Beemac Trucking, LLC v. CNG Concepts, LLC
134 A.3d 1055
Pa. Super. Ct.2016Background
- Beemac Trucking (Appellant) contracted with Aspro (via agent Pearce) to buy equipment to build a CNG fueling station; negotiations spanned Dec 2012–Jan 2013.
- Aspro’s Dec 7, 2012 proposal included its General Conditions of Supply containing a Texas governing-law and forum-selection provision.
- Aspro sent a revised Jan 28, 2013 proposal (which referenced standard terms but did not attach them) and a Jan 29 quote that attached a credit application; neither the Jan 28 nor Jan 29 documents attached or expressly incorporated the Dec 7 General Conditions or the Texas forum clause.
- Beemac issued a purchase order (and paid a partial sum) based on the Jan 29 quote; delivery failed and Beemac cancelled the order and sued for breach in Beaver County, PA.
- Pearce moved to dismiss for improper venue relying on the Dec 7 forum-selection clause; the trial court sustained the objection and declined jurisdiction. Beemac appealed.
- The Superior Court reversed, holding the Dec 7 terms were not incorporated into the contract under UCC §2-206 principles (a later offer revokes a prior offer unless it incorporates prior terms).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Dec 7 governing-law/forum-selection provision was part of the parties' contract and thus required litigation in Texas | Beemac: the operative contract (Jan 28/Jan 29 or the purchase order) did not include or incorporate Aspro’s Dec 7 General Conditions, so Pennsylvania courts retain jurisdiction | Pearce/Aspro: the Dec 7 General Conditions (including the Texas forum clause) were incorporated into later proposals/quote and thus control venue | The court held the Dec 7 terms were not incorporated into the Jan 28/Jan 29 documents or the purchase order; under UCC §2-206 a subsequent offer that does not incorporate prior terms revokes the prior offer, so Pennsylvania has jurisdiction. |
Key Cases Cited
- Pro Spice, Inc. v. Omni Trade Grp., Inc., [citation="128 F. App'x 836"] (3d Cir. 2005) (subsequent offer replacing prior offer revokes prior offer under UCC §2-206)
- Gasmark, Ltd. v. Kimball Energy Corp., 868 S.W.2d 925 (Tex. App. 1994) (under Texas common law a subsequent offer with different terms revokes prior offer)
- Fetter v. Wells Fargo Bank Texas, N.A., 110 S.W.3d 683 (Tex. App. 2003) (Texas interprets UCC to promote uniformity among adopting states)
- Mid-S. Packers, Inc. v. Shoney’s, Inc., 761 F.2d 1117 (5th Cir. 1985) (courts generally treat later offer as revoking earlier offers absent incorporation)
- In re Wheeling-Pittsburgh Steel Corp., 360 B.R. 632 (Bankr. N.D. Ohio 2006) (surveying authorities that subsequent offer revokes prior offer unless prior terms are expressly incorporated)