Vartelov v. Acura

MEMORANDUM

Schiller, J.

Plaintiff Nedyalko Vartelov sues Defendant Montgomeryville Acura (“the Dealer”) alleging it violated the Odometer Act and Pennsylvania's Uniform Trade Practices and Consumer Protection Law (“UTPCPL”) and committed fraud during the sale of a used vehicle. The Dealer moves for summary judgment on the Odometer Act claim, and the parties cross move on Vartelov's UTPCPL and fraud claims. The Court grants summary judgment in the Dealer's favor on the Odometer Act claim. It declines to exercise supplemental jurisdiction over Vartelov's remaining state law claims and dismisses them without prejudice to refile in state court should Vartelov chose to do so. The parties' cross motions on the state law claims are denied as moot.

I. BACKGROUND

The Dealer received a new 2020 Acura TLX (“the Vehicle”) with four miles on its odometer on or about July 20, 2020. (ECF 25-11 at 1-2.) A few weeks later, the Dealer took title of the Vehicle and made it a corporate fleet vehicle. (Id.). It loaned the Vehicle to its service customers when they received a longer service or certain warranty repairs on their vehicles. (ECF 24 at 156, Marr Dep., 26:15-17; ECF 24 at 140, Grimason Dep., 11:9-20.)

The Vehicle's prior use as a loaner.

The Dealer and each customer using the Vehicle entered into a loaner agreement (titled “Vehicle Use Agreement”) generated by a service department service advisor. (ECF 24 at 141, Grimason Dep., 16:12-13, 17:4-9; (ECF 24 at 157, Marr Dep., at 31:19-32:2; see also ECF 24 at 184-242 (Ex. J).) The Vehicle Use Agreement contains the customer's identifying information, the date and time the customer took possession of and returned the Vehicle, and the Vehicle's mileage when taken and returned, among other things. (ECF 24 at 184-242 (Ex. J).) Once the borrowing customer returned the Vehicle, a lot attendant went “out to the vehicle, check[ed] it in, and fill[ed] out a little form with the fuel, he vacuum[ed] the vehicle, check[ed] it for damage, and then put[] the current mileage for the vehicle” on the check-in form and the Vehicle Use Agreement. (ECF 24 at 158, Marr Dep., 35:9-21; ECF 24 at 184-242 (Ex. J) (Vehicle Use Agreements and Check In forms for the Vehicle).) A service advisor then logged this information into the computer system to “close out” the rental contract. (ECF 24 at 157-58, Marr Dep., 31:22-32:2, 33:19-33:23.) The computer system can then generate a report for the Vehicle's usage history by drawing solely upon the information entered into the computer. (ECF 24 at 156, Marr Dep., 27:5-28:23; see also ECF 24 at 171-73 (Ex. H).)

Thus, there are three sources of data for the Vehicle's mileage during its time as a loaner: the computer-generated Vehicle usage report; the Vehicle User Agreements; and the check-in forms. (ECF 24 at 184-242 (Ex. J) (Vehicle Use Agreements and check-in forms); ECF 24 at 17173 (Ex. H) (computer-generated report.) The following chart summarizes the information contained in the summary judgment record for the Vehicle's loaner usage:

Exhibit H Computer generated report	Exhibit J Vehicle Use Agreement	Exhibit J Check in form
Customer last name	Date out	Date in	Miles out	Miles in	Date out	Date in	Miles out	Miles in	Date	Miles
Bhatt	07/25/20	08/05/20	4	159
Yates	08/05/20	08/06/20	159	216
Smith	08/06/20	08/10/20	216
Jang	08/11/20	08/11/20	216	305
Snellings	08/12/20	08/12/20	305	306	08/12/20 8:08 AM	08/12/20 4:01 PM	305	315	08/12/20 4:01	315
Yu	08/13/20	08/14/20	306	307	08/13/20 10:21 AM	08/14/20 7:30	306	329	08/14/20 7:30	329
Adler	08/14/20	08/15/20	307	3330	08/14/20 8:32 AM	08/14/20 11:01	307	337
08/14/20 8:32 AM	08/15/20 7:30 AM	307
Herishko	08/15/20	08/15/20	3330	08/15/20 9:02 AM	08/15/20 11:01 AM	3330
Lakkakula	08/17/20	08/17/20	3330	08/17/20 8:35 AM	08/17/20 3:00 PM	3330	08/17/20 3:43	370
OSullivan	08/17/20	08/18/20	3330	4911	08/17/20 3:36	08/18/20 4 PM	3330	491	08/18/20 4:00	491
Schenck	08/19/20	08/20/20	4911	08/19/20 7:37 AM	08/20/20 11:07	4911	513	08/20/20 11:07	513
Randall	08/20/20	08/21/20	4911	08/20/20 2:41 PM	08/21/20 2:00	4911	574	08/21/20 2:00	574
Pfenninger	08/25/20	08/26/20	4911	4912	08/25/20 9:44 AM	08/26/20 10:30	4911	584	08/26/20 10:30	584
Kolisetty	08/27/20	08/27/20	4912	08/27/20 7:42 AM	08/27/20 3:45	4912
Lemailloux	08/28/20	08/30/20	4912	4912	08/28/20 1:02 PM	09/03/20 8:17	4912	1025	09/03/20 8:17	1025
Gower	09/04/20	09/04/20	4912	4913
Dixon	09/04/20	09/14/20	4913	09/04/20 12:02 PM	09/14/20 8:45	4913	1219
Bailey	09/14/20	09/17/20	4913	09/14/20 12:03 PM	09/17/20 8:17 AM	4913	1275	09/17/20 8:17 AM	1275
McClean	09/22/20	09/25/20	4913	4914	09/22/20 9:14 AM	4913	1305	09/23/20	1305
Chiarappa	09/28/20	09/29/20	4914	4915	09/28/20 9:12 AM	09/28/20 7:51	4914	1359	9/28/20 7:51	1359
Scanlin	10/01/20	10/03/20	4915	4916	10/01/20 8:04 AM	10/02/20 1:48	4915	1501	10/02/20 1:48	1501
Campbell	10/07/20	10/09/20	4916	10/07/20 11:12 AM	10/09/20 1:25	4916	1520	10/09/20 1:25	1520

Harrison	10/12/20	10/13/20	4916	10/12/20 12:09 PM	10/13/20 3:25	4916	1569	10/13/20 3:25	1583
Kulkarni	10/14/20	10/14/20	4916
Arena	10/15/20	10/16/20	4916	4917	10/15/20 7:55 AM	10/21/20 2:19	4916	1799	10/21/20 2:19	1799
Coons	10/16/20	10/21/20	4917
Birchler	10/22/20	10/29/20	4917	4919	10/22/20 4:26 PM	10/24/20 1:07	4917	1828	10/24/20 1:07	1828
Miller	10/30/20	11/1/20	4919	4920	10/30/20 7:59 AM	11/06/20 11:00 AM	4919	1900	11/06/20 11:00	1900
Bollenbach	11/9/20	11/10/20	4920	11/09/20 8:34 AM	11/10/20 12:45	4920	1930	11/10/20 12:45	1930
Lin	11/13/20	11/14/20	4920	4921	11/13/20 8:27 AM	4920	1944	11/16/20 11:31	1944
Stillman	11/17/20	11/17/20	4921	11/17/20 7:35 AM	11/16/20	4921	1963
Gallagher	11/18/20	11/19/20	4921	11/19/20 4:25 PM	1985
Shohet	11/20/20	12/02/20	4921	11/20/20 12:32 PM	12/02/20 11:50	4921	2001
Le[1]	12/09/20	01/05/21	4921	4921	12/09/20 11:29 AM	4921

During its service as a loaner, thirty-four customers drove the Vehicle. Customer Le last “rented” the Vehicle in December 2020 and returned it on January 5, 2021. (ECF 24 at 173 (Ex. H).) A few days after Customer Le returned it, on or around January 9, 2021, the Dealer performed a used vehicle inspection, and the Vehicle's mileage was 2,776. (ECF 24 at 160-61, Marr Dep., 41:21-42:19, 48:11-15; ECF 25-12.) The Dealer did not loan the Vehicle again after the inspection. (ECF 24 at 161-162, Marr Dep., 48:7-50:1.)

Vartelov purchases the Vehicle.

Vartelov found the Vehicle online and texted Salesman Scott Sabulsky about purchasing it. (ECF 24 at 59, Vartelov Dep., 99:3-7; ECF 24 at 89-90, Sabulsky Dep., 8:11-14, 9:3-7.) Vartelov ultimately purchased it from the Dealer with Sabulsky's assistance on June 7, 2021-

approximately five months after its used vehicle inspection. (ECF 24 at 29 (Ex. A); ECF 24 at 4041, Vartelov Dep., 25:17-19, 27:14-28:6, 28:11-19; id. at 43-44, Vartelov Dep., 37:3-39:12; id. at 99, Vartelov Dep., 99:3-7; ECF 24 at 89, Sabulsky Dep., 8:2-9:7.).^[2] He paid...