The Herald, Sharon, Pa.

Local News

July 24, 2006

Voting machine maker wants suit dismissed

By Jeff Greenburg

MERCER COUNTY — UniLect Corp. is asking a federal judge to dismiss a lawsuit filed by Mercer County that seeks nearly $1 million that county officials claim was lost in the wake of the decertification of UniLect’s Patriot touch-screen voting system.

The Patriot was used in Mercer County for four years before being decertified by the state in April 2005.

David D. Langfitt of the Philadelphia law firm of Montgomery, McCracken, Walker & Rhoads filed the complaint Friday on behalf of the California-based company in U.S. District Court in Pittsburgh.

Neither Langfitt nor Mercer County litigation solicitor Bill McConnell Jr. returned calls seeking comment.

The county’s suit, which was filed in May, alleged a breach of contract and implied warranty and seeks $925,074 in damages. It maintained UniLect promised in the Jan. 25, 2001, contract that its equipment would conform with and perform according to specifications required by the state. And if any programs didn’t meet those specifications, they would be “corrected or replaced by UniLect in a timely manner as mutually agreed.”

UniLect, in its reply, argued the express warranty was only good for one year from the date of sale and since the suit was filed more than five years after the equipment was delivered, the time period for any express warranty had expired.

UniLect also claimed the agreement provided no warranty for performance beyond that time period or that the Patriot would “always meet certification standards” of the state “for the indefinite future.”

“To the contrary, the express warranty states only that the Patriot met those standards ‘as delivered,’ ” UniLect said.

Mercer County’s suit also claimed UniLect promised the system would be good for years and boasted there really was “no end to the life of the product” because bad parts could be replaced. “Certainly 20 to 25 years could be attainable,” the company said.

UniLect countered that provision was actually listed in a section of the contract titled “additional commentary,” not in the warranty section. It isn’t a warranty at all, implied or express, and was taken out of context by the county in its suit, the company said.

“It merely hypothesizes about the useful life of the product if the components of the product are updated and changed,” UniLect argued. “The provision does not warrant future performance or that the Patriot will always meet Pennsylvania certification requirements.”

If the county’s theory of recovery is correct, UniLect said its warranty would be meaningless because it would be the “de facto insurer” to the county for any upgrades to the Patriot that Pennsylvania required it to make in perpetuity.

“The agreement explicitly provides as a remedy solely the express warranty and the extended software maintenance program,” UniLect said. “No other remedy is expressed or implied.”

And on that basis alone, UniLect added the county can’t sue for damages and the claim must be dismissed.

County officials got the legal ball rolling in a Feb. 10 letter formally asking UniLect to comply with its warranty and immediately correct or replace the Patriot system to “ensure the voting system’s recertification and future use by the county.”

In a reply a month later, UniLect said it had “given up its effort to recertify the Patriot” in the state and the county’s system couldn’t be used in any election in the country, rendering the system virtually worthless.

UniLect president Jack Gerbel offered to pay the county $5,000 for it in April, but commissioner Olivia M. Lazor called the offer “an insult.”

UniLect sought and received permission in June to have the case moved to federal court. UniLect had the right to have the case moved under the legal doctrine of “diversity jurisdiction” because it’s based in another state and damages being sought exceed $75,000.

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