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Home My WebLink About94-07084 services in connection with the employee benefits programs of the state of New York (lithe proposal"). 4. HBMI believes that, had it been awarded the contract by the New York state Department of civil service, it would have earned over 5 million dollars of profit over a the five year term of the contract. 5. The preparation of the proposal cost HBMI more than $50,000.00. 6. The deadline for submission of the proposal to the New York state Department of civil Service was May 23, 1994, by 2:00 P.M. 7. The proposal included approximately 150 pounds of documents in two containers. B. Based upon pilot's representations of reliable and timely delivery, HBMI entrusted the Proposal to pilot for delivery. The shipper'S copy of the air bill indicating the terms upon which the parcels were to be delivered is attached hereto as Exhibit "A." This air bill indicates that the package was picked up by pilot on May 20, 1994 at 10:57 a.m., and that HBMI clearly indicated that the packages had to be delivered by 2:00 p.m. on May 23, 1994. 9. On May 26, 1994, HBMI received a letter from the New York state Department of civil service indicating that the Proposal had not been timely received and would not be -2- considered. A copy of that letter is attached hereto as Exhibit tlB." 10. upon inquiry, pilot presented to HBMI a proof of delivery showing that delivery had been made on May 23, 1994 at 13:55. A copy of that document is attached hereto as Exhibit ftc." 11. upon further inquiry, the New York Btate Department of civil Service received an explanation from pilot, a copy of which is attached hereto as Exhibit "0." That explanation indicates that due to the absence of pilot's manager in Albany on May 23, 1994, the route driver had taken it upon himself to deliver the shipment late and then falsify the delivery time on the proof of delivery. A copy of the consignee's copy of the air bill, attached hereto as Exhibit "E," indicates that actual delivery took place at 3:55 p.m. COUNT X - BREACH OF CONTRACT 12. Paragraphs 1 through 11 of this complaint are incorporated herein by reference. 13. An express term of the shipping contract between pilot and HBMI was that the consigned package would be delivered by 2:00 p.m. on May 23, 1994. 14. Pilot had reason to know that failure to comply with the delivery terms would result in severe injury to Plaintiff's business. -3- 15. pilot, without any extraordinary circumstances to excuse compliance with the terms of its contract, failed to deliver the parcel by the specified time, with the result that HBMI lost its opportunity to secure the contract with the state of New York. 16. As a result of Pilot's breach, HBMI has suffered damages as follows: (a) the cost of preparing the proposal, which exceeded $50,000.00, and (b) the profits that would have earned had it been awarded the contract from the state of New York. WHERBFORE, Plaintiff demands judgment against Defendant in an amount in excess of $20,000.00, which amount exceeds the jurisdictional amount requiring submission to arbitration, together with interest and costs. COUNT II - MISREPRESENTATION 17. Paragraphs 1 through 11 of this complaint are incorporated herein by reference. 18. In entrusting the Proposal to pilot for timely delivery, HBMI relied upon Pilot's representation that it had adequate equipment and competent staff to enable it to comply with HBMI's delivery requirements. 19. pilot did not disclose to plaintiff that it only had one employee in Albany with the authority to assure timely -4- delivery and that, in the event of the illness of that employee, the route driver was free to alter the delivery schedule as he saw fit. Further, pilot employed delivery personnel who misrepresented times of delivery, and may have engaged in other questionable practices that made their reliability questionable. 20. If Plaintiff had known of pilot's policy regarding control of its delivery personnel, Plaintiff could have used another overnight courier service to deliver the Proposal to the Btate of New York. 21. As a result of pilot's misrepresentations about its ability to make timely delivery, Plaintiff has been damaged as follows: (n) the cost of preparing the proposal, which exceeded $50,000.00, and (b) the profits that would have earned had it been awarded the contract from the state of New York. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $20,000.00, which amount exceeds the jurisdictional amount requiring submission to arbitration, together with interest and costs. COUNT III - NEGLIGENCE 22. Paragraphs 1 through 11 of this complaint are incorporated herein by reference. -5- 23. Having accepted the consignment of the Proposal from HBMI based on assurances of timely delivery, pilot assumed a duty to exercise reasonable care to make delivery within the specified time. 24. pilot failed to exercise reasonable care to assure timely delivery of the Proposal. Such failure included: (a) Failure to adequately staff the Albany office so that a person with authority to assure timely delivery would be present every day. (b) Failure to adopt procedures and protocols to be followed by route drivers so as to assure timely delivery of all packages irrespective of specific instructions from supervisory personnel. (c) Failure to adequately train personnel regarding the importance of timely delivery. (d) Failure to assure that only competent and reliable employees were entrusted with the delivery of time-critical shipments. 25. As a result of pilot's negligence, Plaintiff has been damaged as follows: (a) the cost of preparing the proposal, which exceeded $50,000.00, and (b) the profits that would have earned had it been awarded the contract from the state of New York. -6- C\.l .I) :.D :0- J) .n ..-t :\J '! i o f ) \D 2 ~ i ~ r ~ ~ ! ~ - f ~ ~ i ~i i ~ ~ ~ ~ ~ .. !2 5 I . a . , 'OCTI I ~i ~::.J ~ '01 N::: I..... ...... 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'.., ,FI[ COUNTY FRONT STREET & VETERANS SQUARE, MEDIA, PENNSYLVANIA 190631215) 891.4200 SHERIFF SERVICe--- --.------------\'NSTAUCTlONSFCifi-SERV1CE OF PROCESS, Voo mu,lll1" on" PROCESS RECEIPT. and AFFIDAVIT_~F .R_~:r_URN . ~~I;:'o'l"d~'.1.:':~;0:4'~~d~':n~.:n~I..." Iyp" or prlnll'glbly 1. PLAINTIFF/SI 2 counr NUMUER Heal th 8enef~. ts ~_~.~!l_~9.~.!1:1_~~t! Jne. 94~?_O~4___~_i-,,",~1__._!:~!:!~_.u___~ 3. DEFENDANT/SI 4 TYPE OF WRIT OR COMPLAINT: :~~ t ,'( r ~ ~~!~F~~};~~~;~~';~VtCO~:;~TI~N~T_C~TO_SERVI:~ onDESCRiPTlo~g~~~~WT~DE_L~'E~_^:~CHED~~~~~ . t 6 ADDRESS IS"..' 0' AFO, A,,"'m.n' No, Clly, 00'0, Twp, Sial. ond ZIP Cod. I AT Rouj:JL 3 5_;LL_J.Jm.a_,___rfilI! Tl.E1Y_:LY i!n t~LJ 99 3 7 ___ _ ------------- 7, INDICATE UNUSUAL ~EAVICE 0 AEG_M_AILlfl DEPUTlZE_ ~P_OST_D()T"EA_ Cl!ml:ll~ r ,l1.m~L _.___ . ,__ ____ ____ ._________ Now, .Dero 70 1994-, I, SHERIFF OIXXXl'WJt.RE COUNTY, PA" do h.r~lJb. djIJ7Utlzo the SherJlta. ~/.. 01> 1 RWR rl> County 10 .,.eut. Ihls Writ nll'!.-~IJ In th~rQl)J ae tglJlil'-' . to law. This depulatlo~~~I_n~_rnadO _at tho roqUOSI,_ and risk aftha _ plalnli'_'..u_ :--~L--2.~,;__t:.gi~:(~l~~''''" _ ,urft~~-(~ L IPEClAL INSTRUCTION'I -DR--OTHER INFoRMATION' THAT WILL A88IBT IN EXpEOITING SERViCE ------'Cljinbe r land -' ,--. ------- ... , Depu1V ShDrl1l In,oieu Nol '-I/3,.rl J AmOlJnIPd,;2..;2,_75~ Docke! " Pago ________m_____ _k ' NOTI ONLY APPLICABLE ON WRIT OF EXECUTION: N.B, WAIVER OF WATCHMAN - Anv deputy shori" levying up I r aUnchlng anv properly under within w,U mav leave tamo wilhout It watchman. in cU5todV 01 whomolJor islound in pOlSoSlllon. oftor notllylng penon 01 BVY or allachmonl, without liabllHV on the part 01 such do~y' or Iho sl'_~~!.!J9_!~LP!....~!'!'.!'+(!~~iD ~,?r_~l)y_lq!~:~~_~!!~~!!Qrl_Q!.--'.!l~l]_Q.IIl!~~!~f!l'!!!~~_P'!'QP_l!I'!)'J~!,?~~o~!:,_o...!!!!.:!!al~ therool, - 8. PRINTfTYPE NAME AND ADDRESS OF ATTORNEY/ORIGINATOFl 10, TELEPHONE NUMBER ~1' DATE Thomas E. Wood 717-255-8014 12-20-94 Keefer. Wood. Allen & Rahal --------------------- 10 12, SIGNATURE 2 Walnut st. _-'...I2:;.J5 - c/o.! SPACE BELOW FOR USE OF SHERIFF ONLY DO NOT WRITE BELOW THIS L .3 ~:~~;,~~~f:;!~:~~,~~~~~~'l_~GN~TU_RE:I.AU::o~il: DCSD DO:'y ~-~i~~-ld..:u f!j"!tL_ '~ 16 Sorvod and made ~i_;r}i~---~-'--~)r~C!C&\:r~~'DGj~~~,----~-~?b---- ,~lendnnI181 on tho ~dayol l)--.. ,_,19-"-'__,a1____l-'__o'clock,I M.. 01 ,_ ~~ a..J.~tuJ-'24.-_________ Street, Counly 01 Dolewnrn, Commonwealth 01 PennsylvanIa. In tho mannor doscribed below: o Delendant(s) personally sorved, o Adult family member with whom said Defendant(s) resldo(s)_ Relationship Is ~~.__._...__.____ ._m___________ o Adult In charge 01 Defendant's residenco who rofusod 10 gi\lo nillno or relationship, CJ ~anagor/Clerk of place 01 lodging i 1 whIch Delendant!s) resido(s), /"'. -...). (t":A.gonl or person in charge 01 Defendant's cHico cr Ilsual place of businoss. '-""1,'lJA- D1't~ItE. <!.-A- (] _________ and allieer 01 said Dofendant company. a 01her __________m________~____'_____ -------------- -. --- On the _______ day of ______________ ___ _________, 19 +____________+, at --------- Defendant nollound because: o Movod 0 Unknown 0 No Answor REMARKS 0 RETURNEi:l__~ ~5 tj~ 17 AFFIRMED at SIJb5ttHtl bOlr"O thiS ...~. : ~~~:_~-~>!~. v~ -J.,. ~~~1?:/!: ~~!""t I'lIhl'f J'(': ~-,!,._~qMMISSI,ON E~fl _'5 .. 24 I ACKNOWLEDGE nECEIPT Of- THE SHERIFF"S RETURN SIGNATURE OF AUHIOnllEO IS!,UINf1 AlIHtOlllTY AND TITt r;. o'clock, ___ M. o Vilcant o Other _________________..__._Mm 1 SO ANSWER.- b~;;~:::::::.~..".,~' 't.tJ-oJ.A.J " "''''''''''"'Sh''''~F(;(J~. 19 ~.iI3lq-i::u n 0/0' ;<, (J,lln fh'll'''.'ll \ 1I0t1~:.:' _..!:~.~' , t,OTAfl\~;. 5"E1;:':.." r.;tlIC ,_ I\OOn~,' . -.J.~IJwJrC !. '\ \C'\'!~l 9.~f~~.!r_j:~.' \ C1C',U.'.l~"'J .' /I. ( ( ;.::, J.,: I SHERIFFS DEPARTMENT blEOII.A\VAflE COUNTY FRONT STREET & VETERANS SQUARE. MEDIA, PENNSYLVANIA 1906312151891,4296 SHERIFF SERVICE INSTRUCTIONS FOR SERVICE OF PROCESS. You mull iii. on. inltructlon theet lor uch delend.ml Please IVpo or print legIbly. PROCESS RECEIPT, and AFFIDAVIT OF RETURN 00 Not d."eh .ny copT... 1. PLAINTIFF/S! 2. COURT NUMUER ll,_,-I!ll t-", 11,.1 i- '1. "1, :!., :\'. :11 ;11- (" ! I' iOEFENDANTtSl -----~--_.. ~----~-_._---.--_..-------. -.rTY-PE-OFwRiT-6R-coMPlAiNT~~-- l'i 1 f.' ,'. ,.-.!.._-'__.~.'-i-l.:..._.j.__~' hl___.__________.__________ - ----..-------------- -.-.---.~-I-~~~. ~---_.-._-----------+--------- S~E { ~.~~,E..~F 1~.~I~I~U~L.,C~~f:A~Y,' CO~~ORA.T10N, ETC. TO SERVICE OR OESCHlPTlONOF PROPER1YTO UE LEVIED.ATTACHEDOA SOLD. . e-.i"OORESS 151r-;oTO,-AFb~.Aplitlmonl-;..io :-C-~ Oo'o~T;';p-:-sTalo and z"j"p' Coda, ---------. ------.-~--.- ----~-.-. -- --- AT l..r,I'1 e 1',' 1___~__~~!_~~~~..~_~~~~:.~I~__.__.I__~_._._____+~~_.______________________ 7. IN DICA TE ~NUSUAl SERV~~~..~!~~_'"'All)C_Q~~y_~~?~__fl_PO~Tn9~_~!i~!\__ 1_'_ ~i ~~~..L.!..'..!_ ...!._,_'..!.L(J..______~.____~_____..___________________ Now, T ','.' 'T' 19" : , I. SHERIFF OF'DELAWARE COUNTY. PA" do heruby duputlzethe Sheri II of , 'f" i ,'I \>. 1 I ~ _ County to oxecute this Writ and mako return thereof according to law. This deputation being made at the requust and risk of the plalnllll, - .. 8PEC'AL -fNTl-TRUCTIO-NI OR -OTHERINFORMA TlON TII,\ Y wiLl. ATlsfsY-ii(EXPEoIYTiiifsETlvicE ~iHIIH~ ~ Of nl~"'U!"COtJNT'l' '-;-~-;-li"-l' ':-!-r:-;-I:',~i' ----..-~-+--.---_..- DopulV Shttr,ll I I,woleo No I ' -I/. ., l.' Amounl Pd ... .. ) ~II.;~-t'-) Dockot " Page " I NOTE ONLY APPLICABLE ClN WRIT OF EXECUTION: N.B:-WAlVER-OF WATCIIMAN - A~v d.p"i,-~h."T1 ;;,;;~:~:~ .,-,act.lng/on: p;o~,,:;-un~;.' wilhin wril may leave sarno wilhout 8 wlllchman, tn CUS1JdV of whomever is foun~ In possession, oller notlfving person 01 levy or aUschmant, wilhoulllabilitv on l.n!J?arl 01 such deputy or J~!. she'il!l.l!.'!!:!Y..P!.i!.!!2!l!-'-n~iQ-"__~~l.loas. ~~.!!!!ftlon ---9!.!omovat ~!__~:i.!!!.~nJ!!EP.!l~loro .!!!OIllf'S slll~ thorool, 9. ~1~~:,~~YP!E.N~~~ ~!~D ~DDRESS,OF, ATTORNEY/ORIGINATOR 10" ~EL~~~~~~ ~~MBER t' ~~~~. ".; ~" .~' L I (~ I "" (, ! I, I 11..,,1, , 12. SIGNATURE 'In i-':.I!111.l1 \:1. ;.' " I Ii' 'Ii. I SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE SI.:~ATU~~.:I AUIt1:~~_~~~~::~~~t~?J;~:_~I~~_ .1~J.~~o FO,~kL_ TO BE COMPLETEO BY SHERIFF ,.-4;-r~- ___(-t~ .. . t I r. t. ]:...--.--:;t";..~~-.""- ,';. \, . 19..11-=----'.al '.; t.' r :' j ': 15 .f.:~l/:llr~I~Hea'ino dale . J- UTI ,I (L 13. I acknowledge receipt of the wrl.t I or complaint as indlcaled above 16. Served and made known 10 on the ..', I davof 01 Commonwealth of Pennsylvonia, in Iho manner described below; o Defendant( s) personally served. o Adult family member with whom said Defendanl(s) reslde(s). Rolallonship is --.----.-- D Adult In charge of Dofendant's rosidenco who refused 10 givo name or rolationshlp. o ~anagor/Clerk of place 01 lodging in which Defendant(s) reslde(s). [t'Agent or person in chargo 01 Defendant's ollice or usual place 01 business. r ) 11-"& r:_{;.... t o and oHicm 01 said Dofond"nl company. OOlho. _ . a,fendant(s) I ~l, (-" r (. - o'clock,' M.. Stroet, County of Delaware, On the day 01 Dofendant not found because o Moved 0 Unknown D No Answor REMARKS: I RETURNED: /f /! /) / (/." . --~f-,...--:--...-'--'-.-/ -.. 1-----'. I . 17 AFFIRMED a~ subSCllbed to 001010 me thiS n__:;:;.l _________. 19 __ __. al______.___._..____ o'clock, M. o Vacanl DOthor SO ANSWER. 20_ day 01 ______.._#:.___ " . . ... _. ...._u____.____...,,+ ...-_____#.".____..__, .._.... ..#._.._ u,," ___"H'''___U 18 ~jllJn"tUl(! 01 I .~ ' " " (! D.'.'l ~hll"tI l,--~ ~ '_'<III r" l.t.{:.! ..l), _..' .__.__.~___ ._____........._____L._J____.._______ .._.~~_u "I SognRhllllol !jhll1lll - - - - i~")'i;l;' )- .... of? 23. _~__.. -;'I';IJ,-;I'lIIJIIC "':-----. SHERiFF OF OELAW-AR.E COUNTY-' f.~:!,__~q~_~~ISSIQN [XP!!~F.S +__ 24 I ACKNOWLEDGE HECEIPT OF HtE SHERIFF'S RETURN SIGNATURE OF ALJTHORllEO IS~;llINn AIJTItOI1ITV AND TITLE ;;;5-'-O,ttItJl~(ii;;;ll DC~,lJ.l. "'~'j " 6. According to the Complaint, the alleged proposal was not delivered until 3:55 p.m. on May 23, 1994. Complaint, 111. 7. Plaintiff alleges that if the proposal resulted in the award of a contract, the Plaintiff would have earned over Five Million Dollars ($5,000,000.00) in profit. Complaint, 14. 8. The Complaint does not allege that any act or omission of the Defendant resulted in the plaintiff not being awarded the contract. Rather, the Complaint alleges that Defendant's failure to deliver the proposal caused the Plaintiff to lose the "opportunity to secure the contract". Complaint, 115. 9. Plaintiff has set forth three Counts in the COMplaint. The first Count is for breach of contract. 10. The Complaint alleges that the terms of Plaintiff's contract with Defendant were contained on an airbill which Plaintiff purpo~ts to attach as Exhibit "A" to its Complaint. Exhibit "A" to Plaintiff's Complaint contains only one side of the airbill. Complaint, 18. The back side of the airbill is attached as Exhibit "A" to these preliminary objections. 11. According to the Complaint, the express terms of the contract, ~, the airbill, provide that delivery was to be made by 2:00 p.m. on May 23, 1994. Complaint, 113. 12. The Complaint further alleges that pilot's failure to comply with the terms of the contract cost the Plaintiff the - 2 - opportunity to secure the contract with the New York state Department of civil Services. Complaint, !15. 13. According to the Complaint, as a result of the alleged breach of cont~act, HBMI seeks damages for the cost of preparing the proposal, which cost is alleged to exceed Fifty Thousand Dollars ($50,000.00), and the profits that it would have earned, had it been awarded the contract by the State of New York, which HBMI alleges would have been in excess of Five Million Dollars ($5,000,000.00). Complaint, '16. 14. Count II of Plaintiff's Complaint is for an alleged misrepresentation. 15. According to the complaint, HBMI claims that it "relied upon pilot's representation that it had adequate equipment and competent staff to enable it to comply with HBMI's delivery requirements" ("the fraudulent statements"). Complaint, !18. 16. According to the Complaint, HBMI also alleges that "Pilot did not disclose to [HBMI] that it only had one employee in Albany with the authority to assure a timely delivery and that, in the event of the illness of that employee, the route driver was free to alter the delivery schedule as he saw fit" ("the fraudulent omission"). complaint, !19. 17. HBMI alleges that if it had known of pilot's "policy regarding the control of [pilot's] delivery personnel, [HBMI] could have used another overnight courier service to deliver the - 3 - propoaal to the state of New York". Complaint, '20 (emphaais added) . 18. Count III of the Complaint is in neqliqence. According to the Complaint, pilot aasumed a duty to exercia. r.aaonable care to make the delivery within the specified time by accepting the shipment. complaint, '23. I. II.OTIOII TO STalK. COUIIT I OJ' PLAIIITIJ'J"S COJIPLAIIIT 19. Paragraphs 1 through 18 are incorporated herein by reference. 20. Count I of Plaintiff's Complaint which is plead in assumpsit, should be stricken because it is based upon a written contract, the airbill, and Plaintiff has failed to attach a complete copy of the airbill. WHEREFORE, Defendant Pilot Air Freight Corporation reapectfully requests the entry of an order striking and/or dismissinq Count I of the Plaintiff's Complaint. II. PRBLIKIHARY OBJBCTIOII III THB MATUR. OJ' A DBHURRBR TO PLAIIITIJ'J"S CLAIK J'OR DAMAOBS 21. Paragraphs 1 through 20 are incorporated herein by reference. 22. Plaintiff's Complaint fails to state facts constituting a cause of action against Defendant for consequential damages because the airbill specifically precludes any liability for consequential damages. - 4 - 23. plaintiff's Complaint fails to set forth facts consti- tuting a cause of action for consequential damages in the form of the costs of preparing the proposal and profits allegedly lost as a result of not receiving the contract from the New York state Department of Civil Service because the alleged contract, the airbill, specifically limits the Plaintiff's damages to $.50 per pound, multiplied by the number of pounds of the shipment. 24. The total damages recoverable in this action are limited by the clear and unequivocal terms of the written contract to $75.00 (150 pound declared weight x $.50). 25. Further, and in addition, plaintiff's Complaint fails to state facts constituting a claim for damages in either assumpsit or tort in that the facts alleged in the Complaint do not show a causal connection between conduct on the part of Defendant and the fact that Plaintiff was not awarded a contract with the New York Btate Department of civil Service. WHEREFORE, Defendant pilot Air Freight Corporation requests that its preliminary objection in the nature of a demurrer to Plaintiff's damage claims be sustained and that Plaintiff's damage claims be dismissed or, in the alternative, that the Court enter an order determining that damages are limited to $75.00 and referring this matter to compulsory arbitration as required by the local rules of Court. - 5 - III. PRILIIIIDRY OBJICTIOII III '1'BI DTURI 01' A DBXUJUUIR TO COUNT II 01' PLJl.IKTII'I"8 COKPLJl.IKT 26. Paragraphs 1 through 25 are incorporated herein by reference. 27. Count II of plaintiff's Complaint fails to state facts constituting a cause of action against Defendant for fraud in that the facts alleged do not allege anything more than a breach of promise. The Complaint does not allege an intention by Defendant that plaintiff be induced to act based upon a misrepresentation. The complaint does not allege justifiable reliance by Plaintiff upon any alleged misrepresentation. The Complaint does not allege damage to Plaintiff as a proximate result of any alleged misrepresentation by Defendant. The complaint does not allege materiality of the alleged misrepresentations. The Complaint does not allege that Defendant had a duty to disclose the alleged fraudulent omissions and, does not set forth with particularity who m~de the fraudulent statement and/or the fraudulent omission, to whom the fraudulent statement and/or the fraudulent omission wero made, and when the fraudulent statement and/or the fraudulent omission were made. 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" . .li~ -"'- 1!!,," '!i, ~.i Ii - ~illi :l! ~~ .8 "jl!l liBJi di 1; .!~ ;.! '0 h ~E'" ~'il 1!.!l '0. \;a i..E !I:S", - ~f _ ft "0 'Ii _ ~. "- .. . e a.~.. u ~ ~ . I! 2 u" H i .:t H~~ H P ,~ ;;~'i :~i . i~~ j~ ~~ .ii ~ [~I"~ !;. 'i .i! .l'~ ~~~ ~'O~~.. H~ u_ ~ !~ ~~H ~; ~~. ~ ~jC tifi~ 21~ H h si < ~ ~~ ~~ ~ !s! ~~~~ ~si ~i j~ ,.; ~ ~ ~ !i ..; ~ .. ~ .. . HEALTH BENEFITS MANAGEMENT INC, d/b/a THE PRECERTlFICATION CENTER, PLAINTIFF V, PILOT AIR FREIGHT, INC" DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW 94-7084 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT OPINION AND ORDER OF COURT HOFFER, J., July 14, 1995:- Plaintiff, Health Benefits Management Inc, d/b/a The Precertificatlon Center, Is a business that provides utilization review and benefits management services to employers for their employee health benefits plans, Defendant, Pilot Air Freight, Inc" Is a shipper. The pleadings are as follows, Plaintiff prepared a proposal to the New York State Department of Civil Service to provide administrative services for an employee benefits program In the state of New York. The deadline for submission was May 23, 1994, at 2:00 p.m, Defendant, Pilot Air Freight, Inc., undertook to deliver plaintiff's proposal to the Department of Civil Service. The documents weighed 150 pounds and were packaged In two containers, The air bill shows that the containers were picked up by defendant on May 20, 1994, at 10:57 a,m" and that they were to be delivered by 2:00 p,m, on May 23, 1994, On May 26, 1994, plaintiff was notified by the New York State Department of Civil Service that Its proposal had not been timely received and would not be 94-7084 CIVIL TERM considered, Defendant, however, presented plaintiff written proof of delivery to the New York State Department of Civil Service at 1 :55 p,m, on May 23, 1994, Subsequently, defendant provided plaintiff with a written consignee's copy of the air bill that showed that the actual delivery took place at 3:55 p,m, on May 23, 1994. A representative of defendant has acknowledged, In writing, the late delivery, stating: I refer to our conversation of todays [sic] date regarding the delayed delivery of a shipment we handled on behalf of The Precertificatlon Center, I have reviewed the file and would like to explain the details as I understand them to be, Our manager to Albany, Peter Lamlano, was not In work due to an Illness the day of the delivery. Our driver, Edward Corey, had a copy of the air bill #21557652 which Indicated the delivery time deadline of 2 p,m, Mr, Corey took It upon hlms61f to deliver the shipment late, In addition when our Allentown office called Albany to ask for the Proof of Delivery time, Mr. Corey misrepresented the delivery time, The written CONDITIONS OF CONTRACT between the plaintiff and defendant for the shipment of the documents contained the following terms of the .CARRIER'S LIABILITY." 7, In consideration of Carrier's rate for the transportation of any shipment which Is In part dependent upon the declared value of the shipment, Forwarder's liability to any kind whatsoever shall be limited to the lessor of: A) The amount of any damages sustained or B) 1) ,50 per pound (where no value Is declared) multiplied by the number of pounds of that part of the shipment lost or damaged (but not less than $50,00 per shipment); or 2) the declared value In case of loss or damage of the entire shipment (but not less than $50,00 per shipment); and In the event of loss or damage of part of the shipment, -2- 94-7084 CIVIL TERM the average declared value per pound of the shipment multiplied by the number of pounds of that part of the shipment lost or damaged (but not less than $50,00 per shipment), plus the amount of any transportation charges for which forwarder has been paid for such part of the shipment lost or damaged, 8. Shipper may declare a higher value of the entire shipment, In which case an additional transportation charge as set forth In the Rate Tariff shall be required. For shipments where the Declared Value Is $50,000 or greater contact your local Pilot office In advance for authorization, 9, As to the shipment herein described, the Forwarder shall not be liable for any loss or damage thereto or delay caused by an act of God, the pUblic enemy, the authority of law, the act or default of the shipper, the Inherent nature or vice [sic] of the shipment, or compliance or noncompliance with delivery or special Instructions, 10. Forwarder shall not be liable, for special or consequential damages of any kind, In Its complaint, plaintiff avers that Its preparation of the proposal to the New York State Department of Civil Service cost more than $50,000; that It believes It would have been awarded the contract had It been delivered on time; and that It would have eamed over $5,000,000 of profit during the five-year term of the contract. Plaintiff seeks damages In excess of $20,000 against defendant on counts alleging breach of contract, misrepresentation and negligence, Defendant filed preliminary objections demurring to the counts alleging misrepresentation and negligence, It demurred to the claim for damages In the count alleging breach of contract, maintaining that damages are, by contract, limited to $75 (150 pound declared weight x .50), As to the count alleging breach of contract, the parties had a right to make -3- 94-7084 CIVIL TERM their own contract, and It Is not the function of tha court to re-wrlte It, or to give It a construction In conflict with the terms therein. Amoco 011 Co. v. Snyder, 505 Pa, 214 (1984), The contract between plaintiff and defendant provides that defendant shall not be liable for special or consequential damages of any kind, The contract further provides that defendant's damages are limited to specific amounts, Since plaintiff did not declare a value for the shipment, defendant's liability Is limited to $,50 multiplied by the number of pounds of the shipment. Plaintiff cannot complain about the contractual limitation on Its claim for the mishandling of Its shipments because It was given an opportunity to declare, and pay for, a higher value, Hampton v. Federal Express, 917 F,2d 1119 (8th Clr, 1990), Accordingly, defendant's demurrer to the damages claimed In the count alleging breach of contract will be upheld as to any amount In excess of the limitations of liability set forth In the contract. As to the count of "misrepresentation," plaintiff has pleaded: 8, Based upon pilot's representation of reliable and timely delivery, HBMI entrusted the Proposal to Pilot for delivery, The shipper's copy of the air bill Indicating the terms upon which the parcels were to be delivered Is attached hereto as Exhibit "A," This air bill Indicates that the package was picked up by Pilot on May 20, 1994 at 10:57 a.m" and that HBMI clearly Indicated that the packages had to be delivered by 2:00 p.m, on May 23, 1994, 9, On May 26, 1994, HBMI received a letter from the New York State Department of Civil Service Indicating that the Proposal had not been timely received and would not be considered, A copy of that letter Is attached hereto as Exhibit "B," 10, Upon Inquiry, Pilot presented to HBMI a proof of delivery Showing that delivery had been made on May 23, 1994 at 13:55. A copy of that document Is attached hereto as Exhibit "C," .4- 94-7084 CIVIL TERM 11, Upon further Inquiry, the New York State Department of Civil Service received an explanation from Pilot, a copy of which Is attached hereto as Exhibit "0," That explanation Indicates that due to the absence of Pilot's manager In Albany on May 23, 1994, the route driver had taken It upon himself to deliver the shipment late and then falsify the delivery time on the proof of delivery, A copy of the consignee's copy of the air bill, attached hereto as Exhibit "E," Indicates that actual delivery took place at 3:55 p,m, . . . 18, In entrusting the Proposal to Pilot for timely delivery, HBMI relied upon Pilot's representation that It had adequate equipment and competent staff to enable It to comply with HBMl's delivery requirements, 19, Pilot did not disclose to Plaintiff that It only had one employee In Albany with the authority to assure timely delivery and that, In the event of the Illness of that employee, the route driver was free to alter the delivery schedule as he saw fit. Further, Pilot employed delivery personnel who misrepresented times of delivery, and may have engaged In other questionable practices that made their reliability questionable. CIting Nader v. Allegheny Airlines, 428 U,S. 290, 96 s,Ct, 1978, 48 L.Ed,2d 643 (1976), In its brief, plaintiff argues generally that where wrongs have occurred, courts have found a remedy sounding In tort, regardless of defenses placed Into Its contract documents, In Nader, the United States Supreme Court held that a common law tort action for fraudulent misrepresentation, arising from an air carrier's failure to Inform prospective passengers In advance of Its deliberate overbooking practices, could be maintained, and that such an action was not a challenge to any tariff provisions or limitations of common-law damages Imposed through exculpatory clauses Included In the airlines' tariff, In contrast, plaintiff In the case sub judice has not alleged any deliberate fraudulent misrepresentation which Induced it into entering -5. :)4-7084 CIVIL TERM Into any delivery contract with defendant. Plaintiff has, In fact, directly challenged the limitation of liability set forth in the provisions of the contract of delivery, Plaintiff also cites McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa, Super, 128 (1992), for the position that a cause of action for misrepresentation has been found when a company's performance Is grossly at odds with the claims In Its advertising, In McClellan, the Superior Court stated: The elements of a cause of action for fraud or misrepresentation are: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an Intention by the maker that the recipient will act; (4) Justifiable reliance by tho recipient upon the misrepresentation; and (5) damages to the recipient as the proximate result. Neuman v. Corn Exchange National Bank & Trust, 356 Pa, 442, 51 A,2d 759 (1947). The deliberate nondisclosure of a material fact Is the same as culpable misrepresentation, Id. Even Innocent misrepresentations are actionable If they relate to matters material to the transaction Involved; while, If the misrepresentation Is made knowingly or Involves nonprivileged failure to disclose, materiality Is not a requiSite to the action, DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644 (1958), a"'g on the opinion of the trial court, 11 [Pa] 0, & C.2d 447 (1957), A misrepresentation Is material when It Is of such a character that If It had not been made, the [agreement] would not have been entered Into, Greenwood v. Kadolch, 239 Pa, Super. 372, 357 A,2d 604 (1976), Catagnus v. Montgomery County, 113 Pa,Cmwlth, 129, 135, 536 A.2d 505, 508 (1988), Accord: New York State Electric and Gas Corp. v. Westinghouse Electric Corp., 387 Pa, Super, 537, 552-53, 564 A,2d 919,927 (1989), While the requirements of Pennsylvania Rule of Civil Procedure 1019(b) are satisfied If "plaintiff pleads facts sufficient to permit defendant to prepare his defense[,] plaintiff must set forth the exact statements or actions plaintiff alleaes constitute the fraudulent misrepresentations," McGinn v. Vallotl, 363 Pa, Super, 88, 91, 525 A,2d .6- 94-7084 CIVIL TERM 732,734 (1987), (Emphasis added), rd. at 142.143, There are no allegations In plaintiffs complaint herein as to any fraudulent advertlslna by defendant upon which plaintiff relied which would legally preclude defendant from asserting the limitations of liability In the written contract. It was the delivery driver In Albany who failed to deliver plaintiffs documents on time, and then lied as to the time of delivery. That was not a fraudulent misrepresentation which Induced plaintiff to enter Into the delivery contract. The promise to deliver on time was a contractual representation and the obligation that was breached because of the dereliction of that employee and Inadequate management controls, Plaintiff further cites Klages v. General Ordnance Equipment Co., 240 Pa, Super. 356 (1976), a product liability case, for the proposition that a manufacturer can be held liable for misrepresentation, wholly Independent of contract law, if Its product falls to conform to the statements made In Its advertising, This present case Is not a product liability case, By contract, defendant undertook to perform a service for plaintiff, Accordingly, the count alleging misrepresentation will be dismissed, As to the count alleging negligence, the Supreme Court of Pennsylvania In Glazer v. Chandler, 414 Pa. 304 (1964), stated: To permit a promisee to sue his promisor In tort for breaches of contract Inter se would erode the usual rules of contractual recovery and Inject confusion Into our well-settled forms of actions, Most courts have been cautious about permitting tort recovery for contractual breaches and we are In full accord with this policy, See Developments In the Law - Competitive Torts, 77 Harv, L. Rev" 888, 968 (1964), The methods of -7- >- -' ,- If. ~ ,:.; " ~:r: ,~9 ,... ( C' ,.< ,,~ ~:1 10',' " -::1 . I ,":.. " ('.1 '11 I' " J' , _.1, c.,. ,rQ li: , I. ,,,- f' <", " \..-, 'J (.J '.' . D