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County of Mercer v. UniLect Corp.

March 17, 2009

COUNTY OF MERCER, PLAINTIFF,
v.
UNILECT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION

CONTI, District Judge.

Introduction

The instant action arises out of a dispute involving a contract for the purchase of voting machines by Mercer County, Pennsylvania ("Mercer" or "plaintiff") from UniLect Corporation ("UniLect" or "defendant"). Pending before the court are the parties' cross-motions for summary judgment concerning whether UniLect breached a contractual duty allegedly owed to Mercer to maintain the voting machines in accordance with Pennsylvania certification standards. Plaintiff commenced this action in the Court of Common Pleas of Mercer County, Pennsylvania, and the action was removed to this court on June 16, 2006. On July 21, 2006, UniLect filed a motion to dismiss (Doc. No. 4), which the court granted in part and denied in part. Mercer's sole pending claim is for breach of contract, predicated on an alleged breach of an express warranty. Mercer moved for partial summary judgment on April 1, 2008 (Doc. No. 24), and UniLect moved for summary judgment that same day (Doc. No. 28). After considering the joint statement of facts and the other submissions of the parties, viewing all disputed facts in favor of the opposing party, and drawing all reasonable inferences in favor of the opposing party, plaintiff's motion for partial summary judgment will be denied, and defendant's motion for summary judgment will be granted.

Background

The material facts of this case are not seriously disputed. On December 11, 2000, UniLect offered a written proposal (the "Proposal") to Mercer to provide Mercer with the Patriot voting system (the "Patriot"), a touch screen electronic voting system or direct electronic recording voting system ("DRE"). (UniLect's Joint Statement of Undisputed Facts ("J.S.Def.") (Doc. No. 42) ¶ 1; Mercer's Joint Concise Statement of Material Facts ("J.S.Pl.") (Doc. No. 41) ¶¶ 3, 4.) The Proposal had seven parts (Def.'s App. (Doc. No. 40) Ex. 4.) Part four was entitled "INSTALLATION, TRAINING, WARRANTY AND MAINTENANCE." (Def.'s App. Ex. 4 at 8.) Among the services covered under part four of the Proposal was training for plaintiff's staff: Training of your in-office election staff, all poll workers and repair support staff. This includes instruction on "how to code and tally" all in-precinct votes as well as absentees. To the extent possible, we will aid in your voter training.

(Id.) Another covered service was a software support service:

Our on-going software support and maintenance fee package is available at no cost for the first year. This includes all software maintenance, software upgrades, State mandated changes and our "Quick-Support Program." Each additional year is automatically billed to you at the rate of $6,000 per year. We are able to offer these low maintenance figures because of the solidity of our products. Maintenance increases will be limited to Consumer Price Index increases. (Id.) The covered services also included a "One-Year manufacturer's warranty on all equipment (parts and labor)." (Id.) The warranty provision further provided:

UniLect warrants the products, as delivered, will conform with and perform according to the specifications required by the State of Pennsylvania as well as conform with and perform according to the specifications in this proposal and any contract arising therefrom.

If any programs should not so perform, they shall be corrected or replaced by UniLect in a timely manner as mutually agreed. (Id. at 9.) The warranty provision added: "Any custom software features/changes will be offered on an as-needed, time-and-materials contract basis." (Id.) Finally, part four of the Proposal provided for limited maintenance and service:

Our one-year equipment warranty is strictly limited to repair or replacement in a timely manner and covers both parts and labor. After the first year, we suggest that you handle hardware maintenance on a time and materials basis. If desired however [sic], we will quote a price for all hardware maintenance on an annual basis.

(Id.)

Part five of the Proposal was entitled "ADDITIONAL COMMENTARY." (Id. at 10.) Part five's provisions included the following:

*There is a full, all inclusive, warranty for one-year on all hardware (parts and labor) and software in the system. The number of our staff members (local as well as home office) will be as many as you and ourselves require to do the job. During the first year this is at no additional cost. Additional software support and license fees are mentioned elsewhere in this proposal.

*There really is no end to the life of the product because bad parts are replaced with good parts. Certainly 20-25 years could be attainable. The proof of reliability is the fact that the parts used in the PATRIOT have all been used in the hundreds of thousands and even millions, including such diverse fields as lap-top computers, jet fighters, state lotteries, field survey teams and restaurants to name a few. We purposely did not utilize untested new parts in our design of the PATRIOT.

*The PATRIOT is a stand-alone product and no upgrades are contemplated at this time. As software enhancements are made, they will be offered at no additional cost because you will be under our software maintenance contract. There probably will, however, be future add-on projects (hardware and/or software) which will augment the usage of the PATRIOT system. These items are on the drawing board now, however, no costs or timetable, have been assigned. We will be happy to discuss this with you, if you desire. (Id. at 10-11.)

Part six of the Proposal was entitled "PRICING." (Id. at 13.) Under the heading "Precinct and Central Office Hardware and Software," the Proposal stated "[a]s mentioned earlier, there is a complete one-year warranty on all hardware and software that applies to the PATRIOT Voting System. After that, the following annual costs apply. . . ." (Id.) Part six of the Proposal provided under the heading "Software Maintenance and License Contract":

(annually after warranty year) $6000 This includes all 800 number service and "Quick-Support" modem service as well as all upgrades and State mandated changes.

There is no need to incur a software coding charge because we train you to do this yourself. Naturally, we will be available to do coding for you if you wish us to do that. The cost would depend on the size of the election. (Id.) Under the heading "Equipment Maintenance," part six provided that "[w]e suggest that you elect to have equipment repair conducted on a time and piece part basis. If desired, however, we can offer you a fixed price contract." (Id.)

On January 25, 2001, Mercer and UniLect entered into a contract agreement, in which UniLect agreed to furnish and install a DRE for Mercer for $870,500.00, later increased to 897,000.00.*fn1 (J.S.Def. ¶¶ 2, 4; J.S.Pl. ¶ 6; Def.'s App. Ex. 3.) The agreement incorporated by reference the provisions of the written Proposal. (J.S.Def. ¶ 3.) The agreement also contained an integration clause. (J.S.Def. ¶ 5.)

The Patriot was first certified for use in Pennsylvania elections in 1994 pursuant to 25 PA. CONS. STAT. § 3031.7. (J.S.Def. ¶ 11; J.S.Pl. ¶ 9.) In 1999, the Patriot was re-certified without an examination after the Patriot voting system was modified. (J.S.Def. ¶ 13; Def.'s App. Ex. 1.) The voting system was delivered to Mercer on or around April 2001. (J.S.Def. ¶ 21.) On the date of delivery, three members of Mercer's board of commissioners, Olivia Lazor, Brian Shipley, and Cloyd Brenneman, considered that the Patriot was certified for use in Pennsylvania in accordance with the applicable Pennsylvania law, i.e. section 3031.7. (J.S.Def. ¶ 14; Olivia Lazor's Deposition at 57-60; Brian Shipley's Deposition at 65-66; Cloyd Brenneman's Deposition at 30-31.) Mercer's election director, James Bennington, also believed the Patriot was certified as of its delivery. (J.S.Def. ¶ 15; James Bennington's Deposition at 30-31.)

The Patriot was used by Mercer without incident after the time of its delivery in April 2001, until November 2004. (J.S.Def. ¶ 21.) During the November 2004 election, problems were experienced by Mercer with the Patriot. (J.S.Def. ¶ 22.) After that election, a group of nineteen registered voters residing in Beaver County, Pennsylvania, requested that the Commonwealth of Pennsylvania conduct an examination of the Patriot under 25 PA. CONS. STAT. § 3031.5(a). (J.S.Def. ¶ 23; J.S.Pl. ¶ 11.) The Commonwealth of Pennsylvania granted the request and conducted an examination in 2005; on April 7, 2005, the Commonwealth decertified the Patriot. (J.S.Def. ...


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