Filed: Feb. 05, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-5-2004 Samuel-Bassett v. Kia Mtr Amer Inc Precedential or Non-Precedential: Precedential Docket No. 03-1427 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Samuel-Bassett v. Kia Mtr Amer Inc" (2004). 2004 Decisions. Paper 965. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/965 This decision is brought to you for free and open access
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-5-2004 Samuel-Bassett v. Kia Mtr Amer Inc Precedential or Non-Precedential: Precedential Docket No. 03-1427 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Samuel-Bassett v. Kia Mtr Amer Inc" (2004). 2004 Decisions. Paper 965. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/965 This decision is brought to you for free and open access ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-5-2004
Samuel-Bassett v. Kia Mtr Amer Inc
Precedential or Non-Precedential: Precedential
Docket No. 03-1427
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Samuel-Bassett v. Kia Mtr Amer Inc" (2004). 2004 Decisions. Paper 965.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/965
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PRECEDENTIAL 18 th and Arch Streets
UNITED STATES COURT OF Philadelphia, PA 19103
APPEALS FOR THE THIRD CIRCUIT
Attorneys for Appellant
No. 03-1427
Michael D. Donovan, Esq. (ARGUED)
SHAM ELL SAMUEL-BASSETT, on David A. Searles, Esquire
behalf of herself and all others similarly Donovan Searles, LLC
situated, 1845 Walnut Street, Suite 1100
Philadelphia, PA 19103
Appellees
James A. Francis, Esquire
v. Francis & Mailman, P.C.
100 S. Broad Street, 19 th Floor
KIA M OTORS AMERICA, INC., Philadelphia, PA 19110
Appellant Alan M . Feldman, Esquire
____________ Feldman Shepherd, Wohlgelernter &
Tanner
APPEAL FROM THE UNITED 1845 Walnut Street, 25th floor
STATES DISTRICT COURT FOR THE Philadelphia, PA 19103
EASTERN DISTRICT OF
PENNSYLVANIA Attorneys for Appellees
(D.C. Civ. No. 01-cv-00703 )
District Judge: Hon. J. Curtis Joyner ____________
____________
OPINION
Argued November 3, 2003
Before: McKEE, SMITH and WEIS,
Circuit Judges. WEIS, Circuit Judge.
In this diversity removal
Filed February 5, 2004 case involving a claim of a defect in an
________________ automobile, the District Court adopted
the purchase price of the car as the
Joseph Kernen, Esquire (ARGUED) overriding factor in assessing the
Neal W alters, Esquire jurisdictional amount in controversy. No
Piper Rudnick, LLP allowance was made for the value of the
3400 Two Logan Square car with the defect, nor was any
1
reduction made for the plaintiff s use of 143 F. Supp 2d. 503 (E.D. Pa. 2001).
the vehicle. Finding the record Following further
inadequate for determining the amount in proceedings, the Court certified a class
controversy, we will remand for further consisting of residents of Pennsylvania
proceedings. who purchased or leased model years
The plaintiff purchased a 1997-2001 KIA Sephia automobiles for
model year 2000 KIA Sephia automobile personal, fam ily or household purposes.
on October 27, 1999. Dissatisfied with Samuel-Bassett v. Kia Motors Am., Inc.,
the performance of the car, she filed a 212 F.R.D. 271 (E.D. Pa. 2002).
class action against the manufacturer, Pursuant to Federal Rule of Civil
Kia, in the Court of Common Pleas of Procedure 23(f), we granted defendant s
Philadelphia County, Pennsylvania on petition to appeal the class certification
January 17, 2001. The complaint alleges order.
that because of a design defect in the I. Jurisdiction
braking system, plaintiff returned the car Rule 23(f) provides that a
for repairs on five separate occasions Court of Appeals, in its discretion, may
between January 12, 2000 and August permit an appeal from an order of the
22, 2000. In four instances, the brake District Court granting class certification.
rotors and pads had to be replaced even The scope of this review is a narrow one.
though the vehicle had been driven less See McKowan v. Lowe & Co., Ltd. v.
than 17,000 m iles. Jasmine, Ltd.,
295 F.3d 380, 390 (3d Cir.
Despite her requests for 2002)(the Advisory Committee notes
rescission of the purchase contract, or “explicitly describe Rule 23(f) as not
correction of the braking problem, she extending to any other type of order,
asserts the defendant failed to meet its even where that order has some impact
obligations. The complaint asks for on another portion of Rule 23”).
certification of a class consisting of Although the appeal in this
Pennsylvania residents who purchased or case is limited to the certification issue,
leased KIA Sephia model automobiles in we are obliged to examine subject matter
the years before she filed the suit. jurisdiction. Generally speaking, an
The defendant removed the interlocutory order on jurisdiction per se
case to the Eastern District of by the District Court is not appealable.
Pennsylvania on February 12, 2001 Harrison v. Nissan Motor Corp. In USA,
asserting diversity between the parties 111 F.3d 343, 347 (3d Cir. 1996).
and an amount in controversy exceeding However, the fact that review under Rule
$75,000. The District Court denied the 23(f) is restricted does not relieve the
plaintiff s motion to remand, rejecting her court from the duty of inquiry into its
post-removal assertion that she did not jurisdiction. See, e.g., Bender v.
seek damages in excess of $74,999. Williamsport Area Sch. Dist., 475 U.S.
Samuel-Bassett v. Kia Motors Am., Inc., 534, 541 (1986); Mitchell v. Maurer, 293
2
U.S. 237, 244 (1934); Employers Ins. of U.S.C. § 1332. Our standard of review is
Wausau v. Crown Cork & Seal Co., 905 plenary. Packard v. Provident Nat l
F.2d 42, 45 (3d Cir. 1990). Even if the Bank,
994 F.2d 1039, 1044 (3d Cir.
parties have not raised the issue, a Court 1993).
of Appeals should examine its authority Removal of cases from
sua sponte during its review of the case. state to federal courts is governed by 28
See, e.g., Medlin v. Boeing Vertol Co., U.S.C. § 1441. In diversity suits, the
620 F.2d 957, 960 (3d. Cir. 1980); requirement of an amount in controversy
Kessler v. Nat’l Enters.,
347 F.3d 1076 exceeding $75,000 applies to removed
(8 th Cir. 2003) ($1,666,626.26 judgment cases as well as to litigation filed
vacated for lack of jurisdiction after three originally in the federal court. 28 U.S.C.
appeals on various issues). § 1447(c) requires that, in removed
In the case before us, the cases, [i]f at any time before final
parties did not brief the amount in judgment it appears that the district court
controversy, but did address the subject lacks subject matter jurisdiction, the case
in supplemental submissions filed in shall be remanded.
response to our request. However, the In Meritcare Inc. v. St. Paul
parties would have us address the Mercury Insurance Co., 166 F.3d 214 (3d
certification issue before scrutinizing Cir. 1999), we reviewed many of our
subject matter jurisdiction. In Amchem opinions addressing the amount in
Products, Inc. v. Windsor,
521 U.S. 591, controversy issue. Therefore, we will
612 (1997), the Supreme Court only briefly summarize the principles set
concluded that because the class forth in that case. It is important to bear
certification rulings were dispositive as in mind that parties may not confer
to all parties it would address them first subject matter jurisdiction by consent.
rather than the jurisdictional challenges. See, e.g., United States v. Griffin, 303
Some of the Amchem class members U.S. 226, 229 (1938); Liberty Mut. Ins.
unquestionably satisfied the Co. v. Ward Trucking Corp.,
48 F.3d 742
jurisdictional monetary floor. Thus, the (3d Cir. 1995); United Indus. Workers v.
certification issues common to all were Gov’t of the Virgin Islands, 987 F.2d
logically antecedent and merited priority 162, 168 (3d Cir. 1993).
because they applied to all members of 28 U.S.C. § 1441 is to be
the class, whereas the question as to the strictly construed against removal, Boyer
amount in controversy concerned only v. Snap-On Tools Corp.,
913 F.2d 108,
some of the members. 111 (3d Cir. 1990), so that the
The circumstances here are Congressional intent to restrict federal
quite different and we will follow the diversity jurisdiction is honored. This
usual sequence of looking first to subject policy has always been rigorously
matter jurisdiction, which in this case is enforced by the courts. St. Paul Mercury
based on diversity of citizenship. 28 Indem. Co. v. Red Cab Co., 303 U.S.
3
283, 288 (1938). plaintiff’s] losses at over $75,000.”
II. Standard of Review Chaparro v. State Farm Ins. Co., 1999
The party asserting WL 961035, at *3-4 (E.D. Pa. 1999). In
jurisdiction bears the burden of showing International Fleet Auto Sales, Inc. v.
that at all stages of the litigation the case National Auto Credit & Agency Rent-A-
is properly before the federal court. See Car, 1999 WL 95258, at *4 n.7 (E.D. Pa.
Packard, 994 F.2d at 1045. Articulation 1999), the District Court equated the
of the standard to be applied and the “reasonable probability” standard to the
extent of the burden to meet that “legal certainty” approach. Several
requirement have caused some disparity District Courts have applied the legal
in District Court opinions within this certainty standard. See, e.g.,
Circuit. McDonough v. Crum & Forster Pers.
In Irving v. Allstate Ins., 1992 WL 114951, at *3 (E.D. Pa.
Indemnity Co., 97 F. Supp 2d. 653, 654 1992). 2
(E.D. Pa. 2000), the District Court The Middle District of
explained that “[c]ourts in the Third Pennsylvania has employed a two-step
Circuit are unencumbered by consistency process involving both parties. See
in their characterization of a defendant’s Orndorff v. Allstate Ins. Co., 896 F.
burden of proving the amount in Supp. 173, 175 (M.D. Pa. 1995)(adopting
controversy on a motion to remand.” In the approach taken by De Aguilar v.
that case, the preponderance of the Boeing Co.,
47 F.3d 1404, 1412 (5 th Cir.
evidence standard was used.1 1995)). Under this formula, if the
Other Courts have used a defendant establishes a basis for
“reasonable probability” test, which
requires the defendant to show that “a
2
reasonable jury likely could value [the See also, e.g., Johnson v.
Costco Wholesale, 1999 WL 740690, at *2
(E.D. Pa. 1999); McNamara v. Philip Morris
1
Opinions in other District Cos., 1999 WL 554592, at *2 (E.D. Pa.
Court cases filed within this Circuit have 1999); Hunter v. Greenwood Trust Co., 856
followed the preponderance standard. See, F. Supp. 207, 219-220 (D. N.J. 1992);
e.g., Carrick v. Sears, Roebuck and Co., 252 Carson v. ITT Hartford Ins. Group, 1991
F. Supp 2d. 116, 119 (M.D. Pa. 2003); WL 147469 (E.D. Pa. 1991). See also Earley
Fosbenner v. Wal-Mart Stores, Inc., 2001 v. Innovex (N. Am.) Inc., 2002 WL
WL 1231761 (E.D. Pa. 2001); Kobaissi v. 1286639, at *2 (E.D. Pa. 2002)(noting that
Am. Country Ins. Co., 80 F. Supp 2d. 488, judges of the Eastern District of
489 n.2 (E.D. Pa. 2000); McFadden v. State Pennsylvania have applied a preponderance
Farm Ins. Co.,
1999 WL 715162 (E.D. Pa. of the evidence standard but explaining that
1999); Imperial Spirits, USA, Inc. V. Trans [a]n action may not be remanded to state
Marine Int l Corp.,
1999 WL 172292 (D. N.J. court unless it is apparent to a legal certainty
1999); Garcia v. Gen. Motors Corp., 910 F. that the plaintiff s claim cannot meet the
Supp. 160, 165 (D. N.J. 1995). amount in controversy requirement. ).
4
asserting that the requisite amount in Co., 303 U.S. 283 (1938) the plaintiff, in
controversy has been met, the plaintiff seeking a remand to the state court,
must then prove “to a legal certainty that amended the complaint after removal to
the claim is really for less than the allege damages less than the federal
jurisdictional amount” in order to support jurisdictional amount. The Court stated
remand.
Id. that the rule for determining whether the
Other versions have case involves the requisite amount as
included: (1) the District Court “make[s] whether from the face of the pleadings, it
an independent appraisal of the value of is apparent, to a legal certainty, that the
the claim,” Neff v. Gen. Motors Corp., plaintiff cannot recover the amount
163 F.R.D. 478, 482 n.5 (E.D. Pa. claimed, or if, from the proofs, the court
1995)(citing Angus v. Shiley Inc., 989 is satisfied to a like certainty that the
F.2d 142, 146 (3d Cir. 1993)); Bishop v. plaintiff never was entitled to recover
Gen. Motors Corp.,
925 F. Supp. 294, that amount.
Id. at 289. If not, the suit
299-300, 300 n.6 (D. N.J. 1996)(utilizing must be dismissed.
a similar standard); (2) adoption of the Some courts have found
inverted legal certainty approach, in inconsistencies between Red Cab and
which the defendant must prove to a McNutt v. General Motors Acceptance
legal certainty that the plaintiff’s Corp. of Indiana,
298 U.S. 178 (1936).
damages are not less than $75,000, In the latter case, the Supreme Court held
DiTullio v. Universal Underwriters Ins. that the party alleging jurisdiction [must]
Co.,
2003 WL 21973324, at *3-*4 (E.D. justify his allegations by a preponderance
Pa. 2003); and (3) remanding a case of the evidence. McNutt, 298 U.S. at
“because ambiguity exists and doubt 189. In that case, although a challenge to
remains regarding the sufficiency of the the amount in controversy had been
amount in controversy.” Stuessy v. raised in the pleadings, no evidence or
Microsoft Corp.,
837 F. Supp. 690, 692 findings in the trial court addressed that
(E.D. Pa. 1993). issue. In that respect, Red Cab differs
Many of the variations are because these factual findings had been
purely semantical and we have found no made.
case where the result would have been Rather than reading
different had one of the variations articulations of the standard as variations,
described been used. However, we think we believe that the holdings in these two
it would be helpful if consistent language cases may be reconciled. In many
were used by the District Courts within instances the amount in controversy will
this Circuit. be determined in whole or in part by state
The Supreme Court has law. For example, if state law denies
discussed the nature of a defendant’s recovery for punitive damages, the
burden of proof in a removal case. In St. federal court would be required to
Paul Mercury Indemnity Co. v. Red Cab disregard the value of such a claim
5
asserted to be included within the made the District Courts adhere to the
jurisdictional amount. See Packard, 994 “legal certainty” test cited in such cases
F.2d at 1046. In deciding applicable as Meritcare, 166 F.3d 214; Packard, 994
state law, the preponderance of the F.2d 1039; Bloom v. Barry,
755 F.2d 356
evidence standard would have no utility. (3d Cir. 1985); and Nelson v. Keefer,
In many cases, however, 451 F.2d 289 (3d Cir. 1971).
disputes over factual matters may be We recognize that
involved. In resolving those issues, the requiring a defendant to show to a legal
McNutt preponderance of the evidence certainty that the amount in controversy
standard would be appropriate.3 Once exceeds the statutory minimum may lead
findings of fact have been made, the to somewhat bizarre situations. As the
court may determine whether Red Cab s Court observed in Shaw v. Dow Brands,
legal certainty test for jurisdiction has Inc.,
994 F.2d 364, 366 (7 th Cir. 1993),
been met. oral argument presented a comic scene:
In short, despite the use by plaintiff s personal injury lawyer protests
some courts of such phrases as “more up and down that his client s injuries are
likely than not,” “substantial likelihood,” as minor and insignificant as can be,
and “reasonable probability,” 4 we while attorneys for the manufacturer
recommend that when the relevant facts paint a sob story about how plaintiff s life
are not in dispute or findings have been has been wrecked. It would not be a
surprise that when the time came for
assessment of damages the parties would
3 once again switch their views by some
A pretrial ruling on
jurisdictional facts should not be made if it 180 degrees.
constitutes a decision on the merits. See Because of the m anner in
Grubart, Inc. v. Great Lakes Dredge & Dock which the claims for damages were
Co., 513 U.S. 527, 537-38 (1995); Jaconski stated in the complaint here, the District
v. Avisun Corp.,
359 F.2d 931, 935 (3d Cir. Court was required to apply state law in
1966); 5A Charles Alan Wright & Arthur R. converting the categories to monetary
Miller, Federal Practice And Procedure sums. See Horton v. Liberty Mut. Ins.
§1350 (2d ed. 1990). Co.,
367 U.S. 348, 352-53 (1961) (In
4 diversity cases courts must look to state
See Gafford v. Gen. Elec.
law to determine the nature and extent of
Co., 997 F.2d 150 (6th Cir. 1993) (reviewing
various tests used by courts). See also Alice the right to be enforced). In fairness to
M. Noble-Allgire, Removal of Diversity the District Court, our review of the
Actions When the Amount in Controversy record indicates that the parties did not
Cannot be Determined from the Face of provide much assistance in this endeavor.
Plaintiff s Complaint: The Need for Judicial Having concluded that the
and Statutory Reform to Preserve legal certainty test is appropriate, we turn
Defendant s Equal Access to Federal Courts, to the jurisdictional problem. In her
62 Mo. L. Rev. 681 (1997).
6
motion to remand, plaintiff contended treble damages, and attorneys fees. In
that the complaint filed in the state court the alternative, she sought to rescind the
established that her claims did not meet contract.
the required amount of $75,000. In calculating the damages
Although this was the plaintiffs clearly recoverable under the statute, the District
stated position, it did not resolve the Court began with the base purchase price
jurisdictional issue because the defendant of the automobile, $13,370, and added
has a right to resort to a federal forum if registration, title and filing fees, sales
it can establish that the jurisdictional tax, service contract cost and expenses of
requirements have been satisfied. See, financing to reach a total of $22,095.
e.g., Red Cab, 303 U.S. at 294. Samuel-Bassett, 143 F. Supp 2d. at 507.
III. Scope of Damages The Court concluded that giving the
In removal cases, damages claims the broadest possible
determining the amount in controversy reading and trebling the $22,095 which
begins with a reading of the complaint Plaintiff is obligated to pay for her
filed in the state court. Unlike many automobile over five years in addition to
instances in which a specific amount is attorneys fees and out-of-pocket
requested, the ad damnum clause in this expenses, would clearly total an amount
complaint is stated in terms of categories in excess of $75,000. Id. The District
of damages. Because the diversity Court did not explain the computation
statute speaks in terms of dollars, we underlying its conclusion.
must translate the categories plaintiff The Consumer Protection
cites into monetary sums. Law does not specify how actual
Count I of the complaint damages should be measured and we
alleges that the defendant violated the therefore turn to relevant state appellate
Pennsylvania Unfair Trade Practices and rulings. The Pennsylvania Supreme
Consumer Protection Law (the Court has not yet had the occasion to
Consumer Protection Law ). Pa. Stat. interpret the statutory term. The Superior
Ann. tit. 73 § 201-9.2(a) (W est 2003). Court, an intermediate appellate court,
The statute allows recovery of actual has utilized the purchase price of a
damages and reasonable attorneys fees, vehicle as a starting point for calculating
treble damages and such additional relief damages. From that amount, various
as [the court] deems necessary or proper. sums have been deducted to arrive at the
Id. Because this claim offers the highest actual damages. See Stokes v. Gary
potential recovery to the plaintiff, we Barbera Enters.,
783 A.2d 296, 299 (Pa.
will discuss it first. Super. Ct. 2001); Young v. Dart, 630
The plaintiff sought A.2d 22, 26 (Pa. Super. Ct. 1993).
damages for loss of value of the car, In Stokes, the plaintiff
depreciation in resale value, repair costs, proved that the car dealer had tampered
expense of repair attempts, loss of use, with the odometer and misrepresented
7
that a van was new. Stokes, 783 A.2d at Act. In that case, we remanded for
297. In determining the damage award, reevaluation of the plaintiff s loss under
the trial court began with the amount of the state s Lemon Law. Id. at 588-89.
monthly payments made by the plaintiff The District Court in Suber began and
and added the down payment, the value ended its analysis with the sticker price
of the trade-in and the amount necessary of the van. We noted that under the
to pay off the loan.
Id. at 298. From this Lemon Law a claimant was required to
total the following amounts were return the car and that because the value
subtracted: (1) half of the monthly of the vehicle had not been established,
payments the plaintiff had made (to the issue should be reviewed on remand.
reflect usage), (2) an additional $4000
Id. at 585 n.7. We recognize that in
for usage and (3) a trade-in credit that the discussing damages, Suber was applying
plaintiff received for the van when he New Jersey law, not the Pennsylvania
purchased a new car.
Id. The Superior Consumer Protection Law, and, hence, is
Court affirmed.
Id. at 299. not determinative here.
In Young v. Dart, the In Werwinski v. Ford
plaintiff purchased a car from a dealer Motor Co., 286 F.3d 661, 668, 670 (3d
who concealed the fact that the vehicle Cir. 2002), the panel concluded that
had been involved in a collision and had defendant had established removal
numerous hidden defects. Young, 630 jurisdiction in a case where the plaintiffs
A.2d at 23. Recognizing that the complained that their automobile had a
Consumer Protection Law “does not set defective transmission. The Court
forth a formula for the assessment of pointed out that the plaintiffs sought to
actual damages,” the Superior Court held recover com pensatory damages and in
that the trial court did not err by looking addition all or part of the sums
to the method used under the Automobile [plaintiffs] paid to purchase or lease their
Lemon Law. See
id. at 26-27. See also automobiles.
Id. at 666. Moreover,
Pa. Stat. Ann. tit. 73 § 1955 (W est 2003). plaintiffs demanded that the defendant
The trial court used the $12,800.68 disgorge its ill-gotten profits received
purchase price as a starting point, and from the sale of the subject vehicles
subtracted $4,858.20 for Young’s usage and/or make full restitution.
Id. at 667.
between the date of purchase and the The Court concluded, because of these
trial, as well as requiring the return of the provisions, the complaint clearly leaves
car.
Young, 630 A.2d at 27. The the door open for them later to demand
plaintiff was also awarded some minor reimbursement for the purchase price of
consequential damages. the cars.
Id.
In Suber v. Chrysler Corp., We observe that in the
104 F.3d 578 (3d Cir. 1997), we were briefs in that case the parties cited four
faced with somewhat similar issues district court opinions and did not call
under the New Jersey Consumer Fraud the panel s attention to the two Superior
8
Court cases interpreting relevant aspects “total sales price” of $22,095 was a
of the Consumer Protection Law. beginning point. Samuel-Bassett, 143 F.
District court rulings on Pennsylvania Supp 2d. at 508. This figure included the
law are not authoritative and must yield price of the car, financing charges, sales
to rulings of the state Supreme Court or, tax, license, title and filing fees, as well
if none exist, consider decisions of the as a service contract. Id. In addition, the
state s intermediate appellate courts in Court referred to, but did not cite specific
predicting how the state s highest court amounts of such expenses as costs as
would rule. Gares v. Willingboro repairs, rental cars and attorneys’ fees.
Township,
90 F.3d 720 (3d Cir. 1996).
Id. The District Court concluded that,
In any event, the plaintiffs complaint in considering these unquantified costs and
the case before us does not contain the trebling the price of the car, the
additional claims for damages which plaintiff’s recovery “would clearly total
Werwinski relied upon in finding that the an amount in excess of $75,000.”
Id.
jurisdictional amount had been met.
IV. The Consumer Protection
Law Claim 164-65 (Pa. Super. Ct. 2002), the Superior
As noted earlier, the Court, noting Werwinski s holding, stated we
specifically decline to address Chrysler s
District Court here began its
invitation to address two particularly vexing
computations under the Consumer
questions: (1) application of the economic
Protection Law 5 by assuming that the loss doctrine . . . Pennsylvania trial courts
have rejected Werwinski s prediction that the
Pennsylvania Supreme Court would apply
5
The order certifying the the economic loss rule in claims under the
class also dismissed Count I. The District Consumer Protection Law. See, e.g.,
Court cited the Werwinski ruling that the Oppenheimer v. York Int’l, 2002 WL
economic damages doctrine barred recovery 31409949, at *5 (Pa. Com. Pl. 2002);
under the Consumer Protection Law. The Zwiercan v. Gen. Motors Corp., 2002 WL
dismissal is interlocutory and is not before 31053838, at *7 (Pa. Com. Pl. 2002). See
us in view of the limited review under Rule also Balderston v. Medtronic Sofamor
23(f). Danek, Inc., 285 F.3d 238, 242 (3d Cir.
Application of the economic 2002) (“[i]n construing claims under the
loss doctrine to claims under the Consumer CPL, Pennsylvania courts have
Protection Law has been questioned. The distinguished purchases made for business
Pennsylvania Supreme Court has not reasons which are not actionable from those
addressed the issue. In O Keefe v. made for ‘personal, family or household
Mercedes-Benz USA, LLC, 214 F.R.D. 266, use.’”).
277 (E.D. Pa. 2003), the District Court Of course, in this case if the
observed that the Superior Court, post- District Court s re-assessment of plaintiff s
Werwinski, had approved treble damages damages results in an amount less than
under the Consumer Protection Law. In $75,000, as seems likely, then the
Debbs v. Chrysler Corp.,
810 A.2d 137, Werwinski ruling need not be addressed.
9
Conspicuously absent from plaintiff’s usage of the vehicle. To test
the calculation were deductions for the the upper limits of the range for the
value of the car and allowance for its use jurisdictional amount, Angus v. Shiley,
reductions applied by the Superior Court Inc., 989 F.2d 142, 146 (3d Cir. 1993),
of Pennsylvania in similar cases. In the the resulting computation may be trebled
plaintiff s complaint she seeks out-of- under the Consumer Protection Law.
pocket reimbursement of repairs but no Metz v. Quaker Highlands, Inc., 714
amounts were stated. In this connection, A.2d 447 (Pa. Super. Ct. 1998) (treble
it would appear that if the expense of a damages may be awarded in a rescission
service contract is considered as an item case).
of loss, the amounts paid for repairs Attorneys fees awarded
covered by the terms of that agreement under the Consumer Protection Law are
should not be considered as actual to be reasonable. Pa. Stat. Ann. tit. 73 §
damage to the plaintiff. 201-9.2(a). As the Superior Court has
The fact remains that the explained in McCauslin v. Reliance
amount in controversy has not been Finance Co., 751 A.2d 683, 686 (Pa.
properly established. The computations Super. Ct. 2000), [t]he term reasonable
here are inadequate and fail to conform does impart a sense of proportionality
with the Pennsylvania statutory language between an amount of damages and an
of actual damages as applied by the state award of attorneys fees. 6 We also point
appellate court. Although the damages
conceivably could be trebled, the record
does not establish the multiplicand for 6
We are impressed with the
such an award. New Jersey Superior Court s appraisal of the
Some observations may be value of a case in certifying a class action
helpful on remand. Rescinding the involving the brakes on the same model of
contract apparently would provide Kia cars. According to the Court:
plaintiff with the most advantageous
result because it would place her in the [T]he evidence here is that
same position she was in before for the repair of a brake
purchasing the vehicle. That remedy system of this nature, you re
speaking in terms of a few
would require plaintiff to return the
hundred dollars. Nothing
vehicle to the dealer, who should assume even coming close to $1,000.
the outstanding balance of the loan. How many of the 8,455
Defendant would pay plaintiff the total members would seek,
amount of installment payments made by individually, to claim
her, the out-of-pocket repair costs that recompense of that small
she incurred, and incidental expenses. sum? To ask the question, I
From this sum must be subtracted a think answered in terms of
reasonable amount to reflect the qualification. Little v. KIA
Motors of America ,UNN-L-
10
out that under the Consumer Protection Pa. Cons. Stat. Ann. §§ 2714(c), 2715,
Law no punitive damages other than the 2A519(d). However, punitive damages
discretionary authority to treble is are not recoverable in an action based
permitted. McCauslin, 751 A.2d at 685 solely on breach of contract. Thorsen v.
( although the Act does allow the Court to Iron & Glass Bank,
476 A.2d 928, 932
impose up to treble damages for actual (Pa. Super. Ct. 1984); Johnson v.
damages sustained, it does not otherwise Hyundai Motor Am.,
698 A.2d 631, 639
confer a right to punitive damages. ). (Pa. Super. Ct. 1997).
The counts presented by The purchase price of a
the plaintiff appear to be in the motor vehicle serves as prima facie
alternative and the parties have not evidence of value, but standing alone, as
suggested that, expect for the trebling it does here, does not provide sufficient
provided by the Consumer Protection data to establish value. Price v.
Law, there can be more than one Chevrolet Motor Div. of Gen. Motors
recovery for the harm. Although Count I Corp., 765 A.2d 800, 811 (Pa. Super. Ct.
would seem to be the one to offer the 2000). The record before us fails to
most, although questionable, potential to establish the value of the automobile
reach the $75,000 mark, we shall briefly with and without the brake defect. Even
discuss the other claims. adding consequential damages to a
V. The U.C.C. Claim conjectural estimate of value here fails to
Under Pennsylvania law establish anything near $75,000.
the measure of damages for breach of Accordingly, the breach of warranty
warranty under the Uniform Commercial count fails to provide federal court
Code is the difference at the time and jurisdiction.
place of acceptance between the value of VI. The Magnuson-M oss W arranty
the goods accepted and the value they Improvement Act
would have had if they had been as The Magunson-Moss Act
warranted, unless special circumstances provides that a consumer who is
show proximate damages of a different damaged by the failure of a supplier,
amount. 13 Pa. Cons. Stat. Ann. § warrantor, or service contractor to
2714(b) (West 2003). comply with any obligation under this
chapter, or under a written warranty,
In addition to actual implied warranty, or service contract
damages, plaintiffs may also recover may bring suit for damages and other
incidental and consequential damages legal and equitable relief. 15 U.S.C. §
resulting from a breach of warranty. 13 2310(d)(1) (2003).
Suit may be filed in state or
federal court. Id. However, federal
800-01 (N.J. Super. Ct. Law jurisdiction for a Magnuson-Moss Act
Div. filed August 20, 2003). claim does not exist unless the am ount in
11
controversy exceeds $50,000, and, if the for fact-finding on the amount in
suit is brought as a class action, the controversy. We repeat the admonition
number of named plaintiffs is at least expressed in our case law that in order to
100. 15 U.S.C. § 2310(d)(3). carry out the Congressional intent to
In Voelker v. Porsche Cars limit jurisdiction in diversity cases,
North America, Inc., 348 F.3d 639, 643 doubts must be resolved in favor of
(7 th Cir. 2003), an automobile warranty remand. See, e.g., Boyer v. Snap-On
case, the Court of Appeals said that the Tools Corp.,
913 F.2d 108, 111 (3d Cir.
party asserting federal jurisdiction must 1990); Abels v. State Farm Fire & Cas.
allege the cost of the replacement Co.,
770 F.2d 26, 29 (3d Cir. 1985).
vehicle, minus both the present value of Moreover, estimations of the amounts
the allegedly defective vehicle and the recoverable must be realistic. The
value that the plaintiff received from the inquiry should be objective and not based
allegedly defective vehicle. The facts in on fanciful, pie-in-the-sky, or simply
that Magnuson-Moss case differ from wishful amounts, because otherwise the
those present here, but the requirements policy to limit diversity jurisdiction will
of allowance for usage and establishing be frustrated.
the difference in value, rather than Accordingly, the order of
simply the purchase price are the same. certification will be vacated and the case
Treble damages may not be remanded to the District Court for a
assessed in a M agnuson-Moss count. determination of subject matter
Nor may attorneys fees be recovered. jurisdiction.
Suber, 104 F.3d at 588 n.12. It is clear
that the amount recoverable under the
claim here does not exceed $50,000 and
this case cannot be maintained in the
federal courts on an independent
jurisdictional basis. There is no need to
address supplemental jurisdiction at this
point.
By way of equitable relief,
plaintiff asks that members of the
putative class be notified and warned
about the brake system defect. Because
we must look to the jurisdictional status
of the named plaintiff, it is obvious that
injunctive relief is not appropriate.
VII. Conclusion
We conclude that the case
must be remanded to the District Court
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