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Spiro v. Allied Building ProductS Corp.

United States District Court, Third Circuit

September 17, 2013

MICHAEL SPIRO and DEBORAH SPIRO Plaintiffs,
v.
ALLIED BUILDING PRODUCTS CORP., PLY GEM HOLDINGS, INC., PLY GEM INDUSTRIES, INC., and MW MANUFACTURERS, INC. Defendants.

MEMORANDUM

RONALD L. BUCKWALTER, S.J.

Pending before the Court are Defendants Ply Gem Holdings, Inc. and Ply Gem Industries, Inc.’s Motion to Dismiss First Amended Complaint and Motion to Dismiss Cross-Claim. For the following reasons, the Motion to Dismiss First Amended Complaint and Motion to Dismiss Cross-Claim are denied in their entirety.

I. FACTUAL BACKGROUND

According to the facts set forth in the First Amended Complaint, Plaintiffs are a married couple residing in Pennsylvania. (First Am. Compl.¶ 1.) Defendant Allied Building Products Corp. (“Allied”) is New Jersey corporation with its principal place of business in New Jersey. (Id. ¶ 2.) Defendants Ply Gem Holdings, Inc. (“Ply Gem Holdings”), Ply Gem Industries, Inc. (“Ply Gem Industries”), and MW Manufacturers, Inc. (“MW”) are Delaware corporations with their principal places of business in North Carolina.[1] (Id. at ¶¶ 3-5).

Sometime around March or April 2011, Plaintiffs met with Bill Lutz (“Lutz”) and Philip Orapello (“Orapello”), representatives of Defendant Allied Building Products Corp., and Mike Ceceri, a representative of Defendants Ply Gem Holdings, Inc., Ply Gem Industries, Inc., and MW Manufacturers, Inc. (Id. ¶ 19.) Plaintiffs, Lutz, Orapello, and Ceceri discussed a possible sale of Ply Gem windows to Plaintiffs for installation in the new home they were building for themselves. (Id. ¶¶ 17, 21–24.) Lutz, Orapello, and Ceceri told Spiro that Defendants sold a two-and-a-half-inch-wide brickmould that would surround each window to be installed. (Id.¶ 21.) Plaintiffs explained that the two-and-a-half-inch-wide brickmould was critical in order to simplify the installation process, reducing labor costs. (Id. ¶ 22.) Plaintiffs also asked Lutz, Orapello, and Ceceri whether installing arched windows in the house would be a problem. (Id. at ¶ 23.) Lutz, Orapello, and Ceceri told Plaintiffs that arched windows would not be a problem, with Ceceri providing a sample. (Id. ¶ 24.) Over the next several months, Defendants would meet with Plaintiffs at several restaurants located in and around Philadelphia to discuss the Plaintiffs’ future home. (Id. ¶ 28.)

On January 5, 2012, Plaintiffs placed a order with Defendants for eight windows and other products, with a price totaling $31, 000. (Id. ¶¶ 31, 46.) The windows and other products were delivered to Plaintiffs in March or April of 2012. (Id. ¶ 34.) At that time, Plaintiffs discovered that the brickmould was only one inch wide. (Id. ¶ 36.) Plaintiffs also discovered that the French door that they had ordered did not match the size that they had specified in the blueprints that they had given to Defendants. (Id. ¶ 40.)

When Plaintiffs notified Defendant Allied and Ceceri of the problems with their order, Ceceri told Plaintiffs that the two-and-a-half-inch-wide brickmould would cost an additional $4, 000 to $5, 000. (Id. ¶ 38.) Ceceri also told Plaintiffs that arched windows were not possible with the products that Plaintiffs had ordered. (Id. ¶ 39.) Ceceri asked Plaintiffs not to complain to Defendants because he would likely lose his job. (Id. ¶ 41.) Plaintiffs spoke with representatives for Defendants who told them that Defendants would not provide windows that matched Plaintiffs’ specifications and would only provide replacement products at a cost to Plaintiffs. (Id. ¶ 42.) Rather than purchase new windows and products and delay construction, Plaintiffs elected to proceed with construction and install the windows and products Defendants had delivered. (Id. ¶ 44–45.) After installing the windows delivered by Defendants, Plaintiffs discovered rain flooding through six of the eight windows. (Id. ¶ 48.) As a result of having installed the windows and other products that Defendants sold, Plaintiffs allege damages.

On March 26, 2012, Plaintiffs initiated the present litigation. Following some initial motion practice, Plaintiffs filed a First Amended Complaint on May 20, 2013, setting forth five causes of action. Count I claims violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. (Id. ¶ 50–55.) Count II alleges common law fraud. (Id. ¶ 56–62.) Count III alleges breach of contract. (Id. ¶ 63–67.) Count IV alleges negligence. (Id. ¶ 68–72.) Count V claims Defendants are liable under a theory of strict products liability. (Id. ¶ 73– 79.)

On July 8, 2013, Defendant Allied filed cross-claims against Defendants Ply Gem Holdings, Ply Gem Industries, and MW, claiming that if Plaintiffs’ allegations are proven true, Defendants Ply Gem Holdings, Ply Gem Industries, and MW are solely liable for the damages to Plaintiffs. (Cross-cl. ¶ 2.)

On July 9, 2013, Defendants Ply Gem Holdings and Ply Gem Industries filed the pending Motion to Dismiss First Amended Complaint. On July 15, 2013, Ply Gem Holdings and Ply Gem Industries filed the pending Motion to Dismiss Cross-Claim. Defendants filed both motions pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. On July 23, 2013, Plaintiffs filed their Response in Opposition to the Motion to Dismiss First Amended Complaint.

II. STANDARD OF REVIEW

Motions to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) require the court to accept as true the allegations of the pleadings and all reasonable inferences therefrom, and to resolve all factual disputes in favor of the plaintiff. Fed.R.Civ.P. 12(b)(2); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The Rule, however, “does not limit the scope of the court’s review to the face of the pleadings”; rather the court must consider any affidavits submitted by the parties. Scott v. Lackey, No. Civ.A.02-1586, 2005 WL 2035598, at *1 (M.D. Pa. Aug. 11, 2005).

Although a defendant has the initial burden of raising the defense of lack of personal jurisdiction, once such a defense is raised, the burden shifts to the plaintiff to demonstrate facts that suffice to support an exercise of personal jurisdiction. Provident Nat. Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987); Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 401 F.Supp.2d 415, 418 (E.D. Pa. 2005). Plaintiff may do so through affidavits or competent evidence that show sufficient contacts with the forum state. De Lage Landen Fin. Servs., Inc. v. Rasa Floors, LP, No. Civ.A.08-0533, 2008 WL 4822033, at *3 (E.D. Pa. Nov. 4, 2008). Such contacts must be established with “reasonable particularity, ” to present a prima facie case. Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (quoting Provident, 819 F.2d at 437). If the plaintiff meets this ...


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