Puleio v. Timberland Corp.

94 Mass.App.Ct. 1118

122 N.E.3d 1100 (Table)

Joseph PULEIO

v.TIMBERLAND CORPORATION & others.¹

17-P-908

Appeals Court of Massachusetts.

Entered: January 18, 2019

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Joseph Puleio, an inmate at the Massachusetts Correctional Institution, Concord (MCI-Concord), filed an eight-count complaint concerning a pair of allegedly defective workboots manufactured by defendant Timberland Corporation (Timberland) and purchased from the prison commissary operator, defendant Keefe Commissary Network Sales (Keefe). On Timberland's and Keefe's motions, a Superior Court judge dismissed the complaint for failure to state a claim on which relief could be granted; on the Department of Correction (DOC) defendants' later motion,³ a second judge dismissed the complaint as to them in a margin endorsement. Puleio appeals. We conclude that some counts were erroneously dismissed; we therefore vacate portions of the judgment of dismissal, and remand for further proceedings.

Background. We summarize the pertinent allegations of the operative complaint, which is the first amended verified complaint with incorporated attachments. Puleio is an inmate of MCI-Concord, serving a sentence of life imprisonment without possibility of parole. In 2011, he purchased a pair of Timberland boots from Keefe, based in part on Timberland's lifetime warranty. After four years of intermittent use, the boots began leaking, and so Puleio wrote to Timberland seeking a replacement under the warranty. After waiting for five months and receiving no response, Puleio again wrote to Timberland, this time adding a G. L. c. 93A demand to his letter.

Timberland replied in writing, stating in part:

"We'd like to inform you of a change we are making in our consumer returns policy. Effective immediately, we will no longer ship product directly to correctional facilities when a consumer is seeking a replacement for defective product. Consumers will need to provide an address outside of the correctional facility for shipment. Alternately, consumers can contact the retailer where they purchased the product for replacement" (emphasis added).

Puleio then attempted to contact Keefe (the retailer), sending his request through MCI-Concord's treasurer as required by prison rules. Puleio's request stated that he had made a warranty claim to Timberland, and that Timberland had advised him to contact the retailer for a replacement, so he asked whether Keefe would honor the lifetime warranty by providing replacement boots.

The next day, the treasurer sent Puleio a memorandum stating that she was "returning [Puleio's] paperwork" and that he could elect to have Timberland honor the lifetime warranty. She informed Puleio, however, that any replacement boots would "need to be sent to an address on the street because their warranty is for a similar or like product and is not the one approved for sale by the [DOC]."

Puleio replied to the treasurer that, because he is serving a life sentence, asking Timberland to send replacement boots to an address outside of MCI-Concord would be useless to him and effectively deprive him of his warranty rights.⁴ Puleio asserted (inferentially following Timberland's instruction that to obtain warranty service he could "contact the retailer ... for replacement") that, because Keefe continued to sell Timberland boots to Massachusetts prisoners, Timberland could issue a credit to Keefe that would allow Keefe to provide him with a pair of Timberland boots such as those currently being sold to prisoners.

After receiving no response from the treasurer, Puleio filed an institutional grievance alleging that DOC was "interfer[ing] with the contractual relationship I have with Timberland ... interfering with my warranty rights for the replacement of a defective product." The grievance coordinator denied the grievance, informing Puleio that although he was free to send out his boots for repair or replacement under Timberland's warranty, "the boots will not be allowed back into the institution. Repaired [or] replacement items must come from authorized contract vendors for the DOC. You may then purchase another pair via Keefe ... if you wish to do so."

Puleio appealed the denial of the grievance to the defendant superintendent of MCI-Concord, asserting that the grievance coordinator's rationale made "absolutely no sense whatsoever": having Timberland send replacement boots to an outside address would do nothing for Puleio since he was serving a life sentence. Puleio's appeal pointed out that "Timberland boots continue to be sold to DOC inmates by Keefe .... Why, then, is it not possible for Timberland ... to issue a credit to Keefe ... for my defective pair of workboots and then have Keefe, an authorized DOC contract vendor, provide me with a replacement pair of boots out of stock?" As relief, Puleio requested, among other things, that "Keefe provide me with a replacement pair of workboots under Timberland's manufacturer's warranty." The superintendent denied the grievance appeal, stating that she concurred with the grievance coordinator's findings.

Puleio then filed this suit against Timberland, Keefe, and DOC and two of its officials (hereinafter referred to collectively as DOC unless the context requires otherwise). The first amended complaint asserted claims for (1) breach of express warranty; (2) breach of the implied warranty of merchantability; (3) breach of contract; (4) unjust enrichment; (5) fraud and deceit; (6) product liability; (7) intentional interference with contractual relations; and (8) unfair or deceptive business practices by Timberland and Keefe in violation of G. L. c. 93A. The complaint was dismissed, and Puleio appealed.

At oral argument, DOC represented to us (in a seeming change of position since the superintendent's denial of the grievance appeal) that it did not object to Timberland issuing a credit that would allow Keefe to furnish a pair of replacement boots to Puleio out of Keefe's stock.⁵ Timberland, for its part, represented to us that if the boots were returned to it, inspected, and found to have a defect covered by its warranty, it could issue such a credit. And Keefe represented to us that it was unaware of any impediment to such a resolution. Notwithstanding the apparent availability of this mechanism, approximately six weeks after oral argument, the defendants filed a joint status report, informing us that resolution of the dispute was not possible due to "lack of a viable settlement mechanism." The status report did not, however, discuss the very mechanism previously represented to be viable.

Discussion. We review the sufficiency of Puleio's complaint de novo, taking as true its factual allegations and drawing all reasonable inferences in his favor. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Id., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). We consider not only the complaint but also the exhibits attached to it. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).

1. Breach of express warranty (count one). The complaint plausibly alleged a breach of express warranty by Timberland. The complaint asserted that Timberland offered a lifetime warranty and later informed Puleio, pursuant to an immediately-effective change in its return policy, that he could enforce his warranty rights by "contact[ing] the retailer where [he] purchased the product for replacement," i.e., Keefe. Timberland expressly stated this to be an alternative to providing an address outside of the correctional facility for shipment, which would, as described above, not provide an effective mechanism for enforcing his warranty rights.

And, although Timberland's letter is not clear, it did not expressly tie the contact-the-retailer option to any requirement that Puleio first ship his boots to Timberland for inspection to determine if there was a defect covered by the warranty.⁶ It is a reasonable inference, at the pleading stage, that Timberland was suggesting that any required inspection could be obtained by contacting the retailer.

The complaint further alleged a breach: Puleio attempted to invoke the warranty enforcement mechanism offered by Timberland by trying to contact Keefe, but failed to obtain warranty service. The reason for this failure cannot be determined from the complaint and attachments.⁷ Timberland may or may not have defenses or cross claims, based on the actions of DOC officials, Keefe, or otherwise, in response to the express warranty claim. At this stage, however, the complaint adequately alleged that, for whatever reason, Timberland breached the warranty.⁸

2. Breach of implied warranty of merchantability (count two). The judge dismissed the implied warranty of merchantability claim on the ground that Puleio had not alleged that a defect in the boots caused any personal injury or any damage to property other than the boots themselves. On appeal, Puleio argues that the complaint's allegation that the boots leaked during inclement weather was sufficient to allege that he suffered a personal injury to his feet. We think this goes beyond a "reasonable inference" from the complaint, Curtis, 458 Mass. at 676 ; moreover, Puleio did not make any such argument in opposition to the motions to dismiss. Puleio thus has not identified any error in the dismissal of the implied warranty claim.

3. Breach of contract (count three). For substantially the reasons discussed above in connection with the express warranty claim, we conclude that the complaint stated a claim against Timberland for breach of contract. See Anthony's Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 822 (1986) ("an express warranty claim is ... an action of contract").

4. Unjust enrichment (count four). "Unjust enrichment is defined as...