The opinion of the court was delivered by: WEBER
This case involves a clause in a contract of sale for a large electrical motor manufactured by Defendant Allis-Chalmers and sold by Defendant Fischbach and Moore to Plaintiff Cyclops Corporation.
The plaintiff's claim here is against the manufacturer and selling agency and is almost entirely for lost profits incurred during the time that the motor was out of service being repaired with a small claim for "direct charges, freight, removal reinstallation, etc." The claim against both manufacturer and distributor is based on the sale of a defective product in breach of warranty, against the distributor it is asserted as breach of contract and against the manufacturer it is based on negligence.
We have previously determined another claim arising out of the same incident involving the nature of the damage suffered from the event. See Cyclops v. Home Insurance Company et al., 352 F. Supp. 931 (W.D.Pa.1973).
The defendants have jointly moved for Summary Judgment on the grounds that the written provisions of the sales documents explicitly exclude liability for consequential damages.
There has been very extensive discovery, production of documents, interrogatories, depositions and requests for admissions as to documents in this case, much of which we now find immaterial to the disposition of the controlling question before us. The parties have been afforded a full exploration of all relevant evidence. As to the controlling question we are convinced that there is no genuine issue of material fact.
The pertinent contract provisions read as follows:
"Company's liability to Purchaser whether in contract or in tort arising out of warranties, representations, instructions, or defects from any cause, shall be limited exclusively to correcting the equipment and under the conditions as aforesaid."
"Company shall not in any event be liable for indirect, special, consequential or liquidated damages or penalties."
The Company shall in no event be liable for indirect, special, or consequential damages."
We omit the provisions in the contract documents pertaining to the exclusions of implied warranties and the waiver of statutory warranties because we believe that the sole controlling question is the limitation of damage clauses and their effect under Sec. 2-719 of the Uniform Commercial Code, and not the express or implied warranties under Secs. 2-313 to 2-316 of the Uniform Commercial Code.
The above recitals are contained in Motion Exhibit 4 which is a Proposal and Contract, No. IS-2255, dated November 23, 1965 from Allis-Chalmers to Fischbach and Moore, which was transmitted to Cyclops by Fischbach and Moore with a letter stating that the motor supplied would be in accordance with Allis-Chalmers specification and warranty. This proposal was accepted by Cyclops in their purchase order No. 4766, dated December 15, 1965 confirming its order for the equipment as specified in Allis-Chalmers Specification IS-2255.