The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
On June 14, 2010, Plaintiff Katherine A. Frey ("Frey") brought this civil action in state court seeking relief because of various problems she was having with a 2009 Damon Avanti class A motor home ("motor home"), manufactured by Defendant Damon Motor Coach*fn1 ("Damon") and purchased from Grumbine's RV*fn2 ("Grumbine's") on October 28, 2009. Frey alleges that the motor home was defective and seeks damages for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of the warranty of merchantability, breach of the warranty of fitness for a particular purpose, and misrepresentation. Frey also seeks to revoke her acceptance of the motor home and rescind the contract.
On July 14, 2010, Damon and Grumbine's removed the case to federal court and promptly filed motions to dismiss the complaint. (See Docs. 1-3.) Those motions have been fully briefed and are ripe for disposition.
For the purpose of disposing of Damon's and Grumbine's motions to dismiss, the court takes the following allegations made by Frey in her complaint as true. On October 28, 2009, Frey entered into an agreement to purchase a 2009 Damon Avanti class A motor home from Grumbine's for Ninety Seven Thousand Nine Hundred Eighty Four Dollars and sixty-five cents ($97,984.65). (Doc. 1-2, Compl. ¶ 6.) Prior to the purchase date, Frey had not seen the actual motor home she was purchasing as she had searched for the motor home over the internet and made the deal sight unseen over the phone with a Grumbine's salesman. (Id. ¶ 8.)
On October 28, 2009, Frey inspected the motor home while an employee from the service department went over the operation of the motor home's systems with her husband. (Id. ¶ 9.) During her inspection, Frey found numerous problems, which she reported to Grumbine's. (Id. ¶¶ 10-11; see also, Ex. B. to Compl., Repair List.) Grumbine's assured Frey that the motor home was new and that they would repair all of problems that she identified. (Compl. ¶ 11.)
On the night of the purchase, Frey drove the motor home to her home in Winfield, Pennsylvania, which is approximately sixty miles from Grumbine's. (Id. ¶ 12.) It was raining the entire ride. Once home, Frey found standing water throughout the inside of the motor home from the bathroom area to the driver's area. (Id. ¶ 13.) While searching for the source of the water, Frey also found that the sink drain was leaking, but this was not the cause of the water on the floor. (Id. ¶ 14.) That evening, Frey sent an e-mail to an employee of Grumbine's whom they were previously told to contact with any problems. (Id. ¶¶ 11(d), 15.)
On November 2, 2009, Frey called Grumbine's and scheduled an appointment for November 12, 2009, to have the problems repaired. (Id. ¶ 16.) Days later, on November 5, 2009, Frey took the motor home to a dealer to have a towing system installed on her car and the motor home. During this appointment, Frey found that the furnace worked only sporadically, the leveling jacks would not retract, and the shifter would not move out of the park position. (Id. ¶ 17.)
On November 12, 2009, Frey and a friend took the motor home to Grumbine's along with a list of the problems to be repaired. (Id. ¶ 18.) On November 16, 2009, Frey returned to Grumbine's to pick up the motor home. They were aware that not everything had been repaired, but wanted to use the motor home for an overnight camping trip. When they arrived at Grumbine's, they met with Grumbine's service manager, Jim Landvater, in order to try out the motor home's operating systems and to check for any additional problems. Mr. Landvater assured Frey that there were no problems with the leveling jacks, but when he tried them they again malfunctioned. (Id. ¶ 21.) After waiting for Grumbine's to try to resolve the problem, Frey and her husband decided to return home rather than take the motor home on their planned trip. Prior to leaving, Frey spoke to another service manager, Kim Yaeger, as well as the general manager, Greg Bortner, both of whom assured her that they would keep track of the repairs and update her on the progress. (Id. ¶ 23.)
On December 2, 2009, Frey and her husband returned to Grumbine's to pick up the motor home upon their assurance that all repairs were completed except replacement of the carpet in the bedroom area. (Id. ¶ 24.) While at Grumbine's, Frey tested the leveling jacks and they again failed to function properly. (Id. ¶ 25.) This problem was fixed by Grumbine's that day, and Frey was able to drive the vehicle home.
On December 15, 2009, Frey and a friend attempted an overnight trip, but it was unsuccessful because the furnace in the motor home did not work. On that same day, Frey called Grumbine's who authorized her to take the motor home to a local dealer in Selinsgrove for repair of the furnace. The dealer purged the gas lines of stale gas and got the furnace to work.
On December 26, 2009, Frey found water on the dash board from a leak at the top of the windshield, and water on the floor just behind the carpeted area of the driver's seat. Additionally, the automatic step would not retract and wires were continually exposed underneath the dining banquet "when the slide-out was extended." (Id. ¶ 28.) On December 28, 2009, Frey called Grumbine's to report the problems to Kim Yaeger, and informed her that they would be leaving for a trip to Florida the next day. Ms. Yaeger agreed to send a technician to Frey's house for repairs since the motor home could not be driven with the step in the extended position. On December 29, 2009, a technician arrived at Frey's home to apply sealant to the windshield, attach wires under the dining banquet, and repair the step by removing gravel that had blocked the magnet switch to operate the automatic steps. (Id. ¶ 30.) The technician informed Frey that if the leaks continued she should ask for a seal test to check for leaks. (Id.)
On January 16, 2010, Frey's husband entered the motor home and again found the front driver/passenger area carpet soaking wet and the floor in the bathroom wet. (Id. ¶ 31.) On January 18, 2010, Frey and a friend returned the motor home to Grumbine's for additional repairs. Frey requested a seal test, reported the wires under the banquet were again unattached and exposed when the slide-out was extended, and requested new bedroom carpeting as it was dirty when the unit was purchased and would not come clean. (Id. ¶ 32.) On February 4, 2010, Frey and a friend picked-up the motor home from Grumbine's. While in their possession, Grumbine's had replaced "the seal on the slide-out, attached the wires under the dining banquet, and cleaned the carpet in the bedroom area." (Id. ¶ 35.) On February 28, 2010, Frey again checked the motor home and found standing water on the floor behind the driver/passenger area. (Id. ¶ 37.)
On June 14, 2010, Frey filed a complaint in the Court of Common Pleas in Dauphin County, Pennsylvania, case no. 2010-CV-7908-CV, against Defendants Grumbine's RV, Damon Motor Coach, and Meyer's RV Centers, LLC. On July 14, 2010, Defendants filed a Notice of Removal. (Doc. 1.) On July 19, 2010, Defendants filed their motions to dismiss. (See Docs. 2-3.) On July 29, 2010, Defendants filed their briefs in support. (See Docs. 7-8.) On August 9, 2010, Frey filed a motion to remand, as well as a motion to stay briefing of Defendants' motions to dismiss. (Docs. 10, 12.) Frey's motion to remand contested whether there was complete diversity of citizenship between the parties. On August 10, 2010, the court granted Frey's motion to stay briefing of Defendants' motion to dismiss. (Doc. 16.).
By memorandum and order dated September 15, 2010, the court denied Frey's motion for remand finding that there was complete diversity of citizenship of all parties. (See Doc. 20.) In the accompanying order, the court issued new briefing deadlines for Defendants' motions to dismiss. On September 29, 2010, Frey filed her briefs in opposition to Defendants' motions to dismiss. (Docs.21-22.) On October 8, 2010, Grumbine's and Damon filed their respective reply briefs. (Docs. 23-24.)
When presented with a motion to dismiss for failure to state a claim, the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions," Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), and ultimately must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, ___U.S.___, 129 S.Ct. 1937, 1950 (2009)).
The complaint must do more than allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Fowler, 578 F.3d at 211 (citations omitted). As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a) (alterations in original).) In other words, a claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id.
"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotation omitted). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Because subject matter jurisdiction in this case is based on diversity of citizenship, the court looks to the substantive law of Pennsylvania to determine the rights and obligations of the parties. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77 (1938). The law of the Commonwealth is declared by "its Legislature in a statute or by its highest court." Id. The Pennsylvania Supreme Court is the best authority on Pennsylvania law, but when the Supreme Court has not issued a clear pronouncement in a particular area, the court "must consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data" to determine what the law is. McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 661, 663 (3d Cir. 1980); see also Comm'r v. Estate of Bosch, 387 U.S. 456, 465 (1967). Opinions from lower Pennsylvania courts are not controlling, but they are entitled to significant weight when there is no indication that the Pennsylvania Supreme Court would rule otherwise.
A. Damon's Motion to Dismiss
Damon argues that since it was the manufacturer of the motor home, not the seller, there was no contract between it and Frey, and Frey's claims for breach of contract, breach of good faith and fair dealing, and rescission of contract should be dismissed. Damon further argues that Plaintiff's claims for breach of the implied warranty of merchantability should be dismissed because the damages sought in the complaint are not recoverable under the Uniform Commercial Code. Damon argues that Frey's claim for breach of the implied warranty of fitness for a particular purpose should be dismissed because Frey did not purchase the motor home for a particular or extra-ordinary purpose. In addition, Damon argues that Frey's misrepresentation claim cannot succeed because no contract existed between it and Frey and her reliance on the Restatement (Second) of Torts § 557 is misplaced. Finally, Damon argues that Frey's revocation of acceptance is invalid because Frey accepted no goods from Damon, and thus, necessarily cannot revoke acceptance of those goods. The court will address each of these issues in turn.
Under Pennsylvania law, the elements required to establish a breach of contract claim are (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resulting damages. Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003); J.F. Walker Co., Inc. v. Excaliber Oil Grp., Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002). Damon challenges whether Frey can meet the first element.
In her complaint, Frey identifies Damon as "a business entity who manufactures motor homes." (Doc. 1-2, Compl. ¶ 4.) She does not explicitly mention that Damon is responsible for manufacturing the motor home that she purchased, although this fact can reasonably be inferred from her allegation that she contracted to purchase a "2009 Damon Avanti class A motor home from Grumbine's." (Id. ¶ 6.) In Count I of her complaint, Frey asserts that she "contracted to buy a new motor home from Grumbine's." (Id. ¶ 40.) Although Frey states that "Defendants" (plural) have breached this contract, there are no averments which indicate that any contract exists as between Frey and Damon.
Attached to Frey's complaint are numerous documents, but is unclear whether Frey believes that any of them are actually the purchase contract. (See Doc. 1-2, Compl., Exs. A-C.) In fact, not much is clear from the attached documents as all of them are so blurry that they are either illegible or only partially legible.
The simple fact of the matter is that nowhere in the complaint does Frey allege facts raising the inference that a contract exists between her and Damon, let alone facts that "show" the existence of a contract. Accordingly, because Frey cannot meet the first, and most basic, element of a breach of contract claim-the existence of a contract-this cause of action against Damon fails as a matter of law. Although the court must grant leave to amend a complaint that is merely deficient, Frey's factual allegations regarding a contract between her and Damon are not merely deficient, but rather, nonexistent. Thus, the court concludes that leave to amend would be futile and will grant Damon's motion to dismiss Count I of Frey's complaint without further leave to amend.
2. Claims Linked to Claim for Breach of Contract
The failure of Frey to allege a breach of contract action as between her and Damon is fatal to Frey's claims against Damon for breach of the implied covenant of good faith and fair dealing, and rescission (Counts II and VII).
In Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. Ct. 1992), the Pennsylvania Superior Court recognized that there was a general duty of good faith and fair dealing in the performance of contracts in Pennsylvania. The same court has also made it clear that while this duty exists, it exists as part and parcel of a claim for breach of contract, not as an independent cause of action. See LSI Title Agency, Inc. v. Evaluation Services, Inc., 951 A.2d 384, 391 (Pa. Super. 2008); See also Meyer v. Cuna Mut. Grp., 2007 WL 2907276, * 14 (W.D. Pa. Sept. 28, 2007) (stating "[a] party is generally precluded from maintaining a claim for the breach of an implied duty of good faith and fair dealing separate and distinct from the underlying breach of contract claim.") Accordingly, because Frey cannot maintain a breach of contract claim against Damon, she cannot maintain a claim for breach of an implied duty of good faith and fair dealing. Thus, Count II of Frey's complaint against Damon will be dismissed.
The same applies for her claim in Count VII where she alleges a right to rescind the contract: In order to rescind a contract there must be a contract to rescind. Thus, because Frey cannot maintain a breach of contract claim against Damon, she cannot maintain her claims for rescission and Count VII will also be dismissed as against Damon.
3. Claims for Breach of Implied Warranty of Merchantability and Fitness for Particular Purpose
In Counts III and IV of her complaint, Frey asserts breach of warranty claims alleging that Damon violated the implied warranties of merchantability and fitness for a particular purpose. As to the former, Damon argues that Frey's merchantability claim fails because the damages sought are not recoverable under the Uniform Commercial Code ("UCC"). As to the latter, Damon asserts that Frey has not alleged that the motor home was for a particular purpose, but rather the ordinary use of a motor home -- for recreational purposes or camping and traveling. The court will address each of these issues in turn.
a. Implied Warranty of Merchantability
The implied warranty of merchantability serves to protect buyers from loss where goods purchased are below commercial standards. See Borden, Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa. Super Ct. 1997). Here, Damon argues not that the warranty itself is inapplicable, but rather that Frey is not entitled to seek recovery of a refund of the purchase price, damages for loss of use, damages for incomplete repairs, damages for mental distress, damages for continued loss of use and enjoyment of the motor home, or attorney's fees for breach of the implied warranty of merchantability.
In her complaint, Frey alleges that as a result of Defendants' breach of the implied warranty of merchantability, she has suffered damages, "including but not limited to: (a) Inability to use the motor home since the contract date; (b) Inability to have the motor home fully repaired since the contract date; (c) Mental distress as a direct and proximate result of Defendants' breach; and (d) Continued loss of use and enjoyment of the motor home." (Doc. 1-2, Compl. ¶ 58.) As a result of these damages, Frey requests an award of the purchase price of the motor home -- $97,984.65 -- in exchange for her return of the motor home, as well as attorney's fees, and any other relief that may be just and proper. (Id.) Thus, in essence, Frey asks the court to make her whole and put her in the place that she would have been absent Defendants' alleged breach of the warranty of merchantability.
The measure of damages for breach of warranty under the UCC "is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount," 13 Pa. Cons. Stat. § 2714(b), however, the UCC also provides that "[i]n a proper case any incidental and consequential damages under section 2715 . . . may also be recovered, id. § 2714(c). Included in the list of incidental and consequential damages that are recoverable are "any other reasonable expense incident to the delay or other breach," id. § 2715(a)(3), and "any loss resulting from [the] general . . ...