The opinion of the court was delivered by: COHILL
MAURICE B. COHILL, JR., CHIEF UNITED STATES DISTRICT JUDGE.
Presently before the Court is the issue of whether plaintiff's Complaint should be dismissed for lack of subject matter jurisdiction. At a status conference on July 27, 1988, the Court, sua sponte, ordered the parties to consider and brief the basis of federal court jurisdiction over this controversy. For the reasons set forth below, we will dismiss this action.
Plaintiff, Eleanor A. Rose, purchased a Nissan 300-ZX from defendant A & L Motor Sales ("A & L") on April 19, 1986 for $ 22,007. Plaintiff alleges that the car was covered by a limited warranty. Subsequent to the purchase, plaintiff experienced numerous problems with the car and returned it to A & L for servicing on three separate occasions. Plaintiff contends that an independent body shop has opined that the car had been involved in an accident prior to plaintiff's purchase.
Plaintiff avers that the defendants breached the express warranty on the car and that a salesman falsely represented to her that the car had not previously been involved in an accident. She is seeking damages, costs and attorneys fees. Plaintiff's only claim to federal jurisdiction over this dispute is based on the Magnuson-Moss Warranty Act (the "Act"), 15 U.S.C. § 2301-2312; there is not complete diversity between the plaintiff and all defendants.
Because plaintiff paid only $ 22,007 for the car, the Court questioned whether plaintiff could meet the $ 50,000 amount in controversy requirement.
We first note that while the Act grants the court discretion to award attorney's fees, plaintiff's "costs", which term has been construed to include attorney's fees, cannot be considered in calculating the jurisdictional amount. Saval v. BL Ltd., 710 F.2d 1027, 1032-33 (4th Cir. 1983); Simmons v. Taylor Childre Chevrolet-Pontiac, Inc., 629 F. Supp. 1030, 1033 (M.D.Ga. 1986).
Thus, we may retain jurisdiction over this action only if plaintiff's damages exceed $ 50,000. The Act is silent as to the amount of damages recoverable from a breach of a covered warranty. Courts must resort to state warranty law to ascertain the measure of damages. Mackenzie v. Chrysler Corp., 607 F.2d 1162, 1166 (5th Cir. 1979).
As adopted in Pennsylvania, the Uniform Commercial Code provides that the measure of damages for breach of warranty is the "difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." 13 Pa. C.S.A. § 2714. We believe that, assuming plaintiff could successfully establish a violation of the Act, she would be entitled to less than $ 22,007 (the price she paid for the car) in general damages. Section 2714 breach of warranty damages would only entitle plaintiff to recover the difference between the actual value of the car she received and the value the car would have had if it had been sold in the warranted condition.
Plaintiff certainly cannot reach the $ 50,000 jurisdictional amount on general damages alone; the issue thus arises as to whether consequential and/or punitive damages are available to her.
Section 2714(c) of the Pennsylvania commercial code provides that consequential damages, as delineated under Section 2715, may be recovered for a breach of warranty. 13 Pa. C.S.A. § 2714(c). Section 2715(b) provides that consequential damages include (1) loss resulting from requirements of the buyer which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover, and ...