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EASLING v. GLEN-GERY CORP.

July 21, 1992

HOWARD EASLING, et al., Plaintiffs,
v.
GLEN-GERY CORPORATION, Defendant.



The opinion of the court was delivered by: JEROME B. SIMANDLE

 SIMANDLE, DISTRICT JUDGE:

 Currently before the court is defendant's motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the first count of plaintiffs' complaint. For the following reasons, the motion will be granted.

 I. Factual and Procedural Background

 On or about August, 1971, plaintiffs, Drs. Howard and Vera Easling, purchased the Pennypoint Park Apartments ("Pennypoint"). Plaintiff's complaint at P 2. Pennypoint had recently been constructed in Pleasantville, New Jersey by Bacharach Village, Inc., a non-party to this action. Id. Bacharach purchased at least some of the bricks used in the various buildings from defendant Glen-Gery Corporation ("Glen-Gery"), a Delaware corporation doing business in Reading, Pennsylvania. Id. at P 3.

 On or about April, 1991, plaintiffs noticed that the bricks in the exterior walls of the apartment buildings had begun to crumble. Id. at P 4. This deterioration allegedly continues into the present "in a manner that seems to be accelerating, with substantial pieces of brick detaching from the walls." Id. at P 5. The complaint alleges that the deteriorating bricks "have caused substantial damage to the apartment buildings and present a hazard to the safety of residents thereof." Id. at P 6. The complaint does not allege that the bricks have tumbled onto or otherwise injured persons or property outside of the building. At oral argument, counsel for plaintiffs indicated that the deterioration of the bricks may have led to rain damage to studs in the walls of the buildings.

 Plaintiffs' complaint attempts to set forth two separate causes of action. The first count asserts that defendant's bricks were not reasonably fit, suitable or safe for their intended purpose, and that defendant is therefore strictly liable in tort for plaintiffs' damages. Plaintiffs' second count asserts that defendant's alleged misconduct of providing unsatisfactory bricks constitutes a breach of express or implied warranties of merchantability and future performance.

 This matter comes before the court upon defendant's motion to dismiss the first count of the complaint. For the following reasons, the motion will be granted.

 II. DISCUSSION

 When considering a motion to dismiss for failure to state a claim upon which relief can be granted, the reviewing court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir. 1980), cert. denied, Mark-Garner Associates, Inc. v. Bensalem Township, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981) see also Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (stating that allegations of a complaint should be favorably construed for the pleader). A court may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150, 80 L. Ed. 2d 196, 104 S. Ct. 1723, n.3 (1984), (quoting Conley, 355 U.S. at 47).

 A. Choice of Law

 Plaintiff argues that New Jersey law applies to the instant motion. Defendant states that while it does not adopt plaintiffs' conflict of law analysis, it will "assume the applicability of New Jersey law for purposes of this motion." Defendant's Reply Brief at 3, fn. 1. Defendant reiterated this position at oral ...


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