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Angela Glauberzon, Jeffrey S. v. Pella Corp. and Pella Windows and Doors

April 5, 2011

ANGELA GLAUBERZON, JEFFREY S. BATOFF, SUSAN M. BATOFF, JANET BLASKO, WILLIAM BARTZ, KALENE BARTZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
PELLA CORP. AND PELLA WINDOWS AND DOORS, INC., DEFENDANTS.



The opinion of the court was delivered by: Linares, District Judge.

NOT FOR PUBLICATION

OPINION

This matter comes before the Court by way of Defendants' (Pella Corp. and Pella Windows and Doors, collectively referred to as "Pella") motion to dismiss the Amended Complaint in this matter pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has considered the submissions made in support and in opposition to the instant motion and no oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Defendants' motion is granted in part and denied in part.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

Plaintiffs bring the instant putative class action individually and on behalf of all owners of Pella's factory made window and door combinations. At all times relevant to this litigation, Pella, an Iowa corporation with its principal place of business located in Pella, Iowa, has been in the business of marketing, promoting and selling, inter alia, factory made window and door combinations. (Am. Compl., ¶¶ 9, 10). "Combinations are a grouping of windows (and sometimes include a door) assembled together in the factory within a single larger frame with a reinforcing connector between each window (and door) called a mullion." (Id. at ¶ 1). The mullion carries the weight of the grouping of windows and serves to protect against wind, storms and other natural elements. (Id. at ¶ 2). Plaintiffs allege, generally, that all Pella factory made window combinations contain a defective mullion design which allows water to penetrate the aluminum mullion. (Id. at ¶ 43). Plaintiffs also allege that Pella knew about this defect but failed to disclose same to its consumers. (Id. at ¶¶ 13, 17).

Plaintiff Glauberzon

Plaintiff Angela Glauberzon, a resident of New Jersey, purchased a home in 2003; her home was constructed in 1995 with Pella factory made window combinations. (Id., ¶ 24). In or about 2007, Glauberzon discovered initial wood rot, wood and paint cracking, condensation, gaps between the windows and molding and was unable to close her window. (Id., ¶ 27). She contacted Pella in 2009. (Id., ¶ 28). Despite being aware of the mullion design defect, Pella recommended that Glauberzon replace the locks on her windows, which she did, resulting in an out of pocket expense of $150. (Id., ¶¶ 28, 30). Even after replacing the locks, Glaumberzon continues to experience the same problems and will be forced to replace her window combinations altogether. (Id., ¶ 29).

The Batoff Plaintiffs

Jeffrey and Susan Batoff, citizens of Pennsylvania, constructed a custom home in 1991 and Pella windows and doors were installed throughout. (Id. at ¶ 31). After a few years, the windows began to leak. (Id.). In October 2007, the Batoffs replaced thirty-eight of the windows which had been installed in 1991 with newer, Pella Designer Series aluminum-clad wood casement, windows at a cost of $24,625. (Id.).In June of 2009, the Batoffs noticed that four sets of the newly installed Pella factory window combinations were leaking water and that there was water damage to the windows' wood frame and surrounding areas. On August 31, 2009, the Batoffs sent a letter to Pella which stated, in pertinent part: the "windows installed by [Pella's authorized regional dealer] and Pella are defective and leaking. Please accept this letter as notice of a claim to that effect." (Id. at ¶ 33). Pella disclaimed any responsibility and instead blamed the leaks on faulty installation. (Id. at ¶ 34). As a result, the Batoffs contacted the authorized Pella window installer who had installed the windows and asked him to perform a water test on said windows. The results indicated that "water is entering thru [sic] the horizontal and vertical mulls." (Id. at ¶ 35). The Batoffs subsequently contacted Pella to complain and exercise their rights under the Pella Window warranty. (Id. at ¶ 37). The Batoffs' Pella windows continue to leak water from the mullion defect. (Id. at ¶ 38). To date, Pella has failed to respond to their complaints and has failed to honor the applicable warranty. (Id. at ¶ 39).

Plaintiff Blasko

Janet Blasko's home was constructed in 1997 with Pella factory made window combinations, all of which contained defective mullions. (Am. Compl., ¶¶ 41, 43). Blasko first discovered wood rot near one of her Pella windows in 2006. Pella recommended that Blasko replace the window, which she did, resulting in an out of pocket expense of $125.00. (Id. at ¶ 44). Blasko discovered wood rot beneath another Pella window in 2008. (Id. at ¶ 45). Pella again recommended that Blasko replace the window, which she did, resulting in an out of pocket expense of $376.60. (Id.). In 2009, Blasko discovered wood rot beneath a third Pella window. (Id. at ¶ 46). At Pella's recommendation, she replaced this window for $297.30. (Id.). Blasko has since discovered two additional Pella windows "that are rotten at the bottom." (Id. at ¶ 47). Pella has repeatedly refused to replace the factory made window combinations claiming that they were no longer covered by the applicable warranty. (Id. at ¶ 48).

The Bartz Plaintiffs

The Bartz Plaintiffs' home was completed in 1995 with Pella factory made window combinations. (Am. Compl., ¶ 51). The Bartz Plaintiffs, citizens of Wisconsin, discovered initial wood rot, wood and paint cracking, condensation, gaps between the windows and the molding and window warping in or about 2007. (Id. at ¶ 55). Pella refused to correct the problems because the window combinations were no longer under warranty. (Id.). As a result of continued deterioration, the Bartz Plaintiffs were forced to replace six Pella factory made window combinations in 2009, resulting in their out of pocket expense of $4,000.00. (Id. at ¶ 56). In 2010, they were forced to replace an additional three Pella factory made window combinations at a cost of $1,900. (Id. at ¶ 57).

Presently, the Bartz Plaintiffs must replace an additional fourteen (14) Pella factory made window combinations as a result of wood rot, paint and wood cracking, and an inability to close. (Id. at ¶ 58).

Thus, Plaintiffs all maintain that prior to the purchase of their respective Pella combination windows, Pella was aware that its mullions contained an inherent defect, that all its window combinations contained this defective mullion design, and that such defect might not exhibit itself until after the expiration of the warranty period. Plaintiffs further maintain that Pella did not disclose such defect to (and/or affirmatively concealed such defect from) its consumers, and, in doing so, has avoided honoring its warranty. In light of the foregoing acts and/or omissions, Plaintiffs filed an original complaint in this matter on November 15, 2010. An Amended Complaint was filed on January 4, 2011. This Court's jurisdiction over this matter is premised on 28 U.S.C. § 1332.*fn2

Plaintiffs bring the following categories of claims against Pella: violation of various states' consumer protection laws, violation of the Magnusson-Moss Warranty Act, common law fraud, breach of implied warranty of merchantability, breach of express warranty and unjust enrichment. Plaintiffs seek to bring such claims on behalf of California, Wisconsin, Illinois, Michigan, New Jersey, New York, Pennsylvania, North Carolina and Florida sub-classes. Pella now seeks dismissal of Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn3

LEGAL STANDARD

For a complaint to survive dismissal, it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [;][t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. Additionally, in evaluating a plaintiff's claims, generally "a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). With this framework in mind, the Court tuns now to Defendants' motion.

DISCUSSION

As a preliminary matter, the Court notes that Plaintiffs have asserted an overarching claim of fraudulent concealment. See Am. Compl., ¶ 76 ("Thus, running of the statute of limitations has been tolled with respect to any claims that Plaintiffs or the Class have brought or could have brought as a result of the unlawful and fraudulent course of conduct described herein."). It is not entirely clear to the Court which claims are asserted as timely (that is, as brought within the original statute of limitations period) and which claims are asserted as viable by virtue of the equitable tolling doctrine of fraudulent concealment (or both). Such pleading fails to comply with the requirements of Federal Rule of Civil Procedure 8(a)(2) which "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' " Twombly, 550 U.S. at 555. (quotations omitted). Without such information, Defendant is not in a position to properly assess the timeliness of Plaintiffs' claims, and, as a result, the Court is being asked to assess the sufficiency of a variety of claims, by various Plaintiffs, from various states, in the abstract. Based on other reasons, more fully set forth below, the Court has dismissed the majority of those claims asserted in Plaintiffs' Amended Complaint without prejudice. To the extent Plaintiffs choose to file a Second Amended Complaint, Plaintiffs are each directed to more clearly delineate the theory (or theories) underlying each particular claim asserted, as required by Rule 8.

A. Fraud-Based Claims

Having closely reviewed the allegations set forth in Plaintiffs' Amended Complaint, the Court finds that the following claims all hinge on allegations of fraud: (1) violation of the implied warranty of merchantability, (2) violation of the Magnuson-Moss Warranty Act, (3) violation of various states' consumer fraud acts, and (4) common law fraud. Pursuant to Federal Rule of Civil Procedure 9(b):

A plaintiff alleging fraud must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the 'precise misconduct with which [it is] charged.' To satisfy this standard, the plaintiff must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.

Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007). Based on the reasons that follow, the Court finds that Plaintiffs' allegations of fraud are insufficient to meet Rule 9(b)'s heightened pleading standard. As a result, the foregoing claims will be dismissed without prejudice.

1. Implied Warranty of Merchantability and Magnuson-Moss Warranty Act Claims

Count of One of Plaintiffs' Amended Complaint alleges that:

Pella knew or had reason to know of the ordinary use for which the factory made window and door combinations were purchased and impliedly warranted that these combinations were of merchantable quality and fit for such use as residential or commercial structure windows and doors. Contrary to these representations, Pella's factory made window and door combinations are defective as they contain an inherent defect which allows water to get behind the aluminum mullion and rot out the wood components of these factory made combinations.

(Am. Compl., ¶ 79). Count Two of Plaintiffs' Amended Complaint alleges a claim for violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2201, et seq. This claim is derivative of Plaintiffs' state law claim of breach of implied warranty (asserted in Count One). See Am. Compl., ¶ 97; see generally Cooper v. Samsung Elecs. Am., Inc., No. 07-3853, 2008 WL 4513924, at *6 (D.N.J. Sept. 30, 2008) ("Magnuson-Moss claims based on breaches of express and implied warranties under state law depend upon those state law claims.").

Pella moves to dismiss the breach of implied warranty claims (brought by Glauberzon, Blasko and the Barz Plaintiffs) on the basis that such claims are untimely. Pella also seeks dismissal of this claim, as to Blasko and the Bartz Plaintiffs, because Plaintiffs have failed to allege the requisite element of privity.

a. Timeliness of Implied Warranty of Merchantability Claim

According to Pella, such claims are barred by the applicable statute of limitations. The Court need not make findings as to the applicable statute of limitations under New Jersey, Illinois and/or Wisconsin law at this time because the foregoing Plaintiffs do not expressly dispute that they have sued Pella outside the relevant limitations period; rather, it appears that the foregoing Plaintiffs have premised their implied warranty claims on the notion that the applicable statute of limitations should be tolled by virtue of the equitable tolling doctrine of fraudulent concealment. In particular, Plaintiffs allege, generally, ...


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