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Katz v. Disorb Systems, Inc.
Superior Court of Delaware
July 19, 2019
BERNARD KATZ, Sole Proprietor, d/b/a TELESONIC PACKAGING CORP., Defendant Below/Appellant,
DISORB SYSTEMS, INC. Plaintiff Below/Appellee.
Submitted: May 15, 2019
Appeal from the Court of Common Pleas. AFFIRMED.
Bernard Katz, Sole Proprietor, d/b/a Telesonic Packaging
Corp., Wilmington, Delaware, Defendant Below/Appellant, pro
W. McCullough, Bodell Bove, LLC, Wilmington, Delaware,
Attorney for Plaintiff Below/Appellee DiSorb Systems, Inc.
RICHARD R. COOCH, R.J.
19th day of July, 2019, upon consideration of Appellant's
appeal from the Court of Common Pleas it appears to the Court
1. In July of 2016 DiSorb Systems, Inc. ("Plaintiff)
ordered several commercial packaging machines from Bernard
Katz, Sole Proprietor, d/b/a Telesonic Packaging Corp
("Defendant"). The equipment was designed to
package products in water-soluble plastic film ("PVA
film"). The equipment included specialized machines that
could only be operated in specific climate-controlled
environments. Plaintiff received the shipment of the
equipment in late June and July of 2017. However, the
equipment would not function properly. Defendant attempted to
aid Plaintiff in the efforts to make the equipment operable,
but all efforts failed. Defendant advised Plaintiff that upon
return of the inoperable equipment to Defendant, Plaintiff
would receive a full refund of $24, 682.00. Although
Plaintiff returned the equipment to Defendant, Defendant did
not refund Plaintiff. This lawsuit followed.
2. A bench trial in the Court of Common Pleas was held on
December 17-18, 2018. On January 29, 2019, the Court of
Common Pleas issued a written decision which ruled in favor
of Plaintiff. The Court of Common Pleas found that: (1) a
valid warranty existed at all times relevant which (2)
covered the equipment against defects; (3) that the equipment
was defective; and (4) that the only proper remedy was an
award to Plaintiff of $24, 682.00, plus interest and costs.
On February 5, 2019, Defendant filed this appeal. On appeal
Defendant argues that the Court of Common Pleas erred in
several ways. First, Defendant argues that there was
"language in the [equipment's] warranty that
obviates the requirement that [Defendant] refund any
monies" to Plaintiff. Second, Defendant argues that he
verbally withdrew any offer to refund money to Plaintiff.
Lastly, Defendant contends that the Court of Common Pleas
erred when it placed on Defendant the burden of establishing
that Plaintiffs facility could not maintain the requisite
environmental conditions. Defendant argues that the warranty
language required that Plaintiff must establish that its
facility was capable of running the equipment at the correct
3. On an appeal from a decision of the Court of Common Pleas,
the Superior Court "has the duty to review the
sufficiency of the evidence and to test the propriety of the
findings below." If the Court of Common Pleas' findings
are "sufficiently supported by the record and are the
product of an orderly and logical deductive process, the
Superior Court must accept them, even though, independently,
it might have reached an opposite
conclusion." The Superior Court may only make findings
of fact that contradict those of the Court of Common Pleas
when "the record reveals that the findings below are
clearly wrong and the [Superior Court] is convinced that a
mistake has been made which, in justice, must be
corrected." The Superior Court reviews issues of law
4. This Court finds that the decision of the Court of Common
Pleas is a product of an orderly and logical process, and is
sufficiently supported by the record. The primary issue after
trial was whether the express warranty protected Plaintiffs
loss. The trial court found that there was no
evidence presented to dispute that a one-year warranty was
provided to Plaintiff guaranteeing against defects in
material or workmanship of the equipment, and that the
warranty was applicable at the time of Plaintiffs alleged
loss. Further, the trial court found, and this
Court agrees, that Plaintiff established by a preponderance
of the evidence that that equipment was defective upon
receipt. Defendant admitted in his testimony that he had not
been able to get the equipment to operate with the PVA film,
even when the equipment was at Defendant's facility.
Defendant acknowledged the defects existed by offering
Plaintiff a total refund upon return of the equipment.
5. Defendant's contention that Plaintiff did not
establish compliance with the warranty is without merit.
Plaintiff submitted sufficient evidence to establish by a
preponderance of the evidence that its facility could
maintain the environmental standards the equipment required
to function. Defendant merely made unsupported allegations
that the conditions of Plaintiffs facility could not maintain
the requisite environmental conditions. Defendant did not
offer any evidence to support his allegations. Such
unsupported allegations in no way placed a burden on
Plaintiff to further establish the conditions at its
facility. Without any evidence to the contrary, Plaintiffs
evidence that the environmental conditions were sufficient
stood essentially undisputed.
6. Similarly, Defendant's claim that he retracted his
offer to fully refund Plaintiff is unsupported. Plaintiffs
CEO Mr. McLaughlin testified that Defendant never rescinded
the offer of a full refund, verbally or otherwise. Defendant
could not recall when he rescinded his offer, and admitted
"that he doesn't remember communicating [a
rescission.]"Defendant "merely ensures [sic] that
he must have." As the Court of Common Pleas explained,
Defendant's mere speculation that he must have retracted
the offer is not sufficient evidence to dispute Plaintiffs
testimony that Defendant did not communicate a rescission.
7. Plaintiff met its burden of establishing by a
preponderance of the evidence that there was a valid warranty
which Defendant breached, that Plaintiff followed all
conditions of the warranty, and that Defendant offered a
refund of the purchase price sans rescission. Defendant's
contentions to the contrary were mere speculation. The Court
of Common Pleas was not persuaded by ...
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