The opinion of the court was delivered by: Henry S. Perkin, M.J.
Presently before the Court is the Motion for Summary Judgment filed by the Defendants, Shu-Bee's, Inc. and Steve Stone Enterprises, Inc.*fn1 ("Shu-Bee's")(Dkt. No. 54), Plaintiff's Response to the Motion (Dkt. No. 71) filed on March 2, 2012; Plaintiff's Motion to Strike the Motion for Summary Judgment (Dkt. No. 70) filed on March 2, 2012, and the Defendants' Opposition to the Motion to Strike (Dkt. No. 73) filed on March 12, 2012. For the reasons that follow, the Motion for Summary Judgment will be granted and Plaintiff's Motion to Strike will be denied.
On February 19, 2010, Defendants Shu-Bee's, Inc. ("Shu-Bee's") and Steve Stone Enterprises, Inc. ("Steve Stone"), removed this case from the Court of Common Pleas of Philadelphia County. The case was assigned to the docket of the Honorable Lawrence F. Stengel. On March 7, 2010, Plaintiff filed an Amended Complaint with the following claims: Strict Liability against Shu-Bee's (Count I); Negligence against Shu-Bee's (Count II); Breach of Warranty against Shu-Bee's (Count III); Strict Liability against Steve Stone (Count IV); Negligence against Steve Stone (Count V); Breach of Warranty against Steve Stone (Count VI); Violation of Pennsylvania Unfair Trade and Practices and Consumer Protection Law against all Defendants (Count VII); and Intentional, Reckless or Negligent Representation against all Defendants (Count VIII). On January 4, 2011, Judge Stengel signed the consent and order referring this case to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. section 636(c) and Federal Rule of Civil Procedure 73.
Defendants filed a Third-Party Complaint against Crown Name United Co., Ltd. on March 2, 2010. See Dkt. No. 5. On March 3, 2011, Defendants filed a Notice of Voluntary Dismissal of Crown Name United Co., Ltd. See Dkt. No. 21. On February 10, the instant Motion for Summary Judgment was filed by the Defendants, Shu-Bee's, Inc. and Steve Stone Enterprises, Inc. On March 2, 2012, Plaintiff filed both the Response to the Motion and his Motion to Strike the Motion for Summary Judgment. On March 12, 2012, Defendants' Opposition to the Motion to Strike was filed and also on March 12, 2012, the parties stipulated that Steve Stone Enterprises, Inc. should be dismissed from this case with prejudice. See Dkt. No. 74. Defendant Shu-Bee's moves for summary judgment of Count VII of the Complaint under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") on the basis that the shoe covers were not used primarily for personal, family or household purposes and because Shu-Bee's contends that it has made no misrepresentation regarding the shoe covers. For the reasons that follow, Shu-Bee's Motion will be granted and Plaintiff's Motion to Strike the Motion for Summary Judgment will be denied.
Pursuant to Rule 56c) of the Federal Rules of Civil Procedure, summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56c). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.
To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Celotex, 477 U.S. at 325). The non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-323. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Id. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987). When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' - that is, pointing out to the District Court - that there is an absence of evidence to support the non-moving party's case." Jones v. Indiana Area Sch. Dist., 397 F. Supp.2d 628, 642 (W.D. Pa. 2005) (quoting Celotex, 477 U.S. at 325).
The UTPCPL permits "[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act [§ 201-3],. . ." to file a private action. 73 Pa. C.S. § 201-9.2. The UTPCPL does not define "purchaser" or "household purpose." Duffy v. Lawyer's Title Ins. Co., 21012 U.S. Dist. LEXIS 23674, *8 (E.D. Pa. Feb. 23, 2012)(citing In re Barker, 251 B.R. 250, 261-62 (Bankr. E.D. Pa. 2000)(loan broker violated UTPCPL by failing to disclose detrimental effect of refinancing loan)). Courts have generally taken a broad approach to what constitutes a sale or a purchaser under the act. Id. (citing Christopher v. First Mut. Corp., 2008 U.S. Dist. LEXIS 32781 (E.D. Pa. Apr. 21, 2008)). However, whether a purchase is used primarily for household purposes and a cause of action under the UTPCPL is available depends on the purpose of the purchase, not the type of product purchased. Novinger Grp., Inc. v. Hartford Ins., Inc., 514 F. Supp.2d 662 (M.D. Pa. 2007).
A. Plaintiff's Motion to Strike the Motion for Summary Judgment.
Plaintiff moves to strike the Motion for Summary Judgment on the basis that Defendant failed to comply with this Court's directive regarding a separate, short and concise statement of the material facts found in this Court's Scheduling Orders. The Scheduling Orders state the following:
Upon any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there shall be filed with the motion a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
Statements of material facts in support of or in opposition to a motion shall include references to the parts of the ...