SMITH, SMITH & ASSOCIATES

John Smith, Esquire

Identification No. 12345
0000 Market Street
Philadelphia, PA 19103
(610) 555-5555

John Doe : IN THE COURT OF COMMON

PLAINTIFF : PLEAS
:
vs. : CHESTER COUNTY,
: PENNSYLVANIA
A & B Motors Inc. :
DEFENDANT : CIVIL ACTION
:
NO. 05-12345

PRE-ARBITRATION MEMORANDUM OF DEFENDANT

A & B MOTORS

Brief Statement of the Facts

Plaintiff John Doe test-drove and purchased a truck as is from defendant A &

B Motors and three days later sought a refund because he did not “feel comfortable

with the truck.” A & B Motors refused to give a refund, and in response Mr. Doe

sold the truck and now brings this action to recover the difference between the price

he paid A & B Motors and the price at which he sold the truck.

The circumstances that gave rise to this case began on June 22, 2005, when

Mr. Doe won an auction on the Ebay Motors website for a used 2002 Ford F-250 for

$14,625. Defendant, A & B Motors, was the seller. After winning the auction, Mr.

Doe went to A & B Motors and took the truck on a test drive. After the test drive,

Mr. Doe refused to accept the truck for the sole reason that he would have to pay for
an inspection. Though A & B Motors was entitled to enforce the Ebay contract at

that time, A & B Motors did not avail itself of that right, and Mr. Doe left that day

without purchasing the truck.

On June 28, 2005, an agent of A & B Motors called Mr. Doe and offered to

pay for an inspection and include a six-month warranty if Mr. Doe would agree to

buy the truck. Mr. Doe accepted the offer. Approximately three days later, however,

Mr. Doe called A & B Motors and said that he wanted to revoke his acceptance

because he did not “feel comfortable with the truck.” A & B Motors informed Mr.

Doe that he had accepted the truck and that he could not return it at that point.

In response, Mr. Doe alleged the truck’s transmission was faulty, and sold the

truck for $10,500. Mr. Doe now seeks a judgment for $6,625, which is equivalent to

the difference between the full purchase price of the truck minus the sale price, plus

storage and attorney fees.

Legal Basis of Claim or Defense

Mr. Doe is not entitled to recover the damages he seeks because A & B

Motors fulfilled all of its contractual obligations with respect to the sale of the truck.

First, Mr. Doe was not in a position to revoke his acceptance because he had

sufficient opportunity to test drive the truck and has failed to prove that the

impairment he alleges was substantial. Second, no implied warranties arose in the

sale of this truck because an express warranty governed the contract. Third, Mr. Doe

cannot recover attorney's fees because breach of contract is not a recognized

exception to the rule that the parties to litigation are responsible for the own fees.

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 I. MR. DOE WAS NOT ENTITLED TO REVOKE HIS
ACCEPTANCE.

Mr. Doe was not entitled to revoke his acceptance for two reasons. First, Mr.

Doe failed to show a substantial impairment. Second, Mr. Doe’s test drive was a

sufficient opportunity to discover a defect such as the one he alleges.

A. Mr. Doe Was Not Entitled to Revoke His Acceptance Because

He Failed to Show That the Truck Had a Substantial Defect.

Mr. Doe was not entitled to revoke his acceptance because he failed to

produce any evidence showing that the alleged defect substantially impaired the

value of the truck, and instead merely stated that the value of goods to him were

impaired. In order to revoke acceptance, a buyer or a seller must show that there is a

substantial impairment. 13 Pa. Cons. Stat. § 2608(a) (2005). The requirement that

Mr. Doe show a substantial impairment is in place “to preclude revocation for trivial

defects which may be easily corrected.” Rozmus v. Thompson's Lincoln-Mercury Co., 24

A.2d 782, 784 (Pa. Super. Ct. 1966).

Mr. Doe has not come forward with any evidence of the probable cost and

time to repair the alleged defects. Mr. Doe is trying to recover $6,625 for what could

have been a minor defect that A & B Motors could repair at little or no cost.

Without evidence of the specific nature of the defect, it is impossible to ascertain

whether the alleged impairment was “substantial.” Because Mr. Doe failed to

produce evidence showing that the impairment was “substantial,” he is not entitled

to revoke his acceptance.

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 B. Mr. Doe Is Not Entitled to Revoke His Acceptance Because the
Defect Is Such That a Test Drive Would Have Alerted Him to
the Impairment He Alleges.

Mr. Doe is not entitled to revoke his acceptance because he would have

discovered a noncomformity such as the one he alleges when he test drove the truck.

A buyer can revoke acceptance only “without discovery of such noncomformity.” 13

Pa. Cons. Stat. 2608(a)(1) (2005). The defect Mr. Doe alleges, a transmission that

does not shift above the second gear, is of such a nature that the Mr. Doe would have

noticed it on his test drive. However, Mr. Doe did not make any mention of such an

obvious defect. Instead, Mr. Doe stated that he would not buy the truck because he

would have to pay for the inspection. Mr. Doe later accepted A & B Motor’s counter

offer without making any mention of a defect in the transmission, and eventually

returned to A & B Motors to purchase the truck. Because Mr. Doe would have

discovered a noncomformity such as the one he alleges, Mr. Doe is not entitled to

revoke his acceptance of the truck.

II. IMPLIED WARRANTIES DO NOT APPLY TO THE SALE OF

THIS TRUCK.

No implied warranties apply to the sale of this truck. The implied warranty of

merchantability does not apply to the sale of this truck because it is inconsistent with

the express warranty A & B Motors provided. When an express warranty is

inconsistent with implied warranties, it excludes them. Q. Q. Vandenberg and Sons, N.

V. v. Siter, 204 A.2d 494, 498 (Pa. Super. Ct. 1964). In addition, the implied

warranty of fitness for a particular purpose does not apply to the sale of this truck

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because no agent of A & B Motors knew of, or made representations concerning, a

particular purpose to which Mr. Doe would put the truck.

A. The Implied Warranty of Merchantability Does Not Apply to

the Sale of This Truck Because the Express Warranty Provided
by Defendant is Inconsistent with the Implied Warranty of
Merchantability.

The express warranty provided by A & B Motors is inconsistent with the

implied warranty of merchantability because it transferred all liability with regard to

defects in the truck, particularly defects in the transmission, to the Penn Warranty

Corporation. When an express warranty is inconsistent with implied warranties, it

excludes them. Id.

The warranty provided by A & B Motors states that “the car dealer . . . has no

liability other than submitting the payment and necessary paperwork to the Penn

Warranty Corporation.” This language is conspicuous as it is at the top of the

warranty sheet that the Mr. Doe signed, and it is incorporated into the sales contract.

Despite this express provision, Mr. Doe is not seeking redress through the express

warranty as he should have, but is instead demanding A & B Motors pay the

difference between the full purchase price and the sale price of the truck. Because the

express warranty provided by A & B Motors transfers liability for defects to the

truck, and expressly covers the alleged defect, the express warranty excludes the

implied warranty of merchantability. To imply a warranty in this situation “would

indeed be violating the intention of the parties” Williston, Sales 2d ed, Vol 1, p 473,

§ 239.

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 B. The Implied Warranty of Fitness for a Particular Purpose Does
Not Apply to the Sale of This Truck Because No Agent of A &
B Motors Had Knowledge of, or Made Representations
Concerning, a Particular Purpose.

The implied warranty of fitness for a particular purpose does not apply to the

sale of this truck because no agent of A & B motors had any knowledge of the

particular purpose to which Mr. Doe intended to put the truck. In order for an

implied warranty of fitness for a particular purpose to arise, a seller must know of a

“particular” purpose for which the goods are required. 13 Pa. Cons. Stat. § 2315

(2005). Although it is true that a car dealer has reason to know that a buyer will use a

motor truck to drive, fitness for a particular purpose only applies to “particular”

purposes, and not “ordinary” purposes, which the warranty of merchantability

covers. Gall by Gall v. Allegheny County Health Dept., 555 A.2d 786, 790 (Pa. 1989)

(quoting UCC § 2-315 cmt. 2 (1998)). A & B Motor’s Ebay advertisement does not

provide any specifications that give rise to the implied warranty of fitness for a

particular purpose, nor did any of A & B Motor’s agents make such representations

when Mr. Doe returned to A & B Motor’s lot to purchase the truck.

In Roupp v. Acor, the dealer made specific representations to the buyer, which

gave rise to the implied warranty of fitness for a particular purpose. 384 A.2d 968,

969 (Pa Super. Ct. 1978). The dealer in Roupp knew the specific purpose to which

the buyer intended to put the truck. Id. In addition, the dealer in Roupp stated that an

engine had been rebuilt, and assured the buyer that the truck would be suited for that

purpose. Id. No agent of A & B Motors made representations similar to those made

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in Roupp. Because no agent of A & B Motors knew of any particular purpose to which

Mr. Doe would use the truck, and because no agent of A & B Motors made any

representations concerning a particular use, no implied warranty of fitness for a

particular purpose arose in the sale of this truck.

III. PLAINTIFF IS NOT ENTITLED TO AN AWARD OF

ATTORNEY’S FEES.

Mr. Doe is not entitled to recover attorney’s fees. The parties to litigation are

responsible for their own fees unless otherwise provided by statutory authority,

agreement of the parties, or some other recognized exception. Chatham Commc'ns,

Inc. v. Gen. Press Corp., 344 A.2d 837, 842 (Pa. 1975); 42 Pa. Cons. Stat. § 2503

(2005). Breach of contract is not a statutorily recognized exception. Eight Floor, Inc.

v. Terminal Indus. Corp., 2003 Phila. Ct. Com. Pl. *5 LEXIS 32. Because the present

action is a contract action that does not fall into a recognized exception, Mr. Doe is

not entitled to award of attorney’s fees.

List of Exhibits

A. Bill of sale
B. Warranty
C. Ebay Auction Page

I certify on behalf of my client that I have made a reasonable effort to

stipulate or agree to all undisputed issues of fact or law which would expedite the
arbitration of this matter.

____________________
Attorney for Defendant