J-A30029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRETT SILVER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
PORSCHE OF THE MAIN LINE AND ROBERT DISTANISLAO
Appellee No. 1057 EDA 2014
Appeal from the Order Entered February 27, 2014 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2013-01615
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 10, 2015
Appellant, Brett Silver, appeals from the February 27, 2014 order
sustaining the preliminary objections filed by Appellees, Porsche of the Main
Line (the Dealer) and Robert DiStanislao, to Silver’s amended complaint.
After careful review, we affirm.
We summarize the facts and procedural history of this case as follows.
On October 8, 2012, Silver entered into a purchase order contract with the
Dealer for a used 2009 Ferrari 599 GTB (Ferrari) for the purchase price of
$232,630.56. Appellant’s First Amended Complaint, 4/30/13, at ¶¶ 6, 9.
Silver and the Dealer had engaged in several prior sales transactions for
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* Retired Senior Judge assigned to the Superior Court. J-A30029-14
other vehicles without incident. Id. at ¶ 26. At the time the parties entered
into the purchase order contract, the Dealer did not have the Ferrari in its
inventory or on its lot. Id. at ¶ 10. Instead, DiStanislao, the principal
shareholder of the Dealer, located a number of comparable vehicles at
Silver’s request, and Silver selected the Ferrari from those vehicle listings.
Id. at ¶¶ 27-31. Silver alleges that DiStanislao made various
representations about the condition of this Ferrari, including, in part, that it
had no prior history of damage or paintwork. Id. at ¶ 31.
There is no dispute that Silver and the Dealer entered into the
purchase order contract on October 8, 2012. Preliminary Objections of
Appellees to Appellant’s First Amended Complaint, 5/20/13, at ¶ 1, Exhibit
A; Appellant’s Answer to Preliminary Objections of Appellees, 6/21/13, at ¶
1. The contract indicates that Silver is purchasing a used 2009 Ferrari 599
GTB. Preliminary Objections of Appellees to Appellant’s First Amended
Complaint, at Exhibit A (Purchase Order Contract). Under the “Additional
Equipment” section of the purchase order, it states “AS-IS NO WARRANTY.”
Id. Further, the purchase order contains a separate box labeled
“WARRANTY INFORMATION” that is set off from the rest of the contract with
the following “AS IS” provision, “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 defect that presently exists
or that may occur in the vehicle.” Id. (emphasis in original). Directly below
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that provision in the warranty information box is a signature line, which
Silver signed separately. Id. Moreover, the purchase order contains an
integration clause specifying, in relevant part, as follows.
Purchaser agrees that this order includes all of the terms and conditions on both the face and reverse side hereof, that this order cancels and supercedes any prior agreement and as of the date hereof comprises the complete and exclusive statement of the terms of agreement relating to the subject matters covered hereby.
Id. Silver and the Dealer’s representative endorsed the contract on the
signature line directly below the foregoing clause. Id.
Thereafter, the Dealer purchased the vehicle from a third-party dealer,
who then delivered it to the Dealer. Appellant’s First Amended Complaint,
4/30/13, at ¶¶ 31-32. The Dealer inspected the Ferrari, and Silver accepted
delivery and took possession of the vehicle on October 20, 2012. Id. at ¶
35-36, 40. On the same day, Silver drove the Ferrari to a third-party Ferrari
dealer, Algar Ferrari (Algar). Id. at ¶ 41. Silver visited Algar to inspect a
different vehicle he had ordered that was being prepared for shipment to his
vacation home in Florida. Id. While at Algar, an Algar representative
noticed that several locations of Silver’s Ferrari exhibited signs of damage to
the clear coat1 as well as evidence of repainting. Id. at ¶¶ 42-45. Silver
1 The clear coat is a glossy, transparent coating applied over the basecoat to protect it from abrasion and ultraviolet light.
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claims this cosmetic damage significantly impairs the value of the Ferrari.
Id. at ¶¶ 23-25. After discovering the damage, Silver contacted the Dealer
and DiStanislao, who inspected the Ferrari and offered to accept it back in
exchange for full market value as long as Silver used the credit to purchase
another vehicle from DiStanislao. Id. at ¶ 52. Silver rejected this proposal
and instituted the instant action. Id. at ¶ 53.
On March 6, 2013, Silver filed his complaint. Thereafter, on April 30,
2013, Silver filed his amended complaint in response to Appellees’ initial
preliminary objections. In count one of his amended complaint, Silver
claims Appellees made fraudulent representations by failing to provide a true
description of the condition of the vehicle, upon which representations Silver
reasonably relied in deciding to purchase the vehicle. Id. at ¶¶ 61-81. In
count two of his amended complaint, Silver avers Appellees violated the
Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL),
73 P.S. §§ 201-1 to 201-9.3, by misrepresenting the condition of the
vehicle. Id. at ¶¶ 82-100. In count three, Silver alleges Appellees
contravened the federal Magnuson-Moss Warranty Improvement Act, 15
U.S.C. §§ 2301-2312, by not honoring express warranties as well as those
implied by Pennsylvania law. Id. at ¶¶ 101-112. In count four, Silver
asserts Appellees violated the Pennsylvania Uniform Commercial Code (UCC)
by delivering a vehicle that did not conform to the material terms of the
sale. Id. at ¶¶ 113-122. In count five, Silver contends Appellees
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negligently misrepresented the history and condition of the vehicle. Id. at
¶¶ 123-136.
Thereafter, on May 20, 2013, Appellees filed preliminary objections to
the amended complaint in the nature of demurrers and a motion to strike.
Appellees first argued that DiStanislao could not be held personally liable for
his conduct that was within the scope of his employment, agency, and
authority as the primary shareholder of the Dealer. Appellees’ Preliminary
Objections to Appellant’s First Amended Complaint, 5/20/13 at 8-9. Next,
Appellees contended that the combination of the “as is” warranty and the
integration clause in the purchase order rendered Silver’s claims legally
insufficient as any oral representations would be impermissible parol
evidence. Id. at 10-23. Further, Appellees claimed that the tort claims
based on fraudulent conduct in counts one, two, and five were barred by the
“economic loss doctrine,” which prevents plaintiffs from recovering in tort for
claims that arise solely out of a breach of contract. Id. at 23-27. Finally,
Appellees moved to strike the demands for punitive damages because
Appellees’ alleged conduct would not support the imposition of said
damages. Id. at 27.
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In its February 27, 2014 order,2 the trial court sustained Appellees’
preliminary objections. On March 26, 2014, Silver filed a timely notice of
appeal and a concise statement of errors complained of on appeal pursuant
to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On May
28, 2014, the trial court filed its opinion pursuant to Rule 1925(a). In its
opinion, the trial court explained that it sustained the demurrers to holding
DiStanislao individually liable and to all of the counts against the Dealer
based on the “as is” warranty combined with the integration clause. 3 Trial
Court Opinion, 5/28/14, at 1-2.
On appeal, Silver raises the following issues for our review.
Is Appellant entitled to a reversal of the trial court’s ruling when, applying Pennsylvania law, the trial court abused its discretion and/or misapplied the law by:
a. Sustaining Appellees’ preliminary objections on the basis that Appellant’s [f]raudulent [m]isrepresentation, Magnuson- Moss Warranty Act, [n]egligent [m]isrepresentation and UCC claims are barred, although such claims are permissible
2 The order was dated February 26, 2014, and it was entered on the docket on February 27, 2014. 3 We note that while the trial court’s February 27, 2014 order did not expressly dismiss the amended complaint, “an order granting preliminary objections in the nature of a demurrer is a final order and is, therefore, appealable to this Court immediately.” D’Elia v. Folino, 933 A.2d 117, 121 (Pa. Super. 2007) (citations omitted), appeal denied, 948 A.2d 804 (Pa. 2008). Accordingly, we have jurisdiction over this appeal.
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due to deficiencies in the “AS IS” disclaimer; and
b. Sustaining the preliminary objection regarding claims asserted against Appellee DiStanislao, in his individual capacity, although such claims raised a genuine issue of material fact.
Silver’s Brief at 5.
Silver’s claims challenge the trial court’s decision to sustain Appellees’
preliminary objections in the nature of a demurrer. When reviewing said
order, we are guided by the following.
Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Lenau v. Co-eXprise, Inc., 102 A.3d 423, 428-429 (Pa. Super. 2014),
quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).
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Here, the trial court concluded that the fully integrated, written
purchase order contract containing an “as is” clause would bar the
introduction of parol evidence of pre-contract representations made by the
Dealer and would preclude finding that Silver’s reliance on any of those
representations was justifiable. Trial Court Opinion, 5/28/14, at 6-16. We
agree.
In the first issue presented for our review, Silver contends that the “as
is” clause in the purchase order contract is deficient and does not preclude
his causes of action based on pre-contract oral representations of the
Ferrari’s condition and his justifiable reliance thereon. Silver’s Brief at 5.
We begin by noting that our Supreme Court has explained the parol
evidence rule as follows.
[W]here “‘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 “[a]ll 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 from by parol evidence.’”
Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 204 (Pa. 2007), quoting
Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004).
“Once a writing is determined to be the parties’ entire contract, the parol
evidence rule applies and evidence of any previous oral or written
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negotiations or agreements involving the same subject matter as the
contract is almost always inadmissible to explain or vary the terms of the
contract.” Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539,
546 (Pa. Super. 2005), quoting Yocca, supra. Initially, to determine
whether the parol evidence rule applies, we must decide whether the written
contract is the parties’ entire contract. Id. “An integration clause which
states that a writing is meant to represent the parties’ entire agreement is
also a clear sign that the writing is meant to be just that and thereby
expresses all of the parties’ negotiations, conversations, and agreements
made prior to its execution.” Yocca, supra.
Our Supreme Court has recognized exceptions to the parol evidence
rule, such as when a party alleges that the contract is ambiguous. Toy,
supra. Further, parol evidence is admissible to prove averments that a
term was omitted from the writing due to fraud, accident, or mistake, i.e., a
claim for fraud in the execution of the contract. Id. Parol evidence may
not, however, be admitted to show one party made a false representation
that persuaded the other party to enter the contract, i.e., a claim for fraud in
the inducement. Id.
Herein, there is no dispute that both parties executed the purchase
order contract. It contained all of the essential terms for the purchase of the
Ferrari, including the parties, the condition of the vehicle, and the total price,
including a deduction for the value of two cars Silver was trading-in towards
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the purchase price. See Appellees’ Preliminary Objections to Appellant’s
First Amended Complaint, 5/20/13, at Exhibit A (Purchase Order Contract).
It also contained an integration clause stating that the contract was the
parties’ entire agreement that both “cancels and supercedes” any prior
agreements and “comprises the complete and exclusive statement of the
terms of agreement relating to the subject matters covered hereby.” Id.
It is also unambiguous regarding the used, “as is” condition of the
Ferrari. The box denoting its condition as “used” is marked with “XX”. Id.
The words “AS-IS NO WARRANTY” are typed into the “additional equipment”
section of the contract. Id. Further, in a separate box labeled “Warranty
Information,” the checked off “AS IS” clause states “[t]his 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 defect
that presently exists or that may occur in the vehicle.” Id. (emphasis in
original). Directly below that, in the “Warranty Information” box, there is a
signature line, which Silver signed. Id.
It is clear that the words “as is” disclaim any implied warranties. The
Pennsylvania Commercial Code provides that “[u]nless 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.” 13 Pa.C.S.A. § 2316(c)(1); see
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also PBS Coals, Inc. v. Burnham Coal Co., 558 A.2d 562, 564 (Pa.
Super. 1989) (“when something is accepted ‘as is’ the buyer is put on notice
that there may be liabilities attendant to the purchase. The warranties which
may otherwise be implied by law do not attach when the buyer agrees to
accept the goods in the condition in which they are found[]”), appeal denied,
568 A.2d 1248 (Pa. 1989). Therefore, because the purchase order contract
represented the entire agreement of the parties, parol evidence cannot be
used to explain or vary the “as is” clause. See Youndt, supra.
Silver proffers multiple reasons that the trial court erred in applying
the “as is” clause to dismiss his claims. Silver’s Brief at 11-25. Initially,
Silver claims Pennsylvania case law permits a cause of action for
misrepresentation of an item’s condition even though a contract contains an
“as is” clause. Id. at 12, citing Indus. Rayon Corp. v. Clifton Yarn Mills,
Inc., 165 A. 385, 387 (Pa. 1933); Morningstar v. Hallett, 858 A.2d 125,
131 (Pa. Super. 2004).
We conclude, however, that these cases support the dismissal of
Silver’s claims. Both cases provide that an “as is” clause cannot disclaim an
express warranty, so that if an express warranty is breached, the seller may
be liable, but, on the other hand, if the representation that the buyer
complains about is not a breach of the express warranty, then the “as is”
clause may shield the seller from liability. For example, in Industrial
Rayon, the parties entered into an “as is” contract for inferior rayon yarn
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that the contract represented had been rejected by the coning department. 4
Indus. Rayon, supra at 385. The purchaser later sued the seller, claiming
that the yarn it received was not the same quality as five samples the seller
provided that induced the buyer to enter into the “as is” contract. Id. Our
Supreme Court affirmed the trial court’s jury instruction that the jury could
find the seller liable if, among other things, the yarn was not actually a
reject from the coning department as expressly represented in the contract.
Id. at 386. However, the Court concluded that the product delivered was
inferior rayon yarn rejected by the coning department, as represented in the
contract, so the “as is” clause prevented the purchaser from suing based on
its quality. Id. at 387.
Likewise, in Morningstar, the parties entered into a contract for the
purchase of a horse, and the contract warranted that the horse was, among
other things, 11 years old. Morningstar, supra at 127. The contract also
contained “as is” language. Id. The seller brought a breach of contract
action seeking payment for the horse, and the purchaser counterclaimed for
fraud, misrepresentation, unfair trade practices, and mutual mistake, based
4 In industrial textile manufacturing plants, machines in the “coning department” spooled finished yarn onto cone-shaped holders. The cone configuration allows the yarn to unwind freely and evenly, particularly in machine weaving. Coning also enabled the yarn to be spooled and sold in large quantities. The coning department contained inspectors who examined the finished cones in preparation for shipment.
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on the purchaser’s contention that the horse was 16, not 11, years old. Id.
at 128. The trial court granted summary judgment to the seller based on
the “as is” clause and dismissed the purchaser’s counterclaims. Id. This
Court reversed because the terms of the contract created an express
warranty that the horse delivered would be 11 years old, and the “as is”
clause could not disclaim that express warranty. Id. at 131. Thus, there
was a disputed issue of material fact regarding whether the horse delivered
was actually 11 years old. Id. This Court also permitted the purchaser to
proceed on her claims of fraud, misrepresentation, unfair trade practices,
and mistake based solely on the jury instruction in Industrial Rayon.
[I]n Industrial Rayon Corp., supra, our Supreme Court approved a trial judge’s charge wherein he advised the jury that it could render a verdict for the buyer despite an “as is” clause if they found that the seller had misrepresented the origin of the goods and that the buyer had relied on this misrepresentation. Thus, the “as is” language contained in the sales agreement does not necessarily preclude an action by Hallett for fraud, misrepresentation, deceptive trade practices, or mistake. Accordingly, we conclude that the trial court erred in precluding Hallett from proceeding on her claims solely on the basis of the “as is” clause.
Id. In this case, Industrial Rayon and Morningstar support the trial
court’s conclusion that Silver’s claims against the Dealer are legally
insufficient. Unlike the contracts in Industrial Rayon and Morningstar,
which contained terms creating express warranties, the written contract
between the Dealer and Silver simply provided that the vehicle was “used,”
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and did not contain any further express warranties about the condition of the
vehicle’s paint. Therefore, the “as is” clause applies and sets forth that
“[t]he purchaser will bear the entire expense of repairing or correcting any
defect that presently exists or that may occur in the vehicle.” See
Appellees’ Preliminary Objections to Appellant’s First Amended Complaint,
5/20/13, at Exhibit A (Purchase Order Contract).
Next, Silver claims that Section 2316(c)(2) of the Uniform Commercial
Code (UCC), 13 Pa.C.S.A. §§ 1101-9809, provides that an “as is” provision
is not effective unless the buyer inspects the goods, or has an opportunity to
do so, before entering into the contract. Silver’s Brief at 13. Section 2316
of the UCC, in relevant part, provides as follows.
§ 2316. Exclusion or modification of warranties
…
(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, 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
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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.C.S.A. § 2316(b)-(c). A plain reading of Section 2316 reveals that
subsection (c) contains three separate “common factual situations in which
the circumstances surrounding the transaction are in themselves sufficient to
call the buyer’s attention to the fact that no implied warranties are made or
that a certain implied warranty is being excluded.” Id. at cmt. 6.
Subsection (c)(1) provides that “as is” language itself is sufficient to disclaim
all implied warranties, regardless of whether the buyer has the opportunity
to inspect the goods. Id. § 2316(c)(1). Contrary to Silver’s argument,
subsection (c) does not make an “as is” clause contingent on a purchaser’s
inspection of the goods, therefore, Silver’s reliance on Section 2316 is
misplaced.
Similarly, Silver relies on Section 2602 of the UCC to argue that he
retained the right to reject the vehicle after delivery because he did not have
the opportunity to inspect it before entering into the contract. Silver’s Brief
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at 17-20. Again, Silver’s reading of the UCC is incorrect. In order for the
right to rejection to arise, Section 2601 provides that “the goods or the
tender of delivery [must] fail in any respect to conform to the contract.” Id.
§ 2601. As noted above, the Ferrari as presented to Silver conformed to the
description in the purchase order contract of a used, “as is” Ferrari.
Therefore, Silver’s contention that he had a right to reject delivery of the
vehicle fails.
Finally, Silver contends that the “as is” clause is deficient because the
Dealer did not comply with Section 301.4(a)(9) of Pennsylvania’s
Automotive Industry Trade Practices Regulations (AITP Regulations), 37 Pa.
Code §§ 301.1-301.6. Silver’s Brief at 13-15. Specifically, Silver alleges he
did not see the vehicle prior to purchasing it, so he did not see the window
statement required by Section 301.4(a)(9). Id. at 14. Silver also claims
that Section 301.4(a)(9) provides that an “as is” disclaimer cannot
contradict prior oral statements and representations about the vehicle made
by the Dealer and DiStanislao. Id. at 15. Section 301.4(a)(9) provides as
follows.
§ 301.4. General provisions--motor vehicle dealer.
(a) With regard to a motor vehicle dealer, the following will be considered unfair methods of competition and unfair or deceptive acts or practices:
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(9) Where no express warranty is given, attempting to exclude the implied warranties of merchantability and fitness for a particular purpose in the sale of a motor vehicle purchased primarily for personal, family or household purposes unless the following notice in at least 20-point bold type is prominently affixed to a window in the motor vehicle so as to be easily read from the outside and is brought to the attention of the prospective purchaser by the seller:
This vehicle is sold without any warranty. The purchaser will bear the entire expense of repairing or correcting any defects that presently exist and/or may occur in the motor vehicle unless the salesperson promises in writing to correct such defect or promises in writing that certain defects do not exist.
This paragraph prohibits the use of the term “AS IS” unless the sales contract, receipt, agreement or memorandum contains the following information in a clear, concise and conspicuous manner on the face of the document; the notice shall be in addition to the window statement required by this paragraph and may not contradict an oral or written statement, claim or representation made directly or by implication with regard to the quality, performance, reliability or lack of mechanical defects of a motor vehicle which is offered for sale:
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
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PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE.
37 Pa. Code § 301.4(a)(9) (emphasis and capitalization in original).
Contrary to Silver’s averment, noncompliance with Section 301.4(a)(9)
does not render a contract provision “insufficient” or “deficient.” Silver’s
Brief at 14-15. Instead, noncompliance with Section 301.4(a)(9) is a
potential basis for liability under the UTPCPL. However, Silver’s amended
complaint does not plead his UTPCPL claim based on a violation of Section
301.4(a)(9), despite pleading other violations of the AITP Regulations. See
Appellant’s First Amended Complaint, 4/30/13, at ¶¶ 93-94 (pleading
violations of Section 301.2(4), (5), (6), (19), and 301.4(a)(6)(iv)). Nor did
he raise non-compliance with Section 301.4(a)(9) as a basis for UTPCPL
liability in his response to the preliminary objections. See Appellant’s
Answer to Preliminary Objections of Appellees, 6/21/13. Accordingly, Silver
has waived this argument. See Pa.R.A.P. 302 (“[i]ssues not raised in the
lower court are waived and cannot be raised for the first time on appeal[]”).
Therefore, Silver’s claim that the “as is” clause is deficient under Section
301.4(a)(9) fails.
Based on the foregoing, we conclude that the trial court properly
sustained Appellees’ preliminary objections. It is clear and free from doubt
that Silver will be unable to prove facts legally sufficient to establish the
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right to relief on any of his claims against either the Dealer or DiStanislao. 5
See Lenau, supra. Accordingly, the February 27, 2014 order is affirmed.6
Order affirmed.
5 In particular, because parol evidence is not admissible to show that any prior misrepresentation by the Dealer induced Silver into the contract of sale, count one for fraudulent misrepresentation and count five for negligent misrepresentation, which are both claims of fraud in the inducement, fail. See Toy, supra. Count two for violation of the UTPCPL and the UCC claim in count four also fail because an element of each is justifiable reliance, but the “as is” clause effectively disclaimed any implied warranties and eliminated any justifiable reliance on the pre-contract representations of the Dealer or DiStanislao. Silver cannot justifiably rely on representations made by the Dealer or DiStanislao before the parties entered into the purchase order contract. By signing the contract, which contained an integration clause stating that its terms superseded all of the previous representations and agreements, Silver disclaimed reliance on any such representations. See Yocca, supra at 502. Finally, the trial court properly dismissed count three claiming the Dealer and DiStanislao violated the federal Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312, because the “as is” clause effectively disclaimed any implied warranties under Pennsylvania law. See 13 Pa.C.S.A. § 2316(c)(1). 6 Because we have determined that all of Silver’s claims are legally insufficient as to the Dealer and DiStanislao, we do not need to address Silver’s second claim on appeal that DiStanislao can be held individually liable by piercing the corporate veil. Similarly, we need not address Appellees’ claims that the “economic loss doctrine” bars certain causes of action pled by Silver.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/10/2015
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