Allen-Myland, Inc. v. Garmin Int'l, Inc.

J-A33028-15
2016 Pa. Super. 107
ALLEN-MYLAND, INC. AND LARRY ALLEN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
GARMIN INTERNATIONAL, INC. AND
WINNER AVIATION CORPORATION
Appellees No. 1078 EDA 2015
Appeal from the Order Dated March 30, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No: 2013-005759
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
OPINION BY STABILE, J.: FILED MAY 24, 2016
Appellant, Allen-Myland, Inc. (“AMI”), appeals from the March 30 2015
order granting the motion for compulsory nonsuit of Appellees, Garmin
International, Inc. (“Garmin”) and Winner Aviation Corporation (“Winner,”
and together with Garmin, “Appellees”). We reverse and remand.
AMI is a Pennsylvania corporation and Larry Allen (“Allen”) 1 is its
president and sole shareholder. In the transaction underlying this litigation,
Allen sought to update the analog avionics in AMI’s Rockwell Commander
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The record indicates that Allen was a named plaintiff in the original
complaint but not in the amended complaint. The parties have not amended
the caption.
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Twin Engine 980 aircraft (“the Aircraft”). AMI purchased the Aircraft new in
1980. The record indicates that the aviation industry has been moving
toward digital avionics systems, and replacement parts for the Aircraft’s
original analog avionics are becoming difficult to find. The Aircraft’s original
avionics included a King KFC 300 autopilot system, which Allen did not
intend to replace. Allen therefore wanted the updated digital avionics to be
compatible with the analog KFC 300. Prior to the upgrade the Aircraft had
an automatic altitude capture function, meaning the Aircraft’s avionics
system could automatically level the Aircraft and maintain a preselected
altitude. Allen expected that the updated avionics would retain the
automatic altitude capture function.
Winner is a Pennsylvania corporation offering, among other services,
the sale and installation of avionics systems. Winner (and its corporate
predecessor) performed all modification work on the Aircraft since 1982.
Peter Quick (“Quick”) is an avionics manager for Winner. In 2007 or 2008,
Allen and Quick began discussing Allen’s desire to update the Aircraft’s
avionics. Allen alleges he informed Quick that he wanted the new avionics
to integrate fully with the Aircraft’s existing avionics, including the KFC 300.
In late 2009, Winner provided a written proposal to AMI for the purchase
and installation in the Aircraft of two new G600 “glass cockpit” avionics
systems manufactured by Garmin. The proposal included Winner’s one-year
express warranty covering parts and labor. The proposal did not address
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automatic altitude capture. The proposed price was $150,000.00. AMI
accepted the proposal and made a down payment of $80,000.00.
In August of 2010, the G600 avionics units arrived at Winner. Allen
flew the Aircraft to Winner’s facility in Youngstown, Ohio and left it for
installation of the G600 units. At that time, Winner provided Garmin’s pilot’s
guide for the avionics systems. The pilot’s guide contained Garmin’s express
warranty and disclaimer of any implied warranty for the G600 systems. The
pilot’s guide did not expressly warrant that automatic altitude capture would
continue to function as it did before installation of the G600 systems.
Winner completed the installation in October of 2010, and invited Allen to
conduct a test flight. Upon completion of the test flight, Allen informed
Quick that automatic altitude capture was not functional. Instead, the
Aircraft audibly alerts the pilot at 1,000 feet and 200 feet from the
preselected altitude. Upon reaching the preselected altitude, the pilot must
push a button to engage altitude capture.
Quick admittedly was surprised and asked one of Winner’s technicians
to check for an installation error. Finding no error in the installation, Quick
called Garmin in Allen’s presence. A Garmin representative stated that the
G600 unit could not automatically communicate the automatic altitude
capture command to the KFC 300 autopilot system, but Garmin planned to
release a software update to resolve that issue. From 2010 to 2013, when
Allen brought the Aircraft to Winner’s facility for inspections and oil changes,
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he inquired about the pending software update. Quick repeatedly informed
Allen that Garmin was working on it. Allen eventually emailed Garmin and
learned that Garmin abandoned plans for the software update. Allen alleges
he will need to replace the Aircraft’s autopilot system, at a cost of
$90,000.00, to regain automatic, rather than push-button, altitude capture.
AMI filed suit in 2013 after learning that Garmin abandoned plans for
the software update. AMI’s amended complaint alleged causes of action
against Appellees for fraud, breach of implied warranty, breach of express
warranty, breach of contract, and unfair trade practices. Garmin filed
preliminary objections, and the trial court sustained Garmin’s objection to
the unfair trade practices claim. After the close of discovery, Garmin filed a
motion for partial summary judgment, and the trial court granted Garmin’s
motion on the fraud and breach of implied warranty causes of action.
The case proceeded to a December 14, 2015 bench trial at which AMI
presented only Allen and Quick as witnesses. At the close of AMI’s evidence,
both Appellees moved for compulsory nonsuit pursuant to Pa.R.C.P. No.
230.1. The trial court granted the motions, thereby entering nonsuit on all
causes of action against Winner and the remaining breach of express
warranty and breach of contract causes of action against Garmin. The trial
court entered a defense verdict on December 16, 2014. AMI filed a timely
post-trial motion. The trial court heard argument on the post-trial motion on
March 12, 2015 and entered an order denying relief on March 26, 2015. The
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verdict was reduced to judgment on March 30, 2015, and this timely appeal
followed.
AMI raises four issues for our review:
A. Whether in granting partial summary judgment to [Garmin]
on [AMI’s] claim of breach of implied warranty of fitness for a
particular purpose, the trial court committed errors of law,
abused its discretion, disregarded and/or disbelieved
competent evidence and misinterpreted and misapplied the
legal standards set forth in [Pa.R.C.P. No. 1035.2] where the
record reflected material questions of fact to be determined at
trial.
B. Whether in granting compulsory nonsuit in favor of [Winner]
on [AMI’s] claim of breach of implied warranty of fitness for a
particular purpose, the trial court committed errors of law,
abused its discretion, disregarded and/or disbelieved
competent evidence and misinterpreted and misapplied the
legal standards set forth in [Pa.R.C.P. No. 230.1(a)(2)] and
related case law where [AMI] presented sufficient credible
evidence to establish the necessary elements of the cause of
action.
C. Whether in granting compulsory nonsuit in favor of [Winner]
on [AMI’s] claim of breach of express warranty, the trial court
committed errors of law, abused its discretion, disregarded
and/or disbelieved competent evidence and misinterpreted
and misapplied the legal standards set forth in [Pa.R.C.P. No.
230.1(a)(2)] and related case law where [AMI] presented
sufficient credible evidence to establish the necessary
elements of the cause of action.
D. Whether in granting compulsory nonsuit in favor of [Winner]
on [AMI’s] claim of breach of contract, the trial court
committed errors of law, abused its discretion, disregarded
and/or disbelieved competent evidence and misinterpreted
and misapplied the legal standards set forth in [Pa.R.C.P. No.
230.1(a)(2)] and related case law where [AMI] presented
sufficient credible evidence to establish the necessary
elements of the cause of action.
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AMI’s Brief at 5-6. AMI has abandoned the fraud and unfair trade practices
claims against both Appellees, and AMI has abandoned all causes of action
except breach of implied warranty against Garmin.
AMI’s first argument challenges the summary judgment in favor of
Garmin on AMI’s cause of action for breach of implied warranty of fitness for
a particular purpose. Rule 1035.2 of the Rules of Civil Procedure governs
entry of summary judgment. Summary judgment is appropriate “whenever
there is no genuine issue of any material fact as to a necessary element of
the cause of action or defense [. . .].” Pa.R.C.P. No. 1035.2(1). The
following standard governs our review:
As has been oft declared by this Court, summary judgment
is appropriate only in those cases where the record clearly
demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
When considering a motion for summary judgment, the trial
court must take all facts of record and reasonable inferences
therefrom in a light most favorable to the non-moving party. In
so doing, the trial court must resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party, and, thus, may only grant summary judgment where the
right to such judgment is clear and free from all doubt.
On appellate review, then, an appellate court may reverse
a grant of summary judgment if there has been an error of law
or an abuse of discretion. But the issue as to whether there are
no genuine issues as to any material fact presents a question of
law, and therefore, on that question our standard of review is de
novo. This means we need not defer to the determinations
made by the lower tribunals. To the extent that this Court must
resolve a question of law, we shall review the grant of summary
judgment in the context of the entire record.
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Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal
citations and quotation marks omitted).
The sole basis for Garmin’s summary judgment motion was the
disclaimer of implied warranties included in its Pilot’s Guide. As noted
above, AMI first received the pilot’s guide when Allen delivered the Aircraft
to Winner for installation. By that time, AMI accepted Winner’s proposal and
paid Winner $80,000.00. AMI argues the disclaimer is ineffective because it
was not made a part of the parties’ bargain and because it is not sufficiently
conspicuous. The trial court rejected both arguments and entered summary
judgment.
Section 2315 of Pennsylvania’s Uniform Commercial Code governs
implied warranties of fitness for a particular purpose:
Where the seller at the time of contracting has reason to
know:
(1) any particular purpose for which the goods are
required; and
(2) that the buyer is relying on the skill or judgment of the
seller to select or furnish suitable goods;
there is unless excluded or modified under section 2316 (relating
to exclusion or modification of warranties) an implied warranty
that the goods shall be fit for such purpose.
13 Pa.C.S.A. § 2315.
Section 2316, governing exclusion of warranties, provides in relevant
part as follows:
(b) Implied warranties of merchantability and
fitness.--Subject to subsection (c), to exclude or modify the
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implied warranty of merchantability or any part of it the
language must mention merchantability and in case of a writing
must be conspicuous, and to exclude or modify any implied
warranty of fitness the exclusion must be by a writing and
conspicuous. Language to exclude all implied warranties of
fitness is sufficient if it states, for example, that “There are no
warranties which extend beyond the description on the face
hereof.”
(c) Implied warranties in general.--Notwithstanding
subsection (b):
(1) Unless the circumstances indicate otherwise, all implied
warranties are excluded by expressions like “as is,” “with all
faults” or other language which in common understanding calls
the attention of the buyer to the exclusion of warranties and
makes plain that there is no implied warranty.
(2) When the buyer before entering into the contract has
examined the goods or the sample or model as fully as he
desired or has refused to examine the goods there is no implied
warranty with regard to defects which an examination ought in
the circumstances to have revealed to him.
(3) An implied warranty can also be excluded or modified
by course of dealing or course of performance or usage of trade.
13 Pa. Pa.C.S.A. § 2316.
Both the implied warranty of merchantability and the
warranty of fitness for a particular purpose arise by operation of
law and serve to protect buyers from loss where the goods
purchased are below commercial standards or are unfit for the
buyer’s purpose. [. . .] The warranty of fitness for a particular
purpose is more exacting. It requires that the seller had reason
to know of the buyer’s particular purpose at the time of
contracting and that the buyer was relying on the seller’s
expertise. In that case, the goods are implicitly warranted to be
fit for that particular purpose.
Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d
Cir. 1992).
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Here, AMI asserts an implied warranty that the digital Garmin G600
units would integrate fully with the aging analog KFC 300 autopilot and
preserve all of the Aircraft’s existing functionality, including automatic
altitude capture. As noted above, Garmin won summary judgment based on
its disclaimer in the pilot’s guide. The parties’ briefs confine their analysis to
the effect of the disclaimer, and we will do the same.2
First, we consider AMI’s argument that Garmin was too late in
providing its disclaimer. AMI argues the disclaimer is ineffective because
Garmin provided it only after AMI accepted Winner’s proposal and paid an
$80,000.00 deposit. AMI concludes the disclaimer is ineffective because
Garmin introduced it after the parties—with Winner acting as Garmin’s
agent—finalized their agreement.
According to AMI, no court in Pennsylvania has addressed this issue,
but many other jurisdictions have held warranty disclaimers to be ineffective
where the seller introduces them after the bargaining is complete. Before
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2
We observe that AMI cannot prevail on this cause of action simply by
negating the disclaimer. AMI still must prove Garmin had reason to know of
a particular purpose for which AMI wanted the G600 units. The trial court,
having found the disclaimer effective, did not consider whether AMI
established any factual or legal basis for the existence of an implied
warranty from Garmin. AMI, having lost the summary judgment motion,
had no incentive or opportunity to develop the issue at trial. In connection
with its other causes of action, AMI offered evidence that Winner acted as an
agent for Garmin. The trial court issued no findings or opinion on that issue.
In summary, the existence of an implied warranty is an issue for the trial
court to address in the first instance on remand.
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we turn to the law of other jurisdictions, we consider the language of
§ 2315. “Where the seller at the time of contracting has reason to know”
of a particular purpose for the goods or of the buyer’s reliance on the seller’s
skill or judgment in selecting goods, an implied warranty exists unless the
seller excludes or modifies it in accord with § 2316. 13 Pa.C.S.A. § 2315
(emphasis added). Section § 2315 plainly provides that an implied warranty
arises, if at all, at the time of contracting. We also believe § 2315 forecloses
any possibility that a seller can unilaterally modify or exclude an implied
warranty after the parties have completed the bargaining process and
arrived at a final binding agreement. A contrary result would create
contractual chaos. If an implied warranty arises at the time of contracting
but the seller can disclaim it any time thereafter without the buyer’s assent,
the warranty is meaningless. The more difficult questions are when the
bargaining process ends and whether the disclaimer was a part of it. On this
point, we find instructive jurisprudence from federal courts and other states.
AMI cites Hornberger v. General Motors Corp., 929 F. Supp. 884
(E.D.Pa. 1996), in which the lessees of an automobile brought suit for
breach of implied warranty of merchantability against General Motors after
the three-year/36,000 mile express warranty expired. The express warranty
stated that any implied warranties would last only for the duration of the
express warranty. Id. at 886. The plaintiffs received and signed the
warranty booklet upon delivery of the vehicle, after they signed the lease
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contract. Id. at 889. Plaintiffs alleged they had no notice of the warranty
booklet and warranty disclaimers when they signed the lease contract. Id.
at 888-89. The car’s transmission failed at roughly 40,000 miles, and the
dealer quoted $3,200.00 as the cost of repair. Id. Noting the absence of
Pennsylvania law on point, the district court reasoned that the buyer and
seller must be subject to negotiation and bargaining, so that the buyer is
aware of the disclaimer when the parties form a contract. Id. at 889-90
(quoting Horizons, Inc. v. Avco Corp., 551 F. Supp. 771, 779 (W.D.S.D.
1982)).
For this reason, the prevailing rule is that a warranty
limitation stated in printed matter given by the seller to the
buyer after the sale is not binding. Likewise, when no disclaimer
is made as a part of the oral sales contract, the buyer is not
bound by a disclaimer which is stated in a clause of the printed
warranty which is shipped or delivered to the buyer with the
goods.
Id. The Hornberger Court denied summary judgment, finding a triable
issue of fact on the disclaimer’s validity. Id. at 890.
The Hornberger Court cited Bowdoin v. Showell Growers, 817
F.2d 1543 (11th Cir. 1987), wherein the Circuit Court held a disclaimer of
implied warranties ineffective because it was not part of the basis for the
parties’ bargain. The warranty disclaimer was on the last page of an
instruction manual the buyer did not receive until after it paid for the seller’s
machine and took delivery of it. Id. at 1544-45. The Eleventh Circuit wrote
as follows:
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Under the Uniform Commercial Code as adopted by
Alabama and virtually every other state, a manufacturer may
disclaim the implied warranties of merchantability and fitness
provided that the disclaimer is in writing and conspicuous, and
provided that the disclaimer is part of the parties’ bargain. If a
disclaimer was conspicuous to the purchaser before the sale, a
court will generally hold the disclaimer effective based on the
assumption that the disclaimer formed a part of the basis of the
bargain. If, however, the disclaimer was not presented to the
purchaser before the sale, the court will hold such a disclaimer
ineffective because it did not form a part of the basis of the
bargain. This ‘basis of the bargain’ rule protects purchasers
from unexpected and coercive disclaimers.
Id. at 1545 (italics in orginal).
AMI also relies on Marion Power Shovel Co. v. Huntsman, 437
S.W.2d 784 (Ark. 1969), in which the warranty disclaimer appeared in an
operation manual provided to the buyer upon delivery of the seller’s power
shovel. Prior to delivery, the seller invoiced the buyer and the buyer paid in
full. Id. at 785. The buyer allegedly chose the power shovel after touring
his land with and explaining his needs to the seller’s representative. Id.
The Arkansas Supreme Court found the warranty disclaimer unenforceable
because it was not made a part of the contract and because it was not
sufficiently conspicuous. Id. at 787.
To summarize, in Bowdoin and Marion, the courts found the
warranty disclaimer ineffective when the written disclaimer post-dated the
parties’ agreement and accompanied the delivered product. In other words,
the bargaining process was complete before the seller issued the disclaimer.
Hornberger found a triable issue of fact because the parties disputed
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whether the automobile lease agreement put the buyer on notice of the
warranty booklet—that is, it was possible the disclaimer was part of the
parties’ bargain. Hornberger, 929 F. Supp. at 889 n.5.
Garmin relies on several software cases to support its argument for
the disclaimer’s validity. In Peerless Wall and Window Coverings, Inc.
v. Synchronics, Inc., 85 F. Supp. 2d 519 (W.D.Pa. 2000), the plaintiff small
business sought to purchase software for its cash registers. In 1993, the
plaintiff retained Roth Computer Register Company, and Roth procured a
software package from the defendant. Id. at 522-23. The defendant
provided software diskettes in a sealed envelope. Defendant printed its
limited warranty and disclaimers on the outside of the sealed envelope. A
paragraph titled “Read This First,” advised that opening the envelope
indicated acceptance of the terms and conditions printed on the sealed
envelope. Id. at 524. That paragraph advised the user to return the
package for a refund if the warranty terms and conditions were
unacceptable. Id. Roth personnel opened the envelopes and performed the
installation, but a principal of plaintiff signed a registration form indicating
her awareness of and assent to the warranty. Id. at 525. Subsequently,
the plaintiff learned the software was not “Y2K” compliant, as it recorded
dates with two-digit rather than four-digit years. Id. Defendant apprised
plaintiff of this issue in 1997, and advised purchasing new software. Id.
Defendant refused plaintiff’s demand for a free upgrade, and litigation
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ensued. Id. The District Court noted that “shrink wrap” licenses of the kind
at issue are generally enforceable. Id. at 527. The Court also noted that
“[t]ransactions in which the exchange of money precedes the communication
of detailed terms are common[.]” Id. (quoting ProCD, Inc. v. Zeidenberg,
86 F.3d 1447, 1452 (7th Cir. 1996)). Furthermore, the plaintiff’s principal
signed a warranty registration card. The Court found the warranty
enforceable. Id.
Garmin emphasizes the Eleventh Circuit’s statement, in ProCD, that
an exchange of money commonly precedes the seller’s provision of detailed
contractual terms. In ProCD, as in Peerless, the Court considered the
effect of software licenses. The defendant bought the plaintiff’s CD-ROMs
containing the plaintiff’s compilation of thousands of telephone directories.
In violation of the license, which was encoded on the CD and created a
screen message requiring the user to indicate acceptance, the defendant
resold access to that information. ProCD, 86 F.3d at 1450, 1452. The
software would not run if the user declined to accept the license terms. Id.
at 1452. In finding the license enforceable, the Court wrote that “[n]otice
on the outside, terms on the inside, and a right to return the software for a
refund if the terms are unacceptable (a right that the license expressly
extends) may be a means of doing business valuable to buyers and sellers
alike.” Id. at 1451.
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The Court cited several transactions for which the exchange of money
commonly precedes the exchange of detailed terms—purchase of insurance,
where the insured makes a payment before receiving a copy of the policy;
the purchase of an airline ticket, with small print terms on the ticket that can
be rejected by cancelling the reservation; the purchase of a concert ticket,
the back of which contains terms governing the attendee’s behavior at the
concert. Id. The Court also noted that consumer goods often come with a
warranty printed on a leaflet inside the box, and that the consumer has no
opportunity to read the warranty until completing a purchase and opening
the box. Id. In each case, the buyer can accept the license by using the
product or reject the license by returning it.3
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3
The Third Circuit in Step-Saver Data Sys., Inc. v. Wyse
Technology, 939 F.2d 91 (3rd Cir. 1991) took a slightly different approach
to the question. There, the seller shipped to the buyer copies of the seller’s
software whenever the buyer called by telephone and asked for a copy. The
buyer then installed the software on its customer’s computers. The seller
shipped the software in a box with a “box top license” stating that opening
the box indicated the buyer’s assent to its terms. Id. at 95-96. The box top
license purported to be the parties’ entire agreement, and it included a
disclaimer of express and implied warranties. Id. at 96.
The Third Circuit analyzed the question under § 2-207 (titled
“Additional terms in acceptance or confirmation”) of the UCC. In essence
the box-top license was “one more form in a battle of forms” whose terms
were unenforceable absent the buyer’s assent. Id. at 99-100. A
representative of the buyer testified that he received seller’s assurances that
the license did not apply to the buyer, as the buyer was not the end user of
the defendant’s product. Id. at 102. Twice the seller asked the buyer to
sign a contract that would formalize the terms of the parties’ dealings,
including the terms of the box top license, and twice the seller refused. Id.
(Footnote Continued Next Page)
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To summarize the foregoing, courts have consistently found warranty
disclaimers unenforceable unless the buyer has a chance to assent to the
disclaimer in some fashion. For a “box top” or “shrink wrap” license, the
buyer may assent by opening the box or removing the license or refuse by
returning the product. The same has been held to be true for consumer
goods, where the purchaser cannot read any included warranty
documentation until purchasing an item and opening the box. In the case of
delivery of heavy machinery where the parties negotiated the sale and the
disclaimer accompanied delivery of the machine, courts have declined to
enforce warranty disclaimers.4
AMI alleges that Winner, as Garmin’s agent and authorized dealer, sold
AMI the G600 units knowing AMI needed full compatibility between the G600
and the Aircraft’s existing KFC 300 autopilot system. AMI argues that Quick,
on behalf of Winner and Garmin, had reason to know at the time of
contracting that AMI expected the automatic altitude capture to function
normally. AMI argues the contracting process was complete when AMI
accepted Winner’s proposal and made an $80,000.00 down payment.
_______________________
(Footnote Continued)
Notwithstanding a refund offer included in the box top license, the Third
Circuit concluded that the seller did not sufficiently express unwillingness to
proceed with the transactions absent buyer’s assent to the license. Id. at
103. Instantly, the parties have not relied on 13 Pa.C.S.A. § 2207.
4
A caveat regarding our reliance on case law from other jurisdictions: we
find the analysis instructive but have no occasion to approve or disapprove
the outcomes in those cases because the facts before us are distinct.
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In rejecting AMI’s arguments and finding no triable issue of fact as to
the validity of the warranty disclaimer, the trial court wrote: “limitation of
liability clauses are routinely enforced under the Uniform Commercial Code
when contained in sales contracts negotiated between sophisticated parties.”
Trial Court Opinion, 6/18/15, at 11 (quoting Hornberger, 929 F. Supp. at
891-92) (trial court’s emphasis). The trial court further found that AMI is a
sophisticated entity that has bargained for maintenance, upgrades, and
replacement parts for its airplanes for many years. Id. Thus, AMI’s
assertion that it did not know of or bargain for the warranty disclaimer
“strains credulity to the maximum.” Id.
In light of the standard of review governing entry of summary
judgment, we conclude the trial court’s analysis is flawed. Whereas the trial
court emphasized the word “sophisticated” in its Hornberger quote, we
would emphasize “negotiated.” Garmin’s warranty disclaimer is effective if
and only if it is a part of the parties’ bargain. Allen testified that he
negotiated with Winner, ostensibly as Garmin’s agent, 5 for the purchase of
new avionics systems that would be compatible with his existing autopilot
system. Specifically, Allen testified at his deposition that Quick was his sole
source of information about the G600 unit and its compatibility with the
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5
As we noted above, the parties have not addressed the precise nature of
the relationship between Garmin and Winner and/or Garmin and AMI. The
trial court issued no findings of fact on that issue.
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other avionics in the Aircraft. N.T. Deposition of Larry Allen, 7/22/14, at 97-
98. Allen testified that he asked Quick for assurances that the G600 was
fully compatible with the Aircraft’s KFC 300 autopilot system. Id. at 140.
According to Allen, Quick provided those assurances. Id. at 146.
Subsequently, AMI accepted Winner’s proposal and paid $80,000.00. Quick
testified that “they” told him the G600 was compatible with the Aircraft’s
KFC 300. N.T. Deposition of Peter J. Quick, 6/9/14, at 44. Quick expected
the automatic altitude capture feature to continue to work after installation
of the G600. Id. at 49.
AMI first received the pilot’s guide and warranty disclaimer when Allen
delivered the Aircraft to Winner in August of 2010. Allen acknowledged that
he reviewed the pilot’s guide. Id. at 111. Also, AMI attached to its answer
to Garmin’s summary judgment motion several rebate forms it received from
Garmin. AMI’s Answer to Garmin’s Motion for Summary Judgment, 12/2/14,
at Exhibits G and H. Those rebate forms indicated the rebate was available
for equipment purchased between April 1, 2010 and June 30, 2010—before
AMI received the Pilot’s Guide. Id. The rebate forms required submission of
a receipt from a “Garmin authorized dealer.” Id. AMI applied for and
Garmin honored the rebate. Id.
On these facts, we find Garmin’s analogy to “box top” and “shrink
wrap” license cases unavailing. In those cases, the buyer can decline the
license terms by returning the software for a refund. On the record before
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us, it is not clear whether AMI had the option of returning the G600 units for
a refund of its $80,000.00 down payment. The record indicates that Allen
and Quick began discussing an avionics update for the Aircraft in 2007 or
2008, culminating in AMI’s acceptance of Winner’s proposal in April of 2010,
Garmin’s delivery of the G600s to Winner in Youngstown, and AMI’s delivery
of the Aircraft to Youngstown in August of 2010. For Allen, this was not a
simple matter of reading the terms on the outside of a package and deciding
whether to open it or send it back. Likewise, it was not a simple matter of
returning consumer goods to the place of purchase. AMI invested
considerable time and expense in choosing the G600 systems based on
Winner’s recommendation, making a substantial down payment, and
delivering the Aircraft to Winner. AMI took all of those actions before it
received the warranty disclaimer. In this respect, this case is similar to
Marion or Bowdoin wherein the parties negotiated the sale of machinery,
and the warranty disclaimer accompanied the machine after the buyer’s
payment in full.
We conclude, based on all of the foregoing, that a triable issue of fact
exists as to whether Garmin’s warranty disclaimer was part of the parties’
bargain. The trial court, writing that AMI’s version of events “strains
credulity to the maximum,” seemingly chose to view the evidence in the
light most favorable to Garmin. AMI, as the non-moving party, was entitled
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to have reasonable inferences drawn in its favor. The trial court erred in
doing otherwise.
AMI also challenges the trial court’s finding that the disclaimer was
sufficiently conspicuous pursuant to § 2316. We address this issue briefly
because it is an issue for the court (see § 13 Pa.C.S.A. § 1201(b)(10)
below) and, if AMI is correct, a lack of conspicuity would render the
disclaimer unenforceable. The UCC, in addition to the provisions of § 2316,
provides the following definition of conspicuous:
(10) “Conspicuous.” With reference to a term, means so
written, displayed or presented that a reasonable person against
which it is to operate ought to have noticed it. Whether a term
is “conspicuous” or not is a decision for the court. Conspicuous
terms include the following:
(i) A heading in capitals equal to or greater in size than the
surrounding text, or in contrasting type, font or color to the
surrounding text of the same or lesser size.
(ii) Language in the body of a record or display in larger
type than the surrounding text, in contrasting type, font or color
to the surrounding text of the same size, or set off from
surrounding text of the same size by symbols or other marks
that call attention to the language.
13 Pa.C.S.A. § 1201(b)(10).
Our courts have applied §§ 2316 and 1201(b)(10) as follows:
Under Pennsylvania law, factors to be considered in
determining whether a reasonable person should have noticed a
warranty disclaimer include: 1) the disclaimer’s placement in the
document, 2) the size of the disclaimer’s print, and 3) whether
the disclaimer was highlighted by being printed in all capital
letters or in a type style or color different from the remainder of
the document.
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Borden, Inc. v. Advent Ink Co., 701 A.2d 255, 259 (Pa. Super. 1997)
(citing Hornberger, 929 F. Supp. at 889), appeal denied, 725 A.2d 178 (Pa.
1998). The purpose of this test is to avoid a “fine print waiver of rights.”
Id. (quoting Moscatiello v. Pittsburgh Contractors Equip. Co., 595 A.2d
1190, 1193 (Pa. Super. 1991), appeal denied, 602 A.2d 860 (Pa. 1992)).
Instantly, the disclaimer appeared on the first page of the pilot’s guide under
the large font heading “Limited Warranty.” Garmin’s Motion for Partial
Summary Judgment, 11/17/14, at Exhibit G. The disclaimer of implied
warranty appears in all capital letters:
This Garmin product is warranted to be free from defects in
materials or workmanship for two years from the date of
purchase. Within this period, Garmin will, at its sole option,
repair or replace any components that fail in normal use. Such
repairs or replacement will be made at no charge to the
customer for parts and labor, provided that the customer shall
be responsible for any transportation cost. This warranty does
not cover failures due to abuse, misuse, accident, or
unauthorized alterations or repairs.
THE WARRANTIES AND REMEDIES CONTAINED HEREIN ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS
OR IMPLIED OR STATUTORY, INCLUDING ANY LIABILITY
ARISING UNDER ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, STATUTORY OR
OTHERWISE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL
RIGHTS, WHICH MAY VARY FROM STATE TO STATE.
Id.
Thus, the warranty appears on its own page at the front of the pilot’s
guide. The font size is large enough to be easily legible, and the disclaimer
stands out in all capital letters. The Hornberger Court found a disclaimer to
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be conspicuous where the warranty was set off in a “thick, dark lined box”
and where the disclaimer language was in bold print to stand out from the
remainder of the warranty. Hornberger, 929 F. Supp. at 889. The
warranty was in the middle of a 37-page booklet, but the District Court
considered the offsetting box and the bold font sufficient to make the
disclaimer conspicuous. Id. The Borden Court found a disclaimer
inconspicuous because it appeared in tiny typeface and because all of the
font in the warranty language appeared to be bolded. Borden, 701 A.2d at
260-61. The disclaimer did not stand out. Id. Likewise, the Moscatiello
Court found a warranty disclaimer unenforceable where it appeared on the
reverse side of a sales contract in “extremely” fine print. Moscatiello, 595
A.2d at 1193-94.
Here, the warranty and disclaimer appear at the very front of the
pilot’s guide, with the disclaimer set off in all capitals. In these respects, the
disclaimer complies with §§ 2316, 1202, and governing case law. AMI
argues the disclaimer is not conspicuous in that the guide is more than three
hundred pages long. The length of the book might be significant if the
warranty disclaimer was buried somewhere in the middle. We believe the
disclaimer’s presence on page ‘i’ alleviates this concern. Moreover, the book
describes the operation of an avionics system that AMI’s pilots will depend
on to fly the Aircraft safely from one location to another. With the lives of
AMI’s pilots and passengers at stake during a flight, we believe a reasonable
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person would read the pilot’s guide and notice the warranty disclaimer. We
therefore agree with the trial court’s conclusion that the disclaimer complies
with §§ 2316 and 1201.
To summarize, we conclude the trial court erred in granting Garmin’s
summary judgment motion based on its warranty disclaimer. Triable issues
of fact exist as to whether the disclaimer was part of the parties’ bargain. 6
We vacate the order granting summary judgment to Garmin on the implied
warranty claim and remand for further proceedings.
Next, AMI argues the trial court erred in granting Winner’s motion for
compulsory nonsuit on AMI’s breach of implied warranty claim against
Winner. Rule 230.1 of the Pennsylvania Rules of Civil Procedure governs
entry of compulsory nonsuit. Rule 230.1 provides in relevant part:
(a)(1) In an action involving only one plaintiff and one
defendant, the court, on oral motion of the defendant, may enter
a nonsuit on any and all causes of action if, at the close of the
plaintiff's case on liability, the plaintiff has failed to establish a
right to relief.
(2) The court in deciding the motion shall consider only evidence
which was introduced by the plaintiff and any evidence favorable
to the plaintiff introduced by the defendant prior to the close of
the plaintiff’s case.
Pa.R.C.P. No. 230.1(a).
Our standard of review is as follows:
____________________________________________
6
In addition, the trial court has not yet addressed whether an implied
warranty from Garmin to AMI exists based on Winner’s relationship to
Garmin.
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An order denying a motion to remove a compulsory
nonsuit[7] will be reversed on appeal only for an abuse of
discretion or error of law. A trial court’s entry of compulsory
nonsuit is proper where the plaintiff has not introduced sufficient
evidence to establish the necessary elements to maintain a
cause of action, and it is the duty of the trial court to make a
determination prior to submission of the case to a jury. In
making this determination the plaintiff must be given the benefit
of every fact and all reasonable inferences arising from the
evidence and all conflicts in evidence must be resolved in
plaintiff’s favor.
Alfonsi v. Huntington Hosp., Inc., 798 A.2d 216, 218 (Pa. Super. 2002).
“Additionally, a compulsory nonsuit is valid only in a clear case where the
facts and circumstances lead to one conclusion—the absence of liability.”
Harvilla v. Delcamp, 555 A.2d 763, 764 (Pa. 1989).
The comments to § 2315 of Pennsylvania’s UCC provide as follows:
1. Whether or not this warranty arises in any individual
case is basically a question of fact to be determined by the
circumstances of the contracting. Under this section the buyer
need not bring home to the seller actual knowledge of the
particular purpose for which the goods are intended or of his
reliance on the seller’s skill and judgment, if the circumstances
are such that the seller has reason to realize the purpose
intended or that the reliance exists. The buyer, of course, must
actually be relying on the seller.
2. A ‘particular purpose’ differs from the ordinary
purpose for which the goods are used in that it envisages a
specific use by the buyer which is peculiar to the nature of his
business whereas the ordinary purposes for which goods are
used are those envisaged in the concept of merchantability and
go to uses which are customarily made of the goods in question.
13 Pa.C.S.A. § 2315, Uniform Commercial Code Comments 1 and 2.
____________________________________________
7
AMI filed a timely motion for new trial and removal of the nonsuit.
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The trial court entered nonsuit on this claim because Allen did not
specifically address automatic altitude capture with Quick. Trial Court
Opinion, 6/18/2015, at 37. The trial court also found that neither party was
certain the G600 units, once installed would retain all prior functionality. Id.
In other words, the trial court in granting the nonsuit found Winner had no
reason to know that AMI expected automatic altitude capture to function
after installation of the G600 units. AMI argues the trial court failed to
adhere to the standard governing nonsuits and resolved conflicts of evidence
in favor of Winner. We agree. In ruling on Winner’s motion for compulsory
nonsuit, the trial court should have given AMI the benefit of every fact and
drawn all reasonable inferences in AMI’s favor. Alfonsi, 798 A.2d at 218.
As we will demonstrate, the trial court did precisely the opposite, drawing
inferences against AMI.
Quick testified as follows:
Q. Now, when you – when you spoke with Garmin, and
this was before – before a proposal had been sent to [Allen]?
A. Yes.
Q. Okay. And they told you that it was approved; that
the G600 was approved for that aircraft and for that autopilot,
did you talk to them about whether the functionality would be –
all the functionality that he had would continue to be there when
he got it?
A. We never discussed functionality. We just discussed
if it was a compatible system.
Q. But what did you – what did you mean by
compatible? What was your understanding of compatible?
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A. Usually when I say that autopilot is compatible of
interfacing with a particular vendor’s equipment, it usually
means it operates that autopilot, you know, functionality-wise,
yes.
Q. So that basically, the same functions that were
present before the installation would be present after the
installation, is that correct?
A. I would believe so, yes.
Q. And that was your understanding?
A. Yes.
Q. Okay. As a result of that, you – you sent to – to
[Allen] a proposal to purchase the G600?
A. Yes.
N.T. Trial, 12/15/14, at 113-14.
Quick also testified:
Q. If you had known before the installation of the G600s
that he – that [the Aircraft] would no longer have the ability for
autoleveling at assigned altitude, would you have told [Allen]
that?
A. Of course.
Q. Why?
A. It’s my responsibility.
Id. at 125-26.
Q. Larry, if – if you had known that auto leveling was
not available on the G600 when you – when you purchased it,
would you have purchased it?
A. No.
N.T. Trial, 12/15/14, at 61.
Despite the foregoing, the trial court opined as follows:
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Yet, here again, [AMI] insists that, had [Quick] known for
sure that altitude capture would not be present in the upgraded
[Aircraft], he would have told [Allen]. However, [AMI] never
fully indicated, nor advised the court, what [Allen] would have
done if that circumstance had ever materialized. The fact that
[AMI] still owns and is satisfied with this [Aircraft’s] performance
and that of the G600 avionics equipment package belies any
suggestion on [AMI’s] part that [Allen] would have cast about for
another avionics package more to [AMI’s] liking in October of
2010, or sold [the Aircraft] for parts and purchased a brand new
plane[.]
Trial Court Opinion, 6/18/2015, at 37 (emphasis in original). The court also
found that AMI’s assertion of “a warranty of any kind for these products was
neither substantiated nor credible.” Id. at 38.
For purposes of our review of the trial court’s entry of compulsory
nonsuit, we conclude the record contains more than sufficient evidence from
which we can reasonably infer that AMI relied on Winner’s expertise to find
upgraded avionics units that would retain all of the Aircraft’s functionality,
and that Winner had reason to realize that AMI wanted a system that was
compatible with the Aircraft’s KFC 300 autopilot system. Quick frankly
acknowledged that he expected the Aircraft to retain all of its prior
functionality, and that it was his responsibility to tell Allen in advance if such
was not the case. In finding otherwise, the trial court erroneously rejected
uncontested evidence. The court also erred in assessing Allen’s credibility.
The trial court also found that the disclaimer in Garmin’s Pilot’s Guide
was sufficient to disclaim any implied warranty from Winner to AMI. Trial
Court Opinion, 6/18/15, at 38. For reasons we explained in depth above, it
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is not clear that the disclaimer ever was a part of the bargain. Based on all
of the foregoing, we conclude the trial court erred in granting Winner’s
motion for compulsory nonsuit on AMI’s implied warranty claim.
AMI’s final two assertions of error address the trial court entry of
nonsuit on its express warranty and breach of contract claims. We will
address these arguments together. To succeed on a breach of contract
claim, a plaintiff must prove the existence of a contract and its essential
terms, breach of a contractual duty, and damages. Hart v. Arnold, 884
A.2d 316, 332 (Pa. Super. 2005), appeal denied, 897 A.2d 458 (Pa. 2006).
The Uniform Commercial Code defines an express warranty as follows:
(a) General rule.--Express warranties by the seller are
created as follows:
(1) Any affirmation of fact or promise made by the seller
to the buyer which relates to the goods and becomes part of the
basis of the bargain creates an express warranty that the goods
shall conform to the affirmation or promise.
(2) Any description of the goods which is made part of the
basis of the bargain creates an express warranty that the goods
shall conform to the description.
[. . .]
(b) Formal words or specific intent unnecessary.--It
is not necessary to the creation of an express warranty that the
seller use formal words such as “warrant” or “guarantee” or that
he have a specific intention to make a warranty, but an
affirmation merely of the value of the goods or a statement
purporting to be merely the opinion of the seller or
commendation of the goods does not create a warranty.
13 Pa.C.S.A. § 2313.
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The trial court offered several bases for its entry of compulsory
nonsuit: mutual mistake, impossibility/impracticability of performance (Trial
Court Opinion, 6/18/2015, at 31-32); Allen’s lack of credibility (Id. at 11-
12); AMI’s failure to prove that it sustained damages (Id. at 19-22; 26-27,
40); and AMI’s failure to seek specific assurances regarding automatic
altitude capture (Id. at 20, 37).
We begin with an analysis of whether the record supports a reasonable
inference that Winner promised automatic altitude capture. AMI and Winner
agree that the two-page purchase order constitutes the contract between
them. That document contains no warranty disclaimer, nor does it address
automatic altitude capture or any other specific feature. The purchase order
contains no integration clause.
AMI’s causes of action rest on Allen’s conversations with Quick. As we
have already described above, Allen and Quick both expected the Aircraft to
retain all of its functionality after the upgrade. They did not specifically
address automatic altitude capture or any other specific function. We
believe the record supports at least a reasonable inference that all
functionality includes automatic altitude capture. Also, we believe it is
reasonable to infer that an aircraft avionics system contains far too many
functions for the parties to list them all prior to entering into the purchase
order agreement.
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We will now examine the trial court’s reasons for entering a
compulsory nonsuit, beginning with mutual mistake.
The doctrine of mutual mistake of fact serves as a defense
to the formation of a contract and occurs when the parties to the
contract have an erroneous belief as to a basic assumption of
the contract at the time of formation which will have a material
effect on the agreed exchange as to either party. A mutual
mistake occurs when the written instrument fails to set forth the
true agreement of the parties. The language on the instrument
should be interpreted in the light of subject matter, the apparent
object or purpose of the parties and the conditions existing when
it was executed.
Voracek v. Crown Castle USA Inc., 907 A.2d 1105, 1107-08 (Pa. Super.
2006), appeal denied, 919 A.2d 958 (Pa. 2007). Courts can reform a
contract entered under mutual mistake if “(1) the misconception entered
into the contemplation of both parties as a condition of assent, and (2) the
parties can be placed in their former position regarding the subject matter of
the contract.” Id. at 1108.8
____________________________________________
8
Pennsylvania Courts also rely on the Restatement (Second) of Contracts:
(1) Where a mistake of both parties at the time a contract
was made as to a basic assumption on which the contract was
made has a material effect on the agreed exchange of
performances, the contract is voidable by the adversely affected
party unless he bears the risk of the mistake under the rule
stated in § 154.
(2) In determining whether the mistake has a material
effect on the agreed exchange of performances, account is taken
of any relief by way of reformation, restitution, or otherwise.
(Footnote Continued Next Page)
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Mutual mistake is inapplicable here because we cannot place AMI in its
former position regarding the subject matter of the contract. Winner has
been paid $150,000 for installation of the G600 units in the Aircraft, and the
record contains no evidence that the installation can be undone and AMI’s
money refunded. Further, as we explained in connection with AMI’s implied
warranty claim against Winner, the record supports an inference that AMI
relied on Winner’s expertise in selecting an avionics unit. A mistake cannot
be mutual where party A relies on party B’s expertise and party B makes a
mistake in the exercise of its expertise.
Similarly, we conclude the trial court erred in relying on
impracticability of performance. Pennsylvania follows the Restatement
(Second) of Contracts on impracticability:
Where, after a contract is made, a party’s performance is
made impracticable without his fault by the occurrence of an
event the non-occurrence of which was a basic assumption on
which the contract was made, his duty to render that
performance is discharged, unless the language or the
circumstances indicate the contrary.
Hart, 884 A.2d at 334 (citing Restatement (Second) of Contracts § 261).
Given AMI’s reliance on Winner’s expertise, Winner arguably is at fault
here for failing to discover that the G600 units were not fully compatible with
the Aircraft’s existing autopilot system. Furthermore, it is unclear from the
_______________________
(Footnote Continued)
Hart, 884 A.2d at 333 (citing Restatment (Second) of Contracts, § 152
(1981)).
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record whether Garmin’s planned software patch was impracticable, or
whether Garmin simply chose not to do it. The record does not support a
finding of impracticability of performance.9
The trial court also entered nonsuit because it found AMI failed to
prove damages. Section 2714 of the UCC governs buyer’s damages for
accepted goods where the seller is in breach of warranty:
(b) Measure of damages for breach of warranty.--The
measure of damages for breach of warranty is the difference at
the time and place of acceptance between the value of the goods
accepted and the value they would have had if they had been as
warranted, unless special circumstances show proximate
damages of a different amount.
13 Pa.C.S.A. § 2714(b). According to AMI’s evidence and argument, it paid
$150,000.00 and received a performance worth only $60,000.00. AMI
arrived at the $60,000.00 valuation based on the $90,000.00 it must spend
for a new autopilot system that will support automatic altitude capture with
the G600 units.
The trial court found the difference between automatic and push
button functionality to be minimal. Trial Court Opinion, 6/18/2015, at 20
____________________________________________
9
Furthermore, since Winner has completed installation of the G600 units
and been paid in full, the pertinent question is whether and to what extent
AMI is entitled to damages for the absence of automatic altitude capture.
See, e.g., Step Plan Servs., Inc. v. Koresko, 12 A.3d 401, 412 (Pa.
Super. 2010) (“If a party proceeds under the original contract, despite the
impracticability that would otherwise justify his non-performance, and is
then unable to perform as previously agreed, he can be liable for
damages.”). We discuss damages more fully in the main text.
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(“[AMI’s] counsel also disingenuously suggested that the necessity of
pushing a button to level off the climbing aircraft added burdensomely to the
pilot’s workload[.]”). The court also noted that the Aircraft still has altitude
capture, but it is not automatic and “requires the exercising of a little elbow
grease on Allen’s part.” Id. at 27. The trial court also found that
$90,000.00 was an unreasonably high request, and that AMI offered no
evidence to support any lesser number. Id. at 22, 27. The court found no
damages because AMI needed to upgrade the Aircraft anyways, and
therefore would have purchased the G600 units regardless of the
compatibility issue. Id. at 26, 37.
We agree with the trial court insofar as it determined that the cost of
remediating the damages—$90,000.00—may not necessarily represent the
difference in value between the Aircraft as promised and the Aircraft as
delivered. Section 2714(b), quoted above, provides that the measure of
damages is the difference in value between the goods as promised and the
goods received. In this case, that means the difference in value of the
Aircraft with automatic altitude capture and the value of the Aircraft with
push-button altitude capture. Nonetheless, law governing nonsuits and the
facts of record do not justify the trial court’s entry of nonsuit because AMI
proved no damages. If Winner believes the difference in value of the
Aircraft with and without automatic altitude capture is less than that claimed
by AMI, it can introduce evidence to that effect in its defense.
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The trial court was required to accept all facts and draw reasonable
inferences in favor of AMI. Alfonsi, 798 A.2d at 218. The trial court
reasoning—that the Aircraft’s pilot just needs to use “a little elbow grease”
and that AMI must upgrade the Aircraft anyway—do not comport with
Alfonsi. Both findings are speculative, and they rest on inferences adverse
to the nonmoving party. Also, they ignore AMI’s entitlement to damages if a
breach is found. The trial court’s willingness to tell a pilot that he does not
need automatic altitude capture is particularly disturbing. Furthermore, the
trial court’s finding that AMI would have upgraded Aircraft anyways is
directly contradictory to Allen’s testimony. N.T. Trial, 12/15/14, at 61.
The trial court also wrote: “[AMI’s] allegations of feeling bamboozled
by [Appellees] into believing that there would be total compatibility between
its worn out and increasingly hard to replace analog cockpit avionics and the
near total modern digital upgrade [Allen] was purchasing is, in a word,
incredible.” Id. at 11-12. The trial court’s rejection of Allen’s credibility was
not permissible in deciding Winner’s motion for compulsory nonsuit.
For all of the foregoing reasons, we conclude the trial court erred in
granting nonsuit on AMI’s breach of contract and express warranty claims.
In summary, we have concluded the trial court erred in entering partial
summary judgment in favor of Garmin on AMI’s breach of implied warranty
claim, and we have concluded the trial court erred in entering compulsory
nonsuit in favor of Winner on AMI’s claims of breach of express warranty,
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implied warranty, and breach of contract. Our result rests largely on the
standards governing trial court and appellate court review of those issues.
We therefore reverse the trial court’s order and remand for further
proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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