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WURTZ v. AMERICAN HONDA MOTOR CO.

April 8, 1997

SCOTT M. WURTZ AND SUSAN WURTZ, Plaintiffs,
v.
AMERICAN HONDA MOTOR CO., INC., Defendant.



The opinion of the court was delivered by: ROBRENO

 EDUARDO C. ROBRENO, J.

 April 8, 1997

 On March 8, 1996, plaintiffs purchased a new 1995 Honda Passport LX for $ 27,184.90. In connection with the purchase of the vehicle, the manufacturer of the automobile, who is the defendant in this case, issued plaintiffs several written warranties including a three-year or 36,000 mile warranty, as well as other standard warranties fully outlined in the warranty booklet. On April 22, 1996, plaintiffs returned the automobile to an authorized service and repair facility of the manufacturer for repair of an alleged defective alignment and chasis. During the next two months, plaintiffs took the vehicle back to the authorized repair facility on two occasions for unsuccessful attempts to cure the defective alignment and chasis, as well as to repair defective tire wear.

 On September 18, 1996, plaintiffs commenced the instant civil action seeking recovery under Pennsylvania's Automobile Lemon Law, the Magnuss-Moss Warranty Act, unspecified provisions of the Uniform Commercial Code, and Pennsylvania's Unfair Trade Practice and Consumer Protection Law.

 Presently before the Court is the defendant's motion to dismiss, or in the alternative for partial summary judgment as to count one of the complaint, brought under the Pennsylvania Lemon Law. For the reasons that follow, the motion for partial summary judgment will be granted. *fn1"

 I.

 Defendant has moved the Court to dismiss count one of the complaint, or in the alternative for partial summary judgment (doc. 3), plaintiffs have filed a response thereto (doc. no. 4), and defendant has filed a reply. (doc. no. 5) "If matters outside the pleadings are presented to the district court on a motion under [Rule 12(b)(6)], and the Court does not exclude them, the motion must be considered as one under Rule 56 and determined in accordance with summary judgment principles." Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992) (quoting 6 Moore's Federal Practice, § 56.02 at 56-27 (1991)). See also Carter v. Stanton, 405 U.S. 669, 671, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972) (per curiam). Since both parties in this case have presented matters outside the pleadings regarding the motion to dismiss, the Court will treat the motion to dismiss as a motion for summary judgment.

 (a)

 On a motion for summary judgment, the moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the movant has done so, however, a nonmoving party resisting a motion for summary judgment under Rule 56 cannot rest on its pleadings nor "rely merely upon bare associations, conclusory allegations or suspicions." Gans, 762 F.2d at 340 (quoting Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)). In "order to demonstrate the existence of a genuine issue of material fact, the nonmovant must supply sufficient evidence (not mere allegations) for a reasonable jury to find for the nonmovant," Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d Cir. 1996), and "must make a showing sufficient to establish the existence of every essential element to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also, Anderson v. Liberty Lobby Inc., 477 U.S. at 255. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. at 325. There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. To the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. In this regard, the "moving party need not support is motion [for summary judgment] with evidence disproving the nonmoving party's claim, but need only 'show--that is point out to the district court--that there is an absence of evidence to support the nonmoving party's case.'" Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (quoting Celotex, 477 U.S. at 322). See also Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996).

 (b)

 Under § 1958 of the Lemon Law, "any purchaser of a new motor vehicle who suffers any loss due to nonconformity of such vehicle as a result of the manufacturer's failure to comply with this act may bring a civil action in a court of common pleas and, in addition to other relief, shall be entitled to recover reasonable attorneys' fees and all court costs." 73 Pa. C.S. § 1958. However, § 1959 of the statute provides that if an automobile manufacturer has established an informal dispute settlement procedure which complies with the applicable regulations enacted by the Federal Trade Commission, 16 C.F.R. Pt. 703, then plaintiffs cannot thereafter file a Lemon Law claim without first resorting to such procedure. *fn2" Simply put, § 1959 of the Lemon Law prohibits the purchaser of an automobile ...


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