                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2004

Samuel-Bassett v. Kia Mtr Amer Inc
Precedential or Non-Precedential: Precedential

Docket No. 03-1427




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                PRECEDENTIAL                     18 th and Arch Streets
   UNITED STATES COURT OF                        Philadelphia, PA 19103
APPEALS FOR THE THIRD CIRCUIT
                                                 Attorneys for Appellant

              No. 03-1427

                                                 Michael D. Donovan, Esq. (ARGUED)
  SHAM ELL SAMUEL-BASSETT, on                    David A. Searles, Esquire
behalf of herself and all others similarly       Donovan Searles, LLC
situated,                                        1845 Walnut Street, Suite 1100
                                                 Philadelphia, PA 19103
                             Appellees
                                                 James A. Francis, Esquire
                    v.                           Francis & Mailman, P.C.
                                                 100 S. Broad Street, 19 th Floor
   KIA M OTORS AMERICA, INC.,                    Philadelphia, PA 19110

                          Appellant              Alan M . Feldman, Esquire
              ____________                       Feldman Shepherd, Wohlgelernter &
                                                 Tanner
    APPEAL FROM THE UNITED                       1845 Walnut Street, 25th floor
STATES DISTRICT COURT FOR THE                    Philadelphia, PA 19103
       EASTERN DISTRICT OF
PENNSYLVANIA                                     Attorneys for Appellees
     (D.C. Civ. No. 01-cv-00703 )
 District Judge: Hon. J. Curtis Joyner                        ____________
             ____________
                                                                 OPINION
      Argued November 3, 2003
 Before: McKEE, SMITH and WEIS,
                      Circuit Judges.            WEIS, Circuit Judge.
                                                                In this diversity removal
             Filed February 5, 2004              case involving a claim of a defect in an
           ________________                      automobile, the District Court adopted
                                                 the purchase price of the car as the
Joseph Kernen, Esquire (ARGUED)                  overriding factor in assessing the
Neal W alters, Esquire                           jurisdictional amount in controversy. No
Piper Rudnick, LLP                               allowance was made for the value of the
3400 Two Logan Square                            car with the defect, nor was any


                                             1
reduction made for the plaintiff s use of         143 F. Supp 2d. 503 (E.D. Pa. 2001).
the vehicle. Finding the record                                   Following further
inadequate for determining the amount in          proceedings, the Court certified a class
controversy, we will remand for further           consisting of residents of Pennsylvania
proceedings.                                      who purchased or leased model years
               The plaintiff purchased a          1997-2001 KIA Sephia automobiles for
model year 2000 KIA Sephia automobile             personal, fam ily or household purposes.
on October 27, 1999. Dissatisfied with            Samuel-Bassett v. Kia Motors Am., Inc.,
the performance of the car, she filed a           212 F.R.D. 271 (E.D. Pa. 2002).
class action against the manufacturer,            Pursuant to Federal Rule of Civil
Kia, in the Court of Common Pleas of              Procedure 23(f), we granted defendant s
Philadelphia County, Pennsylvania on              petition to appeal the class certification
January 17, 2001. The complaint alleges           order.
that because of a design defect in the                            I. Jurisdiction
braking system, plaintiff returned the car                        Rule 23(f) provides that a
for repairs on five separate occasions            Court of Appeals, in its discretion, may
between January 12, 2000 and August               permit an appeal from an order of the
22, 2000. In four instances, the brake            District Court granting class certification.
rotors and pads had to be replaced even           The scope of this review is a narrow one.
though the vehicle had been driven less           See McKowan v. Lowe & Co., Ltd. v.
than 17,000 m iles.                               Jasmine, Ltd., 295 F.3d 380, 390 (3d Cir.
               Despite her requests for           2002)(the Advisory Committee notes
rescission of the purchase contract, or           “explicitly describe Rule 23(f) as not
correction of the braking problem, she            extending to any other type of order,
asserts the defendant failed to meet its          even where that order has some impact
obligations. The complaint asks for               on another portion of Rule 23”).
certification of a class consisting of                            Although the appeal in this
Pennsylvania residents who purchased or           case is limited to the certification issue,
leased KIA Sephia model automobiles in            we are obliged to examine subject matter
the years before she filed the suit.              jurisdiction. Generally speaking, an
               The defendant removed the          interlocutory order on jurisdiction per se
case to the Eastern District of                   by the District Court is not appealable.
Pennsylvania on February 12, 2001                 Harrison v. Nissan Motor Corp. In USA,
asserting diversity between the parties           111 F.3d 343, 347 (3d Cir. 1996).
and an amount in controversy exceeding            However, the fact that review under Rule
$75,000. The District Court denied the            23(f) is restricted does not relieve the
plaintiff s motion to remand, rejecting her       court from the duty of inquiry into its
post-removal assertion that she did not           jurisdiction. See, e.g., Bender v.
seek damages in excess of $74,999.                Williamsport Area Sch. Dist., 475 U.S.
Samuel-Bassett v. Kia Motors Am., Inc.,           534, 541 (1986); Mitchell v. Maurer, 293


                                              2
U.S. 237, 244 (1934); Employers Ins. of            U.S.C. § 1332. Our standard of review is
Wausau v. Crown Cork & Seal Co., 905               plenary. Packard v. Provident Nat l
F.2d 42, 45 (3d Cir. 1990). Even if the            Bank, 994 F.2d 1039, 1044 (3d Cir.
parties have not raised the issue, a Court         1993).
of Appeals should examine its authority                           Removal of cases from
sua sponte during its review of the case.          state to federal courts is governed by 28
See, e.g., Medlin v. Boeing Vertol Co.,            U.S.C. § 1441. In diversity suits, the
620 F.2d 957, 960 (3d. Cir. 1980);                 requirement of an amount in controversy
Kessler v. Nat’l Enters., 347 F.3d 1076            exceeding $75,000 applies to removed
(8 th Cir. 2003) ($1,666,626.26 judgment           cases as well as to litigation filed
vacated for lack of jurisdiction after three       originally in the federal court. 28 U.S.C.
appeals on various issues).                        § 1447(c) requires that, in removed
                In the case before us, the         cases, [i]f at any time before final
parties did not brief the amount in                judgment it appears that the district court
controversy, but did address the subject           lacks subject matter jurisdiction, the case
in supplemental submissions filed in               shall be remanded.
response to our request. However, the                             In Meritcare Inc. v. St. Paul
parties would have us address the                  Mercury Insurance Co., 166 F.3d 214 (3d
certification issue before scrutinizing            Cir. 1999), we reviewed many of our
subject matter jurisdiction. In Amchem             opinions addressing the amount in
Products, Inc. v. Windsor, 521 U.S. 591,           controversy issue. Therefore, we will
612 (1997), the Supreme Court                      only briefly summarize the principles set
concluded that because the class                   forth in that case. It is important to bear
certification rulings were dispositive as          in mind that parties may not confer
to all parties it would address them first         subject matter jurisdiction by consent.
rather than the jurisdictional challenges.         See, e.g., United States v. Griffin, 303
Some of the Amchem class members                   U.S. 226, 229 (1938); Liberty Mut. Ins.
unquestionably satisfied the                       Co. v. Ward Trucking Corp., 48 F.3d 742
jurisdictional monetary floor. Thus, the           (3d Cir. 1995); United Indus. Workers v.
certification issues common to all were            Gov’t of the Virgin Islands, 987 F.2d
logically antecedent and merited priority          162, 168 (3d Cir. 1993).
because they applied to all members of                            28 U.S.C. § 1441 is to be
the class, whereas the question as to the          strictly construed against removal, Boyer
amount in controversy concerned only               v. Snap-On Tools Corp., 913 F.2d 108,
some of the members.                               111 (3d Cir. 1990), so that the
                The circumstances here are         Congressional intent to restrict federal
quite different and we will follow the             diversity jurisdiction is honored. This
usual sequence of looking first to subject         policy has always been rigorously
matter jurisdiction, which in this case is         enforced by the courts. St. Paul Mercury
based on diversity of citizenship. 28              Indem. Co. v. Red Cab Co., 303 U.S.


                                               3
283, 288 (1938).                                    plaintiff’s] losses at over $75,000.”
           II. Standard of Review                   Chaparro v. State Farm Ins. Co., 1999
                 The party asserting                WL 961035, at *3-4 (E.D. Pa. 1999). In
jurisdiction bears the burden of showing            International Fleet Auto Sales, Inc. v.
that at all stages of the litigation the case       National Auto Credit & Agency Rent-A-
is properly before the federal court. See           Car, 1999 WL 95258, at *4 n.7 (E.D. Pa.
Packard, 994 F.2d at 1045. Articulation             1999), the District Court equated the
of the standard to be applied and the               “reasonable probability” standard to the
extent of the burden to meet that                   “legal certainty” approach. Several
requirement have caused some disparity              District Courts have applied the legal
in District Court opinions within this              certainty standard. See, e.g.,
Circuit.                                            McDonough v. Crum & Forster Pers.
                In Irving v. Allstate               Ins., 1992 WL 114951, at *3 (E.D. Pa.
Indemnity Co., 97 F. Supp 2d. 653, 654              1992). 2
(E.D. Pa. 2000), the District Court                                 The Middle District of
explained that “[c]ourts in the Third               Pennsylvania has employed a two-step
Circuit are unencumbered by consistency             process involving both parties. See
in their characterization of a defendant’s          Orndorff v. Allstate Ins. Co., 896 F.
burden of proving the amount in                     Supp. 173, 175 (M.D. Pa. 1995)(adopting
controversy on a motion to remand.” In              the approach taken by De Aguilar v.
that case, the preponderance of the                 Boeing Co., 47 F.3d 1404, 1412 (5 th Cir.
evidence standard was used.1                        1995)). Under this formula, if the
                Other Courts have used a            defendant establishes a basis for
“reasonable probability” test, which
requires the defendant to show that “a
                                                                   2
reasonable jury likely could value [the                                See also, e.g., Johnson v.
                                                    Costco Wholesale, 1999 WL 740690, at *2
                                                    (E.D. Pa. 1999); McNamara v. Philip Morris
               1
                  Opinions in other District        Cos., 1999 WL 554592, at *2 (E.D. Pa.
Court cases filed within this Circuit have          1999); Hunter v. Greenwood Trust Co., 856
followed the preponderance standard. See,           F. Supp. 207, 219-220 (D. N.J. 1992);
e.g., Carrick v. Sears, Roebuck and Co., 252        Carson v. ITT Hartford Ins. Group, 1991
F. Supp 2d. 116, 119 (M.D. Pa. 2003);               WL 147469 (E.D. Pa. 1991). See also Earley
Fosbenner v. Wal-Mart Stores, Inc., 2001            v. Innovex (N. Am.) Inc., 2002 WL
WL 1231761 (E.D. Pa. 2001); Kobaissi v.             1286639, at *2 (E.D. Pa. 2002)(noting that
Am. Country Ins. Co., 80 F. Supp 2d. 488,           judges of the Eastern District of
489 n.2 (E.D. Pa. 2000); McFadden v. State          Pennsylvania have applied a preponderance
Farm Ins. Co., 1999 WL 715162 (E.D. Pa.             of the evidence standard but explaining that
1999); Imperial Spirits, USA, Inc. V. Trans          [a]n action may not be remanded to state
Marine Int l Corp., 1999 WL 172292 (D. N.J.         court unless it is apparent to a legal certainty
1999); Garcia v. Gen. Motors Corp., 910 F.          that the plaintiff s claim cannot meet the
Supp. 160, 165 (D. N.J. 1995).                      amount in controversy requirement. ).

                                                4
asserting that the requisite amount in           Co., 303 U.S. 283 (1938) the plaintiff, in
controversy has been met, the plaintiff          seeking a remand to the state court,
must then prove “to a legal certainty that       amended the complaint after removal to
the claim is really for less than the            allege damages less than the federal
jurisdictional amount” in order to support       jurisdictional amount. The Court stated
remand. Id.                                      that the rule for determining whether the
               Other versions have               case involves the requisite amount as
included: (1) the District Court “make[s]        whether from the face of the pleadings, it
an independent appraisal of the value of         is apparent, to a legal certainty, that the
the claim,” Neff v. Gen. Motors Corp.,           plaintiff cannot recover the amount
163 F.R.D. 478, 482 n.5 (E.D. Pa.                claimed, or if, from the proofs, the court
1995)(citing Angus v. Shiley Inc., 989           is satisfied to a like certainty that the
F.2d 142, 146 (3d Cir. 1993)); Bishop v.         plaintiff never was entitled to recover
Gen. Motors Corp., 925 F. Supp. 294,             that amount. Id. at 289. If not, the suit
299-300, 300 n.6 (D. N.J. 1996)(utilizing        must be dismissed.
a similar standard); (2) adoption of the                         Some courts have found
inverted legal certainty approach, in            inconsistencies between Red Cab and
which the defendant must prove to a              McNutt v. General Motors Acceptance
legal certainty that the plaintiff’s             Corp. of Indiana, 298 U.S. 178 (1936).
damages are not less than $75,000,               In the latter case, the Supreme Court held
DiTullio v. Universal Underwriters Ins.          that the party alleging jurisdiction [must]
Co., 2003 WL 21973324, at *3-*4 (E.D.            justify his allegations by a preponderance
Pa. 2003); and (3) remanding a case              of the evidence. McNutt, 298 U.S. at
“because ambiguity exists and doubt              189. In that case, although a challenge to
remains regarding the sufficiency of the         the amount in controversy had been
amount in controversy.” Stuessy v.               raised in the pleadings, no evidence or
Microsoft Corp., 837 F. Supp. 690, 692           findings in the trial court addressed that
(E.D. Pa. 1993).                                 issue. In that respect, Red Cab differs
               Many of the variations are        because these factual findings had been
purely semantical and we have found no           made.
case where the result would have been                            Rather than reading
different had one of the variations              articulations of the standard as variations,
described been used. However, we think           we believe that the holdings in these two
it would be helpful if consistent language       cases may be reconciled. In many
were used by the District Courts within          instances the amount in controversy will
this Circuit.                                    be determined in whole or in part by state
               The Supreme Court has             law. For example, if state law denies
discussed the nature of a defendant’s            recovery for punitive damages, the
burden of proof in a removal case. In St.        federal court would be required to
Paul Mercury Indemnity Co. v. Red Cab            disregard the value of such a claim


                                             5
asserted to be included within the                  made the District Courts adhere to the
jurisdictional amount. See Packard, 994             “legal certainty” test cited in such cases
F.2d at 1046. In deciding applicable                as Meritcare, 166 F.3d 214; Packard, 994
state law, the preponderance of the                 F.2d 1039; Bloom v. Barry, 755 F.2d 356
evidence standard would have no utility.            (3d Cir. 1985); and Nelson v. Keefer,
               In many cases, however,              451 F.2d 289 (3d Cir. 1971).
disputes over factual matters may be                                We recognize that
involved. In resolving those issues, the            requiring a defendant to show to a legal
McNutt preponderance of the evidence                certainty that the amount in controversy
standard would be appropriate.3 Once                exceeds the statutory minimum may lead
findings of fact have been made, the                to somewhat bizarre situations. As the
court may determine whether Red Cab s               Court observed in Shaw v. Dow Brands,
 legal certainty test for jurisdiction has          Inc., 994 F.2d 364, 366 (7 th Cir. 1993),
been met.                                           oral argument presented a comic scene:
               In short, despite the use by         plaintiff s personal injury lawyer protests
some courts of such phrases as “more                up and down that his client s injuries are
likely than not,” “substantial likelihood,”         as minor and insignificant as can be,
and “reasonable probability,” 4 we                  while attorneys for the manufacturer
recommend that when the relevant facts              paint a sob story about how plaintiff s life
are not in dispute or findings have been            has been wrecked. It would not be a
                                                    surprise that when the time came for
                                                    assessment of damages the parties would
               3                                    once again switch their views by some
                  A pretrial ruling on
jurisdictional facts should not be made if it       180 degrees.
constitutes a decision on the merits. See                           Because of the m anner in
Grubart, Inc. v. Great Lakes Dredge & Dock          which the claims for damages were
Co., 513 U.S. 527, 537-38 (1995); Jaconski          stated in the complaint here, the District
v. Avisun Corp., 359 F.2d 931, 935 (3d Cir.         Court was required to apply state law in
1966); 5A Charles Alan Wright & Arthur R.           converting the categories to monetary
Miller, Federal Practice And Procedure              sums. See Horton v. Liberty Mut. Ins.
§1350 (2d ed. 1990).                                Co., 367 U.S. 348, 352-53 (1961) (In
               4                                    diversity cases courts must look to state
                   See Gafford v. Gen. Elec.
                                                    law to determine the nature and extent of
Co., 997 F.2d 150 (6th Cir. 1993) (reviewing
various tests used by courts). See also Alice       the right to be enforced). In fairness to
M. Noble-Allgire, Removal of Diversity              the District Court, our review of the
Actions When the Amount in Controversy              record indicates that the parties did not
Cannot be Determined from the Face of               provide much assistance in this endeavor.
Plaintiff s Complaint: The Need for Judicial                        Having concluded that the
and Statutory Reform to Preserve                    legal certainty test is appropriate, we turn
Defendant s Equal Access to Federal Courts,         to the jurisdictional problem. In her
62 Mo. L. Rev. 681 (1997).

                                                6
motion to remand, plaintiff contended             treble damages, and attorneys fees. In
that the complaint filed in the state court       the alternative, she sought to rescind the
established that her claims did not meet          contract.
the required amount of $75,000.                                   In calculating the damages
Although this was the plaintiffs clearly          recoverable under the statute, the District
stated position, it did not resolve the           Court began with the base purchase price
jurisdictional issue because the defendant        of the automobile, $13,370, and added
has a right to resort to a federal forum if       registration, title and filing fees, sales
it can establish that the jurisdictional          tax, service contract cost and expenses of
requirements have been satisfied. See,            financing to reach a total of $22,095.
e.g., Red Cab, 303 U.S. at 294.                   Samuel-Bassett, 143 F. Supp 2d. at 507.
          III. Scope of Damages                   The Court concluded that giving the
                In removal cases,                 damages claims the broadest possible
determining the amount in controversy             reading and trebling the $22,095 which
begins with a reading of the complaint            Plaintiff is obligated to pay for her
filed in the state court. Unlike many             automobile over five years in addition to
instances in which a specific amount is           attorneys fees and out-of-pocket
requested, the ad damnum clause in this           expenses, would clearly total an amount
complaint is stated in terms of categories        in excess of $75,000. Id. The District
of damages. Because the diversity                 Court did not explain the computation
statute speaks in terms of dollars, we            underlying its conclusion.
must translate the categories plaintiff                           The Consumer Protection
cites into monetary sums.                         Law does not specify how actual
                Count I of the complaint          damages should be measured and we
alleges that the defendant violated the           therefore turn to relevant state appellate
Pennsylvania Unfair Trade Practices and           rulings. The Pennsylvania Supreme
Consumer Protection Law (the                      Court has not yet had the occasion to
 Consumer Protection Law ). Pa. Stat.             interpret the statutory term. The Superior
Ann. tit. 73 § 201-9.2(a) (W est 2003).           Court, an intermediate appellate court,
The statute allows recovery of actual             has utilized the purchase price of a
damages and reasonable attorneys fees,            vehicle as a starting point for calculating
treble damages and such additional relief         damages. From that amount, various
as [the court] deems necessary or proper.         sums have been deducted to arrive at the
Id. Because this claim offers the highest         actual damages. See Stokes v. Gary
potential recovery to the plaintiff, we           Barbera Enters., 783 A.2d 296, 299 (Pa.
will discuss it first.                            Super. Ct. 2001); Young v. Dart, 630
                The plaintiff sought              A.2d 22, 26 (Pa. Super. Ct. 1993).
damages for loss of value of the car,                             In Stokes, the plaintiff
depreciation in resale value, repair costs,       proved that the car dealer had tampered
expense of repair attempts, loss of use,          with the odometer and misrepresented


                                              7
that a van was new. Stokes, 783 A.2d at             Act. In that case, we remanded for
297. In determining the damage award,               reevaluation of the plaintiff s loss under
the trial court began with the amount of            the state s Lemon Law. Id. at 588-89.
monthly payments made by the plaintiff              The District Court in Suber began and
and added the down payment, the value               ended its analysis with the sticker price
of the trade-in and the amount necessary            of the van. We noted that under the
to pay off the loan. Id. at 298. From this          Lemon Law a claimant was required to
total the following amounts were                    return the car and that because the value
subtracted: (1) half of the monthly                 of the vehicle had not been established,
payments the plaintiff had made (to                 the issue should be reviewed on remand.
reflect usage), (2) an additional $4000             Id. at 585 n.7. We recognize that in
for usage and (3) a trade-in credit that the        discussing damages, Suber was applying
plaintiff received for the van when he              New Jersey law, not the Pennsylvania
purchased a new car. Id. The Superior               Consumer Protection Law, and, hence, is
Court affirmed. Id. at 299.                         not determinative here.
                In Young v. Dart, the                               In Werwinski v. Ford
plaintiff purchased a car from a dealer             Motor Co., 286 F.3d 661, 668, 670 (3d
who concealed the fact that the vehicle             Cir. 2002), the panel concluded that
had been involved in a collision and had            defendant had established removal
numerous hidden defects. Young, 630                 jurisdiction in a case where the plaintiffs
A.2d at 23. Recognizing that the                    complained that their automobile had a
Consumer Protection Law “does not set               defective transmission. The Court
forth a formula for the assessment of               pointed out that the plaintiffs sought to
actual damages,” the Superior Court held            recover com pensatory damages and in
that the trial court did not err by looking         addition all or part of the sums
to the method used under the Automobile             [plaintiffs] paid to purchase or lease their
Lemon Law. See id. at 26-27. See also               automobiles. Id. at 666. Moreover,
Pa. Stat. Ann. tit. 73 § 1955 (W est 2003).         plaintiffs demanded that the defendant
The trial court used the $12,800.68                 disgorge its ill-gotten profits received
purchase price as a starting point, and             from the sale of the subject vehicles
subtracted $4,858.20 for Young’s usage              and/or make full restitution. Id. at 667.
between the date of purchase and the                The Court concluded, because of these
trial, as well as requiring the return of the       provisions, the complaint clearly leaves
car. Young, 630 A.2d at 27. The                     the door open for them later to demand
plaintiff was also awarded some minor               reimbursement for the purchase price of
consequential damages.                              the cars. Id.
                In Suber v. Chrysler Corp.,                         We observe that in the
104 F.3d 578 (3d Cir. 1997), we were                briefs in that case the parties cited four
faced with somewhat similar issues                  district court opinions and did not call
under the New Jersey Consumer Fraud                 the panel s attention to the two Superior


                                                8
Court cases interpreting relevant aspects          “total sales price” of $22,095 was a
of the Consumer Protection Law.                    beginning point. Samuel-Bassett, 143 F.
District court rulings on Pennsylvania             Supp 2d. at 508. This figure included the
law are not authoritative and must yield           price of the car, financing charges, sales
to rulings of the state Supreme Court or,          tax, license, title and filing fees, as well
if none exist, consider decisions of the           as a service contract. Id. In addition, the
state s intermediate appellate courts in           Court referred to, but did not cite specific
predicting how the state s highest court           amounts of such expenses as costs as
would rule. Gares v. Willingboro                   repairs, rental cars and attorneys’ fees.
Township, 90 F.3d 720 (3d Cir. 1996).              Id. The District Court concluded that,
In any event, the plaintiffs complaint in          considering these unquantified costs and
the case before us does not contain the            trebling the price of the car, the
additional claims for damages which                plaintiff’s recovery “would clearly total
Werwinski relied upon in finding that the          an amount in excess of $75,000.” Id.
jurisdictional amount had been met.
      IV. The Consumer Protection
                 Law Claim                         164-65 (Pa. Super. Ct. 2002), the Superior
               As noted earlier, the               Court, noting Werwinski s holding, stated we
                                                    specifically decline to address Chrysler s
District Court here began its
                                                   invitation to address two particularly vexing
computations under the Consumer
                                                   questions: (1) application of the economic
Protection Law 5 by assuming that the              loss doctrine . . . Pennsylvania trial courts
                                                   have rejected Werwinski s prediction that the
                                                   Pennsylvania Supreme Court would apply
              5
                  The order certifying the         the economic loss rule in claims under the
class also dismissed Count I. The District         Consumer Protection Law. See, e.g.,
Court cited the Werwinski ruling that the          Oppenheimer v. York Int’l, 2002 WL
economic damages doctrine barred recovery          31409949, at *5 (Pa. Com. Pl. 2002);
under the Consumer Protection Law. The             Zwiercan v. Gen. Motors Corp., 2002 WL
dismissal is interlocutory and is not before       31053838, at *7 (Pa. Com. Pl. 2002). See
us in view of the limited review under Rule        also Balderston v. Medtronic Sofamor
23(f).                                             Danek, Inc., 285 F.3d 238, 242 (3d Cir.
                Application of the economic        2002) (“[i]n construing claims under the
loss doctrine to claims under the Consumer         CPL, Pennsylvania courts have
Protection Law has been questioned. The            distinguished purchases made for business
Pennsylvania Supreme Court has not                 reasons which are not actionable from those
addressed the issue. In O Keefe v.                 made for ‘personal, family or household
Mercedes-Benz USA, LLC, 214 F.R.D. 266,            use.’”).
277 (E.D. Pa. 2003), the District Court                            Of course, in this case if the
observed that the Superior Court, post-            District Court s re-assessment of plaintiff s
Werwinski, had approved treble damages             damages results in an amount less than
under the Consumer Protection Law. In              $75,000, as seems likely, then the
Debbs v. Chrysler Corp., 810 A.2d 137,             Werwinski ruling need not be addressed.

                                               9
               Conspicuously absent from          plaintiff’s usage of the vehicle. To test
the calculation were deductions for the           the upper limits of the range for the
value of the car and allowance for its use        jurisdictional amount, Angus v. Shiley,
reductions applied by the Superior Court          Inc., 989 F.2d 142, 146 (3d Cir. 1993),
of Pennsylvania in similar cases. In the          the resulting computation may be trebled
plaintiff s complaint she seeks out-of-           under the Consumer Protection Law.
pocket reimbursement of repairs but no            Metz v. Quaker Highlands, Inc., 714
amounts were stated. In this connection,          A.2d 447 (Pa. Super. Ct. 1998) (treble
it would appear that if the expense of a          damages may be awarded in a rescission
service contract is considered as an item         case).
of loss, the amounts paid for repairs                            Attorneys fees awarded
covered by the terms of that agreement            under the Consumer Protection Law are
should not be considered as actual                to be reasonable. Pa. Stat. Ann. tit. 73 §
damage to the plaintiff.                          201-9.2(a). As the Superior Court has
               The fact remains that the          explained in McCauslin v. Reliance
amount in controversy has not been                Finance Co., 751 A.2d 683, 686 (Pa.
properly established. The computations            Super. Ct. 2000), [t]he term reasonable
here are inadequate and fail to conform           does impart a sense of proportionality
with the Pennsylvania statutory language          between an amount of damages and an
of actual damages as applied by the state         award of attorneys fees. 6 We also point
appellate court. Although the damages
conceivably could be trebled, the record
does not establish the multiplicand for                         6
                                                                    We are impressed with the
such an award.                                    New Jersey Superior Court s appraisal of the
               Some observations may be           value of a case in certifying a class action
helpful on remand. Rescinding the                 involving the brakes on the same model of
contract apparently would provide                 Kia cars. According to the Court:
plaintiff with the most advantageous
result because it would place her in the                 [T]he evidence here is that
same position she was in before                          for the repair of a brake
purchasing the vehicle. That remedy                      system of this nature, you re
                                                         speaking in terms of a few
would require plaintiff to return the
                                                         hundred dollars. Nothing
vehicle to the dealer, who should assume                 even coming close to $1,000.
the outstanding balance of the loan.                     How many of the 8,455
Defendant would pay plaintiff the total                  members would seek,
amount of installment payments made by                   individually, to claim
her, the out-of-pocket repair costs that                 recompense of that small
she incurred, and incidental expenses.                   sum? To ask the question, I
From this sum must be subtracted a                       think answered in terms of
reasonable amount to reflect the                         qualification. Little v. KIA
                                                         Motors of America ,UNN-L-

                                             10
out that under the Consumer Protection            Pa. Cons. Stat. Ann. §§ 2714(c), 2715,
Law no punitive damages other than the            2A519(d). However, punitive damages
discretionary authority to treble is              are not recoverable in an action based
permitted. McCauslin, 751 A.2d at 685             solely on breach of contract. Thorsen v.
( although the Act does allow the Court to        Iron & Glass Bank, 476 A.2d 928, 932
impose up to treble damages for actual            (Pa. Super. Ct. 1984); Johnson v.
damages sustained, it does not otherwise          Hyundai Motor Am., 698 A.2d 631, 639
confer a right to punitive damages. ).            (Pa. Super. Ct. 1997).
               The counts presented by                           The purchase price of a
the plaintiff appear to be in the                 motor vehicle serves as prima facie
alternative and the parties have not              evidence of value, but standing alone, as
suggested that, expect for the trebling           it does here, does not provide sufficient
provided by the Consumer Protection               data to establish value. Price v.
Law, there can be more than one                   Chevrolet Motor Div. of Gen. Motors
recovery for the harm. Although Count I           Corp., 765 A.2d 800, 811 (Pa. Super. Ct.
would seem to be the one to offer the             2000). The record before us fails to
most, although questionable, potential to         establish the value of the automobile
reach the $75,000 mark, we shall briefly          with and without the brake defect. Even
discuss the other claims.                         adding consequential damages to a
               V. The U.C.C. Claim                conjectural estimate of value here fails to
               Under Pennsylvania law             establish anything near $75,000.
the measure of damages for breach of              Accordingly, the breach of warranty
warranty under the Uniform Commercial             count fails to provide federal court
Code is the difference at the time and            jurisdiction.
place of acceptance between the value of              VI. The Magnuson-M oss W arranty
the goods accepted and the value they             Improvement Act
would have had if they had been as                               The Magunson-Moss Act
warranted, unless special circumstances           provides that a consumer who is
show proximate damages of a different             damaged by the failure of a supplier,
amount. 13 Pa. Cons. Stat. Ann. §                 warrantor, or service contractor to
2714(b) (West 2003).                              comply with any obligation under this
                                                  chapter, or under a written warranty,
              In addition to actual               implied warranty, or service contract
damages, plaintiffs may also recover              may bring suit for damages and other
incidental and consequential damages              legal and equitable relief. 15 U.S.C. §
resulting from a breach of warranty. 13           2310(d)(1) (2003).
                                                                 Suit may be filed in state or
                                                  federal court. Id. However, federal
      800-01 (N.J. Super. Ct. Law                 jurisdiction for a Magnuson-Moss Act
      Div. filed August 20, 2003).                claim does not exist unless the am ount in


                                             11
controversy exceeds $50,000, and, if the           for fact-finding on the amount in
suit is brought as a class action, the             controversy. We repeat the admonition
number of named plaintiffs is at least             expressed in our case law that in order to
100. 15 U.S.C. § 2310(d)(3).                       carry out the Congressional intent to
                In Voelker v. Porsche Cars         limit jurisdiction in diversity cases,
North America, Inc., 348 F.3d 639, 643             doubts must be resolved in favor of
(7 th Cir. 2003), an automobile warranty           remand. See, e.g., Boyer v. Snap-On
case, the Court of Appeals said that the           Tools Corp., 913 F.2d 108, 111 (3d Cir.
 party asserting federal jurisdiction must         1990); Abels v. State Farm Fire & Cas.
allege the cost of the replacement                 Co., 770 F.2d 26, 29 (3d Cir. 1985).
vehicle, minus both the present value of           Moreover, estimations of the amounts
the allegedly defective vehicle and the            recoverable must be realistic. The
value that the plaintiff received from the         inquiry should be objective and not based
allegedly defective vehicle. The facts in          on fanciful, pie-in-the-sky, or simply
that Magnuson-Moss case differ from                wishful amounts, because otherwise the
those present here, but the requirements           policy to limit diversity jurisdiction will
of allowance for usage and establishing            be frustrated.
the difference in value, rather than                              Accordingly, the order of
simply the purchase price are the same.            certification will be vacated and the case
                Treble damages may not be          remanded to the District Court for a
assessed in a M agnuson-Moss count.                determination of subject matter
Nor may attorneys fees be recovered.               jurisdiction.
Suber, 104 F.3d at 588 n.12. It is clear
that the amount recoverable under the
claim here does not exceed $50,000 and
this case cannot be maintained in the
federal courts on an independent
jurisdictional basis. There is no need to
address supplemental jurisdiction at this
point.
                By way of equitable relief,
plaintiff asks that members of the
putative class be notified and warned
about the brake system defect. Because
we must look to the jurisdictional status
of the named plaintiff, it is obvious that
injunctive relief is not appropriate.
               VII. Conclusion
                We conclude that the case
must be remanded to the District Court


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