The opinion of the court was delivered by: O'neill, J.
On August 18, 2008, plaintiff Josiah Kuenzi filed a complaint against defendants EuroSport Cycles, Inc., Don Murray d/b/a EuroSport Cycles, Inc., Capital One Auto Finance, Inc. and John Does 1-10. The complaint alleges that defendants committed: (I) negligent misrepresentation; (II) fraudulent misrepresentation; (III) violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. § 201-1, et. seq.; (IV) breach of a contract/warranty; (V) conversion; (VI) violations of Articles III and IX of the Uniform Commercial Code; and (VII) violations of the Truth-in-Lending-Act, 15 U.S.C. § 1601, et. seq. On September 25, 2008, defendant Capital One filed its answer.
On October 9, 2008, Capital One served Kuenzi with a request for admissions. On November 4, 2008, I entered default judgment against defendant EuroSport.*fn1 On November 10, 2008 Kuenzi responded to Capital One's request for admissions. On December 16, 2008, I entered default judgment against defendant Murray.*fn2 On March 13, 2009, Capital One filed a motion for summary judgment.*fn3 On May 5, 2009, Kuenzi filed a response conceding withdrawal of counts I, II, IV and V against Capital One. Presently before me is Capital One's motion for summary judgment and Kuenzi's response thereto for the remaining claims against Capital One.
Kuenzi is a citizen of Pottstown, Pennsylvania. EuroSports is a corporation incorporated, and with its principle place of business, in Middlesex, New Jersey. Murray, at all relevant times, maintained his place of business in Cleveland, Ohio. Capital One is a corporation incorporated under the laws of Texas with its principle place of business in McLean, Virginia.
Kuenzi asserts that he attempted to purchase a 2003 BMW K1200 LT motorcycle from EuroSport and Murray. Kuenzi asserts that he received a buyer's order for the motorcycle from EuroSport and Murray on October 31, 2007 which stated the purchase price for the vehicle was $7,632.00.
Kuenzi applied to Capital One for financing of the motorcycle. Kuenzi alleges that Murray suggested that Kuenzi apply to Capital One. Capital One provided $7,500 in financing in the form of a "blank check." Kuenzi asserts that he tendered the check to Eurosport on November 4, 2007 in the amount of $7,500 and that Eurosport processed the check on November 6, 2007. Capital One sent a letter and accompanying disclosures regarding the motorcycle financing to Kuenzi dated November 9, 2007. The TILA disclosures listed the following relevant information: the "amount financed," the "finance charge," the "annual percentage rate" and the "total of payments." The total finance charge and the total amount paid were marked as estimates with an asterisk explaining that the "actual amount will vary based on the number of days to the first payment and the actual dates that scheduled monthly payments are received during the life of the loan." Kuenzi alleges that he has never seen several of the documents submitted by Capital One prior to this briefing. Kuenzi asserts that he did not receive the motorcycle.
Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact. Id. at 322-23. If the moving party sustains the burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See Anderson, 477 U.S. at 255. Rule 56(e) provides that when a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The adverse party therefore must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion, and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the "existence of disputed issues of material fact should be ascertained by resolving 'all inferences, doubts and issues of credibility against'" the moving party. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978), quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 878 (3d Cir. 1972).
This Court has federal question subject matter jurisdiction over plaintiff's TILA claim (count VII) pursuant to 28 U.S.C. § 1331. This Court has subject matter jurisdiction over the state law counts (I-VI) via supplemental jurisdiction pursuant to 28 U.S.C. § 1367*fn4 or diversity of citizenship pursuant 28 U.S.C. § 1332.*fn5
Kuenzi maintains claims alleging a violation of the UTPCPL (count III), a violation of the UCC Articles III and IX (count VI) and a violation of the TILA (count VII). Capital One argues that no violations occurred under the UTPCPL or the UCC because it was not a party to the sale of the motorcycle. Additionally, Capital One contends that Kuenzi failed to state a claim for the UCC violations. Capital One also argues that no TILA violation is warranted because Capital One's TILA ...