Mitigation is an affirmative defense which must be plead by a defendant. Koppers, 98 F.3d at 1448. In order to prove a failure to mitigate, a defendant must establish: "(1) reasonable actions the plaintiff ought to have taken, (2) that those actions would have reduced the damages, and (3) the amount by which the damages would have been reduced." Id.
In determining whether a plaintiff has acted appropriately to mitigate damages, the test to be applied is one of reasonableness. Toyota, 611 F.2d at 471. The fact finder must determine whether plaintiff's actions, in the face of the breach, were reasonable considering "all the facts and circumstances." Id. ; see also Contractor Industries v. Zerr, 241 Pa. Super. 92, 359 A.2d 803 (Pa. Super. 1976)(stating that "the rule that a party cannot recover damages from a defaulting defendant which could have been avoided by the exercise of reasonable care and effort is applicable to all types of contracts. The question presented is one of fact.")(internal citations omitted)); 4A Anderson, UNIFORM COMMERCIAL CODE § 2:715:42 (3d Ed. 1997).
Further, the duty to mitigate is not necessarily an absolute defense, but rather concerns the amount of damages a plaintiff can recover. "The amount recoverable by the damaged party must be reduced by the amount of losses which could have been avoided by that party's reasonable efforts to avoid them." Turner, 829 F. Supp. at 761; see also S.J. Groves & Sons Co. v. Warner Co., 576 F.2d 524, 528, n.5 (3d Cir. 1978); Farnsworth, CONTRACTS § 12.12 (2d Ed.); and 5 CORBIN ON CONTRACTS § 1039. Thus, the duty to mitigate functions as a tool for a defendant to lessen a plaintiff's recovery. The question of how much, if any, a plaintiff's recovery should be reduced due to a failure to mitigate, like the question of the reasonableness of a plaintiff's behavior in the face of the breach, is one of fact.
Thus, the questions presented are disputed questions of material fact.
Therefore, defendants' motion is denied.
III. Speculative Nature of Damages
Defendants also seek summary judgment arguing, on two separate bases, that the nature of plaintiff's claims for damages is too speculative to allow recovery. Defendants first suggest that plaintiff's damages are speculative because plaintiff has pointed to no specific out of pocket expenses, i.e. "cover" costs. Second, defendants argue that plaintiff's expert's estimation of the fair market value of the aircraft as well as plaintiff's expert's methodology in coming to his conclusion are too speculative. (Def.'s Mem. at 22-25).
Plaintiff, in responding to defendants' first contention, argues that it is relying on § 2713 of the UCC, which provides for market price less the contract price as a valid measure of damages. Accordingly, plaintiff argues, it is unnecessary to show cover costs or other costs when using this measure of damages. Plaintiff responds to defendants' second claim by arguing that in determining the fair market value of the 725 Aircraft its expert reviewed the information concerning the condition of this specific aircraft along with various publications and other sources of information regularly used, recognized, and relied upon in his business.
Defendants are correct in noting that "a jury may not award damages on the basis of speculation and conjecture." Carroll v. Philadelphia Housing Authority, 168 Pa. Commw. 275, 650 A.2d 1097, 1100 (Pa. Cmwlth. 1994). See also Blanche Road Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir. 1995); Rochez Brothers, Inc. v. Rhoades, 527 F.2d 891, 895 (3d Cir. 1975); Ballantine v. Central Railroad of New Jersey, 460 F.2d 540, 544 (3d Cir. 1972). Under Pennsylvania law, "damages are speculative if the uncertainty concerns the fact of damages not the amount." Carroll, 650 A.2d at 1100. If the uncertainty concerns only the amount of damages, summary judgment is inappropriate. Id.
On the other hand, Pennsylvania courts have made it clear that when determining the amount of damages, there need not be "'mathematical certainty, but only reasonable certainty, and evidence of damages may consist of probabilities and inferences.'" Molag, Inc. v. Climax Molybdenum Co., 431 Pa. Super. 569, 637 A.2d 322, 324 (Pa. Super. 1994)(quoting Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 464 A.2d 1243, 1257-58 (Pa. Super. 1983)).
With respect to defendants' first argument, the UCC allows for market price less the contract price as a measure of damages; therefore, defendants are incorrect in asserting that in order to prove the fact of damages plaintiff needs to show cover costs or other "actual" costs. To the contrary, what must be shown under that section is the fair market value. See 13 P.S. §§ 2713 & 272r3.
Defendants' arguments concerning the amount of plaintiff's expert's estimation of the fair market price of the aircraft and the methods by which plaintiff's expert came to this conclusion concern both the credibility of the expert and the amount of damages suffered by plaintiff. These are both questions of fact. See Duquesne Light v. Woodland Hills School District, 700 A.2d 1038, 1047 (Pa. Cmwlth. 1997)(expert's credibility is jury question); Molag, Inc., 637 A.2d at 324 (expert's credibility and amount of damages are jury questions); Miller Oral Surgery, Inc. v. Dinello, D.M.D., 416 Pa. Super. 310, 611 A.2d 232, 236 (Pa. Super. 1992) (determination of damages is fact question).
Thus, as there exists no question as to the fact of damages but only a factual question as to the amount of damages, defendants' motion for summary judgment based on the speculative nature of plaintiff's damages is denied.
An appropriate Order follows.
AND NOW, 26th this day of January, 1998, upon consideration of Defendants' Motion for Summary Judgment and Plaintiff's response thereto, it is hereby ORDERED that for the reasons set forth in the foregoing Memorandum the Motion is DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.