JBS. For this reason, it contends, the policy behind limiting it to its contract remedy is not persuasive, because in reality, it entered into a contract of adhesion and should be favored by the law. Moreover, 2-J contends that because it purchased goods, it should be treated as a consumer and not a commercial entity and therefore not bound by the Economic Loss Doctrine.
We find that 2-J's arguments are not persuasive. First, the Economic Loss Doctrine's applicability is not dependent on a party actively engaging in warranty negotiations. Second, even though 2-J may not have had the opportunity to negotiate the actual warranty, as a commercial entity, it was well-equipped to negotiate the actual purchase, or if dissatisfied with its negotiations with JBS or Tice, to purchase from another company. Furthermore, the doctrine still has force in that it predicts that a commercial entity should not be protected by society when it can protect itself through warranty or insurance. East River, 476 U.S. at 871-874; REM Coal, 563 A.2d at 132.
Based on the above discussion and the arguments of the parties, we dismiss Plaintiff's tort claims.
Count V for breach of contract
Count V alleges a breach of contract between JBS and 2-J in that JBS allegedly breached both express and implied warranties that the warehouse was free from defects and safe for the purpose for which it was intended. JBS seeks summary judgment on this Count on the basis that the express warranty delivered with the building was limited to five years and had terminated more than a year before the building collapsed.
Second, JBS contends that the written warranty expressly disclaimed any implied warranties, including those of merchantability or fitness. JBS argues that the written warranty is valid and enforceable in Pennsylvania and is governed by the Uniform Commercial Code's Article Two, relating to the sale of goods. New York State Elec. & Gas, 564 A.2d at 924; Cober v. Corle, 416 Pa. Super. 191, 610 A.2d 1036, 1040 (1992).
2-J's only argument in opposition is that there are genuine issues of material fact that preclude a grant of summary judgment on Count V. First, 2-J points to the affidavit of its President, Joseph Mickley. Mr. Mickley avers that he does not recall receiving the written warranty that JBS attached as evidence to its motion for summary judgment, nor does he recall ever receiving any other written warranty statement.
We cannot accept this affidavit to create a genuine issue of material fact, however. Plaintiff's affidavit, first, does not expressly deny receipt of the warranty. It simply denies its President's recollection of receipt of the warranty. This does not create a genuine question whether the warranty was in fact delivered or received. Second, 2-J's Complaint alleges that "Defendant breached express and implied warranties." Complaint P 32. If 2-J brings a claim under the express warranty, it cannot then resist summary judgment on the ground that such a warranty was never delivered. Because 2-J does not present any evidence going to show that the warranty was not delivered or received, we find no genuine question of fact as to this issue.
2-J also argues that there are many more issues of fact that preclude summary judgment, such as when the building was actually shipped or received, whether there were additional shipments, when construction began and ended, and what contracts or representations there were between JBS and Tice. We will not deny summary judgment based on these arguments.
Plaintiff, first of all, has not submitted any evidence to indicate that these issues are actually in dispute. For example, Defendant has proffered its Bills of Material Cover Sheet, which indicates that the warehouse was delivered on a single day in 1987. 2-J has not presented any evidence, by affidavit or otherwise, to contradict this evidence. Second, Plaintiff has not demonstrated that these questions of fact, even if they exist, are material. A question of fact can only prevent summary judgment if it is material, i.e., if it could be outcome-determinative. Plaintiff has not provided any evidence or argument that would suggest that any of these issues would in any way affect whether there was an express or implied warranty between 2-J and JBS or whether those warranties are still in force.
We find that there is no evidence to contradict JBS's evidence that the only warranties it issued had expired long before 2-J's claims arose. There is also no evidence to suggest that the warranty was not valid and enforceable. For this reason, we grant JBS's motion for summary judgment on this claim.
An appropriate Order follows.
AND NOW, this 7th day of May, 1996, upon consideration of the Motion of Defendant Jewell Building Systems, Inc. and response thereto and in accordance with the attached Memorandum, the Motion is hereby GRANTED on Counts IV, V and VI in favor of Defendant Jewell Building Systems, Inc. and against Plaintiff.
BY THE COURT:
J. CURTIS JOYNER, J.