Berati v. Penske ( 2023 )

J-A20006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
BERATI TRANSPORTER, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PENSKE TRUCK LEASING CO LP : No. 1722 MDA 2022
D/B/A PENSKE TRANSPORTATION :
SOLUTIONS :
Appeal from the Order Entered November 23, 2022
In the Court of Common Pleas of Berks County
Civil Division at No(s): 20-16089
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 01, 2023
Berati Transporter, LLC appeals from the order granting the motion for
summary judgment filed by Penske Truck Leasing Co LP d/b/a Penske
Transportation Solutions (“Penske”). Berati argues that it presented a genuine
issue of material fact pursuant to its claim that Penske committed fraud in
selling it used trucks and therefore the trial court erred in granting the
summary judgment motion. We affirm.
In context of this appeal, the facts of this case are largely undisputed.
Berati, a limited liability corporation with its primary office in Philadelphia,
transports products in box trucks. In March 2018, Berati, through an agent,
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* Former Justice specially assigned to the Superior Court.
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contacted Penske to purchase used commercial trucks for its business. Penske
maintained a “premium list” of commercial trucks for sale.
On April 13, 2018, pursuant to bills of sales, Berati purchased four
commercial trucks from the list. The trucks were heavily used and had been
driven between 182,323 and 272,088 miles. Under the bills of sale, Penske
sold the trucks on an “as-is” basis, and expressly made no further warranty
of any kind, express or implied, merchantability, or fitness for any particular
purpose. The bills of sale also provided Berati 15 days to inspect the vehicles
and inform Penske in writing if any of the vehicles did not meet delivery
conditions. The bills of sale further stated that a failure to notify Penske during
this period constituted an agreement that the trucks met the delivery
conditions. The bills of sale additionally indicated that Penske did not
guarantee or warrant any condition of the trucks after delivery, except for the
title, and that Penske had no obligation to conduct any maintenance, work, or
repairs on the trucks other than meeting the delivery conditions following
notice from Berati. Significantly, the bills of sale included a clause that there
were no representations or promises made by the parties other than what was
set forth in the agreement.
Following delivery, Berati informed Penske that two trucks had issues.
As a result, Penske repaired the trucks in question and returned them to
Berati. Berati did not communicate any other issues within 15 days of the bills
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of sale. During the next year, Berati discovered several major issues with each
of the four trucks, requiring repairs at a significant expense.
Berati filed a complaint, and subsequently amended complaints,
asserting breach of contract and fraud causes of action against Penske with
respect to the sale of the trucks. Notably, as part of its fraud claim, Berati
averred that Penske fraudulently misrepresented that the trucks were
roadworthy. Penske filed a motion for summary judgment with respect to both
causes of action. Thereafter, Berati voluntarily withdrew its breach of contract
claim. The trial court then granted summary judgment on the fraud claim in
favor of Penske. Berati timely appealed.
On appeal, Berati raises the following questions for our review:
1. Should the Trial Court grant a Motion for Summary Judgment
to dismiss a fraud claim on the basis that an as-is provision in
a contract disclaims warranties, when the fraud claim was
based not on a breach of contract theory but rather arose from
pre-contractual misrepresentations made to induce entry into
the contract?
2. Should the Trial Court grant a Motion for Summary Judgment
and dismiss a fraud claim when the non-moving party
misrepresented, as a matter of law, that vehicles were
roadworthy?
3. Should the Trial Court grant a Motion for Summary Judgment
when expert reports demonstrate a genuine issue of material
fact that the non-moving party misrepresented that vehicles
were roadworthy at the time of sale?
Appellant’s Brief at 4.
In reviewing an order granting summary judgment, our standard of
review is as follows:
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We view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no material fact and it is clear that the moving party
is entitled to judgment as a matter of law will summary judgment
be entered. Our scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard of review
is clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused its
discretion.
Moreover, we recognize that … [w]here the non-moving party
bears the burden of proof on an issue, he may not merely rely on
his pleadings or answers in order to survive summary judgment.
Further, failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which he bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow a
fact-finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.
Shellenberger v. Kreider Farms, 288 A.3d 898, 905-06 (Pa. Super. 2023)
(citations, quotation marks, and paragraph break omitted).
We will address Berati’s claims together. Berati contends that the trial
court erred in concluding that it failed to produce evidence supporting its fraud
claim. See Appellant’s Brief at 11, 15. Berati notes that contractual terms do
not foreclose a tort claim which is based on misrepresentations made prior to
the entry of a contract. See id. at 12. Berati argues that Penske made pre-
contractual misrepresentations that the trucks were “roadworthy,” which were
not subject to the “as-is” condition in the bills of sale. See id. at 11-12; see
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also id. at 12 (highlighting that the contract fails to specify that the trucks
were not roadworthy). Berati, citing to the Automotive Industry Trade
Practices (“AITP”) Regulations, asserts that Penske affirmed that the trucks
were roadworthy by holding them out for public sale. See id. at 12-13 (citing
37 Pa. Code § 301.2(5) (“For the purposes of this chapter, a motor vehicle
which is offered for sale is represented to be roadworthy ….”)).
Furthermore, while Penske claims that the AITP Regulations are not
applicable to commercial transactions, Berati asserts that the regulation does
not provide any such limitation. See id. at 13-14. Berati maintains that his
expert reports opining that the trucks were not roadworthy at the time of the
sale established a genuine issue of material fact regarding Penske fraudulent
misrepresentation. See id. at 14, 15.
Preliminarily, the Attorney General adopted the AITP Regulations for the
enforcement and administration of the Pennsylvania Unfair Trade Practices
and Consumer Protection Law (“UTPCPL”). See 73 P.S. § 201-3.1 (“The
Attorney General may adopt, after public hearing, such rules and regulations
as may be necessary for the enforcement and administration of this act.”);
see also Beckman v. Vassall-Dillworth Lincoln-Mercury, Inc., 468 A.2d
784, 789 (Pa. Super. 1983) (noting that the AITP Regulations were enacted
pursuant to Section 201-3.1 of the UTPCPL). The AITP Regulations establish
acts and practices related to the sale of motor vehicles that are unfair or
deceptive. See 37 Pa. Code §§ 301.1-301.6. Importantly, a violation of the
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AITP Regulations may support an action under the UTPCPL; however, the
UTPCPL limits private actions under that act to persons who purchase or lease
“goods or services primarily for personal, family or household purposes.” 73
P.S. § 201-9.2.
Here, Berati failed to raise any UTPCPL claim either in his amended
complaint or on appeal. Moreover, Berati purchased the trucks for business
purposes; therefore, it could not assert a private cause of action under Section
201–9.2(a). Accordingly, Berati’s claim premised on the AITP Regulations
cannot grant him relief.
Likewise, Berati has not established, through any citation to relevant
authority, that noncompliance with Section 301.2(5) renders the “as-is”
provision in the bills of sale unenforceable. To that end, Berati fails to produce
evidence of any representation by Penske which turned out to be knowingly
false. Notably, the bills of sale explicitly stated that the trucks were sold “as
is” and disclaimed any warranties, express or implied, merchantability, or
fitness for any particular purpose. See Bills of Sale (3 trucks), 4/13/18, at 1;
Bills of Sale (1 truck), 4/13/18, at 1; see also 13 Pa.C.S.A. § 2316(c)(1)
(stating that “[u]nless the circumstances indicate otherwise, all implied
warranties are excluded by expressions like ‘as is,’ … calls the attention of the
buyer to the exclusion of warranties and makes plain that there is no implied
warranty.”). In fact, Berati cannot rely on its assertion that Penske should
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have known any more than it should have known. As the trial court correctly
points out:
[Berati] alleges that [Penske] knew or should have known that the
vehicles were delivered with bent, cracked[,] or twisted frames;
cracked engine block; unable to pass state inspection; damaged
transmission; and flood damage. However, [Berati] fails to explain
how these substantial defects could have existed upon delivery
and not have been discovered by [Berati] and written notification
provided to [Penske] within the fifteen days allowed under the
terms of the contract. [Berati] further fails to explain how
[Penske] could have intentionally misrepresented the condition of
the heavily used vehicles sold “as is,” knowing the [Berati] would
have opportunity to inspect the vehicles upon delivery and would
have recourse if defects were discovered.
Trial Court Opinion, 11/21/22, at 2 (unnumbered).
In light of the foregoing, Berati does not establish an issue of material
fact, and we conclude that the trial court properly entered summary judgment
in favor of Penske.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/01/2023
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