The opinion of the court was delivered by: LORD, III
In this action based on diversity jurisdiction, Fidelity Leasing Corporation ("Fidelity") has brought suit against Dun & Bradstreet alleging that a business loss it incurred was the result of negligence, gross negligence, recklessness and breach of contract by the defendant. The defendant has moved for summary judgment.
Plaintiff is a small Pennsylvania corporation that provides business loans and as a lessor leases business equipment on a lease-purchase basis. Defendant is a large mercantile agency (credit reporting agency) that contracts to supply credit information to subscribers. Plaintiff is a subscriber to defendant's services. In 1976 Fidelity began doing business with Brute of Pennsylvania, a manufacturer of business equipment. Brute occasionally referred potential customers for equipment leases to Fidelity. In late 1976 or early 1977 Brute contacted Fidelity about a possible equipment-lease arrangement with Intercontinental Consulting Corporation ("Intercontinental"). Perlmutter Deposition at 22. On plaintiff's request, Intercontinental sent it an uncertified financial report. Although the date is uncertain, in late December, 1976, or January, 1977, Fidelity contacted Dun & Bradstreet for a report on Intercontinental and was read a November 29, 1976 report over the phone. This report was then forwarded by mail to Fidelity. Defendant's report, submitted by it with the motion for summary judgment, reported substantially the same figures to the plaintiff that the latter had gotten directly from Intercontinental. Perlmutter Deposition at 43. Fidelity claims that on the basis of the Dun & Bradstreet report, sometime in February, 1977, Perlmutter Deposition at 33, it entered into a contract for $ 18,939.84 with Intercontinental for the lease-sale of high pressure steam cleaners. According to the complaint, Intercontinental made monthly payments until October, 1978, at which time all payments ceased and Fidelity sustained a loss of $ 11,442.82 on the contract.
Sometime after the contract between Fidelity and Intercontinental was entered into, Fidelity says it learned that the principals of Brute and Intercontinental were the same, operating under various aliases. Intercontinental, it was revealed, was a sham organization with no active business activities. The principals of Brute and Intercontinental were subsequently indicted, convicted and sentenced to jail terms. Perlmutter Deposition at 12-14. Fidelity, still owed nearly $ 12,000.00 has sued Dun & Bradstreet claiming tort and contract injuries.
On a motion for summary judgment, Rule 56(c), Fed.R.Civ.P., the defendant must show that on the record as submitted including the pleadings, depositions, answers to interrogatories, admissions and affidavits, there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. The record is liberally construed in favor of the party opposing the motion, and all doubts are resolved against the movant. The role of the court is only to determine whether there is an issue of fact to be decided, not to decide the factual issue. Indeed, the barest admissible evidence in opposition to the motion is a basis for denying the motion. Remak v. Quinn, 611 F.2d 36 (3d Cir. 1979).
Fidelity has alleged that Dun & Bradstreet's negligence, gross negligence and recklessness have caused it to suffer a business loss. The subscription contract between the plaintiff and the defendant includes the following exculpatory provision:
Because of the large number of informational sources upon which Dun & Bradstreet, Inc. must reply (sic), and over which Dun & Bradstreet, Inc. has no control, the subscriber acknowledges that Dun & Bradstreet, Inc. does not and cannot guarantee the correctness or completeness of information furnished. Such information is to be considered a complete and current response according to Dun & Bradstreet, Inc.'s procedures. Such responses usually are not the product of independent investigation prompted by each subscriber inquiry. It is further understood by the subscriber that every decision to extend credit constitutes, in some degree or another, the assumption of a business risk, and that Dun & Bradstreet, Inc., in furnishing information, does not and cannot underwrite the subscriber's risk, in any manner whatsoever. Dun & Bradstreet, Inc., therefore, shall not be liable for any loss or injury caused in whole or in part, either by its negligent acts of omission or commission or that of its officers, agents or employees or by contingencies beyond its control, in procuring, compiling, collecting, interpreting, reporting, communicating or delivering information, including, but not limited to Responses to Inquiry, Reference Books, Apparel Trades Books and/or Directories.
Terms of Agreement, P 3, Defendant's Exhibit A.
In this diversity suit Pennsylvania law is to be applied, and Pennsylvania courts have uniformly honored contract clauses where entered into freely, so long as they do not contravene public policy. Galligan v. Arovitch, 421 Pa. 301, 304, 219 A.2d 463, 465 (1966) ("(A) covenant against liability for acts of negligence is valid and enforceable when entered into by private individuals in furtherance of their personal affairs."); Richard's 5 & 10, Inc. v. Brooks Harvey Realty Investors, 264 Pa.Super.384, 399 A.2d 1103 (1979). The contract between Fidelity and Dun & Bradstreet was entered into freely by parties concerning their private affairs and is not an adhesion contract.
Moreover, Lawrence Perlmutter, president and co-shareholder of Fidelity, responsible for the transactions with Dun & Bradstreet, is not an inexperienced business person.
I find the clause to be valid and enforceable, and the plaintiff therefore cannot assert a claim for damages based on defendant's negligence.
B. Ordinary v. Gross Negligence
It is also a long-standing principle of Pennsylvania law that contracts that eliminate a party's liability for negligence, are not favored, Crew v. Bradstreet Co., 134 Pa. 161, 169, 19 A. 500 (1890); Fidelity Bank v. Tiernan, 249 Pa.Super. 216, 375 A.2d 1320 (1977) (citing Crew ), and therefore are strictly construed. Galligan, 421 Pa. at 303, 219 A.2d 463; Crew v. Bradstreet Co., supra. The Pennsylvania Supreme Court has instructed that contracts that limit liability for violation of otherwise legally protected rights "must spell out with the utmost particularity the intention of the parties." Galligan, 421 Pa. at 303, 219 A.2d at 465. The extent to which the Supreme Court of Pennsylvania will go in narrowly construing such clauses in a business context is apparent in Crew v. Bradstreet Co. In that case the clause exculpated the company's officers and agents for their negligence without specifically exculpating the company for its own negligence. The fault in that case was attributable to a company typist. On the theory that the negligence was therefore of the company itself, the Pennsylvania Supreme Court held that the exculpatory clause was inapplicable.
The exculpatory clause at issue in this case speaks to the negligent acts of the defendant or its officers, agents or employees. The question is whether this clause exculpates the defendant ...