Opinion
Civil Action No. 02-1889
August 5, 2002
Allan D. Goulding, Jr., Curtin Heefner, Morrisville, PA, Amark Williams, Sr., Pro Se, Elkins Park, PA, for Plaintiffs.
Joseph A. Daly, Kelly, McLaughlin Foster, Philadelphia, PA, for Defendants.
MEMORANDUM ORDER
Plaintiffs asserted claims under the Fair Housing Act, 42 U.S.C. § 1981 and 1982 and Pennsylvania tort law. As to Fitness Quest, the sole remaining defendant, plaintiffs assert a products liability claim and claim for violation of §§ 1981 and 1982. Plaintiffs filed a voluntary notice of dismissal of all claims against the other five original defendants on July 2, 2002.
Presently before the court are defendant's motion to dismiss and plaintiffs' motion for judgment as a matter of law.
Plaintiffs allege the following facts. Sometime between June and December 1999, they purchased an Excel 2800 Dual-Action Fan Bike manufactured and sold by defendant Fitness Quest. On an unspecified date, plaintiffs received a telephone call from their apartment building manager who related that a neighbor had complained about the sound the fan bike made when operated. Plaintiffs acknowledge that the bike was being used at 5 o'clock in the morning. Plaintiffs were told they could only use the fan bike between 7 a.m. and 7 p.m. Their work schedule did not permit them to exercise during these hours. They discontinued using the fan bike in February 2000. On March 8, 2002, plaintiffs were told that their lease was not going to be renewed "because of the noise from the exercise equipment."
Plaintiffs allege that the fan bike was defective because it was too noisy at least "for apartment style living." Plaintiffs claim that as a result of the "disturbing effect upon others" of the noise from the bike, they were threatened with non-renewal of their lease. Plaintiffs also claim that the noisy bike "may have caused" other defendants, now dismissed, to engage in racial discrimination against them. Plaintiffs finally claim that the inability of Mr. Williams to use the bike to strengthen his left knee following surgery resulted in pain and suffering, disability, lost wages and medical expenses.
It is axiomatic that to maintain a claim for product liability under a theory of negligence or strict liability, a plaintiff must show, inter alia, that the product at issue was defective and that the defect was the proximate cause of the injuries complained of. See Wilson v. Vermont Castings, Inc., 170 F.3d 391, 396 (3d Cir. 1999); Habecker v. Copperlay Corp., 893 F.2d 49, 54 (3d Cir. 1990); Craley v. Jet Equip. Tools, Inc., 778 A.2d 701, 705 (Pa.Super. 2001); Dambacher v. Mallis, 485 A.2d 408, 424 (Pa.Super. 1984). A product is defective if it lacks any element necessary to make it safe for its intended use or has any feature which renders it unsafe for the intended use when it leaves the control of the manufacturer or seller. See Azzarello v. Black Bros. Co., 391 A.2d 1020, 1027 (Pa. 1978); Craley, 778 A.2d at 705.
The only defect plaintiffs allege in the fan bike is that it was noisy when operated. Even assuming that the fan bike was inordinately noisy for exercise equipment of this type, this would not make the product dangerous. It may have entitled plaintiffs to a return of the payment price or to receive another less noisy bike, but mere noisiness does not render an exercise bike unsafe. Moreover, plaintiffs have failed to show that the noisiness of the bike was the proximate cause of any of the alleged injuries for which they seek to recover.
The prospect of non-renewal of their lease because of complaints of noise from neighbors would not be proximately caused by the product but solely by plaintiffs' election to use it during restricted hours rather than return, resell, replace or abandon it. Indeed, plaintiffs allege that they ceased to use the bike in February 2000 and do not explain how, if they did so, their prior use could proximately result in a threat not to renew their lease more than two years later in March 2002. In any event, there is no averment that plaintiffs were in fact evicted and it is uncontroverted that they were not.
Plaintiffs do not allege any injury from use of the bike. They allege that Mr. Williams sustained injury from not using the bike. That plaintiffs reside in an apartment building in which use of the fan bike is restricted to daylight hours and that Mr. Williams elected not to pursue other exercise or therapeutic options would not render defendant liable for all harm which may have been obviated had he decided otherwise. Upon learning that a vehicle he purchased for use in commuting to work is defective, a party who ceases to use the vehicle and decides not to pursue remedial action or alternative means of transportation but rather to stop working may not recover from the seller the value of all income and benefits he could have earned had he decided otherwise.
There is no rational explanation as to how the sale of a noisy exercise bike could be the proximate cause of an act of intentional racial discrimination by a third party unrelated to the seller, and it is quite difficult to conceive of one.
Although plaintiffs cite 42 U.S.C. § 1981 and 1982 in the caption of their claim against Fitness Quest, they do not again reference these statutes or explain the basis for any claim brought under them. Plaintiffs do not allege that defendant prevented them from making or enforcing any contract, or denied them the full and equal benefit of the laws because of their race. See 42 U.S.C. § 1981. Plaintiffs do not allege that defendant obstructed their right to inherit, purchase, lease, sell, hold or convey property because of their race. See 42 U.S.C. § 1982. Indeed, plaintiffs allege no facts from which one could reasonably infer any racial animus or discriminatory conduct by Fitness Quest toward plaintiffs.
Plaintiffs have clearly failed to assert cognizable claims against defendant.
Plaintiffs' motion for judgment as a matter of law is predicated on defendant's failure to respond to the complaint within twenty days. Plaintiffs assert that they sent a copy of the complaint to defendant via certified mail on April 8, 2002 pursuant to Rule 4(c)(2)(c)(ii). There is no such rule in the Federal Rules of Civil Procedure. It appears that what was actually sent was a form requesting waiver of service of the summons. Defendant's general counsel executed this form and returned it to plaintiffs on April 26, 2002.
A party must generally respond to a complaint within twenty days. See Fed.R.Civ.P. 12(a)(1)(A). A defendant who timely returns a waiver of service, however, is not required to respond to the complaint until sixty days after the date on which the request for a waiver was sent. See Fed.R.Civ.P. 4(d)(3). Defendant thus had until June 7, 2002 to respond to plaintiffs' complaint. Defendant did so on May 22, 2002. Moreover, in the absence of any demonstrated prejudice, the filing of a response twenty-five days late would not entitle a plaintiff to the entry of judgment in his favor.
ACCORDINGLY, this 5th day of August, 2002, upon consideration of defendant's Motion to Dismiss Plaintiffs' Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. #11) and plaintiffs' response thereto, and plaintiffs' Motion for Judgment as a Matter of Law (Doc. #16) and defendant's response thereto, IT IS HEREBY ORDERED that plaintiffs' Motion is DENIED, defendant's Motion is GRANTED and the above action is DISMISSED.