Judges Opinions Public Notices, — September 1, 2021 8:23 — 0 Comments

Public Notices, September 1, 2021

Volume 59, No. 5

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF PRIVATE SALE

ORPHANS’ COURT DIVISION NOTICES

ARTICLES OF INCORPORATION

FICTITIOUS NAME

 

TABLE OF CONTENTS

Larry L. Zahar and Scott L. Zahar, v. Klick Lewis, Inc.,

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF JOYCE S. SWOPE, late of Lebanon County, Pennsylvania, deceased June 22, 2021. Letters Testamentary have been granted to the undersigned Executor.

 

Jeremy Stahl, Executor

12 E. Bethany Road

Newmanstown, PA 17073

 

John A. Feichtel, Esquire

Mette, Evans & Woodside

3401 N. Front Street

P.O. Box 5950

Harrisburg, PA 17110-0950

(717) 232-5000

 

ESTATE OF NANCY K. SCHREIBER, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Henry D. Schreiber, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF LLOYD THOMAS BEERS, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased July 8, 2021. Letters of Administration have been granted to the undersigned Administrator on August 19, 2021.

 

Debra A. Beers, Administrator

Palmyra, PA

 

Jacqueline A. Kelly, Esquire

JSDC Law Offices

11 E. Chocolate Avenue

Suite 300

Hershey, PA 17033

717-533-3280

 

ESTATE OF PATRICIA ANN NESTICO, late of South Londonderry Township, Lebanon

County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathleen M. Giovanniello, Executrix

 

Dominic V. Giovanniello, Esquire

Nestico Druby, P.C.

1135 East Chocolate Avenue

Suite 300

Hershey, PA 17033

 

ESTATE OF RICHARD W. HOLLINGER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Gerald J. Brinser, Executor

 

Keith D. Wagner, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF BERTHA CARBAUGH, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Darrell F. Baldwin, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BRENDA KAY FASOLD a/k/a BRENDA K. FASOLD, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Dennis Fisher

559 Kutztown Road

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF ARLENE L. WALTERS, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Donald T. Walters, Jr., Executor

232 Waterford Way

Lebanon, PA 17042

 

ESTATE OF MICHAEL L. STEINER, a/k/a MICHAEL LEE STEINER, late of East Hanover Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Andrew J. Hershey, Administrator

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF JOANNE S. HANSEN, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Lori J. Grandi, Co-Executrix

 

Alisen M. Cronkrite, Co-Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF MERVIN M. WALMER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Diane L. Keefer, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF CHARLES H. HEILMAN a/k/a CHARLES H. HEILMAN, SR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Cheryl L. Stewart, Co-Executrix

 

Gail L. Garrett, Co-Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF FRANKLIN ARTHUR WETZEL, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Joshua A. Wetzel, Administrator

2064 Mile Hill Road

Sunbury, PA 17801

 

Joel M. Wiest, Esquire

Wiest, Wiest Benner & Rice, LLC

5 North Second Street

Sunbury, PA 17801

570-286-4022

 

ESTATE OF EVE MANBECK, late of Fredericksburg, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Alletta Schadler, Executrix

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF CAROL E. WOLFE, late of Fredericksburg, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Gary L. Wolfe, Executor

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF HAROLD A. BENDER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kevin S. Bender, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF JOHN H. GIBSON, JR., late of Lebanon County, Pennsylvania, deceased July 21, 2021. Letters Testamentary have been granted to the undersigned Executor.

 

Lisa E. Scurci, Executor

 

Morgan Cassel, Esquire

624 North Front Street

Wormleysburg, PA 17043

Attorney

 

ESTATE OF DONNA K. WOLFER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Ursula M. Wolfer, Administratrix

25 Limestone Lane

Palmyra, PA 17078

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

P.O. Box 113

Palmyra, PA 17078

 

ESTATE OF MARCELINE C. WARNER, late of Mill Creek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert J. Warner, Executor

 

Heidi B. Masano, Esquire

Masano ♦ Bradley

1100 Berkshire Boulevard, Suite 201

Wyomissing, PA 19610

 

ESTATE OF ELEANOR M. BAIR, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Curtis L. Martin, Executor

 

Gerald J. Brinser, Esquire

  1. O. Box 323

Palmyra, PA 17078

Attorney

 

THIRD PUBLICATION

 

ESTATE OF JOSEPH J. SMITH, III, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Joanne S. Kreider, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HARVEY WISE, late of Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Nelson Ebersole, Administrator

 

George E. Christianson

Christianson Meyer

411 Chestnut Street

Lebanon, Pa. 17042

 

ESTATE OF BETTY M. GINDER, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David M. Ginder, Executor

3247 S. 5th Avenue

Myerstown, PA 17067

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

 

 

 

NOTICE OF PRIVATE SALE

 

In Re:

Petition of the Board of School Directors

of the Lebanon School District for

Approval of a Private Sale of Real Estate

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW

 

  1. 2021-00138

 

NOTICE OF PRIVATE SALE

 

NOTICE is hereby given that on February 9, 2021, the Board of Directors of the Lebanon School District, filed a petition for the sale of the following tracts of real estate:

Northwest Elementary School containing 2.65 acres located on the northwest corner of the intersection of North Ninth Street and Maple Street in Lebanon City; and the second parcel of land containing .95 acres, adjacent to the elementary school building, the identified tax parcel I.D. numbers are 07-2336938-372822 and 07-2336473-372837, respectively.

The Court has fixed the 9th day of September, 2021, at 1:30 o’clock P.M. at Lebanon County Court of Common Pleas, located at 400 South Eighth Street, Lebanon, Pennsylvania 17042, as the time and place for the hearing on said petition when and where all persons interested may appear and show cause, if any they have, why the prayer of the petitioner should not be granted.

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042-0049

Phone: (717) 274-1421

E-mail: Bechtold@buzgondavis.com

Solicitor for Lebanon School District

 

 

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

 

Notice is hereby given that the following accounts in decedents estates, Guardianships and trusts have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon County, and that the same will be presented to the Court of Common Pleas-Orphans’ Court Division of said County for Confirmation NISI on

 

Tuesday, September 7, 2021

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

LIST OF ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. LeBaron, Matthew C. aka LeBaron, Lebaron, dec’d., Susan LeBaron-Tonini, Admrx.,

John E. Feather, Jr., Atty.

 

  1. Powell, Eric L., dec’d., Janet E. Roschel, Admrx., Douglas W. Olshin, Atty.
  2. Spangler, Jane G. aka Spangler, Jane Galbreath, dec’d., Frederick Spangler, Exr., Edward
  3. Coyle, Atty.

 

All of the afore said accounts and statements of Proposed Distribution will be confirmed ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are filed within twenty (20) days after the same are confirmed NISI.

 

Brian Craig

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

ARTICLES OF INCORPORATION

 

NOTICE IS HEREBY GIVEN that Articles of Incorporation were filed with the Department of State of the Commonwealth of Pennsylvania, at Harrisburg, Pennsylvania, for CT Rollco, Inc. on August 20, 2021. The said corporation has been incorporated under the provisions of the Business Corporation Law of 1988 of the Commonwealth of Pennsylvania.

 

McNees Wallace & Nurick LLC

Attorneys at Law

100 Pine Street

Harrisburg, PA 17101

 

 

FICTITIOUS NAME

 

NOTICE IS HEREBY GIVEN, pursuant to the provisions of Section 311 of the Fictitious Names Act (54 Pa. C.S. 311) and its amendments, that on July 15, 2021, the partnership of Scott A. and Hilary J. Sumner of 336 Cumberland Street, Lebanon, PA 17042 filed in the Office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, Pennsylvania, an application to conduct a business in Lebanon County, Pennsylvania, under the fictitious name of Wallace House with its principal place of business at 336 Cumberland Street, Lebanon, PA 17042.

 

SUMNER IP LAW PLLC

752 Willow Street, Suite B

Lebanon, PA 17046

(717) 202-5528

 

 

 

 

 

 

 

 

 

JUDGES OPINION

 

Larry L. Zahar and Scott L. Zahar, v. Klick Lewis, Inc.,

 

Civil Action-Law-Contract-Warranty-Breach-Sale of Vehicle-Magnuson-Moss Act

 

Larry L. Zahar and Scott L. Zahar (“Plaintiffs”) filed a Complaint alleging that the vehicle they purchased from Klick Lewis, Inc., (“Defendant”) had sustained front collision damage prior to the sale that Defendant failed to disclose that rendered the vehicle’s factory warranty invalid.  Defendant filed Preliminary Objections to the Complaint, alleging that the claim for violation of the Magnuson-Moss Warranty Improvement Act, 15 U.S.C. § 2301 et seq., (“Magnuson-Moss Act”) cannot be sustained and Plaintiffs failed to set forth its claims for Breach of Contact, Breach of Express Warranty and Breach of Implied Warranty as separate causes of action.

 

  1. Pa.R.C.P. Rule 1020(a) requires that each cause of action and any special damages related thereto must be stated in a separate count containing a demand for relief.

 

  1. The Magnuson-Moss Act authorizes recovery for damages and other legal and equitable relief to be brought in state or federal courts by consumers who are damaged by a warrantor’s failure to comply with any obligation imposed by the Act or a written or implied warranty or service contract.

 

  1. The substance of a Magnuson-Moss warranty claim is based upon state law and must meet the relevant state criteria.

 

  1. Pennsylvania law provides remedies for buyers of consumer goods with regard to breach of warranties associated with goods including the implied warranty of merchantability, the implied warranty of fitness for a particular purpose and express warranties.

 

  1. Breach of warranty claims that fail under state law also will fail under the Magnuson-Moss Act.

 

  1. The Magnuson-Moss Act is applicable only to express written warranties and warranties implied by Pennsylvania law, not to claims based upon express oral warranties.

 

  1. The Magnuson-Moss Act provides a statutory cause of action for an alleged breach of a service contract, which is a contract in writing to perform over a fixed period of time services relating to the maintenance or repair of a consumer product.

 

  1. Since Plaintiffs allege a breach of a contract of sale of the vehicle instead of a breach of a service contract regarding the vehicle, they cannot set forth a legally sufficient claim for breach of contract under the Magnuson-Moss Act.

 

  1. To state a claim for breach of contract, a plaintiff must plead the existence of a contract, including its essential terms, a breach of a duty imposed by the contract and resultant damages.

 

  1. Plaintiffs’ cause of action in Breach of Contract is insufficient where it fails to set forth a description of warranties or other duties that were included as part of the bargained for exchange.

 

  1. In light of the fact that Plaintiffs failed to state in the Complaint that the express warranty was written, the claim based upon an oral express warranty cannot be sustained under the Magnuson-Moss Act.

 

  1. General allegations in a pleading fail to place a party on notice of complained of conduct.

 

  1. The language with regard to types of breaches of duties of “including, but not limited to…” is overly broad and cannot be sustained.

 

L.C.C.C.P. No. 2020-00509, Opinion by Charles T. Jones, Jr., Judge, September 22, 2020.

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

LARRY L. ZAHAR and SCOTT L. ZAHAR,                 :         NO. 2020-00509

Plaintiffs                        :

:

  1. :

:

KLICK LEWIS, INC.,                                           :

Defendants                     :

 

ORDER OF COURT

 

          AND NOW, this 22nd day of September, 2020, upon consideration of Defendant’s Preliminary Objections, Plaintiffs’ response thereto, and the Briefs submitted by the parties, it is hereby Ordered as follows:

  1. Defendant’s Preliminary Objections to Count 1 of the Complaint are SUSTAINED in accordance with the Opinion accompanying this Order.  Plaintiffs are granted leave to file an Amended Complaint within twenty (20) days of this Order.
  2. Defendant’s Preliminary Objections to Paragraphs 22 of the Complaint is SUSTAINED. The language “including but not limited to” is stricken from Paragraph 22.
  3. Defendant’s Preliminary Objection to Paragraph 30 of the Complaint is OVERRULED.
  4. Defendant’s Preliminary Objection to the Verification of the Complaint is SUSTAINED.

BY THE COURT:

 

__________________________, J.

CHARLES T. JONES

 

CTJ/jah

 

Cc:  John A. Sczepanski, III, Esquire/Timothy J. Abeel & Associates, PC/25

            Regency Plaza/Glen Mills, PA  19342

       Adam L. Seiferth, Esquire/Cipriani & Werner, PC/1011 Mumma Road, Suite

             201/Lemoyne, PA  17043

       Michelle Howard/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

LARRY L. ZAHAR and SCOTT L. ZAHAR,                 :         NO. 2020-00509

Plaintiffs                        :

:

  1. :

:

KLICK LEWIS, INC.,                                           :

Defendants                     :

 

APPEARANCES:

 

JOHN A. SCZEPANSKI, ESQUIRE                           FOR PLAINTIFFS

TIMOTHY J. ABELLE & ASSOCIATES, PC

 

ADAM L. SEIFERTH, ESQUIRE                      FOR DEFENDANT

CIPRIANI & WERNER, PC

 

OPINION, JONES, J., SEPTEMBER 22, 2020.

 

Before us are Defendant’s Preliminary Objections to Plaintiffs’ Complaint.  The matter had originally been filed in the Dauphin County Court of Common Pleas.  Defendant filed Preliminary Objections in that Court, in part, challenging Plaintiffs’ choice of venue.  The Dauphin County Court granted Defendant’s objection to venue and the matter was transferred to this Court.   We now address Defendant’s remaining Preliminary Objections.

The Complaint in this matter alleges that on October 5, 2018, Plaintiffs purchased a used 2017 Ram Laramie from Defendant (“the Vehicle”).  At that time, Plaintiffs executed a Retail Installment Sale Contract to effectuate financing for the Vehicle.  Plaintiffs contend that Defendant issued “several warranties, guarantees, affirmations or undertakings” related to the Vehicle at that time.  (Complaint, Para. 7)  Plaintiffs further allege that at the time of the sale, the Vehicle had already “sustained significant front collision damage” which had “voided out” the Vehicle’s factory warranty, unbeknownst to Plaintiffs.  (Complaint, Para. 10-11)   Plaintiffs claim that prior to the sale, Defendant had removed and disabled some parts and systems and had used several wrong parts in its attempt to remedy the Vehicle’s damaged condition.  After the sale, Plaintiffs learned that the Vehicle had previously been used as a rental and claim that they would not have purchased it had they been aware of its condition and history.  The Complaint includes causes of action pursuant to the Magnuson-Moss (FTC) Warranty Improvement Act, 15 U.S.C. §2301 et seq (“Magnuson-Moss Act”) (Count 1), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-2 et seq (“Unfair Trade Practices Act”) (Count 2).

 

 

In their Preliminary Objections, Defendant seeks dismissal of Count 1 for failure to state distinct legally cognizable claims.  Defendant also complains of what it believes to be overly broad language set forth in Paragraphs 22 and 30 of the Complaint.  After careful consideration, we will sustain these Preliminary Objections, in part, and grant Plaintiffs leave to file an Amended Complaint.

Count 1 – Magnuson-Moss Act

The Magnuson-Moss Act authorizes suits for “damages and other legal and equitable relief” to be brought in either state or federal courts by consumers who are damaged by a warrantor’s failure to comply with any obligation imposed by the Act or imposed by a written warranty, implied warranty, or service contract.  1 Consumer Law Sales Practices and Credit Regulation §258, citing 15 U.S.C.A. §2310(d)(1).  The civil action provisions of the Act are very broad, going far beyond traditional “breach of warranty” relief.  Id.  The Act provides consumers a statutory cause of action for (1) violation of “any obligation” under the Act, (2) breach of any written warranty or service contract applicable to the product, and (3) breach of implied warranties created by the Uniform Commercial Code (“UCC”).[1]    The substance of a Magnuson-Moss warranty claim is based on state law and must meet the relevant state criteria.  Consumer Protection and the Law §14:20.  Breach of warranty claims that fail under state law will also fail under this Act, i.e., if there is no implied warranty provided by state law, there is no standing to bring a Magnuson-Moss action on that basis.  Id.

Defendant contends that the causes of action set forth in the Complaint – breach of contract, breach of express warranty, and breach of implied warranty – are distinct causes of action which must be pled in separate counts.  Defendant further charges that Plaintiffs have failed to plead the essential elements for claims of breach of contract or breach of warranty in Count 1 due to the absence of the specific terms of a warranty.  We agree with Defendant’s assessment of the Complaint and will grant Plaintiff the opportunity to file an amended pleading.

Pa.R.C.P. No. 1020(a) requires that each cause of action and any special damage related thereto must be stated in a separate count containing a demand for relief.  Pa.R.C.P.No. 1020(a).  Under the Pennsylvania Rules of Civil Procedure, grounds for filing preliminary objections include failure of a pleading to conform to law or rule of court, Pa.R.C.P. No. 1028(a)(3), and insufficient specificity in a pleading, Pa.R.C.P. No. 1028(a)(4).  When reviewing preliminary objections in the nature of a demurrer, a court must treat as true all well-pleaded, material, and relevant facts together with reasonable inferences that may be drawn from those facts.  Mellon Bank v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994).

Pennsylvania law provides the buyer of consumer goods with the implied warranty of merchantability, 13 Pa.C.S.A. §§2314, and the implied warranty of fitness for a particular purpose.  13 Pa.C.S.A. § 2315.    Plaintiff may sue Defendants for alleged breaches of these implied warranties pursuant to these statutory provisions.  In addition, claims for breaches of these implied warranties are also encompassed by the Magnuson-Moss Act.  39 AMJUR Trials 1, Automobile Warranty Litigation, §36.

Pennsylvania law also provides for express warranties which may arise by affirmation, promise, description or sample under Section 2313:

  • 2313. Express warranties by affirmation, promise, description or

Sample

 

(a) General rule.–Express warranties by the seller are created as follows:

 

(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.

 

(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.

 

(b) Formal words or specific intent unnecessary.–It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the opinion of the seller or commendation of the goods does not create a warranty.

 

13 Pa.C.S.A. §2313.[2]

13 Pa.C.SA § 2313 sets forth the manner in which an express warranty may be created.  To prove a breach of express warranty under the UCC against the seller, a plaintiff must establish that a breach of warranty occurred and the breach was the proximate cause of plaintiffs damages. To establish a breach, there must have been an express warranty which became part of the basis for the bargain. A successful claim for breach of express warranty must plead seller’s statements, reliance on behalf of the consumer, which presumes an awareness of the warranty, and damages. Yurcic v. Purdue Pharmacies, LP., 343 F. Supp. 2d 386 (M.D. Pa. 2004); Price v. Chevrolet Motor Division of General Motors Corporation, 765 A.2d 80 (Pa. Super. 2000); Oppenheimer v. York International, 2002 WL 31409949 (Philadephia 2002).

 

Callender v. Brighton Machine Company, Inc., 2013 WL 9829560, p. 10 (C.C.P. Allegheny Cnty. 2013).   In contrast to the Pennsylvania statute regarding the creation of express warranties, the Magnuson-Moss Act is applicable only to express written warranties and warranties implied by Pennsylvania law.  It does not encompass claims based on express oral warranties.

In pleading an action for breach of warranty in Pennsylvania:

[T]he complaint in an action for a breach of warranty should state whether the warranty is express or implied, and if express, whether it is oral or written.

 

A complaint alleging breach of an express warranty must also indicate what express warranty was made and aver the byer’s awareness of, and reliance on, the warranty.

 

 

Unless the warranty sued upon is in writing, however, an allegation of breach of express and implied warranties as the basis of the claim is sufficient.  Where the complaint does not positively assert that the action is based upon a writing, a defendant may correctly conclude that the alleged express warranty is oral.

 

4 Standard Pennsylvania Practice 2d §22:103.

 

In order to allege a claim for breach of contract, a plaintiff must plead (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, (3) and resultant damages.  Pennsy Supply, Inc., v. Arn. Ash Recycling Corp., 895 A.2d 595, 600 (Pa. Super. 2006).  While not every term of a contract must be stated in complete detail, every element must be specifically pleaded.  Id. at 1058.  The Magnuson-Moss Act provides a statutory cause of action only for alleged breaches of service contracts.  A “service contract” is defined as “a contract in writing to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair (or both) of a consumer product.”  15 U.S.C.A. §2301.

In this action, Plaintiffs do not allege breach of a service contract in the Complaint, but rather a breach of the contract for the sale of the Vehicle.  Thus, they are precluded from bringing a cause of action for breach of this contract as a violation of the Magnuson-Moss Act.

Plaintiffs do not specifically indicate whether their claim for breach of contract is oral or written.  When any claim or defense is based upon a writing, the pleader must attach a copy of the writing, or the material part thereof; however, where the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.  Pa.R.C.P. No. 1019(i).   Plaintiffs have attached to the Complaint a copy of the agreement for the financing of the Vehicle; however, this document does not describe any express warranties.

Regardless of whether they are proceeding on a written or oral contract, we agree with Defendant that Plaintiffs must set forth facts to establish the duties undertaken by Defendant incident to the sale of the Vehicle on which the breach of contract claim is based. This would include a description of any warranties which became part of the sale agreement and any other duties which were included as part of the bargain.  If these are in writing, a copy of those terms must be attached to the Complaint.

A plaintiff may pursue claims for breach of express written warranties and implied warranties either in separate counts of a complaint or under one count as a violation of the Magnuson-Moss Act.  Although we believe it may be preferable for Plaintiffs to set forth their causes of action on the various warranties in separate counts of their Amended Complaint, Plaintiffs may group their claims for breach of implied and express written warranties under Count 1 – Violation of the Magnuson-Moss Act.  However, it is unclear from the Complaint whether the express warranties on which Plaintiffs’ claims are based are oral and/or written.  Since Plaintiffs have not averred that these are in writing, Defendants may surmise that they are oral and cannot be pursued under the Magnuson-Moss Act.  If Plaintiffs are actually suing for breach of any alleged express oral warranty, they will be required to set forth that claim in a separate count under the Pennsylvania procedural rules of pleading.

Based on the above, we will grant leave to Plaintiffs to file an Amended Complaint in order that they may specify whether the warranties and/or the contract on which their claims are based are in writing. If  written, Plaintiffs must comply with Procedural Rule 1019(i).  Claims based on express written warranties and implied warranties may be set forth in separate counts or collectively in a count for a violation of the Magnuson-Moss Act.  If Plaintiffs are pursuing claims based on breach of any express oral warranties and/or breach of the contract of sale, these will have to be brought as separate causes of action raised in separate counts of the Amended Complaint.  In their count for breach of the agreement of sale, Plaintiffs must also comply with Rule 1019(i) to identify the substance of Defendant’s duties and any warranties which were included therein.

Count 2 – Vague/Overbroad Allegations

Paragraph 22 of the Complaint avers:

  1. Defendants’ (sic) failure is a breach of Defendants’ contractual and statutory obligations constituting a violation of the Magnuson-Moss Warranty Improvement Act, including but not limited to: breach of express warranties; breach of implied warranty of merchantability; breach of implied warranty of fitness for a particular purpose; breach of contract; and constitutes an Unfair Trade practice.

 

(Complaint, Para. 22) (emphasis added).   Defendant contends that the phrase “including but not limited to” is a vague and overly broad allegation with regard to Plaintiffs’ theory of recovery under the Magnuson-Moss Act.

While amendments to pleadings are liberally granted in general, an amendment which introduces a new cause of action, i.e., new theory, will not be permitted after the statute of limitations of that cause of action has expired.  3 Goodrich Amram 2d §1033(a), citing Pollock v. National Football League, 171 A.3d 773 (Pa. Super. 2017), appeal denied 181 A.3d 1074 (Pa. 2018).  In Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983), the Pennsylvania Supreme Court addressed a complaint’s allegation of negligence on the part of the defendant for “otherwise failing to use due care and caution under the circumstances.”  The Supreme Court noted that such language was too indefinite to place defendant on notice of what conduct was alleged to have been negligent and allowed the plaintiffs to change the theory of liability after the running of the statute of limitations.  Because the defendant had failed to file preliminary objections, the Supreme Court noted: “If appellee did not know how it ‘otherwise fail[ed] to use due care and caution under the circumstances,’ it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that position of appellant’s complaint.”  Id. At 602, n. 3.

Defendant notes that “[s]ince Connor, defendants have been understandably wary of any language in a complaint which might later sandbag them during the pleadings, during discovery, in obtaining expert opinions, or during the trial itself,” Medina v Hershey Medical Center, 4 Pa. D & C. 5th 526, 531 (C.C.P. Dauhpin Cnty. 2008), and that “Connor has been used by the Pennsylvania courts to preclude general allegations in a complaint,” citing Lee v. Denner, 76 Pa. D. & C. 4th 181 (C.C.P. Monroe Cnty. 2005) and Boyd v. Somerset Hospital, 24 Pa. D. & C. 4th 564 (C.C.P. Somerset 1993).  Based on Connor, Defendant seeks to have stricken or, in the alternative, a directive that Plaintiffs file a more specific pleading.

We agree with Defendant that the language “including but not limited to” in Paragraph 22 is overly broad and should be stricken from the Complaint.  If we permitted such language to stand, Plaintiffs could potentially add to or change their theories of recovery at any point up to the trial of this matter.  The inclusion of this language impairs Defendant’s ability to prepare a defense at this point and is not permissible under Connor.

Defendant also charges that Plaintiffs have included overbroad and vague allegations in Paragraph 30 of Plaintiffs’ cause of action under the Unfair Trade Practices Act at Count 2.  In Paragraph 29 of the Complaint, Plaintiffs refer to three activities included in the list of “unfair or deceptive acts or practices”  set forth at Section 201-2 of the Unfair Trade Practices Act which are declared unlawful by § 201–3:

(xiv)  Failing 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;

 

(xvi)  Making 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.

 

(xvii)  Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.

 

73 P.S. §29102(4).

 

Paragraph 30 of the Complaint avers:

  1. Plaintiffs aver Defendant has violated these, as well as other provisions, of 73 P.S. §201-2 et seq.

 

(Complaint, Para. 30) (emphasis added)  Defendant moves to strike the language of Paragraph 30 or, in the alternative, seeks specificity with regard to the statutory provisions Plaintiffs allege that Defendant has violated.

A plaintiff whose right of action is predicated upon a Pennsylvania statute is not ordinarily required to plead the statute, or even refer to it in his or her complaint, if the facts averred and relied upon bring his or her case within the statute. Although statutes need not be specifically pleaded, the complaint must set forth sufficient facts to bring the case within the appropriate statute. However, where the act or omission which is the foundation of the suit was not an offense at common law, the plaintiff should show that the complaint is founded on the statute.

 

4 Standard Pennsylvania Practice 2d §21:68.

 

To maintain a private right of action under the Pennsylvania Unfair Trade Practices Act, a plaintiff must demonstrate: (1) ascertainable loss of money or property, real or personal, and (2) that the loss is a result of the defnedant’s prohibited conduct under the statute.  Kaymark v. Bank of America, N.A., 783 F.3d 168 (3d Cir. 2015), cert. denied 136 S.Ct. 794.  Thus, a plaintiff must establish that the actions complained of must be either unfair or deceptive and fall within one of the twenty-one specific acts enumerated at Section 201-2 of the Act. In re Cruz, 441 B.R. 23 (E.D. Pa. 2004); 10 West’s Pa. Forms, Debtor-Creditor §11.71 – Complaint for Violation of Unfair Trade Practicies Act.   To establish liability under the catchall provision of the Act, a plaintiff must prove (1) a deceptive act that is likely to deceive a consumer acting reasonably under similar circumstances; (2) justifiable reliance; and (3) that the plaintiff’s justifiable reliance caused ascertainable loss.  Slapikas v. First American Title Insurance Company, 298 F.R.D. 285 (W.D. Pa. 2014).

While Plaintiffs are not required to plead the specific statutory sections of which Defendant is alleged to be in violation, it is incumbent upon them to set forth the specific facts which bring Defendant’s alleged conduct within the confines of the statute.  A fair reading of the entire Complaint indicates that Defendant extended various warranties and affirmations regarding the Vehicle to Plaintiffs, that Plaintiffs purchased the Vehicle in reliance on those warranties and affirmations, that Defendants sold the vehicle with undisclosed defects and accident damage which voided the manufacturer’s warranty and which were not in accord with the warranties implied by law, and that the Defendant’s repairs fell below the standard for basic warranty repairs.  Plaintiffs have identified three sections of the Unfair Trade Practices Act in Count 2 which they deem applicable to Defendant’s conduct and upon which they base their claim for recovery.  We believe that, based upon the Complaint’s rendition of the facts, Defendant is able to ascertain which, if any, of the remaining specific acts listed in Section 201-2 are applicable to the allegations and to prepare an appropriate defense.  For this reason, we will overrule this Preliminary Objection.

Verification

Lastly, Defendant objects to the Verification provided with the Complaint because Plaintiffs’ counsel, rather than Plaintiffs themselves, verified the Complaint.  Pa.R.C.P. No. 1024(c) provides:

(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party.

 

Pa.R.C.P. No. 1024(c).

 

The Verification attached to the Complaint does not state a reason why the Verification is not made by Plaintiffs, does not state that Plaintiffs lack sufficient knowledge or information as to the facts alleged therein, and does not state that Plaintiffs are outside the jurisdiction of the Court.  Since this does not comply with Rule 1024(c), we will sustain this Preliminary Objection and direct that Plaintiffs provide a proper Verification with their Amended Complaint.

[1] It has been held that the only type of warranty case which cannot be brought under the Magnuson-Moss Act is one for breach of an express oral warranty.  McCurdy v. Texar, Inc., 575 So.2d 299 (Fla Dist. Ct. App. 4th Dist. 1991).

[2] The statute does not set forth a requirement that these express warranties be in writing.

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