limitations governing contract actions and, that General Instrument could not be held responsible for any acts of Jerrold Electronics. Closed-Circuit Corporation of America v. General Instrument Corporation, C.A. No. 74 C 3472 (N.D.Ill., filed October 15, 1975).
Although mere non-performance of a contract does not constitute a fraud, Hubert v. May, 292 F.2d 239, 243 (7th Cir. 1961), it is possible that a breach of contract also gives rise to an actionable tort. See Brown v. Moore, 247 F.2d 711, 716 n.6 (3d Cir.) cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957); see also General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204 (8th Cir. 1973), cert. denied, 414 U.S. 1162, 94 S. Ct. 926, 39 L. Ed. 2d 116 (1974). "To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral." 1 C.J.S. Actions § 46. Therefore, to the extent that Closed-Circuit's losses stemmed from the manufacture and design of the equipment by Jerrold, the claim is barred by the statute of limitations because Closed-Circuit became aware of the deficiencies as early as March of 1970. Closed-Circuit's characterization of Jerrold's conduct as "calculated and deliberate" cannot alter this result. A claim ex contractu cannot be converted to one in tort simply by alleging that the conduct in question was wantonly done. Gibson v. Greyhound Bus Lines, Inc., 409 F. Supp. 321 (M.D.Fla.1976); see also Nirdlinger v. American District Telegraph Co., 245 Pa. 453, 462, 91 A. 883 (1914); and, Damian v. Hernon, 102 Pa.Super. 539, 542, 157 A. 520 (1931).
But where the nature of the duty violated arises not from the contract but from the principle of fair dealing, an action based thereon sounds in tort. See Mac Andrews & Forbes Co. v. American Barmag Corp., 339 F. Supp. 1401 (D.S.C.1972); Mayo v. McCloskey & Co., 168 F. Supp. 241 (E.D. Pa.1958).
Closed-Circuit argues that defendant's conduct amounted to a "fraudulent scheme" and contends that defendant's representations as to the design, engineering and manufacture of its equipment were false, thus giving rise to an action for fraudulent representation. Jerrold, on the other hand, contends that Closed-Circuit placed a "fraud" label on what is essentially a cause of action for breach of contract in order to avoid the statute of limitations.
My analysis of the pleadings, affidavits and exhibits submitted by the parties convinces me that the allegations and the proof can rise no higher than that the defendant failed to comply with the contract specifications. Closed-Circuit cannot remove the transactions from the ambit of the Commercial Code to the area of tortious conduct simply by making general allegations of fraud. See Investors Premium Corp. v. Burroughs Corp., 389 F. Supp. 39, 45-46 (D.S.C.1974); James Spear Stove & Heating Co. v. General Electric Co., 12 F. Supp. 977 (E.D.Pa.1934), aff'd, 80 F.2d 1012 (3d Cir. 1935).
In essence, plaintiff's second amended complaint alleges: a) ". . . plaintiff . . . on or about the 10th day of April, 1969 . . . purchased from the defendant certain closed-circuit electronic equipment for installation in systems" in California and Nevada (para. 5); ". . . plaintiff relied upon the defendant's claims that the equipment was designed and would work for the purposes intended" (para. 6); that said equipment "did not function as promised" and was "defective" (para. 7); b) ". . . as a result of said defective and faulty equipment, plaintiff would cause to lose business accounts and its high reputation for service . . ." (para. 12); c) ". . . the faulty aforementioned electronic equipment broke down in the field, and did not function according to specifications" (para. 13).
These allegations present a typical claim for breach of the Uniform Commercial Code warranties of merchantability and fitness for a particular purpose. Nevertheless, the plaintiff has attempted to transform the claim into an action for fraud by inserting the word "fraudulently" in paragraphs 7 and 13, and the phrase "fraudulent acts" in paragraph 11, and thereby avoid the bar of the statute of limitations which contributed to the demise of the plaintiff's suit in the Northern District of Illinois. Such broad general allegations are insufficient as a matter of law. As the Court stated in Hertz Commercial Leasing Corp. v. LMC Data, Inc., 73 Misc.2d 1009, 343 N.Y.S.2d 689 (1973):
"If a party could simply, by alleging that a contracting party never intended to fulfill his promise, create a tortious action in fraud, there would be no effective way of preventing almost every contract case from being converted to a tort for jurisdictional purposes."
The only specific allegation of fraud is that Jerrold wilfully misrepresented that certain equipment had "FCC type acceptance" prior to the sale when, in fact, such acceptance was not extended by the FCC until February of 1970.
The tort of fraudulent misrepresentation comprises several elements including the making of a representation which is false by one who knows the falsity of the statement or fact and, thereby intends to deceive another so as to induce action on the other's part which will be to his detriment. United Insurance Company of America v. B. W. Rudy, Inc., 42 F.R.D. 398, 403 (E.D.Pa.1967). Here, the alleged misrepresentation appears in a Jerrold advertising manual or "printed catalogue sheet" which states: "the SRT-1 Transmitter has been type accepted by the Federal Communications Commission (FCC) for transmission of both monochrome and color. Each unit meets or exceeds FCC specifications."
The most that can be said of this representation, however, is that it was premature since plaintiff concedes that the equipment was eventually given FCC type acceptance.
Had plaintiff been prepared to prove that the equipment could not obtain FCC type acceptance, then the fraud claim would have some substance. Compare Barrett Roofing & Supply Co. v. Ross, 131 F. Supp. 348 (D.Mass.1955) with James Spear Stove & Heating Co. v. General Electric Co., supra. Under the circumstances presented here, I am satisfied that the representation concerning type acceptance by FCC is not material and will not sustain an action for fraud.
Therefore, plaintiff's action is reduced to a claim for the sale of defective merchandise. The sale took place in April, 1969 and plaintiff became aware of the defects in March, 1970.
The original complaint was filed on December 4, 1975. It is obvious, therefore, that this action is time barred by the four year limitation of the Uniform Commercial Code (12A P.S. § 2-725).
The statute of limitations is an affirmative defense. Fed.R.Civ.P. 8(c). However, the defense may be raised by a motion to dismiss under Rule 12(b)(6), Jones v. Rogers Memorial Hosp., 143 U.S.App.D.C. 51, 442 F.2d 773 (1971), and since matters outside the pleadings were presented to the court, I have treated this motion as a motion for summary judgment under Rule 56.
Accordingly, summary judgment will be entered in favor of the defendant and against the plaintiff.