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DeFebo v. Andersen Windows

September 3, 2009

DANIEL DEFEBO, PLAINTIFF,
v.
ANDERSEN WINDOWS, INC., AND HOME DEPOT U.S.A., INC., DEFENDANTS.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: MOTION TO DISMISS

Something like a gathering storm, this is one in an increasing number of cases where the plaintiff attempts to turn straightforward breach of contract and warranty claims into tort claims. Pennsylvania law is not hospitable to such attempts.

Presently before the Court is Defendant, Home Depot's, Motion to Dismiss. This case arises out of a purchase by Plaintiff of windows from Defendant Home Depot and manufactured by Defendant Andersen Windows. Plaintiff's Complaint alleged breach of contract, misrepresentation, breach of express warranty, breach of implied warranties, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). For the following reasons, the tort claims must be dismissed.

I. Background Information

A. Facts

Plaintiff, a resident of Pennsylvania, brings this Action against Andersen Windows, a Minnesota Corporation, and the Home Depot, a Georgia corporation, based on his purchase of windows and other materials from the Home Depot in 2007. Plaintiff alleges that he approached the Home Depot in May 2007 with construction plans prepared by an architect and requested that the Home Depot provide a quote for supplying windows from Andersen Windows , as specified in the plan. (Compl. ¶ 6). According to the Complaint, from May 2007 through September 2007, Plaintiff made various purchases from the Home Depot, which then sent Plaintiff invoices for those purchases, totaling $96,017.64. (Compl. ¶¶ 7-9).

Upon accepting and receiving the windows, Plaintiff alleges that his contractor installed the windows but was unable to install certain coverings, called jamb extensions, over the frames. (Compl. ¶¶ 11-15). Plaintiff alleges that upon examination of the windows and frames, he noticed that a misalignment of the frames for the casement windows and the arch windows prevented installation of the jamb extensions. (Compl. ¶¶ 16-17). Plaintiff also alleges that he suffered other problems with his purchase, including: (1) the width of the second-level arch windows was two inches narrower than the specifications in the provided Construction Plan; (2) a transom window unit had window panels of unequal width, resulting in an asymmetrical door and window; (3) the casement window units for the garage opened in the same direction, contrary to customary practice. (Compl. ¶ 18).

Due to these defective conditions, Plaintiff alleges he contacted Home Depot and Andersen Windows in September 2007. (Compl. ¶ 19). As a result, a Home Depot Sales Associate requested that Andersen Windows send a repairman to Plaintiff's property, and Plaintiff met with this individual in November 2007. (Compl. ¶¶ 20-21). The Andersen Windows representative agreed to ship additional lumber to Plaintiff to repair the windows and to return to install the extensions. (Compl. ¶ 22). Upon receipt of these materials, Plaintiff alleges he tried to contact the repairman, but his calls were not returned, so Plaintiff requested that his contractor install the new jamb extensions. (Compl. ¶¶ 23-24). However, Plaintiff alleges that the new extensions also could not be installed and that from November 2007 until February 2008 he attempted to contact both the Home Depot Sales Associate and the Andersen Windows representative, but he received no response. (Compl. ¶¶ 25-26).

Plaintiff alleges that in March or April 2008, he received a phone call from a regional manager for Andersen, who arranged another meeting at Plaintiff's property. (Compl. ¶ 27). According to Plaintiff, that meeting took place in April or May 2008 and was attended by himself, the Home Depot Sales Associate, the Andersen repairman and regional manager, and another Home Depot employee. (Compl. ¶ 28). Plaintiff alleges that the parties agreed the problems were legitimate and should be fixed. (Compl. ¶ 29). Plaintiff again received new jamb extensions, but alleges that they once again could not be installed. (Compl. ¶ 31). Furthermore, Plaintiff alleges that although Andersen agreed to ship a new transom window unit at the meeting, Plaintiff never received that unit. (Compl. ¶ 30, 32).

After repeated inquiries from April 2008 until September 2008, for which he allegedly received no response, Plaintiff purchased new materials from a different manufacturer. (Compl. ¶ 33-34). Plaintiff alleges that the Home Depot accepted the return of the transom window unit but did not refund the full purchase price and that the Home Depot refused to accept the return of the patio door. (Compl. ¶¶ 35-36). To proceed with the construction of his new home, Plaintiff further alleges he was forced to hire a contractor to create jamb extensions at an additional cost. (Compl. ¶ 38-39).

B. Procedural History

Based on these events, Plaintiff filed his Complaint in the Court of Common Pleas of Bucks County, Pennsylvania on June 12, 2009. (Doc. 1). The Complaint included five counts:

(1) breach of contract against Andersen Windows and the Home Depot; (2) misrepresentation against the Home Depot; (3) breach of express warranty against Andersen Windows; (4) breach of implied warranties of merchantability and fitness for a particular purpose against the home Depot; and (5) violation of the UTPCPL against Andersen Windows and the Home Depot.

Defendants removed the case to the Eastern District of Pennsylvania on July 7, 2009. (Doc. 1). Subsequently, both the Home Depot and Andersen Windows filed Motions to Dismiss the Complaint. (Docs. 3 and 5). Plaintiff filed a response to the Home Depot's Motion, (Doc. 8), but chose to address the issues raised in Andersen Windows's Motion by filing an Amended Complaint, (Docs. 10 and 11). This Court held a telephone conference on August 7, 2009 to determine how it should proceed in considering the Home Depot's Motion to Dismiss because the Plaintiff had subsequently amended the Complaint, but only as to Andersen Windows. (Doc. 13). The parties agreed that this Court would address Home Depot's Motion as to the Original Complaint because the arguments raised in that motion would not change given the Amended Complaint. That same day, Andersen Windows filed a Motion to Dismiss the Amended Complaint. (Doc. 14). In an ...


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