Kloniecke, E.J. v. GT Motors, Inc.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD J. KLONIECKE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GT MOTORS, INC. : No. 806 MDA 2020
Appeal from the Order Entered May 4, 2020
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2019-CV-5121
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED JANUARY 27, 2021
Edward J. Kloniecke (Appellant) appeals from the order sustaining the
preliminary objections of GT Motors, Inc. (GT Motors) and dismissing
Appellant’s complaint. We affirm.
On August 30, 2019, Appellant filed a complaint against GT Motors
alleging breach of contract regarding his purchase of a used 2010 Ford F-150
pick-up truck.1 Appellant’s Complaint, 8/30/19, at ¶ 3. Appellant states that
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1 As the complaint was dismissed in response to preliminary objections in the
nature of a demurrer, we recite the background based on the well-pleaded
facts in Appellant’s complaint. Hill v. Ofalt, 85 A.3d 540, 543 (Pa. Super.
2014) (citing Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675, 679 (Pa.
Super. 2007) (“When reviewing the dismissal of a complaint based upon
preliminary objections in the nature of a demurrer, we treat as true all well-
pleaded material, factual averments and all inferences fairly deducible
therefrom.”)).
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“[i]n advertising the pick-up truck for sale,” GT Motors “warranted that the
vehicle was in a state of good repair and was safe for operation.” Id. at ¶ 6.2
Appellant contacted GT Motors from his home in Lackawanna County,
negotiated the price of the vehicle, and then “issued a deposit payment in the
amount of $500.00 from his home via phone.” Appellant’s Complaint,
8/30/19, at ¶¶ 4, 5. Thereafter, Appellant traveled to GT Motors’ location in
Philadelphia where he purchased the vehicle. Id. at ¶¶ 2, 3.
Appellant attached to his complaint a bill of sale dated November 23,
2018. Id. at Exhibit A. The bill of sale indicates that for $15,200.00, Appellant
purchased a used 2010 Red Ford F-150 pick-up truck, bearing vehicle
identification number (VIN) 1FTMF1EWXAKA90637, from GT Motors. Id.
Under the “Vehicle Warranty” section of the bill of sale, the box next to “No
Express or Implied Warranties” is marked with an “X” and the following clause:
AS IS: THIS MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY
WARRANTY EITHER EXPRESSED OR IMPLIED. THE
PURCHASER WILL BEAR THE ENTIRE EXPENSE OF
REPAIRING OR CORRECTING ANY DEFECTS THAT
PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE.
Id.
Directly below that provision is an integration clause specifying:
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2 Advertisements do not constitute offers unless they contain language of
commitment or some invitation to take action without further communication.
Bourke v. Kazaras, 746 A.2d 642, 644 (Pa. Super. 2000). Without such
language, advertisements are merely invitations to the public to enter into
negotiations which may subsequently result in an offer and acceptance. Id.
at 645 (citations omitted).
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This agreement and the related documents that Buyer signs
contemporaneously with this agreement, including any
installment sale contract, contain the entire agreement between
the Buy and Seller and cancels and supersedes any prior
agreement including oral agreements relating to the sale of the
motor vehicle. Any change to this agreement must be in writing
and Seller must sign it.
Appellant’s Complaint, 8/30/19, at Exhibit A. Appellant and GT Motors’
representative endorsed the bill of sale on the signature line directly below
the following clauses:
Buyer hereby declares that he/she is of legal age to transact
business and that no unfair inducement has been made by Seller.
This contract is not binding upon either the Seller or the
Buyer until signed by an authorized Seller representative.
YOU, THE BUYER, MAY CANCEL THIS CONTRACT AND
RECEIVE A FULL REFUND ANY TIME BEFORE RECEIPT OF A
COPY OF THIS CONTRACT SIGNED BY AN AUTHORIZED
SELLER REPRESENTATIVE BY GIVING WRITTEN NOTICE OF
CANCELLATION TO SELLER.
Buyer acknowledges receipt of a completed copy of this
agreement at the time he/she signed it. If this is an ‘AS
IS” sale (see above), Buyer acknowledges that Seller
brought the required window sticker to his/her attention
before Buyer signed this agreement or an installment sale
contract.
Id.Appellant alleges that after purchasing the vehicle, he discovered
extensive mold damage in the cab of the vehicle that made it impossible to
operate. Appellant’s Complaint, 8/30/19, at ¶¶ 8, 9. Appellant argues that
because the “agreement between [Appellant and GT Motors] for the purchase
of the pick-up truck [] constituted a contract between” the parties, by
“withholding and concealing information regarding the condition of the pick-
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up truck, [GT Motors] breached its contract with [Appellant].” Id. at ¶¶ 10,
11. As a result of the alleged breach, Appellant claims damages totaling
$17,128.00. Id. at ¶ 15.
GT Motors filed preliminary objections to Appellant’s complaint on
September 24, 2019, arguing, inter alia, that the complaint failed to state a
breach of contract claim for which relief could be granted. GT Motors’
Preliminary Objections, 9/24/19, at ¶¶ 51-60. Attached to its preliminary
objections, GT Motors submitted multiple exhibits, including a warranty
disclaimer. Id. at Exhibit G. The warranty disclaimer is dated November 23,
2018, identifies Appellant as the buyer, GT Motors as the seller, and the
vehicle subject to the disclaimer as a 2010 Ford F-150 pick-up truck bearing
VIN 1FTMF1EWXAKA90637. Id.
The disclaimer states in bold:
The seller, identified above, hereby expressly disclaims all
warranties, either express or implied, including all implied
warranties of merchantability or fitness for a particular
purpose and the seller neither assumes nor authorizes any
other person to assume for it any liability in connection
with the sale of the vehicle.
GT Motors’ Preliminary Objections, 9/24/19, at Exhibit G. The warranty
disclaimer further provides:
“NOTICE OF VEHICLE SOLD WITHOUT WARRANTY”
This vehicle is sold without any warranty. The buyer will bear
the entire expense of repairing or correcting any defects that
presently exist and/or may occur in the vehicle unless the
salesperson promises in writing to correct such defects.
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BUYER HEREBY ACKNOWLEDGES HE HAS READ, UNDERSTANDS
AND ACCEPTS THE PROVISIONS OF THE WARRANTY STATEMENT
FOR THE ABOVE-IDENTIFIED VEHICLE.
Id. (emphasis in original).
At the bottom of the warranty disclaimer, two signature lines are
respectively endorsed by Appellant and GT Motors’ representative. Id. Both
signatures are dated November 23, 2018. Id.
On May 4, 2020, the trial court issued an order and opinion sustaining
GT Motors’ preliminary objection in the nature of a demurrer for failure to
state a breach of contract claim upon which relief could be granted. As the
breach of contract claim was Appellant’s sole cause of action, the court
dismissed Appellant’s complaint. The trial court explained that it sustained
GT Motors’ demurrer because the terms of the bill of sale, specifically its “as-
is” warranty language and integration clause, together with the
contemporaneously-signed warranty disclaimer, precluded relief for breach of
contract. Trial Court Opinion, 5/4/20, at 4-8.
Appellant filed a timely appeal on June 1, 2020. Both Appellant and the
trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents a single issue for our review:
A. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN GRANTING PRELIMINARY OBJECTIONS IN THE NATURE OF
A DEMURRER AND DISMISSING APPELLANT’S COMPLAINT
WHEN THE TRIAL COURT RELIED UPON DOCUMENTS AND
EVIDENCE NOT CONTAINED WITHIN APPELLANT’S
COMPLAINT.
Appellant’s Brief at 6.
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At the outset, we recognize our standard of review:
Our standard of review of an order granting preliminary objections
is well-settled.
Preliminary objections in the nature of a demurrer should be
granted where the contested pleading is legally insufficient.
Preliminary objections in the nature of a demurrer require the
court to resolve the issues solely on the basis of the pleadings; no
testimony or other evidence outside of the complaint may be
considered to dispose of the legal issues presented by the
demurrer. All material facts set forth in the pleading and all
inferences reasonably deducible therefrom must be admitted as
true. In reviewing a trial court’s grant of preliminary objections,
the standard of review is de novo and the scope of review is
plenary. Moreover, we review the trial court’s decision for an
abuse of discretion or an error of law.
Caltagirone v. Cephalon, Inc., 190 A.3d 596, 599 (Pa. Super. 2018)
(citations omitted).
Appellant argues that the trial court erred by considering the warranty
disclaimer3 attached to GT Motors’ preliminary objections. Appellant’s Brief at
12-13. Appellant further avers that the court usurped the role of fact-finder
in concluding that the warranty disclaimer was part of the contract between
the parties. Id. at 14. We disagree.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
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3Appellant also claims the trial court incorrectly considered the buyer’s guide
and affidavit attached to GT Motors’ preliminary objections. See Appellant’s
Brief at 10-14; GT Motors’ Preliminary Objections, 9/24/19, at Exhibits A & F.
However, the trial court only cites the warranty language from the bill of sale
and the warranty disclaimer as the basis for its ruling. See Trial Court
Opinion, 5/4/20, at 4-8.
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exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading would
permit recovery if ultimately proven. This Court will reverse the
trial court’s decision regarding preliminary objections only where
there has been an error of law or abuse of discretion. When
sustaining preliminary objections will result in the denial of a claim
or dismissal of suit, the preliminary objections may be sustained
only where the case is free and clear of doubt.
Hill v. Ofalt, 85 A.3d 540, 547-48 (Pa. Super. 2014) (citation omitted).
“To successfully maintain a cause of action for breach of contract the
plaintiff must establish: (1) the existence of a contract, including its essential
terms, (2) a breach of duty imposed by the contract, and (3) resultant
damages.” Albert v. Erie Ins. Exchange, 65 A.3d 923, 928 (Pa. Super.
2013) (citation omitted). The Rules of Civil Procedure state:
(h) When any claim or defense is based upon an agreement, the
pleading shall state specifically if the agreement is oral or written.
Note: If the agreement is in writing, it must be
attached to the pleading. See subdivision (i) of this
rule.
(i) When any claim or defense is based upon a writing, the pleader
shall attach a copy of the writing[.] . . .
Pa.R.C.P. 1019(h), (i).
Where a plaintiff’s claim is based on written documents and the plaintiff
fails to attach the documents to its complaint, the defendant may submit those
documents with its preliminary objections and the court may consider those
documents in ruling on a demurrer. Conrad v. City of Pittsburgh, 218 A.2d
906, 907 n.3 (Pa. 1966); Regal Industrial Corp. v. Crum & Forster, Inc.,
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890 A.2d 395, 398-99 (Pa. Super. 2005) (“[A] defendant may attach a copy
of a written agreement where the plaintiff alleges an agreement based on a
writing.”) (citation omitted). Further, if a claim is based on a document, it is
the document, not averments in the plaintiff’s complaint characterizing it, that
determine whether the plaintiff has stated a cause of action, and averments
that conflict with the document need not be accepted as true. Jenkins v.
County of Schuylkill, 658 A.2d 380, 383 (Pa. Super. 1995) (citation
omitted).
Whether a writing or writings constitute the entire agreement between
parties is a question of law. Lenzi v. Hahnemann University, 664 A.2d
1375, 1379 (Pa. Super. 1995). “It is a general rule of law in the
Commonwealth that where a contract refers to and incorporates the provisions
of another, both shall be construed together.” Southwestern Energy
Production Co. v. Forest Resources, LLC, 83 A.3d 177, 187 (Pa. Super.
2013) (citations omitted). “Where several instruments are made as part of
one transaction they will be read together, and each will be construed with
reference to the other[.]” Id. (citations omitted). See also Black v. T.M.
Landis, Inc., 421 A.2d 1105, 1107 (Pa. 1980) (“It is a basic principle of
contract law that when two or more writings are executed at the same time
and involve the same transaction, they should be construed as a whole.”)
(citations omitted).
Instantly, the trial court capably, thoroughly and accurately explained:
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The bill of sale signed by [Appellant] conspicuously states
there are no express or implied warranties and the vehicle is being
sold “as is.” Section 13 of Pa.C.S.A. § 2314 of the Uniform
Commercial Code (UCC) defines the implied warranty of
merchantability as a warranty that the goods will pass without
objection in the trade and are fit for the ordinary purposes for
which such goods are used. Moscatiello v. Pittsburgh Contractors
Equipment Co., 595 A.2d 1190, 1194 (Pa. Super. 1991).
However, 13 Pa.C.S.A. § 2316, Exclusion or Modification of
Warranties, states in pertinent part:
(b) Implied warranties of merchantability and
fitness. — Subject to subsection (c), to exclude or
modify the implied warranty of merchantability or any
part of it the language must mention merchantability
and in case of a writing must be conspicuous.
(c) Implied warranties in general. —
Notwithstanding (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 attention of
the buyer to the exclusion of warranties
and makes plain that there is no implied
warranty.
13 Pa.C.S.A. § 2316.
Thus, to exclude the implied warranty of merchantability,
the exclusionary language must mention the term
“merchantability” and be conspicuous. Moscatiello, 595 A.2d at
1194. The Superior Court in Moscatiello also laid out the standard
to determine if a clause is conspicuous:
A term or clause is “conspicuous” when it is “so
written that a reasonable person against whom it is to
operate ought to have noticed it . . . language in the
body of a form is conspicuous if it is larger or other
contrasting type of color . . .” 13 Pa.C.S.A. § 1201.
Comment 10 to section 1201 states that the test for
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conspicuousness is whether attention can reasonably
be expected to be called to the exclusions. The
primary object of the conspicuousness requirement is
to avoid fine print waiver of rights by the buyer.
Greenspun v. American Adhesives, Inc., 320 F.Supp.
442 (E.D.Pa. 1970).
Id.The exclusionary clause involved herein is located on the
front side of the one-page bill of sale. It is under the Section titled
“VEHICLE WARRANTY” which is in all capital letters and in bold
font. In this section, a box is checked next to the clause which
reads:
No Express or Implied Warranties. AS IS: THIS
MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY
WARRANTY EITHER EXPRESSED OR IMPLIED.
THE PURCHASER WILL BEAR THE ENTIRE
EXPENSE OF REPAIRING OR CORRECTING ANY
DEFECTS THAT PRESENTLY EXIST OR THAT MAY
OCCUR IN THE VEHICLE.
See Bill of Sale attached to Complaint docketed on 8/30/19.
Additionally, “It is a general rule of law in the
Commonwealth that where a contract refers to and incorporates
the provisions of another, both shall be construed together.”
Trombetta v. Raymond James Financial Services, Inc., 907 A.2d
550, 560 (Pa. Super. 2006) (citing Shehadi v. Northeastern Nat’l.
Bank, [] 378 A.2d 304, 306 ([Pa.] 1977). Here, the Warranty
Disclaimer becomes a part of the contract. The bill of sale refers
to and incorporates the Warranty disclaimer by stating “This
agreement and the related documents that Buyer signs
contemporaneously with this agreement . . . contain the entire
agreement between Buyer and Seller . . .” Id. The Warranty
Disclaimer and the bill of sale were signed contemporaneously as
evidenced by both documents being signed on November 23,
2018. See Exhibits E, F, & G, of [GT Motors’] Preliminary
Objections to [Appellant’s] Complaint docketed on 9/24/2019.
The language in the bill of sale combined with both documents
being signed [] contemporaneously by [Appellant], the Warranty
Disclaimer is a part of the contract entered into between
[Appellant and GT Motors].
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It is clear from conspicuous language in both the bill of sale
and Warranty Disclaimer that there is no implied warranty of
merchantability. The Warranty Disclaimer has the term
“merchantability” in it, and with the exclusionary language in the
bill of sale being separated into its own section, in bold font and
being all capitalized, [Appellant] was put on notice that substantial
rights of his were being relinquished.
With respect to any express warranties in the contract,
[Appellant] fails to direct the court to any language in the contract
amounting to an express warranty that would contradict or
undermine the disclaimer of all warranties. In [Appellant’s]
complaint, he alleges “[i]n advertising the pick-up truck for sale,
[GT Motors] warranted that the vehicle was in a state of good
repair and was safe for operation.” See Complaint docketed on
8/30/2019. Nowhere in the contract does this language appear.
The only language relating to the condition of the vehicle is under
the “VEHICLE INFORMATION” section located at the top of the
bill of sale. That information denotes that the vehicle is “used,”
the year, make, model, VIN number, mileage, body and color of
the vehicle. Nowhere in the bill of sale does it state the vehicle
was in a “state of good repair and was safe for operation.” See
Bill of Sale attached to Complaint docketed on 8/30/2019.
Therefore, it can be presumed [Appellant’s] allegations of [GT
Motors] warranting the vehicle being in a state of good repair and
safe operation took place verbally prior to signing the contract.
In determining whether oral statements and
representations can be used to clarify a contract, this court looks
to the parol evidence rule. The Supreme Court in Toy v.
Metropolitan Life Ins. Co. laid out the parol evidence rule in
Pennsylvania:
Where ‘the parties, without any fraud or mistake,
have deliberately put their engagements in writing,
the law declares the writing to be not only the best,
but the only evidence of their agreement;’ that “all
preliminary negotiations, conversations and verbal
agreements are merged in and superseded by the
subsequent written contract;” and that ‘unless fraud,
accident, or mistake be averred, the writing
constitutes the agreement between the parties, and
its terms cannot be added to nor subtracted by parol
evidence.’
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Toy v. Metropolitan Life Ins. Co., [] 928 A.2d 186, 204 ([Pa.]
2007) (quoting Gianni v. Russel Co., []126 A. 791, 792 ([Pa.]
1924).
The Supreme Court in [Toy] further clarified exclusions to
the parol evidence rule by stating:
“While parol evidence may be introduced based on a
party’s claim that there was fraud in the execution of
a contract, i.e., that a term was fraudulently omitted
from the contract, parol evidence may not be
admitted based on a claim that there was fraud in the
inducement of the contract, i.e., that an opposing
party made false representations that induced the
complaining party to agree to the contract.”
Toy, [] 928 A.2d 186, 205 ([Pa.] 2007) (citing HCB Contractors v.
Liberty Place Hotel Associates, [] 652 A.2d 1278, 1279 ([Pa.]
1995).
The parties’ unambiguous written contract indicates that no
implied warranty was included in the purchase. Accordingly, the
parol evidence rule bars [Appellant’s] attempt to avoid the
disclaimer through invocation of presumed pre-contractual
conversations, during which [GT Motors] allegedly misrepresented
the condition of the used vehicle. As previously stated,
[Appellant] fails to direct the court to any other language in the
contract amounting to an express warranty that would contradict
or undermine the disclaimer of implied warranties.
Trial Court Opinion, 5/4/20, at 4-8 (some underlining omitted).
Upon review, we discern no error by the trial court in considering the
warranty disclaimer as part of the contract between Appellant and GT Motors.
Because Appellant’s breach of contract claim was based on written documents,
he was required to attach the documents to his complaint. See Pa.R.C.P.
1019(i). As the trial court made the proper legal conclusion that the warranty
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disclaimer was part of the parties’ contract,4 Lenzi, 664 A.2d at 1379; Forest
Resources, LLC, 83 A.3d at 187; Black, 421 A.2d at 1107, Appellant should
have submitted the disclaimer as an exhibit to his complaint. Because
Appellant failed to do so, GT Motors was permitted to attach the warranty
disclaimer to its preliminary objections, and the trial court correctly considered
it.5 Conrad, 218 A.2d at 907 n.3; Regal Industrial Corp., 890 A.2d at 398-
99.
In sum, the trial court properly considered the warranty disclaimer as
part of the parties’ contract in determining that Appellant could not prove facts
legally sufficient to establish a right to relief on his sole breach of contract
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4 In his response to GT Motors’ preliminary objections, Appellant denies that
the warranty disclaimer is part of the contract. Appellant’s Response to GT
Motors’ Preliminary Objections, 12/16/19, at ¶ 30. “When reviewing a trial
court’s disposition of preliminary objections, this Court is only obligated to
consider as true all of the well-pleaded material facts set forth in the
complaint.” Glassmere Fuel Service, Inc. v. Clear, 900 A.2d 398, 404 n.2
(Pa. Super. 2006) (citation omitted, emphasis added). We are “not required
to accept allegations to the extent that they constitute conclusions of law.”
Id. (citation omitted). Because Appellant’s assertion that the warranty
disclaimer was not part of the contract constitutes a legal conclusion, the trial
court was not required to accept this assertion as true merely because
Appellant included it in his response to GT Motors’ preliminary objections.
5Contrary to his initial arguments, Appellant eventually concedes that the trial
court was permitted to consider the exhibits attached to GT Motors’
preliminary objections. Appellant’s Brief at 14 (“Appellant readily
acknowledges decisional case law that has held that where a plaintiff’s
complaint referred to various documents upon which reliance was placed and
such documents were not annexed to the complaint but were attached to a
defendant’s preliminary objections, a court can consider such documents in
ruling upon preliminary objections.”).
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claim. We therefore affirm that trial court’s order sustaining GT Motors’
preliminary objections.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/27/2021
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