United States District Court, M.D. Pennsylvania
December 12, 2005.
PETER AMATO, Plaintiff,
MAPEI CORP., ROSSI USA CORP., and ROSSI SA FRANCE, Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Presently before the Court for disposition are Defendant Mapei
Corporation's Motion for Summary Judgment and Defendant Rossi USA
Corporation and Rossi SA France's (collectively "Rossi") Motion
for Summary Judgement. Rossi seeks summary judgment on Plaintiff
Peter Amato's Complaint and Mapei's cross claim for
indemnification. The parties have fully briefed and argued these
matters, and they are ripe for disposition. For the following
reasons we will grant Rossi's motion in its entirety and grant
Mapei's motion in part and deny it in part.
I. Background Facts
This action arises from the construction of the patio and pool
in Amato's home. Amato hired a contractor, M.J. Wesko, Inc., to
custom build his home. The project lasted from 1997 through 2001.
As part of this project, Wesko installed a limestone surface for
the patio and pool area. Wesko purchased Rossi's limestone pavers
as the surface, and installed the limestone with Mapei's
Grani/Rapid setting bed mortar. Wesko purchased the Grani/Rapid
Mortar from Arley Wholesale and/or Daltile, Mapei distributers in
Scranton, Pennsylvania. Amato was not involved in the decision to purchase
the Grani/Rapid mortar. (Mapei Mot. Summ. J. Exhibit B 11)
Rather, Wesko selected the mortar. (Mapei Mot. Summ. J. Ex. H at
¶ 7) The mortar instructions and packaging included a provision
limiting Mapei's liability for consequential and incidental
damages, as well as requiring thirty days written notice from the
date the claimant discovered, or reasonably should have
discovered, his claim. (Mapei. Mot. Summ. J. Ex. C, D) After the
installation of the limestone, it began to warp, crack, and curl.
On September 7, 2000, a Wesko representative called Mapei and
explained that he had installed french limestone with Grani/Rapid
mortar one year prior and the limestone had curled. (Mapi. Mot.
Summ. J. Ex. I)
Amato brings the instant action to recover for the damages
resulting from the limestone's cracking, curling, and cupping.
Count I is a claim for breach of the implied warranty of
merchantability against Mapei. Count II is a claim for breach of
the implied warranty of fitness for a particular purpose against
Mapei. Count III is a breach of contract claim against Mapei.
Count IV advances a claim for breach of express warranty against
Mapei. Count V is another breach of contract claim against Mapei.
Count VI is a breach of express warranty claim against Rossi.
Count VII advances a claim for breach of the implied warranty of
merchantability against Rossi. Count VIII puts forth a claim for
breach of the implied warranty of fitness for a particular
purpose against Rossi. Count IX is a breach of contract claim
against Rossi. II. Jurisdiction
This Court has jurisdiction pursuant to the diversity
jurisdiction statute, 28 U.S.C. § 1332. The plaintiff is an adult
individual residing at Rural Route One, Reynolds Road, Dalton,
Pennsylvania. Defendant Mapei is an Illinois corporation with its
principal place of business in Florida. Defendant Rossi USA Corp.
is an Illinois corporation with its principle place of business
in Illinois. Defendant Robert Rossi S.A. is a French corporation
with an agent authorized to accept service of process in
Illinois. Because we are sitting in diversity, the substantive
law of Pennsylvania shall apply to the instant case. Chamberlain
v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie
R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
Granting summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. See Knabe v.
Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (citing FED. R.
CIV. P. 56(c)). "[T]his standard provides that the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the motion.
International Raw Materials, Ltd. v. Stauffer Chemical Co.,
898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party
to demonstrate that the evidence is such that a reasonable jury
could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248 (1986). A fact is material when it might affect
the outcome of the suit under the governing law. Id. Where the
non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing
that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the
non-movant's burden of proof at trial. Celotex v. Catrett,
477 U.S. 317, 322 (1986). Once the moving party satisfies its burden,
the burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing
that there is a genuine issue for trial. Id. at 324.
A. Rossi Motion
Rossi argues that we should dismiss Amato's breach of contract
claim and his breach of warranty claims. We will address these
1. Breach of Contract
Rossi argues that we should grant summary judgment on the
contract claim because Rossi and Amato had no contract, and even
if they did, Rossi did not breach it. Amato does not assert that
he had a contract with Rossi, but instead argues that he was a
third party beneficiary of Wesko's limestone purchase from Rossi. Whether
Amato is a third party beneficiary is an issue of law. See
Hicks v. Metropolitan Edison Co., 665 A.2d 529, 536 (Pa.Commw.
Ct. 1995). We find that Amato has failed to create a genuine
issue of material fact that he was the third party beneficiary of
Rossi's sale of limestone to Wesko. Pennsylvania has adopted
Restatement (Second) of Contracts § 302 for the definition of a
third party beneficiary.
(1) Unless otherwise agreed between promisor and
promisee, a beneficiary of a promise is an intended
beneficiary if recognition of a right to performance
in the beneficiary is appropriate to effectuate the
intentions of the parties and either
(a) the performance of the promise will satisfy an
obligation of the promisee to pay money to the
(b) the circumstances indicate that the promisee
intends to give the beneficiary the benefit of the
Scarpitti v. Weborg, 609 A.2d 147, 150 (1992) (quoting
RESTATEMENT (SECOND) OF CONTRACTS § 302 (1979)).*fn1
Thus, to establish his third party beneficiary status, Amato
must demonstrate that Rossi intended that Mapei would provide the
limestone to Amato either to satisfy an existing debt or as a
gift. RESTATEMENT (SECOND) OF CONTRACTS § 302(1)(a), (b). Amato
has produced no such evidence. Instead, he argues that Wesko
provided the limestone to him for his benefit as part of a
construction project that he hired it to perform. While Wesko may have intended to provide the limestone to Amato, to satisfy
Restatement 302(1)(b) Amato must establish that Rossi intended
that Wesko provided it as a gift or to discharge a debt owed by
Rossi to Amato.
Where the promised performance is not paid for by the
recipient, discharges no right that he has against
anyone, and is apparently designed to benefit him,
the promise is often referred to as a `gift promise.'
The beneficiary of such a promise is often referred
to as a `donee beneficiary'; he is an intended
beneficiary under Subsection (1)(b).
RESTATEMENT (SECOND) OF CONTRACTS § 302 cmt c.
Amato has produced no evidence that he received the limestone
as a gift or to discharge a debt previously owed to him, and
therefore, we will enter summary judgment on Amato's contract
claim against Rossi because he had no privity of contract and has
created no genuine issue of material fact that he was a third
2. Breach of Warranty
Rossi moves to dismiss the breach of warranty claims because
its limestone did not malfunction and had no defect. Rossi relies
on the expert reports in this case, six in total, each of which
finds that the limestone had no defect but cracked because of the
expansion of the setting bed mortar.
Amato argues that the limestone's malfunction, i.e., the
existence of the cracks and the curl in the limestone, is alone
sufficient to create a genuine issue of material fact that the
limestone had a defect. Amato misstates the relevant law. To
recover for breach of warranty, a plaintiff must establish: "(1)
that the product malfunctioned; (2) that the plaintiffs used the product as intended or reasonably expected by
the manufacturer; and (3) the absence of other reasonable
secondary causes." Altronics v. Repco, Inc., 957 F.2d 1102,
1105 (3d Cir. 1992).
Rossi has established the bed setting mortar or the
installation caused the cracking, cupping, and curling of the
limestone tiles. S.A. Bortz of Wiss, Janney, Elstner Associates,
Inc., issued an expert report to Wesko stating, "the expansive
nature of the setting bed is likely the cause of the observed
cupping." (Rossi Summ. J. Ex. C 2.) The Erlin Company also issued
a report for Wesko, concluding "[b]ased on petrographic
examinations and length change measurements of the setting bed
mortar, the curling is judged to be due to the expansion of the
setting bed mortar." (Rossi Summ. J. Ex. D 3.) Daniel Honig, P.E.
of Structures Consulting Engineers issued a report to Chubb Group
of Insurance Companies, explaining,
it is my opinion, within a reasonable degree of
engineering certainty, that the failure of the
exterior paver surface at this residence has been
caused by an inappropriate setting bed mortar which
has reacted chemically to expand and cause resultant
paver distress. The site preparation and limestone
pavers themselves appear to be appropriate and
suitable for the intended application.
(Rossi Summ. J. Ex. E 5.)
Dipyana Jana, P.G., president of Construction Materials
Consultants, Inc., issued a report to Amato, stating, "Based on
the laboratory studies of two limestone tile plus setting bed
mortar composites, it was concluded that the de-bonding, curling,
and cracking of the tile was related to the expansion of the
setting bed mortar in the presence of moisture." (Rossi Summ. J. Ex. F 1.) Donato Pompo of Ceramic Tile and Stone
Consultants explained that "failure was caused by a combination
of a bond-breaker on the concrete slab, poor and improper
installation methods and procedures, and excessive moisture under
the substrate that led to the curling and de-bonding of the
limestone tile." (Rossi Summ. J. Ex. G 9.) Mapei's analyst
explained that his tests revealed that the "sample slab is
stable." (Rossi Summ. J. Ex. H.) He further stated that limestone
could be installed with: 1) a proper base; 2) a bicomponent
cement-adhesive system; 3) a large escape-joint, with Ultracolor
or Keracolor GG Fugolastic finishing; and 4) Mapeflex PU21 as a
sealant for the expansion joints. (Id.)
Each of the six experts concluded that the damage to the
limestone had a secondary cause, either expansion of the mortar
or improper installation of the mortar. Amato has produced no
evidence rebutting the conclusions of these experts.*fn2
Amato has not created a genuine issue of material fact that the
curling, cracking, or cupping had no secondary cause. Therefore,
we will grant summary judgment on Amato's warranty claims against
B. Mapei's Motion
Mapei presents two arguments in support of its motion for
summary judgment. First, Amato's contract claims should be dismissed because the product
literature did not form a contract. Second, the warranty claims
should be dismissed based on Amato's failure to comply with terms
included in the product literature. We will discuss each of these
1. Breach of Contract
Counts III and V of the Complaint are breach of contract claims
against Mapei. Mapei argues that no contract exists. Amato did
not purchase the mortar from Mapei; rather, Wesko purchased the
mortar from Arley Wholesale or Daltile, two distributors of Mapei
products. Wekso then provided the mortar to Amato as part of the
construction project. Amato argues that it is not required to
establish privity of contract to advance his breach of warranty
claims in Counts I, II, and IV. See Spagnol Enterprises, Inc.
v. Digital Equipment Corp., 568 A.2d 948, 951 (Pa. 1989)
(holding that privity is not a requirement for a breach of
warranty claim). While this is so, it is irrelevant to the
requirements of his contract claims in Count III and V, which
require proof of privity. Corestates Bank v. Cutillo,
723 A.2d 1053, 1058 (Pa.Super.Ct. 1999) (explaining that a contract
claim consists of: 1) the existence of a contract; 2) a breach of
a duty imposed by the contract; and 3) resulting damages).
Therefore, we will grant summary judgment on Counts III and V.
2. Breach of Warranty
Unlike the breach of contract claims, the breach of warranty
claims have no privity requirement. Spagnol, 568 A.2d at 951.
Mapei argues that the following provision is binding on Amato and limits his recovery for breach of warranty.
We shall not be liable for incidental and
consequential damages, as defined under the uniform
commercial code, directly or indirectly sustained,
nor for any loss caused by application of these goods
not in accordance with current printed instruction or
for other than the intended use. Before using, user
shall determine the suitability of the product for
its intended use. Before using, user shall determine
the suitability of the product for its intended use
and user alone assumes all risks and liability
whatsoever in connection therewith. Our liability is
expressly limited to replacement of defective goods.
Any claim shall be deemed waived unless made in
writing to us within thirty (30) days from the date
it was, or reasonably should have been discovered.
(Mapei Mot. Summ. J. Ex. D)*fn4
This notice is included in the mortar bag and instructions.
Mapei argues this provision bars Amato's suit because it required
thirty days written notice as a precondition to suit, and even if
Amato can bring suit, the provision limits his recover to
replacement of the goods. Whereas previously Mapei argued that
the product literature did not create a contract, here it argues
that this provision is binding on Amato. We find a genuine issue
of material fact that the above provision binds Amato. In King
v. Hilton-Davis, the court predicted that if Pennsylvania courts
eliminated the privity requirement for warranty cases,
Pennsylvania law would not enforce a limit of liability against a
remote purchaser unless the disclaimer was "clearly communicated
to the remote party prior to his or her purchase." 855 F.2d 1047,
1053 (3d Cir. 1988). King offered two examples of methods that
manufacturers may employ to effectively limit liability to the
remote purchaser: 1) conspicuous display of the provision in the
literature included in the product; and 2) contracting with the
distributer to expressly reference the limit in the distributer's
contracts with customers. Id. at 1054; see also Infocomp, Inc. v. Electra Products, Inc., 109 F.3d 902, 908 (3d
Cir. 1997) ("[R]emote purchasers must be specifically notified of
a manufacturer's intent to limit damages if that limitation is to
We find the rule enunciated in King consistent with
subsequent developments in Pennsylvania law. In Moscatiello v.
Pittsburgh Equipment Co., the plaintiff purchased a paving
machine from a distributer, but sued Curbmaster, the
manufacturer, when the machine did not perform as expected.
595 A.2d 1198, 1199-1200 (Pa.Super.Ct. 1991). Curbmaster argued
that if the plaintiff was entitled to assert a breach of warranty
claim directly against it in the absence of privity, then the
terms of its warranty exclusions should be binding on him. Id.
at 1204. The court disagreed, and found the warranty exclusions
inapplicable "due to the failure of Curbmaster to establish that
Moscatiello ever received the agreement." Id. "[T]he fact that
the agreement never was provided to Moscatiello, in our view,
renders its provisions inapplicable to Moscatiello." Id. Thus,
as predicted in King, Moscatiello established that a warranty
exclusion will not bind a remote buyer unless the term is
communicated to him.
Recently, Goodman v. PPG Industries held that even without a
privity requirement, a plaintiff asserting a claim for express
warranties must establish that he was aware of the specific terms
of the warranty. 849 A.2d 1239, 1245-46 (Pa.Super.Ct. 2004).
There, the plaintiffs asserted a breach of express warranty claim
against PPG based on defects in a PPG manufactured wood
preservative. Id. 1241-42. PPG expressly warranted to Marvin
Lumber and Cedar Company that the wood preservative would protect
wood for twenty-six years. Id. at 1241. Marvin used the preservative in its windows, and
then sold the windows to the plaintiffs. Id. When the wood in
the windows rotted, the plaintiffs sued PPG for breach of the
express warranty from PPG to Marvin. Id. at 1241-42. The court
noted that Pennsylvania had dispensed with the privity
requirements for breach of warranty claims, but found that the
nature of express warranties required that a plaintiff relying on
an express warranty must demonstrate that he was aware of the
term when he purchased the product. Id. at 1245. Contrasting
implied warranties with express warranties, the court observed
that whereas "manufacturers have no choice but to extend implied
warranties to the general public. . . . express warranties are
bargained, `dickered,' individualized promises that the goods
will perform up to the specific standards set forth in that
warranty." Id. It further reasoned, "given that express
warranties are based on the notion of offer and acceptance, it
would appear incongruous to allow third parties the benefit of an
express warranty when no evidence exists that they were even
aware of the terms of the warranty." Id. at 1245-46.
Just as it would be incongruous to allow a remote consumer to
benefit from an express warranty of which it was unaware, a
remote consumer, absent "an express contract with the remote
party," will not be bound by a term unless "it is clearly
communicated to the remote party prior to his or her purchase."
King, 855 F.2d at 1053. We find that Amato has established a
genuine issue of material fact that the provision was not
communicated to him prior to his purchase either by express
communication through the chain of distribution or through
conspicuous display of the provision in the product literature
and packaging. Mapei does not argue that any entity in the chain of
distribution expressly communicated the provision to Amato, and
instead argues that the term was conspicuously displayed in the
product packaging and literature.*fn5 We find this provision
inconspicuous, intentionally buried from the purview of the party
it is intended to affect. The test is whether a term is "so
written that a reasonable person against whom it is to operate
ought to have noticed it." Moscatiello v. Pittsburgh Contractors
Equipment Co., 595 A.2d 1190, 1193 (Pa.Super.Ct. 1991)
(quoting 13 PA. CONS. STAT. ANN. § 1201).
In Moscatiello, the court found a clause included on the back
of a form contract inconspicuous. Id. The front of the contract
warned, "TERMS AND CONDITIONS ON REVERSE SIDE ARE AN INTEGRAL
PART OF THIS ORDER." Id. The reverse side contained eighteen
numbered paragraphs in "extremely small type, approximately
one-sixteenth inch in height." Id. The term in question was
"buried in paragraph sixteen at the bottom of the page." Id.
The court observed, "though the operative language of the
disclaimer is set forth in capital letters, the size of the type
of the capital letters is so minute that it simply does nothing
to attract attention to the clause." Id. at 1193-94.
The provision presently before the court appears in two places,
the product literature included with the mortar and the mortar
packaging. In both places the contractual terms are the same size
font, one sixteenth of an inch in height, that the Moscatiello
court found inconspicuous, calling it "some of the `finest' print this court
has ever read." Id.
The product literature is a three page document containing: 1)
a product description; 2) an explanation of the proper uses; 3)
the limitations on the product uses; 4) twenty six individually
numerated paragraphs of instructions; and 5) a table of the
properties and capabilities of the product. (Def. Ex. D). The
contractual provision is on the last page, and is the very last
term. The text of the provision is in italics, whereas the rest
of the document is not. The text of the provision is the same
size as the text of the rest of the document, and is
approximately the same size as it appears supra at the
beginning of this section. The header of the provision reads
"NOTICE," in bold type of the same size as the headings on the
front page, which include "DESCRIPTION," "USES," "LIMITATIONS,"
"RECOMMENDED SUBSTRATES," and "NOTE." In sum, there is nothing to
call attention to the provision in the product literature.
Although it is in italics,*fn6 it is on the last page in
type of the same size as the rest of the document. The
provision's heading does not call attention to the reader that it
contains any contractual term. Additionally, the front page and
contents of the document give the reader no indication that it
contains contractual terms. A reasonable reader of the product literature would view the document as a set of instructions and a
description of the product, and would have no reason to notice
the contractual provision appended at the very end.
The provision in the product packaging is on similar footing.
The mortar is packaged in a fifty pound bag. The front of the bag
displays the name of the company and the product in inch high
letters, followed by the description "fast-setting latex
hydraulic mortar" in slightly smaller font. Large letters at the
bottom of the front of the bag provide two warnings in English,
French, and Spanish. The back of the bag contains three columns
of text, the first is English, the second French, and the third
is Spanish. The columns contain ten point font, and have ten
paragraphs, some of which are further divided into bullet points
or numbered provisions. The back of the bag essentially outlines
the same information in the instructions. It begins with a
description of the product, outlines the uses and limitations,
has instructions for mixing and the application, contains a
warning about working in cold temperatures, describes the
coverage, and warns the user to employ personal protection when
using the product. The contractual term in question is at the
very bottom of the back of the bag. It is in the same size type
as the rest of the proximate text, it is in italics, and it
contains a heading that simply says "NOTICE." The heading is the
same size and font, approximately ten point, as twelve other
headings. The heading is the same size as the "MADE IN U.S.A."
indication and is smaller than the numbers on the bar code on the
back of the bag. Additionally, the provision is not given its own
paragraph and the heading is in the middle of the column and not
set off next to the margin. Nothing on the front of the bag and
no header on the back of the bag gives any indication that the bag contains contractual terms.
We find that the term in question is inconspicuous as a matter
of law. Like the term in Moscatiello, the font of the
contractual provision is one sixteenth of an inch in height, is
buried at the bottom of the page, and is not on the front of the
relevant document. Arguably, the term in Moscatiello was more
noticeable because it was included in a contract, and the front
of the contract called the reader's attention to integral terms
on the reverse side. Here, the terms were not included in a
contract, but were in product literature and packaging that gave
no indication that they contained integral terms or conditions.
Therefore, we find that no reasonable person presented with the
bag or the product literature would notice the provision, and the
contractual term is inconspicuous.
Thus, we find a genuine issue of material fact that the
provision was communicated to Amato prior to his purchase, and we
will deny Mapei's motion for summary judgment on Amato's breach
of warranty claims.
Therefore we will grant summary judgment on Amato and Mapei's
claims against Rossi. Furthermore, we will grant summary judgment
on Amato's contract claims against Mapei. We will deny the motion
for summary judgment on Amato's breach of warranty claims against
Mapei. Accordingly, the sole remaining claims will be: Count I,
breach of the implied warranty of merchantability against Mapei;
Count II, breach of the implied warranty of fitness for
particular purpose against Mapei; and Count IV, breach of express
warranty against Mapei. An appropriate order follows. ORDER
AND NOW, to wit, this 12th day of December 2005, Rossi's
Motion for Summary Judgment (Doc. 33) is hereby GRANTED.
Mapei's Motion for Summary Judgment (Doc. 30) is hereby GRANTED
in part and DENIED in part. Summary judgment is granted on
Count III and V, Plaintiff's breach of contract claims, but we
deny the motion as to the breach of warranty claims.
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