HomeMy WebLinkAbout02-0929 CIVILJUSTIN M. FRICK, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. CIVIL ACTION - LAW
CUMBERLAND
VALLEY MOTORS,
INC.,
Defendant NO. 02-0929 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
OLER, J., September 23, 2002.
In this civil case an owner of a BMW automobile has sued a BMW dealer
for damages allegedly resulting from the sale and installation in the vehicle of a
computer chip. According to Plaintiff, the resale value of the vehicle was
decreased by about $3,500.00 by the installation.
For disposition at this time are Defendant's preliminary objections to
Plaintiff's second amended complaint. The preliminary objections are in the
nature of a demurrer and in the form of a motion for a more specific complaint.
The matter was argued on August 28, 2002. For the reasons stated in this
opinion, Defendant's preliminary objections will be sustained in part and denied in
part.
STATEMENT OF FACTS
On a preliminary objection in the nature of a demurrer to a complaint, a
court is to credit "all well-pleaded material facts set forth in the complaint and all
inferences fairly deducible from those facts." Small v. Horn, 554 Pa. 600, 608,
722 A.2d 664, 668 (1998). In accordance with this rule, the facts of the case may
be summarized as follows:
Plaintiff is Justin M. Frick, an adult individual residing in Camp Hill,
Cumberland County, Pennsylvania.~ Defendant is Cumberland Valley Motors,
Inc., a Pennsylvania corporation having offices in Mechanicsburg, Cumberland
County, Pennsylvania, and being an authorized agent and dealer of BMW
automobiles and DINAN BMW automotive enhancement products.2
Plaintiff, who had a history of being a party to motor vehicle sales and
purchase transactions with Defendant, and was the owner of a 1999 BMW 540i
automobile purchased from Defendant,3 learned that Defendant was the local area
retailer of BMW automotive enhancement products made by DINAN.4 Defendant
sold to Plaintiff and installed in his vehicle a certain computer chip, designed to
enhance engine performance and made by DINAN, for $350.00, without
disclosing that the installation would result irrevocably in disqualification of the
vehicle for inclusion in a resale program known as the BMW certified pre-owned
sales program.5 Because of the disqualification, the market value of Defendant's
vehicle decreased by $3,650.00.6
In Count I of Plaintiff's Second Amended Complaint, titled "Breach of
Implied Warranty of Fitness for Particular Purpose," Plaintiff asserts further (a)
that the failure to disclose "prevented plaintiff from making an informed decision
on the installation of this product on his automobile,''7 (b) that Defendant, "at the
time of contracting, had reason to know that the plaintiff relied upon the skill or
judgment of defendant to select or furnish suitable goods,''8 (c) that the chip was
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 1.
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 2-3.
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 4-5.
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 6.
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 7-10, 23.
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 13-15.
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 19.
Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 20.
2
objectionable in the resale trade and that Defendant was in a unique position to
know this,9 (d) that Plaintiff reasonably expected that he would be advised of this
consequence by Defendant,l° and (e) that Plaintiff would not have purchased the
chip had the consequence been disclosed.~
In Count II of the Second Amended Complaint, titled "Unfair or Deceptive
Acts or Practices Under the Unfair Trade Practices and Consumer Protection Law
(73 P.S. Section 201-1, et seq.)," Plaintiff asserts further (a) that the failure to
disclose "caused confusion and misunderstanding in plaintiff as to the source,
sponsorship, approval or certification of the goods or services involved in the
transaction," in violation of Section 201-2(4)(ii) of the Unfair Trade Practices and
Consumer Protection Law,~2 (b) that Defendant's practice, in conjunction with its
status, under the circumstances "caused confusion and misunderstanding in
plaintiff as to the affiliation, connection or association with, or certification by
another," in violation of Section 201-2(4)(iii) of the said law,~3 and (c) that
Defendant's practice, in conjunction with its status, rendered the nondisclosure,
"in effect, a representation that goods or services had sponsorship, approval,
characteristics, ingredients, uses, benefits or quantities that they did not have or
that defendant had a sponsorship, approval, status, affiliation or connection that
defendant does not have," in violation of Section 201-2(4)(v) of the said law. ~4
DISCUSSION
Statement of Law
Demurrer. "The question presented by [a] demurrer is whether, on the
facts averred [in the complaint], the law says with certainty that no recovery is
9 Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 21.
l0 Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 23.
~ Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 24.
~: Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 27.
~s Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 28.
14 Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 29.
3
possible." Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d
1231, 1232 (1983). "Any doubts as to whether a demurrer should be sustained
should be resolved against the moving party." David v. Commonwealth, 143 Pa.
Commw. 161, 169, 598 A.2d 642, 647 (1991). Thus, in ruling on a preliminary
objection in the form of a demurrer, the court must sustain the demurrer only if it
finds that "a cause of action [has not been] properly made out in the complaint;
and.., the plaintiff would be unable to state a proper claim even on a different
statement of facts." Nagy v. Bell Telephone Co., 292 Pa. Super. 24, 27, 436 A.2d
701,703 (1981).
Motion for a More Specific Pleading. "While it is impossible to establish
precise standards as to the degree of particularity required in a given situation, two
conditions must always be met": (1) the pleading must be adequately clear so that
the opposing party can prepare a defense and (2) the pleading "must be sufficient
to convince the court that the averments are not merely subterfuge." Sevin v.
Kelsharv, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (1992). "[W]hen a party states
a case in a manner that fully advises an opponent of the nature of the case and of
the matters with which the opponent will be confronted at trial, there is no need for
a motion for a more specific pleading; the opponent should seek discovery if he or
she needs more information to prepare a response." 2 Goodrich-Amram 2d
§1017(b):24, at 268 (1991).
Implied FFarranty of Fitness for a Particular Purpose. Under Section 2-
315 of the Uniform Commercial Code, it is provided that
[w]here the seller at the time of contracting has reason to
know:
(1) any particular purpose for which the goods are
required; and
(2) that the buyer is relying on the skill or judgment of the
seller to select or furnish suitable goods;
there is unless excluded or modified.., an implied warranty
that the goods shall be fit for such purpose.
4
Act of November 1, 1979, P.L. 255, §1, 13 Pa. C.S. §2315.
Unfair Trade Practices and Consumer Protection Law. Under the Unfair
Trade Practices and Consumer Protection Law, the following, inter alia, are
deemed unfair methods of competition or unfair or deceptive acts or practices:
(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 the affiliation, connection or
association with or certification by, another; [and]
(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
a sponsorship, approval, status, affiliation or connection that he
does not have ....
Act of December 17, 1968, P.L. 1224, §2, 73 P.S. §201-2(4) (Supp. 2002).
Application of Law to Facts
Implied Warranty of Fitness for a Particular Purpose. In the present case,
the allegations of Plaintiff's complaint with respect to his claim for breach of an
implied warranty of fitness for a particular purpose do not show, with certainty,
that Plaintiff can not recover on such a theory. Whether Plaintiff will be able to
produce evidence that Defendant "ha[d] reason," through alleged past dealings or
otherwise, to recognize the materiality of the BMW resale program to Plaintiff
will depend upon development of a more complete factual record. At this stage, it
would be premature to foreclose the possibility of development of such a record
through dismissal of the claim. ~5
Unfair Trade Practices and Consumer Protection Law. A fair reading of
the allegations of the complaint does not, however, support a similar conclusion
~5 The court is also of the view that the allegations of the claim are sufficiently clear for
Defendant to prepare a defense. The evidentiary specifics, or lack thereof, supporting the claim
can be developed through the discovery process.
5
with respect to Plaintiff's claim for violation of the Unfair Trade Practices and
Consumer Protection Law. Not every putative breach of an implied warranty by a
merchant was intended by the legislature to rise to the level of an actionable unfair
or deceptive act or practice for purposes of the act. Cf. I4oro~vitz v. Federal
Kemper Life Assurance Co., 57 F.3d 300 (3d Cir. 1995), cited in 0 'Donnel ex tel.
Mitro v. Allstate Insurance Co., 734 A.2d 901,910 (Pa. Super. Ct. 1999); Solarz v.
DaimlerChrysler Corp., No. 2033 April Term 2001, 2002 WL 452218 (Pa. Ct.
Com. Pl. Phila. March 13, 2002) (mem.) (citing cases). An attempt to construe the
provisions relied upon by Plaintiff to encompass Defendant's alleged verbal
omission in the present case seems to the court to be without legal merit.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 23rd day of September, 2002, upon consideration of
Defendant's preliminary objections to Plaintiff's second amended complaint, and
for the reasons stated in the accompanying opinion, it is ordered and directed as
follows:
1. Defendant's demurrer to Count II of Plaintiff's Second
Amended Complaint is sustained, and Count II is dismissed.
2. Defendant's remaining preliminary objections are
denied; and
3. Defendant is granted twenty days within which to file a
responsive pleading to the second amended complaint as so
affected.
BY THE COURT,
J. Wesley Oler, Jr., J.
6
Harold S. Irwin, III, Esq.
35 East High Street
Carlisle, PA 17013
Attorney for Plaintiff
John F. Yaninek, Esq.
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Attorney for Defendant
7
JUSTIN M. FRICK, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. CIVIL ACTION - LAW
CUMBERLAND
VALLEY MOTORS,
INC.,
Defendant NO. 02-0929 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this 23rd day of September, 2002, upon consideration of
Defendant's preliminary objections to Plaintiff's second amended complaint, and
for the reasons stated in the accompanying opinion, it is ordered and directed as
follows:
1. Defendant's demurrer to Count TT of Plaintiff's Second
Amended Complaint is sustained, and Count II is dismissed.
2. Defendant's remaining preliminary objections are
denied; and
3. Defendant is granted twenty days within which to file a
responsive pleading to the second amended complaint as so
affected.
BY THE COURT,
J. Wesley Oler, Jr., J.
Harold S. Irwin, TTT, Esq.
35 East High Street
Carlisle, PA 17013
Attorney for Plaintiff
John F. Yaninek, Esq.
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Attorney for Defendant