DeMatteo v. White
| Decision Date | 31 March 1975 |
| Citation | 336 A.2d 355,233 Pa.Super. 339 |
| Parties | , 16 UCC Rep.Serv. 926 Jerry DeMATTEO et al., Appellants, v. Domer WHITE et al. |
| Court | Pennsylvania Superior Court |
John W. Pollins, III, Greensbury, for appellants.
John D. Lyons, Jr., Melvin B. Bassi, George A. Kotjarapogius, Greensbury, P. Rega, Charleroi, for appellee.
This appeal follows the entry on February 28, 1974, of judgments on the pleadings in favor of appellees, Domer White (White) and John Doe, t/d/b/a J. N. Rega Supply Company (Rega); and the August 7, 1974, entry in favor of appellee, Haines Brick, Inc. (Haines) of judgment on the pleadings. He sole issue to be decided is whether the provisions of the Sales Article of the Uniform Commercial Code 1 (U.C.C.) apply to the transactions which gave rise to the instant appeal.
To determine whether a judgment on the pleadings was appropriately entered, we must treat the motion as we would a preliminary objection in the nature of a demurrer. Evans v. Marks, 421 Pa. 146, 218 A.2d 802 (1966). 'On such a motion, the Court must accept as true--even though denied--averments of fact by the opposing party which are material and relevant; but inferences and conclusions which are drawn from and erroneously interpret a written instrument which is part of the record are not admitted, nor are conclusions of law.' London v. Kingsley, 363 Pa. 109, 111, 81 A.2d 870, 871 (1951). Judgment on the pleadings should be entered only where the right is clear and free from doubt, and where no substantial issues of fact are raised. Miami National Bank v. Willens, 410 Pa. 505, 190 A.2d 438 (1963).
Accepting the facts as stated in appellants' separate counts to the complaint, 2 Evans v. Marks, Supra, we find that the three appellants executed separate contracts with appellee, White, for the construction of their separate residences. Surface brick manufactured by Haines, and sold to each appellant by Rega, formed the exterior wall of each of the three houses. The brick was subsequently found to be defective. The following table will summarize the relevant dates:
Date of Date of delivery of
contract brick manufactured
with by appellee, Date of Date
Appellee, Haines and sold discovery Complaint
Appellant White by appellee, Rega of Defect Filed
------------------- ------------ ------------------- ----------- ----------
Jerry DeMatteo
& Marie DeMatteo
(Count I) July 20, Fall of 1965 Spring of March 16
1965 1967 1972
Jack R. Howells
& Gayle L. Howells
(Count II) March, 1966 July 30, 1966 Spring of March 16
1967 1972
Steve J. Solinski &
Dolores M. Solinski
(Count III) Sept. 20, January of 1967 Spring of March 16
1966 1968 1972
In separate counts of the complaint, each appellant alleged that in the spring following the first winter that their respective houses had been completed, they discovered that the outside surface brick manufactured by Haines and sole to them by Rega had broken and spalled, thus jeopardizing the structure, value, and attractiveness of their homes.
Following valid service of process, answers and new matter were filed by all appellees. None of the appellees raised the defense of the statute of limitations in the new matter. Appellants replied to the new matter, and the case was listed for trial in October, 1973. Immediately prior to trial, on September 21, 1973, White and Rega requested leave to amend their new matter. An order permitting the amendment was entered over appellants' objections. The amended new matter raised the defense of the four-year statute of limitations provided by § 2--725 of the U.C.C. Haines did not join the amendment, file new matter, or appear at the hearing although it had received copies of the pleadings and notice of the hearing.
On October 23, 1973, White and Rega filed a motion for judgment on the pleadings. On December 14, 1973, without leave of court and without pleading the bar of the statute of limitations, Haines also requested judgment on the pleadings. The court en banc granted judgment on behalf of White and Rega on February 28, 1974, and noted that Haines had presented no defense which would warrant judgment in its favor.
Notice of certiorari issued by this court was received by the lower court on April 3, 1974. On July 17, 1974, Haines withdrew its motion for judgment on the pleadings and requested leave to file amended new matter raising the statute of limitations. This request was granted over appellants' objections, and the amendment and new request for judgment on the pleadings were filed. In order to expedite the pending appeal, the court en banc granted the motion for judgment on the pleadings, on August 17, 1974, and overruled appellants' objections. This appeal contests the entry of the judgments entered against appellants in favor of all three appellees.
The lower court based its entry of judgment for appellees on its finding that the suit was governed by the Sales Article of the U.C.C., and therefore, that the four-year statute of limitations provided at § 2--725 barred the suit.
Section 2--725 provides in relevant part:
'(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. . . .'
In order to determine whether the lower court properly determined that the actions were barred, we must examine each appellee's role in the construction of appellants' residences, in light of the purposes of the Article on Sales.
Section 2--102 provides:
'Unless the context otherwise requires, this Article applies to Transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this Article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.' (Emphasis added)
A transaction in goods, or a contract or agreement pertaining thereto, is defined at § 2--106(1):
(Emphasis added)
Each appellant entered into a contract which provided that Domer White would construct a residence in exchange for a consideration. It was White's duty under the contract to provide the highest quality materials and to use those materials in the construction of the house. However, there was no agreement between appellants and White which provided for a sale of the 'raw materials' (bricks, roofing tile, plaster, etc.) as such. The contract provided for the construction of a building, not for the sale of goods as recognized by the U.C.C.
In a case involving the application of the Uniform Sales Act, on which the U.C.C. Article on Sales was based, to a construction contract, this court stated:
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DeMatteo v. White
...336 A.2d 355 233 Pa.Super. 339 Jerry DeMATTEO et al., Appellants, v. Domer WHITE et al. Superior Court of Pennsylvania.March 31, [233 Pa.Super. 341] John W. Pollins, III, Greensbury, for appellants. John D. Lyons, Jr., Melvin B. Bassi, George A. Kotjarapogius, Greensbury, P. Rega, Charleroi......