J-S51012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD J. KLONIECKE 

Appellant

v.

GT MOTORS, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 806 MDA 2020

Appeal from the Order Entered May 4, 2020

In the Court of Common Pleas of Lackawanna County Civil Division at 

No(s): 2019-CV-5121

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED JANUARY 27, 2021

Edward J. Kloniecke (Appellant) appeals from the order sustaining the 

preliminary objections of GT Motors, Inc. (GT Motors) and dismissing 

Appellant’s complaint. We affirm.

On August 30, 2019, Appellant filed a complaint against GT Motors 

alleging breach of contract regarding his purchase of a used 2010 Ford F-150 

pick-up truck.1 Appellant’s Complaint, 8/30/19, at ¶ 3. Appellant states that 

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1 As the complaint was dismissed in response to preliminary objections in the 

nature of a demurrer, we recite the background based on the well-pleaded 

facts in Appellant’s complaint. Hill v. Ofalt, 85 A.3d 540, 543 (Pa. Super. 

2014) (citing Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675, 679 (Pa. 

Super. 2007) (“When reviewing the dismissal of a complaint based upon 

preliminary objections in the nature of a demurrer, we treat as true all wellpleaded material, factual averments and all inferences fairly deducible 

therefrom.”)). 
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“[i]n advertising the pick-up truck for sale,” GT Motors “warranted that the 

vehicle was in a state of good repair and was safe for operation.” Id. at ¶ 6.2 

Appellant contacted GT Motors from his home in Lackawanna County, 

negotiated the price of the vehicle, and then “issued a deposit payment in the 

amount of $500.00 from his home via phone.” Appellant’s Complaint, 

8/30/19, at ¶¶ 4, 5. Thereafter, Appellant traveled to GT Motors’ location in 

Philadelphia where he purchased the vehicle. Id. at ¶¶ 2, 3. 

Appellant attached to his complaint a bill of sale dated November 23, 

2018. Id. at Exhibit A. The bill of sale indicates that for $15,200.00, Appellant 

purchased a used 2010 Red Ford F-150 pick-up truck, bearing vehicle 

identification number (VIN) 1FTMF1EWXAKA90637, from GT Motors. Id.

Under the “Vehicle Warranty” section of the bill of sale, the box next to “No 

Express or Implied Warranties” is marked with an “X” and the following clause:

AS IS: THIS MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY 

WARRANTY EITHER EXPRESSED OR IMPLIED. THE 

PURCHASER WILL BEAR THE ENTIRE EXPENSE OF 

REPAIRING OR CORRECTING ANY DEFECTS THAT 

PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE. 

Id.

Directly below that provision is an integration clause specifying: 

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2 Advertisements do not constitute offers unless they contain language of 

commitment or some invitation to take action without further communication. 

Bourke v. Kazaras, 746 A.2d 642, 644 (Pa. Super. 2000). Without such 

language, advertisements are merely invitations to the public to enter into 

negotiations which may subsequently result in an offer and acceptance. Id.

at 645 (citations omitted).
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This agreement and the related documents that Buyer signs 

contemporaneously with this agreement, including any 

installment sale contract, contain the entire agreement between 

the Buy and Seller and cancels and supersedes any prior 

agreement including oral agreements relating to the sale of the 

motor vehicle. Any change to this agreement must be in writing 

and Seller must sign it. 

Appellant’s Complaint, 8/30/19, at Exhibit A. Appellant and GT Motors’

representative endorsed the bill of sale on the signature line directly below 

the following clauses: 

Buyer hereby declares that he/she is of legal age to transact 

business and that no unfair inducement has been made by Seller. 

This contract is not binding upon either the Seller or the 

Buyer until signed by an authorized Seller representative. 

YOU, THE BUYER, MAY CANCEL THIS CONTRACT AND 

RECEIVE A FULL REFUND ANY TIME BEFORE RECEIPT OF A 

COPY OF THIS CONTRACT SIGNED BY AN AUTHORIZED 

SELLER REPRESENTATIVE BY GIVING WRITTEN NOTICE OF 

CANCELLATION TO SELLER. 

Buyer acknowledges receipt of a completed copy of this 

agreement at the time he/she signed it. If this is an ‘AS 

IS” sale (see above), Buyer acknowledges that Seller 

brought the required window sticker to his/her attention 

before Buyer signed this agreement or an installment sale 

contract. 

Id. 

Appellant alleges that after purchasing the vehicle, he discovered 

extensive mold damage in the cab of the vehicle that made it impossible to

operate. Appellant’s Complaint, 8/30/19, at ¶¶ 8, 9. Appellant argues that 

because the “agreement between [Appellant and GT Motors] for the purchase 

of the pick-up truck [] constituted a contract between” the parties, by 

“withholding and concealing information regarding the condition of the pick-
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up truck, [GT Motors] breached its contract with [Appellant].” Id. at ¶¶ 10, 

11. As a result of the alleged breach, Appellant claims damages totaling 

$17,128.00. Id. at ¶ 15. 

GT Motors filed preliminary objections to Appellant’s complaint on 

September 24, 2019, arguing, inter alia, that the complaint failed to state a 

breach of contract claim for which relief could be granted. GT Motors’

Preliminary Objections, 9/24/19, at ¶¶ 51-60. Attached to its preliminary 

objections, GT Motors submitted multiple exhibits, including a warranty 

disclaimer. Id. at Exhibit G. The warranty disclaimer is dated November 23, 

2018, identifies Appellant as the buyer, GT Motors as the seller, and the

vehicle subject to the disclaimer as a 2010 Ford F-150 pick-up truck bearing 

VIN 1FTMF1EWXAKA90637. Id. 

The disclaimer states in bold:

The seller, identified above, hereby expressly disclaims all 

warranties, either express or implied, including all implied 

warranties of merchantability or fitness for a particular 

purpose and the seller neither assumes nor authorizes any 

other person to assume for it any liability in connection 

with the sale of the vehicle.

GT Motors’ Preliminary Objections, 9/24/19, at Exhibit G. The warranty 

disclaimer further provides:

“NOTICE OF VEHICLE SOLD WITHOUT WARRANTY”

This vehicle is sold without any warranty. The buyer will bear 

the entire expense of repairing or correcting any defects that 

presently exist and/or may occur in the vehicle unless the 

salesperson promises in writing to correct such defects.
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BUYER HEREBY ACKNOWLEDGES HE HAS READ, UNDERSTANDS 

AND ACCEPTS THE PROVISIONS OF THE WARRANTY STATEMENT 

FOR THE ABOVE-IDENTIFIED VEHICLE. 

Id. (emphasis in original).

At the bottom of the warranty disclaimer, two signature lines are 

respectively endorsed by Appellant and GT Motors’ representative. Id. Both 

signatures are dated November 23, 2018. Id. 

On May 4, 2020, the trial court issued an order and opinion sustaining 

GT Motors’ preliminary objection in the nature of a demurrer for failure to 

state a breach of contract claim upon which relief could be granted. As the 

breach of contract claim was Appellant’s sole cause of action, the court 

dismissed Appellant’s complaint. The trial court explained that it sustained 

GT Motors’ demurrer because the terms of the bill of sale, specifically its “asis” warranty language and integration clause, together with the 

contemporaneously-signed warranty disclaimer, precluded relief for breach of 

contract. Trial Court Opinion, 5/4/20, at 4-8. 

Appellant filed a timely appeal on June 1, 2020. Both Appellant and the 

trial court have complied with Pennsylvania Rule of Appellate Procedure 1925. 

Appellant presents a single issue for our review: 

A. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR 

IN GRANTING PRELIMINARY OBJECTIONS IN THE NATURE OF 

A DEMURRER AND DISMISSING APPELLANT’S COMPLAINT 

WHEN THE TRIAL COURT RELIED UPON DOCUMENTS AND 

EVIDENCE NOT CONTAINED WITHIN APPELLANT’S 

COMPLAINT.

Appellant’s Brief at 6. 
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At the outset, we recognize our standard of review: 

Our standard of review of an order granting preliminary objections 

is well-settled.

Preliminary objections in the nature of a demurrer should be 

granted where the contested pleading is legally insufficient. 

Preliminary objections in the nature of a demurrer require the 

court to resolve the issues solely on the basis of the pleadings; no 

testimony or other evidence outside of the complaint may be 

considered to dispose of the legal issues presented by the 

demurrer. All material facts set forth in the pleading and all 

inferences reasonably deducible therefrom must be admitted as 

true. In reviewing a trial court’s grant of preliminary objections, 

the standard of review is de novo and the scope of review is 

plenary. Moreover, we review the trial court’s decision for an 

abuse of discretion or an error of law. 

Caltagirone v. Cephalon, Inc., 190 A.3d 596, 599 (Pa. Super. 2018) 

(citations omitted). 

Appellant argues that the trial court erred by considering the warranty 

disclaimer3 attached to GT Motors’ preliminary objections. Appellant’s Brief at 

12-13. Appellant further avers that the court usurped the role of fact-finder

in concluding that the warranty disclaimer was part of the contract between 

the parties. Id. at 14. We disagree. 

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine the 

averments in the complaint, together with the documents and 

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3 Appellant also claims the trial court incorrectly considered the buyer’s guide 

and affidavit attached to GT Motors’ preliminary objections. See Appellant’s 

Brief at 10-14; GT Motors’ Preliminary Objections, 9/24/19, at Exhibits A & F. 

However, the trial court only cites the warranty language from the bill of sale 

and the warranty disclaimer as the basis for its ruling. See Trial Court 

Opinion, 5/4/20, at 4-8.
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exhibits attached thereto, in order to evaluate the sufficiency of 

the facts averred. The impetus of our inquiry is to determine the 

legal sufficiency of the complaint and whether the pleading would 

permit recovery if ultimately proven. This Court will reverse the 

trial court’s decision regarding preliminary objections only where 

there has been an error of law or abuse of discretion. When 

sustaining preliminary objections will result in the denial of a claim 

or dismissal of suit, the preliminary objections may be sustained 

only where the case is free and clear of doubt. 

Hill v. Ofalt, 85 A.3d 540, 547-48 (Pa. Super. 2014) (citation omitted). 

“To successfully maintain a cause of action for breach of contract the 

plaintiff must establish: (1) the existence of a contract, including its essential 

terms, (2) a breach of duty imposed by the contract, and (3) resultant 

damages.” Albert v. Erie Ins. Exchange, 65 A.3d 923, 928 (Pa. Super. 

2013) (citation omitted). The Rules of Civil Procedure state: 

(h) When any claim or defense is based upon an agreement, the 

pleading shall state specifically if the agreement is oral or written. 

Note: If the agreement is in writing, it must be 

attached to the pleading. See subdivision (i) of this 

rule. 

(i) When any claim or defense is based upon a writing, the pleader 

shall attach a copy of the writing[.] . . . 

Pa.R.C.P. 1019(h), (i). 

Where a plaintiff’s claim is based on written documents and the plaintiff 

fails to attach the documents to its complaint, the defendant may submit those 

documents with its preliminary objections and the court may consider those 

documents in ruling on a demurrer. Conrad v. City of Pittsburgh, 218 A.2d

906, 907 n.3 (Pa. 1966); Regal Industrial Corp. v. Crum & Forster, Inc., 
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890 A.2d 395, 398-99 (Pa. Super. 2005) (“[A] defendant may attach a copy 

of a written agreement where the plaintiff alleges an agreement based on a 

writing.”) (citation omitted). Further, if a claim is based on a document, it is 

the document, not averments in the plaintiff’s complaint characterizing it, that 

determine whether the plaintiff has stated a cause of action, and averments 

that conflict with the document need not be accepted as true. Jenkins v. 

County of Schuylkill, 658 A.2d 380, 383 (Pa. Super. 1995) (citation 

omitted). 

Whether a writing or writings constitute the entire agreement between 

parties is a question of law. Lenzi v. Hahnemann University, 664 A.2d 

1375, 1379 (Pa. Super. 1995). “It is a general rule of law in the 

Commonwealth that where a contract refers to and incorporates the provisions 

of another, both shall be construed together.” Southwestern Energy 

Production Co. v. Forest Resources, LLC, 83 A.3d 177, 187 (Pa. Super. 

2013) (citations omitted). “Where several instruments are made as part of 

one transaction they will be read together, and each will be construed with 

reference to the other[.]” Id. (citations omitted). See also Black v. T.M. 

Landis, Inc., 421 A.2d 1105, 1107 (Pa. 1980) (“It is a basic principle of 

contract law that when two or more writings are executed at the same time 

and involve the same transaction, they should be construed as a whole.”)

(citations omitted). 

Instantly, the trial court capably, thoroughly and accurately explained: 
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The bill of sale signed by [Appellant] conspicuously states 

there are no express or implied warranties and the vehicle is being 

sold “as is.” Section 13 of Pa.C.S.A. § 2314 of the Uniform 

Commercial Code (UCC) defines the implied warranty of 

merchantability as a warranty that the goods will pass without 

objection in the trade and are fit for the ordinary purposes for 

which such goods are used. Moscatiello v. Pittsburgh Contractors 

Equipment Co., 595 A.2d 1190, 1194 (Pa. Super. 1991). 

However, 13 Pa.C.S.A. § 2316, Exclusion or Modification of 

Warranties, states in pertinent part: 

(b) Implied warranties of merchantability and 

fitness. — Subject to subsection (c), to exclude or 

modify the implied warranty of merchantability or any 

part of it the language must mention merchantability 

and in case of a writing must be conspicuous. 

(c) Implied warranties in general. —

Notwithstanding (b): 

(1) Unless the circumstances indicate 

otherwise, all implied warranties are 

excluded by expressions like “as is,” “with 

all faults” or other language which in 

common understanding calls attention of 

the buyer to the exclusion of warranties 

and makes plain that there is no implied 

warranty. 

13 Pa.C.S.A. § 2316. 

Thus, to exclude the implied warranty of merchantability, 

the exclusionary language must mention the term 

“merchantability” and be conspicuous. Moscatiello, 595 A.2d at 

1194. The Superior Court in Moscatiello also laid out the standard 

to determine if a clause is conspicuous: 

A term or clause is “conspicuous” when it is “so 

written that a reasonable person against whom it is to 

operate ought to have noticed it . . . language in the 

body of a form is conspicuous if it is larger or other 

contrasting type of color . . .” 13 Pa.C.S.A. § 1201. 

Comment 10 to section 1201 states that the test for 
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conspicuousness is whether attention can reasonably 

be expected to be called to the exclusions. The 

primary object of the conspicuousness requirement is 

to avoid fine print waiver of rights by the buyer. 

Greenspun v. American Adhesives, Inc., 320 F.Supp.

442 (E.D.Pa. 1970). 

Id. 

The exclusionary clause involved herein is located on the 

front side of the one-page bill of sale. It is under the Section titled 

“VEHICLE WARRANTY” which is in all capital letters and in bold 

font. In this section, a box is checked next to the clause which 

reads: 

No Express or Implied Warranties. AS IS: THIS 

MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY 

WARRANTY EITHER EXPRESSED OR IMPLIED. 

THE PURCHASER WILL BEAR THE ENTIRE 

EXPENSE OF REPAIRING OR CORRECTING ANY 

DEFECTS THAT PRESENTLY EXIST OR THAT MAY 

OCCUR IN THE VEHICLE. 

See Bill of Sale attached to Complaint docketed on 8/30/19. 

Additionally, “It is a general rule of law in the 

Commonwealth that where a contract refers to and incorporates 

the provisions of another, both shall be construed together.” 

Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 

550, 560 (Pa. Super. 2006) (citing Shehadi v. Northeastern Nat’l. 

Bank, [] 378 A.2d 304, 306 ([Pa.] 1977). Here, the Warranty 

Disclaimer becomes a part of the contract. The bill of sale refers 

to and incorporates the Warranty disclaimer by stating “This 

agreement and the related documents that Buyer signs 

contemporaneously with this agreement . . . contain the entire 

agreement between Buyer and Seller . . .” Id. The Warranty 

Disclaimer and the bill of sale were signed contemporaneously as 

evidenced by both documents being signed on November 23, 

2018. See Exhibits E, F, & G, of [GT Motors’] Preliminary 

Objections to [Appellant’s] Complaint docketed on 9/24/2019. 

The language in the bill of sale combined with both documents 

being signed [] contemporaneously by [Appellant], the Warranty 

Disclaimer is a part of the contract entered into between 

[Appellant and GT Motors].
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It is clear from conspicuous language in both the bill of sale 

and Warranty Disclaimer that there is no implied warranty of 

merchantability. The Warranty Disclaimer has the term 

“merchantability” in it, and with the exclusionary language in the 

bill of sale being separated into its own section, in bold font and 

being all capitalized, [Appellant] was put on notice that substantial 

rights of his were being relinquished. 

With respect to any express warranties in the contract, 

[Appellant] fails to direct the court to any language in the contract 

amounting to an express warranty that would contradict or 

undermine the disclaimer of all warranties. In [Appellant’s] 

complaint, he alleges “[i]n advertising the pick-up truck for sale, 

[GT Motors] warranted that the vehicle was in a state of good 

repair and was safe for operation.” See Complaint docketed on 

8/30/2019. Nowhere in the contract does this language appear. 

The only language relating to the condition of the vehicle is under 

the “VEHICLE INFORMATION” section located at the top of the 

bill of sale. That information denotes that the vehicle is “used,” 

the year, make, model, VIN number, mileage, body and color of 

the vehicle. Nowhere in the bill of sale does it state the vehicle 

was in a “state of good repair and was safe for operation.” See

Bill of Sale attached to Complaint docketed on 8/30/2019. 

Therefore, it can be presumed [Appellant’s] allegations of [GT 

Motors] warranting the vehicle being in a state of good repair and 

safe operation took place verbally prior to signing the contract. 

In determining whether oral statements and 

representations can be used to clarify a contract, this court looks 

to the parol evidence rule. The Supreme Court in Toy v. 

Metropolitan Life Ins. Co. laid out the parol evidence rule in 

Pennsylvania: 

Where ‘the parties, without any fraud or mistake, 

have deliberately put their engagements in writing, 

the law declares the writing to be not only the best, 

but the only evidence of their agreement;’ that “all 

preliminary negotiations, conversations and verbal 

agreements are merged in and superseded by the 

subsequent written contract;” and that ‘unless fraud, 

accident, or mistake be averred, the writing 

constitutes the agreement between the parties, and 

its terms cannot be added to nor subtracted by parol 

evidence.’
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Toy v. Metropolitan Life Ins. Co., [] 928 A.2d 186, 204 ([Pa.] 

2007) (quoting Gianni v. Russel Co., []126 A. 791, 792 ([Pa.] 

1924). 

The Supreme Court in [Toy] further clarified exclusions to 

the parol evidence rule by stating: 

“While parol 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, 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.”

Toy, [] 928 A.2d 186, 205 ([Pa.] 2007) (citing HCB Contractors v. 

Liberty Place Hotel Associates, [] 652 A.2d 1278, 1279 ([Pa.] 

1995).

The parties’ unambiguous written contract indicates that no 

implied warranty was included in the purchase. Accordingly, the 

parol evidence rule bars [Appellant’s] attempt to avoid the 

disclaimer through invocation of presumed pre-contractual 

conversations, during which [GT Motors] allegedly misrepresented 

the condition of the used vehicle. As previously stated, 

[Appellant] fails to direct the court to any other language in the 

contract amounting to an express warranty that would contradict 

or undermine the disclaimer of implied warranties. 

Trial Court Opinion, 5/4/20, at 4-8 (some underlining omitted). 

Upon review, we discern no error by the trial court in considering the 

warranty disclaimer as part of the contract between Appellant and GT Motors. 

Because Appellant’s breach of contract claim was based on written documents, 

he was required to attach the documents to his complaint. See Pa.R.C.P. 

1019(i). As the trial court made the proper legal conclusion that the warranty 
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disclaimer was part of the parties’ contract,4 Lenzi, 664 A.2d at 1379; Forest 

Resources, LLC, 83 A.3d at 187; Black, 421 A.2d at 1107, Appellant should 

have submitted the disclaimer as an exhibit to his complaint. Because 

Appellant failed to do so, GT Motors was permitted to attach the warranty 

disclaimer to its preliminary objections, and the trial court correctly considered 

it.

5

 Conrad, 218 A.2d at 907 n.3; Regal Industrial Corp., 890 A.2d at 398-

99.

In sum, the trial court properly considered the warranty disclaimer as 

part of the parties’ contract in determining that Appellant could not prove facts 

legally sufficient to establish a right to relief on his sole breach of contract 

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4

In his response to GT Motors’ preliminary objections, Appellant denies that 

the warranty disclaimer is part of the contract. Appellant’s Response to GT

Motors’ Preliminary Objections, 12/16/19, at ¶ 30. “When reviewing a trial 

court’s disposition of preliminary objections, this Court is only obligated to 

consider as true all of the well-pleaded material facts set forth in the 

complaint.” Glassmere Fuel Service, Inc. v. Clear, 900 A.2d 398, 404 n.2 

(Pa. Super. 2006) (citation omitted, emphasis added). We are “not required 

to accept allegations to the extent that they constitute conclusions of law.” 

Id. (citation omitted). Because Appellant’s assertion that the warranty 

disclaimer was not part of the contract constitutes a legal conclusion, the trial 

court was not required to accept this assertion as true merely because 

Appellant included it in his response to GT Motors’ preliminary objections. 

5 Contrary to his initial arguments, Appellant eventually concedes that the trial 

court was permitted to consider the exhibits attached to GT Motors’

preliminary objections. Appellant’s Brief at 14 (“Appellant readily 

acknowledges decisional case law that has held that where a plaintiff’s 

complaint referred to various documents upon which reliance was placed and 

such documents were not annexed to the complaint but were attached to a 

defendant’s preliminary objections, a court can consider such documents in 

ruling upon preliminary objections.”). 
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claim. We therefore affirm that trial court’s order sustaining GT Motors’

preliminary objections. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/27/2021