Sham Ell Samuel-Bassett, on behalf of herself and all others similarly situated v. Kia Motors America, Inc.

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-1427
SHAM ELL SAMUEL-BASSETT, on
behalf of herself and all others similarly
situated,
Appellees
v.
KIA M OTORS AMERICA, INC.,
Appellant
____________
APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF
PENNSYLVANIA
(D.C. Civ. No. 01-cv-00703 )
District Judge: Hon. J. Curtis Joyner
____________
Argued November 3, 2003
Before: McKEE, SMITH and WEIS,
Circuit Judges.
Filed February 5, 2004
________________
Joseph Kernen, Esquire (ARGUED)
Neal W alters, Esquire
Piper Rudnick, LLP
3400 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Attorneys for Appellant
Michael D. Donovan, Esq. (ARGUED)
David A. Searles, Esquire
Donovan Searles, LLC
1845 Walnut Street, Suite 1100
Philadelphia, PA 19103
James A. Francis, Esquire
Francis & Mailman, P.C.
100 S. Broad Street, 19th Floor
Philadelphia, PA 19110
Alan M . Feldman, Esquire
Feldman Shepherd, Wohlgelernter &
Tanner
1845 Walnut Street, 25th floor
Philadelphia, PA 19103
Attorneys for Appellees
____________
OPINION
WEIS, Circuit Judge.
In this diversity removal
case involving a claim of a defect in an
automobile, the District Court adopted
the purchase price of the car as the
overriding factor in assessing the
jurisdictional amount in controversy. No
allowance was made for the value of the
car with the defect, nor was any

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

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

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

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

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

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

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

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Court cases interpreting relevant aspects
of the Consumer Protection Law.
District court rulings on Pennsylvania
law are not authoritative and must yield
to rulings of the state Supreme Court or,
if none exist, consider decisions of the
state s intermediate appellate courts in
predicting how the state s highest court
would rule. Gares v. Willingboro
Township, 90 F.3d 720 (3d Cir. 1996).
In any event, the plaintiffs complaint in
the case before us does not contain the
additional claims for damages which
Werwinski relied upon in finding that the
jurisdictional amount had been met.
IV. The Consumer Protection
Law Claim
As noted earlier, the
District Court here began its
computations under the Consumer
Protection Law5 by assuming that the
“total sales price” of $22,095 was a
beginning point. Samuel-Bassett, 143 F.
Supp 2d. at 508. This figure included the
price of the car, financing charges, sales
tax, license, title and filing fees, as well
as a service contract. Id. In addition, the
Court referred to, but did not cite specific
amounts of such expenses as costs as
repairs, rental cars and attorneys’ fees.
Id. The District Court concluded that,
considering these unquantified costs and
trebling the price of the car, the
plaintiff’s recovery “would clearly total
an amount in excess of $75,000.” Id.
5 The order certifying the
class also dismissed Count I. The District
Court cited the Werwinski ruling that the
economic damages doctrine barred recovery
under the Consumer Protection Law. The
dismissal is interlocutory and is not before
us in view of the limited review under Rule
23(f).
Application of the economic
loss doctrine to claims under the Consumer
Protection Law has been questioned. The
Pennsylvania Supreme Court has not
addressed the issue. In O Keefe v.
Mercedes-Benz USA, LLC, 214 F.R.D. 266,
277 (E.D. Pa. 2003), the District Court
observed that the Superior Court, post-
Werwinski, had approved treble damages
under the Consumer Protection Law. In
Debbs v. Chrysler Corp., 810 A.2d 137,
164-65 (Pa. Super. Ct. 2002), the Superior
Court, noting Werwinski s holding, stated we
specifically decline to address Chrysler s
invitation to address two particularly vexing
questions: (1) application of the economic
loss doctrine . . . Pennsylvania trial courts
have rejected Werwinski s prediction that the
Pennsylvania Supreme Court would apply
the economic loss rule in claims under the
Consumer Protection Law. See, e.g.,
Oppenheimer v. York Int’l, 2002 WL
31409949, at *5 (Pa. Com. Pl. 2002);
Zwiercan v. Gen. Motors Corp., 2002 WL
31053838, at *7 (Pa. Com. Pl. 2002). See
also Balderston v. Medtronic Sofamor
Danek, Inc., 285 F.3d 238, 242 (3d Cir.
2002) (“[i]n construing claims under the
CPL, Pennsylvania courts have
distinguished purchases made for business
reasons which are not actionable from those
made for ‘personal, family or household
use.’”).
Of course, in this case if the
District Court s re-assessment of plaintiff s
damages results in an amount less than
$75,000, as seems likely, then the
Werwinski ruling need not be addressed.

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

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

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controversy exceeds $50,000, and, if the
suit is brought as a class action, the
number of named plaintiffs is at least
100. 15 U.S.C. § 2310(d)(3).
In Voelker v. Porsche Cars
North America, Inc., 348 F.3d 639, 643
(7th Cir. 2003), an automobile warranty
case, the Court of Appeals said that the
party asserting federal jurisdiction must
allege the cost of the replacement
vehicle, minus both the present value of
the allegedly defective vehicle and the
value that the plaintiff received from the
allegedly defective vehicle. The facts in
that Magnuson-Moss case differ from
those present here, but the requirements
of allowance for usage and establishing
the difference in value, rather than
simply the purchase price are the same.
Treble damages may not be
assessed in a M agnuson-Moss count.
Nor may attorneys fees be recovered.
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
for fact-finding on the amount in
controversy. We repeat the admonition
expressed in our case law that in order to
carry out the Congressional intent to
limit jurisdiction in diversity cases,
doubts must be resolved in favor of
remand. See, e.g., Boyer v. Snap-On
Tools Corp., 913 F.2d 108, 111 (3d Cir.
1990); Abels v. State Farm Fire & Cas.
Co., 770 F.2d 26, 29 (3d Cir. 1985).
Moreover, estimations of the amounts
recoverable must be realistic. The
inquiry should be objective and not based
on fanciful, pie-in-the-sky, or simply
wishful amounts, because otherwise the
policy to limit diversity jurisdiction will
be frustrated.
Accordingly, the order of
certification will be vacated and the case
remanded to the District Court for a
determination of subject matter
jurisdiction.

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