DENIED: February 2, 2011 
CBCA 2110 
A TO Z WHOLESALE, 
Appellant, 
v.
 
DEPARTMENT OF HOMELAND SECURITY,
 
Respondent. 
Zev Adler, Owner of A to Z Wholesale, Monsey, NY, appearing for Appellant. 
Alexander Laytin, Office of Chief Counsel, Customs and Border Protection, 
Department of Homeland Security, Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS (Chairman), BORWICK , and GOODMAN . 
GOODMAN , Board Judge. 
Appellant, A to Z Wholesale, has appealed a final decision issued a contracting officer 
of respondent, Department of Homeland Security, Customs and Border Protection, denying 
its claim for a refund with regard to merchandise, a violin and case, purchased at an auction 
held by respondent. Pursuant to Board Rule 8, respondent has filed a motion to dismiss for 
failure to state a claim upon which relief can be granted. We grant the motion, which we 
resolve as a motion for summary relief. 

 
 
               
              
              
            
              
           
          
            
        
              
        
         
            
              
          
           
            
          
          
            
            
           
    
          
     
          
          
      
              
         
2 CBCA 2110 
Factual Background 
The violin which is the subject of the claim was sold at auction by respondent to 
appellant. The auction was held on July 16, 2009, by EG&G Technical Services (EG&G), 
with which respondent contracts to hold public auctions. Appeal File, Exhibit 2. 
The violin was described in the auction catalog as “VIOLIN W/CASE. PETRO 
PALLOTTA, FECE LANNO 1797, PERUGIA.” Appeal File, Exhibit 1 at 8. According to 
EG&G, the phrase “PETRO PALLOTTA, FECE LANNO 1797, PERUGIA” was taken from 
the violin itself. Appeal File, Exhibit 5 at 2.  Appellant states that this information appears 
on a label inside the violin. Appeal File, Exhibit 6 at 1. 
The auction catalog (catalog) contained multiple provisions concerning warranties. 
The first provision was contained in a document in the catalog entitled “Sale of Government 
General Order Merchandise - General Sale Terms and Conditions”: 
[1] 8. MERCHANDISE DESCRIPTIONS : The Government warrants to the 
original Purchaser that the merchandise listed in the sales catalog for bids will 
conform to its description. This warranty is in place of all other guaranties and 
warranties, express or implied. The Government does not warrant the 
condition, quality, or merchantability of the merchandise or its fitness for any 
use or purpose. The condition of items offered varies from “NEW to 
SALVAGE.” The Purchaser understands and agrees that all merchandise is 
purchased and accepted “AS IS, WHERE IS” and “WITH ALL FAULTS.” 
The amount of recovery under this provision is limited to the purchase price 
of the inaccurately described merchandise. The Purchaser is not entitled to any 
payment for loss of profit or any other money damages, including special, 
direct, indirect, incidental, or consequential. 
For Purchasers claiming recovery under the warranty of description, no refund 
will be made unless the Purchaser: 
a) submits a written notice to the Contractor 
[2] within 30 
calendar days of the date of removal that explains in what 
manner the merchandise was inaccurately described. 
1 This clause is referred to in this decision as the Merchandise Descriptions clause. 
2 Identified elsewhere in the document as EG&G. 

 
            
   
          
            
         
            
          
       
     
           
            
          
          
            
            
         
        
    
       
        
           
        
     
      
    
     
          
               
3 CBCA 2110 
b) If the government agrees, then a full refund of the money 
received shall be returned. 
If a misdescription is determined before removal of the merchandise, the 
Government will keep the merchandise and refund any money paid. If a 
misdescription is determined after removal, the Government will refund any 
money paid if the Purchaser takes the merchandise at his/her expense to a 
location specified by the Contractor. The purchaser must maintain the 
merchandise in the same condition as when removed. 
Appeal File, Exhibit 1 at 12-13. 
Another provision concerning warranties was contained in the catalog in a document 
entitled “Terms of Condition of Sale - Carteret, New Jersey, July 15-16, 2009.” 
CONDITION & DESCRIPTION
[3] - The condition of the items being offered 
varies from “NEW” to “SALVAGE.” The buyer understands and agrees: 
(1) any description or sample of the merchandise given or furnished by 
EG&G is derived from records and documents that may be unverified as to 
accuracy, is solely for identification, and DOES NOT CREATE ANY 
WARRANTY, expressed or implied, that the merchandise actually conforms 
to such description or sample; 
(2) all weights, measurements, and DESCRIPTIONS must be considered 
approximations and DO NOT create any warranty (emphasis added); 
(3) that the merchandise is purchased and accepted by buyer “AS IS,” and 
“WITH ALL FAULTS.” EG&G MAKES NO WARRANTIES OR 
GUARANTEES WHATSOEVER WHETHER WRITTEN, ORAL, OR 
IMPLIED AS TO QUANTITY, CONDITION, USABILITY, SALABILITY, 
WEIGHTS, MEASUREMENTS, OR OTHER SPECIFICATIONS. 
Appeal File, Exhibit 1 at 9. 
The catalog contained a Bidder’s Checklist, which stated in relevant part: 
3 This clause is referred to in this decision as the Condition and Description clause. 

 
             
              
 
               
        
      
          
    
           
             
            
          
           
          
     
         
             
          
          
       
   
      
           
             
          
       
               
                 
       
   
4 CBCA 2110 
Have you Inspected the Merchandise? Caution: do not bid on anything you 
haven’t viewed. All items are sold “as is, where is,” and ALL SALES ARE 
FINAL. 
Have you read the Terms of Sale? These are the rules that govern each sale 
and provide you with information about completing your purchase. 
Appeal File, Exhibit 1 at 3. 
The catalog contained the following on a page entitled “Bidder Information”: 
Q: Why Inspect: 
A: EG&G Technical Services provides a brief description of the merchandise 
offered for sale. This description is to inform bidders of items available for 
sale and to give bidders enough information to determine if he/she is interested 
in inspecting the merchandise. Bidders are cautioned that all weights, 
measurements, descriptions and export status listed on the flyer or catalog must 
be considered approximations and do not create a warranty that the 
merchandise actually conforms to such description. 
Q: What is the condition of the merchandise: 
A: Conditions of items being offered for sale varies from “New” to “Salvage.” 
U.S. Customs and Border Protection and EG&G Technical Services make no 
warranties or guarantees, written, expressed, or implied as to quality, quantity, 
condition, usability, weight, measure, year, model, mechanical condition, 
performance, or other specifications. 
Appeal File, Exhibit 1 at 4. 
The record contains a form issued by EG&G entitled “General Order Merchandise 
Evaluation And Fair Market Analysis” that states in the following blocks: Fair Market 
Value: $100; Date Prepared: 6/17/09; Notes/Remarks: “PETRO PALLOTTA, FECE 
LANNO 1797, PERUGIA.” Appeal File, Exhibit 15. 
On July 14, 2009, a public preview of the auction items was held at Cargo Connection 
in Inwood, New York, for prospective bidders. Appeal File, Exhibit 1 at 8. There is no 
evidence in the record that appellant attended the preview or otherwise inspected the violin 
prior to the auction. 

 
            
  
                
  
              
                  
                
                   
           
             
           
           
          
             
 
            
               
 
            
               
              
         
            
              
     
               
                  
               
            
              
                
            
5 CBCA 2110 
On or about July 16, 2009, appellant completed a registration form agreeing to 
“comply with the terms of sale contained in the sale catalog.”  Appeal File, Exhibit 16.  On 
or about July 16, 2009, appellant purchased the violin at this auction for $8600. Appeal File, 
Exhibit 2 . 
On July 20, 2009, appellant submitted a claim to EG&G for refund of the purchase 
price. Appeal File, Exhibit 3. In its claim, appellant stated: “I have showed the Violin to 
two experts in the violin Field, and both are telling that this is a fake counterfeited Violin, 
and not made by [Petro Pallotta], and also as of their expertise this is for sure not a 1797, this 
is maybe 40-60 years old, and not 210 years old.” Id. 
On October 13, 2009, EG&G denied appellant’s request. In so doing, the EG&G 
program manager referred to both the Merchandise Descriptions clause and the Condition 
and Description clause and stated that the purchased merchandise “conformed to its 
description of ‘1 CTN, VIOLIN W/CASE, PETRO PALLOTTA, FECE LANNO 1797, 
PERUGIA. This information was taken directly from the violin itself.” Appeal File, 
Exhibit 5. 
On October 19, 2009, appellant submitted a claim to the contracting officer, alleging 
that the violin was counterfeit and requesting a refund of the purchase price. Appeal File, 
Exhibit 6. 
By letter dated March 3, 2010, the contracting officer denied appellant’s claim, citing 
the Condition and Description clause. Appeal File, Exhibit 8 at 2. While the contracting 
officer’s final decision was issued on March 3, 2010, respondent did not transmit it to 
appellant until May 7, 2010. Appeal File, Exhibit 8. 
On August 4, 2010, appellant appealed the contracting officer’s final decision to this 
Board and requested that its purchase be rescinded and that respondent refund the $8600 that 
appellant paid for the violin. 
Discussion 
Respondent has filed a motion to dismiss for failure to state a claim upon which relief 
can be granted. In general, a case can only be dismissed for failure to state a claim upon 
which relief may be granted when that conclusion can be reached by looking solely upon the 
pleadings. Tomas Olivas Ibarra v. Department of Homeland Security , CBCA 1986, 10-2 
BCA ¶ 34,573. In this case, materials outside the pleadings have been submitted, and 
referred to in the motion to dismiss, so we consider this motion as a motion for summary 
relief . Metlakatla Indian Community v. Department of Health and Human Services , CBCA 

 
              
                 
                 
               
               
         
              
             
              
            
          
             
        
          
              
          
           
   
           
            
           
         
      
            
                
              
       
                
              
        
    
                
              
6 CBCA 2110 
282-ISDA, 09-2 BCA ¶ 34,279. Summary relief is appropriate only where there is no genuine 
issue as to any material fact (a fact that may affect the outcome of the litigation) and the 
moving party is entitled to relief as a matter of law. Any doubt on whether summary relief 
is appropriate is to be resolved against the moving party. The moving party shoulders the 
burden of proving that no genuine issue of material fact exists. Patrick C. Sullivan v. 
General Services Administration , CBCA 936, 08-1 BCA ¶ 33,820. 
Respondent has met its burden of proving that no genuine issue of material fact exists, 
and the terms and conditions of the auction deny appellant relief in this matter. 
The violin which is the subject of the dispute was auctioned by respondent. The 
auction catalog, containing terms and conditions of sale and other information to bidders, 
disclaimed all warranties, stating that descriptive information taken from the merchandise 
may not be accurate. While the Merchandise Descriptions clause stated that the merchandise 
would conform to its description, the clause also stated: 
The Government does not warrant the condition, quality, or merchantability of 
the merchandise or its fitness for any use or purpose. The condition of items 
offered varies from “NEW to SALVAGE.” The Purchaser understands and 
agrees that all merchandise is purchased and accepted “AS IS, WHERE IS” 
and “WITH ALL FAULTS.” 
Bidders were advised to inspect the merchandise before the auction, and an 
opportunity to inspect the merchandise was provided two days before the auction. 
The violin was described in the auction catalog as “VIOLIN W/CASE” with 
additional descriptive words “PETRO PALLOTTA, FECE LANNO 1797, PERUGIA” that 
were on the label inside the violin. 
Appellant apparently assumed from the descriptive words on the violin’s label that the 
violin was manufactured by Petro Pallotta in 1797 in Perugia, Italy. He did not inspect the 
violin before purchasing it. After purchasing the violin for $8600, appellant alleges that two 
appraisers told him that the violin was not made by Petro Pallotta and is at most sixty years 
old. Appellant seeks a refund, alleging in its notice of appeal that the violin is “counterfeit” 
and the Government’s sale “infringes on the international copyright law.” In its response to 
respondent’s motion, appellant alleges the violin is “fraudulent.” 
Appellant is not entitled to a refund.  The violin conformed to its description, in that 
it was a violin with case with a label inside the violin containing the descriptive words as 
stated in the catalog. Appellant’s owner interpreted these words as a representation that the 

 
                 
                   
               
  
             
              
                  
            
             
                
            
              
                  
               
             
               
               
               
              
             
               
            
          
                
                
            
        
           
         
            
         
          
7 CBCA 2110 
violin was actually made by Petro Pallotta in 1797. He made no attempt to inspect the violin 
before purchase to ascertain if it was in fact what he assumed it to be. As the site of 
inspection was a short drive from appellant’s place of business, it would not have been 
unreasonable for him to hire an appraiser and inspect the violin, given the assumed value.
4 
Appellant offers no evidence as to its allegations that the violin is “counterfeit” and 
“fraudulent,” other than to reiterate that two individuals have informed it that the violin was 
not made by Petro Pallotta and it is at most sixty years old. 
5 Even if this assessment is 
correct, these circumstances do not mean that the violin is counterfeit or fraudulent. 
The law with regard to counterfeit goods applies to goods that contain a “counterfeit 
mark,” which is a “mark that is used in connection with trafficking in goods or services that 
is identical or substantially indistinguishable from a mark registered for those goods or 
services on the principal register in the United States Patent and Trademark Office.” 18 
U.S.C. § 2320 (2006). There is no allegation or proof that the information on the label in the 
violin is registered for this purpose. Accordingly, we cannot find that the violin is a 
counterfeit. 
With regard to the argument that the violin is “fraudulent,” appellant apparently is not 
aware that violins are routinely mass produced as copies of violins that were made by well 
known violin makers, with labels that are copies of the violin makers’ labels. These violins 
are sold as student violins or otherwise at a moderate price with the understanding that they 
are mass produced copies. No prudent buyer should ever purchase a violin relying solely 
upon information contained on its label. An appraisal by a knowledgeable expert is 
necessary to ascertain the authenticity of a violin. 
6 Appellant has offered no evidence in the 
4 The distance between appellant’s business address in Monsey, NewYork, and the 
site of inspection in Inwood, New York, is approximately fifty miles. 
5 Appellant notes that EG&G had assessed the fair market value of the violin to be 
$100 prior to the auction. There is no indication that this was an appraisal by one 
knowledgeable as to violins or that the individual making the assessment considered the 
violin at variance with the information on the label. 
The website of the Smithsonian Institution, Washington, D.C., contains the 
following with regard to obtaining authentication and appraisal of violins: 
The presence of a label with a famous maker name or date has 
no bearing on whether the instrument is genuine. Thousands 
upon thousands of violins were made in the 19th century as 
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8 CBCA 2110 
record to suggest that the violin was manufactured with the intent to deceive a purchaser, 
despite the wording of the label. 
In summary, the terms and conditions of the auction warned appellant that the violin 
was to be sold “as is” with no warranties other than it would conform to its description in the 
auction catalog. The violin conformed to its description in the auction catalog - a violin with 
a label containing words included in the description. Appellant’s owner had ample 
opportunity to inspect the violin prior to purchase, but he chose not to do so, relying upon his 
assumptions as to the meaning of the descriptive language taken from the violin’s label. 
Despite conforming to its description in the auction catalog, the violin was not what appellant 
expected it to be. There is no evidence that the violin was a counterfeit or manufactured with 
the intent to deceive a purchaser. 
There are no issues of material fact and dispute, and under the terms and conditions 
of the auction, appellant is not entitled to a refund of the purchase price. 
inexpensive copies of the products of great masters of the 17th 
and 18th centuries. At that time, the purchaser knew he was 
buying an inexpensive violin and accepted the label as a 
reference to its derivation. Catalogs from the period show that 
these instruments were advertised for less than $10.  As people 
rediscover these instruments today, the knowledge of where they 
came from is lost, and the labels can be misleading. 
A violin’s authenticity (i.e., whether it is genuinely the product 
of the maker whose label or signature it bears) can only be 
determined through comparative study of design, model, wood 
characteristics, and varnish texture. This expertise is gained 
through examination of hundreds or even thousands of 
instruments, and there is no substitute for an experienced eye. 
Encyclopedia Smithsonian: General Information on Obtaining Authentication and Appraisal 
of Violins , http://www.si.edu/Encyclopedia__SI/nmah/violappr.htm (last visited January 25, 
2011). 

 
           
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9 CBCA 2110 
Decision 
Respondent’s motion for summary relief is granted. The appeal is DENIED. 
ALLAN H. GOODMAN 
Board Judge 
We concur: 
STEPHEN M. DANIELS ANTHONY S. BORWICK 
Board Judge Board Judge