Polit v. Grey Flannel Auctions, Inc.

567 F.Supp.3d 505

Anthony POLIT, Plaintiff,

v.GREY FLANNEL AUCTIONS, INC., Defendant.

CIVIL ACTION NO. 3:19-CV-00590

United States District Court, M.D. Pennsylvania.

Signed October 18, 2021

Alexander Basil Russin, Edward J. Ciarimboli, Corey S. Suda, Fellerman & Ciarimboli Law, P.C., Kingston, PA, for Plaintiff.

Evan C. pappas, Tucker Arensberg, P.C., Lemoyne, PA, for Defendant.

MEMORANDUM

KAROLINE MEHALCHICK, United States Magistrate Judge

Before the Court in this breach of contract and consumer protection law action is a Motion for Summary Judgment filed by the Defendant, Grey Flannel Auctions, Inc. ("Grey Flannel"). (Doc. 48). Grey Flannel moves for summary judgment on Plaintiff Anthony Polit's claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), as well as on Polit's breach of contract claim. (Doc. 48, at 1). Furthermore, Grey Flannel moves for summary judgment in its favor on its counterclaim against Polit for breach of contract. (Doc. 48, at 1).

I. BACKGROUND AND PROCEDURAL HISTORY

The following background is taken from Grey Flannel's Statement of Facts. (Doc. 49). The Court will note where a fact is in dispute or where the record does not reflect the statement of fact.

Plaintiff Anthony Polit is an adult individual who resides in Scranton, Pennsylvania. (Doc. 49, ¶ 1; Doc. 51, ¶ 1). Polit is a collector of rare sports memorabilia and occasionally sells items for a profit. (Doc. 49, ¶ 2; Doc. 51, ¶ 2). Before the auction at issue in this case, Polit had participated in several other auctions that involved rare and/or collectable sports memorabilia. (Doc. 49, ¶ 3; Doc. 51, ¶ 3). Polit currently owns approximately 22 rare and collectible sports-related items valued at over five million dollars. (Doc. 49, ¶ 4; Doc. 51, ¶ 4). This collection includes six items that are specifically attributed to Mickey Mantle. (Doc. 49, ¶ 5; Doc. 51, ¶ 5).

Grey Flannel, which has been in operation for approximately 30 years, is a business that offers an internet auction service for personal property, specializing in sports memorabilia. (Doc. 49, ¶ 6; Doc. 51, ¶ 6). Grey Flannel is owned by Richard Russek ("Richard"), his son Michael Russek ("Michael") – who also serves as the Director of Operations – and Michael Rosenbaum, a silent owner. (Doc. 49, ¶ 7; Doc. 51, ¶ 7). As far as its operations are concerned, Grey Flannel enters into consignment agreements with the owner of an item and places that item for auction seeking to sell the item to the highest bidder. (Doc. 49, ¶ 8; Doc. 51, ¶ 8). In terms of Grey Flannel's review of consigned items, it states that its "goal is to offer authentic material."¹ (Doc. 49, ¶ 9; Doc. 49-4, at 22). To generate revenue, Grey Flannel would charge a buyer's premium of up to 20% of the consignment amount. (Doc. 49, ¶ 10; Doc. 51, ¶ 10).

For purposes of attempting to authenticate consigned "elite items," like the item at issue in this case, Grey Flannel would rely on independent research, verifications by the consigner, any letters of opinion that came with the item, and expert reviews. (Doc. 49, ¶ 11; Doc. 49-4, at 23-24; Doc. 49-5, at 10). Regarding expert reviews, in 2018, Grey Flannel's primary in-house authentication expert was Nick Coppola. (Doc. 49, ¶ 12; Doc. 49-4, at 24-25, 27). Grey Flannel asserts that Coppola has been involved with reviewing "[a] lot of the true top tier items ... over the years." (Doc. 49, ¶ 13; Doc. 49-4, at 27). Grey Flannel would also rely on independent experts at companies like Memorabilia Evaluation and Research Services (MEARS), which specializes in the rating and authentication of sports memorabilia, and "sets the standard for game used authentication within the sports memorabilia arena." (Doc. 49, ¶ 14; Doc. 51, ¶ 14). Once Grey Flannel was satisfied that an item was authentic, Grey Flannel would then photograph the item and list it for bid at an auction through the company's website. (Doc. 49, ¶ 15; Doc. 51, ¶ 15). Furthermore, at the conclusion of the relevant auction, Grey Flannel would send the item to the winning bidder. (Doc. 49, ¶ 15; Doc. 51, ¶ 15).

In or around May 2018, and prior to any involvement by Grey Flannel, an unrelated auction company, Heritage Auctions ("Heritage"), considered auctioning the 1954 Mickey Mantle New York Yankees Game-Used and Autographed Home Pinstriped Flannel Jersey (the "Mantle Jersey"), but declined based on their independent review. (Doc. 49, ¶ 16; Doc. 49-4, at 46-47). Polit adds that Heritage and the jersey's owner had internal struggles with how to accurately list the item. (Doc. 51, ¶ 16; Doc. 52, at 37). After Heritage declined to auction the Mantle jersey, the jersey's owner, Richard Angrist, turned to Grey Flannel to consign the item. (Doc. 49, ¶ 17; Doc. 51, ¶ 17).

Grey Flannel characterizes Angrist as "one of the most well-respected collectors" of sports memorabilia, especially New York Yankees’ memorabilia, and had been involved with Angrist in prior transactions. (Doc. 49, ¶ 18; Doc. 49-4, at 40-42). Angrist regularly provides game-used and other baseball memorabilia to the New York Yankees Hall of Fame Museum. (Doc. 49, ¶ 19; Doc. 51, ¶ 19).

In or about 2015, Angrist commissioned a company named MEARS to provide a letter of authenticity for the Mantle Jersey. (Doc. 49, ¶ 20; Doc. 51, ¶ 20). In forming his opinion and rating of the Mantle Jersey, Dave Grob examined the Mantle Jersey's size, manufacturers tagging, construction and style, use and wear signs, and also utilized imagery (or photomatching) analysis. (Doc. 49, ¶ 21; Doc. 49-12, at 3). Grob and MEARS’ opinion regarding the Mantle Jersey was that:

[T]his jersey possesses all the characteristics you would expect to see in a jersey manufactured in the fall of 1953 by Wilson; supplied by McAuliffe and worn by Mickey Mantle in the 1953 World Series as well as the 1954 season. It is assessed as being all original without any alterations or signs of contrived use or wear. To the best of my knowledge and at the time this report was prepared, it is one of two Mickey Mantle New York Yankees jerseys that can be objectively placed to use and wear during a World Series. The other being a 1965 tagged Wilson supplied road jersey that was worn in the 1964 World Series.

The MEARS worksheet and grading criteria provides for 5 categories for which points may be deducted, I found NO reasons to deduct points. As such, the final grade for this jersey bearing hologram #314037 is A10.

(Doc. 49, ¶ 22; Doc. 49-12, at 3-4).

When asked about the degree of certainty and/or assurances that a Letter of Opinion can provide a prospective buyer, Grob stated:

[...] [T]hat degree of certainty belongs to the person who is trying to make a decision on whether or not they wish to buy the uniform or not. From – from my standpoint and how I go about doing my work, I – I list out a series of observations, supporting evidence, and then what opinion it is that I drew from that information.

And I make that available in the body of my work with the idea being that that person who is going to use that work to make an informed decision one way or another sees and considers the things that I did.

(Doc. 49, ¶ 23; Doc. 49-7, at 12).

Also pertaining to the degree of certainty that can be expected of offered "opinions," the listing materials provided by Grey Flannel for the Mantle Jersey advise buyers of the following:

In very few instances can the provenance of game-used items and autographed items be definitely traced to an athlete or an individual, even when a letter from a team or player is provided. The following paragraphs discuss the processes used by Grey Flannel Auctions to authenticate lots in our auction. As a result of those processes, based on the information available to Grey Flannel Auctions, we are very comfortable in stating that "in our opinion" the items in our auction are authentic. However, every lot in this auction will be sold "As Is," no exceptions.

(Doc. 49, ¶ 24; Doc. 49-10, at 5).

On November 16, 2018, Angrist and Grey Flannel entered into an Auctions Consignment Agreement, under which Angrist consigned the Mantle Jersey to Grey Flannel for auction. (Doc. 49, ¶ 25; Doc. 51, ¶ 25). In part, as required under the terms of the Auctions Consignment Agreement, Angrist "guaranteed" that the Mantle Jersey was "genuine and authentic as represented for consignment." (Doc. 49, ¶ 26; Doc. 49-8, at 3).

Before entering into the Auctions Consignment Agreement, Grey Flannel checked the provenance, including the MEARS Letter of Opinion, researched and drafted by Grob which had been commissioned by Angrist and supplied to Grey Flannel. (Doc. 49, ¶ 27; Doc. 49-4, at 63-65, 69). The MEARS Letter of Opinion states that the Mantle Jersey was examined on February 4, 2015. (Doc. 49, ¶ 28; Doc. 49-12, at 2). When he wrote the opinion for the Mantle Jersey, Grob was employed by MEARS. (Doc. 49, ¶ 29; Doc. 51, ¶ 29). Grob later became employed by SGC in or about 2018. (Doc. 49, ¶ 30; Doc. 51, ¶ 30). The Mantle Jersey was given an A10 rating by Grob and MEARS. (Doc. 49, ¶ 31; Doc. 51, ¶ 31). A10 is the highest rating that MEARS gives to an item. (Doc. 49, ¶ 32; Doc. 51, ¶ 32). The A10 rating "signif[ies] that, in [MEARS’] professional opinion, the [reviewed] item is extremely likely to be authentic," but not necessarily so. (Doc. 49, ¶ 33; Doc. 51, ¶ 33).

Polit understood that Grob "reflects the [gold] standard" to the extent that, "when an item is sold with his name on it, it brings a value that shows a trend" and maximum value for the consignor. (Doc. 49, ¶ 34; Doc. 49-1, at 14, 27). Polit also believes that a letter of opinion from Grob holds prominence over other letters of opinion in the industry. (Doc. 49, ¶ 35; Doc. 49-1, at 14). Polit's "rule of thumb" was to "always purchase with Dave Grob's letter, and [ ] do the photo matching if it's not there thereafter," and that he "wouldn't purchase anything without Dave Grob's letter." (Doc. 49, ¶ 36; Doc. 49-1, at 19-21).

As of ...