onecle - legal research

Court Opinions

State Laws

US Code

US Constitution

Deceptive or fraudulent business practices - 18 Pa. Cons. Stat. § 4107

Legal Research Home > Pennsylvania Statutes



     § 4107.  Deceptive or fraudulent business practices.
        (a)  Offense defined.--A person commits an offense if, in the
     course of business, the person:
            (1)  uses or possesses for use a false weight or measure,
        or any other device for falsely determining or recording any
        quality or quantity;
            (2)  sells, offers or exposes for sale, or delivers less
        than the represented quantity of any commodity or service;
            (3)  takes or attempts to take more than the represented
        quantity of any commodity or service when as buyer he
        furnishes the weight or measure;
            (4)  sells, offers or exposes for sale adulterated or
        mislabeled commodities. As used in this paragraph, the term
        "adulterated" means varying from the standard of composition
        or quality prescribed by or pursuant to any statute providing
        criminal penalties for such variance or set by established
        commercial usage. As used in this paragraph, the term
        "mislabeled" means varying from the standard of trust or
        disclosure in labeling prescribed by or pursuant to any
        statute providing criminal penalties for such variance or set
        by established commercial usage;
            (5)  makes a false or misleading statement in any
        advertisement addressed to the public or to a substantial
        segment thereof for the purpose of promoting the purchase or
        sale of property or services;
            (6)  makes or induces others to rely on a false or
        misleading written statement for the purpose of obtaining
        property or credit;
            (7)  makes or induces others to rely on a false or
        misleading written statement for the purpose of promoting the
        sale of securities, or omits information required by law to
        be disclosed in written documents relating to securities;
            (8)  makes or induces others to rely on a false or
        misleading material statement to induce an investor to invest
        in a business venture. The offense is complete when any false
        or misleading material statement is communicated to an
        investor regardless of whether any investment is made. For
        purposes of grading, the "amount involved" is the amount or
        value of the investment solicited or paid, whichever is
        greater. As used in this paragraph, the following words and
        phrases shall mean: "Amount" as used in the definition of
        "material statement" includes currency values and comparative
        expressions of value, including, but not limited to,
        percentages or multiples. "Business venture" means any
        venture represented to an investor as one where he may
        receive compensation either from the sale of a product, from
        the investment of other investors or from any other
        commercial enterprise. "Compensation" means anything of value
        received or to be received by an investor. "Invest" means to
        pay, give or lend money, property, service or other thing of
        value for the opportunity to receive compensation. The term
        also includes payment for the purchase of a product.
        "Investment" means the money, property, service or other
        thing of value paid or given, or to be paid or given, for the
        opportunity to receive compensation. "Investor" means any
        natural person, partnership, corporation, limited liability
        company, business trust, other association, government
        entity, estate, trust, foundation or other entity solicited
        to invest in a business venture, regardless of whether any
        investment is made. "Material statement" means a statement
        about any matter which could affect an investor's decision to
        invest in a business venture, including, but not limited to,
        statements about:
                (i)  the existence, value, availability or
            marketability of a product;
                (ii)  the number of former or current investors, the
            amount of their investments or the amount of their former
            or current compensation;
                (iii)  the available pool or number of prospective
            investors, including those who have not yet been
            solicited and those who already have been solicited but
            have not yet made an investment;
                (iv)  representations of future compensation to be
            received by investors or prospective investors; or
                (v)  the source of former, current or future
            compensation paid or to be paid to investors or
            prospective investors.
        "Product" means a good, a service or other tangible or
        intangible property of any kind;
            (9)  obtains or attempts to obtain property of another by
        false or misleading representations made through
        communications conducted in whole or in part by telephone
        involving the following:
                (i)  express or implied claims that the person
            contacted has won or is about to win a prize;
                (ii)  express or implied claims that the person
            contacted may be able to recover any losses suffered in
            connection with a prize promotion; or
                (iii)  express or implied claims regarding the value
            of goods or services offered in connection with a prize
            or a prize promotion.
        As used in this paragraph, the term "prize" means anything of
        value offered or purportedly offered. The term "prize
        promotion" means an oral or written express or implied
        representation that a person has won, has been selected to
        receive or may be eligible to receive a prize or purported
        prize;
            (10)  knowingly makes a false or misleading statement in
        a privacy policy, published on the Internet or otherwise
        distributed or published, regarding the use of personal
        information submitted by members of the public; or
            (11)  does either of the following when the person is in
        a client relationship with a certified public accountant,
        public accountant or public accounting firm:
                (i)  provides false or misleading information to the
            certified public accountant, public accountant or public
            accounting firm in connection with performance of an
            attestation function for the client which results in an
            attestation by the certified public accountant, public
            accountant or public accounting firm of a materially
            misleading financial statement, audit, review or other
            document; or
                (ii)  fails to provide information to the certified
            public accountant, public accountant or public accounting
            firm which the person knows is material to the
            performance of an attestation function and which results
            in an attestation by the certified public accountant,
            public accountant or public accounting firm of a
            materially misleading financial statement, audit, review
            or other document.
        (a.1)  Grading of offenses.--
            (1)  A violation of this section, except for subsection
        (a)(10), constitutes:
                (i)  a felony of the third degree if the amount
            involved exceeds $2,000;
                (ii)  a misdemeanor of the first degree if the amount
            involved is $200 or more but $2,000 or less;
                (iii)  a misdemeanor of the second degree if the
            amount involved is less than $200; or
                (iv)  when the amount involved cannot be
            satisfactorily ascertained, the offense constitutes a
            misdemeanor of the second degree.
            (2)  Amounts involved in deceptive or fraudulent business
        practices pursuant to one scheme or course of conduct,
        whether from the same person or several persons, may be
        aggregated in determining the grade of the offense.
            (3)  Where a person commits an offense under subsection
        (a) and the victim of the offense is 60 years of age or
        older, the grading of the offense shall be one grade higher
        than specified in paragraph (1).
            (4)  An offense under subsection (a)(10) shall be a
        summmary offense and shall be punishable by a fine not less
        than $50 and not to exceed $500.
        (a.2)  Jurisdiction.--
            (1)  The district attorneys of the several counties shall
        have the authority to investigate and to institute criminal
        proceedings for any violation of this section.
            (2)  In addition to the authority conferred upon the
        Attorney General by the act of October 15, 1980 (P.L.950,
        No.164), known as the Commonwealth Attorneys Act, the
        Attorney General shall have the authority to investigate and
        to institute criminal proceedings for any violation of this
        section or any series of such violations involving more than
        one county of this Commonwealth or involving any county of
        this Commonwealth and another state. No person charged with a
        violation of this section by the Attorney General shall have
        standing to challenge the authority of the Attorney General
        to investigate or prosecute the case, and, if any such
        challenge is made, the challenge shall be dismissed and no
        relief shall be available in the courts of this Commonwealth
        to the person making the challenge.
        (b)  Defenses.--It is a defense to prosecution under this
     section if the defendant proves by a preponderance of the
     evidence that his conduct was not knowingly or recklessly
     deceptive.
        (c)  Exceptions.--Subsection (a)(10) shall not apply to the
     activities of:
            (1)  A financial institution as defined by section 509(3)
        of the Gramm-Leach-Bliley Act (Public Law 106-102, 15 U.S.C.
        § 6809(3)) or regulations adopted by agencies as designated
        by section 504(a) of the Gramm-Leach-Bliley Act (15 U.S.C. §
        6804(a)) and subject to Title V of the Gramm-Leach-Bliley Act
        (15 U.S.C. § 6801 et seq.).
            (2)  A covered entity as defined by regulations
        promulgated at 45 CFR Pts. 160 (relating to general
        administration requirements) and 164 (relating to security
        and privacy) pursuant to Subtitle F of the Health Insurance
        Portability and Accountability Act of 1996 (Public Law 104-
        191, 42 U.S.C. § 1320d et seq.).
            (3)  A licensee or person subject to 31 Pa. Code Ch. 146a
        (relating to privacy of consumer financial information) or
        146b (relating to privacy of consumer health information).
     (Dec. 4, 1996, P.L.902, No.145, eff. 60 days; April 5, 2004,
     P.L.211, No.26, eff. 60 days; Nov. 30, 2004, P.L.1592, No.202,
     eff. 60 days; Dec. 8, 2004, P.L.1781, No.234, eff. 60 days)

        2004 Amendments.  Act 234 overlooked the amendment by Act
     202, but the amendments do not conflict in substance and have
     both been given effect in setting forth the text of section
     4107.
        Cross References.  Section 4107 is referred to in section
     5552 of Title 42 (Judiciary and Judicial Procedure).
Section:  Previous  3934  4101  4102  4103  4104  4105  4106  4107  4108  4109  4110  4111  4112  4113  4114  Next

Last modified: November 27, 2007