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KRUGER v. SUBARU OF AMERICA

March 9, 1998

ISAAK F. KRUGER EVONNE J. KRUGER, h/w
v.
SUBARU OF AMERICA, INC.



The opinion of the court was delivered by: DITTER

 Ditter, J.

 March 9, 1998

 In this case, the plaintiffs contend that they purchased a defective automobile manufactured by the defendant. The parties reached a settlement agreement that included the plaintiffs' returning the vehicle, but it has since been stolen making the agreement impossible to perform. *fn1" The defendant has now moved for summary judgment contending that the plaintiffs cannot "sustain their burden of proof regarding either defect in the subject vehicle or the appropriate measure of damages." (Def.'s Mot. for Summ. J. at 6). For the reasons that follow, I will grant in part and deny in part the defendant's motion.

 I. STANDARD OF REVIEW

 I must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). I must resolve all inferences, doubts, and credibility questions in favor of the non-moving party; however, the non-moving party must do more than merely rely on the allegations in its complaint. Rather, it must produce evidence which would reasonably support a jury verdict in its favor. See Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996) (stating that if moving party carries its burden of showing absence of genuine issue of fact, "the opponent may not rest on allegations in pleadings, but must counter with specific facts which demonstrate that there exists a genuine issue for trial").

 II. FACTUAL BACKGROUND

 The Krugers purchased a new 1995 Subaru Legacy from Wilkie Subaru for $ 23,983.19 on or about October 28, 1994. *fn2" In connection with the sale, Subaru provided the Krugers with a limited warranty for three years or 36,000 miles. Shortly after the Krugers' purchase, on November 2, 1994, Wilkie repair invoices reveal that the plaintiffs had the car towed to Wilkie because the engine had overheated, there was no oil in the engine, and the engine was making a loud, tapping noise. Wilkie removed and replaced a radiator hose and the thermostat. On November 17, 1994, the plaintiffs returned the car to Wilkie for a road test because they had heard a loud, crunching-type noise when braking. Wilkie then resurfaced the front brake rotors. On December 14, 1994, the plaintiffs again requested that Wilkie check the brakes because a "loud krunching [sic] type noise" occurred when they applied the brakes. Wilkie modified the front struts. On January 12, 1995, the car was again road tested for the loud, groaning-type noise that accompanied braking. Wilkie determined that the brakes were "excessively warped" and removed and replaced both front brake rotors and disks. Finally, on February 17, 1995, Wilkie performed another road test to investigate the noise coming from the brakes and resurfaced the front brake rotors. Although the Krugers state in their memorandum of law that on or about May 23, 1995, they returned to Wilkie for repairs to the brakes, they do not submit any evidence of further repairs (i.e., a repair invoice for that date) after February of 1995, and the Krugers admit that prior to their bringing this action, the brakes had never failed to stop the car. It was only after they filed the complaint that Mrs. Kruger alleges that the brakes failed, causing a collision.

 The Krugers filed their complaint on June 19, 1995. In their complaint, they alleged the following causes of action: count one, under the Pennsylvania Automobile Lemon Law, 73 Pa. Stat. Ann. §§ 1951-1963; *fn3" count two, under the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. § 2301 et seq. ; count three, under the Uniform Commercial Code, 13 Pa. Cons. Stat. Ann. § 1101 et seq. ; and count four, under the Pennsylvania Unfair Trade Practices and Consumer Protection Act (UTPCPL), 73 Pa. Stat. Ann. § 201-1 et seq.

 The parties proceeded to arbitration where Evonne Kruger testified that on June 27, 1995, after a car she was following stopped unexpectedly, she applied the brakes but the brakes partially failed causing her to slide into the car ahead of her. *fn4" As a result of the arbitration proceedings, the plaintiffs recovered a verdict in their favor solely on the Lemon Law claim. Subaru demanded a trial de novo. Subsequently, the parties settled the matter; *fn5" however, before the Krugers were scheduled to return the car to Subaru as required pursuant to settlement agreement, it was stolen in October of 1996.

 III. DISCUSSION

 A. Plaintiffs have shown genuine issue of fact regarding liability on their breach of warranty claims.

 The parties agree that the case is now proceeding solely on the plaintiffs' breach of warranty claims, i.e., counts II through IV. Consequent to this narrowing of the plaintiffs' case, Subaru first argues that the Krugers have not shown that it breached any warranty because they have not offered sufficient evidence that there was a defect with the car.

 Under Pennsylvania law, in order to prove a breach of warranty, a party must prove, either by direct or circumstantial evidence, that the product was defective. *fn6" See generally Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992). If a party chooses to prove the defect by circumstantial evidence, it must negate abnormal use and reasonable secondary causes. Id. However, I find in this case that ...


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