OPINION AND ORDER
Prеsently before the Court is defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Proсedure.
From about January of 1966, and continuing for a period of two years, plaintiff purchased frоm defendant a glue used to put together table pads which it manufactured. These adhesives werе shipped in drums with two gummed labels affixed, one on the side and one on the end. Imprinted on each label was the following language:
“Important — Read Carefully Before Opening: We exclude all warrаnties, express or implied, with respect to these goods including warranties of fitness for a partiсular purpose and merchantability. This provision is the final agreement of the parties and can be modified only by one of our officers in writing. In any event, purchaser’s damages shall not exceed the price of the goods. If purchaser does not want the goods subject to these terms, they shоuld be returned unopened.”
Following each delivery, defendant forwarded by first class mail to plaintiff аn invoice, which served as a bill for the purchase price of the contract. Imprinted on еach was the following statement:
“WARRANTIES: Since we have no control over the conditions under which these goods are transported or under which the purchaser stores, handles, or uses these goods, we make no warranty, either express or implied, with respect to these goods or their fitness for any purpose or the results to be obtained from their use. No representative of ours has аuthority to waive or change this provision, which applies to all sales. IF THE PURCHASER DOES NOT ACCEPT THE GOODS ON THESE TERMS, THEY ARE TO BE RETURNED AT ONCE, UNOPENED.”
Plaintiff, who accepted about three dozen such invoices without recorded *444 complaint, contends that some оf the adhesive, when used, “migrated” through the layers of the assembled table pads, and appeared on the surface, causing damage to wood table tops on which the pads had been рlaced. Plaintiff’s claim is for breach of warranty.
It is undisputed that the Uniform Commercial Code governs, 1 and that warranties may be disclaimed under the Codе. UCC § 2-316 states:
“(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any рart of it the language must mention merchantability and in case of a writing must be conspicuous, and to еxclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.” (Emphasis added).
The primary objective of this section of the Code is to avoid the fine print waiver of rights by the buyer. 1 Anderson Uniform Commercial Code, 2d Ed. 677 (1970).
In its memorandum in support of motion for summary judgment, defendant cites the above quoted section of the Code and states, “Each of the two labels attached to each drum of adhesive clearly and effectively disclaimed all warranties. Merchantability and fitness for purpоse were specifically mentioned, and the disclaimer was obviously conspicuous.” (Emphasis added). We disagree.
Section 1-201(10) of the Code defines conspicuous аs “A printed heading in capitals. * * * Language in the body of the form is ‘conspicuous’ if it is in larger or other сontrasting type or color.”
Defendant’s shipping label does not contain a conspicuоus heading. Only the first letter of each word in the heading is capitalized.
With regard to the invoice, the word Warranties appears in capitals. However, these capitals are actually smаller than any other heading on the form, such as Invoice Date, Carrier, etc. Similarly, the sentencе, “If the purchaser does not accept the goods on these terms they are to be returned at once, unopened,” appears all in upper case letters. However, these too are no larger than the word Warranties, which we have above found not to be consрicuous.
While there is some slight contrasting set-off, this is not sufficient. A provision is not conspicuous when therе is only a slight contrast with the balance of the instrument. Sarnecki v. Al Johns Pontiac, 56 Luzerne Leg.Reg.R. 293 (1966).
Although we feel that on these facts alone defendant’s motion should be denied, we will address ourselves as wеll to their second contention, which is that a course of dealing here precludes plaintiff frоm its day in court.
In support of this proposition, defendant cites Roto-Lith, Ltd. v. F. P. Bartlett & Co.,
ORDER
And now, to wit, this 18th day of December, A.D. 1970, it is ordered that defendant’s motion for summary judgment be and the samе is hereby denied.
And it.is so ordered.
Notes
. The Uniform Commercial Code became effeetive in New York in 1964. New York Consolidаted Laws New York U.C.C. §§ 1-101 et seq. The Code became effective in Pennsylvania in 1954. Purdon’s Pennsylvania Statutes, Title 12A. Defendant is a New York corporation.
, The Roto-Lith opinion was strongly criticized at the time of its publication, 3 B.C.Ind. and Com.L.Rev. 573 (1962) ; 76 Harv.L.Rev. 1481 (1962).