DICKINSON DEBEVOISE, Senior District Judge
Defendant Trevor Corporation D/B/A Eckhart Helicopter Sales ("Eckhart") moves to dismiss Plaintiff's, Moyal Aircraft Sales, LLC ("Moyal"), claim against it pursuant to Fed.R.Civ.P. 12(b) for lack of in personam jurisdiction and in the alternative for summary judgment on Moyal's claim under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. ("CFA"). Defendant, Geisinger Health System Foundation ("Geisinger") moves pursuant to Fed.R.Civ.P. 56 for summary judgment on Moyal's breach of contract and common law fraud claims and its claim that Keystone Helicopter Services ("Keystone") owes it a defense and indemnification.
On June 2, 2003, Moyal filed its Complaint against Geisinger and Eckhart in the Superior Court of New Jersey. On July 22, 2003, defendants removed the case from the Superior Court to this Court. In an opinion dated February 11, 2004, the Court denied Geisinger's motion for change of venue to the Middle District of Pennsylvania.
Moyal's Complaint contains four counts concerning its purchase of an Eurocopter SA-365N Helicopter bearing the Serial Number 6102 ("the Helicopter"). Count one alleges Geisinger committed fraud by knowingly misrepresenting the date of manufacture of the Helicopter it sold to Moyal. Count two alleges Geisinger breached the contract of sale of the Helicopter by selling Moyal a 1983 helicopter instead of a 1985 helicopter. Count three alleges Keystone was negligent in its inspection of the Helicopter. Count four alleges Eckhart, an experienced professional helicopter dealer with expertise in domestic and international helicopter documentation, violated the CFA, when it misrepresented the year of manufacture of the Helicopter as 1985.
For the reasons set forth below, Geisinger's motion for summary judgment against Moyal is granted with respect to the contract and fraud claims; Geisinger's motion for a judgment that it is entitled to contractual indemnification against Keystone is dismissed as moot and its cross-claim against Keystone for defense and indemnification will be dismissed as moot; Eckhart's motion to dismiss for lack of personal jurisdiction is denied; and Eckhart's motion for summary judgment against Moyal with respect to the fraud claim is granted.
I. Background
The Helicopter was initially owned by Geisinger's subsidiary, Geisinger Medical Center. Geisinger Medical Center owned a fleet of helicopters which it used to transport patients in emergency situations. On July 16, 2001, Geisinger and Keystone entered into an agreement under which Keystone would maintain Geisinger's fleet of helicopters. The agreement, which contained an indemnification provision, was still in effect in May 2002. While under the agreement, Keystone attempted to sell the Helicopter for Geisinger. Keystone undertook this effort for a period of approximately six months. Because Keystone was not able to sell the Helicopter, Geisinger hired Eckhart to market and sell the Helicopter on its behalf.
The Helicopter is located at the Linden Airport in Linden, New Jersey.
Geisinger operates a large medical facility in Danville, Pennsylvania.
Keystone provides aviation consulting, management and maintenance services (in part by providing pilots and mechanics to fly and maintain a client's helicopters).
Eckhart is involved in brokering, buying and selling used helicopters.
Moyal became aware of the availability of the Helicopter through Eckhart. In mid-January 2002, Moyal began negotiations for the purchase of the Helicopter with Geisinger through Geisinger's agent and broker Eckhart. Eckhart created a Spec Sheet containing information about the Helicopter and furnished Moyal with a copy. The Spec Sheet listed the year of manufacture of the Helicopter as 1985. Geisinger's asking price for the Helicopter was $1.2 million. During negotiations, Moyal initially made an offer to pay $800,000 for the Helicopter on January 12, 2002. Upon receiving Moyal's offer Geisinger counter-offered at $950,000 and, on January 15, 2002, Moyal offered to pay $850,000 conditional upon a closing date. On February 20, 2002, Moyal said it would proceed conditional upon review of the equipment, inspections and component parts. Moyal requested that the deal include various FAA required inspections that were close to coming due for completion. Emails dated March 21, 2002 indicate that Geisinger agreed, per Moyal's request, to cover the labor on the 10-year inspection. Negotiations resulted in Geisinger and Moyal settling on a purchase price of $900,000 for the Helicopter.
The Purchase Agreement ("PA") was executed by Geisinger and Moyal on March 7, 2002. It was signed by David Moyal, President of Moyal and Thomas Weir, Vice President at Geisinger. An Addendum to the PA dated March 22, 2002 was signed on March 25, 2002 and contains Exhibit 1, Exhibit 2 (signed May 16, 2002 and May 31, 2002 by Thomas Weir and David Moyal respectively) and Exhibit 3. An April 2, 2002 email sent by Gerald Splitt ("Splitt"), Chief Flight Nurse Program Coordinator at Geisinger, to Ed Eckhart, helicopter broker and owner of Eckhart, indicates the Addendum to the PA was executed by both parties (Moyal Ex. 20, April 2, 2002 email).
The PA provides that the agreement was between Next Aircraft Sale, Inc. of New York (a corporation which owned 100% of the interest in Moyal at the time of the PA) and Geisinger. However, the purchaser decided to make the purchase through Moyal and register the Helicopter in North Carolina for tax purposes. The Purchase Agreement was amended to show Moyal as the purchaser.
The terms of the PA provide that Geisinger will deliver the Helicopter in an airworthy condition (PA § 3(A)) and that Geisinger will cease operation of the Helicopter around March 11, 2002 so that a "T" inspection, including the sign-off of a fresh annual inspection of the Helicopter can take place (PA § 3(B), 3(C)). Modifications to the PA included additional "rotor time" on the Helicopter so that Geisinger could fulfill its commitments and required that Geisinger complete various inspections including the 10-year ("C" Check) inspection, "T" inspection and 500 hour inspection. Keystone, using a checklist, conducted inspections at Geisinger's request.
Completion of which required the visual inspection of all connecting hoses on the Helicopter and replacement of hoses with a date of manufacture showing that they were more than 10 years old.
Prior to the execution of the PA, Moyal engaged Joseph Martuge ("Martuge"), an aircraft mechanic and inspector, to conduct a pre-buy inspection of the Helicopter. As part of the pre-buy inspection, Martuge reviewed the logbooks Keystone presented to him. Martuge read the data plate on the Helicopter, on which, the year 1983 was posted.
In a February 22, 2002 email, Geisinger requested that the Helicopter be delivered to Moyal at Keystone's facility, located outside Philadelphia. On June 5, 2002, the purchase and transfer of title was completed. On May 31, 2003, Moyal accepted delivery of the Helicopter. The Helicopter was titled in North Carolina.
II. Standard for Summary Judgment
A motion for summary judgment will be granted if after drawing all inferences in favor of the moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". Fed.R.Civ.P. 56(c). Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n. 3 (3d Cir. 1994).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247.
A genuine issue may exist if the record taken as a whole could lead a rational trier of fact to find for the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are those that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Fed.R.Civ.P. 56(c), the moving party bears the burden of pointing out to the district court an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its burden, the opposition bears the burden of "set[ting] forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In deciding this motion, the facts and inferences drawn from them will be viewed in the light most favorable to the nonmoving party. Pollock v. Am. Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The court will take the nonmoving party's allegations of fact as true. Goodman v. Mead Johnson Co., 534 F.2d 566, 573 (3d Cir. 1976). The court will also resolve all doubts and make all reasonable inferences in the nonmoving party's favor. Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 631 (3d Cir. 1998).
III. Geisinger's Motion for Summary Judgment
Geisinger seeks summary judgment contending that it did not breach the contract of sale (the PA) and that it did not commit fraud by knowingly misrepresenting or intentionally concealing the year of manufacture of the Helicopter it sold to Geisinger.
A. Choice of Law
In a diversity action, choice of law of the forum state, in this case New Jersey, should apply when determining what substantive law governs. Gibbs ex rel. Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 131 (3d Cir. 2002). New Jersey has a two-step choice of law analysis. First, the court determines whether there is any conflict between the law of the interested states. At the second step, if the court has determined that a conflict exists, it proceeds by conducting an analysis of the competing policies of the states. Vital State Canada, Ltd. v. DreamPak, LLC, 303 F.Supp.2d 516, 520 (D.N.J. 2003); Gantes v. Kason Corp., 679 A.2d 106, 109 (N.J. 1996). The court will evaluate the respective interests of the involved states to determine which state has the most significant interest in governing with respect to the claim. Erny v. Estate of Merola, 792 A.2d 1208, 1211 (N.J. 2002).
The Court must examine the laws of Pennsylvania and New Jersey governing breach of contract claims. "New Jersey gives effect to contracting parties' private choice of law clauses unless they conflict with New Jersey public policy." Gen. Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 331 n. 21 (3d Cir. 2001). A court may disregard a choice of law provision when the chosen law is contrary to fundamental state policy. Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52, 56 (3d Cir. 1994) , Echols v. Pelullo, 377 F.3d 272, 275 (3d Cir. 2004). In this case the choice of law provision of the PA states that law of the Commonwealth of Pennsylvania will govern contract claims or disputes that arise regarding the terms of the contract and their application (PA § 12).
Under Pennsylvania law, the three elements necessary to properly plead an action for breach of contract are (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. Omicron Systems, Inc. v. Weiner, 860 A.2d 554, 564 (Pa.Super. 2004). "In a suit for breach of contract, the general purpose of the law is to place the injured party in the position it would have attained had the contract been performed." Agathos v. Starlite Motel, 977 F.2d 1500, 1510 (3d Cir. 1992). Under New Jersey law, the three elements that must be shown if a party seeks to prevail in a breach of contract claim are (1) a binding contractual relationship existing between the parties, (2) breach of the contract and (3) damages suffered as a consequence of the breach. Nat'l Util. Serv., Inc. v. Chesapeake Corp., 45 F.Supp.2d 438, 448 (D.N.J. 1999).
With respect to a claim regarding an express warranty, New Jersey and Pennsylvania law would yield the same result because the elements and standards set forth in the codes of both New Jersey and Pennsylvania are the same. For the purposes of this case, the express warranty provision of the New Jersey Uniform Commercial Code, N.J.S.A. § 12A:2-313(1), is identical to the express warranty provision of the Pennsylvania Uniform Commercial Code, 13 Pa.C.S.A. § 2313(a). Parkinson v. Guidant, 315 F. Supp. 2d 741, 752 (W.D.Pa. 2004). No conflicting public policy issues regarding the law arise. Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d at 56, Echols v. Pelullo, 377 F.3d at 275.
For the purposes of this case, no conflict exists between the laws of Pennsylvania and New Jersey. Therefore, in accordance with the choice of law provision of the PA, Pennsylvania law will be applied when addressing issues related to the contract claim.
The Court will also examine the laws of Pennsylvania and New Jersey governing fraud claims. With respect to the fraud claim, choice of law is not dispositive in this case, as the elements for fraud are the same under both New Jersey and Pennsylvania law. Therefore, the Court has determined that no conflict exists. Under New Jersey law, a common law fraud action has five elements: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages. Gennari v. Weichert Co. Realtors, 691 A.2d 350, 367 (N.J. 1997); Kaufman v. I-Stat Corp., 754 A.2d 1188, 1195 (N.J. 2000); McConkey v. AON Corp., 804 A.2d 572, 584 (N.J.Super. 2002). Under Pennsylvania law, the elements of common law fraud are: (1) a representation, (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994); Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999).
Though the language of the states' courts shows slight differences, the elements set forth in New Jersey's and Pennsylvania's laws are the same. Accordingly, New Jersey law will be applied when examining Moyal's fraud claim against Geisinger. Klaxon v. Stenor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
B. The PA
Geisinger contends that in order for Moyal to succeed on its breach of contract claim, it must establish that Geisinger expressly warranted that the Helicopter was manufactured in 1985. Geisinger further contends that the year of manufacture of the Helicopter was not the basis of the bargain, a necessary element of an express warranty, and that the "as is" language contained in the PA disclaimed any express warranty Moyal contends was contained in the PA.
The meaning of a contract will be determined solely by the meaning of its contents when the written contract is clear and unequivocal. Capek v. Devito, 767 A.2d 1047, 1050 (Pa. 2001). The intent of the parties will be determined by the court and the effect will be given to all the contract's provisions. Id. A contract must be construed according to the plain meaning of the language contained therein. Philadelphia Eagles Football Club, Inc. v. City of Philadelphia, 823 A.2d 108, 125 n. 25 (Pa. 2003).
Under Pennsylvania law, an express warranty arises out of promises of the seller. Parkinson v. Guidant Corporation, 315 F.Supp. 2d 741, 751 (W.D.Pa. 2004). The Pennsylvania Uniform Commercial Code states:
(A) Express warranties by the seller are created as follows:
(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description . . .
(B) . . . an affirmation merely of the value of the goods or a statement purporting to be merely the opinion of the seller or commendation of the goods does not create a warranty.
13 Pa.C.S. § 2313.
The creation of an express warranty requires the seller to expressly communicate the terms of the warranty to the buyer and the buyer must understand and accept the terms of such warranty. Goodman v. PPG Indus., Inc., 849 A.2d 1239 (Pa.Super. 2004). In Sessa v. Riegle, 427 F.Supp. 760 (E.D.Pa. 1977), the court looked to three elements in determining whether statements by a seller constituted an express warranty. The court determined whether the seller's statements constituted an affirmation of fact or promise, whether the statement was part of the basis of the bargain and ultimately whether the warranty was breached. Id. at 765. In Sessa, the court took great care in determining whether the words constituted an opinion or commendation rather than an express warranty. Id.
In this case, the Court must ask whether a reasonable jury could find that Geisinger breached the PA and that the year of manufacture of the Helicopter was the basis of the bargain made between Geisinger and Moyal and expressly warranted by Geisinger.
In Liberty Lincoln-Mercury, Inc., v. Ford Motor Co., 171 F.3d 818 (3d Cir. 1999), the Court of Appeals concluded that "provisions of Ford's Extended Service Plans ("ESPs") may or may not have formed part of the basis of the bargain for sales of vehicles by appellant . . .", and held that if it cannot be determined whether a fact is the basis of the bargain, summary judgment is inappropriate because a genuine issue of material fact exists. Id. at 820-821.
In Cipollone v. Liggett Group, Inc., 893 F.2d 541 (3d Cir. 1990) (overruled on other grounds), the Court of Appeals thoroughly examined what constitutes the "basis of the bargain":
It strains the language to say that a statement is part of the `basis' of the buyer's `bargain', when that buyer had no knowledge of the statement's existence. The above arguments notwithstanding, it is possible to read the `basis of the bargain' requirement as requiring some subjective inducement of the buyer, without requiring a reliance finding. Requiring that the buyer rely on an advertisement, whether by imposing this burden initially on the buyer bringing suit, or by allowing the seller to rebut a presumption of reliance, puts a heavy burden on the buyer — a burden that is arguably inconsistent with the U.C.C. as a whole, with other comments to section 2-313 in particular, and with several commentators' suggestions in this area.
Id. at 567.
However, in Liberty Lincoln-Mercury, Inc., the Court of Appeals recognized that "[w]hat constitutes `basis of the bargain' is hard to define," Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 171 F.3d at 825, and, in interpreting the New Jersey Uniform Commercial Code express warranty provision, has held that "a plaintiff effectuates the `basis of the bargain' requirement . . . by proving that she read, heard, saw or knew of the advertisement containing the affirmation of fact or promise." Cipollone v. Liggett Group, Inc., 893 F.2d at 567. Applying Pennsylvania law, at least one federal court has interpreted the "basis of the bargain" language of the Pennsylvania Uniform Commercial Code ("UCC") as "essentially a reliance requirement". Sessa v. Riegle, 427 F.Supp. 760, 766 (E.D.Pa. 1977), aff'd, 568 F.2d 770 (3d Cir. 1978); Parkinson v. Guidant Corp., 315 F. Supp. 2d 741, 752 (W.D. Pa. 2004). In Parkinson, the court found that "plaintiffs have offered no proof that anyone read, heard, saw or knew of the statements made on defendants' website prior to the purchase of the guidewire at issue in this case or that they were induced to buy the guidewire based on these statements. Accordingly, there is no evidence that these statements became "part of the basis of the bargain" which would give rise to a claim for breach of express warranty under § 2313. As plaintiffs have failed to adduce facts sufficient to establish the existence of an element essential to their breach of express warranty claim, ACS is entitled to judgment as a matter of law on that claim." Id. at 752.
Moyal's breach of express warranty claim will fail if there is no evidence in the record that statements regarding the year of manufacture of the aircraft were part of the basis of the bargain. Parkinson v. Guidant, 315 F. Supp. 2d at 752. There is no evidence in the record that suggests Moyal was induced to purchase the Helicopter because the year of its manufacture was listed as 1985. The evidence highlights the importance of other aspects of the Helicopter such as avionics, equipment and components, as the details under each of the three items take up more than three-quarters of the page (PA, Ex. 1). Ed Eckhart testified during his deposition that knowledge of the year of manufacture of a helicopter is not necessary to put a value on a helicopter:
Q And then within each category would you agree with me that the prospective seller or buyer would have to be aware of the year of manufacture in order to properly put a value on the helicopter?
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A Not Necessarily.
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A Because there are many important factors that determine the value of a helicopter. Subjective factors such as market supply and demand. What a willing buyer is willing to pay to a willing seller. The cost of the components of overhaul or replacement of the helicopter. The condition of the aircraft and its general cosmetic state as well as the status of inspections that are required . . .
(Eckhart Dep. 19).
References made to Moyal's pre-buy inspection also show that certain aspects of the Helicopter were relied on as part of the basis of the bargain. During the pre-buy inspection of the Helicopter, it was Martuge's job to "make sure all of the components that are installed are current, aren't out of time, that all of the inspections are up-to-date and up-to-speed, just the general synopsis of the aircraft, what kind of shape it's in" (Martuge Dep. 113). The year of the Helicopter's manufacture was clearly written on a plate on its outside near the baggage compartment and was reflected in its logbooks, both of which Martuge inspected. Moyal testified that the data plate is "right in front of your eyes" (Moyal Dep. 112:8), and as to this information, Martuge testified "it has no relevance to me" (Martuge Dep. 33:20).
No reasonable jury could find that Moyal relied on the year of manufacture of the Helicopter when making its decision. Moyal's claim would still fail even if it was able to show that the year of manufacture was the basis of the bargain it made with Geisinger.
The term "as is" is contained within the PA. Section 9 of the PA states:
WARRANTY SELLER'S TRANSFER AND CONVEYANCE OF THE AIRCRAFT IS "AS IS, WHERE IS" AND SELLER DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE AIRCRAFT AND ITS CONDITION.
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Purchaser, by its acceptance of this Bill of Sale and Aircraft, acknowledges that (I)Seller has made no representations or warranties to Buyer regarding the Aircraft and its condition, except for those set forth in Section 3; (ii) Buyer is relying solely on its inspection of the Aircraft in electing to purchase or acquire the Aircraft . . .
(PA § 9).
The inclusion of the term "as is" in an agreement serves the purpose of notifying the purchaser that "there may be liabilities attendant to the purchase and that the warranties which might otherwise have been implied by law" do not attach. Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650, 662-663 (Pa.Super. 1999). However, equivocal language surrounding "as is" may obscure the meaning of the term rendering the term as unclear and ambiguous or susceptible to different constructions and interpretations. Id.
The Pennsylvania Superior Court recently discussed the meaning of an "as is" clause contained in a sales agreement. The court said that while an "as is" clause may indicate that there are no implied warranties with respect to the subject of the agreement, but that the clause may be insufficient to disclaim an express warranty. Morningstar v. Hallett, 858 A.2d 125, 130-131 (Pa.Super 2004). In Morningstar, the court found that the "as is" clause contained in the contract was insufficient to disclaim the express warranty that a horse (the subject of the agreement) was 11 years old because, upon examining the agreement, the court found that the agreement specifically indicated that the horse being sold was 11 years old. Id. at 130.
In this case, 1985 was listed on Exhibit 1 to the PA which, according to Moyal, stated that 1985 was the year of the Helicopter's manufacture. Geisinger contends that it did not expressly warrant that the Helicopter was manufactured in 1985, that it never discussed the Helicopter with Moyal prior to closing, and that the disclaimer in Exhibit 1 to the PA ("SPECIFICATIONS SUBJECT TO VERIFICATION UPON INSPECTION") made clear that no representations were being made about the information contained in Exhibit 1 and that the "as is" clause would also have the effect of disclaiming any express warranty. The "as is" clause in this case was sufficient to disclaim any express warranty regarding the Helicopter's year of manufacture.
Testimony contained in the record highlights the importance of the serial number for prospective buyers. Steven Gray ("Gray"), an executive with Keystone, testified about the reason why the serial number is used instead of the year of manufacture, ". . . we usually don't use the year as a target, we use the serial number because that's where the queries begin when people want to do research. So we provide the serial number" (Gray Dep. 57:4-8). Again, this testimony suggests that the year of manufacture is not the critical piece of information that a prospective buyer receives.
Moyal argues that David Druce ("Druce"), a Keystone aircraft mechanic qualified to work on SA 365N aircrafts, proclaimed the importance of the date of manufacture of the Helicopter. Druce testified that knowing the date of manufacture is imperative when making such a purchase, as the date of manufacture will disclose a great deal of pertinent information (Druce Dep. 23:23-24:10; Ex. 19). This may be true as a general observation, but all the evidence in the record demonstrates that the year of manufacture was not relevant to the purchase of this helicopter.
Gerald Splitt ("Splitt"), a representative of Geisinger involved in the negotiations when Geisinger purchased the Helicopter in 1998, testified that no one at Geisinger knew the date of manufacture of the Helicopter (Splitt Dep. 33:15-20). The record contains no evidence that shows that Moyal took any steps to verify the year of manufacture of the Helicopter. As noted above full information about the date of manufacture was made available to Moyal and its representatives and they simply ignored it.
David Moyal includes himself among the people who should have noticed what the Helicopter's year of manufacture. He testified: "Everybody should have known . . .; Martuge should have known, I should have known, everybody should have known. Keystone should have known that it's a 1983 helicopter . . . Of course, they should have known" (Moyal dep. 134:10-20). David Moyal saw the data plate on the Helicopter, but did not look at it during the pre-buy inspection (Moyal Dep. 109). The data plate was located in front of Moyal's eyes when facing the Helicopter at a certain angle (Moyal Dep. 112:1-8).
David Moyal also testified that Martuge should have noticed the year of manufacture of the Helicopter:
Q So if that helicopter is not a 1985 manufactured helicopter, Mr. Martuge made a mistake?
A He made a mistake, but when you look at a million different components when you buy a helicopter, probably the least important to Joe Martuge is the year of manufacture because the only effect for the year of manufacture is the value of the helicopter to me, not the safety of this helicopter, nothing else. Joe Martuge was hired to tell me if I am buying an airworthy machine, a safe machine, a good machine. He's not about to tell me that you're getting screwed with the year . . . Did he make a mistake? Yeah, he probably did. . . .
Q . . . it's your testimony, is it not, that part of his job in performing the pre-purchase inspection was to inspect the logbooks to determine that the helicopter is accurately represented in the attached specification sheet, which includes the year of manufacture. Correct?
A I would say so (Moyal Dep. 79:15-80:12).
However, Martuge testified that it was not part of his responsibility to look at the date of manufacture of the Helicopter and, that even though he did see the date and knew the year of manufacture, that it wasn't his job to say anything because it had no relevance to him.
No reasonable jury would conclude that Geisinger expressly warranted the year of manufacture of the Helicopter. Section 8 of the PA states:
8. INSPECTION
Purchaser has inspected the aircraft, the log books, and records and will accept the Aircraft "as is", subject to the terms defined in Section 3 of this Agreement".
(PA § 8).
Exhibit 1 to the PA and Section 8 of the PA both say that Moyal was responsible for inspecting the Helicopter and Section 9 of the PA states that Moyal is accepting the Helicopter "as is".
There is no material issue as to whether the disclaimer printed on Exhibit 1 and the Spec Sheet was adequate. No reasonable jury would find that the disclaimer contained at the bottom of the Spec Sheet and Exhibit 1 is inconspicuous and that the reasonable person would not have noticed it.
Moyal contends, for the first time in its brief, that there was a material breach of the PA because the Helicopter was not delivered to it in an "airworthy" condition. Moyal bases its contention that the Helicopter was unairworthy when it was delivered in April 2002 on the fact that the hoses had not been changed in 2002 during the 10 year inspection and that the hoses found on the Helicopter when it was delivered were more than 10 years old. The PA states:
3. TERMS AND CONDITIONS OF THIS SALE
Seller, as part of this Agreement, agrees to:
A. Deliver the fully airworthy Aircraft.
PA § 3(A).
Geisinger asserts that it would not be familiar with the airworthiness of the Helicopter because Keystone was hired by Geisinger to deal with all things related to the Federal Aviation Administration (FAA) and maintenance of the Helicopter. Geisinger contends that Moyal relied only on their pre-buy inspection when deciding whether or not to purchase the Helicopter (PA § 9).
Martuge stated that he was not in receipt of all of the relevant logbooks containing pertinent information about the Helicopter (as he later discovered that there were three full boxes of logbooks, though the logbooks he was shown only filled one box). He also testified that he was not shown 337 forms which would have informed him of the damage history of the Helicopter.
Moyal claims that the damage history is an issue for the jury to decide because Martuge testified that the damage history was not in the logbooks he received and the 337 form depicting a chronology of major repairs to the aircraft was not shown to him. Geisinger does not deny the damage history of the Helicopter. Rather it admits that there was a fire in the Helicopter's engine and that the logbooks shown to Martuge show that the engine was replaced (Exs. 11-14). Nowhere in the record is there testimony or evidence that shows that replacement parts rendered the Helicopter unairworthy. Martuge stated that 337 forms, FAA forms that show major repairs or alterations to an aircraft or engine, were not made available to him, but would have been considered during his investigation of the Helicopter if provided to him (Martuge Dep. 61-62). Although Martuge testified that he wasn't shown certain 337 forms, he was provided with information showing there had been a fire in the Helicopter's engine. Therefore, Moyal had ample opportunity to inquire as to the replacement of the engine that was damaged, even if information regarding the replacement was not noted on the records that Martuge reviewed. He in fact inspected the replacement engine.
The following testimony reveals that evidence of the engine fire was contained in a logbook that was made available to Martuge during his inspection:
Q This box was available to you when you looked at the logbooks in March 2002?
A Yes.
Q And in this logbook, there is a reference to an engine fire. Correct?
A Yes.
Q What does it say?
A It says 6/15/1992, "Aircraft had in-flight fire in number one engine compartment; extreme fire damage to engine and aircraft from Omni flight logbook," . . .
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Q Why did you not see the entry for the engine fire that you just read into the record?
A I may have went over it, passed it by. I may have just passed by it and didn't notice it (Martuge Dep. 66-67).
Moyal cannot support its position that the damage history of the Helicopter is an issue for the jury because it was in fact reflected in the logbooks which Martuge inspected.
Moyal's claim that, with its permission, Geisinger continued to use the Helicopter prior to its sale to Moyal does not support Moyal's contention that Geisinger delivered an unairworthy Helicopter. Emails and other evidence contained in the record show that Moyal's purchase price of the Helicopter along with other provisions were adjusted to compensate Moyal for Geisinger's extended use of the Helicopter. Emails also show that Moyal was aware of the additional usage of the Helicopter prior to the actual sale and demonstrate that Moyal bargained for additional benefits to make up for the additional Helicopter use.
Splitt received an email from Rick Hinkle of Keystone that stated his concern about the language contained in the Addendum to the PA. Hinkle wrote, "Gerry, I am concerned about the last paragraph. The 10 year parts that are over $250 could include a number of the hoses. Which in total would cost over $30,000 and take 6 months to get. I think the comment ref. parts should be that `if there are defective or timed out parts'" (Moyal's Ex. 21). This email is not evidence that would lead a reasonable jury to find that Geisinger was attempting to deliver to Moyal an unairworthy Helicopter. The language contained in the email serves the opposite purpose, as Splitt suggests that "defective or timed out" parts should be replaced.
It appears that perhaps Moyal did not conduct a thorough investigation during its inspection of the Helicopter and did not examine the information provided to it. During the pre-buy inspection, Martuge looked at "the current airframe and engine logbooks" (Martuge Dep. 56:15-16). Martuge testified that when he inspected the logbooks in 2002, all of the logbooks were not there — the only ones that were there were the airframe and engine books (Martuge Dep. 58:5-7). However, it must be noted that Martuge also stated that he never intended to look at all of the logbooks in 2002:
Q Did you have any intention in 2002 in looking at all of the logbooks for this aircraft?
A No.
Q As I understand it, your intention was only to look at the current information or the then current information in the logbooks for this aircraft?
A Yes.
Q And did you satisfy yourself in 2002 that you had all of the then current information for this aircraft?
A Yes.
* * *
Q So the information that's in this box was not information that you intended to look at as part of your inspection of the logbooks in 2002?
A I didn't need to look at this stuff, no.
Q So the fact that it wasn't made available to you didn't change what your inspection in March 2002 was designed to reveal?
A No (Martuge Dep. 59:1-11; 61:9-16).
Martuge further testified that nothing contained in the boxes would have changed the opinion that he gave to Moyal:
Q From your review of these two boxes last week, is there anything in these two boxes that would have changed the opinion that you gave to Mr. Moyal regarding your pre-buy inspection of this aircraft?
A No (Martuge Dep. 64:17-22).
With regards to the 10 year inspection, Martuge stated that the major component of that inspection is the 10 year hose replacement (Martuge Dep. 75). He also stated that if he had known that the hoses on the Helicopter were more than 10 years old, then he would have declared the Helicopter as unairworthy when it was delivered to Moyal (Martuge Dep. 107). Geisinger admits that at some point prior to Keystone's inspections that Moyal requested that all the hoses on the aircraft be replaced, but asserts that Moyal was told that only the defective or timed out parts would be replaced. Ed Eckhart testified that some hoses were not due to be replaced until the Spring of 2003 and that issue was raised during the pre-buy inspection when Martuge came and inspected the Helicopter:
A We as part of the preparation and inspection process of the helicopter, the hoses were coming up in the following spring, a year later for their ten year life and that was found during the inspection and was a known fact.
Q Is that the inspection performed by Keystone, is that the inspection you're referring to?
A I'm sorry, the pre-buy inspection when Mr. Moyal's representative came and inspected the helicopter. The issue of the hoses was raised whether they could be changed or not and then subsequently why they couldn't be.
Q Why could they not be?
A Because you could not order the hoses until — that far in advance from the manufacturer.
Q So then Mr. Moyal was aware prior to the sale that these hoses were coming up on the time they needed to be replaces?
A Yes.
Q And he obviously went through with the sale anyway, correct?
A Yes (Eckhart Dep. 107:25-108:22).
Upon viewing the evidence contained in the record, no reasonable jury could find that Geisinger delivered an unairworthy helicopter to Moyal and that Moyal was not aware of the situation regarding the hoses on the Helicopter.
With respect to the 10 year inspection of the Helicopter, Jerry Smedley, an aircraft service manager at Keystone, stated that the 10 year inspection requested did not require the inspection of all the connecting hoses on the Helicopter:
Q . . . Do you know that a ten year inspection requires the inspection of all the connecting hoses on this helicopter . . .
A No.
Q You don't know that?
A It's not part of the checklist.
Q Why isn't it part of the checklist?
A Because it's not stated in the checklist.
* * *
Q And your testimony is that the inspection of the connecting hoses of this helicopter is not part of the ten year inspection?
A No, a ten year inspection is a checklist of items to inspect and the hoses are not in that inspection.
Q Do you know when the connecting hoses are to be inspected on this particular helicopter?
A You visually inspect them all the time to make sure they're in good condition, but that's just a visual (Smedley Dep. 58:23-59:23).
Smedley also testified that the hoses are not automatically changed at the 10 year point, rather that is a recommendation and that at the time of their inspection, if the hoses are "due" to be changed, then they will be (Smedley Dep. 61). The airframe logbook contained information that the hoses on the Helicopter had been changed in April 1993 (Smedley Dep. 62:8-11). In fact, all the hoses on the Helicopter would not have been looked at unless a "hose retirement" was done (Druce Dep. 46:18-21).
Based on the evidence contained in the record, no reasonable jury could find that Geisinger delivered the Helicopter to Moyal in an unairworthy condition. And, as stated above, no reasonable jury could find that Geisinger expressly warranted the Helicopter's year of manufacture. Accordingly, Geisinger's motion for summary judgment on the contract claim will be granted.
C. Fraud
In its Complaint, Moyal contends Geisinger committed fraud by knowingly misrepresenting the year of manufacture of the Helicopter, accordingly the Court must determine whether a reasonable jury could find that Geisinger's conduct amounted to fraud by intentionally misrepresenting or intentionally concealing the date of manufacture of the Helicopter.
In Houston Helicopters, Inc. v. Canadian Helicopters Ltd., 901 F.Supp. 1225 (S.D.Tex. 1995), a lease contained a clause whereby the lessee acknowledged that it had thoroughly inspected an aircraft and that the aircraft being leased was in airworthy condition. Id. at 1234. The lessee contended that it was fraudulently induced into entering the lease agreement when the lessor misrepresented or concealed the true condition of the helicopter. Id. The court in that case found that because the lessee contended that the lessor misrepresented the condition of the aircraft, genuine issues of fact existed as to whether the conduct of the lessor amounted to fraud. Id.
An independent investigation may not always defeat a fraud claim. In Thomas v. Henderson, 297 F.Supp.2d 1311 (S.D.Ala. 2003), the court stressed that reliance on an independent investigation may not defeat a fraud claim, particularly where fraudulent representations served to frustrate the investigation. Id. at 1318-1319. The court cited the Restatement (Second) of Torts § 547(2) which states, "the fact that the recipient of a fraudulent misrepresentation is relying upon his own investigation does not relieve the maker from liability if he by false statements or otherwise intentionally prevents the investigation from being effective". Comment (b) for subsection (2) further provides:
b. Even though the recipient is found to act or to refrain from action in reliance only upon his own investigation, the maker of the fraudulent misrepresentation may still be liable if he intentionally frustrates the investigation. When he makes it ineffective by false statements, by misdirection, concealment or other trickery, his original misrepresentation carries through, and he cannot be heard to say that the recipient has relied upon an inquiry that has come to nothing through his own machinations. It is by reason of his conduct that the recipient has been induced to surrender his judgment in reliance upon a frustrated investigation originally set in motion by reason of the misrepresentation.
Restatement (Second) of Torts § 547.
As the Court previously stated, under New Jersey law, the elements of fraud are: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages. Gennari v. Weichert Co. Realtors, 691 A.2d at 367; Kaufman v. I-Stat Corp., 754 A.2d at 1195; McConkey v. AON Corp., 804 A.2d at 584. To be entitled to relief, a Plaintiff must have detrimentally and justifiably relied on intentionally misleading statements made by the defendant. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 746 (3d Cir. 1996); Fleming Companies, Inc. V. Thriftway Medford Lakes, Inc., 913 F.Supp. 837, 844 (D.N.J. 1995); John Hancock Mut. Life Ins. Co. of Boston, Mass v. Cronin, 51 A.2d 22, 4 (N.J. Err. App. 1947).
Defining fraudulent concealment in the litigation context, the Supreme Court of New Jersey has set forth the five elements that must be established by a Plaintiff in a fraudulent concealment action: (1) that defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation; (2) that the evidence was material to the litigation; (3) that plaintiff could not reasonably have obtained access to the evidence from another source; (4) that defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; and (5) that plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed. Rosenblit v. Zimmerman, 766 A.2d 749, 758 (N.J. 2001).
In this case, there are no genuine issues of material fact that exist as to whether Geisinger's conduct amounted to fraud because no reasonable jury could find that Geisinger intentionally concealed or intentionally misrepresented the year of manufacture of the Helicopter.
There is no evidence in the record that suggests that Geisinger or Eckhart intentionally prevented Moyal's pre-buy inspection of the Helicopter from being effective. In fact, Martuge testified that he saw the data plate on the Helicopter. David Moyal also testified that the data plate was right in front of his eyes. David Moyal's testimony disclosed that he found out the year of manufacture of the Helicopter as he was taxiing at the airport and that a bystander looked at the data plate and told him what the data plate read. Exhibit 1 to the PA clearly lists the serial number of the Helicopter at the top of the page. Testimony included in the record demonstrates that a serial number could provide useful and accurate information about a Helicopter, including the year of manufacture.
Moyal's allegations of fraud are based on pure speculation and are not supported by evidence contained in the record. First, Moyal contends that because Geisinger attempted to sell the helicopter once before that it must have known the year of manufacture of the Helicopter. As the record shows, the previous attempt Geisinger made to sell the Helicopter was undertaken by Keystone. There is no suggestion of Geisinger's direct role in the first sale attempt. Second, Moyal contends that Geisinger desperately wanted to sell the Helicopter because it needed the money. Gray stated that Geisinger was selling the Helicopter because it needed cash to purchase a Sikorsky SA76 helicopter which then cost approximately $1.2 million (The asking price for the Sikorsky matched the resale value of the subject helicopter according to the Blue Book, Ex. 21). Whether or not Geisinger wanted to sell the Helicopter because it needed the money to purchase a different Helicopter is not relevant to the allegations contained in the Complaint. Third, Moyal suggests that Geisinger must have known the year of manufacture if Keystone did. Gray stated that he probably did know the year of manufacture at some point during the 6 to 9 month period that Keystone was trying to sell the Helicopter (the latter part of 1999 to the early part of 2000) (Gray Dep. 33:15-22). He further testified that during the period that Keystone was trying to sell the Helicopter, the information it provided was not intended to give anyone enough information to purchase the Helicopter. Rather it would be enough information to "cause someone to inquire basically" (Gray Dep. 31:19-22). However, the fact that Gray might have known the year of manufacture would not lead a reasonable jury to conclude that Geisinger tried to hide the year of manufacture, particularly when, as a practical matter helicopters are referenced by their serial numbers, a practice which allows prospective buyers and interested parties to search for background information on a helicopter.
There was no intentional concealment of the year of manufacture of the Helicopter. The data plate was never covered up or hidden. As previously stated, Martuge had the opportunity to read the data plate on the Helicopter and he believed that the year of manufacture was 1983 based on what he read on the data plate. He further stated that he was hired to determine the airworthiness of the Helicopter, not its year of manufacture (Martuge Dep. 68).
The logbooks provided to Moyal also revealed that the Helicopter was manufactured prior to 1985. One technical logbook (Ex. 12: A No. 11001-11019) consistently lists the date of completion of the forms as 2/4/84 (an indication that the aircraft had been manufactured prior to 1985). The Modification Record Book lists the Helicopter's year of construction as 1983 (Ex. 13:1). A Constructor's Modification Record is dated 7/3/84 and 3/15/84 (Ex. 13:2,5,17). Similarly, technical record cards note the year of the Helicopter's manufacture and registration as 1983 (Ex. 14). These books were all presented to Moyal and subject to inspection by Moyal. No reasonable jury could find that Geisinger committed fraud by intentionally concealing the date of manufacture of the Helicopter as these records all show that the Helicopter existed prior to 1985.
One of the five elements that must be established in a fraudulent concealment action is that Plaintiff could not have reasonably obtained access to the evidence from another source. In this case, Moyal obtained access to the year of manufacture because that information was contained in the logbooks and on the data plate. Another element requires that the Defendant intentionally withheld, altered or destroyed the evidence. No reasonable jury could find that Geisinger withheld, altered or destroyed the year recorded on the Helicopter's data plate because the year on the data plate remained intact and was viewed by Martuge. Similarly, the logbooks containing information about the years that the Helicopter was in service were not withheld, altered or destroyed, in fact they clearly showed on numerous pages that the Helicopter was in service prior to 1985. Moyal has pointed to no evidence and the record does not contain any evidence that suggests that Geisinger had knowledge or belief of the falsity of the Helicopter's year of manufacture or that Geisinger intended that Moyal rely on such false information. The record demonstrates quite the opposite. Because Moyal failed to establish any of these elements, it cannot maintain a claim for fraud.
Mere delivery of a 1983 Helicopter instead of a 1985 Helicopter is not alone indicative of fraud. Geisinger did not have direct dealings with Moyal, but instead hired Eckhart to serve as broker during the negotiations for the sale of the Helicopter and Geisinger did not maintain or service the Helicopter. Instead it engaged Keystone to do so. No reasonable jury could find that because Geisinger wanted to purchase another helicopter that it intentionally misrepresented or concealed the year of manufacture of the Helicopter that it sold to Moyal. Geisinger is correct in its assertion that Moyal cannot prove the necessary elements for a cause of action for intentional misrepresentation or intentional concealment. There is no evidence contained in the record showing that Geisinger made representations to Moyal concerning the Helicopter's date of manufacture and or that Geisinger intended to mislead Moyal in any way. More importantly, information was presented to Moyal prior to closing that showed that the Helicopter was in service prior to 1985. Geisinger's motion for summary judgment on the fraud claim is granted.
IV. Geisinger's Motion for Indemnification
Geisinger seeks indemnification against Keystone or a defense. Keystone contends that Geisinger's motion should be denied because there are genuine issues of material fact regarding whether the indemnification provision of the management agreement applies to the claims asserted by Moyal.
On July 16, 2001 Geisinger and Keystone entered into a Consultant and Management Services Agreement ("MSA") (MSA § 2.1, 5.1). Under the MSA, Keystone agreed to maintain and operate the helicopters used for Geisinger's Life Flight Program. The MSA contains two indemnification clauses (MSA § 7.6,7.7). Geisinger contends that if it is subjected to liability because of failure to replace the hoses and if it is determined that Keystone was negligent in failing to replace the hoses then Geisinger should be entitled to a defense and indemnification from Keystone.
Summary judgment has been granted in Geisinger's favor. Consequently there can be no ground for a claim against Keystone for defense and indemnification. Geisinger's motion and its cross-claim for defense and indemnification will each be dismissed as moot. Similarly, Geisinger's cross-claim against Eckhart will be dismissed as moot.
V.
Eckhart's Motion to Dismiss or in the Alternative for Summary Judgment
In its Complaint, Moyal contends Eckhart violated the New Jersey Fraud and Consumer Act ("CFA"). In response, Eckhart moves to dismiss or in the alternative for summary judgment, contending, first, that this Court does not have personal jurisdiction over it or this matter, second, that application of the CFA to it violates the Commerce Clause and third, that it did not violate the CFA.
There is no need to address the question whether, had Eckhart moved to dismiss for lack of in personam jurisdiction at the outset of this case, the motion would have been granted. Eckhart has waived this defense. Fed.R.Civ.P. 12(h)(1) provides that "[a] defense of lack of jurisdiction over the person . . . is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof as a matter of course." Echkart did not raise this defense by a motion or in its answer; it resisted Geisinger's motion to transfer the case to the Middle District of Pennsylvania on the ground that it would be more convenient to travel to the Newark Airport than to travel to mid-Pennsylvania; it has fully participated in discovery and all other proceedings in this case without suggesting that the Court lacks in personam jurisdiction. Eckhart has waived whatever claim it may have had to assert lack of in personam jurisdiction. It has fully subjected itself to the jurisdiction of this Court and its motion to dismiss on jurisdictional grounds will be denied.
B. Motion for Summary Judgment
Eckhart contends that Count IV of Moyal's Complaint, which alleges Eckhart violated the New Jersey Consumer Fraud Act N.J.S.A. 56:8-1 et seq. ("CFA"), should be dismissed because it violates the Commerce Clause in that none of the parties are or were New Jersey citizens and none of the events relating to the sale took place in New Jersey. None of the parties have any New Jersey nexus. None of the extensive negotiations and inspections took place in New Jersey. The Helicopter was not delivered in New Jersey and was only brought to New Jersey after the sale and delivery were completed. In a word, it's a totally out-of-state transaction which Moyal seeks to subject to New Jersey's regulatory statute, the CFA. There are persuasive arguments that application of the CFA would indeed violate the Commerce Clause, see, e.g., Edgar v. MITE Corp., 457 U.S. 624, 640-46 (1982). However, it is unnecessary to address that issue because it is apparent that as a matter of law Eckhart's actions in connection with the sale of the Helicopter did not violate the CFA.
Count IV specifically alleges that Eckhart misrepresented the Helicopter as a 1985 helicopter and failed to disclose that fact to Moyal, breaching its duty according to N.J.S.A. 56:8-1. Moyal claims that because of Eckhart's actions, it was damaged by the loss of the bargain of the contract and by the cost to pursue this action.
Under the CFA, an unlawful practice is:
[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby . . .
N.J.S.A. 56:8-2; Judge v. Blackfin Yacht Corp., BYC, 357 N.J.Super. 418, 424 (2003).
The CFA provides that an unlawful practice may be committed with respect to the sale or advertisement of any merchandise. N.J.S.A. 56:8-2; In re Nat'l Credit Mgmt. Group LLC, 21 F.Supp,2d 424, 448 (D.N.J. 1998). The district court stated, "the capacity to mislead is at the heart of the definition of an unlawful practice". Id. at 449 (citations omitted). While a knowing omission requires intent, affirmative acts do not when the conduct constitutes an unlawful act under the Consumer Fraud Act. Id.
Eckhart has been in the business of brokering helicopters for over 20 years. Geisinger communicated with Eckhart in 2000 to act as the broker in the sale of the Helicopter. Keystone recommended Eckhart to Geisinger. Using information it obtained about the Helicopter from Keystone (Gray Dep. 55), Eckhart prepared a Spec Sheet for the Helicopter and presented it to Moyal. Information contained on the "Spec Sheet" included the make, model, year of manufacture, and price of the Helicopter (See Eckhart Ex. A). The Spec Sheet disclaimed the accuracy of the information contained therein. The bottom of the Spec Sheet contained the cautionary warning: "SPECIFICATIONS SUBJECT TO VERIFICATION UPON INSPECTION." As recited above, no reasonable jury could find that the disclaimer was inadequate to advise a purchaser that it must rely on its own inspection.
It must be noted that the Helicopter's serial number would not have been included on the listing sheet provided by Eckhart because brokers typically don't include serial numbers on the listings in an effort to prevent buyers from going straight to the owner to make the purchase (Gray Dep. 59). However, the Helicopter's serial number was listed on Exhibit 1 to the PA.
Martuge undertook the responsibility to verify the information contained on the Spec Sheet on behalf of Moyal. Martuge spent approximately 5 hours reviewing the logbooks for the Helicopter (Martuge Dep. 43:18). Both Moyal and Martuge were present during the pre-buy inspection.
There is set forth in detail above a description of the inspection Moyal and Martuge made of the Helicopter and its records that revealed in multiple ways that it was manufactured before 1985 and in any event, that the date of manufacture was immaterial to the transaction. Eckhart did not breach any duty to Moyal under the CFA and no reasonable jury could find that it did so by stating on the Spec Sheet that the Helicopter's year of manufacture was 1985. Eckhart's motion for summary judgment will be granted. In view of this disposition Eckhart's cross-claims against Geisinger and Keystone will be dismissed as moot.
VI. Conclusion
For the reasons set forth above, Geisinger's motion for summary judgment on Moyal's breach of contract and fraud claims is granted; Geisinger's motion for a ruling that it is entitled to defense and indemnification from Keystone is denied as moot; Geisinger's cross-claim against Keystone will be dismissed as moot; Eckhart's motion to dismiss for lack of in personam jurisdiction is denied; Eckhart's motion for summary judgment on Moyal's fraud claim is granted; and Eckhart's cross-claims against Geisinger and Keystone will be dismissed as moot.
As a result of this disposition there remain in this case Moyal's Count three that alleges that Keystone was negligent in its inspection of the Helicopter and Keystone's cross-claim against Geisinger and Eckhart.