In the Court of Common Pleas of Northampton County, Pennsylvania Civil Division

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL DIVISION

REYNALDO RODRIGUEZ and : NO: CV-2016-1259 GREGORIA LONTIGUA, : : Plaintiffs, : v. : : STEVEN MIGA and : KLASSIC KIDS, INC., : : Defendants. :

ORDER OF COURT

AND NOW, this 19th day of December, 2016, upon consideration of the Preliminary Objections and Brief in Support of the same filed by

Defendants, Steven Miga and Klassic Kids, Inc. (collectively the

“Defendants”), and the Third Amended Complaint and Brief Contra

Preliminary Objections filed by Plaintiffs, Reynaldo Rodriguez and Gregoria

Lontigua (“Plaintiffs”), it is hereby ORDERED as follows:

1. Defendant’s first Preliminary Objection, which is in the nature of a

demurrer, is SUSTAINED.

2. Defendant’s second Preliminary Objection, which is in the nature of

a motion for a more specific pleading, is SUSTAINED.

3. Defendant’s third Preliminary Objection, which is in the nature of a

demurrer, is SUSTAINED. 4. Defendant’s fourth Preliminary Objection, which challenges the

Verification attached to Plaintiff’s Third Amended Complaint, is

OVERRULED.

5. Plaintiff shall have twenty (20) days from the date of this Order to

file a Fourth Amended Complaint.

STATEMENT OF REASONS

I. Factual and Procedural History

Plaintiffs aver that on September 15, 2015, Klassic Kids, Inc. “Klassic

Kids”), sold to Plaintiffs a 2004 black Jeep Liberty (the “Vehicle”). Compl. ¶

4. A document entitled “Vehicle’s Buyer Order” is offered by Plaintiffs as documentation of said sale. Id. ¶ 4, Ex. A. The Vehicle’s Buyer Order contains, in relevant part, a section entitled “Warranty Information,” and a check mark is marked next to the section that states the following:

AS IS – THIS MOTOR VEHICLE IS SOLD “AS IS” WITHOUT ANY WARRANTY EITHER EXPRESSED OR IMPLIED. THE PURCHASER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTNIG ANY DEFECT THAT PRESENTLY EXISTS OR THAT MAY OCCUR IN THE VEHICLE.

Id. Ex. A. Following this clause is what appears to be the signature of

Plaintiff, Gregoria Lontigua. See id.

Prior to or contemporaneous with the sale of the Vehicle, Plaintiffs aver that Defendant Steven Miga (“Miga”), the owner of Klassic Kids, stated to

Plaintiffs that the Vehicle was in good condition and in no need of major repairs. Id. ¶ 6. Plaintiffs maintain that Miga also told Plaintiffs that if there

2 were any need for repairs within the following thirty days, Klassic Kids would repair or replace the Vehicle. Id. ¶ 7.

Several days after purchase, the Vehicle did not pass the state inspection, and Plaintiffs expended money to obtain the inspection certificate. Id. ¶ 8. Plaintiffs found that the Vehicle began using a considerable amount of oil and was in need of repairs. Id. ¶ 9. Plaintiffs aver that when they sought to have Defendants repair the Vehicle,

Defendant refused. Id. ¶ 10. On September 17, 2015, Plaintiffs returned the Vehicle to Defendants. Id. ¶ 11.

On February 5, 2016, Magisterial District Judge Patricia Broscius entered a decision in favor of Plaintiffs. On February 16, 2016, Defendants filed an appeal from said Magisterial District Court decision. Plaintiffs filed their Complaint on March 11, 2016, with Defendants’ Preliminary Objections filed on March 15, 2016. On March 18, 2016, Plaintiffs’ Amended Complaint was filed. Defendants filed Preliminary Objections to the same on March 28,

2016. On May 24, 2016, Plaintiffs filed their Second Amended Complaint.

Defendants filed Preliminary Objections to the Second Amended Complaint on June 2, 2016. On August 26, 2016, Plaintiffs filed their Third Amended

Complaint, which asserts one count of breach of contract. Defendants filed

Preliminary Objections and Brief in Support of the same on August 30, 2016.

Plaintiffs filed a Praecipe to Substitute Verification on September 15, 2016, which contains a verification of the Third Amended Complaint and is signed

3 by Gregoria Lontigua. On September 16, 2016, Plaintiffs filed their Brief

Contra Preliminary Objections of Defendants.

This matter was placed on the September 20, 2016, Argument List and was submitted on brief.

II. Discussion

A. Standard of Review

A court may properly grant preliminary objections when the pleadings are legally insufficient for one or more of the reasons enumerated in Rule

1028 of the Pennsylvania Rules of Civil Procedure. In ruling on preliminary objections, “we will consider as true all well-pleaded facts and inferences reasonably deducible therefrom, but not conclusions of law, argumentative allegations or opinions.” Erie Cty. League of Women Voters v. Com., Dep't of Envtl. Res., 525 A.2d 1290, 1291 (Pa. Commw. 1987). In considering a preliminary objection that seeks the dismissal of a cause of action, a court must only sustain such a preliminary objection “in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Feingold v. Hendrzak, 15 A.3d 937,

941 (Pa. Super. 2011).

A demurrer tests the legal sufficiency of the evidence. Pa.R.C.P.

1028(a)(4). A preliminary objection in the nature of a demurrer “is deemed to admit all well-pleaded facts and all inferences reasonably deduced therefrom.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 482–83 (Pa.

Commw. Ct. 1995). “In determining whether to sustain a demurrer, the court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Id. at

483. Further, “[i]f any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.” Feingold, 15 A.3d at 941.

A. Preliminary Objection in the Nature of a Demurrer as to Plaintiffs’ Breach of Contract Claim

Defendants’ first Preliminary Objection is in the nature of a demurrer and challenges the legal sufficiency of Plaintiffs’ breach of contract claim.

Defendants assert that Plaintiffs’ breach of contract claim is precluded by the

Uniform Commercial Code’s (“UCC”) parol evidence rule. That is, Plaintiffs must be precluded from arguing that Defendants extended to Plaintiffs an oral express warranty at or before they signed the Vehicle Buyer’s Order, which contains a warranty disclaimer.

In their Third Amended Complaint, Plaintiffs rely on Section 2316(a) of the UCC and aver that where there is both an oral express warranty and a warranty disclaimer, the disclaimer is operative. Section 2316 provides, in relevant part:

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this division on parol or extrinsic evidence (section 2202) negation or limitation is inoperative to the extent that such construction is unreasonable.

13 Pa. Cons. Stat. § 2316. In light of Section 2316’s reference to the UCC’s parol evidence rule, we turn to Section 2202, which states:

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

(1) by course of performance, course of dealing or usage of trade (section 1303); and

(2) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

13 Pa. Cons. Stat. § 2202.

We note that there are no averments to establish either of the two enumerated situations codified in Section 2202. That is, there are no averments to establish a course of performance, course of dealing, or usage of trade. Further, we find that the Vehicle Buyer’s Order is inarguably “the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.” Plaintiffs do not argue that any other exception to the parol evidence rule applies. To the contrary, Plaintiffs rest their argument upon their interpretation of Section 2316. Plaintiffs contend that Section 2316’s reference to Section 2202 “modifies the clause related to

‘negation or limitation,’” and therefore, Section 2202 only applies when a

“negation or limitation” is alleged.

We disagree with Plaintiffs’ interpretation of Section 2316. The Official

Comments to Section 2316 specifically state that one of the purposes of

Section 2316 is to protect the seller “against false allegations of oral warranties by its provisions on parol and extrinsic evidence . . .” 13 Pa.

Cons. Stat. § 2316 cmt. n.2. Therefore, we sustain Defendants’ demurrer to

Plaintiffs’ breach of contract claim and accordingly, because the breach of contract claim is the only claim raised in Plaintiffs’ Third Amended

Complaint, we dismiss Plaintiffs’ Third Amended Complaint.1

B. Preliminary Objection in the Nature of a More Specific Pleading

Defendants’ third Preliminary Objection asserts that Plaintiffs’ Third

Amended Complaint is insufficiently specific pursuant to Rule 1028(a)(3).

Rule 1028(a)(3) requires a level of specificity in a pleading and allows a party to preliminarily object to the pleading and move to strike a portion of the pleading or seek a more definite statement. See Pa.R.C.P. 1028(a)(3).

The pertinent question under Rule 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense,” or

“whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he

1 While our decision regarding Defendants’ first Preliminary Objection dismisses Plaintiffs’ Third Amended Complaint, we consider the balance of Defendants’ Preliminary Objections in the event Plaintiffs file a Fourth Amended Complaint.

7 may know without question upon what grounds to make his defense.”

Ammlung v. City of Chester, 491, 498 n. 36 (Pa. Super. 1973).

Moving Defendants object to Plaintiffs’ use of the phrase “including but not limited to.” In their Third Amended Complaint, Plaintiffs claim to “have suffered damages including but not limited to the following: the $2,000 deposit; all additional amounts paid to Defendant, Klassic Kids, Inc., all amounts paid for repairs on the vehicle.” Third Am. Compl. ¶ 17. The phrase “including but not limited to” when used in conjunction with specified damages leaves open the possibility of other, non-specified expenses.

Consequently, we strike the phrase “including but not limited to” from

Plaintiff’s Third Amended Complaint, pursuant to Rule 1028(a)(3).

C. Preliminary Objection in the Nature of a Demurrer as to Claims Against Steven Miga, Individually

Defendants contend that Miga should be stricken from this action and assert that Plaintiffs make no allegations to justify piercing Klassic Kids’ corporate veil. In their Brief Contra, Plaintiffs concede Defendants’ argument and maintain that Miga was “mistakenly included as a Defendant in this Amended Complaint.” Pls.’ Br. Contra 5. In light of Plaintiffs’ Brief

Contra, we sustain Defendants’ third Preliminary Objection and dismiss the present action against Miga, individually.

D. Preliminary Objection as to Plaintiffs’ Verification

Defendants’ final Preliminary Objection contests the Verification attached to Plaintiff’s Third Amended Complaint. The Verification is signed

8 by Plaintiffs’ counsel, Robert Glazer, Esquire. However, on September 15,

2016, Plaintiffs filed a Praecipe to Substitute Verification, which attaches as an exhibit a new verification signed by Plaintiff Gregoria Lontigua. We find that this addendum sufficiently satisfies the balance of Defendants’

Preliminary Objections. Accordingly, we overrule Defendants’ final

Preliminary Objection.

BY THE COURT:

/s/ Samuel P. Murray______SAMUEL P. MURRAY, J.