Weiss v. Keystone Mack Sales, Inc.
| Decision Date | 11 February 1983 |
| Citation | 310 Pa.Super. 425,456 A.2d 1009 |
| Parties | , 36 UCC Rep.Serv. 433 Milton WEISS, Jr., Appellant, v. KEYSTONE MACK SALES, INC. |
| Court | Pennsylvania Superior Court |
John Kerry Weston, Norristown, for appellant.
Timothy O. Nolen, Norristown, for appellee.
Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
This is an appeal from an order entering summary judgment. The action is for damages arising from the purchase and repair of a truck. The lower court held that damages were precluded because the purchase order stated that the truck was being sold "as is--where is." However, the lower court did not consider conduct by the seller subsequent to the purchase order, thereby leaving unresolved the issues of whether all warranties had been effectively disclaimed, and whether any obligation subsequent to the purchase order had arisen. We therefore reverse.
The pleadings and answers to interrogatories may be summarized as follows.
On November 10, 1978, appellant purchased a 1974 used Mack truck from appellee. The purchase order, which is attached as Exhibit A of the complaint, purported (1) to disclaim all warranties, express or implied; (2) to exclude consequential damages as a remedy; and (3) to contain the entire agreement of the parties. The face of the purchase order contained the following: Immediately beneath this statement appears the following: "Company specifically disclaims any implied warranty of merchantability or fitness for a particular purpose." Appellant claims, however, that appellee's salesman made "certain oral and written affirmations of fact, promises and descriptions," which "became the basis of the bargain." Complaint p 3. Specifically, appellant claims that the salesman said that the truck was the "best-running truck that Keystone Mack had purchased from [its supplier], and stated unqualifiedly that the truck was in excellent condition." Plaintiff's Answers to Interrogatories p 1(e). Appellant also claims that appellee knew that he needed the truck in his business, and that he relied on appellee's skill and judgment in selecting a suitable truck for his business. Complaint p 4. Appellee denies that any affirmations were made and asserts that the truck was sold "as is--where is." Answer p 3.
The parties also disagree over when appellant accepted the truck. Appellee claims that appellant accepted the truck on November 10, 1978. Answer p 5. Appellant claims that when he went to get the truck on November 10, its engine emitted blue smoke, and that he refused to accept it until November 22, when appellee's salesman told him that the engine had been repaired, and signed and gave him a handwritten note that stated: Complaint p 6; Plaintiff's Answer to Interrogatories p 2; the handwritten note is attached as Exhibit B of the complaint. Appellant characterizes the handwritten note as "a written confirmation of the warranty on the truck's engine." Complaint p 6. Appellee does not deny that the note was signed and given to appellant, but characterizes it as "an opinion that this engine was in excellent running condition," and denies that this "expression of opinion is a warranty." Answer p 6.
Appellant states that after he left appellee's place of business with the truck on November 22, the truck was still emitting blue smoke, and, when he had a mechanic inspect it, a cracked engine block was found. Appellant also states that when he told appellee's salesman about the cracked block, the salesman instructed him to return the truck, and when he did return the truck on November 24, the salesman told him "that Keystone Mack would 'make good for' the engine; that Keystone Mack would obtain another block and rebuild it to replace the one in the truck; and that there would be no cost to [appellant] even if [appellee] had to sue the company they bought the truck from." Plaintiff's Answers to Interrogatories p 2. Finally, appellant states that he made repeated inquiries about the status of the truck's repairs but the truck was not ready until January 31, 1979. Complaint p 8; Plaintiff's Answers to Interrogatories p 2. On the basis of these allegations, appellant claims $6,137.80 in damages as the "direct and proximate result of appellee's breach of warranty," Complaint p 9, this amount being income lost while the truck was being repaired. He substantiates the amount of the claim by attaching to his answers to interrogatories various business receipts purporting to show his income for a comparable period in the previous year. Plaintiff's Answers to Interrogatories p 12 & Exhibits. Appellee admits that the truck had a cracked engine block, and that pursuant to its salesman's instructions, appellant returned the truck for repairs. Appellee states, however, that the repairs to the truck were made "as expeditiously as possible, considering the complex nature of the job," which involved removing and replacing the engine with the cracked block. Answer p 8.
As part of its answer, appellee pleaded new matter and a counterclaim. The new matter alleges that appellee made no warranties incident to the sale of the truck, and that "the only warranty offered was the 'thirty day 50/50 warranty on the 250 Cummings Engine.' " Answer p 13. The new matter further alleges that appellee was not liable for any consequential damages arising from appellant's loss of business while the truck was being repaired, and that "[appellant's] damages, if any, are limited to [appellee's] payment of 50% of the cost of replacing said engine." Answer p 20. In its counterclaim appellee alleges that the cost of replacing the engine was $6,000, and it claims damages of 50% of this amount, or $3,000.
Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment is to be entered only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.C.P. 1035(b). The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party. Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). The court's responsibility is to determine whether a genuine issue of material fact exists; the court may not resolve such an issue. Moreover, the court should not enter summary judgment unless the case is free from doubt. Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980)...
To continue reading
Request your trial