Slemmer v. McGlaughlin Spray Foam Insulation, Inc.Slemmer v. McGlaughlin Spray Foam Insulation, Inc.
MEMORANDUM
I. INTRODUCTION
Plaintiffs Daniel and Paula Slemmer, on behalf of a similarly situated class, have sued two corporations, Barnhardt Manufacturing Co. (“Barnhardt”), and McGlaughlin Spray Foam Insulation, Inc. (“McGlaughlin”). Barhardt is the manufacturer of a type of home insulation known as spray polyurethane foam (“SPF”) and McGlaughlin is a certified installer of SPF. Plaintiffs allege that SPF is a toxic substance that creates health hazards for those living in homes where it is used. Both defendants have filed motions to dismiss the Class Complaint, and plaintiff has filed a cross-motion for discovery. For the reasons set forth below, the Court grants in part and denies in part defendants’ motions, and denies plaintiffs’ cross-motion as moot.
II. FACTS
SPF is a type of insulating foam created by spraying certain compounds into an “attic (or similar) areas of a subject property ....” (Compl. at ¶ 11.) Plaintiffs al
The Slemmers are Pennsylvania residents who had SPF, manufactured by Barnhardt, installed in their home by McGlaughlin in May 2012. (Id. at ¶ 6.) According to the Complaint, the installation of SPF has resulted in “off-gassing, damaging the real and personal property of Plaintiffs and Class Members and/or caused personal injuries resulting in eye irritations, sore throats and cough, nausea, fatigue, shortness of breath, and/or neurological harm.” (Id. at ¶ 22.)
In the Complaint plaintiffs assert six claims against both defendants: (1) Negligence, (2) Strict Liability, (3) Breach of Express and/or Implied Warranties, (4) Unjust Enrichment, (5) Violation of Consumer Protection Acts, and (6) Equitable and Injunctive Relief and Medical Monitoring. In addition, plaintiffs have alleged a negligent supervision claim against Barnhardt only.
III. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of “failure to state a claim upon which relief can be granted” may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court “acceptfs] all factual allegations as true, [and] eonstrue[s] the complaint in the light most favorable to the plaintiff ....” Phillips v. County of Allegheny,
“To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level....’ ” Victaulic Co. v. Tieman,
IV. DISCUSSION
A. Subject Matter Jurisdiction
In the Complaint, plaintiffs assert claims on behalf of four putative classes against both Barnhardt and McGlaughlin. Specifically, plaintiffs propose a nationwide class and Pennsylvania subclass of owners and residents of property containing SPF manufactured, sold, distributed and/or supplied by Barnhardt. Plaintiffs also propose a nationwide subclass and Pennsylvania subclass of owners and residents of property containing SPF that was, inter alia, sold, distributed, supplied or installed by McGlaughlin. McGlaughlin first argues that the Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1), on the ground that the Court lacks subject matter jurisdiction under the Class Action Fairness Act (“CAFA”).
Under CAFA, district courts'may hear class actions where the amount in controversy exceeds $5 million and any
McGlaughlin avers that CAFA’s local controversy exception is applicable to the case and that, as a consequence, the Court lacks subject matter jurisdiction. In support of its argument, McGlaughlin submitted declarations and other materials outside the pleadings. Specifically, McGlaughlin contends that it is incorporated in and has its principal place of business in Pennsylvania, and that over 80% of the plaintiffs in the proposed classes against it are located in Pennsylvania, citing the Declaration of Dik McGlaughlin, president of McGlaughlin.
McGlaughlin concedes that if such submissions are not excluded, the Court is required to treat the motion as one for summary judgment under Fed.R.Civ.P. 12(d). (McGlaughlin Mot. at 2 n. 3.) Plaintiffs oppose McGlaughlin’s motion and have also filed a cross-motion for relief under Rule 56(d), which would allow, inter alia, additional time for discovery if the Court treats the instant motion to dismiss as one for summary judgment.
The Court rejects McGlaughlin’s argument on this issue. The language of the local controversy exception requires a court to decline jurisdiction only where “greater than two-thirds of the members of all proposed plaintiff classes in the aggregate, are citizens of the State in which the action was originally filed .... ” Id. (emphasis added); see also Smith v. Honeywell Int’l Inc.,
First, the parties had not conducted any discovery as of the date the motions were filed. Thus, the Court concludes that treatment of McGlaughlin’s motion as one for summary judgment would be inappropriate. Because the Court does not treat McGlaughlin’s motion as one for summary judgment, plaintiffs’ motion for relief under Rule 56(d) is denied as moot. The Court notes that even if it considered the submitted documents, McGlaughlin has presented insufficient evidence of the citizenship of “all proposed plaintiff classes in the aggregate,” including those classes against Barnhardt, to establish the lack of subject matter jurisdiction under the local controversy exception of CAFA. See 28 U.S.C. § 1332(d)(4)(B). Thus, McGlaughlin has not carried its burden to show that the exception should apply. McGlaughlin’s motion on this ground is denied.
B. Count I — Negligence
Plaintiffs first allege that defendants were negligent by, inter alia, manufacturing or selling a defective product, designing a defective product, and/or failing to warn of SPF’s dangers. “Under Pennsylvania law, in any case sounding in negligence, a plaintiff must demonstrate: (1) a duty of care; (2) the breach of the duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the plaintiff.” Siffel v. Best Buy Co., Inc.,
Defendants argue that the Complaint lacks sufficient factual allegations to support a finding that defendants breached a duty of care to plaintiffs. The Court rejects defendants’ argument. According to the Complaint, defendants breached their duty to plaintiffs by designing, manufacturing and/or selling an unsafe product, and by failing to warn plaintiffs of the dangers associated with SPF. Plaintiffs aver that these breaches of duty caused both property damage and personal injuries, resulting in substantial loss. The Court concludes that plaintiffs have adequately pled a cause of action for negligence against defendants.
C. Count II — Negligent Supervision
Plaintiffs next allege that Barnhardt purported to certify and train personnel to install SPF, creating a “legal duty to adequately supervise those certified installers.” (Compl. at ¶ 60.) Barnhardt responds that Pennsylvania does not recognize such a legal duty to supervise similar to that created by an employer-employee relationship, and as such this claim must be dismissed. The Court agrees.
“Pennsylvania law allows a claim against an employer for negligent supervision of an employee .... ” IRPC, Inc. v. Hudson United Bancorp,
D. Count III — Strict Liability
Defendants next argue that plaintiffs’ strict liability claim is insufficiently pled pursuant to the Restatement (Third) of Torts and must be dismissed. Plaintiffs respond that the Restatement (Second) of Torts applies in Pennsylvania, and that their claim is properly pled thereunder. “Unfortunately, the current state of Pennsylvania products liability law can be described as, at best, unsettled, and, at worst, a maze of uncertainty .... ” Sansom v. Crown Equip. Corp.,
The Supreme Court of Pennsylvania has recently granted allocator on this issue in Tincher v. Omega Flex, Inc.,
E. Count IV — Express/Implied Warranties
Plaintiffs next claim that defendants breached express warranties concerning SPF. “To create an express warranty, the seller must expressly communicate the terms of the warranty to the buyer in such a manner that the buyer understands those terms and accepts them.” Goodman v. PPG Indus., Inc.,
Plaintiffs additionally allege that defendants breached the implied warranty of merchantability, and the implied warranty of fitness for a particular purpose regarding SPF. “Both the implied warranty of merchantability and the warranty of fitness for a particular purpose arise by operation of law and serve to protect buyers from loss where the goods purchased are below commercial standards or are unfit for the buyer’s purpose.” Altronics of Bethlehem, Inc. v. Repco, Inc.,
Plaintiffs alleged that the installation of SPF caused “off-gassing, damaging the real and personal property of Plaintiffs and Class Members and/or caused personal injuries resulting in eye irritations, sore throats and cough, nausea, fatigue, shortness of breath, and/or neurological harm.” (Gompl. at ¶ 22.) Plaintiffs further allege that “SPF is unfit, defective and not merchantable for its intended purpose due to [those] damaging side effects .... ” (Id. at ¶ 87.) As plaintiffs have alleged facts supporting their claim that SPF was unfit for its intended purpose, the Court concludes that plaintiffs have adequately pled a breach of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. Defen
F. Count V — Unjust Enrichment
Plaintiffs next contend that defendants were unjustly enriched by the sale of SPF to plaintiffs. “A claim of unjust enrichment requires the plaintiff to show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that would be unconscionable for the party to retain without compensating the provider.” Bair v. Purcell,
Defendants move to dismiss this claim for two reasons. First, defendants state that because plaintiffs’ suit is based on a written contract, a claim for unjust enrichment is improper. “[T]he doctrine of unjust enrichment is inapplicable when the relationship between parties is founded upon a written agreement or express contract .... ” Wilson Area Sch. Dist. v. Skepton,
Second, Barnhardt argues that the unjust enrichment claim is insufficiently pled, as plaintiffs do not allege that they conferred a benefit on Barnhardt. The Court disagrees. According to the Complaint, “[defendants received money as a result of Plaintiffs’ and Class Members’ purchases of Defendants’ SPF, either directly or through an agent, and Defendants wrongfully accepted and retained these benefits to the detriment of Plaintiffs and Class Members.” (Compl. at ¶ 92.) As plaintiffs alleged that they conferred a benefit on Barnhardt, they have properly pled an unjust enrichment claim, and defendants motions are denied on this ground.
G. Count VI — Violation of Consumer Protection Law
Plaintiffs next allege that defendants violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). 73 Pa. Stat. Ann. § 201-1 et seq.
1. Justifiable Reliance
First, defendants argue that plaintiffs have failed to allege justifiable reliance. In response, plaintiffs contend they are entitled to a presumption of reliance, and that in any event, they have pled both reliance and causation. “To bring a private cause of action under the UTPCPL, a plaintiff must show that he
Plaintiffs contend that they are entitled to a presumption of reliance where, as here, defendants allegedly failed to disclose material defects in the product they manufactured and/or sold. In support, plaintiffs cite a state trial court decision, Zwiercan v. Gen. Motors Corp.,
Plaintiffs also argue that they have sufficiently pled justifiable reliance. According to the Complaint, defendants marketed and advertised SPF as a “safe, ‘green,’ and non-toxic product,” and such marketing “caused actual damages to consumers, including Plaintiffs and Class Members who purchased defendants’ SPF system because of defendants’ representations and conduct.” (Compl. at ¶ 101.) Plaintiffs further plead that “they would not have purchased SPF had the damaging side effects been disclosed to Plaintiffs.” (Id. at ¶ 20.) The Court agrees that plaintiffs have alleged justifiable reliance upon specific misrepresentations by defendants.
2. Privity
Barnhardt next argues that plaintiffs have not alleged that they purchased SPF directly from Barnhardt, and therefore plaintiffs may not claim that Barnhardt violated the UTPCPL. According to the Complaint, the Slemmers had SPF, which was manufactured by Barnhardt, installed in their home by McGlaughlin. The UTPCPL provides a cause of action for “[a]ny person who purchases or leases goods or services ... and thereby suffers any ascertainable loss of money or property ... as a result of the use or employment by any person of a ... practice declared unlawful” under the UTPCPL. 73 Pa. Stat. Ann. § 201-9.2. “A plaintiff need not be in direct privity with a defendant to bring an action under the UTPCPL for the defendant’s wrongful conduct.” Johnson v. MetLife Bank, N.A.,
In the case most on point, Valley Forge Towers S. Condo. v. Ron-Ike Foam Insulators, Inc.,
Later decisions have followed the contours of liability set forth in Valley Forge. For. instance, in Mikola v. Penn Lyon Homes, Inc.,
The Court concludes that plaintiffs have properly alleged liability on the part of Barnhardt under the UTPCPL. “Pennsylvania courts have ruled that the [UTPCPL] should be interpreted very broadly so as to effectuate as fully as possible the legislature’s purpose of preventing unfair or deceptive practices.” Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC,
3. Pleading with Particularity
Barnhardt next argues that plaintiffs have not sufficiently pled their UTPCPL claim in accordance with Fed.R.Civ.P. 9(b). That provision states in part that, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R.Civ.P. 9(b). Barnhardt avers that the UTPCPL is founded on the prevention of fraud and as such, a plaintiff is required to plead a claim under the UTPCPL pursuant to Rule 9(b). The Court rejects Barnhardt’s argument.
The so-called “catch-all” provision of the UTPCPL prohibits “[ejngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa. Stat. Ann. § 201-2(xxi). Accordingly, a “plaintiff may succeed under the catch-all provision by satisfying the elements of common-law fraud or by otherwise alleging deceptive conduct.” Vassalotti v. Wells Fargo Bank, N.A.,
In this case, plaintiffs allege that “defendants engaged in ... unconscionable, unfair and deceptive acts and practices.” (See Compl. at ¶ 99.) As such claims are proper under the UTPCPL “catch-all” provision and do not constitute allegations of fraud, plaintiffs need not meet the heightened particularity requirements of Fed.R.Civ.P. 9(b). Barnhardt’s motion to dismiss on this ground is denied.
McGlaughlin separately argues that if the Court does not dismiss plaintiffs’ UTPCPL claims, the Court should order plaintiffs to provide a more definite statement pursuant to Fed.R.Civ.P. 9(b) and 12(d). As the Court has concluded that plaintiffs need not satisfy the requirements of Rule 9(b), McGlaughlin’s motion to dismiss on this ground is denied.
H. Count VII — Injunctive and Equitable Relief and Medical Monitoring
In Count VII, plaintiffs make several claims regarding injunctive relief, equitable relief, and medical monitoring. Defendants move to dismiss each of these claims, and the Court addresses them in turn.
1. Medical Monitoring
Pennsylvania has recognized medical monitoring claims as separate and apart from traditional tort claims involving physical injury. Redland Soccer Club, Inc. v. Dep’t of the Army & Dep’t of Def. of the U.S.,
First, McGlaughlin argues that plaintiffs “are claiming physical injuries as a result of their exposure to the polyurethane foam insulation,” and that medical monitoring “is only available to individual[s] who do not have an actual injury ____” (McGlaughlin Mot. at 21.) As required by the elements of a medical monitoring claim, plaintiffs must show a heightened risk of contracting a serious disease and set forth a monitoring program that enables early detection of that disease. Such a claim is therefore inapplicable to a situation where plaintiffs have already suffered compensable physical injuries. Cf. Simmons v. Pacor, Inc.,
Second, defendants argue that plaintiffs have not pled the facts supporting the above elements necessary for a claim of medical monitoring. In response, plaintiffs aver that at this stage of the litigation they need not set out details regarding a monitoring program, and that as such, their pleadings are sufficient to state a medical monitoring claim. However, courts have held that a plaintiff must allege specific facts which support the elements required under Redland Soccer Club. For instance, in Albertson v. Wyeth Inc., 63 Pa. D. & C.4th 514,
Plaintiffs have failed to identify either a serious latent disease which requires monitoring or a medical monitoring procedure suitable in this case. The Court thus concludes that plaintiffs have failed to state a claim for medical monitoring. Defendants’ motions on this ground are granted, and plaintiffs’ claim for medical monitoring is dismissed. This dismissal is without prejudice to plaintiffs’ right to file an amended complaint setting forth a medical monitoring claim consistent with this Memorandum if warranted by the facts.
2. Equitable/Injunctive Relief
Defendants also argue that plaintiffs’ claims for equitable and injunctive relief should be dismissed. Count VII of the Complaint requests: (1) a recall of the SPF, (2) remediation of plaintiffs’ and class members’ homes, (3) that defendants cease and desist from misrepresenting the dangers of SPF, and (4) that defendants institute a public awareness campaign to alert the class and public to the dangers associated with SPF. While such relief is set forth in Count VII as a separate cause of action, “[a] request for injunctive relief by itself does not state a cause of action ... An injunction is a remedy, not a separate claim or cause of action. A pleading can ... request injunctive relief in connection with a substantive claim, but a separately pled claim or cause of action for injunctive relief is inappropriate.” Jensen v. Quality Loan Serv. Corp.,
V. CONCLUSION
For the foregoing reasons, the Court grants those parts of defendants’ motions seeking dismissal of plaintiffs’ claims of negligent supervision, breach of express warranties, medical monitoring, and injunctive relief. These dismissals are without prejudice to plaintiffs right to file an amended complaint consistent with this Memorandum if warranted by the facts. The Court defers ruling on those parts of defendants’ motions seeking dismissal of plaintiffs’ strict liability claim. Defendants’ motions are denied in all other respects. Plaintiffs’ cross-motion for discovery is denied as moot. An appropriate order follows.
ORDER
AND NOW, this 3rd day of July, 2013, upon consideration of Barnhardt Manufacturing Company’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
1. Defendants’ motions are GRANTED as to: Count II of the Class Complaint, that part of Count IV of the Class Complaint which alleges a breach of 'express warranties, and Count VII of the Class Complaint. These dismissals are WITHOUT PREJUDICE to plaintiffs right to file and serve an amended complaint on or before July 17, 2013, consistent with the Memorandum dated July 3, 2013, if warranted by the facts;
2. The Court DEFERS ruling on those parts of defendants’ motions which seek dismissal of plaintiffs strict liability claim asserted in Count III of the Class Complaint, until the Supreme Court of Pennsylvania decides Tincher v. Omega Flex, Inc.,
3. Defendant’s motions are DENIED on all other grounds; and
4. Plaintiffs’ Cross Motion for Discovery is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Scheduling Order of April 3, 2013 remains in effect.
Notes
. As required on a motion to dismiss, the Court takes all plausible factual allegations contained in plaintiffs' Complaint to be true.
. Defendants also move to dismiss plaintiffs’ claims of Failure to Recall and Negligent Marketing, as they are not proper causes of action under Pennsylvania law. The Court credits plaintiffs’ response that they do not allege such independent causes of action, but rather such allegations may be relevant to a general negligence analysis, and to an inquiry into product warnings used by defendants. Therefore, the Court need not address this aspect of defendants motions to dismiss.
. Plaintiffs allege that defendants violated the UTPCPL and consumer protection laws in states other than Pennsylvania where putative class members live. Defendants make no argument concerning other states’ laws and thus the Court need not address the law of states other than Pennsylvania.
. The related filings are: Memorandum of Law in Opposition to Motion to Dismiss Filed by Defendant Barnhardt Manufacturing Company (Document No. 14, filed March 1, 2013), and Barnhardt Manufacturing Company’s Memorandum of Law in Further Support of its motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Document No. 15, filed March 7, 2013).
. The related filings are: Reply Brief in Support of Defendant’s Statement of Facts in Support of Its Motion to Dismiss (Document No. 17, filed March 25, 2013), and Plaintiffs’ Reply Memorandum of Law in Support of Motion for Fed.R.Civ.P. Rule 56(d) Relief (Document No. 18, filed March 28, 2013)