rights can arise by "a clear unequivocal, and decisive act of the party claimed to have waived its rights, with knowledge of such right and evident purpose to surrender it." Keenan v. Scott Township Auth., 151 Pa. Commw. 226, 616 A.2d 751 (Pa. Commw. Ct. 1992). See also, Evcco Leasing Corp. v. Ace Trucking Co., 828 F.2d 188 (3d Cir. 1987). Waiver may be effected by a party's words or conduct. When waiver is implied from conduct, it applies in those situations that would support equitable estoppel. Penn Mutual Life Ins. v. Bank of New England, 756 F. Supp. 856 (E.D. Pa. 1991); Brown v. City of Pittsburgh, 409 Pa. 357, 186 A.2d 399 (Pa. 1962). See also Walsh v. Ford Motor Co., 588 F. Supp. 1513 (D.D.C. 1982) (recognizing equitable estoppel under the Magnuson-Moss Act to hold that plaintiffs who had not presented their vehicles to dealers as required by the warranty were not barred). Thus for an implied waiver to be operative, the person charged with waiver must have by conduct manifested an intent to relinquish the right and the party claiming the benefit of the waiver must show that he or she was "misled and prejudiced" by the conduct. Brown, 186 A.2d at 401.
In this case plaintiff has undertaken to establish, or at least has alleged with support and without contradiction by defendant, all of the elements of a waiver of legal rights (albeit without arguing the point). According to the pleadings, documents, and affidavits supplied by both parties, it appears that Cruisers (1) provided Prousi with replacement parts at no charge, and (2) reimbursed or promised to reimburse plaintiff for work performed by people other than authorized Cruisers dealers, despite the fact that the boat was not brought to a dealer. See, e.g., Defendant's Motion for Summary Judgment at 3; Plaintiff's Motion for Summary Judgment Against Defendant Cruisers, Exhibit B. Furthermore, Prousi has alleged that he was never shown the written warranty, an allegation that has not been denied by Cruisers' agent Hayes. See Plaintiff's Opposition to Defendant's Motion, Exhibits C and D. Consequently, Prousi's only guidance in understanding the warranty would be defendant's conduct. Thus plaintiff has made a sufficient showing to support the proposition that defendant's conduct--namely, honoring minor warranty without requiring that Prousi deliver the vessel to the New Jersey dealer--could be found by a fact-finder to have led Prousi reasonably to believe that bringing the boat from Maryland to the dealer in New Jersey was unnecessary. But for this apparent waiver prejudice would result from the conduct because plaintiff did not deliver the vessel to the dealer within the warranty's time limit.
Accordingly, defendant is not entitled to summary judgment on the basis of plaintiff's failure to perform a condition precedent.
B. Prematurity of Plaintiff's Suit
Defendant contends that Prousi's suit on all counts is premature and urges summary judgment on this ground.
First, Defendant argues that Prousi did not give Cruisers the opportunity to cure that the Magnuson-Moss Act requires before action may be brought under the statute. 15 U.S.C. § 2310(e). The filing of the action, occurring as it did less than one week after plaintiff's written notification to defendant of the problem, on first glance certainly seems premature.
However, Prousi's contention that Cruisers refused to honor warranty service renders summary judgment on this basis inappropriate. Prousi alleges that Cruisers ceased or refused to honor warranty requests upon learning from the dealer, Greenwich Boat Works, that Prousi still reportedly owed the dealer money. Prousi's allegation is supported by the deposition of Hayes, defendant's agent. See Plaintiff's Opposition to Defendant's Motion, Exhibit K. This allegation, which amounts to one of anticipatory repudiation, can be considered to mature plaintiff's claim.
Although the Magnuson-Moss Act does not provide for anticipatory repudiation, the Act does call for the application of state warranty law in the absence of a regulating rule. Walsh v. Ford Motor Co., 257 U.S. App. D.C. 85, 807 F.2d 1000 (D.C. Cir. 1986). In its UCC, Pennsylvania provides that when a party repudiates concerning a performance not yet due, which repudiation would substantially impair the value of the contract, the aggrieved party "may resort to any remedy for breach." 13 Pa. Cons. Stat. § 2610(2). Thus by operation of the state UCC, Prousi has alleged sufficient facts to show, for the purposes of this motion, that his warranty claims have matured.
Plaintiff's state-law UTPCPL claims require a reasonable time for defendant to comply. The UTPCPL's warranty provisions are limited by the terms of the warranty itself: 73 Pa. Stat. Ann. § 201-2(4)(xiv) provides that the UTPCPL provides a remedy for "failing to comply with the terms of any written guarantee or warranty." The warranty provides that Cruisers will repair or replace defective parts or workmanship "within a reasonable time after notification." Again, Prousi's allegation of anticipatory repudiation satisfies, for the purpose of this motion, the reasonable time requirement.
Warranty claims under the UCC, however, accrue at the time of discovery of the defect and are thus not barred in any event. See 13 Pa. Cons. Stat. Ann. § 2725(b) (when warranty extends to future performance of the goods, cause of action for breach of warranty accrues when the breach is or should have been discovered). Accordingly, plaintiff's UCC claims have accrued and would not be barred by a failure to provide an opportunity to cure, and summary judgment will not be granted on this ground.
C. Prevention of Warranty Work
Relatedly, Cruisers maintains that Prousi prevented any warranty work from being performed, an issue that Prousi disputes. Although Prousi acknowledges that he instructed Vogel to cease work on the engine, nothing in the record flatly contradicts his contention that he did not prevent Cruisers from repairing the engine. Defendant places much emphasis on an October 17, 1995 letter from Plaintiff's counsel to Crusader. Defendant's Motion for Summary Judgment, Exhibit D, at 8. Defendant seeks to construe this letter as forbidding warranty work by Cruisers. However, the letter will not bear the meaning defendant would assign it. The letter merely informs Crusader that Prousi is represented and instructs Crusader not to communicate directly with Prousi other than as "necessary to effectuate current repairs." Moreover, the letter is addressed to co-defendant Crusader and not to Cruisers. In sum there is nothing in the record that conclusively undermines Prousi's denial that he refused to allow warranty work and thereby vitiated his warranty claims.
This issue constitutes a genuine issue of material fact and, as to it, defendant's motion for summary judgment will be denied.
D. Implied Warranty Claims
Count II of Prousi's complaint includes claims for implied warranties under the UCC. As to these portions of count II, summary judgment is appropriate. The warranty at issue specifically and conspicuously--in capital letters on the front page--excludes warranties of fitness and merchantability. This exclusion thus satisfies the UCC requirement of specific, conspicuous language to exclude the warranty of merchantability and a conspicuous writing to exclude that of fitness. See 13 Pa Cons. Stat. Ann. § 2316(b) (West 1997). Hence there is no disputed issue of material fact on this issue and summary judgment will be granted on these claims.
An order will issue accordingly.
Upon consideration of defendant Cruiser's motion for summary judgment and plaintiff's response thereto, it is hereby ORDERED that defendant's motion for summary judgment is DENIED as to Count I, the express warranty claims of Count II, and Count III of plaintiff's complaint. It is further ORDERED that defendant's motion for summary judgment is GRANTED as to the implied warranty claims of Count II.
August 28, 1997
Louis H. Pollak