LIPMAN BROTHERS, INC. v. APPRISE SOFTWARE INC.

Filing 39

MEMORANDUM/OPINION THAT THE MOTION TO DISMISS (DOC. #4) IS GRANTED IN PART AND DENIED IN PART. IN SUM, THE BREACH OF CONTRACT CLAIM GOES FORWARD BECAUSE IT WAS NOT CHALLENGED. THE PENNSYLVANIA UTPCPL CLAIM WILL BE DISMISSED BECAUSE THE PURCHASE WAS FOR BUSINESS PURPOSES. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 7/21/15. 7/22/15 ENTERED AND COPIES MAILED AND E-MAILED. (ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LIPMAN BROTHERS, INC.,
Plaintiff,
v.

CIVIL ACTION
NO. 13-4439

APPRISE SOFTWARE, INC.,
Defendant.

MEMORANDUM
SCHMEHL, J. /s/ JLS

July 21, 2015

Plaintiff has brought several claims related to Defendant’s alleged failure to
provide software that performs as promised. Defendant has moved to dismiss all but the
breach of contract claim. Enforcing the choice of law clause to apply Pennsylvania law as
to all claims, the Court will dismiss the statutory consumer protection claims but permit
the tort and quasi-contract claims to proceed.

Factual and Procedural Background
Plaintiff Lipman Brothers, Inc., is a Tennessee alcoholic beverage distributor. In
2011, Plaintiff began negotiations to have Defendant Apprise Software, Inc., a
Pennsylvania company, provide an “Enterprise Resource Planning” software system for
use in managing multiple aspects of Plaintiff’s business, such as accounting and
inventory.
According to the complaint, Plaintiff gave Defendant a document describing
expectations for the software in early 2012. Representatives of Defendant went to

Nashville to demonstrate Defendant’s pre-built software package; Plaintiff’s
representatives noted certain specific areas of difficulty and importance in the business’s
operations, and Defendant’s people assured Plaintiff that Defendant’s system could
handle those issues with minor adjustments. The only exception was Plaintiff’s needs for
a “bill and hold” system, and after further negotiations the parties agreed to a separate
cost for “bill and hold” customization.
Plaintiff also alleges Defendant’s representative subsequently asserted that,
despite Plaintiff’s reservations, it was standard industry procedure to require final
payment when the system was installed but before it would go live, and that the system
would nevertheless be operational by the time of the final payment with only minor fine
tuning left to do. Plaintiff alleges that these assertions turned out to be false.
In May of 2012, the parties executed a Sales Agreement that lists pricing for a set
number of users for certain modules of Defendant’s pre-built software package, plus firstyear software maintenance and some other minor aspects, and the separate cost of the
“bill and hold” customization. The sales agreement contains very few terms of its own
but appears to incorporate by reference the terms and conditions of separate agreements
between the parties. At the same time, the parties entered into those separate agreements,
most notably the End-User License Agreement, which is considerably more detailed and
contains various provisions of the sort typically seen in major contracts. The relevant
terms will be set forth as they arise in the discussion below.
After signing the contracts, Plaintiff engaged a consultant to review its operations.
The consultant made some recommendations related to the software project, though
Plaintiff alleges there was no material impact. Defendant then made its own follow-up

2

review of Plaintiff’s operation, which revealed some concerns; Plaintiff alleges both that
Defendant had previously said these concerns were not a problem for the pre-built
software package and that Defendant still maintained the concerns would not affect the
timeline. Following these reviews, Defendant indicated it was time to install the system.
Plaintiff consented and consequently made the final payment.
A month later, Defendant informed Plaintiff that a variety of changes would have
to be made to finish the project, at an additional cost of potentially more than double the
original contract price. Completion would also be delayed by a year. Plaintiff alleges no
working software system has been delivered in accordance with the contract or other
representations.
As a result Plaintiff filed this suit, bringing claims for fraud, negligent
misrepresentation, breach of contract, violation of the Tennessee Consumer Protection
Act, violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law,
and unjust enrichment. Defendant moved to dismiss all but the contract claim.

Pennsylvania Consumer Protection Law Claim
At a conference in this matter, counsel for Plaintiff essentially conceded there is
no viable claim under the Pennsylvania UTPCPL because Plaintiff bought the software
for business and commercial, rather than consumer, purposes. See 73 Pa. Cons. Stat. Ann.
§ 201-9.2 (West) (“Any person who purchases or leases goods or services primarily for
personal, family or household purposes . . . may bring a private action . . . .”); Balderston
v. Medtronic Sofamor Danek, Inc., 285 F.3d 238, 242 (3d Cir. 2002). The Court agrees,
and the claim will be dismissed without further discussion.

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Fraud, Negligent Misrepresentation, and Unjust Enrichment Claims
The analysis in this case must begin with choice of law. The choice of law
question has some special issues with regard to the Tennessee Consumer Protection Act
claim, which will be addressed separately below. But the parties also dispute the choice
of law, and particularly the scope and enforceability of the contractual choice of law
provision, as to the tort and quasi-contract claims. “A federal court exercising diversity
jurisdiction must apply the choice of law rules of the forum state.” Kruzits v. Okuma
Mach. Tool, Inc., 40 F.3d 52, 55 (3d Cir. 1994) (citing Klaxon Co. v. Stentor Electric
Mfg. Co., 313 U.S. 487, 497 (1941)). “Pennsylvania courts generally honor the intent of
the contracting parties and enforce choice of law provisions in contracts executed by
them.” Id.
The contractual provision appears in the End User License Agreement, 1 and as
noted above it does appear to be incorporated into the Sales Agreement:
8.3

Governing Law.

This Agreement shall be governed,

construed, and enforced in accordance of [sic] the laws of the
Commonwealth of Pennsylvania, USA. Both parties agree to personal
jurisdiction therein, and agree that any suit brought to enforce this
Agreement or based on this Agreement or the business relationship
between the parties will be brought in the closest applicable court to
Bethlehem, Pennsylvania, USA.

1

Nearly identical language appears in the Software Maintenance Agreement, though it does not include the
“Governing Law” heading.

4

Plaintiff argues that because the first sentence of this section, clearly about choice of law,
refers only to the Agreement itself, it does not cover the fraud and other claims outside
the contract. Defendant argues the first sentence should be read in conjunction with the
second, which applies more broadly to “any suit . . . based on . . . the business
relationship between the parties,” though it seems to refer to forum selection rather than
choice of law. The broad language of the second sentence certainly covers all claims in
this suit, as there is no question they all arise from the business relationship of the parties.
See Jiffy Lube Int'l, Inc. v. Jiffy Lube of Pennsylvania, Inc., 848 F. Supp. 569, 576 (E.D.
Pa. 1994) (“Contractual choice of law provisions, however, do not govern tort claims
between contracting parties unless the fair import of the provision embraces all aspects of
the legal relationship.” (emphasis added)).
The question, then, is whether the second sentence’s broad language applies to
choice of law rather than just forum selection. 2 Defendant cites a case featuring a very
similar provision in which the court did interpret the two sentences together, including
choice of law in the broader language. See PTI Servs., Inc. v. Quotron Sys., Inc., No.
CIV. A. 94-2068, 1995 WL 241411, at *8-9 (E.D. Pa. Apr. 19, 1995). The clause there
read:
D. Governing Law. This Agreement is made and entered into [in] the State
of New York and shall be governed by the laws of that State. The parties
hereby consent and submit to the jurisdiction of the state courts of New
2

There would also be some limited basis on which to hold that the first sentence standing alone covers tort
claims outside the contract even though it refers to the agreement itself. See, e.g., Whitesell Corp. v.
Whirlpool Corp., No. 1:05-CV-679, 2009 WL 3270265, at *2 (W.D. Mich. Oct. 5, 2009) (enforcing choice
of law clause as to tort claims where the clause “provide[d] that the 2002 [Strategic Alliance Agreement]
‘shall be governed in all respects, including validity, interpretation and effect’ by the laws of Michigan.”).
It is more appropriate, however, to recognize that the first sentence is restricted to claims directly based on
“This Agreement.” See Jiffy Lube, 848 F. Supp. at 576.

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York and the Federal courts located therein with respect to the
adjudication of any matter arising hereunder.
Id. at *8 (alteration in original). The court did not expressly consider the possibility that
the second sentence referred to forum selection rather than choice of law, but found the
provision clearly included tort claims within the choice of New York law. Id. at *8-9. 3
It is worth noting that the agreement in the present case does not include a
provision, seen in some contracts, holding that headings should be ignored in
interpretation of the contract. As such, the Court will follow PTI Services in reading the
broad language contained in the second sentence of the section labelled “8.3 Governing
Law” to express a contractual choice of Pennsylvania law with respect to “any suit . . .
based on . . . the business relationship between the parties,” including related tort and
quasi-contract claims. The Court will enforce this contractual choice and conduct its
analysis under Pennsylvania law. 4
Moving to the gist of the action doctrine, the Pennsylvania Superior Court and
federal courts applying Pennsylvania law operate under a well established assumption
that Pennsylvania would employ this doctrine to “preclude[] 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). “[T]he gist of the action test requires the
court to determine from the complaint the essential nature of the claim alleged by

3

In SKF USA Inc. v. Okkerse, 992 F. Supp. 2d 432 (E.D. Pa. 2014), the court enforced choice of law based
on contract language reading: “[a]ny disputes arising under this Agreement shall be tried in the courts
sitting within the Commonwealth of Pennsylvania.” Id. at 448 n.8. However, the court was focused on the
breadth of the language vis-à-vis tort claims, and it is not clear whether the court considered that the
language might cover only forum selection rather than choice of law.
4
Note that the ultimate outcome might well be the same in some respects even if the Court viewed the noncontractual claims under Tennessee law. While Plaintiff makes a strong case for a true conflict between
Pennsylvania and Tennessee as to the gist of the action doctrine, for reasons discussed below, the Court
will decline to dismiss the tort claims even under Pennsylvania law.

6

distinguishing between contract and tort claims on the basis of [the] source of the duties
allegedly breached; if the claim essentially alleges a breach of duties that flow from an
agreement between the parties, the claim is contractual in nature, whereas if the duties
allegedly breached were of a type imposed on members of society as a matter of social
policy, the claim is essentially tort-based.” Caudill Seed & Warehouse Co. v. Prophet 21,
Inc., 123 F. Supp. 2d 826, 833 (E.D. Pa. 2000), on reconsideration in part sub nom., 126
F. Supp. 2d 937 (E.D. Pa. 2001). If the non-contract claims are “inextricably intertwined”
with and basically duplicative of the contract claims,” then the gist of the action sounds in
contract, and the plaintiff may not pursue linked tort claims; if, on the other hand, the
contract is merely collateral to the tort claims, the tort claims may go forward. Id. at 14,
21. “Application of this doctrine frequently requires courts to engage in a factually
intensive inquiry as to the nature of a plaintiff's claims,” Addie v. Kjaer, 737 F.3d 854,
868 (3d Cir. 2013), and “caution should be exercised in determining the gist of an action
at the motion to dismiss stage,” Caudill Seed, 123 F. Supp. 2d at 834.
The fraud and misrepresentation claims Plaintiff raises here are separate from,
rather than intertwined with, the contract. The primary reason for this is that the contract
as written focuses on delivery of certain products and says extremely little about the
capabilities or expectations for those products or about any associated service aspects of
the relationship. Several software cases, cited by Defendant because they were held to
sound in contract, are distinguishable in this respect; the opinions do not expressly recite
the contractual provisions but do indicate that the terms more explicitly covered services
and failures to create and provide software that worked as represented. In Amsan, LLC v.
Prophet 21, Inc., No. CIV. A. 01-1950, 2001 WL 1231819 (E.D. Pa. Oct. 15, 2001), the

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parties “entered into an agreement to purchase the software according to certain
specifications,” and “full integration with the Prophet 21 back-end database [was]
required under the dictates of the Licensing Agreement.” Id. at *4 (emphasis added). In
Caudill Seed, the plaintiff “signed an agreement . . . to buy software that worked, and the
software (allegedly) did not work,” so “[t]he fraud claim turn[ed] on the sufficiency of
defendant’s performance under the terms of the licensing agreement.” 123 F. Supp. 2d at
833. In, KSM Associates, Inc. v. ACS State Healthcare, LLC, No. CIV.A. 05-4118, 2006
WL 847786, (E.D. Pa. Mar. 30, 2006), the letter of intent at issue was the prologue to a
services agreement and contained specific service- and project-oriented provisions
regarding the hiring of necessary staff as well as planning and development activities. Id.
at *1. As such, the court was able to conclude that the alleged failure to produce software
that met expectations and accorded with prior representations of the developer’s skill and
experience breached a “duty to properly perform system development services and create
workable software” that “was embodied in the LOI signed by the parties.” Id. at *3.
Here, aside from one element of customization (the “bill and hold” system) and
some separate software maintenance to be performed after the system was installed, the
agreements are about the purchase of enumerated products and do not touch on
development services or the software’s functionality. The essential nature of the situation
is not “defendant contracted to perform certain services and failed to perform them
because it was, contrary to representations, incapable of doing so”; in that case, the
contractual remedy for failure to perform as agreed would likely be comprehensive, and
the duty sued upon would be the duty to perform imposed by the contract. Rather, the
situation here is more akin to “defendant contracted to provide certain products, and then

8

provided those products, but the products are not what plaintiff needed despite
defendant’s misrepresentations that the products would in fact be what plaintiff needed”;
in this formulation, the contract does not really have anything to say about the wrong
alleged because it tells us what the products are, not what they can do, but there may be a
violation of a socially-imposed duty not to lie about a product’s quality or suitability in
order to get someone to buy it.
Defendant’s suggestion that the Sales Agreement actually does say something
about the products’ ability to handle Plaintiff’s needs simply because it lists off several
pre-built software modules, the names of which (“General Ledger,” “Accounts Payable,”
etc.) refer to different business processes, is very nearly preposterous. This is just a list of
the items being purchased. Across three separate agreements, just about the only
representation of what the products will do is a warranty that “the Apprise Programs will
materially conform in accordance with the applicable documentation for a period of 90
days,” which at least at this stage of the case has little or no definite informational
content. These agreements are very spare documents, particularly with respect to the
nature and capabilities of the products and any related service aspects. Those issues were
allegedly discussed separately, outside the contract, which refers to simply buying the
products. Accordingly, the tort claims in this case are not barred by the gist of the action.
The lack of reference to capability and service issues in the contract means the
parol evidence rule does not bar Plaintiff’s non-contractual claims either. “Once a writing
is determined to be the parties' entire contract, the parol evidence rule applies and
evidence of any previous oral or written negotiations or agreements involving the same
subject matter as the contract is almost always inadmissible to explain or vary the terms

9

of the contract.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436-37 (Pa.
2004). Courts have broken out the two parts of that rule: “(1) that the written agreement
‘contains terms which directly deal with the subject matter of the alleged oral
representation; and (2) represents the entire contract between the parties, particularly
where the written agreement also contains an integration clause.’” Palermo Gelato, LLC
v. Pino Gelato, Inc., No. 2:12-CV-00931, 2013 WL 3147312, at *4 (W.D. Pa. June 19,
2013) (quoting Atlantic Pier Assocs., LLC v. Boardakan Rest. Partners, 647 F.Supp.2d
474, 486 (E.D.Pa. 2009)). Courts have taken “a rather relaxed view of the ‘same subject
matter’ requirement,” id. at *5, but by the same reasoning described with respect to the
gist of the action (the agreement focuses on pre-made software products rather than
software development services and contains virtually no terms concerning the
functionality of the software), the Court is not convinced at this stage that the agreement
in this case concerns the same subject matter as the alleged misrepresentations.
The second requirement for application of the parol evidence rule is also
questionable because the integration clause here is less than conclusive. The provision, in
both the License Agreement and Software Maintenance Agreement, reads:
The parties acknowledge that each has read this Agreement, understand it,
and agree to be bound by its terms. The parties further agree that this
Agreement is the complete and exclusive statement of the Agreement
between the parties and supersedes all proposals (oral or written),
understandings, representations, conditions, warranties, covenants, and all
other communications between the parties relating to the Apprise Code
and documentation. (emphasis added)

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This reference to the “Apprise Code and documentation” is somewhat odd. As noted
above, it is not entirely clear to the Court at this point what the “documentation” is. More
importantly, “Apprise Code” is a defined term under the License Agreement, meaning
“the computer programming code of the Apprise Programs provided under this
Agreement which could include source code, object code as well as the associated objects
such as image, help, report and database files.” It is not clear why the integration clause
would relate to this narrower term rather than, say, the broader “Apprise Programs,”
defined as “the software, programs, and Derivative Works provided to the End-User
under this Agreement.” Maybe it is a mistake or perhaps the parties did not see it as a
significant difference, but the clause could be read to disclaim prior representations
specifically about the code itself but not more general representations about the overall
functionality of the software. Because the contract does not clearly address the relevant
subject matter and its integration is uncertain, the parol evidence rule does not warrant
dismissal of the non-contract claims at this stage.
The unjust enrichment claim is permissible at this stage as well for similar
reasons. See Suburban Transfer Serv., Inc. v. Beech Holdings, Inc., 716 F.2d 220, 226-27
(3d Cir. 1983) (stating that at least under New Jersey law, “[q]uasi-contract liability will
not be imposed, however, if an express contract exists concerning the identical subject
matter” (emphasis added)); Rizzo v. MSA, Inc., No. 06 CV 3330, 2010 WL 9597511, at
*8 (Pa. Com. Pl. Nov. 5, 2010), (“Since Rizzo's unjust enrichment claim concerns
additional work that was performed outside any promises made in the MSA–Rizzo
Agreement, the existence of a written contract between MSA and Rizzo does not
preclude Rizzo from recovering on his unjust enrichment claim.” (citing Ruthrauff, Inc. v.

11

Ravin, Inc., 914 A.2d 880, 893 (Pa. Super. Ct. 2006))), aff'd, 32 A.3d 830 (Pa. Super. Ct.
2011), and aff'd, 32 A.3d 830 (Pa. Super. Ct. 2011). Moreover, the rules simply permit
alternative pleading at this stage. See Fed. R. Civ. P. 8(d)(3); Alpha Pro Tech, Inc. v.
VWR Int'l LLC, 984 F. Supp. 2d 425, 445-46 (E.D. Pa. 2013).

Tennessee Consumer Protection Act Claim
Reiterating from above, the Court applies Pennsylvania choice of law rules,
including Pennsylvania’s inclination to enforce choice of law clauses, see Kruzits, 40
F.3d at 55, and finds the parties here did contractually choose Pennsylvania law, even for
non-contract claims. But Plaintiff argues that the Tennessee Consumer Protection Act
actually prohibits avoiding its application by use of a choice of law clause:
Any provision in any agreement or stipulation, verbal or written,
restricting jurisdiction or venue to a forum outside this state or requiring
the application of the laws of another state with respect to any claim
arising under or relating to the Tennessee Consumer Protection Act of
1977 and related acts set forth in this title is void as a matter of public
policy.
Tenn. Code Ann. § 47-18-113(b) (West).
The limited case law available mainly supports straightforward application of this
clear language. See Walker v. Frontier Leasing Corp., No. E200901445COAR3CV, 2010
WL 1221413, at *5 (Tenn. Ct. App. Mar. 30, 2010) (citing § 47-18-113(b) and stating
that “it could not be clearer that such contractual provisions cannot defeat the ability of a
Tennessee consumer to bring an action under the TCPA . . . . Thus, if we ultimately

12

conclude the complaint states a cause of action under the TCPA, we will be compelled to
hold that the choice of law and choice of forum do not operate to bar [the plaintiffs’]
ability to prosecute this case in the trial court.”); Rutherford Farmers Coop. v. MTD
Consumer Grp., Inc., 124 F. App'x 918, 920 n.2 (6th Cir. 2005) (“Under Tennessee Code
Annotated sections 47-25-1312 and 47-18-113, we do not enforce the contract's Ohio
choice-of-law provision but instead apply Tennessee law . . . .”). The opinion in Encore
Medical, L.P. v. Jay Kennedy, D.C., No. CIV.A. 3:12-58, 2013 WL 839838 (W.D. Pa.
Mar. 6, 2013), addresses the issue and does its best to understate the strictness of the
statutory provision by arguing that the TCPA only applies to the wrongdoing of persons
who are themselves located in Tennessee. See id. at *30. But that sentence of the statute
seems to refer specifically to action taken by the Tennessee attorney general. See Tenn.
Code Ann. § 47-18-113(b). The TCPA generally may only apply to conduct that occurs
within Tennessee, see Encore Med., 2013 WL 839838, at *30-31, but at least some of the
misrepresentation alleged in the present case occurred during a visit by Defendant’s
representatives to Nashville. Defendant is correct that Plaintiff’s primary citation,
Wendy's of Bowling Green, Inc. v. Marsh USA, Inc., No. 3-10-1043, 2012 WL 370486,
(M.D. Tenn. Feb. 3, 2012), is not really on point because the choice of law language there
clearly did not cover non-contract claims, but the case does cite the above statutory
section as basic authority for applying Tennessee law to the claims not covered by the
choice of law clause. See id. at *2. Two other cases cited by Defendant do not actually
address the statutory provision at issue. See Tritt v. Category 5 Records, LLC, 570 F.
Supp. 2d 977, 980-81 (M.D. Tenn. 2008); B.J. Tidwell Indus., Inc. v. Diversified Home

13

Products, Inc., No. SA-06-CA-264-FB, 2008 WL 559546, at *5 (W.D. Tex. Jan. 29,
2008).
Even assuming the TCPA operates as written to void choice of foreign law,
though, Pennsylvania courts are not absolutely required to follow Tennessee’s laws. The
Supreme Court has “held that the Full Faith and Credit Clause does not compel ‘a state to
substitute the statutes of other states for its own statutes dealing with a subject matter
concerning which it is competent to legislate.’” Franchise Tax Bd. of California v. Hyatt,
538 U.S. 488, 494 (2003) (quoting Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988)).
See also Klaxon, 313 U.S. at 498 (“Nothing in the Constitution ensures unlimited
extraterritorial recognition of all statutes or of any statute under all circumstances.”).
Pennsylvania is surely competent to legislate regarding consumer protection and whether
to prohibit related choice of law clauses, so Tennessee cannot force Pennsylvania to
apply its consumer protection law simply by including a statutory provision that voids
contractual choice of law.
Would Pennsylvania courts nevertheless choose to follow the Tennessee statute
and override the contractual choice of law? In addition to a general policy of enforcing
choice of law clauses, Pennsylvania applies Restatement (Second) of Conflict of Laws §
187:
(1) The law of the state chosen by the parties to govern their contractual
rights and duties will be applied if the particular issue is one which the
parties could have resolved by an explicit provision in their agreement
directed to that issue.

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(2) The law of the state chosen by the parties to govern their contractual
rights and duties will be applied, even if the particular issue is one which
the parties could not have resolved by an explicit provision in their
agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or
the transaction and there is no other reasonable basis for the
parties' choice, or
(b) application of the law of the chosen state would be contrary to
a fundamental policy of a state which has a materially greater
interest than the chosen state in the determination of the particular
issue and which, under the rule of § 188, would be the state of the
applicable law in the absence of an effective choice of law by the
parties.
See Kruzits, 40 F.3d at 55; Schifano v. Schifano, 471 A.2d 839, 843 n.5 (Pa. Super. Ct.
1984). As for part (1), there is some circularity here because the “particular issue” in
question is the availability of the TCPA claim; if Tennessee law applies, the parties are
not permitted to avoid the TCPA by an explicit provision in their agreement, but if
Pennsylvania law applies, they may do so. So part (1) does not clearly resolve the
question. Under part (2)(a), both states have substantial relationships to the parties and
transaction. So under (2)(b), Pennsylvania would enforce the contractual choice and
apply Pennsylvania law unless Tennessee 5 has a contrary fundamental policy and a
materially greater interest. Tennessee’s policy of voiding choice of law with respect to
5

Assuming for sake of argument that Tennessee would be the state of applicable law in the absence of an
effective contractual choice, either because of the TCPA provision voiding choice of law or the test of
Restatement (Second) of Conflict of Laws § 188.

15

consumer protection claims probably is fundamental. See New England Surfaces v. E.I.
du Pont de Nemours & Co., 546 F.3d 1, 10 (1st Cir.) (addressing similar issues with
regard to Connecticut’s Franchise Act), decision clarified on denial of reh'g, 546 F.3d 11
(1st Cir. 2008). But Tennessee does not appear to have a materially greater interest.
Tennessee law protects Plaintiff, a Tennessee company, but Pennsylvania law protects
Defendant, a Pennsylvania company. Pennsylvania generally prefers to enforce
contractual choice of law, has not chosen to vary that policy in the consumer protection
context, and has also decided not to subject potential Pennsylvania defendants to
consumer protection claims brought by commercial entities rather than proper consumers.
This Court concludes that Pennsylvania would not enforce this foreign statute and would
instead enforce the parties’ contractual choice. So Pennsylvania law does apply in this
case despite the TCPA provision, and therefore no TCPA claim is available.

Conclusion
In sum, the breach of contract claim goes forward because it was not challenged.
The Pennsylvania UTPCPL claim will be dismissed because the purchase was for
business purposes. The fraud and negligent misrepresentation claims survive because
neither the gist of the action doctrine nor the parol evidence rule bars them, at least not at
this stage. The unjust enrichment claim will not be dismissed because it may cover issues
outside the contract and Plaintiff is permitted to plead in the alternative. Finally, the
TCPA claim fails because Pennsylvania law applies.

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