PRINTER'S NO. 36
No. 33 Session of 2005
INTRODUCED BY LEDERER, TIGUE, GODSHALL, BELFANTI, THOMAS,
McGEEHAN, BELARDI, GEORGE, DALEY, FRANKEL, CAWLEY, CRUZ,
JAMES, GERGELY, WALKO, SCAVELLO, KIRKLAND, WASHINGTON,
FABRIZIO, MANDERINO AND FREEMAN, JANUARY 25, 2005
REFERRED TO COMMITTEE ON COMMERCE AND ECONOMIC DEVELOPMENT,
JANUARY 25, 2005
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 definitions; and providing
7 for no liability for unsolicited credit cards under certain
8 circumstances.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Section 2 of the act of December 17, 1968
12 (P.L.1224, No.387), known as the Unfair Trade Practices and
13 Consumer Protection Law, reenacted and amended November 24, 1976
14 (P.L.1166, No.260), and amended December 4, 1996 (P.L.906,
15 No.146), is amended to read:
16 Section 2. Definitions.--As used in this act.
17 (1) "Documentary material" means the original or a copy of
18 any book, record, report, memorandum, paper, communication,
19 tabulation, map, chart, photograph, mechanical transcription or
1 other tangible document or recording, wherever situate.
2 (2) "Person" means natural persons, corporations, trusts,
3 partnerships, incorporated or unincorporated associations, and
4 any other legal entities.
5 (3) "Trade" and "commerce" mean the advertising, offering
6 for sale, sale or distribution of any services and any property,
7 tangible or intangible, real, personal or mixed, and any other
8 article, commodity, or thing of value wherever situate, and
9 includes any trade or commerce directly or indirectly affecting
10 the people of this Commonwealth.
11 (4) "Unfair methods of competition" and "unfair or deceptive
12 acts or practices" mean any one or more of the following:
13 (i) Passing off goods or services as those of another;
14 (ii) Causing likelihood of confusion or of misunderstanding
15 as to the source, sponsorship, approval or certification of
16 goods or services;
17 (iii) Causing likelihood of confusion or of misunderstanding
18 as to affiliation, connection or association with, or
19 certification by, another;
20 (iv) Using deceptive representations or designations of
21 geographic origin in connection with goods or services;
22 (v) Representing that goods or services have sponsorship,
23 approval, characteristics, ingredients, uses, benefits or
24 quantities that they do not have or that a person has a
25 sponsorship, approval, status, affiliation or connection that he
26 does not have;
27 (vi) Representing that goods are original or new if they are
28 deteriorated, altered, reconditioned, reclaimed, used or
29 secondhand;
30 (vii) Representing that goods or services are of a
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1 particular standard, quality or grade, or that goods are of a
2 particular style or model, if they are of another;
3 (viii) Disparaging the goods, services or business of
4 another by false or misleading representation of fact;
5 (ix) Advertising goods or services with intent not to sell
6 them as advertised;
7 (x) Advertising goods or services with intent not to supply
8 reasonably expectable public demand, unless the advertisement
9 discloses a limitation of quantity;
10 (xi) Making false or misleading statements of fact
11 concerning the reasons for, existence of, or amounts of price
12 reductions;
13 (xii) Promising or offering prior to time of sale to pay,
14 credit or allow to any buyer, any compensation or reward for the
15 procurement of a contract for purchase of goods or services with
16 another or others, or for the referral of the name or names of
17 another or others for the purpose of attempting to procure or
18 procuring such a contract of purchase with such other person or
19 persons when such payment, credit, compensation or reward is
20 contingent upon the occurrence of an event subsequent to the
21 time of the signing of a contract to purchase;
22 (xiii) Promoting or engaging in any plan by which goods or
23 services are sold to a person for a consideration and upon the
24 further consideration that the purchaser secure or attempt to
25 secure one or more persons likewise to join the said plan; each
26 purchaser to be given the right to secure money, goods or
27 services depending upon the number of persons joining the plan.
28 In addition, promoting or engaging in any plan, commonly known
29 as or similar to the so-called "Chain-Letter Plan" or "Pyramid
30 Club." The terms "Chain-Letter Plan" or "Pyramid Club" mean any
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1 scheme for the disposal or distribution of property, services or
2 anything of value whereby a participant pays valuable
3 consideration, in whole or in part, for an opportunity to
4 receive compensation for introducing or attempting to introduce
5 one or more additional persons to participate in the scheme or
6 for the opportunity to receive compensation when a person
7 introduced by the participant introduces a new participant. As
8 used in this subclause the term "consideration" means an
9 investment of cash or the purchase of goods, other property,
10 training or services, but does not include payments made for
11 sales demonstration equipment and materials for use in making
12 sales and not for resale furnished at no profit to any person in
13 the program or to the company or corporation, nor does the term
14 apply to a minimal initial payment of twenty-five dollars ($25)
15 or less;
16 (xiv) Failing to comply with the terms of any written
17 guarantee or warranty given to the buyer at, prior to or after a
18 contract for the purchase of goods or services is made;
19 (xv) Knowingly misrepresenting that services, replacements
20 or repairs are needed if they are not needed;
21 (xvi) Making repairs, improvements or replacements on
22 tangible, real or personal property, of a nature or quality
23 inferior to or below the standard of that agreed to in writing;
24 (xvii) Making solicitations for sales of goods or services
25 over the telephone without first clearly, affirmatively and
26 expressly stating:
27 (A) the identity of the seller;
28 (B) that the purpose of the call is to sell goods or
29 services;
30 (C) the nature of the goods or services; and
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1 (D) that no purchase or payment is necessary to be able to
2 win a prize or participate in a prize promotion if a prize
3 promotion is offered. This disclosure must be made before or in
4 conjunction with the description of the prize to the person
5 called. If requested by that person, the telemarketer must
6 disclose the no-purchase/no-payment entry method for the prize
7 promotion;
8 (xviii) Using a contract, form or any other document related
9 to a consumer transaction which contains a confessed judgment
10 clause that waives the consumer's right to assert a legal
11 defense to an action;
12 (xix) Soliciting any order for the sale of goods to be
13 ordered by the buyer through the mails or by telephone unless,
14 at the time of the solicitation, the seller has a reasonable
15 basis to expect that it will be able to ship any ordered
16 merchandise to the buyer:
17 (A) within that time clearly and conspicuously stated in any
18 such solicitation; or
19 (B) if no time is clearly and conspicuously stated, within
20 thirty days after receipt of a properly completed order from the
21 buyer, provided, however, where, at the time the merchandise is
22 ordered, the buyer applies to the seller for credit to pay for
23 the merchandise in whole or in part, the seller shall have fifty
24 days, rather than thirty days, to perform the actions required
25 by this subclause;
26 (xx) Failing to inform the purchaser of a new motor vehicle
27 offered for sale at retail by a motor vehicle dealer of the
28 following:
29 (A) that any rustproofing of the new motor vehicle offered
30 by the motor vehicle dealer is optional;
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1 (B) that the new motor vehicle has been rustproofed by the
2 manufacturer and the nature and extent, if any, of the
3 manufacturer's warranty which is applicable to that
4 rustproofing;
5 The requirements of this subclause shall not be applicable and a
6 motor vehicle dealer shall have no duty to inform if the motor
7 vehicle dealer rustproofed a new motor vehicle before offering
8 it for sale to that purchaser, provided that the dealer shall
9 inform the purchaser whenever dealer rustproofing has an effect
10 on any manufacturer's warranty applicable to the vehicle. This
11 subclause shall not apply to any new motor vehicle which has
12 been rustproofed by a motor vehicle dealer prior to the
13 effective date of this subclause[.];
14 (xxi) Mailing or otherwise delivering an unsolicited credit
15 card to a person in this Commonwealth. As used in this subclause
16 the term "credit card" means any tangible or intangible
17 instrument or device issued with or without a fee by an issuer
18 that can be used, alone or in connection with another means of
19 account access, in obtaining money, goods, services or anything
20 else of value on credit, including a credit card, credit plate,
21 account number or any other means of account access. The term
22 "unsolicited credit card" means any credit card mailed or
23 otherwise delivered to a person other than:
24 (A) in response to a request or application for a credit
25 card; or
26 (B) as a renewal or substitute for a credit card previously
27 issued to the person to whom the credit card is mailed or
28 otherwise delivered;
29 [(xxi)] (xxii) Engaging in any other fraudulent or deceptive
30 conduct which creates a likelihood of confusion or of
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1 misunderstanding.
2 Section 2. The act is amended by adding a section to read:
3 Section 7.1. No Liability for Unsolicited Credit Cards.--No
4 person in whose name an unsolicited credit card, as defined in
5 subclause (xxi) of clause (4) of section 2 of this act, is
6 issued shall be liable for any amount resulting from use of that
7 card, from which that person or a member of that person's family
8 or household derives no benefit, unless the person has accepted
9 the card by activating or using it or by authorizing use of it
10 by another person. Failure by such person to destroy or return
11 the unsolicited credit card shall not be construed as acceptance
12 of the card.
13 Section 3. This act shall take effect in 60 days.
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