The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
APPALACHIAN LAND AND No. 4:25-CV-00472
CONSERVATION SERVICES,
(Chief Judge Brann)
Plaintiff,
v.
PORTER EQUIPMENT CO.,
Defendant.
MEMORANDUM OPINION
JUNE 26, 2026
I. BACKGROUND
Plaintiff Appalachian Land and Conservation Services (“Plaintiff”) filed a
three-count complaint against Defendant Porter Equipment Co. (“Defendant”) for
fraud, breach of contract, and breach of warranty of fitness for a particular purpose
arising out of the sale of a bulldozer between the two parties.1 Plaintiff filed
originally in the Court of Common Pleas of Lycoming County, Pennsylvania, and
Defendant removed the case to this Court based on diversity of citizenship.2
Defendant first filed a motion purportedly for summary judgment on June 27,
2025, but upon examination of the motion it was more properly considered as a
1 Doc. 1-2.
2 Defendant is a citizen of the State of Georgia and Plaintiff is a citizen of Pennsylvania for
motion to deem three requests for admission (“RFAs”) admitted.3 The Court denied
the summary judgment motion but deemed two out of the three RFAs admitted.4
Defendant has now filed the instant motion for summary judgment on all three
of Plaintiffs’ counts. The motion is ripe for disposition. For the reasons stated below,
it is granted in part and denied in part.
II. LAW
A. Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate
where “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”5 Material facts are those “that
could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence
exists from which a rational person could conclude that the position of the person
with the burden of proof on the disputed issue is correct.”6 A defendant “meets this
standard when there is an absence of evidence that rationally supports the plaintiff’s
case.”7 Conversely, to survive summary judgment, a plaintiff must “point to
3 Doc. 12; Doc. 18.
4 Doc. 18 at 3. To note, Defendant asserts in the instant motion that the Court deemed all three
RFAs admitted. Not so. Instead, the Court found that the third RFA was incomprehensible and
denied the motion to deem its contents admitted. Doc. 18 at 3 n.8.
5 FED. R. CIV. P. 56(a).
6 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).
7 Clark v. Mod. Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993).
admissible evidence that would be sufficient to show all elements of a prima facie
case under applicable substantive law.”8
In assessing “whether there is evidence upon which a jury can properly
proceed to find a verdict for the [nonmoving] party,”9 the Court “must view the facts
and evidence presented on the motion in the light most favorable to the nonmoving
party.”10 Moreover, “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c),” the
Court may “consider the fact undisputed for purposes of the motion.”11 Finally,
although “the court need consider only the cited materials, . . . it may consider other
materials in the record.”12
B. Undisputed Facts
With that standard outlining the Court’s framework for review, I now turn to
the undisputed facts.
The case arises out of the sale of a 1999 John Deere 650 Bulldozer (“the
bulldozer”).13 Plaintiff is a natural resources conservation organization that deals in
land and timber, owned by Josh First (“Mr. First”).14 Defendant is a farm machinery
8 Id.
9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (quoting Schuylkill & Dauphin Imp.
Co. v. Munson, 81 U.S. 442, 448 (1871)).
10 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).
11 FED. R. CIV. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d
Cir. 2018).
12 FED. R. CIV. P. 56(c)(3).
13 Doc. 31-2 (PX 1).
14 Doc. 28-3 (First Depo.) at 7:16-8:8.
and heavy equipment sales representative whose business involves connecting
distributors with customers, owned by Clayton Porter (“Mr. Porter”).15 One of
Defendant’s main distributor locations is the Quarrick equipment dealership in
Uniontown, Pennsylvania.16
Defendant listed on its website an advertisement for the bulldozer which
indicated the price was $68,000, that it was in used condition with 2,546 hours, that
it had a winch, and, inter alia, “ULTRA CLEAN UNIT, ORIGINAL HOURS.”17
Plaintiff sought to buy a bulldozer with a logging winch, and, upon noting from
Defendant’s website that Quarrick had several available models of bulldozer
appropriate for their business, Mr. First reached out to Mr. Porter.18
Mr. First visited the Quarrick facility to examine the several bulldozers under
consideration and brought a mechanic, John Stoltzfus (“Stoltzfus”), with him.19 Mr.
First and Stoltzfus did “some basic driving and testing” on the bulldozers
independently, but with Quarrick staff available for any problems or questions
during the inspection.20 During Mr. First’s inspection of the bulldozer, Mr. First and
Stoltzfus tested the winch in part, running the cable in and out and attempting to
maneuver it.21 Mr. First did not test the winch “under load,” meaning pulling
15 Doc. 31-3 (Porter Depo.) at 12:16-13:21.
16 Id. at 14:13-23, 15:6-16, 18:21-19:13.
17 Doc. 31-2 (PX 1).
18 Doc. 28-3 at 11:18-12:16.
19 Id. at 17:6-18.
20 Id. at 17:6-18, 24:8-22.
21 Id. at 40:3-14.
something heavy with the winch; Quarrick also did not have readily apparent any
logs or heavy items for testing the winch under load.22 Mr. First and Stoltzfus did
not examine the undercarriage of the bulldozer, but did note that the hours meter
read roughly 2500-2600 hours at the time of inspection.23
Mr. First and Stoltzfus examined the machines for about two hours, settling
on the bulldozer at issue here.24 In that process, Mr. First and Stoltzfus excluded
from consideration other bulldozers with defects, such as a poorly wound cable on
the winch or bad brakes.25
After determining that he wanted to purchase the bulldozer in question, Mr.
First began negotiating the price with Mr. Porter and planning for financing.26 They
agreed on the price of $67,000 for the bulldozer, based in part on the hours listed on
the hours meter of the bulldozer, and Mr. Porter sent Mr. First a corresponding
invoice.27 The invoice listed as one term out of many under the “description” header
that the bulldozer was “SOLD AS IS – NO WARRANTY.”28
There is a dispute regarding the discussion of the “as is” nature of the sale.
Plaintiff claims that receipt of the invoice was the first time Mr. First had been
22 Doc. 28-4 (Stoltzfus Depo.) at 25:12-22.
23 Doc. 28-3 at 45:23-46:6; Doc. 28-4 at 25:23-26:1.
24 Id. at 24:22-25:2.
25 Id. at 38:8-23.
26 Id. at 28:5-32:5.
27 Id. at 31:21-32:9.
28 Doc. 28-5. All the terms were in capital letters, not just the “as is” term.
informed that the bulldozer was being sold as is;29 Defendant asserts that, while Mr.
Porter does not recall having the conversation with Mr. First specifically, in almost
every negotiation with customers he discusses the warranty-free nature of the sale
over the phone before finalizing.30 Mr. First, after seeing the “as is” clause on the
invoice, called Mr. Porter, and asserts that Mr. Porter informed him that with the
low, original hours on the bulldozer, Mr. First did not need to worry about a warranty
and that he “stood behind [the bulldozer] if there was a problem.”31 For the purposes
of this motion, as Plaintiff is the nonmoving party, the Court will draw all inferences
in light most favorable to Plaintiff and construe the facts as it asserts them to be for
this issue, given that Plaintiff has provided sufficient evidence to raise a dispute.32
After Plaintiff purchased the bulldozer, it was delivered to the worksite and
Plaintiff began to use it for a logging job. Plaintiff attempted to use the bulldozer for
two weeks, where it worked only intermittingly and leaked fluid.33 Mr. First reached
out to Mr. Porter and attempted to receive troubleshooting advice or replacement
parts, and Mr. Porter worked with Mr. First for a time to do so until the relationship
deteriorated with the specter of litigation.34
29 Doc. 28-3 at 41:8-11.
30 Doc. 31-3 at 34:14-20.
31 Doc. 28-3 at 42:1-5.
32 Plaintiff has provided non-conclusory testimony in the form of Plaintiff’s deposition that this
phone call occurred, which is sufficient to raise a dispute of material fact on an issue. See
Cooper v. Pa. Dept. of Corrections, 756 F. App’x 130, 134 n.3 (3d Cir. 2018).
33 Doc. 28-4 (Stoltzfus Depo.) at 35:5-15.
34 Doc. 28-3 at 60:9-11.
Mr. First had the bulldozer taken to Five Star, a repair shop, (“Five Star”)
where mechanic Christian Mitchell (“Mitchell”) examined the machine. Mitchell
discovered significant damage and debris in the winch, noting that the winch was
not operable at all.35 Mitchell also found other damage to the machine, including
noting that the hours meter was defective and that the turbo water pump and two
undercarriage rollers should be replaced.36
Mitchell had no way of knowing when the winch became inoperable, noting
that improper care could lead to rapid deterioration of the machine within weeks.37
With this specific hour meter, Mitchell was not aware of any way to physically turn
the hours back to a lower number.38 Five Star also uncovered a warranty report from
John Deere in 2003 that listed the hours on the bulldozer as 3300.39
Defendant submits that the bulldozer was inspected by Quarrick prior to sale,
which included “a review of all oils, engine, drivetrain and all major functions
including the winch.”40 Matthew Quarrick (“Quarrick”), the owner of Quarrick’s
facility, asserts that the winch was operational at that time.41 Quarrick does not have
any records of the inspection, and Quarrick did not confirm that the winch was tested
35 Doc. 31-4 (Mitchell Depo.) at 14:17-23.
36 Id. at 36:7-10, 39:4-6.
37 Id. at 54:9-11.
38 Id. at 52:24-53:4.
39 Doc. 28-3 at 36:14-16; Doc. 31-4 at 38:14-16.
40 Doc. 28-1 (Quarrick Aff.) at 1-2.
41 Id.
“under load.”42 Plaintiff, on the other hand, asserts that the winch was defective
immediately after purchase, leaking fluid and, as noted, working only
intermittently.43
C. Analysis
Plaintiff brings three claims against Defendant arising out of the above facts:
fraud, breach of contract, and breach of warranty of fitness for a particular purpose.44
The Court addresses each in turn.
1. Fraud
First, Plaintiff brings a common law fraud claim against Defendant. Fraud
requires proof of the following elements: “‘(1) a misrepresentation or a concealment;
(2) which is material to the transaction at hand; (3) made with the knowledge of its
falsity or recklessness as to whether it is true or false (for a misrepresentation), or
calculated to deceive (for a concealment); (4) with the intent of misleading another
into relying on it; (5) justifiable reliance on the misrepresentation; and (6) a resulting
injury proximately caused by such reliance.’”45
Plaintiff makes no attempt to address these elements nor to establish which
theory of fraud it pursues.46 Regardless, Plaintiff’s fraud claim is barred by the
42 Docs. 30-2, 30-3, 30-4.
43 Doc. 28-3 at 43:18-23.
44 Doc. 1-2 at Counts I-III.
45 Team Biondi, LLC v. Navistar, Inc., 665 F. Supp. 3d 633, 644 (M.D. Pa. 2023) (Brann, J.)
(quoting in part SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 205 (3d Cir. 2022)).
46 Doc. 31 at 4-5. Indeed, Plaintiff’s entire opposition to summary judgment consists of just over
a page of argument without a single case citation. The Court has been forced to comb the
economic loss doctrine.47 This well-established Pennsylvania doctrine “‘prohibits
plaintiffs from recovering in tort economic losses to which their entitlement flows
only from a contract,’”48 including intentional misrepresentation claims and claims
based on fraudulent concealment or nondisclosure.49 Accordingly, Defendant’s
motion to dismiss Plaintiff’s fraud claim is granted with prejudice.50
record, largely without factual assertions from parties, in addition to determining the applicable
legal framework for each claim. The submissions for this case are disappointing, to say the
least. This is especially so where the Court expressly commented on the deficiencies in the
previous “summary judgment” motion, noting that “[p]arties are required to support their legal
motions with accurate legal authority.” Doc. 18 at 2 n.7. The Court considered deeming
Plaintiff’s opposition to summary judgment waived as insufficiently supported; however,
because of the glaring errors additionally present in Defendant’s submissions, declined to do
so.
47 See Team Biondi, LLC v. Navistar, Inc., 665 F. Supp. 3d 633, 645 (M.D. Pa. 2023) (Brann, J.);
Werwinski v. Ford Motor Co., 286 F.3d 661, 681 (3d Cir. 2002), abrogated on other grounds
by Earl v. NVR, Inc., 990 F.3d 310 (3d Cir. 2021).
48 Team Biondi, 665 F. Supp. 3d at 645 (quoting Duquesne Light Co. v. Westinghouse Elec.
Corp., 66 F.3d 604, 618 (3d Cir. 1995)).
49 Id.; see also Martin v. Ford Motor Co., 765 F. Supp. 2d 673, 684 (E.D. Pa. 2011) (“[T]he
economic loss doctrine applies to bar tort claims for purely economic loss even where plaintiff
alleges an intentional tort such as fraud, if the misrepresentation relates to the quality of the
good sold.”).
50 Additionally, even if the tort economic loss doctrine did not apply here, Plaintiff has not
provided sufficient evidence for a reasonable jury to find that Defendant made a
misrepresentation with knowledge or recklessness as to its falsity with the intent of misleading
another. Specifically, there is no evidence in the record that Defendant knew about the
defective winch or hours meter. While Plaintiff has found a 2003 John Deere warranty
indicating there were already over 3000 hours on the machine twenty years ago, Plaintiff has
presented no evidence that Defendant was or ought to have been aware of this warranty.
Moreover, while Plaintiff asserts that Defendant should have known the hours meter and winch
were faulty, Plaintiff also did not notice these defects upon inspection.
At most, Plaintiff has provided some evidence that Defendant was negligent in checking the
machine. However, “[t]he difference between negligent misrepresentation and fraud in
Pennsylvania is intent—in fraud, a statement must be made with actual knowledge or
recklessness (rather than negligence) as to its falsity.” Chaborek v. Allstate Fin. Servs., LLC,
254 F. Supp. 3d 748, 752 (E.D. Pa. 2017).
2. Implied Warranty
Plaintiff next brings a claim for breach of implied warranty of fitness for a
particular purpose. Such a claim requires that the seller had reason to know of the
buyer’s particular purpose at the time of contracting, that the buyer was relying on
the seller’s expertise, and the goods were defective, i.e., “not of a merchantable
quality or fit for their particular purpose.”51 “The Pennsylvania Supreme Court has
noted that, “[t]he concept of merchantability does not require that the goods be the
best quality, or the best obtainable, but it does require that they have an inherent
soundness which makes them suitable for the purpose for which they are designed,
that they may be free from significant defects, that they perform in the way that
goods of that kind should perform, and that they be of reasonable quality within
expected variations and for the ordinary purpose for which they are used.’”52 This
warranty arises by operation of law and need not be discussed prior to contracting.53
Here, Plaintiff has presented evidence to raise a genuine dispute of material
fact on the breach of implied warranty claim. Mr. Porter testified that he knew that
Mr. First intended to use the bulldozer for logging and that Mr. First needed “either
a winch or logging arches.”54 Based on that representation, Mr. Porter selected
51 Pineda v. Lake Consumer Prods., Inc., 812 F. Supp. 3d 493, 505-06; Team Bondi, 665 F. Supp.
3d at 642.
52 Pineda, 812 F. Supp. 3d at 506 (quoting in part Gall by Gall v. Allegheny Cnty. Health Dep’t,
521 Pa. 68 (1989)).
53 Team Bondi, 665 F. Supp. 3d at 642.
54 Doc. 31-3 at 49:1-10.
options to fit Mr. First’s needs, and it was from that more limited inventory that Mr.
First selected the bulldozer at issue.55 Therefore, Plaintiff has presented evidence
that Defendant knew of Plaintiff’s particular purpose, logging, and that Plaintiff was
relying in part on Defendant’s expertise in selecting the best bulldozer for that job.
There is a genuine dispute of material fact regarding whether the winch was
defective at the time of sale. The record is replete with conflicting testimony
regarding the winch’s quality. Stoltzfus testified that “[t]he winch didn’t work from
day one, the first day [they] got it” and that he could not utilize it for pulling logs
because the gears did not engage under load.56 The mechanic who then examined
the bulldozer, Mitchell, found several problems with the winch57 and hours meter58
and could not say when the problems began.59 On the other hand, an affidavit from
Quarrick asserts that the bulldozer was examined by Quarrick’s company before
sale, which encompassed an inspection of “all major functions including the winch,”
and that, at that time, “the winch was operational.”60 Accordingly, there remains a
55 Id. The Court notes that Comment 9 to 13 Pa. C.S.A. § 2316 indicates that, where the buyer
gave precise specifications as to the goods sought, there is no reliance and therefore no implied
warranty. At this point, it remains unclear exactly what communications were made between
Porter and First regarding the goods sought. Plaintiff has presented some evidence that Porter
selected wares for Plaintiff’s purposes, and Defendant has not raised Comment 9 as an issue
for summary judgment. However, it remains a genuine dispute of material fact as to how much,
if at all, Plaintiff relied on Defendant’s representations.
56 Doc. 28-4 at 15:9-16:11.
57 Doc. 31-4 at 14:17-23.
58 Id. at 35:1-9.
59 Id. at 15:20-25.
60 Doc. 28-2.
genuine dispute of material fact regarding whether the bulldozer was defective for
the particular purpose of logging, given that Defendant asserts the winch was
sufficiently operable for the job.61
However, 13 Pa. C.S.A. § 2316 provides two relevant situations where such a
warranty is inapplicable.62 “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.”63 Additionally,
“[w]hen 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.”64
Defendant asserts that, irrespective of the bulldozer’s quality at time of sale,
Plaintiff is barred from this claim because, first, Defendant disclaimed the implied
warranty through the “as is” provision on the invoice and, second, that Plaintiff
61 Additionally, it is undisputed that the hours meter did not accurately reflect the hours on the
bulldozer. However, there is no evidence on the record to conclude that a faulty hours meter
alone would render the bulldozer unfit for the particular purpose, that being logging, as is
required under this claim. Even if the dozer’s hour meter was reflective of its much higher
hours, that does not necessarily render it inoperable for logging if its winch had been operative.
Accordingly, the disputed fact for this claim is whether the winch was unfit for its purpose at
time of sale. However, the defective hours meter is relevant to the breach of contract claim.
62 § 2316.
63 § 2316(c)(1).
64 § 2316(c)(2).
examined the goods before purchase.65 Taking both arguments in turn, neither
supports granting Defendant’s motion for summary judgment.
a. § 2316(c)(1) – “As Is” Invoice Term
First, regarding the “as is” exception in § 2316(c)(1), Defendant cites correctly
that “as is” expressions may exclude implied warranties, but declines to note that the
circumstances of the deal must be consistent with a warranty disclaimer. Indeed,
§ 2316(c)(1) allows for “as is” to disclaim warranties “unless the circumstances
indicate otherwise.”66 In this case, Plaintiff has raised a genuine dispute of material
fact regarding the circumstances of this disclaimer.
Mr. First testified that, upon receipt of the invoice with the “as is” disclaimer,
he called Mr. Porter and Mr. Porter stated that Mr. First “didn’t really have to worry”
due to the low hours on the machine and that Defendant “stood behind [the machine]
if there was a problem.”67 Mr. Porter testified that he did not say anything of the sort,
and that the “as is” nature of the sale is something he discusses with “99%” of
customers during negotiation but does not recall specifically having that
conversation with Mr. First.68
65 Doc. 29 at 5.
66 § 2316(c)(1).
67 Doc. 28-3 at 42:1-4.
68 Doc. 31-3 at 34:14-25, 38:5-9 (“No, sir, that is not something I would say.”).
If this phone call proceeded as Plaintiff claims, then the circumstances could
render a warranty disclaimer unclear and ambiguous.69 Therefore, the “as is” term
alone is insufficient for the Court to grant summary judgment, as a reasonable jury
could find that the circumstances do not “make[] plain” that there is no implied
warranty.70
Additionally, under § 2316(a), express and implied warranties “shall be
construed wherever reasonable as consistent with each other” but warranty
disclaimers are “inoperative to the extent that such [conflicting] construction is
unreasonable.”71 In other words, “when otherwise valid disclaimers conflict with
existing express warranties, the disclaimers are deemed inoperative.”72 Here, there
are genuine disputes of fact regarding whether parties’ discussions of the hours meter
and quality of the winch constituted express warranties and whether Mr. Porter gave
an express warranty on the phone call by saying he stood by the machine if there
were problems. If so, then the inconsistent implied warranty disclaimer would be
read as inoperative.
69 Cf Team Biondi, 665 F. Supp. 3d at 642 (where a signed warranty form was clear in the
circumstances that the buyer purchased the goods “as is.”).
70 § 2316(c)(1).
71 § 2316(a).
72 Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 WL 5381381, at *5 (E.D. Pa. Nov. 2,
2012) (collecting cases); Morningstar v. Hallett, 858 A.2d 125, 131 (Pa. Super. Ct. 2004)
(finding that “the ‘as is’ clause is inconsistent with the express warranty created by the
description of the [product] as provided in the sales agreement.”).
Defendant repeatedly cites Team Biondi, LLC v. Navistar, Inc. to assert that
the “as is” clause should bar Plaintiff’s claim.73 However, the situation here is quite
different than that in Team Biondi; in Team Bondi, the plaintiff signed a separate
“‘Warranty Acceptance/Denial’ form acknowledging and accepting the [products]
‘as is,’” and the service contract expressly disclaimed implied warranties for other,
unlisted parts.74 Then, the plaintiff attempted to recover for costs of repair outside of
the warranty.
In contrast to Team Biondi, the invoice in this case listed “sold as is – no
warranty” as one of many terms in the description, without a separate form or
abundant attention-getting accoutrements like bold or underlined letters.75 When Mr.
First called Mr. Porter about it, Mr. Porter indicated that a warranty was not
necessary due to the low hours on the machine and that he stood behind it if there
was a problem.76 Moreover, unlike Team Biondi, the alleged deficiencies of the
bulldozer were things about which Mr. Porter had made express affirmations: the
73 Doc. 29 at 6-8; Biondi, 665 F. Supp. 3d 633, 642 (M.D. Pa. 2023) (Brann, J.).
74 Biondi, 665 F. Supp. 3d at 642.
75 Doc. 28-5. It is unclear whether this disclaimer was sufficiently conspicuous to exclude implied
warranties. See § 2316(c)(1) (allowing for disclaimer through language which “calls the
attention of the buyer to the exclusion of warranties and makes plain that there is no implied
warranty”) (emphasis added); see § 9316 Comment 4 (noting that, “[u]nlike the implied
warranty of merchantability, implied warranties of fitness for a particular purpose may be
excluded by general language, but only if it is in writing and conspicuous.”); Allen-Myland,
Inc. v. Garmin Intern., Inc., 140 A.3d 677, 688-89 (Pa. Super. Ct. 2016) (noting the UCC’s
definition of a conspicuous term is one “displayed or presented that a reasonable person against
which it is to operate ought to have noticed it;” that the question of whether a term is
conspicuous is a question for the jury; and that conspicuous terms include such terms greater
in size or contrast to terms around it.).
76 Doc. 28-3 at 42:1-5.
invoice lists “winch” as an attachment, and throughout negotiations and the original
advertisement it appears that Mr. Porter represented the hours as 2,546.77 A
reasonable jury could find that, under the circumstances, the “as is” term is
insufficiently clear to disclaim warranties regarding the hours meter and winch
previously discussed during the negotiation. Therefore, Plaintiff has raised genuine
disputes of material fact such that I cannot grant Defendant’s motion under
§ 2316(c)(1).
b. § 2316(c)(2) – Buyer Examination
Next, Defendant points to § 2316(c)(2), which provides that there is no
implied warranty where the buyer had an opportunity to examine the goods as fully
as desired and should have uncovered the defect. However, there remains a genuine
dispute of material fact regarding whether the defect should have been exposed by
Mr. First’s inspection. Under the Pennsylvania statute, an inspection precludes the
implied warranty “with regard to defects which an examination ought in the
circumstances to have revealed to [the buyer].”78 Comment 8 to § 2316(c)(2)
provides clarity for this exception:
Application of the doctrine of “caveat emptor” in all cases
where the buyer examines the goods regardless of
statements made by the seller is, however, rejected by this
Article. Thus, if the offer of examination is accompanied
77 Id. at 34:21-35:8.
78 § 2316 (c); see also Cove at St. Charles Condominium Ass’n v. JWest Corp., No. 329 WDA
2013, 2014 WL 10986167, at *5 (Pa. Super. Ct. Feb. 13, 2014); see also Ward v. Serfas, 387
Pa. Super. 425 (1989).
by words as to their merchantability or specific attributes
and the buyer indicates clearly that he is relying on those
words rather than on his examination, they give rise to an
“express” warranty. In such cases the question is one of
fact as to whether a warranty of merchantability has been
expressly incorporated in the agreement. Disclaimer of
such an express warranty is governed by subsection (1) of
the present section.
The particular buyer’s skill and the normal method of
examining goods in the circumstances determine what
defects are excluded by the examination. A failure to
notice defects which are obvious cannot excuse the buyer.
However, an examination under circumstances which do
not permit chemical or other testing of the goods would
not exclude defects which could be ascertained only by
such testing. Nor can latent defects be excluded by a
simple examination. A professional buyer examining a
product in his field will be held to have assumed the risk
as to all defects which a professional in the field ought to
observe, while a nonprofessional buyer will be held to
have assumed the risk only for such defects as a layman
might be expected to observe.79
This comment illuminates several disputed, factual issues regarding the
applicability of §2316(c)(2) to the instant case. First, there is a dispute whether
Defendant’s “offer of examination [was] accompanied by words as to [the
bulldozer’s] merchantability or specific attributes and [if Plaintiff] indicate[d]
clearly that he [wa]s relying on those words.” Mr. First testified that Mr. Porter
represented the machine had 2,546 hours, and that, at some point during the
negotiation, Mr. First asked Mr. Porter to verify that the machine did indeed have
79 § 2316(c)(2) Comment 8.
that many hours.80 To the extent that Mr. Porter made express representations to Mr.
First regarding the quality of the machine and Mr. First indicated he was relying on
those representations, those representations would become express warranties not
excludable under § 2316 (c)(2). The contents of the conversations between Mr. First
and Mr. Porter leading up to the sale remain disputed questions of fact, and,
therefore, it would be improper to grant Defendant’s summary judgment under
§ 2316(c)(2).
Moreover, it remains in dispute whether a reasonable inspection in the
circumstances presented would have revealed the defects by which Plaintiff is
aggrieved.81 Defendant asserts that Quarrick performed an inspection of the machine
and Plaintiff claims that Mr. First and Stoltzfus inspected the machine. Neither party
noticed the defects, but both claim the other should have.82 The mechanic Mitchell
testified that the underlying defect causing winch issues “would have been obvious
to anyone inspecting the bulldozer” and that symptoms of the winch’s defect could
have been apparent from testing it “under a load.”83 As such, there is a dispute of
80 Doc. 28-3 at 34:21-35:8. The deposition refers to emails and phone calls which were not
provided to the Court, and in this line indicates that Porter called First to discuss the hours
meter. It is unclear what Porter said when asked to verify that the machine had around 2500
hours.
81 I assume that the winch was indeed faulty at the time of sale, which I must at this stage given
that it is a reasonable inference based on Stoltzfus’s and Mitchell’s depositions. However,
whether the winch was faulty remains a disputed issue for all of Plaintiff’s claims.
82 Doc. 29 at 6-7 (“Any defects (of which there were none) that an examination should have
revealed are therefore not covered by an implied warranty”); Doc. 30 at 4 (“It seems obvious
that even a minimal inspection by a qualified technician would have revealed [defects]”).
83 Doc. 31-4 at 21:15-19; 40:7-13.
material fact regarding whether a reasonable inspection under the circumstances
should have revealed the winch and hours defects.
Additionally, the record indicates that Defendant did not provide Mr. First and
Stoltzfus any heavy objects to use to test the winch “under a load.”84 As Comment
8 explains, if the circumstances of the examination do not permit specific testing
necessary to reveal the disputed defect, then § 2316(c)(2) does not apply.85 It is
unclear from the record whether the defects could have only been revealed from
testing the bulldozer “under load” and whether such a test was permitted under the
circumstances.86
Accordingly, for a myriad of reasons, the record does not provide a basis
sufficient to determine that summary judgment is proper under § 2316(c)(2), as there
remain several genuine disputes of material fact surrounding the applicability of this
exception. Defendant’s motion is therefore denied as to Plaintiff’s breach of implied
warranty claim.
3. Express Warranty / Breach of Contract
Plaintiff’s last claim is for breach of contract. Summary judgment is
inappropriate on this claim, as there remain genuine disputes of material fact
84 Doc. 28-4 at 25:12-22.
85 § 2316 Comment 8.
86 This Court is unaware of the specific nuances involved in testing bulldozers. Perhaps it is
customary for the buyer to bring materials to test such machines under load, or for the seller to
supply them. Perhaps neither. The record does not make it clear either way.
regarding the agreed upon terms of the contract and whether Defendant breached
those terms.
“To prove a claim for breach of contract, a plaintiff must show that (1) a
contract existed between the parties, (2) the defendant breached a duty imposed by
that contract, and (3) the plaintiff suffered damages as a result.”87 “‘The existence
and terms of an oral contract must be established by clear and precise evidence.’”88
The parol evidence rule “does not bar the introduction of evidence to prove the
existence of an oral contract,” which is typically a “factual issue for the trier of
fact.”89 Summary judgment is appropriate in a contracts dispute where the terms of
the agreement are clear and unambiguous,90 while “[a]mbiguous contract terms
present a question for the jury.”91
Under Pennsylvania law, “[a]ny 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.”92 A statement made in advertising can become “the basis of the bargain
if the plaintiff can prove ‘that []he read, heard, saw or knew of the advertisement
87 Team Bondi, 665 F. Supp. 3d at 643.
88 York Excavating Co., Inc. v. Employers Ins. Of Wausau, 834 F. Supp. 733, 741 (M.D. Pa. 1993)
(quoting Redlick v. Kraft, Inc., 745 F. Supp. 296, 300 (E.D. Pa. 1990)).
89 York, 834 F. Supp. at 741.
90 Paul Revere Protective Life Ins. Co. v. Weis, 535 F. Supp. 379, 383 (E.D. Pa. 1981).
91 Brand Design Co., Inc. v. Rite Aid Corp., 623 F. Supp. 3d 526, 536 (E.D. Pa. 2022).
92 § 2313(a)(1); Pineda v. Lake Consumer Prods., Inc., 812 F. Supp. 3d 493, 505 (E.D. Pa. 2025).
containing the affirmation of facts or promise.’”93 Moreover, “as is” clauses cannot
disclaim an express warranty or material term of the agreement.94
First, the terms of the contract remain disputed. Contract negotiation in this
case was largely oral, without an integrated written agreement, and much of the
negotiation took place via text, email, and phone call.95 While those texts and emails
seem to have been produced in discovery and are referenced repeatedly in the
depositions, neither party provided those documents to the Court.96 Plaintiff claims
that Mr. Porter told Mr. First the machine had low hours and that he stood behind it
if there was a problem; Defendant disputes this.97
Plaintiff has submitted evidence from which a reasonable jury could conclude
that Defendant agreed to sell Plaintiff a bulldozer with 2,546 hours and a working
winch. The advertisement which drew Mr. First to Mr. Porter listed the machine as
having a winch and 2,546 hours.98 Additionally, Mr. First testified that Mr. Porter
represented to him that the machine had 2,550 or “low” hours in the negotiation.99
93 Pineda, 812 F. Supp. 3d at 505 (quoting Starks v. Colorplast Corp., 2014 WL 617130, at *6
(E.D. Pa. Feb. 18, 2024)).
94 See Silver v. Porsche of the Main Line, No. 1057 EDA 2014, 2015 WL 7424848, at *5 (Pa.
Super. Ct. Mar. 10, 2015) (citing Indus. Rayon Corp. v. Clifton Yarn Mills, Inc., 310 Pa. 322
(Pa. 1933) and Morningstar v. Hallett, 858 A.2d 125, 131 (Pa. Super. 2004)).
95 See, e.g., Doc. 28-3 at 16:6-21:1, 27:15-28:17; Doc. 31-3 at 25:18-21, 29:5-9, 34:14-20, 37:4-
38:9.
96 The failure to provide such documents would be surprising, as those documents are seemingly
the most on-point evidence of the contract at issue, but for the manner in which both parties
are conducting this litigation. Given the derelict submissions for both this and the prior motion,
the Court is disappointed but not surprised.
97 Doc. 28-3 at 42:3-5; Doc. 31-3 at 38:5-9.
98 Doc. 31-2.
99 Doc. 28-3 at 34:21-35:8; 41:24-42:5.
Moreover, to the extent that Mr. Porter did indeed make representations about the
machine’s hours or quality, such as saying that he stood behind it, those
representations could be express warranties and become part of the bargain.100
Additionally, assuming the contract’s terms were as Plaintiff asserts, there
remains a genuine dispute of material fact regarding whether Defendant breached
those terms. Specifically, as discussed above, the quality of the bulldozer at the time
of sale is in contention. Plaintiff asserts the winch did not work from the first day,
while Defendant asserts that Quarrick inspected the winch and found it working
before sale.101 The Court cannot rule that Defendant is entitled to judgment as a
matter of law as the record presents directly conflicting testimony about the
bulldozer’s quality at the time of sale.
Finally, Plaintiff has presented evidence for a jury to conclude that Plaintiff
incurred damages, even if the record indicates those damages were likely relatively
minimal. Mitchell’s testimony indicated repair costs of around $20,600 for all the
flaws in the bulldozer.102 Mr. First testified that there were additional losses for the
delays in having a working bulldozer for their project and for hauling the bulldozer
100 Alternatively, a jury could determine that such expressions were puffery statements. See
Kovalev v. Lidl US, LLC, 647 F. Supp. 3d 319, 342-43 (E.D. Pa. 2022) (noting that “affirmation
of value or statement of a seller’s opinion is otherwise known as puffery” and that “[t]ypically,
the finder of fact determines whether a statement qualifies as puffery, except in the unusual
case where the answer is so clear that it may be decided as a matter of law.”) (internal quotation
omitted). This is not a case where the record clearly indicates what statements were said, let
alone whether those statements were puffery or express warranties.
101 Doc. 28-4 at 15:9-16:11; Doc. 28-2.
102 Doc. 31-4 at 38:22-25.
to a mechanic shop.103 The question of exactly how much would be recoverable for
this breach of contract claim remains in dispute.104
Therefore, Plaintiff has presented sufficient evidence of each element of its
breach of contract claim to allow a reasonable factfinder to determine that its claim
is meritorious. Defendant’s only argument regarding the breach of contract claim is
that the equipment was sold “as is.” However, a seller cannot absolve themselves of
complete liability through an “as is” term where the issues sought to be disclaimed
stand in direct contrast to material terms of the agreement.105 The “as is” term does
not provide a bar to Plaintiff’s breach of contract claim, as a factfinder could
determine that the deficiencies at issue were in contrast to material terms or express
warranties.
Defendant has not established that summary judgment is appropriate for this
claim. There remain genuine disputes of material fact regarding the terms of the
103 Doc. 28-3 at 48:20-14, 47:21-25.
104 The Court is skeptical as to whether this complaint should have been brought in federal court,
given that the bulldozer itself cost less than $75,000. However, because Plaintiff brought a
facially validly pled fraud claim, and because the amount in controversy is determined at the
time of filing, the Court could not remand the remaining claims despite the seemingly very
minimal damages. See Anthony v. Nat’l Repub. Cong. Comm., No. 24-3052, 2025 WL
2741798, at *3 (3d Cir. Sept. 26, 2025) (citing Auto-Owners Ins. Co. v. Stevens & Ricci Inc.,
835 F. 3d 237, 244 (3d Cir. 2008)).
The Court also notes that, as the only remaining claims are those for breach of contract,
attorney’s fees awards are generally improper. See Alex v. Henry S. Conrey, Inc., 380 F. Supp.
1147, 1153 (E.D. Pa. 1974).
105 See Silver, 2015 WL 7424848, at *5; Morningstar, 858 A.2d at 131; see also § 2316(a), supra
notes 71-72. For instance, if a widget seller advertised “batch of 50 widgets, sold as is,” the
“as is” term could not render him immune from suit if what he delivered was less than 50
widgets or if the widgets indeed were not widgets at all but gadgets.
contract, whether Defendant breached those terms, and what the resulting damages
were. Defendant’s motion is therefore denied.
III. CONCLUSION
Defendant’s motion for summary judgment is granted as to Plaintiff’s fraud
claim but denied as to Plaintiff’s breach of contract and breach of implied warranty
of fitness for a particular purpose claims.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge