The opinion of the court was delivered by: McCLURE, District Judge.
Plaintiff Technographics, Inc. filed this action on June 19,
1989, alleging that defendant Mercer Corporation ("Mercer")
sold a defective coating machine to it in October of 1987.
Technographics contends that the machine was negligently
designed and manufactured, and that the sale of the machine
violated the implied warranties of fitness of purpose and
merchantability. Technographics maintains that the defendant
is liable to it for consequential and incidental damages
resulting from its purchase of the allegedly defective coating
machine from defendant.
Mercer does not dispute that the machine failed to function
properly after being installed. In fact, after several
unsuccessful attempts to repair the machine, plaintiff
returned the machine to the defendant and defendant refunded
the purchase price to plaintiff.
On June 28, 1991, Mercer filed a motion for summary judgment
along with a supporting brief and a statement of undisputed
material facts. Mercer also submitted, with exhibits, the
depositions of the following individuals: Donald R. Mercer,
founder and president of Mercer; Scott Allan Mercer; vice
president of sales for Mercer; James P. Thomas, former
district sales manager for Mercer; William T. Williams, plant
supervisor for Fitchburg CPI, a subsidiary of Technographics,
and Ronald B. Smith, purchasing agent for Technographics.
Believing the motion to be unopposed, the court prematurely
granted summary judgment in favor of Mercer. However, in
compliance with a court-ordered extension, Technographics
filed a brief in opposition to the motion on July 29, 1991.
Accordingly, the court vacated the order granting summary
judgment, and will now consider the merits of the motion.
Summary judgment is appropriate only when there is no
genuine issue of material fact to be resolved. Fed.R.Civ.P.
56. All doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. The
entire record must be examined in a light most favorable to
the non-moving party. Continental Insurance v. Bodie,
682 F.2d 436, 438 (3d Cir. 1982). If there is no genuine issue of
material fact, summary judgment may be granted to the party
entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c).
Since a motion for summary judgment is designed to go beyond
the pleadings, factual specificity is required of a party who
opposes such a motion. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).
Accordingly, in order to defeat a properly supported motion for
summary judgment, a party may not merely restate the
allegations of his complaint. Farmer v. Carlson, 685 F. Supp. 1335,
1339 (M.D.Pa. 1988). Nor can a party rely on self-serving
conclusions, unsupported by specific facts in the record.
Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23, 106 S.Ct.
at 2552-53, 91 L.Ed.2d at 273. A non-moving party must point to
concrete evidence in the record which supports each essential
element of his case. Id. If the party fails to provide such
evidence, then he is not entitled to a trial and the
moving-party is entitled to summary judgment as a matter of
law. Fed.R.Civ.P. 56(e).
In the instant case, there is no dispute as to the material
facts. The central question before the court is whether the
agreement between the parties for the purchase of the coating
machine was governed by the terms of Mercer's original
quotation or by the terms of Technographics' subsequent
purchase order. As in many cases dealing with the sale of
goods, and consequently the Uniform Commercial Code
("U.C.C."), both the original quotation and the purchase order
contain a plethora of boiler plate language intended to
protect the parties in the event of a dispute. Also, as in
many cases dealing with the U.C.C., the language contained in
each form is essentially contradictory.
Mercer's original quotation specifically negates implied
warranties of purpose and merchantability and claims for
consequential damages. It also provides that the terms of the
quotation may only be altered by a written instrument signed
by an officer of the Mercer Corporation. Contrastingly,
Technographics' subsequent purchase order creates implied
warranties of purpose and merchantability and does not negate
Mercer contends that the agreement between the parties is
governed by the terms of the original quotation. It argues
that under the U.C.C. the additional and different terms of
the subsequent purchase order never became part of the
contract between the parties. See 13 Pa. C.S.A. § 2207
(subsequent additional terms are to be construed only as
proposals for addition to the contract if: 1) the offer
expressly limits acceptance to the terms of the offer; or 2)
the additional terms material alter the contract); Universal
Plumbing and Piping Supply, Inc. v. John C. Grimberg Company,
Inc., 596 F. Supp. 1383 (W.D.Pa. 1984) (an arbitration provision
on the back of a purchase order was an offer of an additional
term and did not become part of the contract because the
original offer expressly restricted acceptance to its terms and
also because the additional term materially altered the
contract). However, this would only be true if Technographics'
actions following the receipt of Mercer's original quotation
formed a contract between the parties. Unfortunately for
Mercer, it took one too many steps in its efforts to protect
The original quotation, dated October 15, 1987, provides in
part, "[i]t is understood and agreed that the contract between
the Buyer and the Company was made in Hendersonville, Sumner
County, Tennessee, upon acceptance by the Company, Mercer
Corporation and by its properly authorized representatives."
This is known as a home office acceptance clause. Such a
clause precludes the formation of a contract except upon
approval by the relevant home office. West Penn Power Co. v.
Bethlehem Steel Corp., 236 Pa. Super. 413, 426-27, 348 A.2d 144,
152 (1975). Thus, the inclusion of this home office acceptance
clause was intended to and did, in fact, make it impossible for
Technographics to create a binding contract by accepting