MARK A. KEARNEY, District Judge.
Anthony James Pack and Katherine E. Pack purchased a recreational vehicle which required at least six repair visits within a year of purchase. They are disappointed in their six-figure investment. They sued the manufacturer, Thor Motor Coach, seeking damages to remedy this disappointment under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act and Pennsylvania's Unfair Trade Practice and Consumer Protection Law. After we dismissed their first attempt at pleading a claim, they amended their Complaint to attach a warranty and added a claim under Pennsylvania's Uniform Commercial Code. As it did earlier, Thor Motor Coach argues the Packs cannot state a claim based on the statute of limitations and failure to plead deceptive conduct under the Unfair Trade Practice Act. We agree with Thor Motor Coach in part as the Packs did not plead facts to support all of the claims of deceptive conduct under the Unfair Trade Practice Act. But there are significant arguments as to the timeliness of the warranty-based claims requiring discovery and the Packs added two allegations which state a limited claim under the Unfair Trade Practice Law. We grant in part and deny in part Thor Motor Coach's motion to dismiss in the accompanying Order.
On March 20, 2017, the Packs purchased a new 2017 Challenger 37TB recreational vehicle ("RV") manufactured and warranted by Thor Motor Coach for $117,869.
The Packs allege Thor Motor Coach issued "several warranties, guarantees, affirmations or undertakings with respect to the material or workmanship of the vehicle and/or remedial action in the event the vehicle fails to meet the promised specifications" in consideration for the RV's purchase.
The RV is covered under Limited Warranty for "twelve (12) months after you first take delivery of the motor home from an authorized dealership or after the odometer reaches 15,000 miles, whichever occurs first."
The Limited Warranty attached to the Amended Complaint contains a section entitled "Legal Remedies" providing "any action to enforce this limited warranty or any implied warranties shall not be commenced more than 90 days after the expiration of the warranty coverage period designated above" and is stamped "Julian Date: 101510."
Thor Motor Coach attaches a different warranty to its motion to dismiss. Its attached warranty provides "Coverage Ends: 12 months after the first retail owner first takes delivery of the motorhome from an authorized dealership OR after the odometer reaches 15,000 miles, whichever occurs first. Any action for breach of this 12 month or 15,000 mile limited warranty or any implied warranties or for revocation of acceptance must be commenced not more than 15 months after the breach."
In the Limited Warranty attached to the Amended Complaint, any legal action must be brought not more than 90 days after the expiration of the warranty coverage period but in the warranty Thor Motor Coach attaches to its motion, a legal action must be brought not more than 15 months "after the breach."
Just two months after delivery, the Packs took the RV for the first of its six in-warranty repairs. In all, the RV required six repairs from May 17, 2017 to February 28, 2018, within the 12-month, 15,000 mile warranty period.
The Packs allege they afforded Thor Motor Coach a reasonable number of opportunities to "conform the vehicle to the ... express warranties, implied warranties and contracts," but the RV continues to be defective notwithstanding the repairs made.
Presumably mindful of our April 19, 2019 Opinion explaining the Magnuson-Moss Act does not create an independent cause of action without an alleged breach of a specific express or implied warranty under state law, the Packs now allege a claim under the Magnuson-Moss Act for breach of warranty as well as a claim under Pennsylvania's Uniform Commercial Code ("UCC").
Thor Motor Coach now moves to dismiss the Packs' Amended Complaint arguing (1) the Magnuson-Moss Act and UCC claims fail as a matter of law because they are time-barred and (2) the Unfair Trade Practices Act claim lacks the requisite particularity sufficient to allege fraudulent conduct.
Under the Magnuson-Moss Act, "a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief ...."
The Packs allege Thor Motor Coach breached the Limited Warranty, as well as the implied warranties of merchantability and fitness for a particular purpose, by "failing to replace or repair faulty or defective portions" of the RV which continues to "suffe[r] from substantial issue[s]" the Packs presented to Thor Motor Coach for repair during the warranty period.
Thor Motor Coach argues the Packs' breach of warranty claims under the Magnuson-Moss Act and UCC claims fail as a matter of law because they are time-barred by the language of the warranty attached to the motion to dismiss. Under Pennsylvania law, the statute of limitations for a breach of warranty claim is four years "after the cause of action has accrued."
The Pennsylvania General Assembly defined a claim for breach of warranty "accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. ... [and] occurs when tender of delivery is made."
Whatever the limitations period, a cause of action on "warranties that `explicitly extend to future performance of the goods' where discovery of the breach must await the time of future performance" do not accrue until "the breach is or should have been discovered."
Thor Motor Coach concedes the Limited Warranty here—12-months or 15,000 miles, whichever occurs first—is a warranty explicitly extended to future performance and the warranty cannot be breached until it is discovered.
The issue is whether the Packs timely filed their warranty-based claims. We have at least two warranties shown to us and a variety of repair efforts. The lack of timely filing is not apparent from the Amended Complaint. We will know much more after discovery.
As pleaded, we know the Packs purchased and took delivery of the RV on March 20, 2017
Thor Motor Coach asserts the Packs signed a "Registration and Acknowledgment of Receipt of Warranty and Product Information" ("Acknowledgment") on April 5, 2017 and attach the document to its motion to dismiss.
Notably, the limitations provision Thor Motor Coach relies on provides an action for breach of warranties "must be commenced not more than 15 months after the breach"; a date that may be different from ninety days after the expiration of the applicable warranty coverage period. And, notably, the sentence preceding the excerpt from the Acknowledgement states "Before I purchased this vehicle, I received, read and agreed to the terms and conditions of Thor Motor Coach's 1 page Limited Warranty, published within its Owner's Manual, and the Chassis Limited Warranty."
The Packs allege Thor Motor Coach did not provide them with the warranty until after delivery of the RV, making its limitations and disclaimers "ineffective for a failure of consideration."
Nevertheless, Thor Motor Coach argues the Packs' warranty coverage ended on April 5, 2018, one year after signing the Acknowledgment.
We reject this argument in its entirety. It presumes the breach accrued on April 5, 2017, the date of the Acknowledgment of receipt of the warranty. But we know under the Pennsylvania Supreme Court's Nationwide Insurance decision, the breach did not accrue on April 5, 2017 because the language of the warranty—as Thor Motor Coach concedes—explicitly extends to future performance and could not have been breached until the RV required repair or replacement within the warranty period.
Apparently recognizing the weakness of its argument, Thor Motor Coach argues "even giving" the Packs the benefit of "future performance" of May 8, 2017—the first time the Packs allege they took the RV to be repaired—the time to file legal action expired one year and three months later on August 8, 2018. Thus, Thor argues, the Packs' claims under the UCC and Magnuson-Moss Act are untimely as a matter of law because, again, the Packs did not sue until February 4, 2019.
The Packs respond the Limited Warranty is one of future performance which could not be breached until there is an issue for repair, the Packs took their RV in for repair to an authorized dealer on six occasions within the 12-month, 15,000 mile warranty period—May 8, 2017; July 20, 2017; August 8, 2017; August 31, 2017; November 7, 2017; and February 28, 2018—and the RV continues to have repair issues.
At this stage, we will not dismiss the Magnuson Moss claim as the statute of limitations is not readily discernible from the Amended Complaint. We cannot determine whether the "warranty"—the Limited Warranty attached to the Amended Complaint or the "warranty" attached to the motion to dismiss which appear to be two different documents—purporting to limit the time to file legal action is part of the "original agreement" between the parties. Under Section 2725, the statute of limitations for a breach of contract for sale is four years after the cause of action accrued.
We are also unable to determine when the breach occurred to start the clock on the limitations period. Thor Motor Coach argues the clock started running on May 8, 2017, the first date the Packs brought the RV to an authorized dealer for repair making the time to bring suit expire one year plus three months later, on August 8, 2018.
Although neither party raises it, the limitations period may be tolled here under the "repair doctrine." Under Pennsylvania law, a limitations period "will be tolled only where `evidence reveals that repairs were attempted; representations were made that the repairs would cure the defects; and the plaintiff relied upon such representations.'"
While Thor Motor Coach's timeliness argument may ultimately succeed, it is more properly raised at the summary judgment stage after fulsome discovery and development of the record. We deny its motion to dismiss the Magnuson-Moss Act and UCC claims based on the application of the statute of limitations as a matter of law.
Thor Motor Coach moves to dismiss the Unfair Trade Practices Act claim arguing the Packs' Amended Complaint continues to suffer from the same infirmities as their original complaint: (1) the claims are based on violations of Pennsylvania's Lemon Law;
The Unfair Trade Practices Act prohibits, inter alia, "unfair or deceptive acts or practices" in trade or commerce.
To establish a claim under the Unfair Trade Practices Act for deceptive conduct, a plaintiff must demonstrate "(1) a deceptive act that is likely to deceive a consumer acting reasonably under similar circumstances; (2) justifiable reliance; and (3) that the plaintiff's justifiable reliance caused ascertainable loss."
Thor Motor Coach argues we must dismiss the Unfair Trade Practices Act claim because, inter alia, the Amended Complaint lacks the requisite particularity. The Packs fail to allege facts to support the first element of the claim—deceptive acts under some of the prohibited conduct of Section 201-2(4)—as to three of the five alleged deceptive acts as analyzed below. As to the second element, the Packs plead they "justifiably relied upon [Thor's] express warranties and implied warranties."
Section 201-2(4)(vii) prohibits unfair or deceptive acts or practices "representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another." To support their Unfair Trade Practices Act claim under Section 201-2(4)(vii), the Packs argue Thor Motor Coach "mislead and reaffirmed that they were able to fix the subject recreational vehicle under warranty, however, over and over again despite these reassurance[s] the [RV] would continue to have interior water leaks" and "represented that [t]he subject vehicle was repaired to a particular standard and quality at the time of purchase."
While the Packs argue Thor Motor Coach "mislead and reaffirmed that they were able to fix the subject recreational vehicle under warranty," no "misleading" representations" or "reaffirmation" of any statements are alleged anywhere in the Amended Complaint. The Packs may not amend their complaint in an opposition to a motion to dismiss.
The Packs fail to plead sufficient factual matter, accepted as true, to state a claim to relief plausible on its face, as to "[r]epresenting that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another" under Section 201-2(4)(vii). As analyzed in our April 19, 2019 Memorandum granting Thor Motor Coach's first motion to dismiss, the Packs do not allege facts showing Thor Motor Coach represented the RV to be of a particular standard, quality or grade different from what it actually is.
We similarly dismiss claims for alleged "unfair or deceptive acts practices" prohibited by § 201-2(4)(xv) and (xxi). Section § 201-2(4)(xv) prohibits "[k]nowingly misrepresenting that services, replacements or repairs are needed if they are not needed." There are no allegations in the Amended Complaint to support a claim based on this subsection, and the Packs appear to have abandoned a claim based on this subsection by failing to address it in their response.
We dismiss the claim based on the "catch-all" provision of Section § 201-(4)(xxi), prohibiting fraudulent or deceptive conduct creating a likelihood of confusion or misunderstanding.
We dismiss a claim based on any "unfair or deceptive acts or practices" defined by 73 Pa. C.S. § 201-2(4)(vii), (xv), and (xxi). And, for the sake of clarity, we again dismiss any Unfair Trade Practices Act claim based on an alleged violation of Pennsylvania's Lemon Law.
Sections 201-2(4)(xiv) and 201-2(4)(xvi) prohibit "[f]ailing 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" and "[m]aking repairs, improvements or replacements on tangible, real or personal property of a nature or quality inferior to or below the standard of that agreed to in writing."
To support their Unfair Trade Practices Act claim based on these deceptive practices, the Packs allege Thor Motor Coach offered an express limited warranty guaranteeing the RV will be serviced at no cost; the RV currently suffers from continued problems not properly repaired under the express limited warranty; the warranty obligates Thor Motor Coach to repair and/or replace any covered defect; Thor Motor Coach failed to replace or repair faulty or defective parts of the RV; and defects continue.
These facts sufficiently allege a deceptive act "likely to deceive a consumer acting reasonably under similar circumstances" for purposes of the first element of an Unfair Trade Practices Act claim. Having concluded the Packs allege justifiable reliance on Thor Motor Coach's warranties and damages, we deny Thor's motion to dismiss Unfair Trade Practices Act claims based on deceptive conduct under Section 201-2(4)(xiv) and (xvi).
In the accompanying Order, we deny Thor Motor Coach's motion to dismiss the Magnuson-Moss Act and Pennsylvania UCC claims. We grant in part and deny in part Thor's motion to dismiss claims under the Unfair Trade Practices Act. We dismiss claims based on deceptive acts as defined by Section 201-2(4)(vii), (xv), and (xxi) and under Pennsylvania's Lemon Law. We deny Thor Motor Coach's motion to dismiss Unfair Trade Practices Act claims based on deceptive acts defined by Section 201-2(4)(xiv) and (xvi) and will allow discovery on those claims to proceed.
