NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22-1005

_____________

BATTLE BORN MUNITIONS INC,

 Appellant,

v.

DICKS SPORTING GOODS INC 

_______________

On Appeal from the United States District Court

For the Western District of Pennsylvania

(D.C. No. 2-18-cv-1418)

District Judge: Honorable Christy C. Wiegand

_______________

Argued

January 12, 2023

Before: JORDAN, PHIPPS and ROTH, Circuit Judges

(Filed July 26, 2023)

_______________

John M. Shoreman [ARGUED]

McFadden & Shoreman

1050 Connecticut Avenue, NW

Ste. 500

Washington, DC 20036
2

Mario B. Williams

HDR

44 Broad Street, NW

Ste. 200

Atlanta, GA 30303

 Counsel for Appellant

Patrick L. Abramowich

John C. Hansberry [ARGUED]

Nathan J. Marketich

Fox Rothschild

500 Grant Street

Suite 2500

Pittsburgh, PA 15219

 Counsel for Appellee

_______________

OPINION

_______________

JORDAN, Circuit Judge.

Appellant Battle Born Munitions, Inc. (“BBM”) filed a lawsuit against Dick’s 

Sporting Goods, Inc., alleging a breach of contract claim and three tort claims. Dick’s 

successfully moved to dismiss the tort claims on the grounds that Pennsylvania’s gist of 

the action doctrine bars such claims. It also obtained dismissal of BBM’s request for 

certain incidental contract damages. BBM did, however, eventually prevail on its

surviving claim for direct damages based on breach of contract. It has now appealed the 

District Court’s order depriving it of tort claims and incidental damages. We will affirm.

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent. 
3

I. BACKGROUND1

BBM, a licensed international broker of firearms ammunition, entered a Vendor 

Agreement in January 2016, pursuant to which it sold custom-branded ammunition to 

Dick’s, a sporting goods retailer. The Vendor Agreement is, by its terms, governed by 

the laws of Pennsylvania and contemplates a series of purchase orders to be negotiated 

between the two parties. The provisions of the Vendor Agreement were to “apply to all 

purchase orders[,]” (J.A. at 38), while the purchase orders themselves would add details

such as the price and quantity of goods. The Vendor Agreement specified that Dick’s 

would pay for ammunition within sixty days of delivery and would receive a two percent 

discount on payments made within thirty days of delivery. The Agreement further stated 

that it “supersedes all prior written and oral and all contemporaneous oral agreements and 

understandings with respect to the subject matter thereof[,]” and it required that “any 

changes or modifications to or waivers of such terms and conditions must be in writing 

and signed by both Dick’s and [BBM].” (J.A. at 38.) It also contained a limitation of 

damages clause, which excluded “any punitive, special, incidental or consequential 

damages of any kind (including, but not limited to loss of profits, business revenues, 

business interruption and the like)” regardless of whether the claim “is based upon ... 

1 The following facts are drawn from BBM’s First Amended Complaint and the 

representations in its briefing. Because we are reviewing a ruling on a motion to dismiss, 

we accept factual allegations of the complaint as true, view those facts in the light most 

favorable to BBM, and determine whether, under any reasonable reading of the 

complaint, BBM may be entitled to relief. See Eid v. Thompson, 740 F.3d 118, 122 (3d 

Cir. 2014).
4

breach of contract, negligence, tort, ... or any other legal theory or law,” unless the 

damages “result from a party’s gross negligence, fraud, or willful misconduct.” (J.A. at 

39.)

BBM alleges that it agreed to fulfil an unusually large purchase order in July and 

August 2016 because Dick’s said it would accept delivery of the ammunition by 

November 2016. According to BBM, however, Dick’s never intended to timely accept 

delivery of the goods. BBM acknowledges that it negotiated that purchase order “under 

the Vendor Agreement.” (J.A. at 20.) Despite the no-modification clause in the Vendor 

Agreement, BBM did not request a written statement, signed by both parties, that 

required Dick’s to take delivery of the ammunition by November 2016. Rather, BBM 

alleges that it relied on Dick’s representation and invested substantial capital – nearly 

$4.5 million – to fulfill the large purchase order. 

The fight arose when Dick’s refused to accept delivery in November 2016. It

instead notified BBM in December 2016, that, as BBM characterizes it, delivery would 

not be accepted “in a timeframe that was commercially reasonable.” (J.A. at 22.) Dick’s 

eventually accepted the goods in August 2017, nine months later than promised. In the 

meantime, BBM had paid warehousing fees to store the ammunition and spent additional 

money for product liability insurance, totaling $77,868. Those costs, along with certain 

alleged underpayments and chargebacks, are the direct damages BBM seeks.

As incidental (or consequential) damages, BBM alleged a substantial loss of 

profits because it had “lost the opportunity to sell twelve ... Bell helicopters to the 

government of Lebanon.” (J.A. at 23.) We call those lost profits the “Helicopter 
5

Damages.” In December 2016, the government of Lebanon placed a $48 million 

purchase order with BBM for the helicopters, which was approved by the U.S. 

Department of Commerce, Bureau of Industry and Security. To procure the helicopters, 

BBM was required to deposit $3.72 million with the manufacturer, but BBM had 

depleted its available capital because it had invested $4.5 million in fulfilling the large

purchase order from Dick’s, and it had not yet been paid. As a result, the government of 

Lebanon terminated the contract and BBM lost what is characterizes as reasonably 

anticipated profits of over $5.2 million from the sale. 

After instituting suit, and following an initial round of motions practice, BBM 

filed an amended complaint alleging breach of contract and three tort claims: fraud in the

inducement to contract, negligent misrepresentation, and a third claim not at issue in this 

appeal.2 As the foundation for those tort claims, BBM says “Dick’s knew at the time” the 

order was placed that BBM was relying on Dick’s representations and yet there was no 

way Dick’s was going to accept the ammunition by November 2016 as promised. 

(Opening Br. at 4.) According to BBM, Dick’s misrepresented its intentions in “order to 

bolster the value of its stock in 2016 and 2017[.]”3(J.A. at 25.) BBM claims Dick’s 

2 The third tort claim is what the Restatement (Second) of Torts § 552 calls 

“Information Negligently Supplied for the Guidance of Others.” BBM has not contested 

the dismissal of that claim.

3 BBM states that Dick’s stock value was under pressure due to competition from 

internet-based retailers, and Dick’s was using market manipulation tactics to increase the 

value of its stock. BBM alleges that Dick’s manipulated an inventory metric used by 

stock market analysts to appraise a retailer’s financial performance by claiming to have

available a large amount of ammunition, even though it had not yet accepted that 

ammunition from BBM. BBM states that this scheme was part of Dick’s elaborate plan 
6

“fraudulent promises were made to induce BBM to agree to the terms of the Vendor 

Agreement and Purchase Orders[.]” (J.A. at 27.)

Dick’s moved to dismiss the three tort claims against it on the basis that they were 

barred by Pennsylvania’s gist of the action and economic loss doctrines, and to “partially 

dismiss [BBM]’s request for incidental, consequential, or lost profits damages on its 

breach of contract claim given the limitation of damages clause set forth in ... the Vendor 

Agreement.” (J.A. at 50.) As more fully discussed herein, under Pennsylvania law, the 

gist of the action doctrine “precludes plaintiffs from re-casting ordinary breach of 

contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 

(Pa. Super. Ct. 2002) (citing Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. 1992)); 

see Bruno v. Erie Ins. Co., 106 A.3d 48, 68 (Pa. 2014) (holding that the gist of the action 

doctrine bars tort claims if the allegedly breached duties rise solely from the contract 

between the parties).

4

to “t[ie] up the manufacturing capacity of key manufacturers and obtain[] sufficient 

control of the retail calibers to manipulate the market price [of ammunition.]” (J.A. at 

26.) According to BBM, Dick’s plan was to “hoard ammunition inventories in 

warehouses of its vendors ... to set the price [of ammunition] as demand rose.” (J.A. at 

26.)

4 The economic loss doctrine operates in much the same way, being designed to 

maintain the conceptual distinction between contract and tort claims. See Dittman v. 

UPMC, 196 A.3d 1036, 1054 (Pa. 2018) (holding that the economic loss doctrine 

precludes actions where the duty allegedly breached arises under a contract between the 

parties). “Specifically, if the duty arises under a contract between the parties, a tort 

action will not lie from a breach of that duty. However, if the duty arises independently 

of any contractual duties between the parties, then a breach of that duty may support a 

tort action.” Id.
7

The District Court agreed with Dick’s and granted the motion to dismiss the tort 

claims. It held that “the duties [BBM] claims Dick’s breached through its alleged 

misrepresentations, i.e., to accept delivery of the custom-branded ammunition by 

November 2016 and pay for same within 30-60 days of delivery, were created by the 

express terms of the parties’ contracts.” (J.A. at 45.) The Court noted that BBM’s 

complaint admits that the allegedly breached duties do not arise independently of the 

contracts5and that BBM’s allegations that Dick’s engaged in market and stock 

manipulation “merely provide purported reasons why Dick’s delayed accepting delivery” 

and ignore “the fact that the contract itself created the rights [BBM] seeks to enforce in 

the first instance ... .” (J.A. at 46.) The Court was unpersuaded by BBM’s argument that 

it had pled a fraudulent inducement claim and that the gist of the action doctrine does not 

apply to such claims. While BBM endeavored to separate the large purchase order at 

issue from the Vendor Agreement, the Court rejected that effort, treating the Vendor 

Agreement as the governing contract and concluding that “one cannot be fraudulently 

induced to enter into an agreement by misrepresentations made after the formation of the 

contract.” (J.A. at 47-48.)

The District Court also dismissed BBM’s request for the Helicopter Damages,

given the limitation of damages provision in the Vendor Agreement. Acknowledging

5 BBM expressly incorporated its factual allegations from its breach of contract 

claim into its three tort claims. The District Court stated that this incorporation is an 

admission “that the duties that Dick’s accept delivery of the custom-branded ammunition 

and pay for it were created by their contracts and do not arise independently of the 

contracts.” (J.A. at 46.)
8

that the provision had an exception for fraud, gross negligence, or willful misconduct, the 

Court nevertheless said, “in light of the ... finding that the fraud claims are subject to 

dismissal for failure to state a plausible claim for relief,” the Helicopter Damages “are

unavailable to remedy a breach of the Vendor Agreement.” (J.A. at 51.)

The dismissal was with prejudice because the Court decided “any amendment 

would be futile[,] given the ... analysis of defenses of the tort and damages claims[.]” 

(J.A. at 52.) BBM attempted to resurrect its tort claims in a duplicative action in Nevada, 

Battle Born Munitions, Inc. v. Dick’s Sporting Goods, Inc., No. 3:19-cv-00561-MMDCLB, 2020 WL 1891859 (D. Nev. Apr. 16, 2020), but that action was also dismissed, the 

Nevada federal court stating that it “[would] not allow Plaintiff to ‘engage in an end-run 

around’ [the United States District Court for the Western District of Pennsylvania]’s 

decisions by allowing Plaintiff to proceed with class allegations and seek Helicopter 

Damages here.” Id. at *6. BBM’s breach of contract claim continued in the Western 

District of Pennsylvania, and, pursuant to the parties’ joint stipulation on damages, the 

District Court entered a judgment for BBM in the amount of $123,070. BBM then 

appealed, contesting the dismissal of its fraudulent inducement and negligent 

misrepresentation claims and its request for Helicopter Damages from its breach of 

contract claim. 

II. DISCUSSION6

We first consider the dismissal of the tort claims. Pennsylvania’s gist of the action 

6 The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of a 
9

doctrine “is designed to maintain the conceptual distinction between breach of contract 

claims and tort claims.” eToll, 811 A.2d at 14. The doctrine precludes the recasting of 

ordinary breach of contract claims as tort claims, but that does not mean that a contract 

can never be involved in a tort claim. Id. “To be construed as in tort ... the wrong 

ascribed to defendant must be the gist of the action, the contract being collateral.” Id. 

(internal quotation marks omitted). 

In making a “gist of the action” determination, courts have guidance from the

Supreme Court of Pennsylvania to this effect: “If the facts of a particular claim establish 

that the duty breached is one created by the parties by the terms of the contract[,]” then 

the claim is viewed as one for breach of contract; but, “[i]f ... the facts establish that the 

claim involves the defendant’s violation of a broader social duty owed to all individuals, 

which is imposed by the law of torts and, hence, exists regardless of the contract, then it 

must be regarded as a tort.” Bruno, 106 A.3d at 68. Accordingly, as further described by 

the Pennsylvania Supreme Court in Bruno, the doctrine bars tort claims in four situations:

“(1) where the tort claim ‘aris[es] solely from a contract between the parties’; (2) where 

‘the duties allegedly breached were created and grounded in the contract itself’; (3) where 

‘the liability stems from a contract’; or (4) where the tort claim ‘essentially duplicates a 

district court’s granting of a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 

203, 206 (3d Cir. 2009). A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may only be 

granted if “the allegations in a complaint, however true, could not raise a claim of 

entitlement to relief[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). “But a 

court need not credit a complaint’s bald assertions or legal conclusions when deciding a 

motion to dismiss.” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 

1997).
10

breach of contract claim or the success of which is wholly dependent on the terms of a 

contract.’” Id. at 67 (quoting eToll, 811 A.2d at 19). Fraud in the inducement claims are 

ordinarily not barred by the gist of the action doctrine, “because fraud to induce a person 

to enter into a contract is generally collateral to ... the terms of the contract itself.” eToll, 

811 A.2d at 17. In contrast, claims of fraud in the performance of a contract are barred 

by the doctrine. Id. at 17-20.

In the present matter, BBM’s tort claims arguably fall under several of the four

situations described in Bruno. The claims are barred by the gist of the action doctrine 

because the duties at issue arise solely from the Vendor Agreement and follow-on 

purchase orders, regardless of the motives BBM wants to ascribe to Dick’s. By the same 

token, those duties are created and governed in the parties’ contractual relationship, and 

the claimed liability stems from the contractual agreement. There is no “broader social 

duty,” Bruno, 106 A.3d at 68, at play in this case. But for the assertation that Dick’s 

failed to fulfill its end of the bargain, there would be no case at all. The purchase 

agreement established a duty for Dick’s to accept the custom-branded ammunition by a 

certain date, all other terms being provided by the Vendor Agreement. Contractual duties 

alone are at issue.

BBM attempts to avoid this straightforward application of the gist of the action 

doctrine by arguing that the promise Dick’s made to accept delivery by November 2016 

is an improper framing of the breached duty. By BBM’s lights, Dick’s fraudulent 

misrepresentations “constitute the breach of a social duty not to affirmatively mislead 
11

where it is known reliance will be placed on the representation.”7 (Opening Br. at 11.)

Those misrepresentations, says BBM, led to the formation of the July and August 2016

purchase orders, and those purchase orders were “separate contracts that BBM had 

discretion to accept or reject.” (Opening Br. at 12.) 

BBM’s argument is essentially an attempt to recast its fraud in the performance 

claim as a fraud in the inducement claim, which is not barred by the gist of the action 

doctrine. Its complaint likewise invokes the language of fraud in the inducement, not in 

the performance, but we are not bound to accept the labels a party chooses. See Bruno, 

106 A.3d at 68 (“[T]he mere labeling by the plaintiff of a claim as being in tort, e.g., for 

negligence, is not controlling.”). As the District Court properly noted, the Vendor 

Agreement was signed before the allegedly fraudulent misrepresentations, and the 

misrepresentations cannot have retroactively induced BBM to enter the contractual 

arrangements which underlie every claim in the complaint. BBM says that the 

misrepresentations led to the formations of the purchase orders, not the Vendor 

Agreement, but that contention overlooks that the Vendor Agreement’s terms “apply to 

all purchase orders[.]”8(Opening Br. at 16.) Although BBM was free to accept or reject 

7 The amended complaint states that “Dick’s fraudulently induced BBM to enter 

into the subject Vendor Agreement and the subject Purchase Orders[,]” that “Dick’s 

misrepresented to BBM that it would take delivery of branded ammunition no later than 

November 2016 in order to induce BBM to accept the Purchase Orders,” that “Dick’s 

knew the representation ... was false,” and that “Dick’s intended to mislead BBM[.]” 

(J.A. at 29-30.) 

8 Our dissenting colleague contends that it is unreasonable to infer that the Vendor 

Agreement is fully integrated with the purchase orders as the purchase orders were 

negotiated after the Vendor Agreement and they contain essential price and quantity 
12

any purchase order, all subsequent purchase orders were subject to the terms of the 

Vendor Agreement. BBM’s claim is one of fraudulent performance on the Vendor 

Agreement, which, by its terms, governed every interaction of the parties, including 

purchase orders entered pursuant to that master contract. A fraudulent performance claim

is clearly barred by the gist of the action doctrine. See eToll, 811 A.2d at 20 (“[T]he gist 

of the action doctrine should apply to claims for fraud in the performance of a 

contract.”).9

If we assume, as does BBM, that the purchase orders are separate contracts and the 

breached duty is a general societal duty not to mislead others into entering contracts, then 

BBM has arguably pled a fraud in the inducement claim. But even then, the parol 

evidence rule, coupled with the Vendor Agreement’s integration and no-modification 

terms that are absent from the Vendor Agreement. But that contention overlooks what 

the parties very plainly agreed would bind them. The Vendor Agreement is clear that its 

terms “apply to all purchase orders[.]” (J.A. at 38.) If the purchase orders were 

somehow contracts that had an independent status, separate from the Vendor Agreement, 

one would expect some additional language in them varying or disclaiming the terms of 

the Vendor Agreement, especially considering that the Vendor Agreement’s nomodification clause explicitly requires “any changes or modifications to or waivers of 

such terms and conditions” to be “in writing and signed by both Dick’s and [BBM].” 

(J.A. at 38.) And although the Vendor Agreement lacks quantity and price terms, it 

defined those terms as being specified in later purchase orders. The strong, remarkably 

clear language in the Vendor Agreement indicates that the parties intended for their 

ongoing business relationship to be governed by the Vendor Agreement, and that the 

purchase orders would simply be orders, the terms of which were dictated by the Vendor 

Agreement. 

9 Because the economic loss doctrine is closely related to the gist of the action 

doctrine and we are satisfied that the gist of the action doctrine bars BBM’s tort claims, 

we need not consider the economic loss doctrine separately.
13

clauses, would bar BBM’s tort claims. 10 See Toy v. Metropolitan Life Ins. Co., 928 A.2d 

186, 204-05 (Pa. 2007) (holding that the fraud exception to the parol evidence rule does 

not apply to fraud in the inducement of a contract).

“The parol evidence rule is a substantive rule of contract law that prevents the use 

of extrinsic evidence to nullify, modify, or augment the terms of a contract.” 

SodexoMAGIC, LLC v. Drexel University, 24 F.4th 183, 213 (3d Cir. 2022). Parol 

evidence, however, may be introduced to vary a fully integrated contract when the 

contract is ambiguous or when a term was omitted from the contract because of fraud, 

accident, or mistake. Toy, 928 A.2d at 204-05. The Pennsylvania Supreme Court has 

restricted the fraud exception to parol evidence “to allegations of fraud in the execution 

of a contract, and has refused to apply the exception to allegations of fraud in the 

inducement of a contract.” Id. “[W]hile parol evidence may be introduced based on a 

10 The District Court noted that BBM’s tort claims were barred by the parol 

evidence rule because the Vendor Agreement was fully integrated and required any 

modifications to be in a writing signed by both parties. In Pennsylvania, “fraud-in-theinducement claims are commonly barred if the contract at issue is fully integrated.” Hart 

v. Arnold, 884 A.2d 316, 340 (Pa. Super. Ct. 2005). This rule is based on the rationale 

that “a party cannot justifiably rely upon prior oral representations and then sign a 

contract containing terms that refute the alleged prior oral representations.” Id. (internal 

quotation marks omitted). Therefore, the parol evidence rule also requires allegations 

that the representations “were fraudulently or by accident or mistake omitted from the 

integrated written contract.” Id. “To require less would make a mockery of the parol 

evidence rule because all a party would have to do to avoid, modify[,] or nullify [a 

contract] would be to aver that false representations were ‘fraudulently’ made.” Id.

(second alteration in original) (quoting Nicolella v. Palmer, 507 A.2d 20, 23 (Pa. 1968)). 

Relying on that rationale, the District Court concluded that “insofar as [BBM] contends 

that Dick’s employees misrepresented that it would accept delivery by a date certain not 

specified in the Vendor Agreement nor the [purchase order]’s, any such claim is barred 

by the parol evidence rule.” (J.A. at 49.)
14

party’s claim that there was fraud in the execution of a contract, i.e., that a term was 

fraudulently omitted from the contract, parol evidence may not be admitted based on a 

claim that there was fraud in the inducement of the contract, i.e., that an opposing party 

made false representations that induced the complaining party to agree to the contract.” 

Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 n.26 (Pa. 2004).

We have opined that, under Pennsylvania law, “the parol evidence rule acting 

alone does not prevent fraudulent inducement claims arising out of integrated contracts” 

because “the purpose of extrinsic evidence is to prove a precontractual misrepresentation 

or concealment – not to alter or vary the terms of the contract.” SodexoMAGIC, 24 F.4th 

at 213. But contract drafters can “extend[] the reach of the parol evidence rule” by 

writing a fraud-insulating clause into their contract, which “prevent[s] a party from 

satisfying the justifiable-reliance element of a fraudulent inducement claim.” Id. at 213-

14. When a contract has a fraud-insulating provision, “it is virtually impossible to 

establish the justifiable-reliance element needed for a fraud claim.” Id. at 214; see Toy, 

928 A.2d at 207 (“[D]ue to the parol evidence rule’s operation, a party cannot be said to 

have justifiably relied on prior representations that [a party] has superseded and 

disclaimed[.]”). Two such examples are clauses that state that the representations in the 

contract supersede all prior representations, Yocca, 854 A.2d 425, 431 (Pa. 2004), or are 

the only representations made, 1726 Cherry St. P’Ship v. Bell Atl. Props., Inc., 653 A.2d 

663, 670 (1995). 

BBM does not dispute that the Vendor Agreement is integrated, nor did it contest 

the validity of the integration clause before the District Court. It has thus forfeited any
15

arguments to the contrary. See Garza v. Citigroup Inc., 881 F.3d 277, 284 (3d Cir. 2018)

(“To preserve a matter for appellate review, a party ‘must unequivocally put its position 

before the trial court at a point and in a manner that permits the court to consider its 

merits.”); DirecTV, Inc. v. Seijas, 508 F.3d 123, 125 n.1 (3d Cir. 2007) (“It is well 

established that arguments not raised before the District Court are [forfeited] on 

appeal.”). But arguments to the contrary would not be compelling anyway. The Vendor 

Agreement’s integration clause is clear, and its terms, including the integration clause, 

“shall apply to all purchase orders[.]” (J.A. at 38.) Although some terms, like price and 

quantity, are contained in the purchase orders, the Vendor Agreement defines those terms 

in relation to such purchase orders. For instance, the price of ammunition “shall be the 

prices specified in the purchase orders[,]” and the quantity of ammunition must not be “in 

excess of [the quantity] set forth in a purchase order[.]” (J.A. at 87.) The Vendor 

Agreement, and therefore any subsequent purchase order, also incorporates the Routing 

and Transportation Guide for Dick’s Sporting Goods, which presumably set the essential 

terms for delivery.11 In light of the integration clause and description of all essential 

terms, the Vendor Agreement and all subsequent purchase orders are properly understood 

as being integrated.12

11 As the Routing and Transportation Guide for Dick’s Sporting Goods is on a 

website that requires a vendor’s credentials to access, we cannot examine the precise 

requirements for delivery.

12 The dissent contends that we misapply the parol evidence rule because it is 

unreasonable to infer at the pleading stage that the Vendor Agreement is fully integrated 
16

Instead of arguing that the Vendor Agreement and purchase orders are not 

integrated, BBM asserts only that the Vendor Agreement’s integration clause is not 

fraud-insulating, as it contains no reference to representations made after the Vendor 

Agreement was signed but before the purchase orders were executed. Not so. The 

Vendor Agreement states that it “supersedes all prior written and oral and all 

contemporaneous oral agreements and understandings with respect to the subject matter 

hereof[.]” (J.A. at 38.) Although the integration clause does not expressly mention 

representations made after the Vendor Agreement’s execution – understandably so 

because the contract would have already been signed – the no-modification clause

requires that “any changes or modifications to or waivers of such terms and conditions 

must be in writing and signed by both Dick’s and [BBM].” (J.A. at 38.) This language 

plainly indicates the parties’ intent that the Vendor Agreement be fraud insulating, as any 

later interactions between the parties were to be in a signed writing to have any effect. If 

BBM intended to rely on Dick’s oral representations, it should have requested a written

and signed modification.

We turn next to whether the District Court properly dismissed BBM’s request for 

Helicopter Damages in its breach of contract claim. BBM argues that the District Court 

“did not find that BBM’s fraud claims were insufficiently pled[,]” and it was therefore

error to ignore the fraud exception in the limitation of damages provision. (Opening Br. 

with the subsequent purchase orders. For the reasons already noted, supra note 8, the 

Vendor Agreement and any subsequent purchase orders are best viewed as integrated. 
17

at 18.) Although BBM is correct that the District Court did not scrutinize the fraud 

claims under a Fed. R. Civ. P. 9(b) analysis, the District Court was not required to do so 

since it found that the fraud claims were barred by the gist of the action doctrine. Given 

that doctrine’s application, the Court concluded “that the fraud claims are subject to 

dismissal for failure to state a plausible claim for relief[.]” (J.A. at 51.) Citing no legal 

authority, BBM suggests that, because the misrepresentations predate the purchase orders 

and “were made in order to secure BBM’s acceptance of Purchase orders for substantially 

increased amounts of ammunition[,]” the exception in the limitation of damages 

provision is met. (Opening Br. at 18.)

We understand the District Court’s holding to be that the simple inclusion of one 

word – fraud – in the limitation of damages provision is not sufficient to overcome the 

gist of the action doctrine. If the parties had intended to convert a breach of the Vendor 

Agreement from a potential claim in contract to one in tort, they would have been far 

more explicit in saying so. BBM gives us no way to understand the fraud exception in 

the limitation of damages provision outside of its general assertion that the inclusion of 

“fraud” indicates that the parties intended to be exposed to tort claims in a breach of 

contract action. But, without clearer language from the parties in their contract, we must 

read the limitation of damages provision to be consistent with Pennsylvania’s gist of the 

action doctrine and parol evidence rule. As the gist of the action doctrine precludes fraud 

in the performance claims, and the parol evidence rule along with the inclusion of fraudinsulating language within the contract precludes fraud in the inducement claims, the 

word “fraud” in the provision must be understood to cover fraud in the execution claims.
18

See Yocca, 854 A.2d at 436 n.26 (“[P]arol evidence may be introduced based on a party’s 

claim that there was fraud in the execution of a contract, i.e., that a term was fraudulently 

omitted from the contract[.]”). As BBM has not pled any allegations of fraud in the 

execution, the limitation of damages provision prevents BBM from recovering Helicopter 

Damages on its contract claim. 

III. CONCLUSION

For the foregoing reasons, we will affirm. 
1

Battle Born Munitions Inc. v. Dick’s Sporting Goods, Inc., No. 22-1005.

PHIPPS, Circuit Judge, dissenting in part.

Contrary to the governing pleading standard, the Majority Opinion draws 

unreasonable inferences against the plaintiff, Battle Born Munitions Inc., in assessing the 

plausibility of its fraud allegations. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Lutz 

v. Portfolio Recovery Assocs., LLC, 49 F.4th 323, 334 (3d Cir. 2022). Based on those 

improper inferences, the Majority Opinion then affirms the dismissal of Battle Born’s 

misrepresentation claims based on the gist of the action and economic loss doctrines as 

well as the parol evidence rule. I see it differently and respectfully dissent in part.

The Majority Opinion infers from the operative complaint that the Vendor 

Agreement between Dick’s Sporting Goods and Battle Born – together with later 

purchase orders – combine to form a singular, fully integrated contract. Neither the 

complaint nor the Vendor Agreement, which is attached to the complaint as an exhibit,

says that. Rather, the Vendor Agreement sets forth general terms and conditions under 

which Battle Born would serve as a vendor for Dick’s. The Vendor Agreement does not 

identify the type of goods that Battle Born would supply, nor does it specify prices or 

quantities. The parties could agree to those key components of a sale of goods through 

subsequent purchase orders – none of which are attached to the complaint. So, based on 

the pleadings, it is not reasonable to infer that the Vendor Agreement did anything other 

than establish the ground rules for a business relationship between the parties. Likewise, 

with scarce allegations about the subsequent purchase orders, it is not reasonable to infer 

that the integration clause in the Vendor Agreement covers the later purchase orders, 

especially since that clause, by its own text, does not extend to subsequent agreements. 

See Vendor Agreement ¶ 24 (App. 89) (“This Vendor Agreement supersedes all prior 

written and oral and all contemporaneous oral agreements and understandings with 
2

respect to the subject matter hereof . . . .”). Thus, at the pleadings stage, a reasonable 

inference in Battle Born’s favor is that subsequent purchase orders separately created 

additional contractual obligations.

I agree with the Majority Opinion that the Vendor Agreement applies to laternegotiated purchase orders. But that does not mean that the Vendor Agreement is fully 

integrated with all subsequent purchase orders. An integration clause confirms the 

completeness of the parties’ agreement on the subject-matter of the agreement and, in 

conjunction with the parol evidence rule, prevents additional terms from being read into 

that agreement (at least without subsequent modification of the agreement by the parties). 

See generally Integration Clause, Black’s Law Dictionary (10th ed. 2014). Thus, it is 

unreasonable to infer that the integration clause in the Vendor Agreement reaches laternegotiated purchase orders that contain price and quantity terms that were wholly absent 

from the Vendor Agreement. While many terms of the Vendor Agreement may apply 

prospectively, its integration clause cannot. Accordingly, the reasonable inference is that 

the purchase orders created additional, separately agreed-upon contractual obligations.

The Majority Opinion bases its application of the gist of the action and economic 

loss doctrines on the contrary inference. From its perspective that the Vendor Agreement 

and purchase orders comprise a singular, fully integrated contract, the Majority Opinion 

concludes that the alleged misrepresentations made by Dick’s in negotiating the 

subsequent purchase orders would be at worst fraud in the performance of a contract. 

And such a claim, because it arises out of a contractual duty, is not separately actionable 

in tort under both the gist of the action and the economic loss doctrines. See Bruno v. 

Erie Ins. Co., 106 A.3d 48, 68 (Pa. 2014) (holding that gist of the action forecloses tort 

claims based on alleged breaches of solely contractual duties); Dittman v. UPMC, 
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196 A.3d 1036, 1054 (Pa. 2018) (holding that the economic loss doctrine prohibits tort 

claims seeking to recover purely economic losses that are rooted only in contractual 

duties); see also eToll, Inc. v. Elias/Savion Advert., Inc., 811 A.2d 10, 19–20 (Pa. Super. 

Ct. 2002). But that conclusion collapses if the purchase orders, rather than the Vendor 

Agreement, were the source of Battle Born’s contractual obligation to deliver specified 

quantities of ammunition at set prices. In that scenario, Dick’s would be under a general 

societal duty not to intentionally deceive Battle Born into undertaking those new 

contractual responsibilities. See SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 217

(3d Cir. 2022) (“[A] precontractual duty not to deceive through misrepresentation or 

concealment exists independently of a later-created contract.”). And if Battle Born were 

afforded the reasonable inference that the later negotiated purchase orders created 

additional, separately agreed-upon contractual obligations, then neither the gist of the 

action nor the economic loss doctrines would bar tort claims related to misrepresentations 

by Dick’s in negotiating the purchase orders.

For similar reasons, the Majority Opinion misapplies the parol evidence rule. That 

rule applies only to integrated contracts,

1

and as explained above, it is unreasonable to 

infer that the Vendor Agreement is fully integrated with later purchase orders. That is not 

to say that the Vendor Agreement says nothing about terms and conditions for subsequent 

purchase orders; it means only that those later orders separately impose additional 

obligations, and for that reason, they should not be inferred to be encompassed within the 

1 See, e.g., Toy v. Metro. Life Ins. Co., 928 A.2d 186, 205 (Pa. 2007) (“[F]or the parol 

evidence rule to apply, there must be a writing that represents the parties’ entire 

contract . . . .” (citing Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 

2004))); Yocca, 854 A.2d at 436 (“[F]or the parol evidence rule to apply, there must be a 

writing that represents the ‘entire contract between the parties.’” (quoting Gianni v. 

Russell & Co., 126 A. 791, 792 (1924))). 
4

Vendor Agreement’s integration clause. Accordingly, the parol evidence rule does not 

foreclose consideration of extrinsic evidence arising after entry of the Vendor Agreement, 

especially evidence of later misrepresentations regarding purchase orders.

Despite these differences, I join the outcome reached by the Majority Opinion

with respect to Battle Born’s fraud claim for the failed sale of helicopters to Lebanon. 

Although proximate cause is not universally an element of a fraud claim at common law,

2

Pennsylvania requires it. See Gibbs v. Ernst, 647 A.2d 882, 889 & n.12 (Pa. 1994); see 

also SodexoMAGIC, 24 F.4th at 205. And even under a favorable construction of the 

allegations in Battle Born’s complaint, the delayed payment for the ammunition is too 

attenuated from Battle Born’s inability to finance a helicopter deal to qualify as 

proximate cause. 

For these reasons, I would vacate the dismissal of all components of Battle Born’s 

misrepresentation claims except those related to the helicopter sale.

2 Compare Restatement (Second) of Torts § 548A (Am. L. Inst. 1977) (“A fraudulent 

misrepresentation is a legal cause of a pecuniary loss resulting from action or inaction in 

reliance upon it if, but only if, the loss might reasonably be expected to result from the 

reliance.”), with Restatement (First) of Torts § 546 (Am. L. Inst. 1938) (“The maker of a 

fraudulent misrepresentation in a business transaction is liable for pecuniary loss caused 

to its recipient by his reliance upon the truth of the matter misrepresented if his justifiable 

reliance upon the misrepresentation is a substantial factor in determining the course of 

conduct which results in his loss.”). See generally Mark P. Gergen, A Wrong Turn in the 

Law of Deceit, 106 Geo. L.J. 555, 589–92 (2018) (summarizing the emergence of the 

proximate causation element of fraud claims).