NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 05-5239/06-1434

V A N A L T ELECTRICAL CONSTRUCTION INC,

Appellee/Cross-Appellant

v. S E L C O MANUFACTURING CORPORATION,

Appellant/Cross-Appellee

O n Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

(D .C . No. 03-cv-06741)

D is tric t Judge: Honorable Ronald L. Buckwalter

A rg u e d March 27, 2007

B e f o re : FISHER, JORDAN and ROTH, Circuit Judges

(F ile d : May 8, 2007)

M a s o n Avrigian, Jr. [ARGUED]

J e f fre y P. Wallack

W is le r, Pearlstine, Talone, Craig,

Garrity & Potash

4 8 4 Norristown Road - #100

B lu e Bell, PA 19422

Counsel for Appellee/Cross-Appellant

S te p h e n R. Knox [ARGUED] M ic h a el T. Hensley W ils o n , Elser, Moskowitz, Edelman & Dicker 3 3 Washington Street - 17 th Fl.

N e w a rk , NJ 07102 Counsel for Appellant/Cross-Appellee O P IN I O N OF THE COURT J O R D A N , Circuit Judge.

In this contract case, Selco Manufacturing Corp. ("Selco") appeals from a ju d g m e n t of the United States District Court for the Eastern District of Pennsylvania, e n ter e d on October 26, 2005 following a jury trial, against Selco in favor of Vanalt E lec trica l Construction, Inc. ("Vanalt") in the amount of $300,000. Vanalt cross-appeals f r o m the District Court's order, entered on December 15, 2005, denying Vanalt's request f o r prejudgment interest.

F o r the reasons that follow, we will vacate the judgment against Selco and remand f o r a new trial to determine whether Vanalt may recover damages in this case and, if so, in what amount.

I.

In September 2000, Vanalt entered into a contract with PKF-Mark III, Inc., a g re e in g to perform electrical work on a project for the Southeastern Pennsylvania T ra n sp o rta tio n Authority ("SEPTA"). Vanalt turned to Selco in June 2001 for a price q u o te on multi-outlet underground cable connectors for the SEPTA project. Selco sent th e quote to Vanalt on June 20, 2001. By March 2002, SEPTA had approved the use of S e lc o 's connectors, and, on March 12, 2002, Vanalt sent a purchase order to Selco for 73 c o n n e cto rs at a total price of $54,906. The purchase order confirmed that the parties had a g re e d on the specifications for the connectors, including the crucial specification that the c o n n e cto rs "shall be pre-insulated, watertight and submersible." Selco started supplying th e connectors in June 2002, and all the connectors were installed by Vanalt between June a n d November 2002.

Vanalt tested the system containing the installed connectors for the first time in N o v e m b e r 2002. Essentially every segment of the system failed. Vanalt notified Selco of th e test results on December 9, 2002, contending that pin-holes in the insulation caused th e connectors to fail in a wet environment. Vanalt's efforts to have Selco take re sp o n s ib ility for resolving the problems with the connectors were not successful and, u n d e r pressure to meet its contractual obligations on the SEPTA project, Vanalt decided to fix the connectors itself. By August 2003, the connectors were satisfactory.

After Selco refused to pay Vanalt for the costs associated with fixing the c o n n e cto rs , Vanalt filed suit in the United States District Court for the Eastern District of P e n n sylv a n ia on December 16, 2003, claiming that Selco had breached its contract, its e x p re ss warranty that the connectors would be watertight and submersible, and its implied w a rra n ty that the connectors would be fit for a particular purpose. At trial in October 2 0 0 5 , the jury found in favor of Vanalt on all three claims and awarded $300,000 in d a m a g e s . The District Court thereafter denied Vanalt's request for prejudgment interest.

Selco appeals from the judgment entered by the District Court pursuant to the jury's v e rd ict. Vanalt cross-appeals on the order denying prejudgment interest.

T h e District Court had subject matter jurisdiction over this case pursuant to 28 U .S .C . § 1332. We have jurisdiction to review the District Court's judgment and order p u rs u a n t to 28U.S.C. § 1291.

II.

S e lc o argues that the District Court erred during the trial by ruling as a matter of law that the contract between Selco and Vanalt did not include terms that limited Selco's lia b ility for consequential damages arising from the connectors. Selco argues, and we a g r e e , that the District Court's ruling was in effect a judgment as a matter of law against S e lco on the affirmative defense that it had limited its liability by adding certain terms to th e contract.1 Our review of the District Court's ruling is therefore plenary. Villanueva v. B ro w n , 103 F.3d 1128, 1133 (3d Cir. 1997). We must determine "whether, viewing the e v id e n c e in the light most favorable to the losing party, no jury could decide in that p e rs o n 's favor." Id. Having viewed the evidence in that light, we conclude that whether S e lco had communicated to Vanalt terms that limited Selco's liability and whether Vanalt a c c e p te d those terms are questions of fact that must be decided by a jury.

S e lc o presented evidence that its standard contract terms and conditions state that S e lco "will not allow or be liable, under any circumstances, for any special, incidental, in d ire c t or consequential damages of claims arising from the supply or use of any material f u rn is h e d by it." Vanalt presented evidence that it never received the document c o n tain in g that language and so the limitation on liability was not part of its contract with S e lco . In response, three Selco employees testified that it was Selco's standard policy to a tta c h the document to every quote it submitted.

The District Court ruled that, even viewing the evidence in the light most favorable to Selco, no jury could conclude that the document was part of the contract. We must d is a g re e . According to Federal Rule of Evidence 406: E v id e n c e of the habit of a person or of the routine practice of an o rg a n iz a tio n , whether corroborated or not and regardless of the presence of e ye w itn e ss e s, is relevant to prove that the conduct of the person or o rg a n iz a tio n on a particular occasion was in conformity with the habit or ro u tin e practice. F e d . R. Evid. 406. Here, the testimony of Selco's employees regarding Selco's routine p ra c tic e is relevant evidence that Selco acted in conformity with that practice by tra n s m ittin g to Vanalt the document containing the limitation on liability. See Envirex, In c . v. Ecological Recovery Assocs., Inc., 454 F. Supp. 2d 1329, 1333 (M.D. Pa. 1978), a ff'd 601 F.2d 574 (3d Cir. 1979) (concluding that evidence of routine business practice w a s relevant to show that a document was part of a contract). When we view the ev iden ce in the light most favorable to Selco, as we must, we cannot conclude that no jury c o u ld have accepted Selco's evidence that its standard terms were sent to Vanalt and that V a n a lt accepted them as part of the contract. The District Court thus erred by not s u b m ittin g those factual issues to the jury.

I I I.

S e lc o also argues that the District Court erred by instructing the jury that Selco b o re the burden of proof as to whether Vanalt provided reasonable notice to Selco of the b re a ch , as required by 13 Pa. Cons. Stat. § 2607. "[O]ur review is plenary when the issue is whether the instructions misstated the law." Armstrong v. Burdette Tomlin Mem'l H o s p ., 438 F.3d 240, 245 (3d Cir. 2006). We agree with Selco that the District Court's in stru c tio n on this point was incorrect.

S e lc o 's sale of goods to Vanalt is governed by Pennsylvania's enactment of the U n if o rm Commercial Code ("UCC"), 13 Pa. Cons. Stat. § 1101, et seq. According to that s ta tu te , a buyer that has accepted goods under a contract "must within a reasonable time a f te r he discovers or should have discovered any breach notify the seller of breach or be b a rre d from any remedy." 13 Pa. Cons. Stat. § 2607(c)(1) (Pennsylvania enactment of U C C § 2-607(c)(1)). At trial, Selco argued that Vanalt failed to provide reasonable n o tic e . Selco alleges it did not hear of any problem with the connectors for more than f iv e months after beginning the deliveries of them in June 2002. On this issue, the D is tric t Court instructed the jury that "[t]he buyer must, within a reasonable time, provide th e seller with notice of the problem and thereby provide the seller with a reasonable time a n d opportunity to cure the breach." The Court stated that the issue of notice and o p p o rtu n ity to cure was a defense on which "the defendant bears the burden of proof." 2 T h e District Court's instructions set forth a requirement for the buyer to give the s e lle r reasonable notice of a defect, as well as a requirement for the buyer to give the s e lle r a reasonable time to cure the defect. One of the challenges in this case is finding th e legal basis for requiring Vanalt to give Selco an opportunity to cure. The District C o u rt was apparently guided by the parties' proposed jury instructions, which stated that th e seller must be given a reasonable time to cure.3 The parties supported that part of th e ir proposed instructions 4 with citations to Sections 2508 and 2607 of the Pennsylvania U C C and four cases that interpret the requirements of Section 2508.5 Thus, the parties im p ly that the opportunity-to-cure requirement arises from either Section 2508 or Section 2 6 0 7 . The difficulty here is that neither section appears to impose that requirement in a c a s e such as this.

If the buyer rejects goods as nonconforming, Section 2508 provides the seller with a n opportunity to cure the nonconformity if the time for performance under the contract h a s not expired or if the seller had reasonable grounds to believe the nonconformity w o u ld be acceptable. 13 Pa. Cons. Stat. § 2508.6 However, that opportunity-to-cure re q u ire m e n t only applies when the buyer has rejected the goods. Here, during the failed attem p ts to resolve the nonconformity, Vanalt made it clear to Selco that the connectors h a d been paid for and were SEPTA's property. Rather than returning the connectors to S e lc o , Vanalt fixed the connectors itself. Selco acknowledges that "[i]t is undisputed that V a n a lt accepted Selco's goods." Selco Opening Brief at 47. Since it is thus clear that V a n a lt did not reject the connectors, Section 2508 does not apply.

S e c tio n 2607, on the other hand, applies when the buyer alleges a breach related to g o o d s that have been accepted. Again, a buyer that has accepted goods "must within a re a so n a b le time after he discovers or should have discovered any breach notify the seller o f breach or be barred from any remedy." 13 Pa. Cons. Stat. § 2607(c)(1). However, w h ile a Comment accompanying Section 2607 states that such notice may "open[] the w a y for normal settlement through negotiation," 13 Pa. Cons. Stat. § 2607, Official C o m m e n t No. 4, the statute does not, by its terms, require the buyer, having given notice, to allow the seller additional time to cure the defect. The same Comment states that " [ t]h e content of the notification need merely be sufficient to let the seller know that the tra n sa c tio n is still troublesome and must be watched." Id. Thus, Section 2607 simply re q u ire d Vanalt to give reasonable notice to Selco that there was a problem with the co n n ec tors, so that the parties could have a reasonable opportunity to resolve Vanalt's con cerns.

In this appeal, both Selco and Vanalt argue over the interpretation of Section 2607.

Focusing on the proper burden of proof with respect to reasonable notice under Section 2 6 0 7 , rather than on the opportunity to cure, we understand the parties' arguments to be a s follows. Selco contends that reasonable notice is an element of breach, so the buyer, to p ro v e its case, has the burden of proving that it gave reasonable notice. Vanalt rejoins th a t the notice required by Section 2607 is notice of the breach, which plainly indicates th a t the breach must exist before the notice. Selco has offered no precedent to support its v iew that there is no breach until after notice has been given, and we find Vanalt's re a so n in g the more persuasive.

T h a t does not end the inquiry, however, because even if notice is not necessary to a f in d in g of breach, it may still be a prerequisite to recovery for breach, and, hence, the b u rd e n of proof would still be on the buyer. Indeed, our review of Pennsylvania p re c e d e n t and other authorities interpreting the UCC indicates that the Pennsylvania S u p rem e Court would agree that a buyer must prove compliance with Section 2607 before re c o v e rin g for a breach of contract or warranty involving nonconforming goods as in this c a se . First, at least one Pennsylvania court has concluded, in the context of a motion to d i sm is s , that, rather than being an affirmative defense, "reasonable notification is a c o n d itio n precedent to recovery, and, therefore, the claimant has the burden of pleading c o m p lia n c e with Section 2607(c)'s requirements." Beneficial Commercial Corp. v. B r u e c k, 23 Pa. D. & C.3d 34, 39 (Pa. Ct. Com. Pl. 1982). Second, several other courts in te rp re tin g the analogous section in the Uniform Commercial Code enactments of other s ta te s have concluded that the buyer must prove compliance with the notice requirement in order to receive any remedy for breach. Standard Alliance Indus., Inc. v. Black C la w s o n Co., 587 F.2d 813, 823 (6th Cir. 1978) (Ohio statute) ("[I]nasmuch as section 26 0 7 operates as a condition precedent to any recovery, the burden of proof is on the p lain tiff to show that notice was given within a reasonable time."); Rich's Restaurant, In c . v. McFann Enters., Inc., 570 P.2d 1305, 1306 (Colo. Ct. App. 1977) (Colorado s ta tu te ) (agreeing with the trial court that "notice of breach of warranty is in the nature of a condition precedent to recovery" and that "proof of notice was an essential feature of p lain tiff 's case"); Gen. Matters, Inc. v. Paramount Canning Co., 382 So.2d 1262, 1264 (F la . Dist. Ct. App. 1980) (Florida statute) ("[T]he burden is on the plaintiff to show that h e gave the required notice within a reasonable time.") (citations omitted); Maybank v. S.

S . Kresge Co., 273 S.E.2d 681, 683 (N.C. 1981) (North Carolina statute) ("We think it o b v io u s from the language of the statute that seasonable notification is a condition p re c ed e n t to the plaintiff-buyer's recovery. Thus, the burden of pleading and proving that se a so n a b le notification has been given is on the buyer.") (citations omitted); Hepper v. T r ip le U Enters., Inc., 388 N.W.2d 525, 527 (S.D. 1986) (South Dakota statute) ("Notice is an element that must be specifically proven; it is not an affirmative defense."). Thus, th e dominant position appears to be that, in a dispute over the sale of goods, the buyer m u s t prove compliance with the notice requirement of Section 2607.7 That result does n o t imply that the breach is incomplete until notice is given. Rather, as the foregoing c a se s hold, reasonable notice is a precondition to the buyer's recovery for the breach. B e c au s e we conclude that the Pennsylvania Supreme Court would place the burden o f proving reasonable notice on the buyer, it follows that the District Court's instruction o n this point was an incorrect statement of the law. Vanalt contends that, even if the D is tric t Court was in error, the error was harmless, but that is not so.8 Selco had argued th a t the alleged five month delay between delivery and notice of breach was not re a s o n a b le . The reasonableness of that five month notice is thus a fact issue for the jury, S ta n d a r d Alliance, 587 F.2d at 823, to be decided with the burden of proof placed on V a n a lt. Because the issue is notice under Section 2607 rather than opportunity to cure, th e relevant questions include when Selco first received notice of a problem and whether th a t notice was given within a reasonable time after Vanalt discovered or should have d is c o v e re d the problem.

IV .

S elco also argues that the District Court erred in admitting particular expert tes tim o n y and other evidence that Selco contends was unfairly prejudicial. As we write s o le ly for the benefit of the parties, we need not dilate on these evidentiary rulings.

Suffice it to say we have reviewed the rulings for abuse of discretion, Abrams v. L ig h to lie r Inc., 50 F.3d 1204, 1213 (3d Cir. 1995); In re Paoli R.R. Yard PCB Litig., 916 F .2 d 829, 856 n.33 (3d Cir. 1990), and, in light of the record, have concluded that there w a s no abuse of discretion in admitting the evidence of which Selco complains.

A s for Vanalt's cross-appeal regarding prejudgment interest, we agree with the D is tric t Court that Vanalt is not entitled to prejudgment interest as a matter of right under P e n n s ylv a n ia law. See Black Gold Coal Corp. v. Shawville Coal Co., 730 F.2d 941, 9434 4 (3d Cir. 1984). We also conclude that, on this record, the District Court did not abuse its discretion in choosing not to award prejudgment interest. However, because we will v a c ate the judgment and remand for a new trial, we will also vacate the order denying p re ju d g m e n t interest. While we do not imply that the result should be different after the n e w trial, we do not wish to tie the District Court's hands in its consideration of the issue in light of the record that develops on remand.

V.

T h e legal errors discussed above require us to vacate the damages award against S e lc o . Those errors, however, are unrelated to the jury's determination that Selco b r e a c h e d its contract and express and implied warranties. Therefore, we leave those d e te rm in a tio n s intact, but will remand the case for a new trial to determine (1) whether th e limitation of liability term that Selco says it added to the contract was indeed c o m m u n ic a te d to Vanalt and accepted as part of the contract in this case; (2) whether V a n a l t provided reasonable notice to Selco of the breach; and (3) the amount of damages, if any, owed to Vanalt by Selco.9 F IS H E R , Circuit Judge, concurring.

A lth o u g h I agree with the result reached by the majority, I write separately as I d is a g re e with the harmless error analysis based on the parties' arguments in this case.

While the case law in this area is limited, I agree with the majority's determination that th e buyer has the burden of proving breach and that it provided notice within a reasonable tim e to the seller that a breach occurred. The District Court's jury instructions treated n o tic e and opportunity to cure as an affirmative defense thereby improperly placing the b u r d e n on Selco. Although the instruction was improper, I believe that it was harmless erro r.

A s discussed by the majority, Vanalt had the burden of proving that it provided S e lc o with notice of the breach within a reasonable time. Such notice provides a seller w ith a reasonable time to cure. Although the focus is on notice, the parties mistakenly f o c u s on whether there was a reasonable opportunity to cure. This improper focus is what le a d s me to depart from the majority's analysis.

S e lco admitted at trial and in its briefs to this Court that Vanalt provided it with n o tice . Selco never argued that the timing of the notice was unreasonable, rather its a rg u m e n t was limited to a claim that Vanalt did not provide it with a reasonable o p p o rtu n ity to cure. As the majority points out, in its closing argument Selco stated: "So, w h a t kind of opportunity did Selco have here? Was it a reasonable opportunity?" Opportunity refers to the opportunity to cure, not whether Vanalt provided reasonable n o tic e . The argument regarding mitigation of damages similarly does not raise any issue re g a rd in g the reasonableness of the notice provided. Therefore, Selco admitted that V a n a lt met its burden of proving notice.

S e lco 's admission makes the flawed jury instructions a harmless error. An error is h a rm le ss "only if it is highly probable that the error did not affect the outcome of the c a se ." Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005). The admission of re c eip t of notice makes it highly probable that the improper jury instruction did not affect th e outcome of the case. Although the error was harmless, on remand, the District C o u rt's jury instruction should place the burden of proving notice on Vanalt. Therefore, I c o n c u r in the outcome of this case.

1 The District Court ruled as follows: [ T h e first of the] issues remaining that I told counsel I'd discuss here is the is s u e of the term and condition [sic] of the contract, which I find, as a m a tter of law, was not a part of this contract. The evidence doesn't support, in my opinion, a finding by the jury that these terms and conditions id e n tifie d in the record . . . were part of the contract and the jury would h a v e to guess to reach such a conclusion. T h e Court's reasoning demonstrates that the ruling was indeed a judgment as a matter of la w on Selco's defense. Vanalt's brief indicates that it also interpreted the District Court's ruling in this way. Vanalt Answering Brief at 26 (quoting Buczek v. Continental C a s . Ins. Co., 378 F.3d 284, 288 (3d Cir. 2004), for this Court's standard of review for a jud g m en t as a matter of law).

2 The District Court's instruction was as follows: [ I]f you . . . conclude that there's been a breach of . . . warranties or the contract, before considering damages you must consider whether there w a s an opportunity given to SELCO to cure. It's called an opportunity to c u re . And this simply means this. When a buyer purchases goods from a se ller that are nonconforming, . . . [t]he buyer must, within a reasonable tim e , provide the seller with notice of the problem and thereby provide the se ller with a reasonable time and opportunity to cure the breach. Now, all o f this is just common sense. You find a fault, you say, hey, guys, can you fix it up? That's what we're talking about. Now, a reasonable time to cure a breach depends on the nature and attending circumstances of the breach a n d the actions needed to effect the cure. Based upon the evidence, you m u st decide whether Vanalt in this case provided SELCO with reasonable n o tic e and opportunity to cure prior to Vanalt having to remedy the problem a t its own cost and whether SELCO ever notified Vanalt of any desire to in s p e c t, test, or sample the multi-outlet connectors that Vanalt refused or f a ile d to allow. . . . The question is, has defendant shown here that plaintiff d id not give them an opportunity to cure? And, as I said, in determining th a t situation, you have to base it upon all the evidence that was presented w ith regard to that issue. .... . . . I told you about the burden of proof, I told you that the defendant h a s the burden of proving whether or not sufficient time to cure was given h e re .

3 Selco asked for the following instruction: "When a buyer accepts a product from a se ller, and the buyer seasonably notifies the seller that the seller's product is n o n c o n f o rm in g , the seller must be given a reasonable time to cure the nonconformity." V a n a lt, in turn, asked for the following: "When a buyer purchases goods from a seller th a t are nonconforming, below commercial standards and/or otherwise unfit for the b u ye r's purpose, as here, the law provides that the buyer must, within a reasonable time, p ro v id e the seller with notice of the problem and thereby provide the seller with a re a so n a b le time and opportunity to cure the breach."

4 Additional citations in the proposed instructions, to Pennsylvania model jury in s tru c tio n s and UCC Section 2515, relate to the definition of "reasonable time" and the s e lle r's right to inspect the goods, not to the issue of whether the seller must be given an o p p o rtu n ity to cure.

5 Universal Mach. Co. v. Rickburn Enters., Civ. A. No. 90-6530, 1992 WL 180128 (E .D . Pa. July 23, 1992); Barrack v. Kolea, 651 A.2d 149 (Pa. Super. Ct. 1994); Koppers C o . v. Brunswick Corp., 303 A.2d 32 (Pa. Super. Ct. 1973); Fowler & Williams, Inc. v. In t'l Lithographing, 4 Phila. Co. Rptr. 168, 1980 WL 194195 (Pa. Ct. Com. Pl. June 17,

1 9 8 0 ).

6 The statute reads: (a ) General rule.­Where any tender or delivery by the seller is rejected b e c au s e nonconforming and the time of performance has not yet expired, th e seller may seasonably notify the buyer of his intention to cure and may th e n within the contract time make a conforming delivery. (b ) Rejection of tender which seller believed acceptable.­Where the buyer re jec ts a nonconforming tender which the seller had reasonable grounds to b e lie v e would be acceptable with or without money allowance the seller m a y if he seasonably notifies the buyer have a further reasonable time to su b stitu te a conforming tender.

1 3 Pa. Cons. Stat. § 2508.

7 We have found only one case to the contrary. In Jones v. Cranman's Sporting Goods, th e Georgia Court of Appeals concluded that summary judgment for the defendant was im p ro p e r in the absence of any evidence of notice, "[s]ince the burden was on the d e f en d a n t to establish that no notice was given . . . ." 237 S.E.2d 402, 404 (Ga. Ct. App.

1 9 7 7 ).

8 Judge Fisher in his concurrence concludes that the error in the jury instruction was h a rm le ss , since "Selco never argued that the timing of the notice was unreasonable ... ." While Selco's position was not preserved with perfect clarity, we are nevertheless p e rsu a d e d that Selco raised and preserved that argument for appeal. It is true that Selco does not contest that it received a letter from Vanalt in D e c e m b e r 2002 describing problems with the connectors. However, Selco did contest w h e th e r that letter constituted reasonable notice, because delivery of the connectors began s o m e six months earlier, in June 2002. At trial, Selco argued: "So, what kind of o p p o rtu n ity did SELCO have here? Was it a reasonable opportunity? Well, Vanalt n o tif ie d SELCO in December of 2002, about a month after the problems arose and about s ix months after delivery. Then SELCO responded." Later, while discussing mitigation o f damages, Selco argued: "Does it make sense to you that an experienced electrical c o n tra c to r [Vanalt] will wait months and months after he's installed these connectors to d o any testing? Did Vanalt even test each section as it went in? . . . No. They waited u n til everything was in and then they tested it and they found problems." In our view, th o se arguments adequately set forth Selco's position that Vanalt was unreasonable in f a ilin g to give notice until several months after delivery began. Cf. Int'l Union of E le c tr o n ic , Electric, Salaried, Mach. & Furniture Workers v. Murata Erie N. Am., Inc.,

9 8 0 F.2d 889, 902 n.12 (3d Cir. 1992) (concluding that the defendant's position was s u f f ic ie n tly clear from its recitation of the facts to preserve that position). The District C o u rt apparently agreed that reasonable notice was an issue at trial, because, significantly, it instructed the jury on that issue. See Murata, 980 F.2d at 898 n.6 (concluding that the D is tric t Court's treatment of an issue as part of the case supported conclusion that the issue was adequately raised). T h u s , while Selco agreed that it received notice in December 2002, it argued, and a re a so n a b le jury could have concluded, that such notice was not reasonable under the c irc u m s ta n c e s . The error in the jury instructions was therefore not harmless. Cf. A r m s tr o n g v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246 (3d Cir. 2006) (co n clud ing that an error was not harmless because "but for [the] error a reasonable jury co u ld have found in favor of [the plaintiff]").

9 Because we will vacate the damages award, we do not reach the issue of whether V a n a lt's damages may properly be calculated using the Eichleay formula for unabsorbed h o m e office overhead. Eichleay Corp., A.S.B.C.A. No. 5183, 60-2 B.C.A. (CCH) ¶

2 6 8 8 , 1960 WL 538 (July 29, 1960), aff'd on reconsideration 61-1 B.C.A. (CCH) ¶ 2894,

1 9 6 0 WL 684 (Dec. 27, 1960). While we reject Selco's argument that the Eichleay fo rm u la may only be used in disputes involving government contracts, the District Court sh o u ld make a determination on the record whether Vanalt has established the prima facie e le m e n ts to support the use of the Eichleay formula in the present case.