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1999 PA Super 297
MARTIN WALLACE AND
IN THE SUPERIOR COURT OF
No. 639 EDA 1999
Appeal from the Judgment entered on February 11, 1999
in the Court of Common Pleas of Bucks County,
Civil Division, No. 97-00489-17-1
BEFORE: McEWEN, P.J., MUSMANNO and OLSZEWSKI, JJ.
OPINION BY MUSMANNO, J.
Filed: December 2, 1999
Appellant Vincent Pastore ("Pastore") appeals from a judgment
entered in favor of Appellees Martin Wallace ("Wallace") and Debbi Redante
("Redante") in an action to recover a security deposit. We affirm.
Wallace and Redante rented an apartment from Pastore under a
written lease. On October 14, 1996, after providing Pastore with written
notice of termination of the lease, Wallace and Redante moved out of the
Subsequently, Wallace and Redante filed a Complaint with a District
Justice, seeking recovery of their $600 security deposit. The District Court
awarded judgment in favor of Wallace and Redante. Pastore filed an appeal
of that judgment in the Court of Common Pleas of Bucks County. The trial
court ordered Wallace and Redante to file a Complaint, and they
subsequently did so. In the Complaint, Wallace and Redante sought return
of their security deposit, double damages under the Landlord Tenant Law,
see 68 P.S. § 250.512(c),1 and treble damages and attorneys fees under the
Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), see 73
P.S. § 203.1 et seq.2 Pastore then filed a counterclaim against Wallace and
Redante seeking $5,886.68 as alleged damages to the apartment. The trial
court consolidated the Complaint and counterclaim upon stipulation of the
A panel of arbitrators heard the parties' claims, and found in favor of
Wallace and Redante. The arbitrators awarded Wallace and Redante
$636.00 plus interest. Pastore then appealed that award.
After a bench trial, the trial court entered a verdict in favor of Wallace
and Redante, and awarded them $600.00, the amount of their security
deposit. The trial court considered post-trial motions, and awarded Wallace
and Redante treble damages in the amount of $1,800.00, and attorney's
fees of $4,980, plus interest and costs. Subsequently, judgment was
entered on the verdict, and Pastore then filed this timely appeal.
1 Section 250.512(c) of the Landlord Tenant Law requires a landlord to
double the amount he must pay to the tenant if the landlord fails to pay,
within thirty days after termination of the lease, an amount equal to the
amount of the security deposit minus the actual amount of damages to the
premises caused by the tenant.
2 Under the UTPCPL, the court may award up to three times the damages
sustained by a person who purchases or leases goods or services primarily
for family, personal, or household purposes and suffers a loss of money or
property as a result of an unfair or deceptive business practice. 73 P.S. §
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On appeal, Pastore raises the following issues: (1) whether Pastore's
withholding of Wallace's and Redante's security deposit constituted a
violation of the UTPCPL; (2) whether the trial court erred in entering an
award of counsel fees; and (3) whether the trial court erred in awarding a
return of the entire security deposit.
In reviewing a decision of a court after a non-jury trial, we will reverse
the trial court only if its findings are predicated on an error of law or are
unsupported by competent evidence in the record. Hodges v. Rodriguez,
645 A.2d 1340 (Pa. Super. 1994).
Pastore first contends that the UTPCPL does not apply to the
withholding of a single security deposit from a single tenant because the
Landlord Tenant Law, section 250.512(c), applies in those circumstances.
Therefore, he contends that the trial court erred in awarding treble damages
and counsel fees under the UTPCPL.
The UTPCPL prohibits "[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce as
defined by . . . section 2 of this act . . . ." 73 P.S. § 201-3. Unfair or
deceptive acts or practices, under section 2 of the UTPCPL, include, inter
alia, the following:
(xv) knowingly misrepresenting that services,
replacements or repairs are needed if they are not needed
. . . .
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73 P.S. § 201-2(4). A person who leases or purchases goods or services
"primarily for personal, family or household purposes and thereby suffers
any ascertainable loss of money or property . . . as a result" of an unfair or
deceptive practice under the UTPCPL, may bring a private action to recover
those damages, and the court may, in its discretion, "award up to three
times the actual damages sustained." 73 P.S. § 201-9.2(a).
¶ 10 The UTPCPL must be liberally construed to effect the law's purpose of
protecting consumers from unfair or deceptive business practices.
Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d
812 (1974). The Pennsylvania Supreme Court has held that the UTPCPL
applies to the leasing of residences. Id. (stating that the modern
apartment dweller is a consumer of housing services). In addition, the
remedies of the UTPCPL are not exclusive, but are in addition to other
causes of action and remedies. Gabriel v. O'Hara, 534 A.2d 488, 495 &
495 n.22 (Pa. Super. 1987); see also Johnson v. Hyundai Motor Am.,
698 A.2d 631, 637 (Pa. Super. 1997) (stating that a violation of the
Pennsylvania Lemon Law, 73 P.S. §§ 1952-63, was also a violation of the
UTPCPL in an action brought under both statutes for damages arising from a
¶ 11 In the present case, the trial court found that Pastore knowingly
misrepresented to Wallace and Redante that they owed thousands of dollars
in repairs and labor. Trial Court Opinion, 11/17/98, at 19. The trial court
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held that Pastore's actions were clearly fraudulent and were a violation of
section 201-2(4)(xv) of the UTPCPL. Id.
¶ 12 Pastore contends, however, that an action by a tenant against a
landlord under the UTPCPL requires the landlord to have engaged in
"frequent" deceptive practices, and that a single instance of withholding a
security deposit is not equivalent to "frequent" deceptive practices. Pastore
relies on the decision of the Commonwealth Court in Commonwealth by
Zimmerman v. National Apartment Leasing Co., 529 A.2d 1157 (Pa.
Cmwlth. 1987), for that proposition. In that case, the Pennsylvania Attorney
General brought an action under the UTPCPL against National Apartment
Leasing Company ("NALCO"), seeking civil damages and an injunction on the
basis of complaints the Attorney General had received from former tenants
of NALCO. The former tenants alleged that NALCO had unlawfully withheld
portions of their security deposits. Id. at 1159. NALCO argued that the
UTPCPL was unconstitutionally vague because it did not give notice that the
retention of escrow funds (security deposits) was prohibited. Id. at 1160.
The Commonwealth Court held that although "the retention of escrow
deposits is not a specifically prohibited act under the [UTPCPL], if such
retention is unauthorized and occurs with some frequency, such conduct
would be a deceptive act under the definition . . . found in Section 2(4)(xiv)
. . . ." (relating to "failing to comply with the terms of any written guarantee
or warranty given to the buyer . . . .") Id.
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¶ 13 In NALCO, the Commonwealth Court, in stating that the withholding
of security deposits must occur with some frequency, was referring to the
fact that NALCO had withheld security deposits from tenants on several
occasions. There is, however, no specific requirement in the UTPCPL that
instances of unfair or deceptive conduct, to be actionable, occur with
"frequency." Thus, we find that the language of NALCO to that effect is
limited to the facts of that specific case. In the present case, the trial court
found that Pastore engaged in a deceptive business practice because he
misrepresented the existence and extent of damage to the apartment. Such
a misrepresentation is actionable under 73 P.S. § 201-2(4)(xv) of the
UTPCPL. Accordingly, we find no merit to Pastore's contention that the
UTPCPL does not apply herein.
¶ 14 Pastore next contends that the trial court erred in entering an award of
counsel fees in favor of Wallace and Redante because there is no support in
the record for such an award. Under section 201-9.2 of the UTPCPL, the
court "may award to the plaintiff, in addition to other relief . . ., costs and
reasonable attorney fees." 73 P.S. § 201-9.2. An award of attorney's fees
under the UTPCPL is within the trial court's discretion. Sewak v. Lockhart,
699 A.2d 755 (Pa. Super. 1997).
¶ 14 The record shows that counsel for Wallace and Redante gave the
court, at the end of trial, a memorandum of law that addressed Wallace's
and Redante's entitlement to recovery, inter alia, of attorney's fees. N.T.,
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9/8/98, at 106-10. Counsel indicated that attached to the memorandum
was the amount of attorney's fees requested, the number of hours that
counsel had devoted to the case, and counsel's hourly rate of billing
($200.00 per hour). Id. at 109-10. Counsel asserted that the hourly rate
was fair and reasonable for the present case. Id. The record also shows
that counsel requested attorney's fees in Wallace's and Redante's Motion for
¶ 15 The record demonstrates that the trial court had before it sufficient
information upon which to make a determination of whether Wallace and
Redante were entitled to attorney's fees, and the amount of that award.
Accordingly, we find no merit to Pastore's second contention on appeal.
¶ 16 Finally, Pastore argues that the trial court erred in finding that the
entire amount of the security deposit was wrongfully withheld. Pastore
asserts that Redante admitted at trial that certain of the deficiencies that
Pastore had found after Wallace and Redante left the apartment were
¶ 17 In a bench trial, the trial court is free to believe all, part, or none of
the evidence presented, to make all credibility determinations, and to
resolve any conflicts in the evidence. Hodges, 645 A.2d at 1343. The
burden of proof as to actual damages caused by a tenant to the leasehold
premises is on the landlord. 68 P.S. § 250.512(c); Adamsky v. Picknick,
603 A.2d 1069 (Pa. Super. 1992).
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¶ 18 Pastore testified that after Wallace and Redante moved out, he
inspected the premises. Pastore testified that carpet had been removed,
N.T., 9/8/98, at 23, the medicine cabinet was rusted, id. at 26, and that
Wallace and Redante left trash outside, id. at 28. Pastore indicated that
there was a hole in the siding, an oil stain on the porch, id., and the window
sills were scratched, id. at 32. Pastore stated that Wallace and Redante had
started to install tile in back of the stove, but had not finished the job, and
he had to find matching tile and finish it. Id. at 33-34. Pastore indicated
that he had to replace the kitchen floor covering because one tile was
missing and he couldn't find a matching tile. Id. at 36. Further, Pastore
testified that Wallace and Redante had removed the light fixture in the
bedroom and put in a new one, leaving a hole from the old fixture. Id. at
38. He also found a hole in the living room wall, and had to replace all of
the window screens because of holes "from the cat." Id. at 40-41. Pastore
concluded that the total cost for all repairs, including repairs he had not yet
made, and labor, was $4356.45. Id. at 45.
¶ 19 Redante testified at trial that she and Wallace did not patch any holes
or areas on the walls where there had been picture hooks, id. at 96, and
that stains on the front porch came from Wallace's motorcycle. Id. at 97.
Redante also admitted that there were scratches on the wood outside the
bedroom, that the oven was not clean, and that there was a missing
switchplate when they vacated the apartment. Id. at 99. Redante testified,
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however, that several items that Pastore had cited as damaged were not
damaged in fact. She indicated that some of the plant hooks on the ceiling
had been left by the previous tenant, id. at 80, and that she and Wallace did
not leave trash on the premises as Pastore contended, id. at 83. Redante
also testified that she and Wallace had removed most of the oil stain on the
porch. Id. at 85. Redante stated that moisture and a lack of ventilation in
the bathroom resulted in peeling paint. Id. at 87. She also indicated that
she and Wallace did nothing extraordinary to cause the rust in the medicine
cabinet, id. at 88, and that they did not cause any holes or damage around
the bedroom light fixture, id. at 92. Redante denied that her cats damaged
the window screens. Id. at 98. Redante submitted pictures of the condition
of the apartment after they had vacated it.
¶ 20 The trial court found that Redante was a credible witness, that Pastore
was not credible, and that Pastore had misrepresented the existence and
extent of damage to the apartment. See Trial Court Opinion, 11/17/98, at
18. The trial court concluded that Wallace and Redante had sustained their
burden of proof as to the return of their security deposit, and that there was
no merit to Pastore's counterclaim. Our review of the record demonstrates
that the testimony at trial supports the trial court's conclusion. As an
appellate court, we cannot disturb the finding of the trial court on the
witnesses' credibility. Hodges, 645 A.2d at 1343. Accordingly, we find no
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merit to Pastore's contention that the trial court erred in finding that Wallace
and Redante were entitled to the entire amount of the security deposit.
¶ 21 Judgment affirmed.
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