460 A.2d 343 (Pa. Super. 1983), for the proposition that a promissory estoppel theory can be maintained despite an apparent statute of frauds bar when the party asserting the statute of frauds defense has waived the defense. H.B. Alexander & Son involved a contractor and supplier in a construction project. The supplier, by telephone, quoted a price for goods needed by the contractor. The contractor then used the price in its bid for the project. After the contractor was awarded the project, it sent a written order to the supplier in accordance with the price quotation. Forty days later the supplier notified the contractor that its quotation was merely an estimate. Under those facts, the Superior Court of Pennsylvania held that the conduct and course of dealings of the parties resulted in waiver of the UCC statute of frauds provisions. Id. at 345. The court relied on testimony given during the trial, which indicated that "the usual manner of conducting business between general contractor and subcontractors and suppliers is based upon oral bids received over telephone, often within hours of the time when the general contractor will submit a bid to the owner or developer." Id.
Plaintiff alleges in its complaint that "it is the practice in the industry of making boxes for Valentine's Day candies that orders are placed approximately fifteen (15) months in advance of when the boxes are to be sold." (Complaint at P 7.) Plaintiff further alleges that there was an agreement, which was recognized by both parties, by the telephone conversation of February 16, 1993, which was further confirmed by the issuance of purchase order numbers. (Complaint at P 24.) These allegations provide a sufficient basis for denying defendant's motion to dismiss.
Defendant, in its reply to plaintiff's response to the motion to dismiss provides four reasons to support its view that "plaintiff's reliance on waiver is without legal merit." (Reply to Pl.'s Resp. at 2.) First, defendant argues that because plaintiff's complaint does not mention waiver, the claim cannot be raised now in response to a statute of frauds defense. Although this argument might have superficial appeal, it is without merit. On a motion to dismiss, I must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Plaintiff has alleged facts in the complaint that reveal that a course of dealings between the parties existed. Plaintiff need not expressly state that this course of dealings constituted waiver.
No cases were brought to my attention regarding the raising of waiver of the statute of frauds in response to a motion to dismiss based on the statute of frauds. Courts, however, have dealt with analogous situations involving the running of the statute of limitations. Like a statute of frauds defense, a statute of limitations defense is an affirmative defense under Federal Rule of Civil Procedure 8(c). Therefore, a statute of limitations defense, like a statute of frauds defense, may be raised by a motion to dismiss if the defect appears on the face of the pleading. See Hanna v. United States Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975); Gee v. CBS, Inc., 471 F. Supp. 600 (E.D. Pa. 1979), aff'd mem., 612 F.2d 572 (3d Cir. 1979). The Third Circuit has ruled that when a motion to dismiss is advanced on the ground that it is barred by the statute of limitations, "the question to be answered thus becomes whether the assertions of the complaint, given the required broad sweep, would permit adduction of proofs that would provide a recognized legal basis for avoiding the statutory bar. " Leone v. Aetna Casualty & Surety Co., 599 F.2d 566, 567 (3d Cir. 1979) (emphasis added). Thus, plaintiff's complaint need not specifically plead an exception to a statute of frauds bar, but it must permit me to conclude that plaintiff has alleged facts such that it could potentially prove that an exception to the statute's bar existed. Applying this standard in the instant case leads me to conclude that the complaint, liberally read, contains sufficient allegations that defendant has waived the statute of frauds defense to avoid dismissal. Because waiver is a recognized exception to the Pennsylvania UCC statute of frauds provisions, the motion to dismiss will be denied.
Second, defendant argues that waiver, through a course of dealing, "should not become a judicially-created exception to the present  statutory exceptions specified in the UCC." (Reply to Pl.'s Resp. at 5.) Even though defendant makes a compelling argument for limiting the exceptions to the express statutory exceptions of the statute of frauds bar, I am reluctant to second guess the Superior Court of Pennsylvania's analysis in H.B. Alexander & Son.
Defendant has not offered any "persuasive data" that would indicate, at least to me, that the Supreme Court of Pennsylvania would decide otherwise. See Fisher, 973 F.2d at 1105.
Third, defendant asserts that even if waiver were an exception to the UCC's statute of fraud provisions, it does not apply in this case. Defendant attempts to distinguish H.B. Alexander & Son from the present action. Defendant stresses that subcontractor price quotations are made under extreme time pressure, i.e., a matter of hours, while the time pressure involved in this case was a matter of months. This argument is better left for trial or a summary judgment motion, when defendant can then attempt to argue that after considering all the facts, plaintiff has failed to support its contention that defendant has waived the statute of frauds defense. In the context of this motion to dismiss, plaintiff has succeeded in stating a claim, even though, hypothetically, plaintiff may eventually be unable to prove that the waiver exception applies in this case.
Last, defendant maintains that even if waiver could be considered an exception to the statute of frauds, this exception would only apply to count III and not count IV.
Defendant contends that count IV should be dismissed because plaintiff has not established a "course of dealing" for the alleged February 24, 1993 agreement. Defendant argues that because no purchase order numbers were ever communicated for the alleged February 24, 1993 agreement, defendant did not, and could not, conform to any "course of dealing" as to this claim. Again, plaintiff alleges that the practice in the industry, in addition to the dealings between the parties constituted a waiver of the statute of frauds. (Complaint at PP 7, 24.) Plaintiff does not rely exclusively on the issuance of purchase order numbers. Because there are sufficient allegations contained in the complaint to withstand this motion to dismiss, counts III and IV of plaintiff's complaint will remain and defendant's motion to dismiss as to those counts will be denied.
D. Loss of Business Opportunity
Count V of plaintiff's complaint attempts to state a claim for "loss of business opportunity." Atlantic alleges that as a "direct and proximate result" of defendant's actions, Atlantic suffered an "immediate and irreparable diminution of value," which caused a potential buyer of Atlantic to withdraw its offer to purchase Atlantic. (Complaint at PP 55-57.) Plaintiff is seeking damages in the amount of at least $ 1,025,000.00. Defendant argues that this count should be dismissed because it is an attempt by a seller to collect consequential damages, which are barred under the UCC.
Section 1-106 of the UCC provides that remedies are to be liberally administrated such that "the aggrieved party may be put in as good position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this title or by other rule of law. " 13 Pa. Cons. Stat. Ann § 1106 (emphasis added). Comment 3 to this section states that consequential damages "are not defined in the Code, but are used in the sense given them by the leading cases on the subject." Unfortunately, Pennsylvania courts have not clearly defined consequential damages. Instead, the cases merely state that consequential damages are recoverable if they are "reasonably foreseeable at the time the contract was made." See, e.g., Frank B. Bozzo, Inc. v. Electric Weld Div., 283 Pa. Super. 35, 423 A.2d 702, 709 (Pa. Super. 1980), aff'd per curiam, 435 A.2d 176 (Pa. 1981)
A "leading case on the subject" has enunciated a more precise definition. In Petroleo Brasileiro, S.A., Petrobras v. Ameropan Oil Corp., 372 F. Supp. 503, 508-09 (E.D.N.Y. 1974), the court observed that:
Under this definition, plaintiff's claim for relief in count V clearly is an attempt to obtain consequential damages. Plaintiff's claim is based on a "loss business opportunity" with a third party; it does not arise directly "within the scope of the buyer-seller transaction." Therefore, unless (1) consequential damages are "specially provided" in the sellers list of remedies or (2) another "rule of law" provides plaintiff with the opportunity to assert a claim for the recovery of these damages, I must grant defendant's motion to dismiss.
1. Consequential Damages under the UCC
The seller's remedies for breach of contract are set forth in sections 2-703 through 2-710, 13 Pa. Cons. Stat. Ann. §§ 2702-2710. Under these provisions, the seller may (1) withhold delivery of goods, 2-703; (2) stop delivery by a bailee, 2-705; (3) identify goods to the contract notwithstanding breach or salvage unfinished goods, 2-704; (4) resell and recover the difference between the contract price and the resale price, 2-706; (5) recover damages for nonacceptance or repudiation, which is measured in terms of either lost profit or lost volume as a result of the canceled sale, 2-708; (6) seek an action for the price of the goods, 2-709; (7) cancel the contract, 2-703; or (8) recover incidental damages defined as "any commercially reasonable charges, expenses or commissions incurred . . . resulting from the breach," 2-710.
Conspicuously missing from the above list of remedies is an action to recover consequential damages. In contrast, section 2-715, 13 Pa. Cons. Stat. Ann. § 2715, specifically grants to the buyer the remedy of collecting consequential damages. As a result of this statutory language, sellers clearly cannot recovery consequential damages under the UCC. See Associated Metals & Minerals Corp. v. Sharon Steel Corp., 590 F. Supp. 18, 21-22 (S.D.N.Y. 1983) (applying Pennsylvania law and concluding that it is "well settled that the UCC does not provide the remedy of consequential damages for aggrieved sellers"), aff'd mem., 742 F.2d 1431 (2d Cir. 1983); see also Nobs Chemical, U.S.A., Inc. v. Koppers Co., 616 F.2d 212, 216 (5th Cir. 1980); Petroleo Brasileiro, 372 F. Supp. at 508. Because the UCC does not provide sellers of goods with a remedy for consequential damages, I must ascertain whether state law provides plaintiff with a basis for recovering these damages.
2. Pennsylvania Common Law
Under section 1-106 of the UCC, consequential damages may be had "by other rule of law." Moreover, section 1-103 states that "unless displaced by the particular provisions of this [Code], the principles of law and equity . . . shall supplement its provisions." The Third Circuit has ruled that under section 1-103 of the Pennsylvania UCC, conduct by a party, which would not run afoul of the UCC's provisions, could still subject the party to a tort claim. Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846, 850-51 (3d. Cir. 1964). Additionally, in Associated Metals, the Southern District of New York held that even though a claim for interest costs would be precluded as improper consequential damages, Pennsylvania common law provided a remedy for the claimed damages. 590 F. Supp. at 22-23.
Therefore, only if plaintiff has alleged a cause of action independent of the UCC, such that recovery of the "loss business opportunity" would be warranted, would count V survive this motion to dismiss.
In response to defendant's motion to dismiss, plaintiff argues that count V states a claim for the intentional interference with a prospective contractual relation under Pennsylvania law. (Pl.'s Resp. to Def.'s Mot. to Dismiss at 15-23.) In order to state a claim under this theory, four elements must appear in plaintiff's complaint:
(1) a prospective contractual relation;