J-A14036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

CIRCLE BOLT AND NUT COMPANY, 

INC.,

Appellant

v.

KEYSTONE HELICOPTER 

CORPORATION,

Appellee

:

:

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

No. 1401 MDA 2014

 

Appeal from the Judgment Entered September 18, 2014, 

in the Court of Common Pleas of Luzerne County, 

Civil Division, at No(s): 2010-14500

BEFORE: BENDER, P.J.E., JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 17, 2015

Circle Bolt and Nut Company, Inc. (Circle) appeals from the judgment 

entered against it and in favor of Keystone Helicopter Corporation 

(Keystone) following a non-jury trial.1 Upon review, we affirm.

Keystone is in the business of manufacturing aircraft. Circle is a 

supplier of hardware to various manufacturers, offering them, inter alia, the

ability to move to a vendor-managed inventory (VMI). Under a VMI 

agreement, Circle provides one of its employees to work on-site at a 

 

1 Circle purported to appeal from the order denying its post-trial motion, 

which does not constitute an appealable order. Fanning v. Davne, 795 

A.2d 388, 391 (Pa. Super. 2002) (providing appeal to Superior Court can lie 

only from judgment entered subsequent to the trial court’s disposition of any 

post-verdict motion, not from the order denying post-trial motion). At the 

direction of this Court, judgment was entered in this matter on September 

18, 2014. We have amended the caption accordingly.
J-A14036-15

- 2 -

manufacturer to manage the inventory of certain agreed-upon parts. 

Management of the inventory includes ensuring the number of parts on-hand 

are maintained at minimum and maximum levels and that the parts are 

replenished as appropriate per the agreement. 

Keystone had VMI agreements with various suppliers, and also 

purchased parts on an ad hoc basis from both Circle and other suppliers. In 

April of 2009, Keystone entered into a three-year VMI contract with Circle. 

That contract provides, in relevant part, as follows.

12. TERMINATION

Both parties have a right to terminate this AGREEMENT at will. 

If [Keystone] initiates termination, [Keystone] will: (1) provide 

three (3) month written notice, (2) Be liable for all product in 

stock, on order, or in route for the fulfillment of the [Keystone] 

program, less any standard stock items, CIRCLE will invoice 

[Keystone] for such products, stock, etc. which invoice shall be 

due and payable within sixty (60) days.

***

14. ENTIRE UNDERSTANDING AND AGREEMENT

This Agreement contains the entire understanding between the 

parties with respect to the subject matter contained herein, and 

no modification or waiver of any provision hereof shall be valid 

unless in writing and signed by the parties hereto.

***

16. Addendum A, Pricing is a part of this Agreement.

Contract, 4/2/2009.

Addendum A to the contract is a spreadsheet which enumerates 

approximately 600 parts included in the Agreement. In addition to the part 
J-A14036-15

- 3 -

number, Addendum A has columns for estimated annual usages for the part 

(EAUs), the price per part, and the cost for that part for the whole year. All 

pages of Addendum A were initialed by Duncan McCory, director of 

purchasing at Keystone. Keystone provided the EAUs to Circle, which then 

set up bins of parts at Keystone and managed the usage. 

According to Jim Castellino, then a vice-president at Circle, Keystone 

asked Circle to “take on more blue dot parts” in addition to those 

enumerated in Addendum A.2 N.T., 6/30/2014, at 25. Castellino testified 

that he and Jeanne Kondraski, director of sales at Circle, met with Debbie 

Logan, a senior buyer at Keystone, who requested that Circle 

[t]ake on all the parts you can. We want you to take over all the 

blue dot parts. And what basically was happening was 

[Kondraski] would give [Castellino] the information after she got 

the part numbers that they wanted and the [EAUs] and 

[Castellino] would put it together on a spreadsheet and submit it 

to [Keystone] to try to formalize this so they could add it to the 

contract. And [Circle] persisted with asking about please add 

this to the contract. It was never done. But in the meantime, 

[Circle was] supplying the parts and [Keystone was] paying for 

them.

Id. at 25-26. 

Kondraski testified that she received an e-mail from Logan asking if 

“Circle is almost ready to take over all the blue dots....” Id. at 65. Kondraski 

interpreted this e-mail as Logan’s asking her “to start looking at all of the 

 

2 Blue dot refers to parts that are kept on a “min/max.” N.T., 9/20/2011, at 

25. They are separate from a VMI, and are kept in stock in a warehouse 

because they are heavily used items. Id.
J-A14036-15

- 4 -

blue dots that are not already in the [VMI] program and start taking them 

over.” Id. 

On June 22, 2009, Castellino sent an e-mail with the subject line 

“Addendum B” to Paul Day, who was then the purchasing supervisor for the 

VMI at Keystone. That e-mail stated, in its entirety: “Confirming our 

meeting with [Logan] on Friday, attached is the new addendum to add to 

the blue dot list. Please add to the contract and confirm back to us in order 

for us to begin scanning.” Circle’s Exhibit 10, E-mail from Castellino to Day, 

6/22/2009. Addendum B included 172 additional parts. See Circle’s Exhibit 

3. On July 23, 2009, Castellino sent an e-mail to Day with Addendum C, 

which included 80 additional parts.3 See Circle’s Exhibit 35.

On September 10, 2009, Logan sent an e-mail with a subject line of a 

part number to Tim Judge, Director of Procurement at Circle, which 

instructed Circle to “[p]lease add to our [V]MI and get them to us asap. ... I 

want to start with [a quantity] of 100[.]” Circle’s Exhibit 25, E-mail from 

Logan to Judge, 9/10/2009. 

 

3 Addenda B and C were identical to Addendum A in that they were 

spreadsheets containing columns for EAUs, price per part, and price per 

year. However, some of the parts did not have all of the columns filled in, 

particularly EAUs. Kondraski testified that she “can’t quote a list of random 

parts without [EAUs].” N.T., 6/30/2014, at 74. She further testified that 

Day was supposed to get her the [EAUs], but never did and “then it fell off 

the map.” Id.
J-A14036-15

- 5 -

Logan testified that she “was hoping to get all blue dots taken over, 

but things happened and my company said no. ... Just like with any vendor 

that handles our blue dots, which is multiple vendors, there’s [sic] no 

contracts for those parts. It’s more like what we consider a one-time buy.” 

N.T., 9/20/2011, at 41. Logan attempted to clarify the nature of various 

types of purchases at Keystone. She testified that the parts discussed 

“would become parts for [Circle] to fill, but not contracted parts.” Id. at 47. 

Castellino testified that among the three addenda, Circle was providing 

878 different parts, and was then instructed by Keystone to “take over all 

blue dots” which would have included “800 to 900” more parts “totaling over 

1700 parts.” N.T., 6/30/2014, at 29. Castellino realized that addenda B and 

C, as well as all additional parts were “never officially signed off” and they 

were “pursuing that at the time.” Id. This understanding is confirmed in an 

e-mail from Castellino to Day, wherein Castellino informed Day that Circle 

would like to meet with the Keystone team to “review all the items (pricing 

and approvals) and inventory levels so we can both have an understanding 

of the expectations going forward.” Circle’s Exhibit 30, E-mail from Castellino 

to Day, 2/4/2010. 

According to Day, Keystone began experiencing problems with Circle. 

He testified: “We had slow to no turn around requests on bids, quotes last 
J-A14036-15

- 6 -

half of 2009 to the point where [Keystone’s buyer, Hampford,] isn’t quoting 

hardware with [Circle] anymore.” N.T., 6/30/2014, at 165.

After experiencing a series of issues, including bins being out of stock, 

on April 26, 2010, Keystone sent a letter to Circle exercising its 90-day exit 

clause to terminate the contract. Pursuant to paragraph 12 of the 

Agreement, Keystone paid Circle for the remaining inventory for the parts 

listed in Addendum A. However, Keystone did not pay Circle for the value of 

the remaining inventory listed in addenda B and C. 

On November 12, 2010, Circle filed a complaint against Keystone for 

breach of contract and promissory estoppel, specifically requesting payment 

of $252,838.03 for parts remaining in inventory that are listed in addenda B 

and C. A non-jury trial was held on June 30, 2014, and on July 7, 2014, the 

trial court entered a verdict in favor of Keystone and against Circle, with the 

following relevant findings of fact and conclusions of law.

10. The contract entered into on April 2, 2009 by [Circle] and 

[Keystone] was not modified by Addendums B and C.

11. [Circle] and [Keystone] entered into separate and distinct 

contracts with regard to the parts listed in Addendums B and C. 

12. No evidence was presented by [Circle] to indicate that 

[Keystone] ever agreed to accept and pay for the Addendum B 

and C parts remaining in [Circle’s inventory].

13. [Circle] has failed to prove a breach of the written contract 

dated April 2, 2009 by [Keystone].
J-A14036-15

- 7 -

14. [Circle] has failed to prove its claim based on promissory 

estoppel. 

Findings of Fact, 7/7/2014, at ¶¶ 10-14. 

Circle filed post-trial motions, which were denied, and Circle timely 

filed a notice of appeal. The trial court did not order Circle to file a concise 

statement of errors complained of on appeal, and none was filed.

On appeal, Appellant sets forth four questions for our review. 

1. Did the [trial] court make an error in applying the law 

by failing to find a modification of the original contract?

2. Alternatively, did the [trial] court make an error in 

applying the law by concluding that [Keystone] did not enter into 

a contract with [Circle] requiring purchase of all parts remaining 

in inventory?

3. Did the [trial] court make an error in applying the law 

by concluding [Circle] did not prove promissory estoppel?

4. Was the [trial] court’s verdict against the weight of the 

evidence?

Circle’s Brief at 4 (unnecessary capitalization and suggested answers 

omitted).

Circle’s first three issues challenge the trial court’s denial of its motion 

for judgment notwithstanding the verdict (judgment N.O.V.). 

In reviewing a trial court’s decision whether or not to grant 

judgment in favor of one of the parties, we must consider the 

evidence, together with all favorable inferences drawn 

therefrom, in a light most favorable to the verdict winner. Our 

standard of review when considering motions for a directed 

verdict and judgment notwithstanding the verdict are identical. 

We will reverse a trial court’s grant or denial of a judgment 
J-A14036-15

- 8 -

notwithstanding the verdict only when we find an abuse of 

discretion or an error of law that controlled the outcome of the 

case. Further, the standard of review for an appellate court is 

the same as that for a trial court.

There are two bases upon which a judgment N.O.V. can be 

entered: one, the movant is entitled to judgment as a matter of 

law and/or two, the evidence is such that no two reasonable 

minds could disagree that the outcome should have been 

rendered in favor of the movant. With the first, the court reviews 

the record and concludes that even with all factual inferences 

decided adverse to the movant the law nonetheless requires a 

verdict in his favor, whereas with the second the court reviews 

the evidentiary record and concludes that the evidence was such 

that a verdict for the movant was beyond peradventure.

Lanning v. West, 803 A.2d 753, 756 (Pa. Super. 2002) (quoting Goldberg 

v. Isdaner, 780 A.2d 654, 659-60 (Pa. Super. 2001)) (internal quotations 

and citations omitted). 

The contract at issue is governed by the Uniform Commercial Code 

(UCC) provisions for the sale of goods, codified in Pennsylvania at 13 Pa.C.S. 

§§ 2101-2705. Modification of a contract under the UCC is governed by 

section 2209, and provides, in relevant part, as follows.

***

(b) Writing excluding modification or rescission.--A signed 

agreement which excludes modification or rescission except by a 

signed writing cannot be otherwise modified or rescinded, but 

except as between merchants such a requirement on a form 

supplied by the merchant must be separately signed by the 

other party.

***
J-A14036-15

- 9 -

(d) Ineffective modification or rescission as waiver.--

Although an attempt at modification or rescission does not 

satisfy the requirements of subsection (b) or (c) it can operate 

as waiver.

***

13 Pa.C.S. § 2209.

Relying on the UCC and this Court’s interpretation of these provisions 

in J.W. Goodliffe & Son v. Odzer, 423 A.2d 1032 (Pa. Super. 1980), Circle 

first argues the trial court’s finding that the original contract was not 

modified to add Addenda B and C was error. Circle’s Brief at 11-16. We 

summarize that case as follows.

J.W. Goodliffe involved Odzer, a scrap dealer, and J.W. Goodliffe, a 

supplier of industrial gas. J.W. Goodliffe delivered gas in reusable 

containers, for which it typically charged demurrage (or rental). J.W. 

Goodliffe and Odzer did business for approximately one year pursuant to an 

oral contract, then the parties entered into a written contract. The written 

contract initially contained a provision requiring Odzer “would return the 

cylinders to [J.W. Goodliffe], and would pay demurrage for the late return...”. 

Id. at 1033. Two to three months later, J.W. Goodliffe approached Odzer 

and requested he pay demurrage during the course of the contract. 

Eventually, Odzer agreed orally to do so by passing along the costs to his 

customers. 
J-A14036-15

- 10 -

Odzer paid demurrage for three years; however, upon termination of 

the contract, Odzer did not return the cylinders. J.W. Goodlife instituted a 

breach of contract action against Odzer for, inter alia, gas that was delivered 

and the value of 200 cylinders. Odzer filed a counterclaim for the 

demurrage paid over the course of the contract, asserting that it was 

“improper under the written contract between the parties and had been paid 

in error.” Id. 

This Court analyzed the aforementioned UCC provisions:

It is settled that the Uniform Commercial Code changed 

the law with regard to the oral modification of a contract that by 

its terms requires any modification to be in writing. 

***

When [the aforementioned] provisions are applied to the present 

case, it is evident that section [2209(b)] prevented the 

conversation between [Odzer] and [J.W. Goodliffe] from serving 

as an effective modification of the contract. However, the 

conversation did constitute what is referred to in section 

[2209(d)] as “an attempt at modification.” This attempt, when 

combined with a course of dealing over a period of more than 

three years and hundreds of transactions in which [J.W. 

Goodliffe] charged and [Odzer] paid demurrage, represented a 

waiver. In this regard, section [2208] of the U.C.C. provides that 

when a contract provides for repeated occasions of performance, 

the course of performance is relevant in determining the 

meaning of the contract and the existence of a modification or 

waiver of any term inconsistent with the actual course of 

performance.

Id. at 1034-35. Accordingly, this Court affirmed the judgment of the trial 

court which found in favor of J.W. Goodliffe on Odzer’s counterclaim.
J-A14036-15

- 11 -

Instantly, Circle points to an e-mail from Keystone to Circle requesting 

that “non-Addendum A parts [] be added to the [VMI]” as evidence of an 

attempt at modification. Circle’s Brief at 15; Circle’s Exhibit 25, E-mail from 

Logan to Judge, 9/10/2009. Circle then argues that the subsequent course 

of performance, proven through thousands of pages of invoices for nonAddendum A parts that were paid by Keystone, evidenced a modification of 

the contract. Circle’s Brief at 15. 

Keystone responds that, “[a]t most, there was an offer by [Circle] to 

modify by adding Addenda B and C parts to the contract, in hopes perhaps 

that all key terms of that contract would govern Addenda A, B, and C parts 

equally.” Keystone’s Brief at 13. However, Keystone claims that “offer was 

never accepted to form a binding contract.” Id. 

We agree with Circle that there was clearly an attempt by Circle to 

modify the contract. Thus, applying the law to the facts at issue in this case, 

we must determine whether, pursuant to J.W. Goodliffe, the record 

supports a conclusion that the course of performance between the parties 

operated to modify the contract. 

Keystone offered an alternative explanation about how it purchased 

and paid invoices for non-Addendum A parts. Specifically, it presented 

testimony from Logan that these other parts, namely blue dots, were not 
J-A14036-15

- 12 -

part of a contract; rather, they were ad hoc purchases which were treated 

by Keystone like any other ad hoc purchase from any vendor. 

Q. You mentioned that Circle [] supplied some blue dots outside 

of the VMI?

A. Correct.

Q. How did Keystone distinguish between those parts that were 

purchased pursuant to the VMI and those that were blue dots?

A. Our blue dots we quote out to several different vendors. We 

don’t have any contracts for them at all. Whoever had the 

product and best price is kind of who we would go with. That 

was our usual format.

Q. Drawing your attention back to the e-mail...[4]

A. Yes.

Q. You don’t refer anywhere in there to bidding out these blue 

dots. It just says you wanted them taken over by Circle.

A. This would lead me to believe that we already quoted these 

out.

Q. What was your process for quoting out parts?

A. We would have a parts list. Put it on a PO, and send it out to 

Kalco [ph], B/E, Circle, how many we needed, and wait for them 

to send us a quote back.

***

Q. Would these blue dots have been invoiced separately from 

the VMI?

 

4 This e-mail, dated June 18, 2009, was from Logan to Kondraski, asking “Is 

Circle almost ready to take over all blue dots...?” Circle’s Exhibit 15, E-mail 

from Logan to Kondraski, 6/18/2009.
J-A14036-15

- 13 -

A. Yes.

N.T., 9/20/2011, at 28-29 (footnote added).

This testimony, if believed by the factfinder, supports the finding that 

the course of performance between the parties was that non-Addendum A 

parts were purchased on an ad hoc basis rather than as part of the VMI 

agreement. Thus, record evidence supports the trial court’s finding that 

while Circle made an attempt to modify the VMI agreement, Keystone never 

signed off on the agreement or acted as though it was accepting these parts 

as part of that original agreement. Accordingly, Circle is not entitled to relief 

on this basis. See L.B. Foster Co. v. Charles Caracciolo Steel & Metal 

Yard, Inc., 777 A.2d 1090, 1092-93 (Pa. Super. 2001) (“It is not the role of 

an appellate court to pass on the credibility of witnesses or to act as the 

trier of fact. In a non-jury trial, the factfinder is free to believe all, part, or 

none of the evidence, and the Superior Court will not disturb the trial court’s 

credibility determinations.”) (citation omitted). 

Next, Circle contends that even if the original VMI contract was not 

modified, there was an independent contract for addenda B and C which 

included the term that Keystone would pay for parts remaining in inventory 

in the event of termination. Circle’s Brief at 16-19. Circle relies upon 

Kondraski’s testimony about the industry standard. She testified that as 

part of a VMI, “the standard in the industry is to purchase any remaining 
J-A14036-15

- 14 -

parts in a supplier’s inventory upon termination of a vendor managed bin 

stocking program.” Id. at 19. 

Instantly, the trial court found that indeed Addenda B and C were 

separate contracts. Finding of Fact, 7/7/2014, at ¶ 11. The trial court also 

concluded that those independent contracts did not require Keystone to 

purchase the parts remaining in inventory upon termination of the 

Agreement. Id. at ¶ 15.

Again, this conclusion is supported by the record. We have already 

affirmed, supra, the trial court’s finding that the parts purchased as part of 

addenda B and C were purchased on an ad hoc basis rather than pursuant to 

a VMI agreement. Thus, the industry standard that when parties enter into 

a VMI agreement they agree to purchase parts remaining in inventory is 

inapplicable here because addenda B and C are not VMI contracts. Thus, 

Circle’s argument fails.

Next, Circle argues that the trial court erred in denying its request for 

J.N.O.V. based upon promissory estoppel. Circle’s Brief at 19-21. 

Promissory estoppel is defined by Restatement of 

Contracts (2d)(1979) § 90, which provides in pertinent part: 

§ 90. Promise reasonably inducing Action or 

Forbearance

(1) A promise which the promisor should reasonably 

expect to induce action or forbearance on the part of 

the promisee or a third person and which does 

induce such action or forbearance is binding if 
J-A14036-15

- 15 -

injustice can be avoided only by enforcement of the 

promise. The remedy granted for breach may be 

limited as justice requires.

Kreutzer v. Monterey Cnty. Herald Co., 747 A.2d 358, 361 (Pa. 2000). 

Instantly, Circle argues that 

it is apparent that a promise was made by Keystone, the request 

by Keystone that Circle [] supply non-Addendum A parts to 

Keystone, that this promise induced action by Circle [], the 

purchase of non-Addendum A parts necessary to stock 

Keystone’s facility, that reliance on this promise by Circle [] was 

reasonable as Keystone actually did receive and pay for such 

parts for almost a full year, and that injustice can only be 

avoided by enforcing the promise of Keystone as Circle [] is 

unable to sell these acquired parts to anyone else.

Circle’s Brief at 20.

Again, there is no dispute that Keystone ordered and paid for parts 

delivered by Circle listed on addenda B and C. However, the record supports 

the trial court’s finding that Keystone never induced Circle to keep a supply 

in inventory. Accordingly, Circle is not entitled to relief. 

Finally, Circle contends that it is entitled to a new trial as the verdict is 

contrary to the weight of the evidence. Circle’s Brief at 21-22. “Our 

standard of review of the trial court’s denial of a motion for a new trial is 

deferential and limited to a determination of whether the trial court abused 

its discretion or committed an error of law.” Good v. Holstein, 787 A.2d 

426, 429 (Pa. Super. 2001) (internal citations and quotations omitted).

[O]ur scope of review on a weight of the evidence 

claim is very limited. We will respect the trial court’s 
J-A14036-15

- 16 -

findings with regard to credibility and weight of the 

evidence unless it can be shown that the lower 

court’s determination was manifestly erroneous, 

arbitrary and capricious or flagrantly contrary to the 

evidence.

Gemini Equipment Co. v. Pennsy Supply, Inc., [] 595 A.2d 

1211, 1215 ([Pa. Super.] 1991). Thus, our function is to 

examine the trial court’s exercise of discretion and determine if 

there has been an abuse. We are not free to answer the 

underlying question of whether we believe that the verdict is 

against the weight of the evidence. Rather, we must review the 

court’s findings and reasons in light of the evidence adduced 

only to ensure that the trial judge exercise[d] the duties, yet 

respecte[d] the confines of his or her particular role in the trial 

proceeding. This distinction is a fine one, but a very important 

one; it allows us to correct a palpable abuse of discretion while 

ensuring that we will not substitute our judgment for that of the 

[fact-finder]. 

Hollock v. Erie Ins. Exch., 842 A.2d 409, 417-18 (Pa. Super. 2004) (some 

citations and quotations omitted).

Instantly, our review of the record compiled in this non-jury trial 

reveals that the trial court acted within its discretion in concluding that 

Keystone does not owe Circle for the parts remaining in inventory that are 

listed on addenda B and C. Consequently, we find no merit to Circle’s 

assertion that the trial court acted contrary to the weight of the evidence.

Having concluding that Circle has not presented any meritorious 

argument on appeal, we affirm the judgment.

Judgment affirmed.
J-A14036-15

- 17 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015