LANCASTER – Litigation between a mattress retailer and a Lancaster County man who alleged his bed bug-infested furniture caused an infestation which later spread to the rest of his home, has been stayed pending a private arbitration.
Daniel Forrester of Terre Hill first filed suit in the Lancaster County Court of Common Pleas on Feb. 6 versus Sleep Number Corporation, of Minneapolis, Minn.
“Plaintiff Daniel Forrester has purchased and utilized various consumer products from defendant Sleep Number since 2019. Notably, on Aug. 7, 2022, plaintiff purchased an upholstered bed frame and headboard from defendant for $1,679.99. As part of the sale, plaintiff purchased ‘premium delivery and setup’ for $249.00,” the suit said.
“On or about Oct. 1, 2022, defendant’s agents/employees delivered the upholstered bed frame and headboard, at which time plaintiff was present. Plaintiff observed the bed frame and headboard, before the goods were removed from the delivery truck, in contact with other furniture and bedding that appeared to be uncovered, used and soiled.”
The suit added that shortly after installation of the upholstered bed frame and headboard, the plaintiff and his wife, Lori Forrester, began to experience painful and irritating bite marks covering their bodies. At various times, the plaintiff noticed small, brownish insects in and around the bed, which he believed to be bed bugs.
On or about Dec. 12, 2022, the plaintiff said he contacted Orkin Pest Control to conduct an in-home inspection, at which time Orkin confirmed the presence of bed bugs. The plaintiff paid $115.54 for that in-home inspection.
“Orkin specified that at least three chemical treatments of plaintiff’s home were required to treat the infestation, that plaintiff and his wife needed to be out of their home for four hours after each treatment, that plaintiff and his wife must remove all clothing and bedding items from the room and deep clean/replace all items, that plaintiff and his wife should avoid going into the master bedroom until the bed bugs have been exterminated, and that plaintiff and his wife must cannot sleep in their bedroom until the bed bugs have been exterminated,” the suit stated.
“On or about Dec. 14, 2022, Orkin’s technician, Brandon Ensor, arrived at plaintiff’s home for the first chemical treatment. Mr. Ensor reported that he found ‘live [bed bug] activity around the headboard in the master bedroom, no other activity found. Plaintiff remitted payment of $2,192.08 to Orkin for three chemical treatments.”
Subsequent treatments showed that the upholstered bed frame and headboard displayed evidence of bed bug nests, dead bed bugs and live bed bug activity, with the infestation having spread to various other areas of the plaintiff’s home.
“Defendant’s conduct in marketing and selling the upholstered bedframe and headboard was deceptive and misleading as the goods lacked the characteristics, ingredients, uses and benefits that were represented. Defendant’s conduct in marketing and selling the delivery and setup as ‘premium’ was deceptive and misleading as the delivery service was of a lesser standard, quality or grade. In fact, plaintiff purchased the upholstered bed frame, headboard and ‘premium delivery’ new, directly from the defendant, in order to avoid the risk of bed bug contamination associated with used bedding and furniture. Plaintiff justifiably relied on defendant’s misrepresentations when deciding to purchase the upholstered bed frame and headboard as well as ‘premium delivery and setup.’ Defendant’s deceptive representations are material in that a reasonable person would attach importance to such information and would be induced to act upon such information in making purchase decisions,” the suit said.
“Furthermore, defendant had a duty to exercise reasonable care to protect plaintiff's upholstered bed frame and headboard within its possession or control from being compromised, exposed, and/or infected with bed bugs. Defendant’s duty included, among other things, designing, implementing, training, inspecting and maintaining, its delivery procedures and equipment to ensure that plaintiff’s consumer goods in defendant’s possession were adequately secured and protected from infiltration by bed bugs. Defendant further had a duty to implement processes to diminish the risk of contamination from used furniture and bedding and to sanitize its delivery trucks and equipment to prevent the contamination of goods in transit. Through its acts or omissions, defendant breached its duty to use reasonable care to protect and secure plaintiff’s consumer goods within its possession or control from contamination. Defendant breached its duty by failing to adopt, implement, inspect and maintain adequate delivery procedures to safeguard plaintiff’s consumer goods from contamination, failing to adequately sanitize defendant’s delivery equipment, and allowing used, soiled and uncovered goods to come in contact with plaintiff’s newly purchased consumer goods. But for defendants’ wrongful and negligent breach of the duties owed to plaintiff, the upholstered bed frame and headboard would not have been infested with bed bugs, and plaintiff would not have suffered thousands of dollars in damage to exterminate the bed bugs and replace the mattresses and bedding.”
The defendant filed preliminary objections on April 3, arguing that a valid arbitration agreement was in place and necessitated the dismissal of the plaintiff’s claims – and that even if the plaintiff has not agreed to arbitrate these claims, the Court must dismiss his tort claims and statutory claims under the gist of the action doctrine and economic loss doctrine.
“Plaintiff purchased the bed frame and headboard subject to Sleep Number’s ‘Terms of Use’ and ‘Terms & Conditions of Sale’. Paragraph 19 of the Terms of Use contains an arbitration agreement. Specifically, the arbitration agreement states: You agree that any and all disputes, claims, or controversies arising out of or related to the services or your use thereof or these terms, including any claims under any regulation or statute, shall be submitted first to non-binding mediation. If the claim is not resolved through mediation, you may then submit your claim for binding arbitration. Contact the AAA or us if you want further information on the ADR process,” the objections stated, in part.
“As such, by purchasing the bed frame and headboard, plaintiff agreed to arbitrate any claims related to the bed frame and headboard through the American Arbitration Association. As such, the Court should enforce the arbitration agreement and dismiss plaintiff’s complaint. Plaintiff’s claims arise out of the purchase of the bed frame and headboard. In fact, plaintiff alleges that the presence of the bed bugs stems from bed frame and headboard. Thus, plaintiff’s asserts claims in this litigation that fall within the scope of the parties’ arbitration agreement. Moreover, plaintiff’s tort claims do not preclude arbitration. Courts routinely enforce arbitration agreements to tort claims that accompany breach of contract claims.”
The defendant argued that rather than filing a lawsuit asserting breach of contract and tort claims, the plaintiff should have submitted these claims to non-binding mediation and then binding arbitration. Additionally, the defendant added that the gist of the action and economic loss doctrines bar the plaintiff’s claims.
“The gist of the action doctrine bars tort claims (1) ‘Arising solely from a contract between the parties,’ (2) Where ‘the duties allegedly breached were created and grounded in the contract itself,’ (3) Where ‘the liability stems from a contract,’ or (4) Where the tort claim ‘essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract. Each of the allegations arises out of plaintiff’s purchase of the bed frame and headboard, which is governed by the terms of use and sale terms, and form the basis of his breach of contract claim. Plaintiff’s tort claims are undoubtedly ‘inextricably intertwined’ with his breach of contract claim and arise out of the purchase of the bed frame and headboard. Accordingly, the gist of the action doctrine bars plaintiff’s tort and statutory claims,” the objections stated.
“The ‘economic loss doctrine’ prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract.’ Economic losses ‘are based upon and flow from the purchaser’s loss of the benefit of his bargain and his disappointed expectations as to the product he purchased.’ The economic loss doctrine bars plaintiff’s attempt to circumvent the limits of the terms of use and sale terms by seeking damages under tort theories. The economic loss doctrine applies to tort claims and statutory fraud claims under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. Here, plaintiff’s only alleged damages are economic losses. Accordingly, the economic loss doctrine bars plaintiff’s tort and statutory claims.”
UPDATE
Counsel for all parties filed a mutual stipulation on July 7 to stay all proceedings in the case, due to an imminent session of private arbitration.
“Plaintiff Daniel Forrester and defendant Sleep Number Corporation, by and through their undersigned counsel, hereby stipulate and agree that this matter be refiled with the American Arbitration Association, pursuant to the Arbitration Agreement contained with defendant’s terms and conditions of sale. The parties respectfully request that the instant proceedings be stayed pending resolution of private arbitration, effective upon approval by this Court,” per the stipulation.
For counts of negligence, negligent performance of an undertaking to render services, violation of the Unfair Trade Practices and Consumer Protection Law, violation of the Magnuson-Moss Warranty Improvements Act, violation of the Uniform Commercial Code, breach of contract, unjust enrichment, the plaintiff is seeking actual, consequential, statutory and treble damages in excess of the arbitration limits (plus restitution for the defendant’s unjust enrichment), compensatory damages for emotional distress, loss of enjoyment, pain, suffering, annoyance and grief, attorney’s fees and costs, pre- and post-judgment interests and such other and further relief as may be just and proper.
The plaintiff is represented by Joshua P. Ward and Justin M. Bahorich of J.P. Ward & Associates, in Pittsburgh.
The defendant is represented by Stephanie Nolan Deviney of Fox Rothschild, in Exton.
Lancaster County Court of Common Pleas case CI-23-00820
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com