further asserts that he relied on the representations of Ciba's field representative, Mr. Robert Kirk, in selecting Dual 8E. Mr. Kirk failed to inform Brace of the limitations.
Brace contends that a limitation of consequential damages is unconscionable because the defect is latent, rendering the remedy illusory. See Stanley A. Klopp, Inc. v. John Deere Company, 510 F. Supp. 807 (E.D.Pa. 1981), aff'd, 676 F.2d 688 (3d Cir. 1982). See also Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3d Cir. 1970), cert. denied 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970); Majors v. Kalo Laboratories, Inc., 407 F. Supp. 20 (M.D. Ala. 1975).
We find that a limitation that is clear and conspicuous and one that a reasonable person would have noticed and understood is operational. See Hunter v. Texas Instruments Inc., 798 F.2d 299 (8th Cir. 1986). See also Arkwright-Boston v. Westinghouse Electric Corp., 844 F.2d 1174 (5th Cir. 1988); Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42 (1st Cir. 1984); Ford Motor Credit Co. v. Harper, 671 F.2d 1117 (8th Cir. 1982); Thermo King Corp. v. Strick Corp., 467 F. Supp. 75 (W.D.Pa. 1979), aff'd, 609 F.2d 503 (3d Cir. 1979). A limitation or disclaimer is conspicuous if "attention can reasonably be expected to be called to it." 1-201(10) Comment 10.
In this case, although the disclaimer does not appear on the box, it is part of the booklet attached to each container. The disclaimer appears in bold type on page 5 of the booklet, just after the table of contents and just above the directions for use. Brace testified that he had used Dual 8E before and had read the instructions. Brace Deposition at 30, 37-38, 97-98. The course of performance demonstrates that the plaintiff knew or should have known of the limitation. We conclude that the disclaimer was operational.
Section 2316 of the Pennsylvania Commercial Code provides that exclusions and limitations of warranty are enforceable where reasonable. See Lindemann v. Eli Lilly & Co., 816 F.2d 199 (5th Cir. 1987). See also Hill v. BASF Wyandotte Corp., 696 F.2d 287 (4th Cir. 1982). Section 2316 only "seeks to protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty." 13 Pa.C.S.A. § 2316, Comment 1. See Consolidated Data Terminals v. Applied Digital Data Systems, 708 F.2d 385 (9th Cir. 1983). See also Community Television Services v. Dresser Industries, 586 F.2d 637, 639-640 (6th Cir. 1978). Thus, Section 2316 only protects the buyer where the disclaimer is inconsistent with an express warranty description. Further Comment 2 to Section 2316 provides that "if no warranty exists, there is of course no problem of limiting remedies for breach of warranty." See Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 422 F.2d 1013 (9th Cir. 1970).
We evidence no language in the Ciba documentation that provides any express warranty and, therefore, the disclaimer is enforceable. Similarly, Brace provides no parol evidence that Mr. Kirk expressly warranted the success of Dual 8E and, therefore, the disclaimer is enforceable.
Brace contends that he can recover for breach of warranty because Section 2719 of the Pennsylvania Commercial Code allows the buyer to pursue his remedies under the Code where the exclusive remedy provided in the contract "fails of its essential purpose" or that the limitation or exclusion of consequential damages is unconscionable. See 13 Pa.C.S.A. § 2719, Comment 1. See also Posttape Assoc. v. Eastman Kodak Co., 537 F.2d 751 (3d Cir. 1976); Keystone Aeronautics Corp. v. R.J. Enstrom Corp., 499 F.2d 146 (3d Cir. 1974); Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3d Cir. 1970), cert. denied, 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970); Majors v. Kalo Laboratories, Inc., 407 F. Supp. 20 (M.D. Ala. 1975).
A remedy fails of its essential purpose where it deprives either party of the substantial value of the bargain. Comment 1 to Section 2719(3) states that a remedy limitation clause should be deleted on the grounds of unconscionability only when it fails to provide "minimum adequate remedies." See Transamerica Oil Corp. v. Lynes Inc., 723 F.2d 758 (10th Cir. 1983). This intent coincides with Section 2302's purpose of preventing "oppression and unfair surprise." See Hunter v. Texas Instruments, 798 F.2d 299 (8th Cir. 1986). See also Martin v. Joseph Harris Co., Inc., 767 F.2d 296 (6th Cir. 1985). (Disclaimer found unconscionable where cabbage seeds had black leg disease.)
However, Comment 3 to Section 2719 provides that "the seller in all cases is free to disclaim warranties in the manner provided in Section 2316." Thus, disclaimers valid under Section 2316 would be valid under 2719. The resulting analysis is academic. There can be no breach where the warranty has been disclaimed pursuant to Section 2316 and no consequential damages where there is no breach. See Arkwright-Boston v. Westinghouse Electric Corp., 844 F.2d 1174 (5th Cir. 1988). See also FMC Finance v. Murphree, 632 F.2d 413, 419-420 (5th Cir. 1980). In this case, Ciba effectively disclaimed liability for consequential damages.
Second, Ciba asserts that Section 402(A) of the Restatement (Second) of Torts does not provide a remedy for economic loss. See East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986). Brace asserts that East River applies only when the product injures itself and in this case Brace seeks recovery for damages to the potato crop. See King v. Hilton Davis, 855 F.2d 1047 (3d Cir. 1988) cert. denied 488 U.S. 1030, 109 S. Ct. 839, 57 U.S.L.W. 3471, 102 L. Ed. 2d 971 (1989).
We find that this is a contracts cause of action as envisioned by East River. The Court stated:
But either way, since by definition no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident-like event, the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain -- traditionally the core concern of contract law.