*1 lio A.2d 915 ASSOCIATION, Miluzzo, FRANCHISE Salvatore
AM/PM Williаms, Recotta, Hastings Robert E. Paul Robert J. Doyle, Appellants, Thomas E.
v. COMPANY, Appellee. ATLANTIC RICHFIELD Pennsylvania. Supreme Court of Argued Jan. 1990. Decided Dec. *4 Weiss, Mawr, Bryn H. Goldstein,
Sol L. Nancy Philadel- appellants. for phia, I. Thompson, Coleman,
Charles James D. Philadelphia, appellee. NIX, C.J.,
Before and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, CAPPY, PAPADAKOS and JJ.
OPINION OF THE COURT CAPPY, Justice. us appeal by
Before is an members of a franchisee association from an order of the Superior Court Pennsyl- 1987, vania at No. Philadelphia 14, 1988, issued April affirming the order Court of Common Pleas at No. 1986, 157 November Term dated June sustaining preliminary defendant’s objections in the nature of a demur- rer and dismissing action. granted
We allocatur determine whether the named appellants (“plaintiffs”) alleged have facts sufficient sustain cause of action when aver that the they purchased appellee (“ARCO”) from not in was conformance with the warranties made and in their resulted suffering determination, economic harm. such making we address the question of whether such damages consti- will,” good tute a “loss of good and whether will speculative are too as a matter of to permit law recovery. herein, For the reasons set forth find that the plaintiffs alleged sufficient facts to entitle them to proceed with their claim and that the claimed are speculative nor so as to them deny attempt an at recovery. We reverse the decision of Superior Court in part affirm in part.
PROCEDURAL HISTORY ARCO filed preliminary objections the nature of a demurrer Appellants’ complaint, claiming that the dam-
115
of good
stemmed from a loss
by Appellants
ages sought
and not
as a matter
will,
rеcoverable
speculative
which are
plain-
the defendants claim that the
Additionally,
of law.
theory.
to recover
tort
entitled
under a
tiffs should
be
objections
preliminary
sustained ARCO’s
The trial court
complaint.
Appellants’
and dismissed
court,
affirmed
trial
ruling
the
the
The
Court
Superior
law, damages
Pennsylvania
under current
holding that
a loss of
the
claims due to
sought for
breach
traditionally
as
good
will are not recoverable
the
speculative. Additionally,
too
considered to be
been
the
was not entitled
plaintiff
held that
Superior Court
in
tort, finding
duty
parties
of the
act
that
recover
principles.
and not tort
arises under contract
good faith
Court, Judge
Superior
of the
opinion
In the dissent to
the claim
that the
characterizes
majоrity
remarked
Brosky
will,
he
appellants’
while
one for loss of
as
“view[s]
appellee’s
request
profits
by
for lost
occasioned
claim a
Pa.Super.
373
delivery
product.”
of an unmerchantable
580,
90,
Judge Bro-
Additionally,
542 A.2d
as specu-
loss
with
characterization
sky disagreed
lative,
calculating
may have
stating “[although
cases,
still
past,
may
and in certain
problem
a
been
here____
it
a
presents
problem
a
I cannot see that
problem,
Further,
before and
comparison
of the business
should
after
unmerchantable
delivery
Id.,
Pa.Superior
Ct. at
prove
enlightening.”
to be
FACTUAL over 150 represent a class of The Plaintiffs claim AM/PM Mini Markets operated franchisees of ARCO during three and one-half New York Pennsylvania year period. agreements plain- into franchise
ARCO entered lease, a lessee comprised premises of a tiffs which were AM/PM mini-market and an gasoline agreement, dealer The agreement. products agreement mandated petroleum franchisees sell ARCO only products.1 forth complaint sets following facts: ARCO *6 with its began experimenting for gasoline formula unleaded and its franchisees provided gasoline with an unleaded oxinol, consisting blended with of methanol and 4.5% 4.5% grade tertiary (hereinafter gasoline butyl alcohol “the oxi- blend”) early 30, nol from 1982 September through 1985. During this three and a period, half year the franchisees required to sell the oxinol to their blend clients who desired unleaded gasoline. given The franchisees were no regular to opportunity buy gasoline unleaded from ARCO period. during
Plaintiffs claim that purchasers numerous of the oxinol gasoline experienced poor engine blend performance and fuel physical damage system components. Specifically, plaintiffs claim gasoline permitted that the oxinol an excess accumulation of alcohol and/or water which interfered with and, the of efficiency gasoline engines vehicles, in certain caused of or swelling plastic components rubber in fuel system in delivery and resulted engine damage. plain- The tiffs claim that did not conform to ARCO’s product. warranties about the problems As known, oxinol became blend plaintiffs claim drop to have suffered a in precipitous volume of their profits. business an attendant loss of Specifically, plaintiffs point to the rise from sales began until when sales to fall dramatically; allegedly due to oxinol blend gasoline. defective plaintiffs complaint, allege their three of counts Breach of Breach of Warranty, Misrepresen- Implied Duty, tation, and Exemplary Damages. They request damages for profits, consequential “lost damages.” and incidental append copy We note that have failed of the issues, agreements parties. Thus executed between certain such as adhesion, agreements whether constituted a contract of are fore- closed from our consideration we cannot make that determination without the relevant documents.
DISCUSSION is the Uniform inquiry we start our at which point (“the U.C.C.”), at codified 13 Pa.C.S. Code Commercial “Damages buyer of Section entitled seq. et § of the goods” is one regard accepted for breach us,2 and provides, in the case before provisions governing part: pertinent warranty.
(b) damages breach Measure —The differ- is the for breach measure place acceptance between ence at the time would accepted they and the value goods of the value warranted, special unless had if had been as of a different show proximate circumstances amount. *7 proper
(c) consequential damages. Incidental and —In consequential damages under incidental and any case dam- consequential incidental and (relating to section 2715 ages may also be recovered. buyer) Consequential is “Incidental and Section 2715 entitled in provides, pertinent part: Damages Buyer” damages resulting (a) damages. Incidental —Incidental include: the of the seller from breach (3) delay incident to any expenses other reasonable other or breach.3 damages re-
(b) damages. Consequential Consequential — seller include: from the breach of the sulting particular re- general from or (1) any resulting loss at time of of which the seller and needs quirements allegedly accepted which 2. The claim Thus, one warranty. 2714 is § believe not does conform governing provisions. reimbursing buyer damage provision aimed at is 3. The incidental rightfully rejecting goods, or in connection expenses in incurred included in effecting quoted not all the sections We have cover. Damages. courts below have ad- the subtitle of Incidental damages, parties nor have for incidental dressed claim litigation. contracting had reason to know and which could not reasonably prevented by cover or otherwise.4 Pursuant the provisions U.C.C., of the plaintiffs are entitled to seek “general” damages, so-called, under section 2714(b), and consequential damages as provided by section 2714(c).
There has been substantial confusion in the courts and among litigants about what consequential damages are actually and what types consequential damages are in a available breach of warranty case. buyer Where a the business of reselling goods prove can that a breach by the seller has caused him resales, to lose profitable buyer’s lost constitute a form of consequential dama ges.5 We hold now addition to general damages, there are three types profit lost recoverable as conse quential damages that may flow from a breach of warranty: (1) (2) loss of primary profits; loss of secondary profits; (3) (or loss of prospective dam ages, as they termed). are sometimes
In order to alleviate the confusion that has developed concerning the various damages, we use an example to help illustrate the different types.
General damages in the of accepted goods (such case here) as occurred are the actual difference value between goods as promised and the goods Thus, as received. suppose a buyer bought five hundred tires from a wholesal er that were to good condition, be delivered in and in that *8 condition $2,500. would be worth The tires were delivered with holes in them rendered them which worthless. The buyer $2,500 would be entitled to from the seller—the difference between the value of the tires as warranted and received; the value of the tires as those would be the general damages.
4. Another Consequential Damages section of the section includes a provision addressing injury person property; or a matter which is not before us. See, generally, U.C.C. § comment 6 to be damages generally are
Consequential understood which flow from damages naturally proximately other damages: tyрes profit and include three of lost the breach (3) (2) (1) profits; profits; lost primary secondary lost profits, also to as prospective commonly of referred loss damages. good will are the primary profits
Lost difference between goods from the reselling would have earned buyer what the had there no breach and what was earned been question Thus, if occurred. of tires buyer after the breach $5,000, for he proved that he would have resold tires $2,500 for loss of to claim an additional tire would be able he profits; the difference between what would have earned did earn actually from of the tires and what he the sale (or sales) from from sale lack of the tires. sold, hubcaps example,
If of the tires also for buyer loss tires, he аlso suffer a every set would term damages These are what we hubcap profits. types secondary profits.” “loss of disgruntled
If customers so buyer’s regular longer frequented no about the defective tires patronize competitor’s a buyer’s began business and business, good a “loss of would have suffered buyer nonconform profits will” the direct loss of from the beyond affected ing adversely his future would be goods; business Thus, damages result of the defective tires. a sales of lost on sales rather than on profits refer to future goods themselves. defective simple to un- example framework provides While this possible damages types derstand the different case, encompass myriad it does not breach of arise, can a claim circumstances which nor of these different specify does it which in Pennsylvania. been allowed general damages under recognizing
In addition dam Code, allows consequential 2714 of the Pennsylvania § See, e.g., to be recovered. ages in the form of lost *9 120 432 Soya, 217,
Kassab v. Central
Pa.
(1968);
2714 and 2715 of the Uniform Commercial
Code
the case
of R.I. Lampus Co. v. Neville Cement
474
Corp.,
Products
199,
(1977).
Pa.
378 A.2d
case,
Before the Lampus
required the party seeking consequential damages in the
form of lost profits to show that there
“special
were
circum-
stances” indicating that such damages
actually
con-
templated by the
at the
parties
time
entered into the
rule,
agreement.
test,
This
termed the “tacit-agreement”
“permitted] the plaintiff to
damages arising
recover
from
special
only
circumstances
if ‘the defendant fairly
bemay
supposed
have assumed
or
consciously,
to have warrant-
ed the plaintiff
assumed,
that it
reasonably
suppose
[such
”
liability] when thе contract was made.’
Co.,
R.I. Lampus
474 Pa.
supra,
(1977).
(cites
at
In Lampus, we overruled the restrictive “tacit-
agreement” test
replaced
it with the “reason to know”
test; which requires that
a seller knows of a buyer’s
“[i]f
general
particular requirements
needs,
or
that seller is
liable for the resulting consequential
whether or
contemplated
that seller
or
agreed
damages.”
such
Id.,
(1977)
Turning hand, to the case at we must determine the plaintiffs alleged whether have sufficient per facts to mit them to proceed with claim for consequential dam ages. note that the of initially prelimi-
We standard review for nary objections is a limited one. As we stated in Vattimo 241, Inc., 1231, v. Lower Bucks 502 Pa. 465 A.2d Hosp., (1983): 1232-33
All
in
complaint
material facts set forth
as well as all
inferences reasonably deducible therefrom are admitted
as true for
of
purpose
this
Clevenstein v.
[the
review.]
Rizzuto,
397,
(1970).
439 Pa.
mailgrams and brochures that its oxinol gasoline was high quality, better for the environment and would not damage automobiles; or older new that the oxinol damaged engines; was merchantable because it that it ordinary purpose was not fit for the for which it was intended; that that the plaintiffs relying ARCO knew on the skill of the to select or defendants furnish suitable gasoline; that ARCO’s actions constituted a of ex- breach U.C.C., Lampus 6. is in with section 2-715 of the accord comment states; (1978), agreement’ recovery which 'tacit test for the "[t]he consequential damages rejected.” is 2-715, Accord; comment U.C.C. § which resulted in plaintiffs warranties harm to the press profits, lost incidental consequential the form of dam- ages. forth, above, our standard of
Based on review as set plaintiffs that the set sufficient believe fоrth facts to state complaint their a cause of action under the breach counts. profits, seek lost incidental and consequen- damages.8 courts, tial The defendants and the lower how- ever, good considered these lost damages will. We believe lower courts and the defendants are categorizing error in all the claimed damages. separately types We address the different claimed.
LOSS OF PROFITS FOR GASOLINE SALES plaintiff The first claim the makes for is for the lost from the of profits gasoline. plain sales The tiffs claim that the the defendant warranty by breach the caused the to lose sales concerning gasoline plaintiffs during year period they a three and one half while received nonconforming gasoline from ARCO. the case of Kas (1968), A.2d 848 sab v. Central Pa. Soya, permitted profits plaintiff lost for cattle sales when the cattle, that harm to their showed the defective feed caused causing allega the to their cattle. The public stop buying tion here is similar. the gasoline buying public When defective, gasoline that the was many stopped discovered purchasing gasoline. ARCO and it one
Employing reasoning taking step the Kassab further, that the here are entitled to plaintiffs we believe did not their gasoline buying community buy show the of the gasoline through from 1982 1985 because reasonable and harm their gasoline belief that the was defective would The sales are to the lost engines. gasoline comparable lost consequential plaintiffs profits, and dam- The claim "lost incidental herein, hоwever, ages." profits” type are As we noted "lost damages. consequential damage; separate category not a The between the two Kassab. distinction sales cattle one had the feed all at bought the Kassabs is that cases instant all their livestock affected. The and thus was time gasoline regular intervals bought their plaintiffs on could sell month. profit they per earn what only could all the plaintiffs the sold argument defendant’s —that they may the point. While they bought gasoline —misses they significantly gallons sold fewer every gallon, sold have delivered noncon- allegedly that ARCO during period Thus, during period, this forming gasoline. plaintiffs’ defective just directly as attributable lost sales were were attributable to the defec- profits lost gasoline examрle previously.9 in the we used tires tive Thus, gasoline of defective prior if to the manufacture 100,000 month month gallons per every plaintiffs sold only gasoline, as a of the defective sold they and then result 60,000 every month until ARCO discon- gallons per month profits gasoline, then have lost tinued 40,000 per on month for gallons received they would have fact, are, in period.10 profits Lost year the three claimed earned plaintiff actually what the the difference between not have earned had the defendant they and what would gasoline allegedly Because the was committed breach. warranties, plaintiffs may conformance with for the on a gasoline be entitled lost breach are theory. The lost sales what we are profits,” “loss of recovеrable primary termed upon proper proof. 2715 of the U.C.C. pursuant *12 § furthermore, of cover note, remedy the We of the plaintiffs. Section was unavailable to case, example, requirements a tire involves 9. The current unlike the requirement quantity agreement. In rather fixed contract than a contract, profits diming period in seller of time which the lost primary profits. The supplies nonconforming goods lost constitute buyer purchased prove would require does not that the he have Code permits buyer usually required, to amount § the same as buyer mitigate by Thus need his "cover or otherwise.” buy goods them his and then be unable to sell usual amount profits. he can claim a loss before only represent figures representational and do not 10. Thе used are plaintiffs. any by made claims limits a plaintiffs U.C.C. to recover when he ability could prevented damage such or “by cover otherwise”. Pur- code, to the suant cover is defined as the buyer’s purchase goods of substitute at a commercially price. reasonable The can from buyer recover the seller the difference be- price goods tween contract and the cost of bought as 2712, defining cover. 13 Pa.C.S. “cover” and damages § recoverable, in provides, pertinent part:
(a) manner Right and of cover.—After a breach within (relating buyer section 2711 to remedies of in general; interest of in security buyer rejected goods) the buyer making “cover” faith may by good and without unrea- delay any purchase sonable reasоnable of or contract to purchase goods substitution for those due from the seller. here, plaintiffs
The their by allegations, could not “cov- er;” they contractually required purchase all their effect, they accept from ARCO. had to allegedly nonconforming gasoline possible and had no way Thus, to avoid the attendant loss of profits. since cover, could not only remedy was available them was to file suit.11
Furthermore, note we that Section 1106 of the U.C.C. provides: provided by remedies this title shall liberally be
[t]he administered to the end that the aggrieved party may put in as the other position party as had if consequential special but neither or nor fully performed penal damages may except specifically providеd be had as in this title or other rule of by (emphasis supplied). law. compels interpreta- Code itself us to be liberal our tion of types permit. We would there- fore proceed allow with their claims for lost states; relating 11. The comment to the Code for the section to cover sales, envisages definition of "cover ... a series of contracts or "[t]he sale; single goods as well as a contract or not identical with those commercially involved but usable reasonable substitutes under the circumstances____” *13 during period supplied allegedly ARCO profits gasoline nonconforming gasoline. PROFITS FOR OTHER THAN
LOSS OF ITEMS
GASOLINE SALES
allege
that in addition to a loss of
plaintiffs
of
gasoline, they
for sales of
had a concomitant loss
mini-marts
for other items that
sold
their
sales
suppliеd
of time that ARCO
nonconform
during
period
rationale is that when the number of
ing gasoline. Their
decreased, so did the number of
gasoline
customers buying
words,
mini-mart.
In other
customers
items at the
buying
a result of the
facets of their business suffered as
related
This
is what we charac
gasoline.
type
injury
defective
meaning that
secondary profits;”
terize as “loss of
result of the
products
sales of other
suffered as a
breach
an
to address
opportunity
This court has not had
warranty.
are
whether these
recoverable.
types
us,
plaintiffs’ allega-
the essence of
the case before
it is
frequent
is that customers
the mini-marts because
tions
gasoline.
they purchase
to do so at the time
convenient
gasoline buying
foremost
of the mini-mart are
Customers
and sundries
gasoline
primary purchase
is their
patrons;
Here,
claim
purchases.
are their incidental
incidental
sales so affected the
product
that the primary
of their business.
aspects
as to create a loss
other
sales
dropped
if
sales
It is
to assume that
reasonable
on the mini-mart
ripple
there
a
effect
dramatically,
was
does not con-
primary product
Additionally,
sales.
when
it is foreseeable that
form
we believe that
warranty,
to the
Thus, permitting
secondary profits.
a loss of
there will be
requirement
correspond with
these
would
and the Code.
Lampus, supra,
set forth
foreseeability to assume there will be loss
It is much less foreseeable
nonconforming products are
secondary profits when
is a primary
that unless it
ones. We believe
primary
the causal
warranty,
conform to the
product that does not
the breach and the
is too attenuat-
relationship between
loss
*14
profits.12
for the loss of
damages
secondary
permit
ed to
presents
find
the
us
a
that
fact situation before
alsoWe
in that
the
to
problem
plaintiffs were
able
further
goods
in
or
any
by buying
the harm
substitute
mitigate
way
Thus,
was defec-
plaintiffs’ primary product
the
“cover.”
remedy
by
unable to
the situation
tive and
supplier.
from another
buying gasoline
rea-
presents compelling
case
present
find
the
We
profits.
of
damages
secondary
for loss
permitting
for
sons
case,
a
Henceforth,
primary
in
of
when
a breach
alleged
nonconforming
the
is
to be
product
plaintiff
purchasing
by
is
to cover
substitute
plaintiff
the
unable
the
should
proper proof,
plaintiff
hold that
goods,
upon
secondary
loss
profits.13
to sue for
be entitled
LOSS OF GOOD WILL
recovery for
Historically, Pennsylvania has disallowed
in
or
breach of
prospective profits
will
loss of
upon
relied
for this
generally
The cases
warranty cases.
Schulz,
v.
Tire Co.
295 Pa.
Michelin
are
proposition
Sons,
Inc. v. Consolidat-
Harry
Rubin &
(1929);
Although plaintiffs court, and Court, the trial damages, Superior good will lost claim for all characterized the defendant have actually damages. What good as in this case will profits consterna- caused much has good damages will constitutes serious in fact have We litigants. courts and tion to the dam- will seeking good are even that the doubts in case issue determine that However, in order to ages. good will what us, must first discuss before are allowable. they are and whether is a noted, good will aptly As one commentator “[l]oss In a to define. and, such, is difficult concept mercurial 14 Other profits.” loss of future sense, it refers to a broad a loss of will to be good loss of considered jurisdictions good Generally, among customers.15 reputation and profits over have built that businesses reputation to the will refers of custom- the return by reflected of time that is the course Anderson, Damages, J.L. & Com. Consequential 7 Incidental (5th Co., Yards, 447 F.2d Purina Inc. v. Ralston Feed 15. Texsun Cir.1971). and the attendant that accom- purchase goods to ers Thus phrase “good damages” is such sales. will panies prospective profits and loss business coextensive reputation.
Secondly, decide will good we must when dam Essentially, in situation. arise a breach in a supplies will case which seller age good arises by buyer’s requirements only dictated quantity nonconforming providing the seller has ceased after goods goods. Dam has substitute buyer purchased —or to the loss of will this case would refer age good was able to buyer sales that after occurred business customers; his it does not refer goods to acceptable рrovide he is sell the during of time which forced to period to the nonconforming goods. dam good address whether will
Thirdly, we must held in permit as we speculative recovery, are too ages Kassab, Al Sons, supra. Michelin, supra, Rubin & cases, damages in those disallowed though we written in time when They are not recent. were basis, a more where simple conducted on business was forecasting unexplored market studies and economic sciences. computers, in an era which economic
We are now and demo- sophisticated marketing studies forecasting, *16 such, As accepted. we used and graphic widely studies are profits precluding prospective the rationale for believe that the realities of ignores “too speculative” under the rubric of modern economics. We the science of marketplace and should not be profits claims for prospective believe an given be Rather, plaintiffs should initio. barred ab their dam- attempt prove forth to set and opportunity ages. Appeals ago, the Third Circuit Court
Twenty years prospective profits claims for disallowing in case noted in not speculative may be once considered future:
129 or Pennsylvania view say approve This is future Pennsylvania position it will believe be the ad- damages]. Considering good will [prohibiting techniques of the use analysis market and made in vances lost computers be that sophisticated may it highly are no more than lost speculative of this nature profits hotel, of a or and factory destruction from the for its will reconsider reason Pennsylvania perhaps case. in a future rule Corp., Co. v. Union Carbide 422 F.2d Chemical
Neville (1970). 1205, 1227 rule. has come to reconsider that
We the time believe for so, position recovery our on doing we find (or step out prospective profits) practices techniques, as well as day modern business Professor by As noted jurisdictions.16 of other law conse- in his article on incidental and Anderson well-crafted damages, quential date, categorically courts have only Pennsylvania
[t]o
circum-
goodwill
any
for loss of
under
recovery
denied
stances,
Pennsyl-
oft-litigated
an
which has been
issue
from the
Pennsylvania
If one removes the
cases
vania.
count,
significant
of the cases
аllowed
majority
goodwill
proper
lost
circumstances.17
recovery of
Furthermore,
by
criticized
repeatedly
our rule has been
See,
damages.
Many
good will
16.
state and federal courts now allow
Cir.1975);
R.E.B.,
Co.,
(10th
e.g.,
Inc.
Ralston Purina
other
not had a
profits, we have
prospective
of
on the issue
law
us since Kassab was
decided
come before
case
significant
moon,
time,
on the
astronauts have walked
that
1968. Since
amazing
of
computers capable
developed
have
engineers
made
and
have
engineers
physicians
feats
biomedical
replacement.
organ transplantation
strides
enormous
of
is not the same world as
the world
1990
It is evident
decided, nor
the Michelin
case
was
in 1929 when
it was
Kassab was
in 1968
as it was
when
the same world
even
decided.,
technological developments
rapid
these
While
problems,
they
concomitant
their
not been without
have
possible
that were not
things
possible many
made
have
profits.19
prospective
of
before;
including the calculation
See,
Corp., 422 F.2d
Union Carbide
e.g.,
Chemical Co. v.
Neville
Comment,
1205,
Cir.1970);
(3d
and Business
Loss Goodwill
1227
of
Damages
Com-
Under
Elements
Reputation as Recoverable
Uniform
of
Pennsylvania Experience, 75 Dick.L.Rev.
§
Code
2-715—The
mercial
63, (1970);
199,
Contracts,
Peters,
Yale L.J.
Breach
73
Remedies for
of
(1963).
276-77
history
engendered by
extensive
of allow
curiosity
our
is
19. Further
of contract case.
prospective
in breach
ing
for loss of
claims
82,
(1907),
court said:
Wernwag,
Inextricably related to damages causally are proving difficulty earlier, proving causa- difficulty stated As we breach. to plaintiffs to operate permitting as a bar tion should Furthermore, to pursuant note that damages. we claim the Code, damages Commercial case law and Uniform our long As certainty. with mathematical proved need not be reasоnable basis from which provide can plaintiffs as permitted to damages, they calculate will be jury can their case. pursue to
Thus, try should be entitled plaintiffs we now hold that they are able prove good damages; provided will (1) that the such sufficient evidence to establish introduce warranty of and related to a breach profits causally were basis from (2) the trier of fact with a reasonable provide damages.20 which to calculate case, this we note that
Turning to the facts of
damages, since
good
made no claim for
will
plaintiffs have
incurred;
having
by
cured the breach
none was
ARCO
nonconforming gasoline.
of the
stopping
supply
time that the
period
for the
of
damages
only
claimed are
internally
attempt
consistеnt as well as
to craft law that is
our
historically
consistent,
as
must strive to reconcile differences
such,
legitimate
prohibit
apparent.
reason to
As
we see no
become
we never have
prospective damages in
of
cases when
breach
in breach of contract cases.
ways
damages may
re
number of different
20. There are a
jury
speculation
to the
of
and be submitted
moved from the realm
with a rational basis from which the
longAs
amount can be inferred.
jury
proof provides
with “a reasonable basis”
as the method
calculating
damages,
to the trier
fact.
the issue should be submitted
See, e.g.,
by
jurisdictions.
Eastman
approach taken most
This is the
359,
400,
Co., U.S.
47 S.Ct.
Photo Materials
273
Kodak Co. v. Southern
F.Supp.
(1927);
Corp., 93
153
Macdonald v.
CONCLUSION types profits now hold that there are three of lost We under consequential recoverable available (1) 2715 of the Commercial Code: Uniform § § (2) profits; secondary loss of primary profits; loss loss (3) good damages, prospective defined as a this reputation. categorization or business While court, a new for the we be- represents direction *19 it is the direction. lieve better note, do find that this case should be As a final we not The principles, warranty principles. on tort but on decided nature relationship parties is of contractuаl between on For that principles. and should decided contractual be reason, of the court below dismiss- uphold we decision the tort we do believe that our ing Additionally, claims. law or the Uniform Commercial Code authorizes case affirm exemplary damages claim for and thus legitimate Accordingly, of such claim. the lower court’s dismissal of the courts with respect reverse decision lower proceed- claims and remand case for breach the opinion. consistent with ings It is so ordered.
FLAHERTY, J., concurring dissenting filed a and opinion.
NIX, dissenting and C.J., concurring this joins opinion. Justice,
FLAHERTY, concurring dissenting. and it loss opinion I insofar as holds join majority are conse- secondary profits recoverable primary and and 2715 the Uniform under quential damagеs § § claims Code, as it holds that tort Commercial and insofar damages claims for dismissed exemplary properly the court The those by majority’s upon below. rationale cogent. is most issues dissent, however,
I to the respect majority’s purport- with holding good will are damages ed recoverable. Recov- damages, will ery good meaning prospective loss reputation, and business is not at issue this case. majority states that the did not make a claim good damages. will Where no claim for such made, has it is for this jurisprudentially been unsound Court to raise and decide the issue. While the discussion on this might purported and what be seen as a decision dicta, and I inclined to point readily is dismissed as am it, least, preferable, it disagree say with would be presented that the issue not addressed until we are are at a case where issue.
NIX, C.J., dissenting this joins concurring opinion.
v. BARKELBAUGH, Appellant. Thomas Pennsylvania. Supreme Court of Sept. Submitted 31, 1990. Decided Dec.