                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-1997

Suber v. Chrysler Corporation
Precedential or Non-Precedential:

Docket 95-5735




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                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                                95-5735



                           JAMES SUBER,

                                                 Appellant

                                  v.

                       CHRYSLER CORPORATION

                                  v.

            KONTINENTAL KOACHES,INC., a/k/a and d/b/a
                    KONTINENTAL KONVERSIONS,

                                          Third-party defendant

                      CHRYSLER CORPORATION,

                                          Third-party plaintiff



         On Appeal from the United States District Court
                 For the District of New Jersey
                    D.C. Civ. No. 94-cv-00467



                      Argued:    July 25, 1996

     Before:   BECKER, STAPLETON, and MICHEL, Circuit Judges*
                 (Opinion Filed January 16, 1997)




ROBERT M. SILVERMAN, ESQUIRE (ARGUED)
Cynthia M. Certo, Esquire
Kimmel & Silverman
630 Sentry Park
Suite 310
     *
       The Honorable Paul R. Michel, United States Circuit Judge
for the Federal Judicial Circuit, sitting by designation.



                                  1
Blue Bell, PA   19422

Counsel for Appellant

KEVIN M. MCKEON, ESQUIRE (ARGUED)
Marshall, Dennehey, Warner,
 Coleman & Goggin
Three Greentree Center
Suite 304
Marlton, NJ   08053-3405

Counsel for Appellee




                         OPINION OF THE COURT



BECKER, Circuit Judge.


          This appeal in a "Lemon law" case presents the question

whether the district court erred in dismissing for lack of

subject matter jurisdiction the claims of the plaintiff, James

Suber, brought against Chrysler Corporation on account of alleged

defects in the 1993 Dodge Ram 250 Conversion Van that he

purchased from a Chrysler dealership, Cherry Hill Dodge.   The

district court held that Suber's claims failed to meet the

$50,000 amount in controversy requirement of the federal

diversity statute, 28 U.S.C. § 1332, inasmuch as: (1) the New

Jersey Consumer Fraud Act was inapplicable, rendering Suber

ineligible for the treble damages that are available under that

statute; and (2) Suber's remaining claims did not satisfy the

jurisdictional requirement.

          We review the dismissal of Suber's complaint for

failure to establish subject matter jurisdiction, hence we

consider only whether plaintiff's claims, taken as true, allege


                                  2
facts sufficient to invoke the jurisdiction of the district

court.   Licata v. U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir.

1994).   Because we find that the district court dismissed the

complaint without properly evaluating Suber's claims under the

prevailing standard of St. Paul Mercury Indemnity Co. v. Red Cab

Co., 303 U.S. 283 (1938), we vacate and remand for further

proceedings.

                               I. Facts1
            Suber purchased the Dodge van from Cherry Hill Dodge

("the dealership") on April 28, 1993.2     Prior to Suber's

purchase, Kontinental Koaches, Inc., a third-party defendant,

renovated the van, installing new seats, carpeting, upholstery, a

sofa, and other accessories.    The sticker price of the car, with

these improvements, was approximately $29,895.00.     Almost

immediately after taking possession, Suber discovered problems

with the van, especially its suspension.     In particular, the van

had a tendency to "bottom out," even on relatively smooth road

surfaces.

            Suber avers that he returned the van to the dealer at

least four times over the course of several months.     When he

returned the van on May 10, 1993, he complained of the "bottoming

out," as well as a harsh ride, steering drift, and other defects.

 One week later, on May 17, 1993, he complained about the van's
     1
      The facts are drawn from Suber’s complaint, Suber’s
deposition testimony, and the briefs and accompanying exhibits
submitted pursuant to Chrysler’s motion for summary judgment.
     2
      It is unclear from the record whether Cherry Hill Dodge is
owned by Chrysler or is privately owned.



                                  3
suspension, steering, brakes, driver's seat, rear door handle,

electrical system, and the running boards.     The dealership told

Suber that nothing was wrong with the van, but balanced the

tires.

            Because the problems with his van persisted, Suber

returned to the dealership on June 9, 1993 with the same

complaints.     The dealership serviced the van, by aligning the

front end and balancing the wheels, but again told Suber that

there was nothing wrong.     A few weeks later, on or around June

25, 1993, the van "bottomed out" so severely that it caused one

of the front tires to go flat.     Suber had the tire replaced on

his own, without returning to the dealership.

            On June 28, 1993, Suber filed a claim with the Customer

Arbitration Board ("CAB"), an informal dispute resolution body

established by Chrysler under the New Jersey Lemon Law, N.J.S.A

56:12-36.     Pursuant to CAB procedures, a Chrysler representative,

George Bomanski, and a dealership employee inspected and road

tested the van.     According to Suber, both men told him that there

was a problem with the van's suspension.    However, the official

report filed by Bomanski stated that the suspension system was

fine.    By letter dated August 5, 1993, the CAB found that Suber's

complaint regarding the suspension was groundless, and it denied

Suber's request for a refund of the purchase price because "the

use, value and safety of [the] vehicle has not been substantially

impaired."3
     3
      The CAB did rule that Chrysler was responsible for
repairing the door panel, handle, and exterior trim, and
performing an oil usage test. It also ruled, however, that the


                                   4
           According to Suber, the suspension problems persisted

through July 1993.   The van failed Pennsylvania motor vehicle

inspection at that time because of its suspension, including

"obviously compressed front springs."      Additionally, Suber claims

that he returned the van to the dealership on two occasions when

the dealership did not supply him with a copy of the repair

invoice.

           On July 16, 1993, Suber again left the van with the

dealership for service.   This appears to be the same day that he

met with Bomanski and the dealership employee for the CAB

inspection.   The dealership told him that it would contact him

when the repairs were completed.       On August 16, 1993, having

heard nothing, he called and was informed that his van was not

yet ready.    He went to the dealership and found his van parked in

the back lot.   The dealership's repair invoices show that the

last work on the van was performed on July 22, 1993.

           Subsequent to Suber's last repair attempt, Chrysler

sent to owners of 1993 and 1994 Dodge Ram Vans and Wagons,

including Suber, a "Customer Satisfaction Notification."      This

notice informed these Dodge owners that the front coil springs on

their vehicles needed to be replaced:
The service is needed to prevent the front suspension
          from bottoming out when traveling over rough
          surfaces. Without the service we are
          offering, the vehicle identified on the
          enclosed form may exhibit a harsh ride or
          suspension noises. We ask that you arrange
          for this important service without delay.


other alleged defects either did not exist or were not the result
of a Chrysler manufacturing defect. App. 305A.



                                   5
In conjunction with this notice, Chrysler sent to its dealers a

"Technical Services Bulletin" dated September 3, 1993 that

detailed the repair work necessary to correct suspension problems

like those experienced by Suber.

            Suber contends that his van's suspension is defective

to this day, and that the van has never passed the Pennsylvania

inspection.   A mechanic retained by Suber's counsel inspected the

car on March 2, 1995 and found that the suspension system was in

an "extremely dangerous condition" and that the car was unsafe to

drive.   In response, Chrysler points out that Suber has continued

to drive the van.   At the time of the CAB inspection in July

1993, the van had 5057 miles on it.    When a Chrysler

representative road tested the van on March 13, 1995, it had

16,514 miles on it.   The Chrysler representative concluded that

the van has no suspension problems.

                       II. Procedural History

            Suber filed a complaint against Chrysler in the

District Court for the District of New Jersey, alleging

violations of the New Jersey Automobile Lemon Law, N.J.S.A §

56:12-29 et seq.; the Magnuson-Moss Warranty Act, 15 U.S.C. §

2301 et seq.; the New Jersey Uniform Commercial Code, N.J.S.A. §

12A:1-101 et seq.; and the New Jersey Consumer Fraud Act,

N.J.S.A. § 56:8-1 et seq. ("NJCFA").    Suber alleged that the

district court had subject matter jurisdiction under the

diversity statute because the amount in controversy exceeds

$50,000.4   Soon after the complaint was filed, the district court
     4
     The Magnuson-Moss Warranty Act requires that the amount in



                                   6
considered sua sponte whether it had subject matter jurisdiction

and issued an Order to Show Cause.     The plaintiff responded by

letter, and the court withdrew the order.      Chrysler then moved

for summary judgment, asserting that the evidence could not

support Suber's legal claims.

           On September 5, 1995, the district court sua sponte

dismissed Suber's complaint for lack of subject matter

jurisdiction, Fed. R. Civ. P. 12(b)(1), holding that the amount

in controversy did not exceed $50,000.      Relying on a New Jersey

Appellate Division decision, D'Ercole Sales, Inc. v. Fruehauf

Corp., 501 A.2d 990 (N.J. Super. Ct. App. Div. 1985), the court

held that the "New Jersey Consumer Fraud Act, which contains a

mandatory treble damage provision, is inapplicable to the case at

bar,"   Mem. Op. at 3-4, because Suber failed to "provide [the

district court] with evidence of defendant's allegedly

unconscionable conduct or 'substantial aggravating circumstances'

surrounding defendant's alleged breach of the express

warranties."   Id. at 3.   Under D’Ercole Sales, breach of warranty

without substantial aggravating circumstances is not actionable

as a NJCFA claim.

           Having found that Suber could not rely on the treble

damages available under the NJCFA to meet the amount in

controversy requirement, the court stated that it was satisfied

"to a legal certainty" that Suber's remaining claims could not

exceed the $50,000 barrier.     Id. at 4.   It reasoned that the

controversy exceed $50,000 to establish federal jurisdiction,
even though it is a federal provision. 15 U.S.C. § 2310(d).



                                   7
maximum amount that the plaintiff could recover under either the

Magnuson-Moss Warranty Act or the Lemon Law is the full refund

price of the vehicle if found defective, $29,895.00.       The court

noted that attorney's fees should be included, but stated that

these fees would have to exceed $20,105.00 to get to the

jurisdictional amount, which it held would be clearly excessive.

Id.

          Suber has filed a timely appeal, contending primarily

that the district court failed to apply the proper test for

determining the amount in controversy.      Our review of the order

dismissing the complaint is plenary.       See Packard v. Provident

Nat'l Bank, 994 F.2d 1039, 1044 (3d Cir.), cert. denied sub nom.

Upp v. Mellon Bank, N.A., 510 U.S. 964 (1993).

          III.   The Amount in Controversy Requirement

          For a plaintiff to establish federal diversity

jurisdiction, the amount in controversy must exceed $50,000,

exclusive of interest and costs.       28 U.S.C. § 1332(a).   The

standard for determining whether a plaintiff's claims satisfy the

amount in controversy requirement was set out by the Supreme

Court in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.
283 (1938), as follows:
The rule governing dismissal for want of jurisdiction
          in cases brought in the federal court is
          that, unless the law gives a different rule,
          the sum claimed by the plaintiff controls if
          the claim is apparently made in good faith.
          It must appear to a legal certainty that the
          claim is really for less than the
          jurisdictional amount to justify dismissal.


Id. at 288-89 (emphasis added) (footnotes omitted); see also



                                   8
Nelson v. Keefer, 451 F.2d 289, 292-93 (3d Cir. 1971).       In

applying the "legal certainty" test established by St. Paul

Mercury, this Court has stated that "dismissal is appropriate

only if the federal court is certain that the jurisdictional

amount cannot be met."    Columbia Gas Transmission Corp. v.

Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995); cf. Lunderstadt v.

Colafella, 885 F.2d 66, 69-70 (3d Cir. 1989) (holding in a

federal question case that "a federal court may dismiss for lack

of jurisdiction only if the claims are 'insubstantial on their

face'").

            Once a good faith pleading of the amount in controversy

vests the district court with diversity jurisdiction, the court

retains jurisdiction even if the plaintiff cannot ultimately

prove all of the counts of the complaint or does not actually

recover damages in excess of $50,000.    St. Paul Mercury, 303 U.S.

at 288.    Accordingly, the question whether a plaintiff's claims

pass the "legal certainty" standard is a threshold matter that

should involve the court in only minimal scrutiny of the

plaintiff's claims.    The court should not consider in its

jurisdictional inquiry the legal sufficiency of those claims or

whether the legal theory advanced by the plaintiffs is probably

unsound; rather, a court can dismiss the case only if there is a

legal certainty that the plaintiff cannot recover more than

$50,000.    As we stated in Lunderstadt, the "threshold to
withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(1) is

thus lower than that required to withstand a Rule 12(b)(6)

motion."    Lunderstadt, 885 F.2d at 70; Batoff v. State Farm Ins.


                                  9
Co., 977 F.2d 848, 852 (3d Cir. 1992).

            The temporal focus of the court's evaluation of whether

the plaintiff could conceivably prevail on its claim is on the

time that the complaint was filed.           While courts generally rely on

the   plaintiff's      allegations    of    the   amount   in     controversy     as

contained   in   the     complaint,    "where     a   defendant    or   the   court

challenges the plaintiff's allegations regarding the amount in

question, the plaintiff who seeks the assistance of the federal

courts must produce sufficient evidence to justify its claims."

Columbia Gas, 62 F.3d at 541.          We have also held that "the record

must clearly establish that after jurisdiction was challenged the

plaintiff had an opportunity to present facts by affidavit or by

deposition,   or    in   an   evidentiary     hearing,     in   support   of    his

jurisdictional contention."          Berardi v. Swanson Memorial Lodge No.

48 of the Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir.

1990) (quoting Local 336, American Federation of Musicians, AFL-

CIO v. Bonatz, 475 F.2d 433, 437 (3d Cir. 1973)); see also 5A

Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1350, at 213-18 (2d ed. 1990).

            The question whether there is a legal certainty that

Suber's claims are for less than $50,000 depends on what damages

Suber could conceivably recover under New Jersey state law, and we

must therefore consider the applicable New Jersey statutes and

Suber’s allegations under them.

                       IV.    The New Jersey Lemon Law
            The New Jersey Lemon Law provides a remedy to consumers

who purchase defective vehicles, as Suber claims he has.                  Under


                                       10
this law, if a consumer reports a "nonconformity" in a vehicle to

the manufacturer or its dealer during the first 18,000 miles or

within two years of the date of delivery to the consumer, the

manufacturer must make, or arrange with the dealer to make, the

necessary repairs "within a reasonable time."     N.J.S.A. 56:12-31.

 The statute defines a "nonconformity" as a "defect or condition

which substantially impairs the use, value or safety of a motor

vehicle."   Id. 56:12-30.    According to the New Jersey courts,

whether a defect rises to the level of an actionable

nonconformity depends on whether it "shakes the buyer's

confidence" in the goods.    See Berrie v. Toyota Motor Sales,

U.S.A., Inc., 630 A.2d 1180, 1182 (N.J. Sup. Ct. App. Div. 1993).

 Thus, if a "reasonable person" in Suber's position could

conclude that the "bottoming out" "impairs the use and value of

the car and shakes [his] confidence in it," then the suspension

problems with Suber's van qualify as nonconformities.     Id. at

1183.

            If the manufacturer or dealer is unable to correct the

nonconformity within a reasonable time, the vehicle is a true

"lemon" and the owner is entitled to damages.     The law presumes

that a manufacturer is unable to correct a nonconformity within a

reasonable time if the owner has made three or more unsuccessful

repair attempts or the vehicle "is out of service by reason of

repair for one or more nonconformities" for a total of twenty

days.   N.J.S.A. 56:12-33.

            We find that Suber has sufficiently alleged that the

use and value of his van are impaired such that we cannot


                                  11
conclude that the alleged suspension problems could not

conceivably be found to constitute nonconformities.   Suber stated

in his affidavit that the van has never passed the Pennsylvania

inspection test, and a mechanic he hired has stated that it is

unsafe to drive.   Chrysler recalled all 1993 Dodge Ram vans and

wagons for the same defect, even while the dealership contended

that there was nothing wrong with the van.   Suber has also

alleged that his van presumptively cannot be fixed: in his

affidavit, he stated that he has made more than three repair

attempts and that the vehicle remained out of service for repairs

for more than 20 days.   When his complaint was filed, then, it

was conceivable that Suber's van was a true "lemon" and that he

was entitled to recovery.5

          If successful on his Lemon Law claims, Suber could

recover the full refund value of the car plus collateral damages,

mainly finance charges. The statute provides:
The manufacturer shall provide the consumer with a full
          refund of the purchase price of the original
          motor vehicle including any stated credit or
          allowance for the consumer's used motor
          vehicle, the cost of any options or other
          modifications arranged, installed, or made by
          the manufacturer or its dealer within 30 days
          after the date of original delivery, and any
          other charges or fees including, but not
          limited to, sales tax, license and
          registration fees, finance charges . . . less
          a reasonable allowance for vehicle use.
     5
      There is evidence that shows that Suber's van has been
driven for over 16,000 miles, calling into question Suber's
claims that his car is valueless. However, considering such
evidence is not proper at the jurisdictional stage, unless that
evidence suggests that the amount in controversy allegations were
not made in good faith. We conclude that this evidence does not
make it certain that Suber could not prevail on his Lemon Law
claim.



                                12
Id. 56:12-32 (emphasis added).

           Moreover, in calculating the amount in controversy, we

must consider potential attorney's fees.   Although 28 U.S.C. §

1332 excludes "interest and costs" from the amount in

controversy, attorney's fees are necessarily part of the amount

in controversy if such fees are available to successful

plaintiffs under the statutory cause of action.   See Missouri

State Life Ins. Co. v. Jones, 290 U.S. 199 (1933).   They are

here.   See N.J.S.A. 56:12-42 ("In any action by a consumer

against a manufacturer brought in Superior Court or in the

division pursuant to the provisions of this act, a prevailing

consumer shall be awarded reasonable attorney's fees, fees for

expert witnesses and costs.").

           The district court began and ended its inquiry with the

sticker price of the van, which was $29,895.   Because we have

concluded that it is conceivable that Suber’s van is a total

“lemon,” we agree that Suber is entitled to include the entire

sticker price of the van in the amount in controversy.    Without

considering potential collateral charges, however, the district

court dismissed the complaint because the attorney's fees that

would be available to Suber if he prevailed could not get him

over $50,000.   The district court erred, therefore, in not

considering the collateral charges, particularly finance charges,

as part of the amount in controversy.

           The question before us, then, is how to calculate

Suber's collateral charges for purposes of the amount in



                                 13
controversy inquiry.    According to Suber, his total Lemon Law

damages are $40,015.20.    As stated on his contract with the

dealership, sales tax and registration fees bring the cost of the

van to $31,649.    Once finance charges are added, Suber alleges

that the total cost of the van is $41,404.20.6   As calculated by

Suber, the reasonable allowance for use that is required to be

deducted pursuant to the Lemon Law is $1,389.10, which brings the

total to $40,015.20.7   If Suber’s allegation is correct,

attorney’s fees necessary to get him above the $50,000 threshold

might not be unreasonable.

          However, in considering Suber's claimed amount in

controversy, we are given pause by his contention that he is

entitled to count the total finance charges stated in the

financing agreement toward the amount in controversy.    We find

this unlikely.    Suber would pay the total charges if it took him

the entire finance period to pay for the van, but not if he paid

off the car loan before that time.    Under New Jersey law, a

borrower may prepay a retail installment sales loan in full at
     6
      Suber financed $26,779.11. With an 8.5% interest rate, his
total finance charges are $8595.21. Suber’s down payment, which
included cash, a rebate, and the value of his trade-in, was
$6029.88. Added together, this brings the total price as stated
in the Retail Sales Installment Contract to $41,404.20.
     The amount financed includes optional credit life insurance
that totals $1085.99.
     7
      Under N.J.S.A. 56:12-30, the reasonable allowance for
vehicle use is calculated by multiplying the purchase price by
the mileage at the time the consumer first presents the vehicle
to the dealer for repair of the nonconformity and dividing that
number by 100,000 miles. In this case, if $41,404.20 is
multiplied by 3,355 (the mileage at the time of the first
suspension complaint), and then that is divided by 100,000, the
result is $1,389.10.



                                 14
any time and obtain a credit for unaccrued interest.    N.J.S.A.

17:16C-43.    If, for example, Suber had made his car payments for

three months, and then decided to pay the remaining principal on

his loan, the only finance charges he would pay would be the

interest included in the three payments that he made.    He would

be entitled to a refund for the remaining, unpaid finance

charges.     Concomitantly, had Suber been awarded Lemon Law damages

by the district court after making three car payments, his

damages would include only those finance charges that he had

paid.    See, e.g., Gambrill v. Alfa Romeo, Inc., 696 F. Supp.

1047, 1048 (E.D. Pa. 1988) (calculating damages under

Pennsylvania Lemon Law).8     Accordingly, it seems to us that

Suber will be entitled to recover in this action only those

finance charges that he has paid at the time of the judgment.

             The question of how to determine finance charges for

the purposes of the amount in controversy requirement is thus a

difficult one that involves a measure of speculation.    We have

held that the amount in controversy should not be “measured by

the low end of an open-ended claim, but rather by a reasonable

reading of the value of the rights being litigated.”     Angus v.
Shiley Inc., 989 F.2d 142, 146 (3d Cir. 1993).    Because the

district court failed to make this determination with respect to

the finance charges that Suber can include in the amount in

controversy, it erred in concluding that there is a legal

     8
      The same is true for the credit life insurance that Suber
financed. He would be entitled to a refund of the unaccrued
premiums upon prepayment of the loan. N.J.S.A. 17:16D-14.



                                  15
certainty that Suber’s claims are for less that $50,000.

          We thus will vacate the district court’s order and will

remand the case so that the court can determine whether Suber’s

Lemon Law claim allows him to establish diversity jurisdiction.

In making this determination, the district court should consider

the purchase price of the van, all collateral charges, and

potential attorney’s fees.    As Suber’s van is conceivably a total

“lemon,” the district court should start with the purchase price,

$29,895, and add to it sales tax and registration fees, which

bring the total to $31,649.   The district court must then

determine the amount of any finance charges and attorneys' fees

includable in Suber's amount in controversy.

               V.    New Jersey Consumer Fraud Act

          We now turn to the New Jersey Consumer Fraud Act

(“NJCFA”) to determine whether Suber can satisfy the amount in

controversy requirement under that law.   The NJCFA allows private

plaintiffs to bring suit if they are harmed by an unconscionable

commercial practice.   See, e.g., Cox v. Sears Roebuck & Co., 647

A.2d 454, 460-61 (N.J. 1994). Under the NJCFA, the:
act, use or employment by any person of any
          unconscionable commercial practice,
          deception, fraud, false pretense, false
          promise, misrepresentation, or the knowing,
          concealment, suppression, or omission of any
          material fact with intent that others rely
          upon such concealment, suppression or
          omission, in connection with the sale . . .
          or with the subsequent performance of such
          person as aforesaid, whether or not any
          person has in fact been misled, deceived or
          damaged thereby, is declared to be an
          unlawful practice.


N.J.S.A. 56:8-2.    If a defendant is found to have committed an


                                 16
unconscionable commercial practice, the statute imposes mandatory

treble damages and attorney's fees.   Id. 56:8-19.

           Suber also relies on the NJCFA to establish subject

matter jurisdiction.   He submits that he has sufficiently alleged

that Chrysler committed unconscionable commercial practices

within the meaning of the NJCFA and that he can, therefore,

include possible NJCFA damages in the amount in controversy, in

particular, the treble damages that are available under that

statute.

           The district court rejected this contention and held

that there is a legal certainty that Suber cannot recover under

the NJCFA.   It concluded that Suber has not alleged any facts

that could constitute a NJCFA violation because Suber’s only

claim is for breach of warranty, which is not actionable under

the NJCFA.   The court, relying on the New Jersey Appellate

Division case, D'Ercole Sales, Inc. v. Fruehauf Corp., 501 A.2d

990 (N.J. Super. Ct. App. Div. 1985), held that Suber has failed

to allege "substantial aggravating circumstances,” which New

Jersey law requires to recover for a breach of warranty.

           Although the New Jersey Supreme Court has approved of

certain language from D'Ercole Sales, see Cox, 647 A.2d at 462,
it has never directly considered the issue before the D’Ercole

Sales court and thus has never explicitly adopted its holding.

In D’Ercole Sales, the court held that a truck assembler's

failure to honor the warranty was not an "unconscionable consumer

practice" within the meaning of the NJCFA.   In so holding, the

court stated that "a breach of warranty, or any breach of


                                17
contract, is not per se unfair or unconscionable, and a breach of

warranty alone does not violate a consumer protection statute."

501 A.2d at 998 (citations omitted).   While acknowledging that a

breach of warranty is unfair to the non-breaching party, it

stated that:

"[i]n a sense, unfairness inheres in every breach of
          contract when one of the contracting parties
          is denied the advantage for which he
          contracted, but this is why remedial damages
          are awarded on contract claims. If such an
          award is to be trebled, the . . . legislature
          must have intended that substantial
          aggravating circumstances be present."


Id. at 1001 (emphasis added) (quoting United Roasters, Inc. v.

Colgate-Palmolive Co., 649 F.2d 985, 992 (4th Cir. 1981)).

Because this holding seems unexceptionable, uncontroversial, and

altogether sensible, we predict that D’Ercole Sales would be

followed by the New Jersey Supreme Court, and hence we find that

the District Court correctly concluded that the NJCFA requires

that substantial aggravating circumstances be shown when the

basis for the NJCFA claim is breach of warranty.

          Assuming, therefore, that a plaintiff needs to show

substantial aggravating circumstances to prevail under the NJCFA

with what is essentially a breach of warranty claim, we conclude

that the district court incorrectly held that Suber has not

alleged sufficient aggravating circumstances to prevail at the

jurisdictional stage.9   Suber has made allegations that, if

     9
      Because we cannot determine from the record whether
Chrysler owns the dealership, we consider only those allegations
of unconscionable practices made against Chrysler directly.



                                18
proven, could constitute substantial aggravating circumstances,

such that we cannot find that recovery is precluded to a legal

certainty.    For example, in his affidavit, Suber states that

George Bomanski, a Chrysler representative, told Suber that the

van had suspension problems, but his official report, on which

the CAB based its decision, noted that there were no suspension

problems.    Moreover, Suber's allegations that Chrysler knew of

the problem are supported by the Technical Services Bulletin,

which stated that all 1993 and 1994 Dodge Ram vans and wagons

needed repair to correct the suspension problem about which Suber

complained.

            At all events, we find that Suber's NJCFA claim appears

to be premised on more than mere breach of warranty.    The Lemon

Law has defined certain practices as per se unlawful within the

meaning of the NJCFA.    In particular, each time a motor vehicle

is returned for examination or repair during the first 18,000

miles of operation or within two years of purchase, “the

manufacturer through its dealer shall provide to the consumer an

itemized, legible statment of repair.”    N.J.S.A. 56:12-34 (b).

Failure to comply with this provision constitutes an unlawful

practice under the NJCFA.   Id. 56:12-34 (c).   Suber testified in

his deposition that he left the dealership without receiving

repair invoices on at least two occasions.

            It thus appears that Suber may not be precluded to a

legal certainty from recovering under the NJCFA.    Even though we

have explained that the court should include the treble damages

available under the NJCFA in calculating the amount in


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controversy, we are uncertain as to what his NJCFA damages would

be.   The New Jersey Consumer Fraud Act (NJCFA) allows private

plaintiffs to recover for any "ascertainable loss" from an

allegedly unconscionable practice,    N.J.S.A. 56:8-2 & 56:8-19,

and imposes mandatory treble damages and attorney's fees, id.

56:8-19.   Suber contends that his Lemon Law damages of $40,015.10

are also his NJCFA damages and should be trebled to arrive at

$120,045.30 in damages.   That seems unlikely to us.

Unfortunately, the New Jersey Supreme Court has provided little

guidance about quantifying ascertainable loss under the NJCFA.

Because we have already determined that a vacatur and remand is

appropriate in this case, the remand will also permit the

district court to calculate Suber’s potential NJCFA damages and

thus determine whether there is a legal certainty that the claim

is for less that $50,000, once those damages are trebled.

           On remand, the court must also determine whether

Suber’s claims can be aggregated.    The general rule is that

claims brought by a single plaintiff against a single defendant

can be aggregated when calculating the amount in controversy,

regardless of whether the claims are related to each other.

Snyder v. Harris, 394 U.S. 332, 335 (1969) (“Aggregation has been

permitted . . . in cases in which a single plaintiff seeks to

aggregate two or more of his own claims against a single

defendant.”); see also 1 James Wm. Moore, Moore’s Federal

Practice ¶ 0.97, at 907-08 (2d ed. 1995); 14A Charles Alan Wright

et al., Federal Practice and Procedure § 3704 (2d ed. 1985).
Based on this general rule, we think that Suber’s Lemon Law and



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NJCFA claims can probably be aggregated.     We are given pause,

however, by our understanding that these two claims could not be

aggregated if Suber could not recover damages for both.     That is,

if these claims are alternative bases of recovery for the same

harm under state law, Suber could not be awarded damages for

both, and a court should not aggregate the claims to arrive at

the amount in controversy.

          We think it is likely that the harms sought to be

remedied by the Lemon Law and the Consumer Fraud Act are, in

fact, qualitatively different: the Lemon Law seeks to put a

consumer in as good a position as he or she would have been in

had he or she not purchased the “lemon,” while the NJCFA remedies

the particular “ascertainable loss” suffered by a consumer by

reason of an unconscionable commercial practice.     This

understanding has also informed our conclusion, explained above,

that Suber’s potential “ascertainable loss,” for purposes of the

NJCFA, is probably not the value of the van.     On the other hand,

we are not entirely confident of these conclusions, and we were

cited to no New Jersey courts addressing this question (nor have

we found any).   But this issue was not briefed by the parties,

and they may find some cases.   At all events, since we remand

here, we leave the aggregation question in the first instance to

the district court upon remand.

                          VI.   Conclusion

          For the foregoing reasons, we will vacate the judgment

and remand this case to the district court to determine, applying

the standard of St. Paul Mercury Indemnity Co. v. Red Cab Co.,


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303 U.S. 283 (1938), whether there is a legal certainty that

Suber’s claims are for less than $50,000.   Upon remand, the

district court must give Suber the opportunity to develop the

record in support of his jurisidictional claim, whether through

affidavits, depositions, or an evidentiary hearing.    In remanding

this case to the district court, we note that the district court

will also need to consider the availability of diversity

jurisdiction under Suber’s U.C.C. or Magnuson-Moss Act claims,10

as well as whether Suber’s Lemon Law and NJCFA claims can be

aggregated in calculating the amount in controversy.

          For the foregoing reasons, the judgment of the district

court will be vacated and the case remanded for further

     10
      Under the Magnuson-Moss Warranty Act ("Magnuson-Moss"), 15
U.S.C. § 2301 et seq., a consumer who is damaged by the failure
of a dealer or manufacturer to comply with a warranty obligation
can file suit to recover the purchase price plus collateral
damages. Id. § 2310(d). Although it is a federal provision,
federal jurisdiction under Magnuson-Moss is limited to those
cases in which the amount in controversy exceeds $50,000. Id. §
2310(d)(3)(B).
     Despite the similarities of this provision to the Lemon Law,
whether a plaintiff satisfies the amount in controversy threshold
is a different question under Magnuson-Moss. Section 2310(d)(3)
expressly excludes "interests and costs" from the calculation of
the amount in controversy. Unlike the federal diversity statute,
the courts that have considered whether attorney fees are costs
within the meaning of the statute have uniformly concluded that
they are and thus must be excluded from the amount in controversy
determination. See, e.g., Boelens v. Redman Homes, Inc., 748
F.2d 1058, 1069 (5th Cir. 1984); Saval v. BL Ltd., 710 F.2d 1027,
1033 (4th Cir. 1983); Mele v. BMW of North America, Inc., No. 93-
2399, 1993 WL 469124, at *3 (D.N.J. Nov. 12, 1993).
     Although Suber could therefore probably not establish
jurisdiction with his Magnuson-Moss claim, we leave that question
to the district court upon remand. If the district court finds
that Suber has established diversity jurisdiction with his Lemon
Law or NJCFA claim, the court can exercise supplemental
jurisdiction over the Magnuson-Moss Act claim. 28 U.S.C. §
1367(a).



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proceedings consistent with this opinion.   The parties shall bear

their own costs.




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