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Pollock Research & Design, Inc. v. David Round Co., Inc.

United States District Court, E.D. Pennsylvania

February 27, 2017



          SCHMEHL, J.

         Plaintiff Pollock Research & Design, Inc. d/b/a Reading Crane & Engineering Company (“Reading Crane”) brought this breach of contract action, claiming the defendant DRC Acquisition, Inc. d/b/a The David Round Company (“David Round”) violated the terms of a purchase order contract when it failed to supply two functioning hoists to Reading Crane in a timely manner. Reading Crane demands that David Round accept return of the hoists and issue a refund. David Round has refused. Presently before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the Court will construe the motions as cross-motions for partial summary judgment, grant Reading Crane's motion and deny David Round's motion.


         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is “material” if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

         Notably, “[t]he rule is no different where there are cross-motions for summary judgment.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). As stated by the Third Circuit, “‘[c]ross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.'” Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).


         The following facts are not in dispute:

1. On or shortly before February 28, 2014, Reading Crane supplied detailed specifications to and requested a quote from David Round for a 15 ton hoist. (ECF 26-1, ¶ 4.)
2. In response, David Round's Director of Sales and Marketing, Matthew Downing (“Downing”) sent Reading Crane a detailed three-page Quote, along with David Round's standard Terms & Conditions of Sale. (ECF 26-4, pp. 3-5) (February 28, 2014 Quote) and (ECF 26-4, pp. 7-8) (Terms & Conditions of Sale).
3. Based on communications between Reading Crane and David Round, Downing revised the Quote to account for “Special Built for Clearance Requirements” and sent the revised Quote dated April 15, 2014 back to Reading Crane. (ECF 26-4, pp. 10-12.) (April 15, 2014 Quote). The revised Quote detailed an order for two hoist units.
4. The hoists were to be used by Exelon, a customer of Reading Crane, at its Peach Bottom Nuclear facility.
5. The April 15, 2014 Quote contained detailed product specifications which noted that the hoists were to be “Special Built for Clearance Requirements, ” the price for two hoists, shipment terms, a one-year warranty, and payment and delivery terms. (ECF 26-4, pp.1012.) The delivery terms stated that the hoists would be delivered “[a]pproximately 16 weeks to ship after receipt of order and drawing approval (if required), subject to component availability. Allow about 2 weeks for submittal drawing if required.” (Id., p. 12.)
6. The April 15, 2014 Quote also stated, inter alia, that “All orders and sales of goods supplied shall be subject to our standard Terms & Conditions of Sale attached. Terms inconsistent with those stated herein, which may appear on Purchaser's formal order, will not be binding on the Seller.” The Quote also stated that “Equipment is built to order. Orders are non-cancellable & non-returnable upon acceptance of the purchase order.” (Id., p.11.)
7. David Round's standard Terms and Conditions contained the following limited warranty:
LIMITED WARRANTY.: THE DAVID ROUND COMPANY manufactured and branded Products are warranted against defect in material and workmanship for a period of one year to the original purchaser. Products resold by THE DAVID ROUND COMPANY carry the original manufacturer's warranty. Any products found to be defective in material or workmanship will be repaired, replaced with same or similar device, or refunded at THE DAVID ROUND COMPANY'S sole discretion. Customer must obtain a Return Material Authorization number from THE DAVID ROUND COMPANY before returning any Products under warranty to THE DAVID ROUND COMPANY. Customer shall pay expenses for shipment of repaired or replacement Products to and from THE DAVID ROUND COMPANY. After examining and testing a returned product, if THE DAVID ROUND COMPANY concludes that a returned product is not defective, Customer will be notified, the product returned at Customer's expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Products has resulted from accident, abuse, misapplication, improper calibration by Customer or unauthorized maintenance or repair. (ECF 26-4, p. 7.)
8. Paragraph 4 of David Round's standard Terms and Conditions, which were specifically incorporated into its Quote, states as follows: “ORDERS: All orders are subject to acceptance by The DAVID ROUND COMPANY. THE DAVID ROUND COMPANY'S booking of an order shall constitute its acceptance of an order.” (Id.)
9. In response to the revised April 15, 2014 Quote, Reading Crane issued a Purchase Order dated May 20, 2014 to David Round for two “David Round Lo-Hed Wire Rope Hoist per quote.” (ECF 26-4. p. 14.) In the box captioned “P/N-ID#” were the words “See Attached Quote.” (Id.)
10. Lake averred that the “P/N-ID#” references the product being purchased and was not an acceptance of David Round's quote or the terms contained therein.” (ECF 30, Ex. A, ¶ 4.)
11. The Purchase Order stated that the “Date Required” for the two hoists was September 8, 2015. (ECF 26-4, p. 14.) The Purchase Order also stated that “Purchase Order subject to Reading Crane & Engineering Conditions of Sale” which were attached to the Purchase Order. (Id.)
12. Reading Crane's President, Kenneth Lake, averred that the “[h]oists were intended to be installed during a maintenance shutdown at the Exelon Peach Bottom Nuclear facility. Ergo, time was of the essence for delivery of the Hoists as reflected in Reading's purchase order.” (ECF 25-2. ¶ 5.)
13. Lake further averred that “David Round was selected as the designer and manufacturer of the Hoists based on the fact they had supplied other hoists using the Magnetek Variable Frequency Drive in the Peach Bottom facility and upon their representation that they were qualified to perform the work.” (Id. at ¶ 7.)
14. The same day that David Round received the Purchase Order (May 20, 2014), it issued an “Order Acknowledgement” to Reading Crane. (ECF 26-4, p. 16.) The Order Acknowledgment identifies, inter alia, the order date as 5/20/14, references Reading Purchase Order #PO-3830, ship date of 9/8/14, generally describes the hoists and component parts and states Drawing Approval is Required. (Id.) The September 8, 2014 delivery date was subsequently confirmed via email correspondence between the parties on June 29, 2014 and August 26, 2014. (ECF 25-10, 25-11.)
15. According to the Declaration of Downing, David Round issued the Order Acknowledgment to Reading Crane “only because the purchase order incorporated the April 15, 2014 quote.” (ECF 26-1, ¶ 10; ECF 26-4, p. 16.)
16. David Round's controller, David Fitch (“Fitch”) testified that to his knowledge no one at David Round read Reading Crane's Purchase Order before David Round submitted its Order Acknowledgment. (ECF 25-9, pp. 58-59.) Fitch further testified that he was not aware if anyone at David ...

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