                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2007

Vanalt Electrical v. Selco Mfg Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5239




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                                                              NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                              _______________

                                No. 05-5239/06-1434
                                 _______________

                  VANALT ELECTRICAL CONSTRUCTION INC,

                                  Appellee/Cross-Appellant

                                          v.

                   SELCO MANUFACTURING CORPORATION,

                                  Appellant/Cross-Appellee

                                 _______________

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 03-cv-06741)
                   District Judge: Honorable Ronald L. Buckwalter

                                 _______________

                               Argued March 27, 2007

               Before: FISHER, JORDAN and ROTH, Circuit Judges

                                (Filed: May 8, 2007)
                                 _______________

Mason Avrigian, Jr. [ARGUED]
Jeffrey P. Wallack
Wisler, Pearlstine, Talone, Craig,
  Garrity & Potash
484 Norristown Road - #100
Blue Bell, PA 19422
   Counsel for Appellee/Cross-Appellant
Stephen R. Knox [ARGUED]
Michael T. Hensley
Wilson, Elser, Moskowitz, Edelman
  & Dicker
33 Washington Street - 17 th Fl.
Newark, NJ 07102
   Counsel for Appellant/Cross-Appellee

                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       In this contract case, Selco Manufacturing Corp. (“Selco”) appeals from a

judgment of the United States District Court for the Eastern District of Pennsylvania,

entered on October 26, 2005 following a jury trial, against Selco in favor of Vanalt

Electrical Construction, Inc. (“Vanalt”) in the amount of $300,000. Vanalt cross-appeals

from the District Court’s order, entered on December 15, 2005, denying Vanalt’s request

for prejudgment interest.

       For the reasons that follow, we will vacate the judgment against Selco and remand

for a new trial to determine whether Vanalt may recover damages in this case and, if so,

in what amount.

                                             I.

       In September 2000, Vanalt entered into a contract with PKF-Mark III, Inc.,

agreeing to perform electrical work on a project for the Southeastern Pennsylvania

Transportation Authority (“SEPTA”). Vanalt turned to Selco in June 2001 for a price

                                             2
quote on multi-outlet underground cable connectors for the SEPTA project. Selco sent

the quote to Vanalt on June 20, 2001. By March 2002, SEPTA had approved the use of

Selco’s connectors, and, on March 12, 2002, Vanalt sent a purchase order to Selco for 73

connectors at a total price of $54,906. The purchase order confirmed that the parties had

agreed on the specifications for the connectors, including the crucial specification that the

connectors “shall be pre-insulated, watertight and submersible.” Selco started supplying

the connectors in June 2002, and all the connectors were installed by Vanalt between June

and November 2002.

       Vanalt tested the system containing the installed connectors for the first time in

November 2002. Essentially every segment of the system failed. Vanalt notified Selco of

the test results on December 9, 2002, contending that pin-holes in the insulation caused

the connectors to fail in a wet environment. Vanalt’s efforts to have Selco take

responsibility for resolving the problems with the connectors were not successful and,

under pressure to meet its contractual obligations on the SEPTA project, Vanalt decided

to fix the connectors itself. By August 2003, the connectors were satisfactory.

       After Selco refused to pay Vanalt for the costs associated with fixing the

connectors, Vanalt filed suit in the United States District Court for the Eastern District of

Pennsylvania on December 16, 2003, claiming that Selco had breached its contract, its

express warranty that the connectors would be watertight and submersible, and its implied

warranty that the connectors would be fit for a particular purpose. At trial in October



                                              3
2005, the jury found in favor of Vanalt on all three claims and awarded $300,000 in

damages. The District Court thereafter denied Vanalt’s request for prejudgment interest.

Selco appeals from the judgment entered by the District Court pursuant to the jury’s

verdict. Vanalt cross-appeals on the order denying prejudgment interest.

         The District Court had subject matter jurisdiction over this case pursuant to 28

U.S.C. § 1332. We have jurisdiction to review the District Court’s judgment and order

pursuant to 28 U.S.C. § 1291.

                                               II.

         Selco argues that the District Court erred during the trial by ruling as a matter of

law that the contract between Selco and Vanalt did not include terms that limited Selco’s

liability for consequential damages arising from the connectors. Selco argues, and we

agree, that the District Court’s ruling was in effect a judgment as a matter of law against

Selco on the affirmative defense that it had limited its liability by adding certain terms to

the contract.1 Our review of the District Court’s ruling is therefore plenary. Villanueva v.



  1
      The District Court ruled as follows:

         [The first of the] issues remaining that I told counsel I’d discuss here is the
         issue of the term and condition [sic] of the contract, which I find, as a
         matter of law, was not a part of this contract. The evidence doesn’t support,
         in my opinion, a finding by the jury that these terms and conditions
         identified in the record . . . were part of the contract and the jury would
         have to guess to reach such a conclusion.

The Court’s reasoning demonstrates that the ruling was indeed a judgment as a matter of
law on Selco’s defense. Vanalt’s brief indicates that it also interpreted the District

                                                4
Brown, 103 F.3d 1128, 1133 (3d Cir. 1997). We must determine “whether, viewing the

evidence in the light most favorable to the losing party, no jury could decide in that

person’s favor.” Id. Having viewed the evidence in that light, we conclude that whether

Selco had communicated to Vanalt terms that limited Selco’s liability and whether Vanalt

accepted those terms are questions of fact that must be decided by a jury.

       Selco presented evidence that its standard contract terms and conditions state that

Selco “will not allow or be liable, under any circumstances, for any special, incidental,

indirect or consequential damages of claims arising from the supply or use of any material

furnished by it.” Vanalt presented evidence that it never received the document

containing that language and so the limitation on liability was not part of its contract with

Selco. In response, three Selco employees testified that it was Selco’s standard policy to

attach the document to every quote it submitted.

       The District Court ruled that, even viewing the evidence in the light most favorable

to Selco, no jury could conclude that the document was part of the contract. We must

disagree. According to Federal Rule of Evidence 406:

       Evidence of the habit of a person or of the routine practice of an
       organization, whether corroborated or not and regardless of the presence of
       eyewitnesses, is relevant to prove that the conduct of the person or
       organization on a particular occasion was in conformity with the habit or
       routine practice.



Court’s ruling in this way. Vanalt Answering Brief at 26 (quoting Buczek v. Continental
Cas. Ins. Co., 378 F.3d 284, 288 (3d Cir. 2004), for this Court’s standard of review for a
judgment as a matter of law).

                                              5
Fed. R. Evid. 406. Here, the testimony of Selco’s employees regarding Selco’s routine

practice is relevant evidence that Selco acted in conformity with that practice by

transmitting to Vanalt the document containing the limitation on liability. See Envirex,

Inc. v. Ecological Recovery Assocs., Inc., 454 F. Supp. 2d 1329, 1333 (M.D. Pa. 1978),

aff’d 601 F.2d 574 (3d Cir. 1979) (concluding that evidence of routine business practice

was relevant to show that a document was part of a contract). When we view the

evidence in the light most favorable to Selco, as we must, we cannot conclude that no jury

could have accepted Selco’s evidence that its standard terms were sent to Vanalt and that

Vanalt accepted them as part of the contract. The District Court thus erred by not

submitting those factual issues to the jury.

                                               III.

       Selco also argues that the District Court erred by instructing the jury that Selco

bore the burden of proof as to whether Vanalt provided reasonable notice to Selco of the

breach, as required by 13 Pa. Cons. Stat. § 2607. “[O]ur review is plenary when the issue

is whether the instructions misstated the law.” Armstrong v. Burdette Tomlin Mem’l

Hosp., 438 F.3d 240, 245 (3d Cir. 2006). We agree with Selco that the District Court’s

instruction on this point was incorrect.

       Selco’s sale of goods to Vanalt is governed by Pennsylvania’s enactment of the

Uniform Commercial Code (“UCC”), 13 Pa. Cons. Stat. § 1101, et seq. According to that

statute, a buyer that has accepted goods under a contract “must within a reasonable time



                                                6
after he discovers or should have discovered any breach notify the seller of breach or be

barred from any remedy.” 13 Pa. Cons. Stat. § 2607(c)(1) (Pennsylvania enactment of

UCC § 2-607(c)(1)). At trial, Selco argued that Vanalt failed to provide reasonable

notice. Selco alleges it did not hear of any problem with the connectors for more than

five months after beginning the deliveries of them in June 2002. On this issue, the

District Court instructed the jury that “[t]he buyer must, within a reasonable time, provide

the seller with notice of the problem and thereby provide the seller with a reasonable time

and opportunity to cure the breach.” The Court stated that the issue of notice and

opportunity to cure was a defense on which “the defendant bears the burden of proof.” 2



  2
      The District Court’s instruction was as follows:

                 [I]f you . . . conclude that there’s been a breach of . . . warranties or
         the contract, before considering damages you must consider whether there
         was an opportunity given to SELCO to cure. It’s called an opportunity to
         cure. And this simply means this. When a buyer purchases goods from a
         seller that are nonconforming, . . . [t]he buyer must, within a reasonable
         time, provide the seller with notice of the problem and thereby provide the
         seller with a reasonable time and opportunity to cure the breach. Now, all
         of this is just common sense. You find a fault, you say, hey, guys, can you
         fix it up? That’s what we’re talking about. Now, a reasonable time to cure
         a breach depends on the nature and attending circumstances of the breach
         and the actions needed to effect the cure. Based upon the evidence, you
         must decide whether Vanalt in this case provided SELCO with reasonable
         notice and opportunity to cure prior to Vanalt having to remedy the problem
         at its own cost and whether SELCO ever notified Vanalt of any desire to
         inspect, test, or sample the multi-outlet connectors that Vanalt refused or
         failed to allow. . . . The question is, has defendant shown here that plaintiff
         did not give them an opportunity to cure? And, as I said, in determining
         that situation, you have to base it upon all the evidence that was presented
         with regard to that issue.

                                                 7
       The District Court’s instructions set forth a requirement for the buyer to give the

seller reasonable notice of a defect, as well as a requirement for the buyer to give the

seller a reasonable time to cure the defect. One of the challenges in this case is finding

the legal basis for requiring Vanalt to give Selco an opportunity to cure. The District

Court was apparently guided by the parties’ proposed jury instructions, which stated that

the seller must be given a reasonable time to cure.3 The parties supported that part of

their proposed instructions 4 with citations to Sections 2508 and 2607 of the Pennsylvania

UCC and four cases that interpret the requirements of Section 2508.5 Thus, the parties



              ....
              . . . I told you about the burden of proof, I told you that the defendant
       has the burden of proving whether or not sufficient time to cure was given
       here.
  3
    Selco asked for the following instruction: “When a buyer accepts a product from a
seller, and the buyer seasonably notifies the seller that the seller’s product is
nonconforming, the seller must be given a reasonable time to cure the nonconformity.”
Vanalt, in turn, asked for the following: “When a buyer purchases goods from a seller
that are nonconforming, below commercial standards and/or otherwise unfit for the
buyer’s purpose, as here, the law provides that the buyer must, within a reasonable time,
provide the seller with notice of the problem and thereby provide the seller with a
reasonable time and opportunity to cure the breach.”
  4
    Additional citations in the proposed instructions, to Pennsylvania model jury
instructions and UCC Section 2515, relate to the definition of “reasonable time” and the
seller’s right to inspect the goods, not to the issue of whether the seller must be given an
opportunity to cure.
  5
    Universal Mach. Co. v. Rickburn Enters., Civ. A. No. 90-6530, 1992 WL 180128
(E.D. Pa. July 23, 1992); Barrack v. Kolea, 651 A.2d 149 (Pa. Super. Ct. 1994); Koppers
Co. v. Brunswick Corp., 303 A.2d 32 (Pa. Super. Ct. 1973); Fowler & Williams, Inc. v.
Int’l Lithographing, 4 Phila. Co. Rptr. 168, 1980 WL 194195 (Pa. Ct. Com. Pl. June 17,
1980).

                                              8
imply that the opportunity-to-cure requirement arises from either Section 2508 or Section

2607. The difficulty here is that neither section appears to impose that requirement in a

case such as this.

         If the buyer rejects goods as nonconforming, Section 2508 provides the seller with

an opportunity to cure the nonconformity if the time for performance under the contract

has not expired or if the seller had reasonable grounds to believe the nonconformity

would be acceptable. 13 Pa. Cons. Stat. § 2508.6 However, that opportunity-to-cure

requirement only applies when the buyer has rejected the goods. Here, during the failed

attempts to resolve the nonconformity, Vanalt made it clear to Selco that the connectors

had been paid for and were SEPTA’s property. Rather than returning the connectors to

Selco, Vanalt fixed the connectors itself. Selco acknowledges that “[i]t is undisputed that




  6
      The statute reads:

         (a) General rule.–Where any tender or delivery by the seller is rejected
         because nonconforming and the time of performance has not yet expired,
         the seller may seasonably notify the buyer of his intention to cure and may
         then within the contract time make a conforming delivery.

         (b) Rejection of tender which seller believed acceptable.–Where the buyer
         rejects a nonconforming tender which the seller had reasonable grounds to
         believe would be acceptable with or without money allowance the seller
         may if he seasonably notifies the buyer have a further reasonable time to
         substitute a conforming tender.

13 Pa. Cons. Stat. § 2508.

                                              9
Vanalt accepted Selco’s goods.” Selco Opening Brief at 47. Since it is thus clear that

Vanalt did not reject the connectors, Section 2508 does not apply.

       Section 2607, on the other hand, applies when the buyer alleges a breach related to

goods that have been accepted. Again, a buyer that has accepted goods “must within a

reasonable time after he discovers or should have discovered any breach notify the seller

of breach or be barred from any remedy.” 13 Pa. Cons. Stat. § 2607(c)(1). However,

while a Comment accompanying Section 2607 states that such notice may “open[] the

way for normal settlement through negotiation,” 13 Pa. Cons. Stat. § 2607, Official

Comment No. 4, the statute does not, by its terms, require the buyer, having given notice,

to allow the seller additional time to cure the defect. The same Comment states that

“[t]he content of the notification need merely be sufficient to let the seller know that the

transaction is still troublesome and must be watched.” Id. Thus, Section 2607 simply

required Vanalt to give reasonable notice to Selco that there was a problem with the

connectors, so that the parties could have a reasonable opportunity to resolve Vanalt’s

concerns.

       In this appeal, both Selco and Vanalt argue over the interpretation of Section 2607.

Focusing on the proper burden of proof with respect to reasonable notice under Section

2607, rather than on the opportunity to cure, we understand the parties’ arguments to be

as follows. Selco contends that reasonable notice is an element of breach, so the buyer, to

prove its case, has the burden of proving that it gave reasonable notice. Vanalt rejoins



                                              10
that the notice required by Section 2607 is notice of the breach, which plainly indicates

that the breach must exist before the notice. Selco has offered no precedent to support its

view that there is no breach until after notice has been given, and we find Vanalt’s

reasoning the more persuasive.

       That does not end the inquiry, however, because even if notice is not necessary to a

finding of breach, it may still be a prerequisite to recovery for breach, and, hence, the

burden of proof would still be on the buyer. Indeed, our review of Pennsylvania

precedent and other authorities interpreting the UCC indicates that the Pennsylvania

Supreme Court would agree that a buyer must prove compliance with Section 2607 before

recovering for a breach of contract or warranty involving nonconforming goods as in this

case. First, at least one Pennsylvania court has concluded, in the context of a motion to

dismiss, that, rather than being an affirmative defense, “reasonable notification is a

condition precedent to recovery, and, therefore, the claimant has the burden of pleading

compliance with Section 2607(c)’s requirements.” Beneficial Commercial Corp. v.

Brueck, 23 Pa. D. & C.3d 34, 39 (Pa. Ct. Com. Pl. 1982). Second, several other courts

interpreting the analogous section in the Uniform Commercial Code enactments of other

states have concluded that the buyer must prove compliance with the notice requirement

in order to receive any remedy for breach. Standard Alliance Indus., Inc. v. Black

Clawson Co., 587 F.2d 813, 823 (6th Cir. 1978) (Ohio statute) (“[I]nasmuch as section 2-

607 operates as a condition precedent to any recovery, the burden of proof is on the



                                             11
plaintiff to show that notice was given within a reasonable time.”); Rich’s Restaurant,

Inc. v. McFann Enters., Inc., 570 P.2d 1305, 1306 (Colo. Ct. App. 1977) (Colorado

statute) (agreeing with the trial court that “notice of breach of warranty is in the nature of

a condition precedent to recovery” and that “proof of notice was an essential feature of

plaintiff’s case”); Gen. Matters, Inc. v. Paramount Canning Co., 382 So.2d 1262, 1264

(Fla. Dist. Ct. App. 1980) (Florida statute) (“[T]he burden is on the plaintiff to show that

he gave the required notice within a reasonable time.”) (citations omitted); Maybank v. S.

S. Kresge Co., 273 S.E.2d 681, 683 (N.C. 1981) (North Carolina statute) (“We think it

obvious from the language of the statute that seasonable notification is a condition

precedent to the plaintiff-buyer’s recovery. Thus, the burden of pleading and proving that

seasonable notification has been given is on the buyer.”) (citations omitted); Hepper v.

Triple U Enters., Inc., 388 N.W.2d 525, 527 (S.D. 1986) (South Dakota statute) (“Notice

is an element that must be specifically proven; it is not an affirmative defense.”). Thus,

the dominant position appears to be that, in a dispute over the sale of goods, the buyer

must prove compliance with the notice requirement of Section 2607.7 That result does

not imply that the breach is incomplete until notice is given. Rather, as the foregoing

cases hold, reasonable notice is a precondition to the buyer’s recovery for the breach.



  7
   We have found only one case to the contrary. In Jones v. Cranman’s Sporting Goods,
the Georgia Court of Appeals concluded that summary judgment for the defendant was
improper in the absence of any evidence of notice, “[s]ince the burden was on the
defendant to establish that no notice was given . . . .” 237 S.E.2d 402, 404 (Ga. Ct. App.
1977).

                                              12
       Because we conclude that the Pennsylvania Supreme Court would place the burden

of proving reasonable notice on the buyer, it follows that the District Court’s instruction

on this point was an incorrect statement of the law. Vanalt contends that, even if the

District Court was in error, the error was harmless, but that is not so.8 Selco had argued




  8
        Judge Fisher in his concurrence concludes that the error in the jury instruction was
harmless, since “Selco never argued that the timing of the notice was unreasonable ... .”
While Selco’s position was not preserved with perfect clarity, we are nevertheless
persuaded that Selco raised and preserved that argument for appeal.
        It is true that Selco does not contest that it received a letter from Vanalt in
December 2002 describing problems with the connectors. However, Selco did contest
whether that letter constituted reasonable notice, because delivery of the connectors began
some six months earlier, in June 2002. At trial, Selco argued: “So, what kind of
opportunity did SELCO have here? Was it a reasonable opportunity? Well, Vanalt
notified SELCO in December of 2002, about a month after the problems arose and about
six months after delivery. Then SELCO responded.” Later, while discussing mitigation
of damages, Selco argued: “Does it make sense to you that an experienced electrical
contractor [Vanalt] will wait months and months after he’s installed these connectors to
do any testing? Did Vanalt even test each section as it went in? . . . No. They waited
until everything was in and then they tested it and they found problems.” In our view,
those arguments adequately set forth Selco’s position that Vanalt was unreasonable in
failing to give notice until several months after delivery began. Cf. Int’l Union of
Electronic, Electric, Salaried, Mach. & Furniture Workers v. Murata Erie N. Am., Inc.,
980 F.2d 889, 902 n.12 (3d Cir. 1992) (concluding that the defendant’s position was
sufficiently clear from its recitation of the facts to preserve that position). The District
Court apparently agreed that reasonable notice was an issue at trial, because, significantly,
it instructed the jury on that issue. See Murata, 980 F.2d at 898 n.6 (concluding that the
District Court’s treatment of an issue as part of the case supported conclusion that the
issue was adequately raised).
        Thus, while Selco agreed that it received notice in December 2002, it argued, and a
reasonable jury could have concluded, that such notice was not reasonable under the
circumstances. The error in the jury instructions was therefore not harmless. Cf.
Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)
(concluding that an error was not harmless because “but for [the] error a reasonable jury
could have found in favor of [the plaintiff]”).

                                             13
that the alleged five month delay between delivery and notice of breach was not

reasonable. The reasonableness of that five month notice is thus a fact issue for the jury,

Standard Alliance, 587 F.2d at 823, to be decided with the burden of proof placed on

Vanalt. Because the issue is notice under Section 2607 rather than opportunity to cure,

the relevant questions include when Selco first received notice of a problem and whether

that notice was given within a reasonable time after Vanalt discovered or should have

discovered the problem.

                                             IV.

       Selco also argues that the District Court erred in admitting particular expert

testimony and other evidence that Selco contends was unfairly prejudicial. As we write

solely for the benefit of the parties, we need not dilate on these evidentiary rulings.

Suffice it to say we have reviewed the rulings for abuse of discretion, Abrams v.

Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995); In re Paoli R.R. Yard PCB Litig., 916

F.2d 829, 856 n.33 (3d Cir. 1990), and, in light of the record, have concluded that there

was no abuse of discretion in admitting the evidence of which Selco complains.

       As for Vanalt’s cross-appeal regarding prejudgment interest, we agree with the

District Court that Vanalt is not entitled to prejudgment interest as a matter of right under

Pennsylvania law. See Black Gold Coal Corp. v. Shawville Coal Co., 730 F.2d 941, 943-

44 (3d Cir. 1984). We also conclude that, on this record, the District Court did not abuse

its discretion in choosing not to award prejudgment interest. However, because we will



                                              14
vacate the judgment and remand for a new trial, we will also vacate the order denying

prejudgment interest. While we do not imply that the result should be different after the

new trial, we do not wish to tie the District Court’s hands in its consideration of the issue

in light of the record that develops on remand.

                                             V.

       The legal errors discussed above require us to vacate the damages award against

Selco. Those errors, however, are unrelated to the jury’s determination that Selco

breached its contract and express and implied warranties. Therefore, we leave those

determinations intact, but will remand the case for a new trial to determine (1) whether

the limitation of liability term that Selco says it added to the contract was indeed

communicated to Vanalt and accepted as part of the contract in this case; (2) whether

Vanalt provided reasonable notice to Selco of the breach; and (3) the amount of damages,

if any, owed to Vanalt by Selco.9




  9
   Because we will vacate the damages award, we do not reach the issue of whether
Vanalt’s damages may properly be calculated using the Eichleay formula for unabsorbed
home office overhead. Eichleay Corp., A.S.B.C.A. No. 5183, 60-2 B.C.A. (CCH) ¶
2688, 1960 WL 538 (July 29, 1960), aff’d on reconsideration 61-1 B.C.A. (CCH) ¶ 2894,
1960 WL 684 (Dec. 27, 1960). While we reject Selco’s argument that the Eichleay
formula may only be used in disputes involving government contracts, the District Court
should make a determination on the record whether Vanalt has established the prima facie
elements to support the use of the Eichleay formula in the present case.

                                              15
FISHER, Circuit Judge, concurring.

         Although I agree with the result reached by the majority, I write separately as I

disagree with the harmless error analysis based on the parties’ arguments in this case.

While the case law in this area is limited, I agree with the majority’s determination that

the buyer has the burden of proving breach and that it provided notice within a reasonable

time to the seller that a breach occurred. The District Court’s jury instructions treated

notice and opportunity to cure as an affirmative defense thereby improperly placing the

burden on Selco. Although the instruction was improper, I believe that it was harmless

error.

         As discussed by the majority, Vanalt had the burden of proving that it provided

Selco with notice of the breach within a reasonable time. Such notice provides a seller

with a reasonable time to cure. Although the focus is on notice, the parties mistakenly

focus on whether there was a reasonable opportunity to cure. This improper focus is what

leads me to depart from the majority’s analysis.

         Selco admitted at trial and in its briefs to this Court that Vanalt provided it with

notice. Selco never argued that the timing of the notice was unreasonable, rather its

argument was limited to a claim that Vanalt did not provide it with a reasonable

opportunity to cure. As the majority points out, in its closing argument Selco stated: “So,

what kind of opportunity did Selco have here? Was it a reasonable opportunity?”

Opportunity refers to the opportunity to cure, not whether Vanalt provided reasonable



                                                16
notice. The argument regarding mitigation of damages similarly does not raise any issue

regarding the reasonableness of the notice provided. Therefore, Selco admitted that

Vanalt met its burden of proving notice.

       Selco’s admission makes the flawed jury instructions a harmless error. An error is

harmless “only if it is highly probable that the error did not affect the outcome of the

case.” Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005). The admission of

receipt of notice makes it highly probable that the improper jury instruction did not affect

the outcome of the case. Although the error was harmless, on remand, the District

Court’s jury instruction should place the burden of proving notice on Vanalt. Therefore, I

concur in the outcome of this case.




                                             17
