VOLKSWAGEN GROUP OF AMERICA, INC. AND NISSAN NORTH AMERICA, INC., TOYOTA MOTOR SALES USA, INC., AND KIA MOTORS AMERICA, INC.
KIMMEL & SILVERMAN AND DAVID J. GORBERG & ASSOC. APPEAL OF: KIMMEL & SILVERMAN, P.C.
Appeal from the Order Entered July 13, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 110503954 May Term, 2011
BEFORE: PANELLA, J, OLSON, J., and STRASSBURGER, J. [*]
Appellant Kimmel & Silverman, P.C. (K&S) appeals the trial court order granting summary judgment in favor of Volkswagen Group of America, Inc. (Volkswagen), Nissan North America, Inc. (Nissan), Toyota Motor Sales, Inc. (Toyota), and Kia Motors America, Inc. (Kia), (collectively, "Appellees"). We affirm, albeit on a different basis from the trial court.
K&S is a law firm which specializes in representing automobile purchasers who seek redress under Pennsylvania's Automobile Lemon Law (Lemon Law). From December 2009 through January 2011, K&S represented 17 separate automobile purchasers in Lemon Law actions filed against Appellees. Each of the 17 underlying claims was resolved through the Appellee manufacturers' informal dispute settlement procedure (IDSP), either through settlement with the manufacturer or an award from the arbitrator. See 73 Pa.C.S. § 1959. As a result, all 17 purchasers accepted and received a repurchase or replacement of their vehicles.
K&S's representation was provided at no cost to the purchasers. None of the IDSPs at issue allowed for the recovery of attorneys' fees, and none of the purchasers was awarded attorneys' fees as part of the IDSP settlement. Nonetheless, K&S obtained "assignments of rights" from each purchaser, purportedly allowing K&S to pursue the purchasers' "rights" to attorneys' fees under the Lemon Law. Trial Court Opinion, 11/2/2012, at 3. K&S then filed individual civil actions in the Philadelphia County Court of Common Pleas, claiming violation of the Lemon Law and seeking payment of legal fees associated with representing the 17 purchasers during the IDSPs.
On June 2, 2011, Volkswagen and Nissan filed an action seeking declaratory relief against K&S with respect to the alleged Lemon Law violations. K&S filed an answer and new matter on June 22, 2011, also seeking declaratory relief, claiming violations of the Lemon Law, the Magnuson-Moss Warranty Act (MMWA),  and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). Volkswagen and Nissan filed a reply to K&S's new matter on June 24, 2011. Toyota and Kia were given leave to intervene in the case and filed replies to new matter on November 30, 2011.
On December 15, 2011, Volkswagen and Nissan filed a motion for summary judgment, which Toyota and Kia joined on January 17, 2012. Also on January 17, 2012, K&S filed an answer to Appellees' motion and filed a cross-motion for summary judgment.
On March 14, 2012, the trial court held oral arguments on the parties' respective summary judgment motions. On July, 13, 2012, the trial court granted Appellees' motion for summary judgment and denied K&S's cross motion. This appeal followed. Both K&S and the trial court have complied with the provisions of Pa.R.A.P. 1925.
K&S's claims on appeal center around the issue of whether the Lemon Law, and by extension the MMWA and the UTPCPL, require an automobile manufacturer to pay attorneys' fees where the purchaser's dispute is resolved through an IDSP. K&S's Brief at viii-ix.
We begin with an evaluation of K&S's claims under the Lemon Law and the federal statute upon which it is based, the MMWA. The right to bring a cause of action under the Lemon Law lies with the purchaser of the allegedly defective automobile. See 73 P.S. § 1958. Similarly, the MMWA provides that a federal cause of action for a breach of a consumer warranty lies with the consumer. See 15 U.S.C. § 2310(d)(1). Under the terms of both the Lemon Law and the MMWA, before a purchaser may file a civil suit, he or she must first attempt to resolve the claim through the manufacturer's IDSP, if available. Specifically, the Lemon Law provides as follows.
§ 1959. Informal dispute settlement procedure
If the manufacturer has established an informal dispute settlement procedure which complies with the provisions of 16 CFR Pt. 703, as from time to time amended, the provisions of section  shall not apply to any purchaser who has not first resorted to such procedure as it relates to a remedy for defects or conditions affecting the substantial use, value or safety of the vehicle. The informal dispute settlement procedure shall not be ...