J-A30029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRETT SILVER                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

PORSCHE OF THE MAIN LINE AND
ROBERT DISTANISLAO

                            Appellee                 No. 1057 EDA 2014


               Appeal from the Order Entered February 27, 2014
                In the Court of Common Pleas of Bucks County
                      Civil Division at No(s): 2013-01615


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 10, 2015

        Appellant, Brett Silver, appeals from the February 27, 2014 order

sustaining the preliminary objections filed by Appellees, Porsche of the Main

Line (the Dealer) and Robert DiStanislao, to Silver’s amended complaint.

After careful review, we affirm.

        We summarize the facts and procedural history of this case as follows.

On October 8, 2012, Silver entered into a purchase order contract with the

Dealer for a used 2009 Ferrari 599 GTB (Ferrari) for the purchase price of

$232,630.56.      Appellant’s First Amended Complaint, 4/30/13, at ¶¶ 6, 9.

Silver and the Dealer had engaged in several prior sales transactions for

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A30029-14


other vehicles without incident. Id. at ¶ 26. At the time the parties entered

into the purchase order contract, the Dealer did not have the Ferrari in its

inventory or on its lot.     Id. at ¶ 10.      Instead, DiStanislao, the principal

shareholder of the Dealer, located a number of comparable vehicles at

Silver’s request, and Silver selected the Ferrari from those vehicle listings.

Id.    at    ¶¶   27-31.    Silver   alleges   that   DiStanislao   made   various

representations about the condition of this Ferrari, including, in part, that it

had no prior history of damage or paintwork. Id. at ¶ 31.

       There is no dispute that Silver and the Dealer entered into the

purchase order contract on October 8, 2012.             Preliminary Objections of

Appellees to Appellant’s First Amended Complaint, 5/20/13, at ¶ 1, Exhibit

A; Appellant’s Answer to Preliminary Objections of Appellees, 6/21/13, at ¶

1. The contract indicates that Silver is purchasing a used 2009 Ferrari 599

GTB.        Preliminary Objections of Appellees to Appellant’s First Amended

Complaint, at Exhibit A (Purchase Order Contract).          Under the “Additional

Equipment” section of the purchase order, it states “AS-IS NO WARRANTY.”

Id.     Further, the purchase order contains a separate box labeled

“WARRANTY INFORMATION” that is set off from the rest of the contract with

the following “AS IS” provision, “AS IS – This motor vehicle is sold ‘AS IS’

without any warranty either expressed or implied. The purchaser will bear

the entire expense of repairing or correcting any defect that presently exists

or that may occur in the vehicle.” Id. (emphasis in original). Directly below


                                        -2-
J-A30029-14


that provision in the warranty information box is a signature line, which

Silver signed separately.        Id.     Moreover, the purchase order contains an

integration clause specifying, in relevant part, as follows.

              Purchaser agrees that this order includes all of the
              terms and conditions on both the face and reverse
              side hereof, that this order cancels and supercedes
              any prior agreement and as of the date hereof
              comprises the complete and exclusive statement of
              the terms of agreement relating to the subject
              matters covered hereby.

Id.   Silver and the Dealer’s representative endorsed the contract on the

signature line directly below the foregoing clause. Id.

       Thereafter, the Dealer purchased the vehicle from a third-party dealer,

who then delivered it to the Dealer. Appellant’s First Amended Complaint,

4/30/13, at ¶¶ 31-32. The Dealer inspected the Ferrari, and Silver accepted

delivery and took possession of the vehicle on October 20, 2012. Id. at ¶

35-36, 40. On the same day, Silver drove the Ferrari to a third-party Ferrari

dealer, Algar Ferrari (Algar). Id. at ¶ 41. Silver visited Algar to inspect a

different vehicle he had ordered that was being prepared for shipment to his

vacation home in Florida.          Id.    While at Algar, an Algar representative

noticed that several locations of Silver’s Ferrari exhibited signs of damage to

the clear coat1 as well as evidence of repainting. Id. at ¶¶ 42-45. Silver

____________________________________________


1
 The clear coat is a glossy, transparent coating applied over the basecoat to
protect it from abrasion and ultraviolet light.




                                           -3-
J-A30029-14


claims this cosmetic damage significantly impairs the value of the Ferrari.

Id. at ¶¶ 23-25. After discovering the damage, Silver contacted the Dealer

and DiStanislao, who inspected the Ferrari and offered to accept it back in

exchange for full market value as long as Silver used the credit to purchase

another vehicle from DiStanislao. Id. at ¶ 52. Silver rejected this proposal

and instituted the instant action. Id. at ¶ 53.

        On March 6, 2013, Silver filed his complaint. Thereafter, on April 30,

2013, Silver filed his amended complaint in response to Appellees’ initial

preliminary objections.    In count one of his amended complaint, Silver

claims Appellees made fraudulent representations by failing to provide a true

description of the condition of the vehicle, upon which representations Silver

reasonably relied in deciding to purchase the vehicle. Id. at ¶¶ 61-81. In

count two of his amended complaint, Silver avers Appellees violated the

Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL),

73 P.S. §§ 201-1 to 201-9.3, by misrepresenting the condition of the

vehicle.     Id. at ¶¶ 82-100.     In count three, Silver alleges Appellees

contravened the federal Magnuson-Moss Warranty Improvement Act, 15

U.S.C. §§ 2301-2312, by not honoring express warranties as well as those

implied by Pennsylvania law.      Id. at ¶¶ 101-112.    In count four, Silver

asserts Appellees violated the Pennsylvania Uniform Commercial Code (UCC)

by delivering a vehicle that did not conform to the material terms of the

sale.      Id. at ¶¶ 113-122.     In count five, Silver contends Appellees


                                     -4-
J-A30029-14


negligently misrepresented the history and condition of the vehicle. Id. at

¶¶ 123-136.

      Thereafter, on May 20, 2013, Appellees filed preliminary objections to

the amended complaint in the nature of demurrers and a motion to strike.

Appellees first argued that DiStanislao could not be held personally liable for

his conduct that was within the scope of his employment, agency, and

authority as the primary shareholder of the Dealer. Appellees’ Preliminary

Objections to Appellant’s First Amended Complaint, 5/20/13 at 8-9. Next,

Appellees contended that the combination of the “as is” warranty and the

integration clause in the purchase order rendered Silver’s claims legally

insufficient as any oral representations would be impermissible parol

evidence.   Id. at 10-23.   Further, Appellees claimed that the tort claims

based on fraudulent conduct in counts one, two, and five were barred by the

“economic loss doctrine,” which prevents plaintiffs from recovering in tort for

claims that arise solely out of a breach of contract. Id. at 23-27. Finally,

Appellees moved to strike the demands for punitive damages because

Appellees’ alleged conduct would not support the imposition of said

damages. Id. at 27.




                                     -5-
J-A30029-14


       In its February 27, 2014 order,2 the trial court sustained Appellees’

preliminary objections.       On March 26, 2014, Silver filed a timely notice of

appeal and a concise statement of errors complained of on appeal pursuant

to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On May

28, 2014, the trial court filed its opinion pursuant to Rule 1925(a). In its

opinion, the trial court explained that it sustained the demurrers to holding

DiStanislao individually liable and to all of the counts against the Dealer

based on the “as is” warranty combined with the integration clause. 3 Trial

Court Opinion, 5/28/14, at 1-2.

       On appeal, Silver raises the following issues for our review.

              Is Appellant entitled to a reversal of the trial court’s
              ruling when, applying Pennsylvania law, the trial
              court abused its discretion and/or misapplied the law
              by:

                     a.    Sustaining    Appellees’    preliminary
                     objections on the basis that Appellant’s
                     [f]raudulent [m]isrepresentation, Magnuson-
                     Moss       Warranty      Act,     [n]egligent
                     [m]isrepresentation and UCC claims are
                     barred, although such claims are permissible

____________________________________________


2
 The order was dated February 26, 2014, and it was entered on the docket
on February 27, 2014.
3
  We note that while the trial court’s February 27, 2014 order did not
expressly dismiss the amended complaint, “an order granting preliminary
objections in the nature of a demurrer is a final order and is, therefore,
appealable to this Court immediately.” D’Elia v. Folino, 933 A.2d 117, 121
(Pa. Super. 2007) (citations omitted), appeal denied, 948 A.2d 804 (Pa.
2008). Accordingly, we have jurisdiction over this appeal.



                                           -6-
J-A30029-14


                   due to deficiencies in the “AS IS” disclaimer;
                   and

                   b.    Sustaining the preliminary objection
                   regarding claims asserted against Appellee
                   DiStanislao, in his individual capacity, although
                   such claims raised a genuine issue of material
                   fact.

Silver’s Brief at 5.

      Silver’s claims challenge the trial court’s decision to sustain Appellees’

preliminary objections in the nature of a demurrer.         When reviewing said

order, we are guided by the following.

                    Our standard of review of an order of the trial
             court overruling or granting preliminary objections is
             to determine whether the trial court committed an
             error of law. When considering the appropriateness
             of a ruling on preliminary objections, the appellate
             court must apply the same standard as the trial
             court.

                    Preliminary objections in the nature of a
             demurrer test the legal sufficiency of the complaint.
             When considering preliminary objections, all material
             facts set forth in the challenged pleadings are
             admitted as true, as well as all inferences reasonably
             deducible therefrom. Preliminary objections which
             seek the dismissal of a cause of action should be
             sustained only in cases in which it is clear and free
             from doubt that the pleader will be unable to prove
             facts legally sufficient to establish the right to relief.
             If any doubt exists as to whether a demurrer should
             be sustained, it should be resolved in favor of
             overruling the preliminary objections.

Lenau v. Co-eXprise, Inc., 102 A.3d 423, 428-429 (Pa. Super. 2014),

quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).




                                       -7-
J-A30029-14


      Here, the trial court concluded that the fully integrated, written

purchase order contract containing an “as is” clause would bar the

introduction of parol evidence of pre-contract representations made by the

Dealer and would preclude finding that Silver’s reliance on any of those

representations was justifiable. Trial Court Opinion, 5/28/14, at 6-16. We

agree.

      In the first issue presented for our review, Silver contends that the “as

is” clause in the purchase order contract is deficient and does not preclude

his causes of action based on pre-contract oral representations of the

Ferrari’s condition and his justifiable reliance thereon.   Silver’s Brief at 5.

We begin by noting that our Supreme Court has explained the parol

evidence rule as follows.

            [W]here “‘the parties, without any fraud or mistake,
            have deliberately put their engagements in writing,
            the law declares the writing to be not only the best,
            but the only evidence of their agreement[;]’” that
            “[a]ll preliminary negotiations, conversations and
            verbal agreements are merged in and superseded by
            the subsequent written contract[;]'” and that
            “‘unless fraud, accident, or mistake be averred, the
            writing constitutes the agreement between the
            parties, and its terms cannot be added to nor
            subtracted      from      by    parol     evidence.’”

Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 204 (Pa. 2007), quoting

Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004).

“Once a writing is determined to be the parties’ entire contract, the parol

evidence rule applies and evidence of any previous oral or written


                                     -8-
J-A30029-14


negotiations or agreements involving the same subject matter as the

contract is almost always inadmissible to explain or vary the terms of the

contract.”   Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539,

546 (Pa. Super. 2005), quoting Yocca, supra.             Initially, to determine

whether the parol evidence rule applies, we must decide whether the written

contract is the parties’ entire contract.    Id.   “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, supra.

      Our Supreme Court has recognized exceptions to the parol evidence

rule, such as when a party alleges that the contract is ambiguous.           Toy,

supra.   Further, parol evidence is admissible to prove averments that a

term was omitted from the writing due to fraud, accident, or mistake, i.e., a

claim for fraud in the execution of the contract.      Id.   Parol evidence may

not, however, be admitted to show one party made a false representation

that persuaded the other party to enter the contract, i.e., a claim for fraud in

the inducement. Id.

      Herein, there is no dispute that both parties executed the purchase

order contract. It contained all of the essential terms for the purchase of the

Ferrari, including the parties, the condition of the vehicle, and the total price,

including a deduction for the value of two cars Silver was trading-in towards


                                      -9-
J-A30029-14


the purchase price.   See Appellees’ Preliminary Objections to Appellant’s

First Amended Complaint, 5/20/13, at Exhibit A (Purchase Order Contract).

It also contained an integration clause stating that the contract was the

parties’ entire agreement that both “cancels and supercedes” any prior

agreements and “comprises the complete and exclusive statement of the

terms of agreement relating to the subject matters covered hereby.” Id.

      It is also unambiguous regarding the used, “as is” condition of the

Ferrari. The box denoting its condition as “used” is marked with “XX”. Id.

The words “AS-IS NO WARRANTY” are typed into the “additional equipment”

section of the contract. Id. Further, in a separate box labeled “Warranty

Information,” the checked off “AS IS” clause states “[t]his motor vehicle is

sold ‘AS IS’ without any warranty either expressed or implied.            The

purchaser will bear the entire expense of repairing or correcting any defect

that presently exists or that may occur in the vehicle.”   Id. (emphasis in

original). Directly below that, in the “Warranty Information” box, there is a

signature line, which Silver signed. Id.

      It is clear that the words “as is” disclaim any implied warranties. The

Pennsylvania Commercial Code provides that “[u]nless the circumstances

indicate otherwise, all implied warranties are excluded by expressions like

‘as is,’ ‘with all faults’ or other language which in common understanding

calls the attention of the buyer to the exclusion of warranties and makes

plain that there is no implied warranty.”    13 Pa.C.S.A. § 2316(c)(1); see


                                    - 10 -
J-A30029-14


also PBS Coals, Inc. v. Burnham Coal Co., 558 A.2d 562, 564 (Pa.

Super. 1989) (“when something is accepted ‘as is’ the buyer is put on notice

that there may be liabilities attendant to the purchase. The warranties which

may otherwise be implied by law do not attach when the buyer agrees to

accept the goods in the condition in which they are found[]”), appeal denied,

568 A.2d 1248 (Pa. 1989). Therefore, because the purchase order contract

represented the entire agreement of the parties, parol evidence cannot be

used to explain or vary the “as is” clause. See Youndt, supra.

     Silver proffers multiple reasons that the trial court erred in applying

the “as is” clause to dismiss his claims.   Silver’s Brief at 11-25.   Initially,

Silver claims Pennsylvania case law permits a cause of action for

misrepresentation of an item’s condition even though a contract contains an

“as is” clause. Id. at 12, citing Indus. Rayon Corp. v. Clifton Yarn Mills,

Inc., 165 A. 385, 387 (Pa. 1933); Morningstar v. Hallett, 858 A.2d 125,

131 (Pa. Super. 2004).

     We conclude, however, that these cases support the dismissal of

Silver’s claims. Both cases provide that an “as is” clause cannot disclaim an

express warranty, so that if an express warranty is breached, the seller may

be liable, but, on the other hand, if the representation that the buyer

complains about is not a breach of the express warranty, then the “as is”

clause may shield the seller from liability.    For example, in Industrial

Rayon, the parties entered into an “as is” contract for inferior rayon yarn


                                   - 11 -
J-A30029-14


that the contract represented had been rejected by the coning department. 4

Indus. Rayon, supra at 385. The purchaser later sued the seller, claiming

that the yarn it received was not the same quality as five samples the seller

provided that induced the buyer to enter into the “as is” contract. Id. Our

Supreme Court affirmed the trial court’s jury instruction that the jury could

find the seller liable if, among other things, the yarn was not actually a

reject from the coning department as expressly represented in the contract.

Id. at 386. However, the Court concluded that the product delivered was

inferior rayon yarn rejected by the coning department, as represented in the

contract, so the “as is” clause prevented the purchaser from suing based on

its quality. Id. at 387.

       Likewise, in Morningstar, the parties entered into a contract for the

purchase of a horse, and the contract warranted that the horse was, among

other things, 11 years old. Morningstar, supra at 127.          The contract also

contained “as is” language.         Id.   The seller brought a breach of contract

action seeking payment for the horse, and the purchaser counterclaimed for

fraud, misrepresentation, unfair trade practices, and mutual mistake, based

____________________________________________


4
   In industrial textile manufacturing plants, machines in the “coning
department” spooled finished yarn onto cone-shaped holders. The cone
configuration allows the yarn to unwind freely and evenly, particularly in
machine weaving. Coning also enabled the yarn to be spooled and sold in
large quantities. The coning department contained inspectors who examined
the finished cones in preparation for shipment.




                                          - 12 -
J-A30029-14


on the purchaser’s contention that the horse was 16, not 11, years old. Id.

at 128. The trial court granted summary judgment to the seller based on

the “as is” clause and dismissed the purchaser’s counterclaims.            Id.   This

Court reversed because the terms of the contract created an express

warranty that the horse delivered would be 11 years old, and the “as is”

clause could not disclaim that express warranty.         Id. at 131. Thus, there

was a disputed issue of material fact regarding whether the horse delivered

was actually 11 years old. Id. This Court also permitted the purchaser to

proceed on her claims of fraud, misrepresentation, unfair trade practices,

and mistake based solely on the jury instruction in Industrial Rayon.

                [I]n Industrial Rayon Corp., supra, our Supreme
                Court approved a trial judge’s charge wherein he
                advised the jury that it could render a verdict for the
                buyer despite an “as is” clause if they found that the
                seller had misrepresented the origin of the goods
                and    that   the    buyer    had    relied    on   this
                misrepresentation.     Thus, the “as is” language
                contained in the sales agreement does not
                necessarily preclude an action by Hallett for fraud,
                misrepresentation, deceptive trade practices, or
                mistake. Accordingly, we conclude that the trial
                court erred in precluding Hallett from proceeding on
                her claims solely on the basis of the “as is” clause.

Id.
      In this case, Industrial Rayon and Morningstar support the trial

court’s conclusion that Silver’s claims against the Dealer are legally

insufficient.    Unlike the contracts in Industrial Rayon and Morningstar,

which contained terms creating express warranties, the written contract

between the Dealer and Silver simply provided that the vehicle was “used,”

                                         - 13 -
J-A30029-14


and did not contain any further express warranties about the condition of the

vehicle’s paint.   Therefore, the “as is” clause applies and sets forth that

“[t]he purchaser will bear the entire expense of repairing or correcting any

defect that presently exists or that may occur in the vehicle.”          See

Appellees’ Preliminary Objections to Appellant’s First Amended Complaint,

5/20/13, at Exhibit A (Purchase Order Contract).

      Next, Silver claims that Section 2316(c)(2) of the Uniform Commercial

Code (UCC), 13 Pa.C.S.A. §§ 1101-9809, provides that an “as is” provision

is not effective unless the buyer inspects the goods, or has an opportunity to

do so, before entering into the contract. Silver’s Brief at 13. Section 2316

of the UCC, in relevant part, provides as follows.

            § 2316. Exclusion or modification of warranties

                                       …

            (b) Implied warranties of merchantability and
            fitness.--Subject to subsection (c), to exclude or
            modify the implied warranty of merchantability or
            any part of it the language must mention
            merchantability and in case of a writing must be
            conspicuous, and to exclude or modify any implied
            warranty of fitness the exclusion must be by a
            writing and conspicuous. Language to exclude all
            implied warranties of fitness is sufficient if it states,
            for example, that “There are no warranties which
            extend beyond the description on the face hereof.”

            (c)    Implied     warranties         in     general.--
            Notwithstanding subsection (b):

                   (1)   Unless    the    circumstances     indicate
                   otherwise, all implied warranties are excluded
                   by expressions like “as is,” “with all faults” or

                                     - 14 -
J-A30029-14


                  other     language      which    in   common
                  understanding calls the attention of the buyer
                  to the exclusion of warranties and makes plain
                  that there is no implied warranty.

                  (2) When the buyer before entering into the
                  contract has examined the goods or the
                  sample or model as fully as he desired or has
                  refused to examine the goods there is no
                  implied warranty with regard to defects which
                  an examination ought in the circumstances to
                  have revealed to him.

                  (3) An implied warranty can also be excluded
                  or modified by course of dealing or course of
                  performance or usage of trade.

13 Pa.C.S.A. § 2316(b)-(c).     A plain reading of Section 2316 reveals that

subsection (c) contains three separate “common factual situations in which

the circumstances surrounding the transaction are in themselves sufficient to

call the buyer’s attention to the fact that no implied warranties are made or

that a certain implied warranty is being excluded.”            Id. at cmt. 6.

Subsection (c)(1) provides that “as is” language itself is sufficient to disclaim

all implied warranties, regardless of whether the buyer has the opportunity

to inspect the goods.    Id. § 2316(c)(1).     Contrary to Silver’s argument,

subsection (c) does not make an “as is” clause contingent on a purchaser’s

inspection of the goods, therefore, Silver’s reliance on Section 2316 is

misplaced.

      Similarly, Silver relies on Section 2602 of the UCC to argue that he

retained the right to reject the vehicle after delivery because he did not have

the opportunity to inspect it before entering into the contract. Silver’s Brief

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J-A30029-14


at 17-20. Again, Silver’s reading of the UCC is incorrect. In order for the

right to rejection to arise, Section 2601 provides that “the goods or the

tender of delivery [must] fail in any respect to conform to the contract.” Id.

§ 2601. As noted above, the Ferrari as presented to Silver conformed to the

description in the purchase order contract of a used, “as is” Ferrari.

Therefore, Silver’s contention that he had a right to reject delivery of the

vehicle fails.

      Finally, Silver contends that the “as is” clause is deficient because the

Dealer     did    not   comply   with   Section   301.4(a)(9)    of   Pennsylvania’s

Automotive Industry Trade Practices Regulations (AITP Regulations), 37 Pa.

Code §§ 301.1-301.6. Silver’s Brief at 13-15. Specifically, Silver alleges he

did not see the vehicle prior to purchasing it, so he did not see the window

statement required by Section 301.4(a)(9).          Id. at 14.    Silver also claims

that Section 301.4(a)(9) provides that an “as is” disclaimer cannot

contradict prior oral statements and representations about the vehicle made

by the Dealer and DiStanislao. Id. at 15. Section 301.4(a)(9) provides as

follows.

                 § 301.4.    General    provisions--motor        vehicle
                 dealer.

                 (a) With regard to a motor vehicle dealer, the
                 following will be considered unfair methods of
                 competition and unfair or deceptive acts or practices:

                                           …




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J-A30029-14


              (9) Where no express warranty is given,
              attempting to exclude the implied warranties of
              merchantability and fitness for a particular
              purpose in the sale of a motor vehicle
              purchased primarily for personal, family or
              household purposes unless the following notice
              in at least 20-point bold type is prominently
              affixed to a window in the motor vehicle so as
              to be easily read from the outside and is
              brought to the attention of the prospective
              purchaser by the seller:

                    This vehicle is sold without any warranty.
                    The purchaser will bear the entire
                    expense of repairing or correcting any
                    defects that presently exist and/or may
                    occur in the motor vehicle unless the
                    salesperson promises in writing to
                    correct such defect or promises in writing
                    that certain defects do not exist.

              This paragraph prohibits the use of the term
              “AS IS” unless the sales contract, receipt,
              agreement or memorandum contains the
              following information in a clear, concise and
              conspicuous manner on the face of the
              document; the notice shall be in addition to the
              window statement required by this paragraph
              and may not contradict an oral or written
              statement, claim or representation made
              directly or by implication with regard to the
              quality, performance, reliability or lack of
              mechanical defects of a motor vehicle which is
              offered for sale:

                                         AS IS

                    THIS MOTOR VEHICLE IS SOLD AS IS
                     WITHOUT ANY WARRANTY EITHER
                       EXPRESSED OR IMPLIED. THE
                    PURCHASER WILL BEAR THE ENTIRE
                        EXPENSE OF REPAIRING OR
                     CORRECTING ANY DEFECTS THAT


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J-A30029-14


                           PRESENTLY EXIST OR THAT MAY
                              OCCUR IN THE VEHICLE.

37 Pa. Code § 301.4(a)(9) (emphasis and capitalization in original).

      Contrary to Silver’s averment, noncompliance with Section 301.4(a)(9)

does not render a contract provision “insufficient” or “deficient.”    Silver’s

Brief at 14-15.      Instead, noncompliance with Section 301.4(a)(9) is a

potential basis for liability under the UTPCPL.   However, Silver’s amended

complaint does not plead his UTPCPL claim based on a violation of Section

301.4(a)(9), despite pleading other violations of the AITP Regulations. See

Appellant’s First Amended Complaint, 4/30/13, at ¶¶ 93-94 (pleading

violations of Section 301.2(4), (5), (6), (19), and 301.4(a)(6)(iv)). Nor did

he raise non-compliance with Section 301.4(a)(9) as a basis for UTPCPL

liability in his response to the preliminary objections.     See Appellant’s

Answer to Preliminary Objections of Appellees, 6/21/13. Accordingly, Silver

has waived this argument.     See Pa.R.A.P. 302 (“[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal[]”).

Therefore, Silver’s claim that the “as is” clause is deficient under Section

301.4(a)(9) fails.

      Based on the foregoing, we conclude that the trial court properly

sustained Appellees’ preliminary objections. It is clear and free from doubt

that Silver will be unable to prove facts legally sufficient to establish the




                                    - 18 -
J-A30029-14


right to relief on any of his claims against either the Dealer or DiStanislao. 5

See Lenau, supra. Accordingly, the February 27, 2014 order is affirmed.6

       Order affirmed.




____________________________________________


5
  In particular, because parol evidence is not admissible to show that any
prior misrepresentation by the Dealer induced Silver into the contract of
sale, count one for fraudulent misrepresentation and count five for negligent
misrepresentation, which are both claims of fraud in the inducement, fail.
See Toy, supra. Count two for violation of the UTPCPL and the UCC claim
in count four also fail because an element of each is justifiable reliance, but
the “as is” clause effectively disclaimed any implied warranties and
eliminated any justifiable reliance on the pre-contract representations of the
Dealer or DiStanislao. Silver cannot justifiably rely on representations
made by the Dealer or DiStanislao before the parties entered into the
purchase order contract. By signing the contract, which contained an
integration clause stating that its terms superseded all of the previous
representations and agreements, Silver disclaimed reliance on any such
representations. See Yocca, supra at 502. Finally, the trial court properly
dismissed count three claiming the Dealer and DiStanislao violated the
federal Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312, because the
“as is” clause effectively disclaimed any implied warranties under
Pennsylvania law. See 13 Pa.C.S.A. § 2316(c)(1).
6
   Because we have determined that all of Silver’s claims are legally
insufficient as to the Dealer and DiStanislao, we do not need to address
Silver’s second claim on appeal that DiStanislao can be held individually
liable by piercing the corporate veil.    Similarly, we need not address
Appellees’ claims that the “economic loss doctrine” bars certain causes of
action pled by Silver.




                                          - 19 -
J-A30029-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




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