Legal Memorandum: Treble Damages Remedy in PA

Issue: In Pennsylvania, does the treble damages remedy provided under 201-9.2 apply to actions sounding in tort?

Any award of treble damages under Pa. Stat. Ann. tit. 73, § 201-9.2 would require a showing that a defendant’s violation of the unfair trade practices provisions was outrageous or unconscionable.  McClelland v. Hyundai Motor Am., 851 F. Supp. 680, 681 (E.D. Pa. 1994).  "Outrageous conduct" is conduct undertaken with a "bad motive or with a reckless indifference to the interests of others."  DiTeodoro v. J.G. Durand Int’l, Inc., 566 F. Supp. 273, 274 (E.D. Pa. 1983).  Plaintiff claims for treble damages therefore should be supported by allegations of motive—malice, intent, knowledge, or other state of mind—behind a defendant’s alleged wrongful conduct.  Id. at 274.

Ordinary wrongdoing is not outrageous.  Further, nonfeasance is not sufficient to establish a claim under the unfair trade practices law.  Leo v. State Farm Mut. Auto. Ins. Co., 939 F. Supp. 1186, 1193 (E.D. Pa. 1996), aff’d, 116 F.3d 468 (3d Cir. 1997).  A mere failure to perform as a plaintiff thinks a defendant ought to have done, or even what a defendant may have been required by law to do, does not establish the degree of outrage or unconscionability necessary to support treble damages.

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