MARCANTONIO v. BERGEY'S INC et al

Filing 34

OPINION. Signed by Chief Judge Jerome B. Simandle on 5/12/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHAEL MARCANTONIO,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 15-6264(JBS/JS)

v.
BERGEY’S INC. and VOLVO TRUCKS
NORTH AMERICA, INC.,

OPINION

Defendants.

APPEARANCES:
Matthew Benjamin Weisberg, Esq.
WEISBERG LAW
7 South Morton Avenue
Morton, PA 19070
Attorney for Plaintiff
Kevin M. McKeon, Esq.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PC
Woodland Falls Corporate Park
200 Lake Drive East
Suite 300
Cherry Hill, NJ 08002
Attorney for Defendants Bergey’s Inc. and Volvo Trucks of
North America, Inc.
SIMANDLE, Chief Judge:
INTRODUCTION
This case comes before the Court upon Defendants’ motion
for summary judgment. In this case, Plaintiff Michael
Marcantonio alleges that Defendants Bergey’s Inc. and Volvo
Trucks of North America have failed to honor an extended
warranty he purchased to protect his truck’s engine. For the

reasons that follow, the Court will grant Defendants’ motion
because, upon the material facts of this case, as to which there
is no genuine dispute, Plaintiff cannot prevail as a matter of
law because no warranty covered the truck engine repairs in
dispute herein.
BACKGROUND1
This case concerns a Volvo truck owned by Plaintiff Michael
Marcantonio and the “Go Program” extended engine warranties
offered by Volvo. Plaintiff Michael Marcantonio purchased a used
Volvo truck in or about September 2008. (See Exhibit B to
Certification of Kevin McKeon (“McKeon Cert.”) [Docket Item 272], Plaintiff’s Response to Defendant Volvo’s Interrogatories at
No. 9-11.)
Plaintiff’s truck suffered engine trouble in the winter or
spring of 2013. (See Ex. D to McKeon Cert., Invoice from
Bergey’s dated May 8, 2013.) Plaintiff first took his truck to
Truck Enterprises Lynchburg, Inc. (“Lynchburg”). Lynchburg
apparently provided Plaintiff with two repair estimates: the
first, dated January 29, 2013, was $11,501.79 for “OVERHAUL

1

The Court distills this undisputed version of facts from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to Plaintiff, as
the party opposing summary judgment. The Court disregards, as it
must, those portions of the parties’ statements of material
facts that lack citation to relevant record evidence, contain
improper legal argument or conclusions, or recite irrelevant
factual matter. See generally L. Civ. R. 56.1.
2

ENGINE WITH GO PLUS PACK,” and the second, dated February 28,
2013, was $19,370.75 for “GO PLUS REBUILD” and “NON GO PLUS
REPAIRS.” (See Exhibit B to Plaintiff’s Statement of Facts in
Opposition to Summary Judgment (“Pl. SMF”) [Docket Item 30],
January 29 Estimate and Exhibit A to Defendants’ Reply Brief in
Support of Motion for Summary Judgment [Docket Item 33],
February 28 Estimate.)
The “Go Plus” referenced in the Lynchburg estimates is
apparently one of four levels of an extended warranty offered by
Volvo to “restore your engine’s power, reliability and operating
efficiency.” (Exhibit C to Pl. SMF, Volvo Guaranteed Overhaul.)
According to an advertisement for the Go Programs, the price of
a Go Program warranty includes various new engine parts and a
two-year, unlimited mile nationwide warranty on the parts in
those “overhaul kits” and labor to repair them. (Id.) A Go
warranty at the “Go Plus” level costs $12,981 for the engine
parts and installation, according to the advertisement. (Id.)
“Extended Coverage” costs more. (Id.) In order to be eligible
for a Go Program warranty, an engine must first be inspected and
certified. (Ex. E to McKeon Cert., Deposition of Stephen Forde
(“Forde Dep.”) at 41:21-42:10; see also Ex. G to McKeon Cert.,
Volvo Guaranteed Overhaul Warranty VE D12 Engine.) It is unclear
where Plaintiff obtained this flier for the Go Program and

3

whether he received the same information about an extended
warranty from these Defendants.
Plaintiff decided not to have his engine repaired by
Lynchburg because “they messed around with their estimate, and I
didn’t feel comfortable with them” and instead had his truck
towed to Bergey’s, Inc. (“Bergey’s”) for repairs. (Exhibit D to
Pl. SMF, Deposition of Michael Marcantonio (“Marcantonio Dep.”)
at 61:15-21.) Plaintiff’s contact at Bergey’s was Stephen Forde.
(Id. at 66:20.)
Plaintiff and Mr. Forde agreed that Bergey’s would repair
the engine for $11,500, and it is undisputed that, at the very
least, he holds a “parts warranty on the parts replaced” during
that repair. (Id. at 71:2-5; Forde Dep. at 9:13-18.) However,
the parties disagree as to whether that repair also included a
Go Program warranty. Plaintiff maintains that he told Mr. Forde
that “I wanted the Go Program done” and that he “was under the
understanding I was getting the Go Program warranty” included in
that $11,500 price for the “engine rebuild” because (i) his
invoice from Bergey’s included a “Volvo V12 engine overhaul” and
(ii) Bergey’s $11,500 price was close to the Volvo advertisement
for the Go Plus Warranty ($12,981) and Lynchburg’s quote for
“OVERHAUL ENGINE WITH GO PLUS PACK” ($11,501.79). (Marcantonio
Dep. at 66:25, 71:17-19, 72:19-24, 117:11-19; see also Ex. B to
McKeon Cert. at No. 19; McKeon Cert. Ex. D at 3; compare McKeon
4

Cert. Ex. D. with Pl. SMF Ex. B and Pl. SMF Ex. C.) Defendants,
on the other hand, maintain that Bergey’s only repaired the
damage to Plaintiff’s truck engine in 2013, and that they
neither sold him a Go Program extended warranty nor performed
the “engine overhaul” that is part of the program; Mr. Forde
testified that the engine did not have all of the repairs
necessary to make it eligible for certification in the warranty
program in the first place. (Forde Dep. at 17:5-15, 42:16-22.)
Moreover, Plaintiff’s invoice from Bergey’s details the labor
performed and parts does not mention any reference to a “Go
basic warranty” or other Go Program warranty, and includes the
following disclaimer, in a separate box and featured in a
different font from the rest of the page:
The factory warranty constitutes all of the warranties
with respect to the sale of this item/items. The seller
hereby disclaims all warranties, either express or
implied,
including
any
implied
warranty
of
merchantability or fitness for a particular purpose, and
the seller neither assumes nor authorizes any person to
assume for it any liability in connection with the sale
of this item/items.
(See McKeon Cert. Ex. D & F.)
Plaintiff returned to Bergey’s with his truck in August of
2013 to repair an oil leak, and again in February 2014 for body
parts. (Marcantonio Dep. at 83:21-84:13, 86:19-87:14.) Although
he apparently complained to Bergey’s about the engine’s
performance, he drove the truck continuously until May 2014.

5

(Id. at 88:16-90:17.) At that point, his truck had “no power”
and was making noise, so Plaintiff took the truck to Conway.
(Id. at 94:7-96:3.) Conway diagnosed the truck with low fuel
pressure and replaced the fuel pump. (Id.) The motor on the
truck “blew up” a few weeks later near Conway in Syracuse, New
York, in the middle of delivering a load between Rochester,
Buffalo, and New Jersey. (Id. at 97:4-11.) Plaintiff took his
truck to Conway expecting any repairs to be covered by his Go
Program warranty, but Conway refused to repair or replace the
motor and denied that Plaintiff had a warranty covering it. (Id.
at 97:19-98:5.)
Plaintiff then had the truck towed back to Bergey’s,
although they, too, denied that Plaintiff had a warranty that
would cover engine repairs. (Id. at 98:6-101:17.) Bergey’s
determined that the engine problems were caused by a failure of
the timing gear. (See Ex. F to McKeon Cert., Bergey’s Invoice
dated July 14, 2014.) Bergey’s did not put in the timing gear as
part of its 2013 repairs to Plaintiff’s engine, so it was not
covered by the parts warranty from that repair. (Forde Dep. at
45:14-22.) It is undisputed that the Go Program warranty does
not cover repairs to the timing gear set because the timing gear
is specifically excepted as one of a few “not covered” parts.
(Ex. G to McKeon Cert. at 4; see also Bird Dep. at 15:16-25;
Forde Dep. at 15:20-16:23, 45:23-46:2; Marcantonio Dep. at
6

130:17-131:18, 149:12-25.) Nonetheless, Plaintiff has refused to
pay for the engine repair he believes is covered by his extended
warranty. At this time, Plaintiff’s truck still remains at
Bergey’s and has not been repaired because of this dispute.
(Complaint at ¶ 21.)
Plaintiff filed this suit on August 18, 2015, bringing
claims against Bergey’s, Conway,2 and Volvo of North America,
Inc. for breach of express warranty, breach of contract, and
breach of the implied warranty of merchantability, N.J.S.A.
12A:2-314, and alleging violations of New Jersey’s Consumer
Fraud Act (“NJCFA”), N.J.S.A. 56:8-68 et seq. and the MagnusonMoss Warranty Improvement Act, 15 U.S.C. § 2301 et seq. arising
from Defendants’ refusal to consider the most recent engine
repairs covered under a Go Program extended warranty. After
exchanging discovery, Defendants Bergey’s and Volvo of North
America filed this motion for summary judgment. [Docket Item
27.] The motion is now fully briefed, and the Court will decide
it without holding oral argument pursuant to Fed. R. Civ. P. 78.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such

2

Conway was terminated as a party on January 6, 2016. [Docket
Item 21.]
7

that the movant is “entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact
exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such
fact might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, fail to
preclude the entry of summary judgment. Id.

Conclusory, self-

serving submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012) (internal citations omitted).
In evaluating a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party, and must provide that party the benefit of all reasonable
inferences.

Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey

v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).

However, any

such inferences “must flow directly from admissible evidence
[,]” because “‘an inference based upon [] speculation or
conjecture does not create a material factual dispute sufficient
to defeat summary judgment.’”

Halsey, 750 F.3d at 287 (quoting

Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d
Cir. 1990); citing Anderson, 477 U.S. at 255).

8

DISCUSSION
Defendants contend that they are entitled to summary
judgment Plaintiff’s claims stemming from the 2014 repairs
because Plaintiff does not have a Go Program extended warranty
on his truck engine, and that even if he did, it would not cover
the particular parts needed to repair his engine. Plaintiff
takes the position that factual disputes on both questions
preclude the entry of summary judgment. For the reasons that
follow, the Court will grant Defendants’ motion.
The essence of Plaintiff’s allegations is that Bergey’s
sold him a Go Program extended warranty for his truck engine in
2013 but then failed to honor it when his engine needed repair
in 2014. Whether or not an enforceable agreement exists between
Plaintiff and Defendants for an extended engine warranty on
Plaintiff’s truck, Plaintiff can only succeed on his breach of
express warranty, breach of contract, breach of the implied
warranty of merchantability, NJCFA, and Magnuson-Moss claims if
Bergey’s and Volvo refused to cover repairs in 2014 that should
have been covered under the Go Program extended warranty that
Plaintiff contends he holds.3

3

Accordingly, the Court expresses no opinion as to whether
Plaintiff has adduced sufficient evidence to allow a jury to
find that a contract for a Go Program warranty existed between
him and Bergey’s. Instead, the Court will assume, for purposes
of this motion, that Plaintiff had a Go Program warranty in
effect at the time of the 2014 repairs.
9

Here, the undisputed evidence in the record shows that
Plaintiff’s engine failed because of the timing gear, a part
which all parties agree is expressly excluded from coverage
under a Go Program warranty. (See Forde Dep. at 15:20-16:23,
45:23-46:2; Marcantonio Dep. at 130:17-131:18, 149:12-25; Bird
Dep. at 15:16-25; Ex. G to McKeon Cert. at 4.) Plaintiff
contends that “the timing gear was not the only issue” and that
“there were multiple issues such as a chipped gear” that could
have caused the engine’s damage. (Plaintiff’s Brief in
Opposition [Docket Item 30] at 6; see also Marcantonio Dep. at
148:17-149:3.) But Plaintiff has not adduced sufficient evidence
to create a genuine dispute of fact on this question; he
speculates that Conway damaged gears in his engine when they
made other repairs, an assertion that is supported only by his
own self-serving testimony. “Unsupported assertions, conclusory
allegations, or mere suspicions are insufficient to overcome a
motion for summary judgment.” Betts v. New Castle Youth Dev.
Ctr., 621 F.3d 249, 252 (3d Cir. 2010); Sterling Nat’l Mortg.
Co. v. Mortg. Corner, Inc., 97 F.3d 39, 44 (3d Cir. 1996)
(stating that “[m]ere speculation about the possibility of the
existence of such facts” does not raise triable issue to defeat
motion for summary judgment).
Moreover, even if Plaintiff is correct that his engine
suffered additional damage that would be covered under a Go
10

Program warranty, that fact alone would not make Defendants
liable for failing to cover repairs to a timing gear that is
specifically excluded from the warranty under any theory of
liability in the Complaint.
Count I alleges a violation of the NJCFA. Under the NJCFA,
“a plaintiff must allege three elements: (1) unlawful conduct;
(2) ascertainable loss; and (3) a causal connection between the
defendants’ unlawful conduct and the plaintiffs’ ascertainable
loss.” Int’l Union of Operating Eng’rs Local No. 68 Welfare Fund
v. Merck & Co., 929 A.2d 1076, 1086 (N.J. 2007). Actionable
unlawful conduct under the NJCFA includes “any unconscionable
commercial practice, deception, fraud, 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.” N.J.S.A. 56:8-2.4

4

Plaintiff specifically alleges that Bergey’s conduct is a
violation of the used motor vehicle provision of the NJCFA,
N.J.S.A. 56:8-68. That statute makes it unlawful for a dealer,
inter alia, to “misrepresent the mechanical condition of a used
motor vehicle,” to “represent that a used motor vehicle, or any
component thereof, is free from material defects in mechanical
condition,” or to “misrepresent the terms of any written
warranty, service contract or repair insurance currently in
effect on a used motor vehicle” before or at the time of sale of
the vehicle. N.J.S.A. 56:8-68(a), (b) & (e). A “warranty” within
the meaning of the used motor vehicle provision is “any
undertaking, in writing and in connection with the sale by a
dealer of a used motor vehicle, to refund, repair, replace,
maintain or take other action with respect to the used motor
vehicle . . . .” N.J.S.A. 56:8-67 (emphasis added). Plaintiff
has not shown how or why such statute is applicable to Bergey’s,
11

Bergey’s representations to Plaintiff that the timing gear is
not covered by the Go Program warranty is not actionable
unlawful conduct where it is true; Plaintiff does not allege,
nor is there any evidence in the record to suggest, that
Bergey’s representatives gave Plaintiff inconsistent advice
about whether or not his 2014 engine repairs would be covered by
an extended warranty before he towed his truck there. To the
extent that Plaintiff seeks to prove that Bergey’s failure, or
refusal, to sell him a Go Program warranty as part of his
$11,500 repairs in 2013 is a violation of the NJCFA, Plaintiff’s
claim must fail for lack of ascertainable loss; he has not shown
that he has suffered any monetary losses by not receiving the
“benefit of his bargain,” by, for example, paying out-of-pocket
for repairs that should have been covered by the warranty he
believes he holds. For these same reasons, Plaintiff’s breach of

when in fact he purchased the truck years before from a
different dealer in another state, and where there is no
evidence in the record to show that Bergey’s ever installed or
repaired the timing gear that failed. Accordingly, the Court
will address Plaintiff’s NJCFA claim under the general provision
addressing fraud in connection with the sale of goods.
12

express warranty5 (Count IV) and breach of contract6 (Count V)
claims must fail as well; Defendants could not have breached the
Go Program warranty by refusing to repair the timing gears where
they are not responsible for that part under the terms of the
warranty itself.
As for Plaintiff’s claims alleging a breach of the implied
warranty of merchantability (Count II) and the Magnuson-Moss Act
(Count III), Defendants are likewise entitled to summary
judgment on the record before the Court because Bergey’s
effectively disclaimed implied warranties on its invoices for
work performed on Plaintiff’s truck. To properly disclaim the
implied warranty of merchantability, the language of the
disclaimer must be clear and conspicuous such that a reasonable
purchaser would notice it. Gladden v. Cadillac Motor Car Div.,
416 A.2d 394, 400 (N.J. 1908). Put another way, to disclaim the

5

Under New Jersey law, to prevail on a claim for breach of
express warranty, a plaintiff must show: “(1) that [the
defendant] made an affirmation, promise or description about the
product; (2) that this affirmation, promise or description
became part of the basis of the bargain for the product; and (3)
that the product ultimately did not conform to the affirmation,
product or description.” Peruto v. TimberTech Ltd., 126 F. Supp.
3d 447, 453 (D.N.J. 2015) (citing Frederico v. Home Depot, 507
F.3d 188, 203 (3d Cir. 2007) and Dzielak v. Whirlpool Corp., 26
F. Supp. 3d 304, 324 (D.N.J. 2014)).
6 To make out a claim for breach of contract under New Jersey
law, a plaintiff must allege that (1) there is a contract
between the parties; (2) the contract was breached; (3) the
breach caused damages; and (4) the party stating the claim
performed its own contractual obligations. Frederico, 507 F.3d
at 203.
13

implied warranty of merchantability, the language must
specifically mention “merchantability.” N.J.S.A. 12A:2-316(2).
Here, the bottom of every page of Bergey’s invoices
includes the following disclaimer, in a separate box and
featured in a different font from the rest of the page:
The factory warranty constitutes all of the warranties
with respect to the sale of this item/items. The seller
hereby disclaims all warranties, either express or
implied,
including
any
implied
warranty
of
merchantability or fitness for a particular purpose, and
the seller neither assumes nor authorizes any person to
assume for it any liability in connection with the sale
of this item/items.
(See McKeon Cert. Ex. D & F.) There is no question that this
disclaimer is sufficiently conspicuous and properly-worded to
exclude the implied warranty of merchantability as required by
New Jersey law. Because Plaintiff’s claim under the MagnusonMoss Act appears to be based upon his state law breach of
express and implied warranties, and because he cannot prove
either of those underlying state law claims, summary judgment is
necessarily appropriate on Count III. See Cooper v. Samsung
Elec. Amer., Inc., 374 Fed. Appx. 250, 254 (3d Cir. 2010) (“In
the instant case, [plaintiff’s] Magnuson-Moss claim is based
upon his state law claims of breach of express and implied
warranties. Since the District Court correctly dismissed both of
those claims, [plaintiff’s] Magnuson-Moss claim was also
properly dismissed.”); In re Ford Motor Co. Ignition Switch

14

Prods. Liab. Litig., 19 F. Supp. 2d 263, 267 (D.N.J. 1998)
(noting that claims brought under the Magnuson-Moss Act would be
dismissed with prejudice “because the underlying express and
implied warranty claims . . . had been dismissed with
prejudice.”); Oliver v. Funai Corp., Inc., Civil No. 14-4532,
2015 WL 3938633, at *9 (D.N.J. June 25, 2015) (holding that
“Magnuson-Moss claims based on breaches of express (and implied)
warranties under state law depend upon those state law
claims.”);.
Plaintiff’s opposition includes a stray request for leave
“to provide an expert” to prove that the timing gear is not the
only reason his engine failed. (Pl. Opp. Br. at 6.) To the
extent this sentence constitutes a motion to reopen discovery
nearly a year after fact and expert discovery was to have
concluded, the Court will deny Plaintiff’s request.
The record indicates that the parties had ample time and
opportunity to conduct discovery, and he has provided no
explanation as to why he could not previously submit expert
testimony within the time provided by the parties’ joint
discovery plan and the Court’s Scheduling Orders. [See Docket
Items 12 & 14.]

15

CONCLUSION
Defendants’ motion for summary judgment will be granted in
its entirety. An accompanying Order will be entered.

May 12, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

16