BOGLE v. JD TECHNOLOGIES, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

ROBERT BOGLE, )

)

) 2:21-CV-00319-MJH

Plaintiff, )

)

vs. )

)

)

JD TECHNOLOGIES, INC., RADIATOR

)

SPECIALTY COMPANY, INC.,

Defendants,

OPINION

Plaintiff, Robert Bogle, brings claims for Strict Liability under 402A, Breach of Express

Warranties, Breach of Implied Warranty of Merchantability, Breach of Implied Warranty of

Fitness for a Particular Purpose, and Unfair Trade Practices alleging that he was injured by

Defendants’ product. (ECF No. 1). Defendants moved to dismiss pursuant to Fed. R. Civ. P.

12(b)(2) and 12(b)(6). (ECF Nos. 8 and 11). The matter is now ripe for consideration.

Upon consideration of Mr. Bogle’s Complaint (ECF No. 1), Defendants’ Motions to

Dismiss (ECF No. 8 and 11), the respective briefs and responses of the parties (ECF Nos. 9, 12,

24-26 and 29-30), and for the following reasons, Defendants’ Motion to Dismiss pursuant to Fed.

R. Civ. P. 12(b)(2) will be denied, and Defendants’ Motion to Dismiss pursuant to Fed. R. Civ.

P. 12(b)(6) will be granted. Mr. Bogle will be granted leave to amend.

I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2)

A. Relevant Background

Mr. Bogle filed the instant action arising from injuries he allegedly sustained from a

rubber strap designed, manufactured, assembled, sold, and distributed by Defendants, JD

Technologies Inc. and Radiator Specialty Company, Inc (RSC). (ECF No. 1 at ¶¶ 4,9). JDS is a

corporation with a principal place of business in Oneida, Tennessee. Id. at ¶ 3. RSC is a

corporation with a principal place of business in Indian Trail, North Carolina. Id. at ¶ 8. Mr.

Bogle avers that both JDS and RSC have engaged in continuous and systematic business within

Pennsylvania and with sufficient “contacts” within Pennsylvania to confer jurisdiction. Id. at ¶¶

5, 10. He also alleges that Pennsylvania has jurisdiction over JDS and RSC because they sold

and distributed and/or placed their product, the “Hold-Zit” strap, to the general public and into

the chain of commerce in Pennsylvania. Id. at ¶¶ 6, 11.

In a declaration submitted by RSC, it asserts that it is a company organized and existing

under the laws of the State of North Carolina and with its principal place of business in North

Carolina. (ECF No. 9-1 at ¶¶ 4-5). Similarly, JDS submitted a declaration where it asserts that it

is a company organized and existing under the laws of the State of Tennessee and with its

principal place of business in Tennessee. (ECF No. 12 at p. 21, ¶¶ 4-5). From Both RSC and

JDS’s inspection of provided photographs, they assert that the subject strap was manufactured by

JDS Technologies in the State of Tennessee and shipped to RSC in North Carolina. (ECF Nos.

9-1 at Id. at ¶ 6 and 12 at p. 21, ¶6). RSC and JDS also maintain that the Complaint does not

include information on how the subject strap reached Pennsylvania or how, where, or when Mr.

Bogle came to possess the strap. (ECF Nos. 9-1 at Id. at ¶ 7 and 12 at p. 22, ¶9). In their

declarations, RSC and JDS deny that they are registered to do business in Pennsylvania or that

they maintain a registered office in Pennsylvania. (ECF Nos. 9-1 at Id. at ¶¶ 8-9 and 12 at p. 22,

¶¶ 8-9 (misnumbered)). RSC and JDS also assert that they do not own, lease, rent, possess,

operate, or otherwise have an interest in any real property within Pennsylvania, nor do they

maintain any inventory or equipment in Pennsylvania. (ECF Nos. 9-1 at Id. at ¶10 and 12 at p.

22, ¶10 (misnumbered)). RSC and JDS maintain they do not have any employees, do not

maintain any corporate records, and do not have any offices, warehouses, or plants located in

Pennsylvania. (ECF Nos. 9-1 at Id. at ¶¶ 11-13 and 12 at p. 22, ¶¶ 11-13 (misnumbered)).

Mr. Bogle has submitted documents that, contrary to both JDS and RSC’s declaration,

they are both registered as foreign businesses in Pennsylvania . (ECF Nos. 24-6 and 24-7). In

response, RSC concedes that its prior representation regarding registration in Pennsylvania was

in error. (ECF No. 25 at p. 2). In its response, JDS did not dispute Mr. Bogle’s submissions

that it was also registered to do business in Pennsylvania. (ECF No. 26).

B. Standard of Review

Federal Rule of Civil Procedure 12(b)(2) permits a party to move for dismissal of a

pleading for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Whether personal jurisdiction

may be exercised over an out-of-state defendant is a question of law for the court. Vetrotex

Certainteed Corp. v. Consolidated Fiber Glass Products Co., 75 F.3d 147, 150 (3d Cir. 1996).

The plaintiff bears the burden of establishing personal jurisdiction. O'Connor v. Sandy Lane

Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007). A federal court may exercise personal

jurisdiction over a non-resident defendant to the extent permissible under the law of the forum

state. Fed. R. Civ. P. 4(k)(1)(A). Personal jurisdiction may be either general or specific, and both

the quality and quantity of the necessary contacts differs according to which sort of jurisdiction

applies. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 412, 104 S.Ct. 1868,

80 L.Ed.2d 404 (1984).

C. Discussion

RSC and JDS argue that they are not subject to general jurisdiction because neither are

headquartered or incorporated in Pennsylvania. RSC, and JDS by joinder, contends that,

despite its business registration in Pennsylvania, the exercise of general-jurisdiction-by-corporate

-registration is unconstitutional. Mr. Bogle maintains that prevailing case law holds that a

foreign jurisdiction consents to jurisdiction when it registers its business under Pennsylvania’s

corporate registration statute.

General jurisdiction may be asserted over a defendant even when the cause of action has

no relation to the defendant's contacts with the forum if the defendant's “ ‘affiliations with the

[s]tate are so ‘continuous and systematic’ as to render them essentially at home in the forum

[s]tate.’ ” Daimler AG v. Bauman, 571 U.S. 117, 128 (2014) (quoting Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 920 (2011)).

Under Pennsylvania's jurisdictional statute, consent may also serve as a basis for

jurisdiction:

(a) The existence of any of the following relationships between a person and this

Commonwealth shall constitute a sufficient basis for jurisdiction to enable the

tribunals of this Commonwealth to exercise general personal jurisdiction over such

person, or his personal representative in the case of an individual, and to enable

such tribunals to render personal orders against such person or representative:

....

(2) Corporations.—

(i) Incorporation under or qualification as a foreign corporation under the

laws of this Commonwealth.

(ii) Consent, to the extend authorized by the consent.

(iii) The carrying on of a continuous and systematic part of its general

business within this Commonwealth.

42 Pa.C.S. § 5301(a)(2). Since 1991, the Third Circuit has held that business registration under

§ 5301 was a sufficient basis for Pennsylvania courts to exercise personal jurisdiction over a

company. Bane v. Netlink, Inc., 925 F.2d 637, 641 (3d Cir. 1991). In its analysis, Bane noted

that “[c]onsent is a traditional basis for assertion of jurisdiction long upheld as constitutional.” Id.

Defendants contend that Pennsylvania’s jurisdictional statute violates its Due Process rights by

expanding the scope of “general personal jurisdiction” beyond the holdings of Daimler.

Defendants also argue that Bane is no longer good law given the pronouncements in Daimler.

A majority of district courts within the Third Circuit who have considered the

constitutionality of the consent-by-registration statute have held that it validly confers general

personal jurisdiction upon defendants.1 As one such court observed, despite Daimler’s holding,

the Supreme Court “did not address ‘the interplay between consent to jurisdiction and the due

process limits of general jurisdiction.’ ” Kraus v. Alcatel-Lucent, 441 F. Supp. 3d 68, 75 (E.D. Pa.

2020) (quoting Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., Civ. A. No. 16-665,

2017 WL 3129147, at *11 (E.D. Pa. Jul. 24, 2017)). And just a few years prior to Daimler, The

Supreme Court indicated that “[a] person may submit to a State's authority in a number of ways....

[including] explicit consent.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011).

Despite Defendants’ contentions that Supreme Court jurisprudence has evolved on

personal jurisdiction and other jurisdictions have struck consent-by-registration statutes, Bane

still controls. Unless and until either the Third Circuit, United States Supreme Court, or the

Pennsylvania Supreme Court2 holds to contrary, this Court will not depart from Bane’s holding.

1 See e.g. Healthcare Servs. Grp., Inc. v. Moreta, Civ. A. No. 19-2260, 2019 WL

6117353, at *6 (E.D. Pa. Nov. 15, 2019); Sciortino v. Jarden, Inc., 395 F. Supp. 3d 429, 438

(E.D. Pa. 2019); Williams v. Takeda Pharm. Am., Inc., Civ. A. No. 18-4774, 2019 WL 2615947,

at *3 (E.D. Pa. June 26, 2019); Aetna Inc. v. Kurtzman Carson Consultants, LLC, Civ. A. No.

18-470, 2019 WL 1440046, at *4–6 (E.D. Pa. Mar. 29, 2019); Gorton v. Air & Liquid Sys. Corp.,

Civ. A. No. 1:17-1110, 2019 WL 757945, at *5–6 (M.D. Pa. Feb. 20, 2019); Youse v. Johnson &

Johnson, Civ. A. No. 18-3578, 2019 WL 233884, at *3–4 (E.D. Pa. Jan. 16, 2019); Shipman v.

Aquatherm L.P., Civ. A. No. 17-5416, 2018 WL 6300478, at *2 (E.D. Pa. Nov. 28, 2018); Aetna

Inc. v. Mednax, Inc., Civ. A. No.18-2217, 2018 WL 5264310, at *4–5 (E.D. Pa. Oct. 23, 2018);

Mendoza v. Electrolux Home Prod., Inc., No. 4:17-CV-02028, 2018 WL 3973184, at *3–4 (M.D.

Pa. Aug. 20, 2018); Allstate Ins. Co. v. Electrolux Home Prod, No. 5:18-CV-00699, 2018 WL

3707377, at *4-5 (E.D. Pa. Aug. 3, 2018); Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d

278, 298 (M.D. Pa. 2018); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., Civ. A.

No. 16-665, 2017 WL 3129147, at *11 (E.D. Pa. July 24, 2017); Bors v. Johnson & Johnson,

208 F. Supp. 3d 648, 655 (E.D. Pa. 2016).

2 The Pennsylvania Supreme Court is currently considering whether 42 Pa.C.S. §

5301(a)(2)(i) is constitutional. See Mallory v. Norfolk S. Ry. Co., No. 802 EDA 2018, 2020 Pa.

Super. Unpub. LEXIS 3425 (Pa. Super. Ct. Oct. 30, 2020). The case is docketed at the

Pennsylvania Supreme Court as No. 3 EAP 2021.

Here, the submissions by the parties do not dispute that both JDS and RSC registered as foreign

businesses pursuant to Pennsylvania’s registration statute. Therefore, because Pennsylvania’s

foreign business consent statute is enforceable under Bane, the Court may maintain general

jurisdiction over both Defendants. Because the general jurisdiction analysis is dispositive, the

Court need not undertake a specific jurisdiction analysis.

Accordingly, Defendants’ Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(2), for

lack of personal jurisdiction, will be denied.

II. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

A. Background

Mr. Bogle alleges that he “came into possession” and used one of Defendants’ “Hold-Zit”

straps. (ECF No. 1 at ¶ 16). On March 22, 2019, Mr. Bogle alleges he suffered injuries while

using the Hold-Zit strap when it unexpectedly failed and broke. Id. at ¶ 17. Mr. Bogle avers that

Defendants expressly warranted and guaranteed the Hold-Zit strip for life. Id. at ¶ 15. Mr. Bogle

also avers that Defendants are strictly liable as a result of Defendants’ design, manufacture,

distribution, and/or sale of the unreasonably dangerous and defective “Hold-Zit” strap. Id. at ¶¶

28, 51.

In their Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), Defendants argue that

Mr. Bogle’s claims for strict liability (Counts I and VI), breaches of express warranty (Counts II

and VII), breaches of implied warranty of merchantability(Counts III and VIII), breaches of

implied warranty of fitness for a particular purpose (IV and IX), and claims under the

Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) (V and X) are

precluded under Pennsylvania law and/or are inadequately pleaded.

B. Standard of Review

When reviewing a motion to dismiss, pursuant to Federal Rule of Civil Procedure

12(b)(6), the court must “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir.

2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). “To survive a

motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 556); see also Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir.

2014). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations of a complaint must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A

pleading party need not establish the elements of a prima facie case at this stage; the party must

only “put forth allegations that ‘raise a reasonable expectation that discovery will reveal

evidence of the necessary element[s].’” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d

Cir.2009) (quoting Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL 2312671 (W.D. Pa.

June 4, 2008)); see also Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir.2016)

(“Although a reviewing court now affirmatively disregards a pleading’s legal conclusions, it

must still . . . assume all remaining factual allegations to be true, construe those truths in the light

most favorable to the plaintiff, and then draw all reasonable inferences from them.”) (citing

Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n. 1 (3d Cir.2014)).

Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal

conclusions cast in the form of factual averments. Morse v. Lower Merion School District, 132

F.3d 902, 906, n. 8 (3d Cir.1997). The primary question in deciding a motion to dismiss is not

whether the Plaintiff will ultimately prevail, but rather whether he or she is entitled to offer

evidence to establish the facts alleged in the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d

Cir.2000). The purpose of a motion to dismiss is to “streamline [ ] litigation by dispensing with

needless discovery and factfinding.” Neitzke v. Williams, 490 U.S. 319, 326–327, (1989).

When a court grants a motion to dismiss, the court “must permit a curative amendment

unless such an amendment would be inequitable or futile.” Great Western Mining & Mineral Co.

v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (internal quotations omitted). Further,

amendment is inequitable where there is “undue delay, bad faith, dilatory motive, [or] unfair

prejudice.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Amendment is

futile “where an amended complaint ‘would fail to state a claim upon which relief could be

granted.’ ” M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 631 (E.D. Pa. 2015)

(quoting Great Western Mining & Mineral Co., 615 F.3d at 175).

C. Discussion

1. Strict Liability

Defendants argue that, due to the sparse allegations in the Complaint, they cannot discern

which theory or theories under Restatement (Second) of Torts Section 402A that Mr. Bogle is

pursuing. They also maintain that, even under a design defect or manufacturing defect theory of

strict liability, Mr. Bogle’s Complaint fails to allege sufficient facts to support the elements of

any 402A claim. Mr. Bogle maintains that his Complaint provides sufficient “notice” of the

causes of action brought against Defendants. He further supports this contention by indicating

that he forwarded emails, letters, liability expert reports, and exhibits to the Defendants pre-suit.

Before discussing the governing law and elements of strict liability, this Court would note

that it may not consider allegations raised for the first time in a plaintiff's opposition to a motion

to dismiss. See Pennsylvania ex rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.

1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a

motion to dismiss.”). Therefore, on a motion to dismiss, the Court must ignore any allegations

that do not appear in the Complaint. As to strict liability, Mr. Bogle offers a single paragraph

against each Defendant, which states:

[Defendants are] strictly liable to compensate the Plaintiff for all of the harm,

pain, suffering, and all damages, past, present and future as a result of JDS’s [and

RSC’s] design, manufacture, distribution, and/or sale of the unreasonably

dangerous and defective “Hold-Zit” strap which injured the Plaintiff as the law

provides in Rule 402A Strict Liability.

(ECF No. 1 at ¶¶ 28 and 51).

Pennsylvania product-liability law remains governed by the Restatement (Second) of

Torts, § 402A (“Section 402A”). Tincher v. Omega Flex, Inc., 104 A.3d 328, 399 (Pa. 2014).

Under Section 402A, “a plaintiff must show that the (1) product was defective, (2) the defect

proximately caused the plaintiff’s injury, and (3) the defect existed at the time the product left

the defendant’s control.” Nathan v. Techtronic Indus. N. Am., Inc., 92 F. Supp. 3d 264, 269

(M.D. Pa. 2015) (citation omitted). “A plaintiff may establish a ‘defective condition [in one of

three ways]. . . by proving either [1] a manufacturing defect, [2] a design defect, or [3] a failure-

to-warn defect.’” Wallace v. Boston Scientific Corp., No. 3:18-cv-1839, 2018 WL 6981220, at *6

(M.D. Pa. Nov. 29, 2018) (quoting Smith v. Howmedica Osteonics Corp., 251 F. Supp. 3d 844,

847 (E.D. Pa. 2017)).

When evaluating the allegations in a complaint, a court is free to ignore legal conclusions

or factually unsupported accusations that merely state, “the-defendant-unlawfully-harmed-me.”

Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Here, Mr. Bogle’s arguments on notice pleading are unavailing. The notice pleading

standard in federal court has evolved under Twombly and Iqbal, and the pleader must be mindful

of those changes. Moreover, allegations cannot be buttressed through briefing and attachments.

A complaint is the operative document that governs the pleading stages. Even under a more

relaxed pre-Twombly/Iqbal standard, notice is absent here. While Mr. Bogle has certainly named

a cause of action and an alleged injury, the Complaint does not place the defendants on notice on

which strict liability theory or theories that he will pursue. Therefore, Mr. Bogle has not

adequately pleaded a claim for strict liability, which describes the legal theory and supporting

factual allegations for the elements of those theories. Given the lengths that Mr. Bogle has

undergone, both pre-Complaint and in his briefing, to refute Defendants’ contentions here, leave

to amend will be appropriate.

Accordingly, Defendants’ Motions to Dismiss, as regards Mr. Bogle’s strict liability

claims (Counts I and VI), will be granted. Mr. Bogle will be granted leave to amend.

2. Express Warranty

Defendants next argue that Plaintiff’s breaches of express and implied warranties fail as a

matter of law because he did not purchase the subject product. Mr. Bogle has not responded

specifically to the legal arguments set forth in Defendants’ motions. Instead, Mr. Bogle only

offered an extrinsic affidavit in response. As discussed above, the Court will ignore any

allegations or evidence not appearing in the Complaint.

Under Pennsylvania's Commercial Code,

Express warranties by the seller are created as follows:

(a) 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.

(b) 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.

13 Pa.C.S.A. § 2313 (emphasis supplied). “To create an express warranty, the seller must

expressly communicate the terms of the warranty to the buyer in such a manner that the buyer

understands those terms and accepts them.” Goodman v. PPG Industries, Inc., 849 A.2d 1239,

1243 (Pa. Super. 2004), aff'd, 885 A.2d 982 (Pa. 2005). A party who did not purchase a product

directly from the manufacturer may only enforce an express warranty “under circumstances

where an objective fact-finder could reasonably conclude that: (1) the party issuing the warranty

intends to extend the specific terms of the warranty to the third party (either directly, or through

an intermediary); and (2) the third party is aware of the specific terms of the warranty, and the

identity of the party issuing the warranty.” Xia Zhao v. Skinner Engine Co., No. 2:11-cv-07514-

WY, 2012 WL 5451817, at *10 (E.D. Pa. Nov. 8, 2012) (quoting Goodman, 849 A.2d at 1243).

Here, Mr. Bogle has not alleged in his Complaint, which is the only operative document

before the Court on a motion to dismiss, that he purchased a “Hold Zit” strap. He has alleged

that he “came into possession” of it. (ECF No. 1 at ¶ 16). Such allegation is insufficient to

establish that Mr. Bogle was either a buyer or would fall within the exceptions enumerated

above. Without sufficient allegations, Mr. Bogle cannot support a breach of express warranty

claim.

Accordingly, Defendants, Motions to Dismiss, as regards Mr. Bogle’s breaches of

express warranty claims (Counts II and VII), will be granted. Mr. Bogle will be granted leave to

amend.

3. Implied Warranty of Merchantability and Fitness for Particular Purpose

Defendants likewise argue that Mr. Bogle’s Implied Warranty of Merchantability and

Fitness for a Particular Purpose claims fail because he has not alleged that he purchased the

subject product. Further, Defendants contend that Mr. Bogle’s breach of implied warranty of

fitness for a particular purpose fails because he has not alleged that he was using the subject

product for anything other than its ordinary purpose. As above, Mr. Bogle has not responded

specifically to the legal arguments set forth in Defendants’ motions. Instead, Mr. Bogle only

offered his extrinsic affidavit in response. As discussed above, the Court will ignore any

allegations or evidence not appearing in the Complaint.

The Pennsylvania Commercial Code proscribes that “a warranty that the goods shall be

merchantable is implied in a contract for their sale if the seller is a merchant with respect to

goods of that kind.” 13 Pa.C.S. §2314 (emphasis supplied). The Code additionally provides that:

where the seller at the time of contracting has reason to know: (1) any particular purpose for

which the goods are required; and (2) that the buyer is relying on the skill or judgment of the

seller to select or furnish suitable goods; there is…an implied warranty that the goods shall be fit

for such purpose. 13 Pa.C.S. §2315 (emphasis supplied). “Both the implied warranty of

merchantability and the warranty of fitness for a particular purpose arise by operation of law and

serve to protect buyers from loss where the goods purchased are below commercial standards or

are unfit for the buyer's purpose.” Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102,

1105 (3d Cir. 1992). “The entire purpose behind the implied warranty sections of the Code is to

hold the seller responsible when inferior goods are passed along to the unsuspecting buyer.”

Vlases v. Montgomery Ward & Co., 377 F.2d 846, 850 (3d Cir. 1967).

With regard to fitness for a particular purpose, it has been observed:

A “particular purpose” differs from the “ordinary purpose” for which the goods

are used in that it envisages a specific use by the buyer which is peculiar to the

nature of his business whereas the ordinary purposes for which goods are used are

those envisaged in the concept of merchantability and go to uses which are

customarily made of the goods in question.

Gall by Gall v. Allegheny Cty. Health Dep’t, 555 A.2d 786, 790 (Pa. 1989).

Here, again, Mr. Bogle has not alleged that he purchased the Subject Product. The

Complaint alleges no buyer or seller. Mr. Bogle only alleges that he “came into possession” of

the Subject Product. He has also not alleged that he used the Subject Product for a non-ordinary

purpose. Therefore, Mr. Bogle has not alleged facts that could lead to recovery under his claims

for Breaches of Implied Warranties of Merchantability and/or Fitness for Particular Purpose.

Accordingly, Defendants, Motions to Dismiss, as regards Mr. Bogle’s Breach of Implied

Warranties of Merchantability and Fitness for Particular Purpose (Counts III, IV and VIII, IX),

will be granted. Mr. Bogle will be granted leave to amend.

4. UTPCPL

Finally, Defendants contend that Mr. Bogle’s UTPCPL claim fails because he has

neither pleaded that he purchased or leased the subject product nor has he pleaded the requisite

elements to state a claim for a private cause of action under the UTPCPL. Mr. Bogle has again

not responded specifically to the legal arguments set forth in Defendants’ motions and offered

only extrinsic affidavit in response. The Court will again ignore any allegations or evidence not

appearing in the Complaint.

The UPTCPL prohibits the following:

(ii) Causing likelihood of confusion or of misunderstanding as to the source,

sponsorship, approval or certification of goods or services; or

…

(v) Representing that goods or services have sponsorship, approval,

characteristics, ingredients, uses, benefits or quantities that they do not have or

that a person has a sponsorship, approval, status, affiliation, or connection that he

does not have.

73 PA.C.S.A. §§201-2(4)(ii); 201-2(4)(v). A private cause of action may be brought under the

UTPCPL by,

Any person who purchases or leases goods or services primarily for by:

personal, family or household purposes and thereby suffers any ascertainable loss

of money or property real or personal as a result of the use or employment by any

person of a method, act or practice declared unlawful by section 3 of this act may

bring a private action to recover actual damages or one hundred dollars ($100),

whichever is greater.

73 PA.C.S.A. §§209-2(a) (emphasis added). “A private plaintiff pursuing a claim under the

[UTPCPL] must prove justifiable reliance on the unlawful conduct, not merely that the wrongful

conduct caused plaintiff's injuries.” Seldon v. Home Loan Services, Inc., 647 F. Supp. 2d 451,

465 (E.D. Pa. 2009) (quoting Hunt v. U.S. Tobacco Co., 538 F.3d 217, 221 (3d Cir.2008)). “The

Supreme Court of Pennsylvania has held that a plaintiff bringing an action under the UTPCPL

must prove the common law fraud elements of reliance and causation with respect to all

subsections of the UTPCPL.” Santana Prods, Inc. v. Bobrick Washroom Equip., Inc., 401 F.3d

123, 136 (3d Cir. 2005); (citing Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001)).

Here, again, Mr. Bogle has not alleged that he purchased or leased the Subject Product.

Without such allegation, he cannot support a private cause of action under the UTPCPL.

Furthermore, even had Mr. Bogle alleged that he purchased the subject product, the Complaint

does not allege the requisite facts and elements, as outlined by the statute and case law above, to

support a UTPCPL claim. Therefore, Mr. Bogle has not sufficiently alleged a UTPCPL claim.

Accordingly, Defendants, Motions to Dismiss, as regards Mr. Bogle’s UTPCPL claims

(Counts V and X), will be granted. Mr. Bogle will be granted leave to amend.

III. Conclusion

Following consideration of Mr. Bogle’s Complaint (ECF No. 1), Defendants’ Motions to

Dismiss (ECF No. 8 and 11), the respective briefs and responses of the parties (ECF Nos. 9, 12,

24-26 and 29-30), and for the foregoing reasons, Defendants’ Motion to Dismiss pursuant to Fed.

R. Civ. P. 12(b)(2) will be denied, and Defendants’ Motion to Dismiss pursuant to Fed. R. Civ.

P. 12(b)(6) will be granted. Mr. Bogle will be granted leave to amend. A separate order will

follow.

DATED this 16" day of July, 2021.

BY THE COURT:

United States District Judge

15