Unfair Trade Practices and Consumer Protection Law
73 P.S. § 201-1. Short Title
This act shall be known and may be cited as the "Unfair
Trade Practices and
Consumer Protection Law."
73 P.S. § 201-2. Definitions
As used in this act,
(1) Documentary material means the original or a copy
of any book, record,
report, memorandum, paper, communication, tabulation,
map, chart,
photograph, mechanical transcription or other tangible
document or
recording, wherever situate.
(2) Person means natural persons, corporations, trusts,
partnerships,
incorporated or unincorporated associations, and any
other legal entities.
(3) Trade and commerce means the advertising, offering
for sale, sale or
distribution of any services and any property, tangible
or intangible, real,
personal or mixed. and any other article, commodity,
or thing of value
wherever situate, and includes any trade or commerce
directly or indirectly
affecting the people of the Commonwealth.
(4) Unfair methods of competition and unfair or deceptive
acts or practices
mean any one or more of the following:
(i) Passing off goods or services as those of another;
(ii) Causing likelihood of confusion or of misunderstanding
as to the
source, sponsorship, approval or certification of goods
or services;
(iii) Causing likelihood of confusion or of misunderstanding
as to
affiliation, connection or association with, or certification
by, another;
(iv) Using deceptive representations or designations
of geographic origin in
connection with goods or services;
(v) Representing that goods or services have sponsorship,
approval,
characteristics, ingredients, uses, benefits or quantities
that they do not
have or that a person has sponsorship, approval, status,
affiliation or
connection that he does not have;
(vi) Representing that goods are original or new if they
are deteriorated,
altered, reconditioned, reclaimed, used or second-hand;
(vii) Representing that goods or services are of a particular
standard,
quality or grade, or that goods are of a particular style
or model, if they
are of another;
(viii) Disparaging the goods, services or business of
another by false or
misleading representation of fact;
(ix) Advertising goods or service with intent not to
sell them as
advertised;
(x) Advertising goods or services with intent not to
supply reasonably
expectable public demand, unless the advertisement discloses
a limitation of
quantity;
(xi) Making false or misleading statements of fact concerning
the reasons
for, existence of, or amounts of price reductions;
(xii) Promising or offering prior to time of sale to
pay, credit or allow to
any buyer, any compensation or reward for the procurement
of a contract for
purchase of goods or services with another or others,
or for the referral of
the name or names of another or others for the purpose
of attempting to
procure or procuring such a contract of purchase with
such other person or
persons when such payment, credit, compensation or reward
is contingent upon
the occurrence of an event subsequent to the time of
the signing of a
contract to purchase;
(xiii) Promoting or engaging in any plan by which goods
or services are sold
to a person for a consideration and upon the further
consideration that the
purchaser secure or attempt to secure one or more persons
likewise to join
the said plan; each purchaser to be given the right to
secure money, goods,
or services depending upon the number of persons joining
the plan. In
addition, promoting or engaging in any plan, commonly
known as or similar to
the so-called "Chain Letter Plan" or "Pyramid Club".
The terms "Chail Letter
Plan" or "Pyramid Club" mean any scheme for the disposal
or distribution of
property, services, or anything of value whereby a participant
pays valuable
consideration, in whole or in part, for an opportunity
to receive
compensation for introducing or attempting to introduce
one or more
additional persons to participate in the scheme or for
the opportunity to
receive compensation when a person introduced by the
participant introduces
a new participant. As used in this sublclause the term
"consideration" means
an investment of cash or the purchase of goods, other
property, training or
services, but does not include payments made for sales
demonstration
equipment and materials for use in making sales and not
for resale furnished
at no profit to any person in the program or to the company
or corporation,
nor does the term apply to a minimal initial payment
of twenty five dollars
($25) or less;
(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 purchase of
goods or services is made;
(xv) Knowingly misrepresenting that services, replacements
or repairs are
needed if they are not needed;
(xvi) Making repairs improvements or replacements on
tangible, real or
personal property, of a nature or quality inferior to
or below the standard
of that agreed to in writing;
(xvii) Engaging in any other fraudulent conduct which
creates a likelihood
of confusion or of misunderstanding.
73 P.S. § 201-3. Unlawful acts or practices; exclusions
Unfair methods of competition and unfair or deceptive
acts or practices in
the conduct of any trade or commerce as defined by subclauses
(i) through
(xvii) of clause (4) of section 2 of this act [ i.e.
73 P.S. 201-2(4)(i) to
(4)(xvii)] and regulations promulgated under section
3.1 of this act [ i.e.
73 P.S. 201-3.1] are hereby declared unlawful. The provisions
of this act
shall not apply to any owner, agent or employee of any
radio or television
station, or to any owner, publisher, printer, agent or
employee of a
newspaper or other publication, periodical or circular,
who, in good faith
and without knowledge of the falsity or deceptive character
thereof,
publishes, causes to be published or takes part in the
publication of such
advertisement.
73 P.S. § 201-3.1. Regulations
The Attorney General may adopt, after public hearing,
such rules and
regualtions as may be necessary for the enforcement and
administration of
this act. Such rules and regulations when promulgated
pursuant to the act of
July 31, 1968 (P.L. 769, No. 240), known as the Commonwealth
Documents Law
[i.e. 45 P.S. 1102 et seq.] shall have the force and
effect of law.
73 P.S. § 201-4. Restraining prohibited acts
Whenever the Attorney General or a District Attorney
has reason to believe
that any person is using or is about to use any method,
act or practice
declared by section 3 of this act [i.e. 73 P.S. 201-3]
to be unlawful, and
that proceedings would be in the public interest, he
may bring an action in
the name of the Commonwealth against such person to restrain
by temporary or
permanent injunction the use of such method, act or practice.
73 P.S. § 201-5. Assurances of voluntary compliance
In the administration of this act, the Attorney General
may accept an
assurance of voluntary compliance with respect to any
method, act or
practice deemed to be violative of the act from any person
who has engaged
or was about to engage in such method, act or practice.
Such assurance may
include a stipulation for voluntary payment by the alleged
violator
providing for the restitution by the alleged violator
to consumers of money,
property or other things received from them in connection
with a violation
of this act. Any such assurance shall be in writing and
be filed with the
court. Such assurance of voluntary compliance shall not
be considered an
admission of violation for any purpose. Matters thus
closed may at any time
be reopened by the Attorney General for further proceedings
in the public
interest, pursuant to section 4 [73 P.S. 201-4].
73 P.S. § 201-6. Deleted by amendment
73 P.S. § 201-7. Contracts; effect of recission
(a) Where goods or services having a sale price of twenty
five dollars ($25)
or more are sold or contracted to be sold to a buyer,
as a result of, or in
connection with, a contact with or call on the buyer
at his residence, that
consumer may avoid the contract or sale by notifying
, in writing, the
seller within three full business days following the
day on which the
contract or sale was made and by returning or holding
available for return
to the seller, in its original condition, any merchandise
received under the
contract or sale. Such notice of recission shall be effective
upon
depositing the same in the United States mail or upon
other service which
gives the seller notice of recission.
(b)At the time of the sale or contract the buyer shall
be provided with:
(1) A fully completed receipt or copy of any contract
pertaining to such
sale, which is in the same languge (Spanish, English,
etc.) as that
principally used in the oral sales presentation, and
also in English, and
which shows the date of the transaction and contains
the name and address of
the seller, and in immediate proximity to the space reserved
in the contract
for the signature of the buyer or on the front page of
the receipt if a
contract is not used and in bold face type of a minimum
size of ten points,
a statement in substantially the following form:
You, the buyer, may cancel this transaction at any time
prior to midnight of
the third business day after the date of this transaction.
See the attached
notice of cancellation form for an explanation of this
right.
(2) A completed form in duplicate, captioned "Notice
of Cancellation", which
shall be attached to the contract or receipt and easily
detachable, and
which shall contain in ten point bold face type the following
information
and statements in the same language (Spanish, English,
etc.) as that used in
the contract:
Notice of Cancellation
(Enter Date of Transaction)
You may cancel this transaction, without any penalty
or obligation, within
three business days from the above date.
If you cancel , any property traded in, any payments
made by you under this
contract or sale, and any negotiable instrument executed
by you will be
returned within ten business days following receipt by
the seller of your
cancellation notice, and any security interest arising
out of the
transaction will be cancelled.
If you cancel, you must make available to the seller
at your residence in
substantially as good condition as when received, any
goods delivered to you
under this contract or sale; or you may, if you wish,
comply with the
instructions of the seller regarding the return shipment
of the goods at the
seller's expense and risk.
If you do make the goods available to the seller and
the seller does not
pick them up within twenty days of the date of your notice
of cancellation,
you may retain or dispose of the goods without any further
obligation, If
you fail to make the goods available to the seller, or
if you agree to
return the goods to the seller and fail to do so, then
you remain liable for
performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed
and dated copy of this
cancellation notice or any other written notice,or send
a telegram, to (name
of seller), at (address of seller's place of business)
not later than
midnight of (date).
I hereby cancel this transaction.
Buyer's Signature
(c) Before furnishing copies of the "Notice of Cancellation"
to the buyer,
both copies shall be completed by entering the name of
the seller, the
address of the seller's place of business, the date of
the transaction, and
the date, not earlier than the third business day following
the date of the
transaction, by which the buyer may give notice of cancellation.
(d) Each buyer shall be informed at the time he signs
the contract or
purchases the goods or services, of his right to cancel.
(e) The cancellation period provided for in this section
shall not begin to
run until the buyer has been informed of his right to
cancel and has been
provided with copies of the "Notice of Cancellation".
(f) Seller shall not misrepresent in any manner the buyer's
right to cancel.
(g) Any valid notice of cancellation by a buyer shall
be honored and within
ten business days after the receipt of such notice, seller
shall (i) refund
all payments made under the contract or sale; (ii) return
any goods or
property traded in, in substantially as good condition
as when received by
the seller; (iii) cancel and return any negotiable intsrument
executed by
the buyer in connection with the contract or sale and
take any action
necessary or appropriate to terminate promptly any security
interest created
in the transaction.
(h) No note or other evidence of indebtedness shall be
negotiated,
transferred, sold or assigned by the seller to a finance
company or other
third party prior to midnight of the fifth business day
following the day
the contract was signed or the goods or services were
purchased.
(i) Seller shall, within ten business days of receipt
of the buyer's notice
of cancellation, notify him whether the seller intends
to repossess or to
abandon any shipped or delivered goods. If seller elects
to repossess, he
must do so within twenty days of the date of buyer's
notice of cancellation
or forfeit all rights to the delivered goods.
(j) Rights afforded under this section may be waived
only in circumstances
where the goods or services are needed to meet a bona
fide immediate
personal emergency of the buyer and the buyer furnishes
the seller with a
separate dated and signed personal statement in the buyer's
handwriting
describing the situation requiring immediate remedy and
expressly
acknowledging and waiving the right to cancel the sale
within three business
days.
(k) As used in this section, merchandise shall not be
construed to mean real
property.
(l) The provisions of this section shall not apply to
the sale or contract
for the sale of goods or services having a sale price
of less than twenty
five dollars ($25).
(m) A "Notice of Cancellation" which contains the form
and content required
by rule or regulation of the Federal Trade Commission
shall be deemed to be
in compliance with the requirements of this section.
73 P.S. § 201-8. Civil Penalties
(a) Any person who violates the terms of an injunction
issued under section
4 of this act [i.e. 73 P.S. 201-4] or any of the terms
of an assurance of
voluntary compliance duly filed in court under section
5 of this act [i.e.
73 P.S. 201-5] shall forfeit and pay to the Commonwealth
a civil penalty of
not more than five thousand dollars ($5000) for each
violation. For the
purposes of this section the court issuing an injunction
or in which an
assurance of voluntary compliance is filed shall retain
jurisdiction, and
the cause shall be continued; and, in such cases, the
Attorney General, or
the appropriate District Attorney, acting in the name
of the Commonwealth of
Pennsylvania. may petition for recovery of civil penalties
and any other
equitable relief deemed needed or proper.
(b) In any action brought under section 4 of this act,
if the court finds
that a person, firm or corporation is wilfully using
or has wilfully used a
method, act or practice declared unlawful by section
3 of this act [i.e. 73
P.S. 201-3], the Attorney General or the appropriate
District Attorney,
acting in the name of the Commonwealth of Pennsylvania,
may recover, on
behalf of the Commonwealth of Pennsylvania, a civil penalty
of not exceeding
one thousand dollars ($1,000) per violation, which civil
penalty shall be in
addition to other relief which may be granted under sections
4 and 4.1 of
this act [i.e. 73 P.S. 201-4 and 73 P.S. 201-4.1].
73 P.S. § 201-9. Forfeiture of franchise or right
to do business;
appointment of receiver
Upon petition by the Attorney General, the court having
jurisdiction, may,
in its discretion, order the dissolution, suspension
or forfeiture of the
franchise or right to do business of any person, firm
or corporation which
violates the terms of an injunction issued under section
4 of this act [i.e.
73 P.S. 201-4]. In addition, the court may appoint a
receiver of the assets
of the company.
73 P.S. § 201-9.1. Powers of receiver
When a receiver is appointed by the court pursuant to
this act, he shall
have the power to sue for, collect, receive and take
into his possession all
the goods and chattels, rights and credits, moneys, and
effects, lands and
tenements, books, records, documents, papers, choses
in action, bills, notes
and property of every description of the person or persons
for whom the
receiver is appointed, received by means of any practice
declared to be
illegal and prohibited by this act, including property
with which such
property has been mingled if it cannot be identified
in kind because of such
commingling, and to sell, convey, and assign the same
and hold and dispose
of the proceeds thereof under the direction of the court.
Any person who has
suffered damages as a result of the use or employment
of any unlawful
practices and submits proof to the satisfaction of the
court that he has in
fact been damaged, may participate with general creditors
in the
distribution of the assets to the extent he has sustained
provable losses.
The court shall have jurisdiction of all questions arising
in such
proceedings and may make such orders and judgments therein
as may be
required.
73 P.S. § 201-9.2. Private actions
(a) Any person who purchases or leases goods or service
primarily for
personal, family or household purposes and thereby suffers
any ascertainable
loss of money or property, real or personal, as a result
of the use or
employment by any person of a method, act or practice
declared unlawful by
section 3 of this act [i.e. 73 P.S. 201-3], may bring
a private action, to
recover actual damages or one hundred dollars ($100),
whichever is greater.
The court may, in its discretion, award up to three times
the actual damages
sustained, but not less than one hundred dollars ($100),
and may provide
such additional relief as it deems necessary or proper.
(b) Any permanent injunction, judgment or order of the
court made under
section 4 of this act [i.e. 73 P.S. 201-4], shall be
prima facie evidence in
an action brought under section 9.2 of this act that
the defendant used or
employed acts or practices delcared unlawful by section
3 of this act [i.e.
73 P.S. 201-3]. |
