that its product would produce the desired results and that the Sammaks relied upon these assurances in placing their purchase order.
There is also some dispute as to exactly what the "performance guarantee" was. Was it an express warranty? Is it a separate guarantee of performance? Plaintiff does not claim that the equipment was defective but rather contends that the equipment was incapable of performing to the level defendant claimed it would. The standard warranty would probably cover defects in manufacturing but whether it was intended to cover the performance guarantee is unclear. Again, these are mixed issues of fact and law which cannot be resolved at this stage. Therefore, I will not grant this aspect of defendant's motion.
Defendant also contends that as a matter of law, plaintiff is not entitled to recover damages for loss of good will or loss of future profits. I will examine these contentions in seriatim.
In paragraph 18 of its complaint, plaintiff alleges that it has sustained damages in excess of three million ($3,000,000) dollars, including incidental and consequential damages. Under Pennsylvania law, plaintiff may not recover for the loss of good will or customer satisfaction. Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Harry Rubin & Sons, Inc. v. Consolidated Pipe Co. of America, 396 Pa. 506, 153 A.2d 472 (1959). Defendant contends therefore that it is entitled to judgment as to plaintiff's claim for loss of good will and that plaintiff should be precluded from introduction of any evidence as to this issue. Plaintiff, in its response to the motion for summary judgment, does not address the issue of loss of good will at all. I agree with defendant's position and will therefore dismiss plaintiff's claim for loss of good will damages.
Defendant also asserts that plaintiff's claim for loss of future profits or future economic damages is speculative as a matter of law because plaintiff was a new and untried corporate entity at the time of the alleged breach giving rise to the damages sought. In support of its position that profits of a new and untried business are too speculative to provide a basis for an award of damages, defendant cites Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1970). The Exton court concluded that anticipated profits were too speculative to support an award of damages, but the court carefully limited its holding to the facts of the case. "Under the circumstances of this case, we hold that the anticipated profits of a new and untried business which were attributable solely to the unfinished condition of the business premises were too speculative to provide a basis for an award of damages. Exton, 261 A.2d at 324. Exton arose out of the failure of a contractor to complete the grading and paving of a site for a drive-in motion picture theater within the contracted time period. The court concluded in part that the damages were too speculative because at the time of the completion of the paving work, the movie screen had still not been erected.
More recently in Merion Spring Co. v. Muelles Hnos. Garcia Torres, 315 Pa. Super. 469, 462 A.2d 686 (1983), the court concluded that there have been no Pennsylvania cases in which it has been held that new businesses cannot as a matter of law submit sufficient evidence to obtain an award for lost profits. The court noted that it is often very difficult for a new business to obtain such proof and what is often presented is far too speculative to support an award of damages for future lost profits, but the party seeking the damages should be given an opportunity to present the available evidence. In Exton, the certainty barrier was simply an "insurmountable barrier" which precluded an award for lost anticipated profits.
I believe that Merion Spring Co. suggests the proper approach in cases of this kind. While defendant is correct that plaintiff will have a very difficult path to hoe to establish its claim for damages to lost future profits, I cannot hold as a matter of law that its claim for these damages should be dismissed.
An appropriate order follows.
NOW, December 16, 1985, upon consideration of defendant's motion for summary judgment or in the alternative for partial judgment, plaintiff's response thereto, the memoranda of law submitted by the parties, and for the reasons stated in the accompanying memorandum, IT IS ORDERED that
1. Defendant's motion for partial summary judgment is GRANTED IN PART.
2. Judgment is entered in favor of defendant and against plaintiff as to the claim for loss of good will damages.
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