amount is apparently made in good faith and that there is not a legal certainty that the claim is really for less than the jurisdictional amount.
Next I will rule on defendant's contention that the words "may bring a civil action in the Court of Common Pleas" divests this court of jurisdiction under 73 P.S. § 1958. The language of the statute is permissive and is clearly subject to interpretations other than that given by defendant. For example, the jurisdiction is given to Courts of Common Pleas instead of some lower court or administrative agency. In any event, I will take jurisdiction of the claim under the Pennsylvania Automobile Lemon Law.
In determining whether plaintiff's claim under that law states a claim under which relief can be granted, I look at one key set of facts, the overall record of the brake system of the car, as alleged by plaintiff and acknowledged by defendant. In its first 16,652 miles of use, major components of the brake system were changed four times. The mean time between failures of this critical system is therefore 4,163 miles. This states the most favorable case for defendant. The car was actually brought in two other times for attention to the brake system. If I count these times, the mean time between failures becomes 2,775 miles. The failure leading to the most recent listed repair was a total failure of the brake system. This happened, ironically, a little over a month after plaintiff had, mistakenly it turns out, expressed her appreciation for the car finally being fixed correctly. These allegations, which on a motion to dismiss under Fed.R.Civ.P. 12(b)(6) must be viewed in the light most favorable to plaintiff, are sufficient to keep her in court. Under Fed.R.Civ.P. 12(b)(6), "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Plaintiff's contention is that the failure rate of the brake system in this automobile goes far beyond the ordinary wear and tear that a purchaser would expect to be excluded from the manufacturer's warranty. It is her further contention that this failure rate was dangerous, given that she experienced a brake failure only 4,174 miles after the pads had been replaced, and that this failure came without adequate warning. It is her further contention that the repairs made under the warranty did not cure the defect, an undiagnosed condition that caused abnormal brake wear and roughness, but only the manifestation of that defect, worn out pads and rotors. Whether, in fact, such a defect existed, or whether, as contended by defendant, the car was subject to abuse, are issues of fact. Defendant has documented the repairs which plaintiff alleges have been so abnormal as to constitute a non-conformity under the Lemon Law. Plaintiff alleges that failure to effect an adequate repair constitutes bad faith under the Unfair Trade Practices Law and a breach of the warranties under the Uniform Commercial Code. While plaintiff may not ultimately be able to bear the burden of going beyond the express warranty, the claim under the Uniform Commercial Code is based on the same facts as Counts I and II, and is duplicative rather than cumulative. I will not dismiss Count III at this time.
Since the motion to dismiss Count IV is uncontested, that count will be dismissed.
An appropriate order follows.
AND NOW, this 5th day of April, 1988, it is hereby ORDERED that the Motion of Defendant, Hyundai Motor America, to Dismiss the Plaintiff's First Amended Complaint is hereby DENIED with respect to Counts I, II and III. Defendant's Motion to Dismiss Count IV of the First Amended Complaint is GRANTED.
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