made;
20 (xv) Knowingly misrepresenting that services, replacements
21 or repairs are needed if they are not needed;
22 (xvi) Making repairs, improvements or replacements on
23 tangible, real or personal property, of a nature or quality
24 inferior to or below the standard of that agreed to in writing;
25 [(xvii) Engaging in any other fraudulent conduct which
26 creates a likelihood of confusion or of misunderstanding.]
27 (xvii) Conducting a performance where the sound is
28 prerecorded and played at the performance unless there is notice
29 of the prerecording in each advertisement for the performance
30 and on each ticket of admission to the performance;
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1 (xviii) Failing to comply with any Federal or State
2 regulatory or penal statute, rule, regulation or law related to
3 the conduct of trade or commerce;
4 (xix) Using any printing style, graphic, layout, text,
5 color, term, symbol or format on envelopes or on any offer to a
6 consumer which implies, creates an appearance or would lead a
7 reasonable person to believe that the offer originates from or
8 is issued by or on behalf of a government or public agency,
9 public utility, public organization, insurance company, credit
10 reporting agency, bill collecting company or a law firm or using
11 trademarked symbols, unless the same is true;
12 (xx) Offering goods or services by representations comparing
13 present prices to former prices, unless the represented former
14 price is the bona fide, regular price of the goods or services;
15 (xxi) Offering goods or services by representations
16 comparing present prices to former prices, if the seller
17 establishes a fictitious or inflated former price for the
18 purpose of representing goods and services being offered at a
19 reduced price;
20 (xxii) Offering goods or services by representations
21 comparing present prices to former prices, if the former price
22 is merely a suggested price and is not the bona fide price at
23 which such goods or services are openly, actively and actually
24 offered for sale or sold;
25 (xxiii) Offering goods or services which are seconds,
26 imperfect or irregular without clearly and conspicuously
27 disclosing such fact;
28 (xxiv) Offering goods or services by representations that
29 the offer is "limited," unless the offer is in fact limited in
30 duration or scope, or that the offer is an "advance sale" or
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1 "introductory offer," unless the seller in good faith expects to
2 increase the price at a later date and in fact does increase the
3 price or reduce the product or services at a later date;
4 (xxv) Billing a consumer for goods or services where the
5 consumer has not affirmatively agreed prior to being billed or
6 receiving the product, in writing or by some other method
7 capable of verification, to purchase the product or service;
8 (xxvi) Advertising or offering that an item or service is
9 "free," or using words of similar meaning, in connection with
10 the offer or sale of items or services whose prices are
11 bargained for or negotiated if the buyer must buy or lease
12 another item to obtain the "free" item or service;
13 (xxvii) Engaging in any other conduct which creates a
14 likelihood of confusion or of misunderstanding or which
15 constitutes fraud.
16 Section 3. Unlawful Acts or Practices; Exclusions.--Unfair
17 methods of competition and unfair or deceptive acts or practices
18 in the conduct of any trade or commerce as defined by subclauses
19 (i) through (xvii) of clause (4) of section 2 of this act and
20 regulations promulgated under section 3.1 of this act are hereby
21 declared unlawful. The provisions of this act shall not apply to
22 any owner, agent or employe of any radio or television station,
23 or to any owner, publisher, printer, agent or employe of a
24 newspaper or other publication, periodical or circular, who, in
25 good faith and without knowledge of the falsity or deceptive
26 character thereof, publishes, causes to be published or takes
27 part in the publication of such advertisement. Notwithstanding
28 this exclusion, all other professional services and their
29 providers shall be subject to this act.
30 Section 2. Section 4 of the act, repealed in part April 28,
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1 1978 (P.L.202, No.53), is amended to read:
2 Section 4. Restraining Prohibited Acts and Offenses
3 Defined.--(a) Whenever the Attorney General or a District
4 Attorney has reason to believe that any person is using or is
5 about to use any method, act or practice declared by section 3
6 of this act to be unlawful, and that proceedings would be in the
7 public interest, he may bring an action in the name of the
8 Commonwealth against such person to restrain by temporary or
9 permanent injunction the use of such method, act or practice.
10 (b) Any person, firm or corporation who wilfully uses any
11 method, act or practice declared unlawful by section 3 of this
12 act commits a misdemeanor of the second degree.
13 Section 3. The act is amended by adding a section to read:
14 Section 4.2. Use of Subpoenaed Documents.--Any document or
15 material obtained by the Attorney General or the Bureau of
16 Consumer Protection under section 520 of the act of April 9,
17 1929 (P.L.177, No.175), known as "The Administrative Code of
18 1929," may be used in any subsequent action brought under this
19 act by the Attorney General, or his designee.
20 Section 4. Section 8 of the act is amended to read:
21 Section 8. Civil Penalties.--(a) Any person who violates
22 the terms of [an] any injunction issued under [section 4 of]
23 this act or any of the terms of an assurance of voluntary
24 compliance duly filed in court under section 5 of this act shall
25 forfeit and pay to the Commonwealth a civil penalty of not more
26 than [five thousand dollars ($5,000)] ten thousand dollars
27 ($10,000) for each violation. For the purposes of this section
28 the court issuing an injunction or in which an assurance of
29 voluntary compliance is filed shall retain jurisdiction, and the
30 cause shall be continued; and, in such cases, the Attorney
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1 General, or the appropriate District Attorney, acting in the
2 name of the Commonwealth of Pennsylvania, may petition for
3 recovery of civil penalties and any other equitable relief
4 deemed needed or proper.
5 (b) In any action brought under section 4 of this act, if
6 the court finds that a person, firm or corporation is wilfully
7 using or has wilfully used a method, act or practice declared
8 unlawful by section 3 of this act, the Attorney General or the
9 appropriate District Attorney, acting in the name of the
10 Commonwealth of Pennsylvania, may recover, on behalf of the
11 Commonwealth of Pennsylvania, a civil penalty [of] not exceeding
12 [one thousand dollars ($1,000)] five thousand dollars ($5,000)
13 per violation, which civil penalty shall be in addition to other
14 relief which may be granted under sections 4 and 4.1 of this
15 act.
16 Section 5. Section 9.2(a) of the act, repealed in part April
17 28, 1978 (P.L.202, No.53), is amended to read:
18 Section 9.2. Private Actions.--(a) Any person who purchases
19 or leases goods or services primarily for personal, family or
20 household purposes and thereby suffers any ascertainable loss of
21 money or property, real or personal, as a result of the use or
22 employment by any person of a method, act or practice declared
23 unlawful by section 3 of this act, may bring a private action to
24 recover actual damages or [one hundred dollars ($100)] one
25 thousand dollars ($1,000), whichever is greater. The court may,
26 in its discretion, award up to three times the actual damages
27 sustained, but not less than [one hundred dollars ($100)] one
28 thousand dollars ($1,000), and may provide such additional
29 relief as it deems necessary or proper. In addition to other
30 relief, the person shall be entitled to recover reasonable
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1 attorney fees and all court costs, if the private action is
2 successful.
3 * * *
4 Section 6. This act shall take effect in 60 days.
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