United States District Court, W.D. Pennsylvania
District Judge Joy Flowers Conti
REPORT AND RECOMMENDATION ECF NO. 5
MAUREEN P. KELLY, MAGISTRATE JUDGE
Richard Ward and Rebecca Ward ("Plaintiffs"), bring
this action against Latham Pool Products
("Latham"), for claims arising out of an allegedly
defective Latham-manufactured swimming pool shell installed
at their home by an authorized Latham dealer. Presently
before the Court is Latham's Motion to Dismiss for
Failure to State a Claim or, in the Alternative, for a More
Definite Statement, ECF No. 5, seeking the dismissal of
Plaintiffs' claims for breach of contract, violation of
the Magnuson Moss Warranty Act, 15 U.S.C. § 2301, et
seq., and the Pennsylvania Unfair Trade Practices and
Consumer Protection Law ("UTPCPL"), 73 P.S. §
201-1, et seq.
following reasons, it is respectfully recommended that the
Motion, ECF No. 5, be denied.
FACTUAL AND PROCEDURAL BACKGROUND
March 2016, Plaintiffs purchased a Viking Coronado fiberglass
pool shell through their then-contractor, Kelly Pools, to be
installed at their home in Upper St. Clair, Pennsylvania. The
shell was manufactured by Latham. Soon after installation,
Plaintiffs noticed "blistering, scratches and
blemishes" throughout the pool shell. ECF No. 1-1
¶¶ 1, 5-6. Plaintiffs notified Latham of the
defects and Latham attempted to repair the pool shell.
Id. ¶ 8. The repairs were deemed
unsatisfactory, and in September 2017, Plaintiffs requested
that Latham inspect the pool shell. Id.
¶¶9-10. Upon inspection, Latham advised Plaintiffs
that the pool shell was defective. Id. ¶ 11.
Latham offered a repair that would be a 75% color match or,
in lieu of repair, Latham would pay Plaintiffs $4, 000.
Id. ¶ 12. On April 17, 2018, Plaintiffs
rejected this offer and countered, requesting a repair of the
pool shell to "like new" condition, and
"assurances thereafter that any and all issues arising
from the defective pool shell or its repair, be immediately
attended to at no cost to me, the consumer. If the repair is
deemed to be reasonably unsatisfactory, replacement of the
pool shell in its entirety, at no cost to me would then be
expected." Id. ¶ 14.
string of emails attached to Plaintiffs' Complaint
indicates that on June 28, 2018, Latham's Warranty and
Repair Manager responded to Plaintiffs counter-offer,
indicating that "[a]lthough we feel that the Aquabright
product is the correct answer to this problem, we will abide
by your wishes and come up and re-gel coat the discolored
areas and have them match the rest of the pool. Since this is
a purely cosmetic issue I am assuming you are enjoying your
pool, so we can schedule this repair for the fall (pool
closing time). If that is not the case, please let me know
and we will get the repair scheduled sooner." ECF No.
1-1 at 26. Plaintiffs inquired, "[w]ill this solution
remedy the problem and restore it to like new condition with
the same warranty and guarantees that come along with a brand
new pool shell?" Id. at 25. Latham responded,
"Yes it will," and Plaintiffs stated, "Ok.
Let's get it scheduled then." Id. at 24.
assert that the attempted repair failed to return the pool
shell to a "like new" condition and requested that
Latham confirm it would replace the pool shell. Plaintiffs
allege that Latham has failed to honor its agreement as well
as its warranty regarding the condition of the pool shell.
initially filed this action in the Court of Common Pleas of
Allegheny County, Pennsylvania, bringing claims for breach of
contract (Count I); violation of the Magnuson Moss Warranty
Act, 15 U.S.C. § 2301, et seq. (Count II); and
violation of the UTPCPL (Count III). On June 14, 2019,
Defendants removed the state court action to this Court on
the basis of diversity jurisdiction. ECF No. 1. On August 5,
2019, Defendants filed a Motion to Dismiss for Failure to
State a Claim or, in the Alternative, for a More Definite
Statement. ECF No. 5. The parties have filed their briefs and
exhibits in support and in opposition thereto. ECF Nos. 6, 8
and 9. The Motion is ripe for consideration.
STANDARD OF REVIEW
complaint must be dismissed under Fed.R.Civ.P. 12(b)(6), if
it does not allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
plaintiff must aver "factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
a complaint 'does not need detailed factual allegations,
... a formulaic recitation of the elements of a cause of
action will not do.'" DelRio-Mocci v. Connolly
Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing
Twombly, 550 U.S. at 555). In other words,
"[f]actual allegations . must be enough to raise a right
to relief above the speculative level." Covington v.
Int'l Ass'n of Approved Basketball Officials,
710 F.3d 114, 118 (3d Cir. 2013) (internal citations and
quotation marks omitted). A court "take[s] as true all
the factual allegations in the Complaint and the reasonable
inferences that can be drawn from those facts, but...
disregard[s] legal conclusions and threadbare recitals of the
elements of a cause of action, ...