they removed a defective detector and never put it back in two thousand and one about eleven years later they removed the smoke detector in from the second floor in two thousand and four a fire took place and there was no there was improper design installation maintenance or repair of the system or monitoring service etc etc limits that to five hundred dollars with the option for increased liability which they did not choose well so i'm having difficulty determining how you can nullify that provision or say that there was no intent to do and to abide by what that contract itself provides and if you look at page six you can read it more clearly of apple leesburg brief it's the read brief and let me read you what that provision says in the event the parties desire to impose greater liability upon the obligation here under customer may request increased limited liability by offering to pay an additional amount of ten percent of the increased limit minimum of one hundred dollar increments and if accepted by a d t an additional rider signed by the president of a d t shall be attached to this agreement if you do the math our claim was for four hundred thousand dollars if you do the math the amount that they would have had you pay for this increase was a huge amount of money three hundred seventy three thousand dollars a year well but what they want to do and may want you to get insurance don't pay well they're not saying that they're not they're not they're saying well this is a this is a contract between consumers it's not a contract between knowledgeable business persons what they're saying is it's not really a limitation of liability they're saying this is a mix corp to reprovision because there all we have to pay is approximately one more years rental or one year's monitoring fee which is about four hundred one thousand four hundred hundred seventy four thousand dollars but isn't that really the the point that a d t or rollins whatever is saying we are not and insure we are you know that you're paying us x dollars to do what we do the risk we would assume from the improper design if we're if we've got to pay you without limitation is so huge that we have to let you know we're limiting our our liability we're not insure your honor if you look back at the agreement which appears in the eighty three of the joint pain let me get back to my main question what is it that you say deprives from the apparent intent i mean most of the cases the talk about these types of provisions to look at the language and say was it really in the party's understanding that this is what is going to happen and a lot of times they're considering negligence or use use of the language what is it in this language that you think gives you the argument that we should not state that this was the party's intends to limit live villainy to five hundred dollars if you look at the agreement moment there are two big paragraphs between the two paragraphs in much smaller type and it's much more difficult to read in order for me to read it and i apologize i had to use a magnifying glass but let me  it was made in the brief in the sense that i said it was an reasonable in art and i pointed out white's and reasonable under no circumstances shall r p s not the predecessor be the today your novel to customer or any other and was not really brought to the party's intention but that's not the key paragraph the key paragraph is the one before it in the cold that provides for total limitation that are vital in the contract the contract matter because this was you're not contending this was not improper design installation once or repair i'm contending that it was improper monitoring when mate took out the monitoring device for three or four years and according to n d to me they said they told the greenspan's they were trying to get it replaced or couldn't get it replaced the grandstands have no knowledge that they were under a totally a social duty to follow through with the i calculate it to increase liability provision in this request if you're paying additional ten percent of the increased limit the limit is five hundred thousand dollars five hundred dollars the increased limit would be three hundred ninety nine thousand for not bringing a larger copy in the appendix but it's clear we're not dealing with knowledgeable business persons we're dealing with are i think well of the cases or most of the cases speak about the rights of knowledgeable business people to limit their liability if the provisions are reasonable you're not  what did the district court do with that tort claims the district court considered the top claims and applied the five hundred dollar limitation to the tort of that all right although it said that the gist of the action doctrine doesn't doesn't bar but we if we were to affirm on the other ground we wouldn't reach that but if we were not not a firm on the other ground we would need to reach the gist of the action doctor that's correct court what counsel representing to this court i think is consistent with the gist of the actual case law and drives the outcome on the cross appeal which really reduces and simplifies the analysis that needs to be undertaken on the limitation of liability and that concession was consistent with what is conceded in the pleadings and all the briefing that the duties in this case emanate from the written agreement it is the same duty relating to as monitoring repair maintenance that created obligations giving rise to the rich or contract lack of it through that limitation liability clause is troubling you limiting your liability basically t the monthly monitoring remained the same and then there's a cause here which frankly initially i looked at that and i thought well there's no way in the world that these bands can prevail because they wanted more insurance and wanted more coverage  if if we if you suffer damage because we're failure of our equipment we're only going to give you back the amount of the money you paid for that which you weren't receiving anyhow that is a mightily for the for the alarm that you weren't getting from us we're going to give you back the money you paid us the services you want getting if you want more than that you have to pay us forty thousand dollars a year if an insurance company came in here in said that they were charging the premium i'm sure how in the one can that clause be anything but unconscionable and not enforceable but some reason john or one is that a policy and the law that backs up and forces these types of provisions and water service contracts nationwide including in the state courts and pennsylvania doesn't look to whether or not the alarm company isn't sure the policy is the alarm companies not insure and we price services based on the service and the goods that are provided and paid for in the contract  if you pricing your services with that five hundred dollars come from and were what is the origin of the ten the limit you put one hundred thousand dollars i'm so that the ten percent limit where does that number derive from if it's not just pulled out of thin air and where is the limitation of five hundred dollars going from what's the what's driving those numbers there's no record in this case as to how those numbers were chosen to make a record and try to find out were you not those numbers substantiate what you just said that you praising this inquiry into this or is it your providing you may be doing that we may be pricing this in such a way is to eliminate the possibility of liability not when the lo bianco court has already addressed th issue and balanced all of those policy decisions under existing pennsylvania law and accounted for the other decisions that both another federal circuit courts and another state courts that the lubyanka didn't have a cause like this that allowed the consumer to up holding this under low bianco it makes a stronger case of consumer choice from the standpoint that he is manifesting his intent and understanding specifically to this provision by saying whether i'm not whether or not i think this is economically a good way to try and ensure my property i can buy property insurance what it's saying as i understand alarm company that you're providing a good and service that you cannot price the services that you provide to me based on what it would cost to insure that would drive you out of business instead making a choice that unlike lo bianco is a firm not just by manifesting a signature on the same page but on the very face of the contract as saying i'm initially saying that i have read this manifesting my intent and declining the option of paying an additional ten dollars for every hundred dollar increment that i increase the some attention of liability so the policy judgments and issues that drive whether or not this clause is an forcible don't relate to the amounts that were chosen both in terms of the limitation amount or in terms of the choice it was given the contractual analysis it's clear from well beyond go and all the cases that it cites that you had a choice and you understood was taken in context of the policy issues that are discussed that are factored into state substantive law the holding pen lo bianco and it's the same issue that you identified is that any in so far as there the ability to get insurance any time a customer can obtain insurance against property damage we uphold as reasonable this type of limitation of liability it did go on to say that we boys no opinion on the issue of whether or not the analysis would be different if personal injuries and somebody had been killed or hurt in in this fire and would result be different the analysis certainly there is not i can tell the court there is not a case on point and the state of pennsylvania that addresses whether or didn't address the limitation of liability provision in that context did affirm a district court decision out of the eastern district of michigan that said we analyzed this under michigan state's office of the law which also has a c based code for sales of goods and we don't find the provision or the outcome to be unconscionable or we don't find a different result depending on what the interest is property or personal injury that said the short answer is we don't have to address that here because all bianco has been a good law in the state for thirty years and makes clear that in so far as the claim is property damage where you can buy insurance where you manifest your intent within the contract to use it insurance as your exclusive source of recovery asking this but does it make sense to sort of by the question of the sense of the supreme court which question particular in the bianco question in this context where there's basically been a failure of the consideration insofar as look at it and say this is not to be a go it doesn't need to be certified for the reason that we've been discussing which is the ties into the just the actual this is still a breach of contract both parties are still performing this goes to the issue of whether or not a vote on one side  or is properly maintaining the arm system under under the contract this is a maintenance issue in the vote how case we said that the issue is whether the limitation of liability cap is so minimal compared to the expected compensation as to negate or drastically minimize the architect's concern for the consequences of a breach of its contractual obligation for it isn't the it is in this case in that case there was a fifty thousand dollar limitation of liability compensation to the architect was seven thousand dollars so it was an easy call to say that seven times that amount would not be on reasonable isn't in this case essentially the contract illusory because there you just returning the money to him it's not your honor for the reasons that the state courts have already decided as it relates both to go and work in our case both of which involved in many cases less than a smaller limitation of liability than the you here the one and weirder which this court sided with approval involved all and in other cases as being a reasonable example of a limitation of liability involved a smaller amount so again that is state substantive law that has dealt with to the extent there needs to be this proportionality analysis which there doesn't need to be when you already have decisions that are on point from the state substantive court it does not run afoul of that statement which credit is there any case like i asked your colleague but i don't know of a case that says it's only reasonable if it relates to the possible exposure you know which would be here in this situation me i think that's where this case and the alarm service context is different i mean the risk reward here in things things can happen to my mind it would in a way might even justify the the ten percent because you're not an insurer and for you to be an insurer of this kind of potential exposure in in this type burglary  fire could be pretty costly correct correct and that and that those are the policy decisions that have been weighed with all of the other factors of just court has addressed and considered as part of the state's office of law as well as  er decision to the extent there is any analysis of the number ratio of potential exposure or cost of the contract which we submit is a part of the state subsidy of law and isn't part of the persuasive authority in other jurisdictions kruger case this court affirmed the limitation of liability it was in a commercial contract but it was a multimillion dollar loss and the limitation of liability amount i think was a thousand dollars in that particular case so there substantive law both out of the circuit as well as from the state courts that to which the substantive law that is is applicable here but is a good thing and keep going back to the jump was me is in this case is like any other i know where address a point it sure and several respects one is the consideration as has been noted was more than just if you look at the monitoring and the maintenance and repair that the consideration is more than just hundred dollars services they were being billed for and at that point if you take that argument to its conclusion a d t would in theory be in breach breach of contract and the typical contractual remedies would apply and in ordinary cause of action  ahead and sue you at that point you can fire a d t and hire another company but that doesn't change the fact that it would still be a breach of contract in the party concede that there was a contractual obligation on the part of a t t to replace that contract isn't that a way of not saying what you're saying that is yes there was a contractual agreement and it goes from the main subdivision in the contract so it's yes sure if you can find a replacement part and that's the issue i don't think that's it to the analysis point for now if you can find a replacement part but if you've got an obligation to maintain an alarm system that includes the second for that you have to make it work contractually if that's what the contract says yes and again it would be a breach of contract if i could i see my time's up i could just address one last point on the failure of consideration i think about and that's still a breach of contract but to the extent that would be an affirmative defense to the limitation of liabilities in the remedies provisions that is an argument that we have not seen and that has not been raised to this court or below and would not be a basis to reverse the district court because it would be waived at this point i can you tell me thank you thank you it is back majority opinion in lubyanka there was a lead opinion written by judge spaeth but there was no majority opinion and in kruger it's interesting what the court said and krueger pennsylvania does not certain claims of unconscionable when based on in conspicuous or unclear language in particular if the parties have an equal buying power  of the case or should say most of the cases deal with the situation speaking about consumers and business people if you're a business person your help to one standard if you're a consumer your help to another state or you're on a judgment ts whether this is the type of case which should be certified to the supreme court in all fairness i think i'm under an obligation to say that is something that has to be considered because the supreme court has green alcott or in the case of tire vs camelback mountain which is cited in the brief and which deals with  i i think this issue may be one of those issues which the court will consider also in considering these kinds of cases judge in dealing with a case involving similar type issues involving commercial products in of the primo foods company versus gross kultury which is three seventy nine six fifty nine it's not so i did my brief well teeth case yes you give the term and in this case your concepts were applied in a contract situation involving a baylor situation and in most of these cases tort concepts have been implied applied and the discussion of gross negligence has always taken has frequently taken place in  analyzing these cases and i would say that would be appropriate in this case where you have a situation where a monitoring company takes out a monitoring component for three or four years doesn't reduce its charges doesn't send then we maybe it will help you contract it towards depending on number of factors here but the social obligation you're talking the wrong audience and that well i think the social obligation gives rise to the tort i think they have to do it once they take the monitoring a qui of the house and the green spins are led to believe that it's going to be replaced they never received a letter saying it wasn't but the social obligation has to arise from from something we can't just pull it out of the air i mean in a landlord tenant area it's because there fashion you would have a cause of action against the basin to work because i was a gratuitous undertaker right but once i have a contract with you it's the contract that prevails but they're claiming that they have no obligation to repair anything now they just can't do it i thought there at this very same that there was a contract well he's saying now he's saying it but previously they took out the monitoring system they didn't reduce the charges their conduct says they don't have any obligation do anything well and you could also have us said i'm only paying half because you're only giving me half the service or sue them for the amount that they're not paying but i guess i i have a question how you take that aspect of the matter and have it pertain to the limitation of liability if something happens i'm not following the question or i say you're saying that the fact that they didn't pay they didn't provide all the services that would give rise to a claim for repayment to your clients of some of the month well if you're if you're a business person that would come to your mind but if you're a consumer you're just used to paying your monthly bills and you get a bill for fifty dollars or whatever it is for months and you pay the bill and you call and you complain and that's and that's what that's one of the differences between consumers and knowledgeable business people and that's one of the reasons why there are different rules and different obligations on the part of people in analyzing the situations and that's why a d t has an obligation and as i said if you look at the contract that's printed in the record you'll see that one sentence which isn't in much smaller type a limiting any liability in the area thank you