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HomeMy WebLinkAbout97-4363 CivilJUDE SMITH, Plaintiff VS. CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 97-4363 CIVIL IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS AND GUIDO, JJ. ORDER AND NOW, this 5'-'* day of June, 1998, the preliminary objections of the defendant to the plaintiff's complaint are SUSTAINED. BY THE COURT, Samuel B. Fineman, Esquire For the Plaintiff Jeffrey Cohen, Esquire For the Defendant Kevinfl. Hess, J. :rlm JUDE SMITH, Plaintiff VS. CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 97-4363 CIVIL IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS AND GUIDO, JJ. OPINION AND ORDER The defendant, Chevrolet Motor Division of the General Motors Corporation, has filed preliminary objections to the plaintiff's complaint. The plaintiff, Jude Smith, purchased a 1995 Chevrolet Lumina, which was manufactured and warranted by the defendant, on or about September 14, 1994. The plaintiff avers that from the time of delivery to the time of his complaint the vehicle has been plagued by a latent oil consumption defect in derogation of the defendant's express and implied warranties; he claims he is entitled to damages under Pennsylvania's Uniform Commercial Code, the Magnuson-Moss Warranty Act, and the Unfair Trade Practices and Consumer Protection Law. Plaintiff further admits in his complaint that he first noticed the problem at about 40,000 miles, which is after the expiration of the express 36,000 mile warranty. The defendant's preliminary objections are in the nature of demurrers to all of the plaintiff's claims. We sustain all of the objections. The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563,353 A.2d 833,835 (1976). In determining 97-4363 CIVIL whether to sustain preliminary objections, this court must consider as true all of the well-pleaded material facts set forth in the plaintiff's complaint. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 4, 383 A.2d 791,792 (1977). The warranty booklet which was given to the plaintiff in consideration for the purchase of the Chevrolet states in pertinent part the following: 1995 GENERAL MOTORS CORPORATION NEW VEHICLE LIMITED WARRANTY WHAT IS COVERED: REPAIRS COVERED - The warranty covers repairs to correct any vehicle defect related to materials or workmanship occurring during the WARRANTY PERIOD. Needed repairs will be performed using new or remanufactured parts. WARRANTY PERIOD - The WARRANTY PERIOD for all coverages begins on the date the vehicle is first delivered or put in use and ends at the expiration of the COVERAGE period. BUMPER TO BUMPER COVERAGE - The complete vehicle is covered for 3 years or 36,000 miles, whichever comes first... OBTAINING REPAIRS - To obtain warranty repairs, take the vehicle to a Chevrolet dealership within the WARRANTY PERIOD and request the needed repairs. The warranty booklet also contains the following language in bold print: ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLICABLE TO THIS VEHICLE IS LIMITED IN DURATION TO THE DURATION OF THIS WRITTEN WARRANTY. PERFORMANCE OF REPAIRS AND NEEDED 2 97-4363 CIVIL ADJUSTMENTS IS THE EXCLUSIVE REMEDY UNDER THIS WRITTEN WARRANTY oR ANY IMPLIED WARRANTY. Furthermore, under a section of the warranty booklet titled 1995 FEDERAL EMISSION CONTROL SYSTEMS WARRANTIES, the powertrain control module is warranted for eight years or 80,000 miles, whichever comes first. First, we agree with the defendant that the plaintiff fails to state a cause of action with regard to his breach of express warranty claim. The above warranty is limited to making repairs of defects within three years or 36,000 miles. As noted, the plaintiff alleged that he "first noticed excessive oil consumption at about 40,000 miles, when the 'low lube oil' indicator lit on the dash board." The plaintiff further states that the first time he sought any repair for the alleged problem was at approximately 43,918 miles. Sin~e the plaintiff's claim did not fall within the protection of the express warranty, it is impossible that defendant breached the express warranty. We also agree that the plaintiff has failed to state a cause of action with regard to its breach of implied warranty claim. An implied warranty is a warranty implied by law that goods are merchantable and that they will perform the functions for which they are bought. 13 Pa.C.S. Section 2316(b) states in pertinent part that: ... to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. 97-4363 CIVIL Under these conditions, the Uniform Commercial Code allows an implied warranty to be modified. In regard to whether the language is conspicuous, we find helpful the case of Hornberger v. General Motors, 929 F.Supp. 884, 889 (E.D. Pa. 1996). The factors which a court should take into account when determining whether a disclaimer is conspicuous include: (a) The placement of the disclaimer in the document; (b) the size of the print; and (c) whether the disclaimer is in all capital letters or is otherwise highlighted. Id.__~. In Homberger, the court found that the disclaimer was conspicuous despite the fact that it was in the middle of a thirty-seven page warranty booklet. The court noted that the disclaimer was the only writing in the booklet enclosed in a thick, dark-lined box, and that the language was in boldface print. See Id. at 890. The disclaimer in this case is identical to the one in Homberger and we see no reason to find that it is not conspicuous. In this case, the implied warranties are limited to the same restrictions as the express warranty. Normally, under 13 Pa.C.S. Section 2725 (a) and (b) an action for breach of any contract for sale must be commenced within four years after the breach occurs; and "a breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." Assuming the alleged problem with the plaintiff's vehicle makes it unfit for its ordinary purpose it seems clear to us that without the limited warranty language the plaintiff could have brought an action for breach of implied warranty within four years of delivery of the car. Furthermore, in light of the Pennsylvania Supreme Court's decision in Nationwide Insurance v. 4 97-4363 CIVIL General Motors Corporation, 533 Pa. 423,625 A.2d 1172 (1993), dealing with a nearly identical limited warranty, it seems that if the plaintiff had plead facts supporting a breach of warranty, within the three-year/36,000 mile warranty period, he could have brought an action for breach of warranty within four years of the breach. In this case, however, the plaintiff first discovered the alleged defect after the express and implied warranty periods were over. The defendant argues that the implied warranty, like the express warranty, requires a defect to be discovered (and reported) within the warranty period in order for there to ever be a breach of implied warranty. The plaintiff argues that a latent defect discovered after the warranty period has expired should still be covered by an implied warranty, within the normal statute of limitations of four years. We can find no authority in Pennsylvania which addresses this issue, but we note that 13 Pa.C.S. Section 2725(a) which provides for the four-year statute of limitations also states that, "By the origi.nal agreement the parties may reduce the period of limitation to not less than one year but may not extend it." That is, it is proper for parties to agree to shorten the normal period for bringing an action for a defect covered by an implied warranty which was present when the goods were delivered. We find that the parties have effectively shortened the period of limitations in their agreement.~ In this regard we find pertinent the case of Connick v. Suzuki Motor Co.., 656 N.E. 2d 170, (III.App. 1 Dist. 1995), where the court dismissed several plaintiffs' claims of breach of express and implied warranties, ~We note that in this case there is not a violation of the one year requirement set forth in Pa.C.S. Section 2725(a), but we recognize that a mileage warranty, even a 36,000 mile warranty, could violate the one year requirement in another case. 5 97-4363 CIVIL since the warranty period for the vehicles in question was twelve months or 12,000 miles, and the plaintiffs' alleged discovery of the defect was after twelve months. Other than a shorter warranty period, the Suzuki warranty in the Connick case has no crucial differences with the warranty in this case. Next, we find that the plaintiff has failed to state a cause of action upon which relief can be granted based upon the Magnuson-Moss Act. The plaintiff has alleged that the defendant has violated the Magnuson Moss Act, 15 U.S.C. Section 2301 et seq. Specifically, the plaintiff claims that the defendant violated Section 2310(d)(1) of the Act. That section allow a consumer to recover if the manufacturer fails to comply with written warranties provided to a purchaser upon sale. Since we find no breach of the written warranty in this case, we cannot find a violation of the Magnuson-Moss Act. We further find that the warranty limitation in Chevrolet's warranty booklet complies with the requirement in the Magnuson-Moss Act that implied warranties may only be limited in duration to the duration of a written warranty of reasonable duration. 15 U.S.C. Section 2308(b). Likewise, we find that the plaintiff has failed to state a cause of action upon which relief can be granted under the Unfair Trade Practices and Consumer Protection Law. The plaintiff claims that the defendant violated the Act by "failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to, or after a contract for the purchase of goods or services is made." Again, we find that the defendant complied with the written guarantee, and therefore, this claim is without merit. Furthermore, to the extent that the plaintiff has made a claim that the defendant has 6 97-4363 CIVIL violated the Pennsylvania Automobile Lemon Law, we find no merit in the claim. The pertinent section of the Pennsylvania Automobile Lemon Law states: The manufacturer of a new motor vehicle sold and registered in the Commonwealth shall repair or correct, at no cost to the purchaser, a nonconformity which substantially impairs the use, value or safety of said motor vehicle which may occur within a period of one year following the actual delivery of the vehicle to the purchaser, within the first 12,000 miles of use or during the term of the warranty, whichever may first occur. 73 Pa.C.S. Section 1954(a). In this case, the plaintiff did not seek repair from the defendant for the alleged defect until almost two years from the date of delivery when the vehicle had approximately 43,918 miles on it, and, therefore, has no claim under this provision. Finally, we sustain the defendant's objection to the plaintiff's claim that the defendant has breached the 1995 Federal Emission Cohtrol Systems Warranties. As mention above, Chevrolet provides a longer warranty of 80,000 miles or eight years, whichever occurs first, for the catalytic converter and the powertrain control module. Although the defendant mentions that work was done on the powertrain control module, he does not claim that the powertrain control module is defective or that it has anything to do with the oil consumption problem. We do not believe he has stated a claim for the breach of the 80,000 mile/eight-year warranty. ORDER AND NOW, this 5''~' day of June, 1998, the preliminary objections of the 7 97-4363 CIVIL defendant to the plaintiff's complaint are SUSTAINED. BY THE COURT, Samuel B. Fineman, Esquire For the Plaintiff Jeffrey Cohen, Esquire For the Defendant :rim Kevin A. Hess, J. 8