Opinion
Civil Action No. 19-695
10-09-2019
RICHARD WARD and REBECCA WARD, Plaintiffs, v. LATHAM POOL PRODUCTS, INC., Defendant.
District Judge Joy Flowers Conti
ECF No. 5 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiffs 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.
For the following reasons, it is respectfully recommended that the Motion, ECF No. 5, be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
In 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.
A string of emails attached to Plaintiffs' Complaint indicates that on June 28, 2018, Latham's Warranty and Repair Manager responded to Plaintiff's 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.
Plaintiffs 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.
Plaintiffs 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.
B. STANDARD OF REVIEW
A 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).
"Though 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, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
"[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, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Finally, in deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents. See, e.g., Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court therefore has considered the relevant correspondence between the parties attached to Plaintiffs' Complaint at Exhibits A, B and C.
Latham alternatively moves for an Order requiring Plaintiff to file a more definite statement of each claim alleged in the Complaint. "A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. Fed. R. Civ. P. 12(e). "Typically, the court restricts the use of this motion to pleadings suffering from 'unintelligibility rather than the want of detail.'" Konold v. Superior Int'l Indus. Inc., 911 F. Supp. 2d 303, 309 (W.D. Pa. 2012) (quoting Retzlaff v. Horace Mann Ins., 738 F. Supp. 2d 564, 568-69 (D. Del. 2010), and United States. v. Bd. of Harbor Comm'rs, 73 F.R.D. 460, 462 (D. Del. 1977)).
C. DISCUSSION
1. Motion to Dismiss
a. Breach of contract claim (Count I)
Latham moves to dismiss Plaintiffs' breach of contract claim, claiming that Plaintiffs have not alleged sufficient facts establishing the "required meeting of the minds between the parties" to support the existence of a "legally and enforceable contract." ECF No. 6 at 8. In particular, Latham contends that Plaintiffs have not established that Latham agreed to restore the pool shell to "like new" condition, provide assurances that any and all issues arising from the defective pool shell would be addressed at no cost to Plaintiff, or that Latham would replace the pool shell if the repairs were deemed unsatisfactory. Id.
As an initial matter, the Court notes that the parties do not dispute that Pennsylvania law applies to Plaintiffs' breach of contract claim. To succeed on a breach of contract claim under Pennsylvania law, a plaintiff must prove: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. Hearbest, Inc. v. Adecco USA, No. 13-1026, 2014 WL 7183478, *4 (W.D. Pa. Dec. 14, 2014) (citing McShea v. City of Philadelphia, 995 A.2d 334, 340 (Pa. 2010)). "A contract is enforceable when the parties reach mutual agreement, exchange consideration, and have set forth the terms of their bargain with sufficient clarity." Id. at *5 (citing Great N. Ins. Co. v. ADT Sec. Servs., Inc., 517 F. Supp. 2d 723, 736 (W.D. Pa. 2007)).
"It is black letter law that in order to form an enforceable contract, there must be an offer, acceptance, consideration or mutual meeting of the minds." Jenkins v. County of Schuylkill, 658 A.2d 380, 383 (Pa. Super. 1995). An offer may be accepted by conduct and what the parties do pursuant to the offer is germane to show whether the offer is accepted. O'Brien v. Nationwide Mut. Ins. Co., 689 A.2d 254, 259 (Pa. Super. 1997); Accu-Weather, Inc. v. Thomas Broadcasting Co., 625 A.2d 75, 78 (1993). "Whether particular conduct expresses an offer and acceptance must be determined on the basis of what a reasonable person in the position of the parties would be led to understand by such conduct under all of the surrounding circumstances." Temple University Hospital, Inc. v. Healthcare Management Alternatives, Inc., 764 A.2d 587, 593 (Pa. Super. 2000), (quoting John Edward Murray, Jr., Murray on Contracts § 37, at 82 (3rd ed. 1990))
In the instant case, Plaintiffs allege the existence of a settlement agreement and Latham's breach. By email, Plaintiff set forth a counteroffer to Latham's proposed remedy of the admittedly defective pool shell. ECF No. 1-1 ¶¶ 12-14. Latham responded to Plaintiffs' counteroffer stating, "[w]e will abide by your wishes," and further represented that the pool would be "like new condition with the same warranty and guarantees that come along with a brand new pool shell." Id. Coupled with allegations concerning the subsequent measures undertaken by Latham to repair the shell, Plaintiffs' Complaint appears, at this stage of the litigation, to sufficiently allege Latham's acceptance of the terms of Plaintiffs' counter-offer. From the allegations and exhibits to the Complaint, it may reasonably be inferred that the parties reached a settlement agreement as to the terms of Latham's repair and/or replacement of the defective pool shell and that, rather than reject Plaintiffs' terms, Latham commenced performance. Because Plaintiffs sufficiently allege the specific terms, acceptance, and breach of an enforceable agreement, it is recommended that Latham's Motion to Dismiss Count I of the Complaint be denied.
b. Magnuson Moss Warranty claim (Count II)
Latham next seeks dismissal of the Plaintiffs' claim for breach of warranty pursuant to the Magnuson Moss Warranty Act, 15 U.S.C. § 2301, et seq. ("MMWA"). Latham contends that because the Complaint does not contain a copy of the underlying warranty, and because Plaintiffs fail to plead the terms of an alleged warranty, the MMWA claim must be dismissed. ECF No. 6 at 9. Plaintiffs respond that their MMWA claim arises from the breach of express warranties related to the performance of the pool shell and Latham's promise (and failure) to repair the pool shell in accordance with its warranty. ECF No. 8 at 9-11. Plaintiffs further contend that Latham admits the existence of an express warranty and that the relevant obligations thereunder are sufficiently set forth in the Complaint to state a MMWA claim. Id.
The MMWA authorizes any consumer "damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty ... [or] implied warranty" to file a suit for damages or equitable relief. 15 U.S.C. § 2310(d)(1). The term "written warranty" includes "any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation ... becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product." 15 U.S.C. § 2301(6)(B). Implied warranty "means an implied warranty arising under State law ... in connection with the sale by a supplier of a consumer product." 15 U.S.C. § 2301(7). MMWA claims stemming from the breach of express or implied warranties under state law rely on the sufficiency of the underlying state law claims. Pack v. Thor Motor Coach, No. CV 19-503, 2019 WL 2577634, at *4 (E.D. Pa. June 24, 2019) (citing Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 WL 5381381, at *8 (E.D. Pa. Nov. 2, 2012)).
Under Pennsylvania law, an express warranty is created by:
(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.13 Pa. Cons. Stat. § 2313(a).
(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(3) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
In order to survive a motion to dismiss, a complaint asserting a claim for breach of an express warranty must "provide more than 'bald assertions,' and identify specific affirmations by Defendant that could be found to constitute an express warranty." Fleischer v. Fiber Composites, LLC, 2012 WL 5381381 at *4 (quoting Snyder v. Farnam Cos., Inc., 792 F. Supp. 2d 712, 722 (D.N.J. 2011)). A complaint does not survive a motion to dismiss when it contains "a bare allegation that there was a general warranty for a 'sound, quality product' that would be 'in good working condition'" without any other supportive averments. Xia Zhao v. Skinner Engine Co., No. 11-7514, 2012 WL 5451817, at *10 (E.D. Pa. Nov. 8, 2012).
Here, despite the omission of a copy of the underlying written warranty, certain terms of Latham's alleged express warranties are set forth throughout the Complaint, and include specific representations that the pool shell finish is "engineered to last a lifetime," providing "years of maintenance free quality." ECF No. 1-1 ¶¶ 48, 52. Latham further warrants that it "stands behind every pool" with a documented track record of "quality and customer service." Id. ¶ 49. Latham reiterated its commitment to continue existing warranty obligations in correspondence attached to Plaintiffs' Complaint, making clear its acknowledgement that express warranties have been extended in connection with the sale of Plaintiffs' pool shell. See ECF No. 1-1 at 24-25 (Richard Ward asked, "Will 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?" Latham's Warranty and Repair Manager responded, "Yes it will"). In separate correspondence attached to the Complaint, Ward states, "It was my belief the Coronado pool shell, and its Crystite finish would be of superior quality as described in Vikings numerous representations of the product." ECF No. 1-1 at 14. Under these circumstances, while Plaintiffs have not attached a copy of Latham's initial written warranty to the Complaint, sufficient and specific warranty language has been included to permit the Court, at this early stage of the litigation, to find that that Plaintiffs have stated a plausible claim for relief under the MMWA. It is recommended that the Motion to Dismiss Plaintiffs' claim for the violation of the MMWA be denied.
Plaintiffs' Complaint sets forth two paragraphs identified as "48" and two paragraphs identified as "49". ECF No. 1-1 at 10. The quoted allegations may be found at ECF No. 1-1 at 10, and are in the first paragraph "48" and the second paragraph "49".
c. UTPCPL claim (Count III)
At Count III of the Complaint, Plaintiffs assert a claim for the violation of the Pennsylvania UTPCPL, which seeks to prevent consumer fraud. Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001). The UTPCPL prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." 73 P.S. § 201-3. "The statute creates a private right of action in persons upon whom unfair methods of competition and unfair or deceptive acts or practices are employed and who as a result, sustain an ascertainable loss." Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 190 n. 4 (Pa. 2007) (citing 73 P.S. § 201-9.2). The Pennsylvania Supreme Court has long instructed that the UTPCPL be construed liberally in order to effectuate its primary purposes of preventing fraud and deceptive practices. See Com., by Creamer v. Monumental Prop., Inc., 329 A.2d 812, 816 (Pa. 1974). Section 201-2(4) defines prohibited unfair methods of competition and unfair or deceptive acts or practices, including "[r]epresenting that goods or services have ... characteristics, ingredients, uses, benefits or quantities that they do not have;" "[f]ailing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made;" "[m]aking repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing;" and "any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." 73 Pa. Cons. Stat. § 201-2(4)(v),(xiv),(xvi),(xxi).
Latham contends that dismissal is appropriate because Plaintiffs fail to allege facts upon which Latham could be held to have engaged in fraudulent or deceptive conduct, and further fail to plead facts establishing that Plaintiffs relied upon any statements of Latham in marketing materials or otherwise. ECF No. 5 ¶¶ 23-25; ECF No. 6 at 11-20. The Court disagrees.
The Complaint plainly alleges that Latham extended a promise to repair defects in the pool shell, that Latham's attempted repairs were at a quality below the standard agreed to in writing, and that Latham thereby failed to comply with the terms of a written guarantee provided Plaintiffs after the purchase of the pool shell. ECF No. 1-1 ¶¶ 8-19; 62-68. Further, attached to the Complaint is an email setting forth Plaintiffs' reliance on Latham's representations regarding the characteristics of the pool shell and the coverage of its warranties, and Latham's failure to honor such representations when defects in the pool shell appeared. ECF No. 1-1 at 14. At this early stage of the litigation, Plaintiffs have sufficiently stated a claim within "the wide range of conduct the Law was designed to address, including equalizing the bargaining power of the seller and consumer, ensuring the fairness of market transactions, and preventing deception and exploitation, all of which harmonize with the statute's broad underlying foundation of fraud prevention." Danganan v. Guardian Prot. Servs., 179 A.3d 9, 16 (Pa. 2018). Accordingly, it is respectfully recommended that the Motion to Dismiss Plaintiffs' UTPCPL claim be dismissed.
2. Motion for More Definite Statement
The Court further recommends that Latham's Motion for a More Definite Statement be denied. Such a motion under Rule 12(e) of the Federal Rules of Civil Procedure is "appropriate when the pleading is 'so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith, without prejudice to [itself].'" Ulearey v. PA Servs., Inc., No. 16-4871, 2017 WL 1283946, at *3 (E.D. Pa. Apr. 6, 2017) (quoting Sun Co., Inc. (R & M) v. Badger Design & Constructors, Inc., 939 F. Supp. 365, 368 (E.D. Pa. 1996)).
A review of Plaintiffs' Complaint reveals that it is not so vague, ambiguous, or unintelligible that Latham is unable to frame a responsive pleading. In this regard, the Complaint more than adequately meets the requirements of Rule 8(a) of the Federal Rules of Civil Procedure and sets forth facts underlying each of Plaintiffs' consumer, warranty, and breach of contract claims. The fact that a better pleading may be possible if a more definite statement was ordered is not enough to warrant granting the Motion. See 5C Wright & Miller, Fed. Prac. & Proc. § 1377 (3d ed. 2004). Accordingly, it is recommended that Latham's request for a more definite statement be denied.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss and Motion for a More Definite Statement, ECF No. 5, be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted, Dated: October 9, 2019
/s/_________
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Joy Flowers Conti
United States District Judge
All counsel of record by Notice of Electronic Filing