1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-15-1997

Suber v. Chrysler Corporation

Precedential or Non-Precedential:

Docket 95-5735

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Recommended Citation

"Suber v. Chrysler Corporation" (1997). 1997 Decisions. Paper 14.

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

95-5735 

 

 JAMES SUBER, 

 Appellant

v. 

 CHRYSLER CORPORATION 

v. 

 KONTINENTAL KOACHES,INC., a/k/a and d/b/a 

 KONTINENTAL KONVERSIONS, 

 Third-party defendant 

 CHRYSLER CORPORATION, 

 Third-party plaintiff 

 

 On Appeal from the United States District Court 

 For the District of New Jersey 

 D.C. Civ. No. 94-cv-00467 

 

 Argued: July 25, 1996 

 Before: BECKER, STAPLETON, and MICHEL, Circuit Judges*

 (Opinion Filed January 16, 1997) 

 

ROBERT M. SILVERMAN, ESQUIRE (ARGUED) 

Cynthia M. Certo, Esquire 

Kimmel & Silverman 

630 Sentry Park 

Suite 310 

 

 

* The Honorable Paul R. Michel, United States Circuit Judge 

for the Federal Judicial Circuit, sitting by designation. 
2

Blue Bell, PA 19422 

 

Counsel for Appellant

KEVIN M. MCKEON, ESQUIRE (ARGUED) 

Marshall, Dennehey, Warner, 

 Coleman & Goggin 

Three Greentree Center 

Suite 304 

Marlton, NJ 08053-3405 

Counsel for Appellee

 

 OPINION OF THE COURT 

 

BECKER, Circuit Judge. 

 This appeal in a "Lemon law" case presents the question 

whether the district court erred in dismissing for lack of 

subject matter jurisdiction the claims of the plaintiff, James 

Suber, brought against Chrysler Corporation on account of alleged 

defects in the 1993 Dodge Ram 250 Conversion Van that he 

purchased from a Chrysler dealership, Cherry Hill Dodge. The 

district court held that Suber's claims failed to meet the 

$50,000 amount in controversy requirement of the federal 

diversity statute, 28 U.S.C. § 1332, inasmuch as: (1) the New 

Jersey Consumer Fraud Act was inapplicable, rendering Suber 

ineligible for the treble damages that are available under that 

statute; and (2) Suber's remaining claims did not satisfy the 

jurisdictional requirement. 

 We review the dismissal of Suber's complaint for 

failure to establish subject matter jurisdiction, hence we 

consider only whether plaintiff's claims, taken as true, allege 
3

facts sufficient to invoke the jurisdiction of the district 

court. Licata v. U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir. 

1994). Because we find that the district court dismissed the 

complaint without properly evaluating Suber's claims under the 

prevailing standard of St. Paul Mercury Indemnity Co. v. Red Cab 

Co., 303 U.S. 283 (1938), we vacate and remand for further 

proceedings. 

I. Facts1

 Suber purchased the Dodge van from Cherry Hill Dodge 

("the dealership") on April 28, 1993.2 Prior to Suber's 

purchase, Kontinental Koaches, Inc., a third-party defendant, 

renovated the van, installing new seats, carpeting, upholstery, a 

sofa, and other accessories. The sticker price of the car, with 

these improvements, was approximately $29,895.00. Almost 

immediately after taking possession, Suber discovered problems 

with the van, especially its suspension. In particular, the van 

had a tendency to "bottom out," even on relatively smooth road 

surfaces. 

 Suber avers that he returned the van to the dealer at 

least four times over the course of several months. When he 

returned the van on May 10, 1993, he complained of the "bottoming 

out," as well as a harsh ride, steering drift, and other defects. 

 One week later, on May 17, 1993, he complained about the van's 

 

 

1The facts are drawn from Suber’s complaint, Suber’s 

deposition testimony, and the briefs and accompanying exhibits 

submitted pursuant to Chrysler’s motion for summary judgment. 

 

2It is unclear from the record whether Cherry Hill Dodge is 

owned by Chrysler or is privately owned. 
4

suspension, steering, brakes, driver's seat, rear door handle, 

electrical system, and the running boards. The dealership told 

Suber that nothing was wrong with the van, but balanced the 

tires. 

 Because the problems with his van persisted, Suber 

returned to the dealership on June 9, 1993 with the same 

complaints. The dealership serviced the van, by aligning the 

front end and balancing the wheels, but again told Suber that 

there was nothing wrong. A few weeks later, on or around June 

25, 1993, the van "bottomed out" so severely that it caused one 

of the front tires to go flat. Suber had the tire replaced on 

his own, without returning to the dealership. 

 On June 28, 1993, Suber filed a claim with the Customer 

Arbitration Board ("CAB"), an informal dispute resolution body 

established by Chrysler under the New Jersey Lemon Law, N.J.S.A 

56:12-36. Pursuant to CAB procedures, a Chrysler representative, 

George Bomanski, and a dealership employee inspected and road 

tested the van. According to Suber, both men told him that there 

was a problem with the van's suspension. However, the official 

report filed by Bomanski stated that the suspension system was 

fine. By letter dated August 5, 1993, the CAB found that Suber's 

complaint regarding the suspension was groundless, and it denied 

Suber's request for a refund of the purchase price because "the 

use, value and safety of [the] vehicle has not been substantially 

impaired."3 

 

 

3The CAB did rule that Chrysler was responsible for 

repairing the door panel, handle, and exterior trim, and 

performing an oil usage test. It also ruled, however, that the 
5

 According to Suber, the suspension problems persisted 

through July 1993. The van failed Pennsylvania motor vehicle 

inspection at that time because of its suspension, including 

"obviously compressed front springs." Additionally, Suber claims 

that he returned the van to the dealership on two occasions when 

the dealership did not supply him with a copy of the repair 

invoice. 

 On July 16, 1993, Suber again left the van with the 

dealership for service. This appears to be the same day that he 

met with Bomanski and the dealership employee for the CAB 

inspection. The dealership told him that it would contact him 

when the repairs were completed. On August 16, 1993, having 

heard nothing, he called and was informed that his van was not 

yet ready. He went to the dealership and found his van parked in 

the back lot. The dealership's repair invoices show that the 

last work on the van was performed on July 22, 1993. 

 Subsequent to Suber's last repair attempt, Chrysler 

sent to owners of 1993 and 1994 Dodge Ram Vans and Wagons, 

including Suber, a "Customer Satisfaction Notification." This 

notice informed these Dodge owners that the front coil springs on 

their vehicles needed to be replaced: 

The service is needed to prevent the front suspension 

from bottoming out when traveling over rough 

surfaces. Without the service we are 

offering, the vehicle identified on the 

enclosed form may exhibit a harsh ride or 

suspension noises. We ask that you arrange 

for this important service without delay. 

 

other alleged defects either did not exist or were not the result 

of a Chrysler manufacturing defect. App. 305A. 
6

In conjunction with this notice, Chrysler sent to its dealers a 

"Technical Services Bulletin" dated September 3, 1993 that 

detailed the repair work necessary to correct suspension problems 

like those experienced by Suber. 

 Suber contends that his van's suspension is defective 

to this day, and that the van has never passed the Pennsylvania 

inspection. A mechanic retained by Suber's counsel inspected the 

car on March 2, 1995 and found that the suspension system was in 

an "extremely dangerous condition" and that the car was unsafe to 

drive. In response, Chrysler points out that Suber has continued 

to drive the van. At the time of the CAB inspection in July 

1993, the van had 5057 miles on it. When a Chrysler 

representative road tested the van on March 13, 1995, it had 

16,514 miles on it. The Chrysler representative concluded that 

the van has no suspension problems. 

II. Procedural History

 Suber filed a complaint against Chrysler in the 

District Court for the District of New Jersey, alleging 

violations of the New Jersey Automobile Lemon Law, N.J.S.A § 

56:12-29 et seq.; the Magnuson-Moss Warranty Act, 15 U.S.C. § 

2301 et seq.; the New Jersey Uniform Commercial Code, N.J.S.A. § 

12A:1-101 et seq.; and the New Jersey Consumer Fraud Act, 

N.J.S.A. § 56:8-1 et seq. ("NJCFA"). Suber alleged that the 

district court had subject matter jurisdiction under the 

diversity statute because the amount in controversy exceeds 

$50,000.4 Soon after the complaint was filed, the district court 

 

 

4The Magnuson-Moss Warranty Act requires that the amount in 
7

considered sua sponte whether it had subject matter jurisdiction 

and issued an Order to Show Cause. The plaintiff responded by 

letter, and the court withdrew the order. Chrysler then moved 

for summary judgment, asserting that the evidence could not 

support Suber's legal claims. 

 On September 5, 1995, the district court sua sponte 

dismissed Suber's complaint for lack of subject matter 

jurisdiction, Fed. R. Civ. P. 12(b)(1), holding that the amount 

in controversy did not exceed $50,000. Relying on a New Jersey 

Appellate Division decision, D'Ercole Sales, Inc. v. Fruehauf 

Corp., 501 A.2d 990 (N.J. Super. Ct. App. Div. 1985), the court 

held that the "New Jersey Consumer Fraud Act, which contains a 

mandatory treble damage provision, is inapplicable to the case at 

bar," Mem. Op. at 3-4, because Suber failed to "provide [the 

district court] with evidence of defendant's allegedly 

unconscionable conduct or 'substantial aggravating circumstances' 

surrounding defendant's alleged breach of the express 

warranties." Id. at 3. Under D’Ercole Sales, breach of warranty 

without substantial aggravating circumstances is not actionable 

as a NJCFA claim. 

 Having found that Suber could not rely on the treble 

damages available under the NJCFA to meet the amount in 

controversy requirement, the court stated that it was satisfied 

"to a legal certainty" that Suber's remaining claims could not 

exceed the $50,000 barrier. Id. at 4. It reasoned that the 

 

controversy exceed $50,000 to establish federal jurisdiction, 

even though it is a federal provision. 15 U.S.C. § 2310(d). 
8

maximum amount that the plaintiff could recover under either the 

Magnuson-Moss Warranty Act or the Lemon Law is the full refund 

price of the vehicle if found defective, $29,895.00. The court 

noted that attorney's fees should be included, but stated that 

these fees would have to exceed $20,105.00 to get to the 

jurisdictional amount, which it held would be clearly excessive. 

 Id.

 Suber has filed a timely appeal, contending primarily 

that the district court failed to apply the proper test for 

determining the amount in controversy. Our review of the order 

dismissing the complaint is plenary. See Packard v. Provident 

Nat'l Bank, 994 F.2d 1039, 1044 (3d Cir.), cert. denied sub nom.

Upp v. Mellon Bank, N.A., 510 U.S. 964 (1993). 

III. The Amount in Controversy Requirement

 For a plaintiff to establish federal diversity 

jurisdiction, the amount in controversy must exceed $50,000, 

exclusive of interest and costs. 28 U.S.C. § 1332(a). The 

standard for determining whether a plaintiff's claims satisfy the 

amount in controversy requirement was set out by the Supreme 

Court in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 

283 (1938), as follows: 

The rule governing dismissal for want of jurisdiction 

in cases brought in the federal court is 

that, unless the law gives a different rule, 

the sum claimed by the plaintiff controls if 

the claim is apparently made in good faith. 

It must appear to a legal certainty that the 

claim is really for less than the 

jurisdictional amount to justify dismissal. 

 

Id. at 288-89 (emphasis added) (footnotes omitted); see also
9

Nelson v. Keefer, 451 F.2d 289, 292-93 (3d Cir. 1971). In 

applying the "legal certainty" test established by St. Paul 

Mercury, this Court has stated that "dismissal is appropriate 

only if the federal court is certain that the jurisdictional 

amount cannot be met." Columbia Gas Transmission Corp. v. 

Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995); cf. Lunderstadt v. 

Colafella, 885 F.2d 66, 69-70 (3d Cir. 1989) (holding in a 

federal question case that "a federal court may dismiss for lack 

of jurisdiction only if the claims are 'insubstantial on their 

face'"). 

 Once a good faith pleading of the amount in controversy 

vests the district court with diversity jurisdiction, the court 

retains jurisdiction even if the plaintiff cannot ultimately 

prove all of the counts of the complaint or does not actually 

recover damages in excess of $50,000. St. Paul Mercury, 303 U.S. 

at 288. Accordingly, the question whether a plaintiff's claims 

pass the "legal certainty" standard is a threshold matter that 

should involve the court in only minimal scrutiny of the 

plaintiff's claims. The court should not consider in its 

jurisdictional inquiry the legal sufficiency of those claims or 

whether the legal theory advanced by the plaintiffs is probably 

unsound; rather, a court can dismiss the case only if there is a 

legal certainty that the plaintiff cannot recover more than 

$50,000. As we stated in Lunderstadt, the "threshold to 

withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(1) is 

thus lower than that required to withstand a Rule 12(b)(6) 

motion." Lunderstadt, 885 F.2d at 70; Batoff v. State Farm Ins. 
10

Co., 977 F.2d 848, 852 (3d Cir. 1992). 

 The temporal focus of the court's evaluation of whether 

the plaintiff could conceivably prevail on its claim is on the 

time that the complaint was filed. While courts generally rely on 

the plaintiff's allegations of the amount in controversy as 

contained in the complaint, "where a defendant or the court 

challenges the plaintiff's allegations regarding the amount in 

question, the plaintiff who seeks the assistance of the federal 

courts must produce sufficient evidence to justify its claims." 

Columbia Gas, 62 F.3d at 541. We have also held that "the record 

must clearly establish that after jurisdiction was challenged the 

plaintiff had an opportunity to present facts by affidavit or by 

deposition, or in an evidentiary hearing, in support of his 

jurisdictional contention." Berardi v. Swanson Memorial Lodge No. 

48 of the Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 

1990) (quoting Local 336, American Federation of Musicians, AFLCIO v. Bonatz, 475 F.2d 433, 437 (3d Cir. 1973)); see also 5A 

Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 1350, at 213-18 (2d ed. 1990). 

 The question whether there is a legal certainty that 

Suber's claims are for less than $50,000 depends on what damages 

Suber could conceivably recover under New Jersey state law, and we 

must therefore consider the applicable New Jersey statutes and 

Suber’s allegations under them. 

IV. The New Jersey Lemon Law

 The New Jersey Lemon Law provides a remedy to consumers 

who purchase defective vehicles, as Suber claims he has. Under 
11

this law, if a consumer reports a "nonconformity" in a vehicle to 

the manufacturer or its dealer during the first 18,000 miles or 

within two years of the date of delivery to the consumer, the 

manufacturer must make, or arrange with the dealer to make, the 

necessary repairs "within a reasonable time." N.J.S.A. 56:12-31. 

 The statute defines a "nonconformity" as a "defect or condition 

which substantially impairs the use, value or safety of a motor 

vehicle." Id. 56:12-30. According to the New Jersey courts, 

whether a defect rises to the level of an actionable 

nonconformity depends on whether it "shakes the buyer's 

confidence" in the goods. See Berrie v. Toyota Motor Sales, 

U.S.A., Inc., 630 A.2d 1180, 1182 (N.J. Sup. Ct. App. Div. 1993). 

 Thus, if a "reasonable person" in Suber's position could 

conclude that the "bottoming out" "impairs the use and value of 

the car and shakes [his] confidence in it," then the suspension 

problems with Suber's van qualify as nonconformities. Id. at 

1183. 

 If the manufacturer or dealer is unable to correct the 

nonconformity within a reasonable time, the vehicle is a true 

"lemon" and the owner is entitled to damages. The law presumes 

that a manufacturer is unable to correct a nonconformity within a 

reasonable time if the owner has made three or more unsuccessful 

repair attempts or the vehicle "is out of service by reason of 

repair for one or more nonconformities" for a total of twenty 

days. N.J.S.A. 56:12-33. 

 We find that Suber has sufficiently alleged that the 

use and value of his van are impaired such that we cannot 
12

conclude that the alleged suspension problems could not 

conceivably be found to constitute nonconformities. Suber stated 

in his affidavit that the van has never passed the Pennsylvania 

inspection test, and a mechanic he hired has stated that it is 

unsafe to drive. Chrysler recalled all 1993 Dodge Ram vans and 

wagons for the same defect, even while the dealership contended 

that there was nothing wrong with the van. Suber has also 

alleged that his van presumptively cannot be fixed: in his 

affidavit, he stated that he has made more than three repair 

attempts and that the vehicle remained out of service for repairs 

for more than 20 days. When his complaint was filed, then, it 

was conceivable that Suber's van was a true "lemon" and that he 

was entitled to recovery.5 

 If successful on his Lemon Law claims, Suber could 

recover the full refund value of the car plus collateral damages, 

mainly finance charges. The statute provides: 

The manufacturer shall provide the consumer with a full 

refund of the purchase price of the original 

motor vehicle including any stated credit or 

allowance for the consumer's used motor 

vehicle, the cost of any options or other 

modifications arranged, installed, or made by 

the manufacturer or its dealer within 30 days 

after the date of original delivery, and any 

other charges or fees including, but not 

limited to, sales tax, license and 

registration fees, finance charges . . . less 

a reasonable allowance for vehicle use. 

 

 

5There is evidence that shows that Suber's van has been 

driven for over 16,000 miles, calling into question Suber's 

claims that his car is valueless. However, considering such 

evidence is not proper at the jurisdictional stage, unless that 

evidence suggests that the amount in controversy allegations were 

not made in good faith. We conclude that this evidence does not 

make it certain that Suber could not prevail on his Lemon Law 

claim. 
13

Id. 56:12-32 (emphasis added). 

 Moreover, in calculating the amount in controversy, we 

must consider potential attorney's fees. Although 28 U.S.C. § 

1332 excludes "interest and costs" from the amount in 

controversy, attorney's fees are necessarily part of the amount 

in controversy if such fees are available to successful 

plaintiffs under the statutory cause of action. See Missouri 

State Life Ins. Co. v. Jones, 290 U.S. 199 (1933). They are 

here. See N.J.S.A. 56:12-42 ("In any action by a consumer 

against a manufacturer brought in Superior Court or in the 

division pursuant to the provisions of this act, a prevailing 

consumer shall be awarded reasonable attorney's fees, fees for 

expert witnesses and costs."). 

 The district court began and ended its inquiry with the 

sticker price of the van, which was $29,895. Because we have 

concluded that it is conceivable that Suber’s van is a total 

“lemon,” we agree that Suber is entitled to include the entire 

sticker price of the van in the amount in controversy. Without 

considering potential collateral charges, however, the district 

court dismissed the complaint because the attorney's fees that 

would be available to Suber if he prevailed could not get him 

over $50,000. The district court erred, therefore, in not 

considering the collateral charges, particularly finance charges, 

as part of the amount in controversy. 

 The question before us, then, is how to calculate 

Suber's collateral charges for purposes of the amount in 
14

controversy inquiry. According to Suber, his total Lemon Law 

damages are $40,015.20. As stated on his contract with the 

dealership, sales tax and registration fees bring the cost of the 

van to $31,649. Once finance charges are added, Suber alleges 

that the total cost of the van is $41,404.20.6 As calculated by 

Suber, the reasonable allowance for use that is required to be 

deducted pursuant to the Lemon Law is $1,389.10, which brings the 

total to $40,015.20.7 If Suber’s allegation is correct, 

attorney’s fees necessary to get him above the $50,000 threshold 

might not be unreasonable. 

 However, in considering Suber's claimed amount in 

controversy, we are given pause by his contention that he is 

entitled to count the total finance charges stated in the 

financing agreement toward the amount in controversy. We find 

this unlikely. Suber would pay the total charges if it took him 

the entire finance period to pay for the van, but not if he paid 

off the car loan before that time. Under New Jersey law, a 

borrower may prepay a retail installment sales loan in full at 

 

 

6Suber financed $26,779.11. With an 8.5% interest rate, his 

total finance charges are $8595.21. Suber’s down payment, which 

included cash, a rebate, and the value of his trade-in, was 

$6029.88. Added together, this brings the total price as stated 

in the Retail Sales Installment Contract to $41,404.20. 

 The amount financed includes optional credit life insurance 

that totals $1085.99. 

 

7Under N.J.S.A. 56:12-30, the reasonable allowance for 

vehicle use is calculated by multiplying the purchase price by 

the mileage at the time the consumer first presents the vehicle 

to the dealer for repair of the nonconformity and dividing that 

number by 100,000 miles. In this case, if $41,404.20 is 

multiplied by 3,355 (the mileage at the time of the first 

suspension complaint), and then that is divided by 100,000, the 

result is $1,389.10. 
15

any time and obtain a credit for unaccrued interest. N.J.S.A. 

17:16C-43. If, for example, Suber had made his car payments for 

three months, and then decided to pay the remaining principal on 

his loan, the only finance charges he would pay would be the 

interest included in the three payments that he made. He would 

be entitled to a refund for the remaining, unpaid finance 

charges. Concomitantly, had Suber been awarded Lemon Law damages 

by the district court after making three car payments, his 

damages would include only those finance charges that he had 

paid. See, e.g., Gambrill v. Alfa Romeo, Inc., 696 F. Supp. 

1047, 1048 (E.D. Pa. 1988) (calculating damages under 

Pennsylvania Lemon Law).8 Accordingly, it seems to us that 

Suber will be entitled to recover in this action only those 

finance charges that he has paid at the time of the judgment. 

 The question of how to determine finance charges for 

the purposes of the amount in controversy requirement is thus a 

difficult one that involves a measure of speculation. We have 

held that the amount in controversy should not be “measured by 

the low end of an open-ended claim, but rather by a reasonable 

reading of the value of the rights being litigated.” Angus v. 

Shiley Inc., 989 F.2d 142, 146 (3d Cir. 1993). Because the 

district court failed to make this determination with respect to 

the finance charges that Suber can include in the amount in 

controversy, it erred in concluding that there is a legal 

 

 

8The same is true for the credit life insurance that Suber 

financed. He would be entitled to a refund of the unaccrued 

premiums upon prepayment of the loan. N.J.S.A. 17:16D-14. 
16

certainty that Suber’s claims are for less that $50,000. 

 We thus will vacate the district court’s order and will 

remand the case so that the court can determine whether Suber’s 

Lemon Law claim allows him to establish diversity jurisdiction. 

In making this determination, the district court should consider 

the purchase price of the van, all collateral charges, and 

potential attorney’s fees. As Suber’s van is conceivably a total 

“lemon,” the district court should start with the purchase price, 

$29,895, and add to it sales tax and registration fees, which 

bring the total to $31,649. The district court must then 

determine the amount of any finance charges and attorneys' fees 

includable in Suber's amount in controversy. 

V. New Jersey Consumer Fraud Act

 We now turn to the New Jersey Consumer Fraud Act 

(“NJCFA”) to determine whether Suber can satisfy the amount in 

controversy requirement under that law. The NJCFA allows private 

plaintiffs to bring suit if they are harmed by an unconscionable 

commercial practice. See, e.g., Cox v. Sears Roebuck & Co., 647 

A.2d 454, 460-61 (N.J. 1994). Under the NJCFA, the: 

act, use or employment by any person of any 

unconscionable commercial practice, 

deception, fraud, false pretense, 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, in connection with the sale . . . 

or with the subsequent performance of such 

person as aforesaid, whether or not any 

person has in fact been misled, deceived or 

damaged thereby, is declared to be an 

unlawful practice. 

N.J.S.A. 56:8-2. If a defendant is found to have committed an 
17

unconscionable commercial practice, the statute imposes mandatory 

treble damages and attorney's fees. Id. 56:8-19. 

 Suber also relies on the NJCFA to establish subject 

matter jurisdiction. He submits that he has sufficiently alleged 

that Chrysler committed unconscionable commercial practices 

within the meaning of the NJCFA and that he can, therefore, 

include possible NJCFA damages in the amount in controversy, in 

particular, the treble damages that are available under that 

statute. 

 The district court rejected this contention and held 

that there is a legal certainty that Suber cannot recover under 

the NJCFA. It concluded that Suber has not alleged any facts 

that could constitute a NJCFA violation because Suber’s only 

claim is for breach of warranty, which is not actionable under 

the NJCFA. The court, relying on the New Jersey Appellate 

Division case, D'Ercole Sales, Inc. v. Fruehauf Corp., 501 A.2d 

990 (N.J. Super. Ct. App. Div. 1985), held that Suber has failed 

to allege "substantial aggravating circumstances,” which New 

Jersey law requires to recover for a breach of warranty. 

 Although the New Jersey Supreme Court has approved of 

certain language from D'Ercole Sales, see Cox, 647 A.2d at 462, 

it has never directly considered the issue before the D’Ercole 

Sales court and thus has never explicitly adopted its holding. 

In D’Ercole Sales, the court held that a truck assembler's 

failure to honor the warranty was not an "unconscionable consumer 

practice" within the meaning of the NJCFA. In so holding, the 

court stated that "a breach of warranty, or any breach of 
18

contract, is not per se unfair or unconscionable, and a breach of 

warranty alone does not violate a consumer protection statute." 

501 A.2d at 998 (citations omitted). While acknowledging that a 

breach of warranty is unfair to the non-breaching party, it 

stated that: 

"[i]n a sense, unfairness inheres in every breach of 

contract when one of the contracting parties 

is denied the advantage for which he 

contracted, but this is why remedial damages 

are awarded on contract claims. If such an 

award is to be trebled, the . . . legislature 

must have intended that substantial 

aggravating circumstances be present." 

Id. at 1001 (emphasis added) (quoting United Roasters, Inc. v. 

Colgate-Palmolive Co., 649 F.2d 985, 992 (4th Cir. 1981)). 

Because this holding seems unexceptionable, uncontroversial, and 

altogether sensible, we predict that D’Ercole Sales would be 

followed by the New Jersey Supreme Court, and hence we find that 

the District Court correctly concluded that the NJCFA requires 

that substantial aggravating circumstances be shown when the 

basis for the NJCFA claim is breach of warranty. 

 Assuming, therefore, that a plaintiff needs to show 

substantial aggravating circumstances to prevail under the NJCFA 

with what is essentially a breach of warranty claim, we conclude 

that the district court incorrectly held that Suber has not 

alleged sufficient aggravating circumstances to prevail at the 

jurisdictional stage.9 Suber has made allegations that, if 

 

 

9Because we cannot determine from the record whether 

Chrysler owns the dealership, we consider only those allegations 

of unconscionable practices made against Chrysler directly. 
19

proven, could constitute substantial aggravating circumstances, 

such that we cannot find that recovery is precluded to a legal 

certainty. For example, in his affidavit, Suber states that 

George Bomanski, a Chrysler representative, told Suber that the 

van had suspension problems, but his official report, on which 

the CAB based its decision, noted that there were no suspension 

problems. Moreover, Suber's allegations that Chrysler knew of 

the problem are supported by the Technical Services Bulletin, 

which stated that all 1993 and 1994 Dodge Ram vans and wagons 

needed repair to correct the suspension problem about which Suber 

complained. 

 At all events, we find that Suber's NJCFA claim appears 

to be premised on more than mere breach of warranty. The Lemon 

Law has defined certain practices as per se unlawful within the 

meaning of the NJCFA. In particular, each time a motor vehicle 

is returned for examination or repair during the first 18,000 

miles of operation or within two years of purchase, “the 

manufacturer through its dealer shall provide to the consumer an 

itemized, legible statment of repair.” N.J.S.A. 56:12-34 (b). 

Failure to comply with this provision constitutes an unlawful 

practice under the NJCFA. Id. 56:12-34 (c). Suber testified in 

his deposition that he left the dealership without receiving 

repair invoices on at least two occasions. 

 It thus appears that Suber may not be precluded to a 

legal certainty from recovering under the NJCFA. Even though we 

have explained that the court should include the treble damages 

available under the NJCFA in calculating the amount in 
20

controversy, we are uncertain as to what his NJCFA damages would 

be. The New Jersey Consumer Fraud Act (NJCFA) allows private 

plaintiffs to recover for any "ascertainable loss" from an 

allegedly unconscionable practice, N.J.S.A. 56:8-2 & 56:8-19, 

and imposes mandatory treble damages and attorney's fees, id.

56:8-19. Suber contends that his Lemon Law damages of $40,015.10 

are also his NJCFA damages and should be trebled to arrive at 

$120,045.30 in damages. That seems unlikely to us. 

Unfortunately, the New Jersey Supreme Court has provided little 

guidance about quantifying ascertainable loss under the NJCFA. 

Because we have already determined that a vacatur and remand is 

appropriate in this case, the remand will also permit the 

district court to calculate Suber’s potential NJCFA damages and 

thus determine whether there is a legal certainty that the claim 

is for less that $50,000, once those damages are trebled. 

 On remand, the court must also determine whether 

Suber’s claims can be aggregated. The general rule is that 

claims brought by a single plaintiff against a single defendant 

can be aggregated when calculating the amount in controversy, 

regardless of whether the claims are related to each other. 

Snyder v. Harris, 394 U.S. 332, 335 (1969) (“Aggregation has been 

permitted . . . in cases in which a single plaintiff seeks to 

aggregate two or more of his own claims against a single 

defendant.”); see also 1 James Wm. Moore, Moore’s Federal 

Practice ¶ 0.97, at 907-08 (2d ed. 1995); 14A Charles Alan Wright 

et al., Federal Practice and Procedure § 3704 (2d ed. 1985). 

Based on this general rule, we think that Suber’s Lemon Law and 
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NJCFA claims can probably be aggregated. We are given pause, 

however, by our understanding that these two claims could not be 

aggregated if Suber could not recover damages for both. That is, 

if these claims are alternative bases of recovery for the same 

harm under state law, Suber could not be awarded damages for 

both, and a court should not aggregate the claims to arrive at 

the amount in controversy. 

 We think it is likely that the harms sought to be 

remedied by the Lemon Law and the Consumer Fraud Act are, in 

fact, qualitatively different: the Lemon Law seeks to put a 

consumer in as good a position as he or she would have been in 

had he or she not purchased the “lemon,” while the NJCFA remedies 

the particular “ascertainable loss” suffered by a consumer by 

reason of an unconscionable commercial practice. This 

understanding has also informed our conclusion, explained above, 

that Suber’s potential “ascertainable loss,” for purposes of the 

NJCFA, is probably not the value of the van. On the other hand, 

we are not entirely confident of these conclusions, and we were 

cited to no New Jersey courts addressing this question (nor have 

we found any). But this issue was not briefed by the parties, 

and they may find some cases. At all events, since we remand 

here, we leave the aggregation question in the first instance to 

the district court upon remand. 

VI. Conclusion

 For the foregoing reasons, we will vacate the judgment 

and remand this case to the district court to determine, applying 

the standard of St. Paul Mercury Indemnity Co. v. Red Cab Co., 
22

303 U.S. 283 (1938), whether there is a legal certainty that 

Suber’s claims are for less than $50,000. Upon remand, the 

district court must give Suber the opportunity to develop the 

record in support of his jurisidictional claim, whether through 

affidavits, depositions, or an evidentiary hearing. In remanding 

this case to the district court, we note that the district court 

will also need to consider the availability of diversity 

jurisdiction under Suber’s U.C.C. or Magnuson-Moss Act claims,10

as well as whether Suber’s Lemon Law and NJCFA claims can be 

aggregated in calculating the amount in controversy. 

 For the foregoing reasons, the judgment of the district 

court will be vacated and the case remanded for further 

 

 

10Under the Magnuson-Moss Warranty Act ("Magnuson-Moss"), 15 

U.S.C. § 2301 et seq., a consumer who is damaged by the failure 

of a dealer or manufacturer to comply with a warranty obligation 

can file suit to recover the purchase price plus collateral 

damages. Id. § 2310(d). Although it is a federal provision, 

federal jurisdiction under Magnuson-Moss is limited to those 

cases in which the amount in controversy exceeds $50,000. Id. § 

2310(d)(3)(B). 

 Despite the similarities of this provision to the Lemon Law, 

whether a plaintiff satisfies the amount in controversy threshold 

is a different question under Magnuson-Moss. Section 2310(d)(3) 

expressly excludes "interests and costs" from the calculation of 

the amount in controversy. Unlike the federal diversity statute, 

the courts that have considered whether attorney fees are costs 

within the meaning of the statute have uniformly concluded that 

they are and thus must be excluded from the amount in controversy 

determination. See, e.g., Boelens v. Redman Homes, Inc., 748 

F.2d 1058, 1069 (5th Cir. 1984); Saval v. BL Ltd., 710 F.2d 1027, 

1033 (4th Cir. 1983); Mele v. BMW of North America, Inc., No. 93-

2399, 1993 WL 469124, at *3 (D.N.J. Nov. 12, 1993). 

 Although Suber could therefore probably not establish 

jurisdiction with his Magnuson-Moss claim, we leave that question 

to the district court upon remand. If the district court finds 

that Suber has established diversity jurisdiction with his Lemon 

Law or NJCFA claim, the court can exercise supplemental 

jurisdiction over the Magnuson-Moss Act claim. 28 U.S.C. § 

1367(a). 
23

proceedings consistent with this opinion. The parties shall bear 

their own costs.