J-A25031-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

GLENN DISTRIBUTORS CORP.,                : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellant               :
                                         :
           v.                            :
                                         :
RECKITT BENCKISER, LLC,                  :
                                         :
                 Appellee                : No. 140 EDA 2015

            Appeal from the Order Entered December 15, 2014,
           In the Court of Common Pleas of Philadelphia County,
                      Civil Division No(s).: 121201574

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

CONCURRING MEMORANDUM BY DONOHUE, J.: Filed: December 22, 2015

     I respectfully concur in the result reached by the learned Majority. In

my view, however, the parties’ course of dealing, not their course of

performance, modified the purchase orders. I therefore agree that summary

judgment was proper.

     As discussed by the Majority, course of performance is defined as “a

sequence of conduct between the parties to a particular transaction that

exists if: (1) the agreement of the parties with respect to the

transaction involves repeated occasions for performance by a party;

and (2) the other party … accepts the performance or acquiesces in it

without objection.” 13 Pa.C.S.A. § 1303(a) (emphasis added). At issue in

the case at bar are forty-six purchase orders, each of which constituted a

separate transaction. Each transaction provided the parties one opportunity




*Former Justice specially assigned to the Superior Court.
J-A25031-15


for performance under the contract, which does not satisfy section 1303(a)’s

requirement     that   the   “transaction   involve[]   repeated   occasions   for

performance.”    13 Pa.C.S.A. § 1303(a).      Thus, although Appellant’s action

for breach of contract concerns Appellee’s conduct that occurred subsequent

to formation of the contract (the purchase order), I disagree with the

Majority’s determination that course of performance is implicated.

     Rather, the parties’ behavior in this case more appropriately implicates

course of dealing, which is defined as “a sequence of conduct concerning

previous transactions between the parties to a particular transaction that

is fairly to be regarded as establishing a common basis of understanding for

interpreting their expressions and other conduct.” 13 Pa.C.S.A. § 1303(b)

(emphasis added). This Court previously held that “‘course of dealing’ ‘may

supplement or qualify terms of an agreement[.]’” J.W.S. Delavau, Inc. v.

Eastern America Transport & Warehousing, Inc., 810 A.2d 672, 684

(Pa. Super. 2002); see also RESTATEMENT (SECOND)        OF   CONTRACTS § 223 cmt.

b (Course of dealing “may determine the meaning of language or it may

annex an agreed but unstated term.”).

     As the trial court stated, it is undisputed that “over the parties’ multi-

year business relationship,[ stemming from 2000 to 2012,] Appellee would

sometimes remove some products from the list of products offered to

[Appellant], after [Appellant] submitted purchase orders but before the

products were shipped.” Trial Court Opinion, 12/11/14, at 3. Although the



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purchase orders did not contain language clarifying that the quantity was

subject to change, the parties’ conduct in their previous transactions

established “a common basis of understanding” that the quantity of items

indicated on the purchase order was subject to availability and was not a

definite term. Accordingly, I agree that the trial court did not err in granting

Appellee’s motion for summary judgment and denying Appellant’s motion for

summary judgment.

      Judge Mundy joins this concurring memorandum.




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