J-S31026-19
2020 PA Super 32
ROBERT J. PASS AND DOROTHY J. PASS IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellants
v.
PALMIERO AUTOMOTIVE OF BUTLER,
INC., JON D. PALMIERO, AND
KATHERINE R. WILLIAMS
Appellees No. 1769 WDA 2018
Appeal from the Order Entered November 16, 2018
In the Court of Common Pleas of Allegheny County
Civil Division at No: AR-18-002567
BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.
OPINION BY STABILE, J.: FILED FEBRUARY 11, 2020
Appellants, Robert J. Pass and Dorothy J. Pass, appeal from an order
granting the motion for summary judgment of Appellees, Palmiero Automotive
of Butler, Inc., Jon D. Palmiero, and Katherine R. Williams, and dismissing
Appellants’ action with prejudice. Appellants allege that Appellees committed
fraud by selling them a used Honda 2015 CR-V (“the vehicle”) with a defective
roof and then refusing to compensate them when rain seeped in through the
roof and damaged the vehicle. We affirm.
Appellants alleged in their complaint that they visited Palmiero
Automotive of Butler, Inc., on June 4, 2018, and a salesperson, Williams,
showed them the vehicle. Williams represented that the vehicle was of good
quality and had no issues. Appellees marketed the vehicle as a certified pre-
owned vehicle, i.e., a vehicle that is less than six years old, has fewer than
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80,000 miles, and passed a 182-point Inspection CheckList (“CheckList”). The
Checklist included a certification that the roof satisfied “paint finish and
quality” standards. Appellants placed a down payment of $2,500 to purchase
the vehicle.
On June 11, 2018, Appellants paid the balance of the total purchase
price of $22,124.00. Appellants signed a Retail Purchase Agreement and a
Buyer’s Guide (sometimes collectively “the purchase documents”) to complete
the transaction.
The Retail Purchase Agreement contained several pertinent provisions.
First, it stated:
Any warranties by a manufacturer or supplier other than our
Dealership are theirs, not ours, and only such manufacturer or
supplier shall be liable for performance under such warranties. We
neither assume nor authorize any other person to assume for us
any liability in connection with the sale of the Vehicle and the
related goods and services. If we enter into a service contract
with you at the time of, or within 90 days of, the date of this
transaction, we may not limit or modify the implied warranties.
CONTRACTUAL DISCLOSURE STATEMENT (USED VEHICLES
ONLY). The information you see on the window form for
this Vehicle [the Buyer’s Guide] IS PART OF THIS
CONTRACT. Information on the window form overrides any
contrary provisions in the contract of sale (emphasis added).
Second, the Agreement included the following “as-is” clause:
[] AS-IS: THIS MOTOR VEHICLE IS SOLD AS-IS WITHOUT ANY
WARRANTY EITHER EXPRESS OR IMPLIED. THE PURCHASER WILL
BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY
DEFECTS THAT PRESENTLY EXIST OR THAT MAY OCCUR IN THE
VEHICLE. We expressly disclaim all express or implied warranties,
including any implied warranties of merchantability or fitness for
a particular purpose.
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This clause was not checked. Third, the Agreement included the following
integration clause:
This Agreement and any documents which are part of this
transaction or incorporated herein comprise the entire
agreement affecting this Retail Purchase Agreement and no
other agreement or understanding of any nature concerning the
same has been made or entered into or will be recognized. I have
read all of the terms and conditions of this Agreement, and
agree to them as if they were printed above my signature .
..
[Emphasis added].
The Buyer’s Guide includes the following important text:
[x] AS IS—NO DEALER WARRANTY
THE DEALER DOES NOT PROVIDE A WARRANTY FOR ANY REPAIRS
AFTER SALE.
[] DEALER WARRANTY
[ ] FULL WARRANTY.
[ ] LIMITED WARRANTY. The dealer will pay __% of the labor and
__% of the parts for the covered systems that fail during the
warranty period. Ask the dealer for a copy of the warranty, and
for any documents that explain warranty coverage, exclusions,
and the dealer’s repair obligations. Implied warranties under your
state’s laws may give you additional rights.
The box for “As Is—No Dealer Warranty” was checked.
On top of the next page of the Buyer’s Guide, two boxes for two non-
dealer warranties were checked: a manufacturer’s used vehicle warranty and
a service contract.
In addition, one of Appellees’ representatives signed the Checklist to
certify that all applicable items on the Checklist were inspected, all required
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reconditioning was performed, and the vehicle was eligible to be a certified
pre-owned vehicle.
On June 11, 2018, Appellants took the vehicle home. There were rain
showers overnight while the vehicle remained parked outside Appellants’
home. The following morning, Appellants discovered that the vehicle’s interior
was flooded due to a leak in the roof. Appellants called Appellees and
demanded to return the vehicle either for complete reimbursement or for a
new vehicle. Appellees rejected both proposals.
On July 17, 2018, Appellants filed a two-count complaint against
Appellees alleging breach of the Unfair Trade Practices and Consumer
Protection Law (“UTPCPL”), 73 P.S. §§ 201-1-201-9.3, and common law fraud.
Appellants alleged that Appellees misrepresented the quality of the vehicle
and concealed the fact that its roof was defective. Appellees filed an answer
to the complaint with new matter and then moved for summary judgment.
On November 13, 2018, the trial court granted summary judgment to
Appellees. Appellants filed a timely notice of appeal, and the trial court filed
a Pa.R.A.P. 1925(a) opinion without ordering Appellants to file a concise
statement of issues raised on appeal.
Appellants raise three issues in this appeal:
1. Did the Trial Court abuse its discretion and commit an error of
law by granting summary judgment when there were genuine
issues of material fact to be resolved by a fact finder?
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2. Did the Trial Court abuse its discretion and commit an error of
law when it failed to consider whether Appellants’ claims could be
construed as fraud in the execution?
3. Did the Trial Court abuse its discretion and commit an error of
law by denying Appellants leave to amend when amendment
would not be futile?
Appellants’ Brief at 4.
When we review a challenge to the entry of summary judgment,
[we] may disturb the order of the trial court only where it is
established that the court committed an error of law or abused its
discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P. No. 1035.2. The rule
[provides] that where there is no genuine issue of material fact
and the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the nonmoving party
bears the burden of proof on an issue, he may not merely rely on
his pleadings or answers in order to survive summary judgment.
Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will review the record in the light
most favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013).
Appellants argue that the Retail Purchase Agreement and the Buyer’s
Guide are ambiguous because their “as-is” clauses are “susceptible to multiple
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interpretations.”1 Appellants’ Brief at 15. Based on this perceived ambiguity,
Appellants claim that the trial court erred in entering summary judgment and
should have admitted parol evidence to construe the parties’ agreement. We
conclude the trial court’s decision was correct.
The cardinal rule in interpreting a contract is to ascertain the parties’
intent. Lesko v. Frankford Hosp.-Bucks Cty., 15 A.3d 337, 342 (Pa. 2011).
The court must construe the entire contract to arrive at its intent.
Ramalingam v. Keller Williams Realty Group, Inc., 121 A.3d 1034, 1046
(Pa. Super. 2015). If contractual terms are clear and unambiguous, they are
deemed the best reflection of the parties’ intent. Kripp v. Kripp, 849 A.2d
1159, 1162 (Pa. 2004). If they are ambiguous, it is permissible to ascertain
their meaning through parol (i.e., extrinsic) evidence. Murphy v. Duquesne
Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001). Contractual terms
are ambiguous “if they are subject to more than one reasonable interpretation
when applied to a particular set of facts.” Id. at 430. A contract is not
ambiguous, however, merely because the parties do not agree on its
construction. Nicholas v. Hoffman, 158 A.3d 675, 693 (Pa. Super. 2017).
Nor does ambiguity exist if it appears that “only a lawyer’s ingenuity has made
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1Appellants do not mention the Checklist in this argument. See Appellants’
Brief at 14-20. Thus, we do not examine whether the Checklist is a source of
ambiguity. Appellants refer to the Checklist only in their second argument on
appeal, which we discuss infra.
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the language uncertain.” Consolidated Rail Corporation v. ACE Property
& Casualty Insurance Co., 182 A.3d 1011, 1026 (Pa. Super. 2018).
In this case, the Retail Purchase Agreement provides that (1) the
Buyer’s Guide was “part of” the parties’ agreement; (2) the information in the
Buyer’s Guide “overrides any contrary provisions” in the Retail Purchase
Agreement; and (3) any documents that are “part of this transaction or
incorporated herein” comprise the entire agreement. Thus, the parties
intended the Retail Purchase Agreement and Buyer’s Guide to be construed
together, with the Buyer’s Guide overriding any contrary provisions in the
Retail Purchase Agreement. The “as-is” clause in the Retail Purchase
Agreement was not checked. At the bottom of the same page, both Appellants
signed the Retail Purchase Agreement. Their signatures were directly beneath
the provision that the parties’ agreement included any documents that were
“part of this transaction,” i.e., the Buyer’s Guide. These facts make clear that
Appellants reviewed the Buyer’s Guide before signing the Retail Purchas
Agreement. Further, in the Buyer’s Guide, the box was checked next to “AS
IS—NO DEALER WARRANTY. THE DEALER DOES NOT PROVIDE A WARRANTY
FOR ANY REPAIRS AFTER SALE.” Directly beneath this text are boxes for a
full dealer warranty and limited dealer warranty. Neither of these boxes were
checked. At the top of the next page, two boxes were checked in the “Non-
Dealer Warranties” section: a box stating “MANUFACTURER’S USED VEHICLE
WARRANTY APPLIES” and a box providing a “service contract.” On the final
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page of the Buyer’s Guide, Appellants signed the signature line acknowledging
receipt of this document. Viewed collectively, these facts demonstrate that
Appellants reviewed both the Retail Agreement and Buyer’s Guide, examined
all of their options, elected not to obtain any dealer warranty, and instead
selected two non-dealer warranties. Because there was no ambiguity, the
trial court properly declined to admit parol evidence.
Appellants insist that the purchase documents are ambiguous due to
textual differences between the “as-is” clauses in the Retail Purchase
Agreement and Buyer’s Guide. According to Appellants, the Retail Purchase
Agreement’s “as-is” clause absolves Appellees from repairing defects that
arise before or after sale, but the Buyer’s Guide’s “as-is” clause has narrower
language that only excuses Appellees from repairing defects arising after sale.
Appellants further claim that the Retail Purchase Agreement’s “as-is” clause
precludes express or implied warranties, whereas the Buyer’s Guide’s “as-is”
clause precludes only implied warranties. Based on these differences,
Appellants argue that parol evidence is necessary to define the scope of the
Buyer’s Guide’s “as-is” clause, and such evidence will demonstrate that
Appellees remain responsible under this clause for pre-sale defects, including
the leak in the vehicle’s roof.
Appellants read too much into linguistic variations between the two “as-
is” clauses. The Buyer’s Guide’s “as-is” clause conveys the same concept as
the Retail Purchase Agreement: after the vehicle is sold, Appellees are not
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responsible for “any” repairs, regardless of whether the defect necessitating
the repair occurred before or after the sale. It is also telling that (1) the
dealer’s full and limited warranty boxes in the Buyer’s Guide, directly beneath
the checked “as-is” clause, are unchecked, (2) the non-dealer’s warranties on
the next page is checked, (3) Appellants signed the signature line on the final
page of the Buyer’s Guide acknowledging receipt of this document, and (4)
Appellants signed the Retail Purchase Agreement directly beneath the
provision that the parties’ agreement included the Buyer’s Guide.
Ramalingam, 121 A.3d at 1046 (court must construe entire contract to
decipher its intent). Had Appellants intended for Appellees to repair pre- or
post-sale defects, they would have selected the full or the limited dealer
warranty options instead of allowing these boxes in the Buyer’s Guide to
remain unchecked. Appellants eschewed these options, since the “as-is”
option and non-dealer warranties were checked instead.
In their second argument, Appellants assert that summary judgment
was improper because the court should have permitted parol evidence to
demonstrate Appellees’ fraud in the execution of the contract. Appellants
state:
Throughout the entire transaction, Appellees represented that the
CR-V was a “certified pre-owned” vehicle and did not contain any
material defects. Based upon these representations, [Appellants]
understood the purchase agreement to not be “as-is” and that the
guarantee of the vehicle’s “certified” quality was included in the
contract’s terms. This guarantee was represented through the
Honda Certified Pre-owned, 182 Point Inspection Checklist.
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Appellants understood this to be a document which was a part of
the transaction and, as a result, the contract.
Appellants’ Brief at 21. We hold that the fraud-in-the-execution doctrine does
not apply to this case.
When the parties intend for a writing to be their entire contract, parol
evidence is inadmissible to demonstrate fraud in the inducement of the
contract, i.e., “an opposing party made false representations that induced the
complaining party to agree to the contract.” Toy v. Metropolitan Life Ins.
Co., 928 A.2d 186, 205 (Pa. 2007). To determine whether or not a writing is
the parties’ entire contract,
the writing must be looked at and if it appears to be a contract
complete within itself, couched in such terms as import a complete
legal obligation without any uncertainty as to the object or extent
of the [parties’] engagement, it is conclusively presumed that [the
writing represents] the whole engagement of the parties. An
integration clause which states that a writing is meant to
represent the parties’ entire agreement is also a clear sign that
the writing is meant to be just that and thereby expresses all of
the parties’ negotiations, conversations, and agreements made
prior to its execution.
Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004)
(citation and internal quotations and punctuation omitted). Conversely, parol
evidence is admissible to demonstrate fraud in the execution of a contract,
i.e., to show that a party “was mistaken as to the terms and the actual
contents of the agreement he executed due to the other’s fraud.” Toy, 928
A.2d at 205.
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Here, Appellants argue that Appellees “represented” through the
Checklist that the vehicle was of sufficient quality, Appellants’ Brief at 21, a
claim that Appellants entered the contract due to fraudulent
misrepresentations in the Checklist. This was merely a claim of fraud in the
inducement, not an actionable claim of fraud in the execution.
Finally, Appellants argue that the trial court should have granted them
leave to amend their complaint to allege breach of contract or negligent
misrepresentation. We disagree. The decision whether to allow plaintiffs to
amend their complaint lies within the sound discretion of the trial court, and
we will not disturb that decision on appeal absent an abuse of discretion.
Romah v. Hygienic Sanitation Co., 705 A.2d 841, 857 (Pa. Super. 1997).
The court need not grant leave to amend, however, where it reasonably
appears that the amendment will be futile. Stempler v. Frankford Trust
Co., 529 A.2d 521, 524 (Pa. Super. 1987). Due to the integration clause in
the Retail Purchase Agreement, parol evidence of negligent misrepresentation
or breach of contract in the inducement of the contract is inadmissible. HCB
Contractors v. Liberty Place Hotel Assoc., 652 A.2d 1278, 1279 (Pa.
1995). Further, claims of negligent misrepresentation and breach of contract
flounder because the Retail Purchase Agreement and Buyer’s Guide
demonstrate that Appellants opted to obtain non-dealer warranties but not a
dealer warranty.
Order affirmed.
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Judge Olson joins opinion.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2020
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