Glenn Distributors Corp. v. Reckitt Benckiser LLC ( 2015 )

J-A25031-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
GLENN DISTRIBUTORS CORP., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
RECKITT BENCKISER, LLC, :
:
Appellee : No. 140 EDA 2015
Appeal from the Order Entered December 15, 2014,
In the Court of Common Pleas of Philadelphia County,
Civil Division No(s).: 121201574
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
CONCURRING MEMORANDUM BY DONOHUE, J.: Filed: December 22, 2015
I respectfully concur in the result reached by the learned Majority. In
my view, however, the parties’ course of dealing, not their course of
performance, modified the purchase orders. I therefore agree that summary
judgment was proper.
As discussed by the Majority, course of performance is defined as “a
sequence of conduct between the parties to a particular transaction that
exists if: (1) the agreement of the parties with respect to the
transaction involves repeated occasions for performance by a party;
and (2) the other party … accepts the performance or acquiesces in it
without objection.” 13 Pa.C.S.A. § 1303(a) (emphasis added). At issue in
the case at bar are forty-six purchase orders, each of which constituted a
separate transaction. Each transaction provided the parties one opportunity
*Former Justice specially assigned to the Superior Court.
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for performance under the contract, which does not satisfy section 1303(a)’s
requirement that the “transaction involve[] repeated occasions for
performance.” 13 Pa.C.S.A. § 1303(a). Thus, although Appellant’s action
for breach of contract concerns Appellee’s conduct that occurred subsequent
to formation of the contract (the purchase order), I disagree with the
Majority’s determination that course of performance is implicated.
Rather, the parties’ behavior in this case more appropriately implicates
course of dealing, which is defined as “a sequence of conduct concerning
previous transactions between the parties to a particular transaction that
is fairly to be regarded as establishing a common basis of understanding for
interpreting their expressions and other conduct.” 13 Pa.C.S.A. § 1303(b)
(emphasis added). This Court previously held that “‘course of dealing’ ‘may
supplement or qualify terms of an agreement[.]’” J.W.S. Delavau, Inc. v.
Eastern America Transport & Warehousing, Inc., 810 A.2d 672, 684
(Pa. Super. 2002); see also RESTATEMENT (SECOND) OF CONTRACTS § 223 cmt.
b (Course of dealing “may determine the meaning of language or it may
annex an agreed but unstated term.”).
As the trial court stated, it is undisputed that “over the parties’ multi-
year business relationship,[ stemming from 2000 to 2012,] Appellee would
sometimes remove some products from the list of products offered to
[Appellant], after [Appellant] submitted purchase orders but before the
products were shipped.” Trial Court Opinion, 12/11/14, at 3. Although the
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purchase orders did not contain language clarifying that the quantity was
subject to change, the parties’ conduct in their previous transactions
established “a common basis of understanding” that the quantity of items
indicated on the purchase order was subject to availability and was not a
definite term. Accordingly, I agree that the trial court did not err in granting
Appellee’s motion for summary judgment and denying Appellant’s motion for
summary judgment.
Judge Mundy joins this concurring memorandum.
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