The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: HOME DEPOT U.S.A., INC.'S MOTION TO DISMISS COUNT IV OF SECOND AMENDED COMPLAINT
Presently before the Court is Defendant Home Depot U.S.A., Inc.'s ("Home Depot") Motion to Dismiss Count IV of Plaintiff's Second Amended Complaint (Docket No. 29). As noted in this Court's September 3, 2009 Memorandum in this case, which addressed Home Depot's prior Motion to Dismiss various counts in the Complaint, the subject dispute arises between a purchaser of windows and the seller and manufacturer of those windows. See DeFebo v. Andersen Windows, Inc., No. 09-2993, 2009 WL 2837684, at *1-2 (E.D.Pa. Sept. 03, 2009). For the reasons that follow, the Motion will be granted.
I. Factual and Procedural History
The Court detailed the factual allegations in this case in its September 3, 2009 Memorandum. See Defebo, 2009 WL 2837684, at *1-2. The Court assumes the parties' familiarity with those facts and sets forth the background relevant to the pending Motion below.
A. Underlying Events and Complaint
Plaintiff Daniel Defebo's ("Defebo") Complaint (Docket No. 1, Ex. A-2) alleged that he was unable to install jamb extensions onto windows that he had specially ordered from Home Depot and that Defendant Anderson Windows ("Andersen") had manufactured. Defebo alleged that the misalignment between the arched windows and the casement windows manufactured by Andersen caused the installation problems. (Compl. ¶¶ 13-17.) According to the Complaint, Defebo experienced problems with several other Anderson products that he had ordered from Home Depot, including a door and other windows. (Compl.¶ 18.) Defebo further alleged that after several unsuccessful attempts to have Home Depot and Andersen rectify the problem, he purchased new products from a different manufacturer. (Compl. ¶¶ 19-39.) The Complaint alleges that Home Depot accepted the return of the windows but did not refund the full purchase price, and refused to accept the return of the patio door. (Compl. ¶¶ 35-36.)
Based on these events, Defebo filed his Complaint in the Court of Common Pleas of Bucks County, Pennsylvania on June 12, 2009 that included breach of contract, misrepresentation, and breach of implied warranties of merchantability and fitness for a particular purposes claims (Counts I-IV), and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. 201-1, et seq., (Count V) against Home Depot. Specifically, Defebo's UTPCPL claim alleged that "Home Depot engaged in fraudulent conduct in misrepresenting to Defebo the skill and expertise of its employees in reviewing construction plans, and selecting and furnishing suitable Andersen Windows products." (Compl. ¶ 72.) The Complaint then provided that "[a]s a result of Home Depot's misrepresentation, Defebo entered into the contract to purchase Andersen windows." (Compl. ¶ 73.)
On July 7, 2009, Defendants removed the case to the Eastern District of Pennsylvania (Docket No. 1).
B. Home Depot's First Motion to Dismiss
Defendants subsequently filed Motions to Dismiss the Complaint (Docket Nos. 3, 5). Home Depot's Motion to Dismiss sought to dismiss Defebo's misrepresentation and UTPCPL claims. On September 3, 2009, the Court granted Home Depot's Motion to Dismiss with leave for Defebo to amend the UTPCPL count. Defebo, 2009 WL 2837684, at *9.
With respect to the UTPCPL claim, the Court found that the economic loss doctrine bars recovery in tort actions, and that Defebo failed to establish that his allegations of intentional or fraudulent misrepresentation fell within a recognized exception to the economic loss doctrine.
Id. at *6-9. Despite "seemingly conflicting holdings" from lower state and federal courts, the Court determined that it was "bound by a Third Circuit decision" predicting that the Pennsylvania Supreme Court would rule that the economic loss doctrine barred a UTPCPL claim where "the tort claims are clearly intertwined with, rather than extraneous to, the contract claims." Id. at *7-8. The Court then found that Defebo's "intentional fraud claims are clearly interwoven with the breach of contract claim." Id. at *8. Accordingly, the Court dismissed Defebo's UTPCPL count with leave to amend in order "to state a claim that has been approved by a court applying Pennsylvania law," such as "facts that support a claim for damages that does not implicate the economic loss doctrine or that falls within the exception to that doctrine for fraud claims that are not intertwined with breach of contract claims." Id.
C. Second Amended Complaint
On October 29, 2009, Defebo filed a Second Amended Complaint. (Docket No. 28.) In setting forth the relevant facts, Defebo modified his allegations to emphasize that Home Depot "represented" to him that it would repair the defects and "promise[d] to install the newly supplied extension jambs." (Compl. ¶¶ 24, 25, 28, & 36.) Defebo also added an allegation detailing that "[a]lthough the windows are an integrated part of [his] custom ...