United States District Court, D. South Carolina, Charleston Division
JOHN ROMIG, JR. on behalf of himself and on behalf of all others similarly situated, Plaintiff,
PELLA CORPORATION and PELLA OF CENTRAL NEW YORK, INC., Defendants.
C. NORTON, UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Pella
Corporation's (“Pella”) motion for
partial summary judgment. For the reasons set forth below,
the court grants Pella's partial motion for summary
judgment and dismisses plaintiff John Romig, Jr.'s
(“Romig”) breach of express warranty claim to the
extent it relates to the windows installed in Romig's
home in 1999.
purchased Pella Architect and Designer Series windows during
the construction of his home in Cazenovia, New York. Am.
Compl. ¶ 15. Romig first purchased Pella windows,
through his contractor Edward L. Chase (“Chase”),
in conjunction with the construction of the “Dutch
Barn” section of his home in 1998 and 1999. Def.'s
Mot. Ex. 1, Romig Depo. 37:20-37:1, 42:24-43:25; Def.'s
Mot. Ex. 2, 1/22/98 Order Form. Romig decided to purchase
Pella windows because he and his wife “were very
interested in a period look” and “the look of the
window” was “very important.” Romig Depo.
at 44:7-25. Romig visited a Pella showroom at Pella of
Central New York and received all of the Pella materials,
including the limited warranty at the center of this dispute.
Id. at 48:20-25. Pursuant to the limited warranty,
Pella agreed to repair or replace defective windows reported
“during the first ten years from the date of
sale.” Def.'s Mot. Ex. 4. Romig purchased a second
set of Pella windows, which came with the same limited
warranty, in conjunction with the construction of the
“English Barn” section of his home in 2002.
Id. at 14-25, 75:2-25; Def.'s Mot. Ex. 3,
5/29/02 Order Form.
noticed problems with the “Dutch Barn” windows
shortly after their installation and with the “English
Barn” windows in 2003. Romig Depo. 70:2-72:25,
78:15-25. After noticing leaks and rot being caused by the
windows, Romig filed a warranty claim with Pella. Am. Compl.
¶ 15; see also Romig Depo. at 79:18-20, 82:7-
17. Pella inspected the home in 2003 and concluded that the
problems were being caused by construction-related defects.
Id. at 86: 2-87:3. Nevertheless, in 2004, Pella
agreed to replace Romig's windows after he signed a
Release and Waiver absolving Pella of all liability relating
to the windows, except claims brought under the limited
warranty. Id. at 89:18-21; Def.'s Mot. Ex. 4.
Notably, however, the parties agreed that Romig would not
receive a new limited warranty, but instead, the replacement
windows would be covered “only by any remaining balance
of” the limited warranty on the original windows.
Def.'s Mot. Ex. 4.
2006, Romig notified Pella that he continued to have problems
with his windows. Def.'s Mot. Ex. 6. Greg Gerdes
(“Gerdes”), Pella's representative, visited
the home to inspect the windows. Id. Following
Gerdes's inspection, Pella agreed to repair 36 windows by
adding replacement aluminum clad sashes. Pl.'s Resp. 4.
In 2011, Romig contacted his insurance company about
continued problems with his windows. Romig Depo. 122:2-3,
137:22-25. Romig's insurance company retained Kealey
Engineering LLC (“Kealey”) to inspect the
windows. Id. at 121:1-25. After inspecting the
windows in April 2011, Kealey concluded that the
“windows in the Romig residence [had] deteriorated
prematurely due to manufacturing defects.” Pl.'s
Resp. Ex. 4, Kealey Site Inspection. Romig again contacted
Pella to request warranty service. By letter dated October
25, 2011, Pella denied warranty service. Pl.'s Resp. Ex.
6, Warranty Claim Denial Letter (“The repeated water
damage is not the result of incorrectly manufactured windows
but rather the result of the drainage in the wall system or
possibly other installation related issues.”). Romig
filed a warranty claim with Pella and, on March 26, 2012,
Pella responded that the deterioration was the “result
of water management issues related to the installation and
other construction design issues.” Pella's Mot. Ex.
alleges that the windows suffer from a series of defects
affecting their water management system, which allow water to
leak through the windows and become trapped between the
aluminum and the operable wood frame, causing damage to the
windows and “other property within the home.” Am.
Compl. ¶ 33 (alleging defect in the “design of the
sill extrusion and sill nailing fin attachment as well as a
defect in the design of allowing a gap between the jamb
gasket and the sill gasket”); see also ECF No.
121, Class Cert. Order at 6 (outlining details of Romig's
defect theory). Romig further alleges that Pella knew of
these defects when it shipped the windows. Id.
18, 2013, Romig filed a class action complaint against Pella
and Pella Windows and Doors, Inc. in the United States
District Court for the Northern District of New York,
asserting jurisdiction based on diversity of citizenship and
pursuant to the Class Action Fairness Act. He amended his
complaint on September 30, 2013. The amended complaint brings
the following ten claims against Pella and Pella of Central
New York: (1) unfair and deceptive trade practices in
violation of New York General Business Law § 349; (2)
negligence; (3) breach of the implied warranty of
merchantability; (4) breach of the implied warranty of
fitness for a particular purpose; (5) breach of express
warranty; (6) fraudulent misrepresentation; (7) fraudulent
concealment; (8) unjust enrichment; (9) violation of the
Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C.
§ 2301, et seq.; and (10) declaratory relief.
filed a motion to dismiss on October 21, 2013. Romig opposed
the motion on December 23, 2013, and Pella replied on January
17, 2014. Pella of Central New York answered Romig's
amended complaint and filed a cross claim against Pella on
December 20, 2013. On February 9, 2014, the United States
Judicial Panel on Multidistrict Litigation transferred
Romig's case to this court as part of the consolidated
multidistrict litigation. On December 18, 2014, the court
granted in part and denied in part Pella's motion to
dismiss without prejudice all of Romig's causes of action
against Pella except for his breach of express warranty claim
to the extent he relies on Pella's failure to repair or
replace windows under the limited warranty. In doing so, the
court stated the following.
Romig alleges that he made a warranty claim in March 2012 and
Pella failed to repair or replace his windows. Am. Compl.
¶ 15. It is unclear when Romig bought the windows, and,
therefore, when the ten-year limited warranty expired.
However, since Pella's denial of Romig's 2012
warranty claim is potentially covered by the limited
warranty, the court will not dismiss Romig's breach of
express warranty claim to the extent it relies on Pella's
failure to repair or replace pursuant to the terms of the
ECF No. 65, MTD Order 16. Therefore, Romig's only
remaining claim is a breach of express warranty for
Pella's failure to replace Romig's windows after he
notified Pella of the defect in 2011.
order on the motion to dismiss, the court also addressed the
“Release and Waiver” Romig signed in 2004 in
exchange for Pella replacing his windows (the
“Release”). In the motion to dismiss briefing,
Romig argued that the Release was unenforceable because it
was procured by fraud, Romig did not sign it knowingly and
voluntarily, it is unconscionable, and it is ambiguous. The
court held that it was impossible to determine whether or not
the Release was unconscionable at the motion to dismiss
stage. The court noted that there was no evidence on the
record regarding the circumstances surrounding the signing of
the Release, Romig's experience and education, or whether
Romig lacked a meaningful choice. Therefore, because the
court was unable to determine the validity of the Release,
the court did not bar Romig's claims.
filed the present motion for partial summary judgment on
October 27, 2015. Romig filed a response in opposition on
November 20, 2015, and Pella replied on December 4, 2015.
Pella contends that discovery has answered some of the
questions lingering after the motion to dismiss, allowing the
court to limit the scope of Romig's remaining claims.
Specifically, Pella asserts that it is entitled to summary
judgment regarding the windows Romig's contractor, Chase,
purchased in 1998 and 1999, leaving only express warranty
claims relating to the windows Chase purchased in 2002. The
motion has been fully briefed and is now ripe for the
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[S]ummary judgment will not lie if the dispute
about a material fact is ‘genuine, ' that is, if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
“[A]t the summary judgment stage the judge's
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The
court should view the evidence in the light most favorable to
the non-moving party and draw all justifiable inferences in
its favor. Id. at 255.
case is predicated on diversity jurisdiction and was filed in
federal court, so it is governed by state substantive law and
federal procedural law. Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 559 U.S. 393, 416 (2010)
(citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)).
“In multidistrict litigation, the law of the transferee
circuit governs questions of federal law.” In re
KBR, Inc., 736 F.Supp.2d 954, 957 (D. Md. 2010)
modified on reh'g sub nom. In re KBR, Inc., Burn Pit
Litig., 925 F.Supp.2d 752 (D. Md. 2013) vacated and
remanded on other grounds, 744 F.3d 326 (4th Cir. 2014);
see also In re Gen. Am. Life Ins. Co. Sales Practices
Litig., 391 F.3d 907, 911 (8th Cir. 2004); Menowitz
v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); In re
Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d
1171, 1176 (D.C. Cir. 1987); cf. Bradley v. United
States, 161 F.3d 777, 782 n.4 (4th Cir. 1998) (applying
Fourth Circuit law to questions of federal law in a case
transferred from the Fifth Circuit). Therefore, this court
must apply New York substantive law and Fourth Circuit