Appeal from the United States District Court For the Eastern District of Pennsylvania D.C. Civ.
BEFORE: BECKER, ROTH and MCKEE, Circuit Judges.
Opinion Filed: October 9, 1996
Panel Rehearing Granted and Opinion Vacated: November 4, 1996
Reargued: December 17, 1996
This appeal arises from a civil suit based on diversity jurisdiction brought by appellee, Fannie Harrison ("Harrison"), against appellant, Nissan Motor Corporation in U.S.A. ("Nissan"), seeking damages for alleged defects in the 1994 Nissan Sentra that Harrison purchased on July 11, 1994. Nissan moved to dismiss the complaint for failure to "first resort" to the informal dispute resolution procedure provided by Nissan pursuant to the Pennsylvania Automobile Lemon Law, 73 P.S. Section(s) 1951 et seq. (Purdon 1993). The district court denied the motion, and also denied Nissan's subsequent motion for reconsideration. Nissan has appealed from both orders.
Harrison submits that, because the district court has not entered a final order, the appeal should be dismissed for lack of appellate jurisdiction. Nissan rejoins that we have appellate jurisdiction under Section(s) 16 of the Federal Arbitration Act ("FAA"), 9 U.S.C. Section(s) 16, which allows an interlocutory appeal of an order denying a motion to compel arbitration under the FAA. Nissan argues that appellate jurisdiction lies under this provision because its motion to dismiss was a surrogate for a motion to compel arbitration. Harrison takes issue with this characterization, and also contends that the FAA does not apply to the informal ADR procedure provided by Nissan under the Lemon Law. We need not decide if Nissan's motion to dismiss is the functional equivalent of a motion to compel arbitration because we agree with Harrison's latter contention, and hence we will dismiss the appeal for lack of appellate jurisdiction.
Under the Pennsylvania Automobile Lemon Law ("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." 73 P.S. Section(s) 1958. However, the law requires the claimant to "first resort" to any alternative dispute resolution procedures that the manufacturer has established before initiating litigation. Id. Section(s) 1959. *fn1
By the terms of the Lemon Law, id., before a consumer must "first resort" to it, the alternative dispute resolution procedure provided by the manufacturer must comply with the Federal Trade Commission ("FTC") regulations, 16 C.F.R. pt. 703, promulgated under a cognate federal act, the Magnuson-Moss Warranty Act, 15 U.S.C. Section(s) 2301 et seq. The most important of these regulations for purposes of the case at bar requires alternative dispute resolution "mechanisms" to render a decision within forty days of notification of the dispute. Id. 703.5(d). The regulations provide that a "requirement that a consumer resort to the Mechanism prior to commencement of an action . . . shall be satisfied 40 days ...