Pirozzi v. Penske Olds-Cadillac-GMC, Inc.

• Decision Date: 19 March 1992
• Docket Number: INC,OLDS-CADILLAC-GM
• Citation: 413 Pa.Super. 308,605 A.2d 373
• Parties: Rocco PIROZZI and Anna Marie Pirozzi, Appellants, v. PENSKE, Patriot Oldsmobile-GMC, Inc. and Cowan Olds-Cadillac-GMC, Inc.
• Court: Pennsylvania Superior Court

Page 373

605 A.2d 373

413 Pa.Super. 308

Rocco PIROZZI and Anna Marie Pirozzi, Appellants, v. PENSKE OLDS-CADILLAC-GMC, INC., Patriot Oldsmobile-GMC, Inc. and Cowan Olds-Cadillac-GMC, Inc.

Superior Court of Pennsylvania.

Argued Jan. 9, 1992.

Filed March 19, 1992.

Michael G. Louis, West Chester, for appellants.

William R. Hagner, Paoli, for appellees.

Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.

CIRILLO, Judge:

This is an appeal from a judgment of the Court of Common Pleas of Chester County in favor of the defendants/appellees. We reverse.

Appellant Rocco Pirozzi ("Pirozzi") purchased a 1986 Cadillac Eldorado coupe from appellees Penske Olds-Cadillac-GMC, Inc., Patriot-Oldsmobile-GMC, Inc., and Cowan Olds-Cadillac-GMC, Inc. ("Penske") in 1986. ¹ The automobile was held out as "new" by Penske; however, unknown to Pirozzi, a surface crease or gouge on the front edge of the left door had been repaired and repainted by Penske before the car was offered for sale. The crease was approximately three inches long and one-half an inch wide.

Penske's service manager became aware of the crease upon delivery of the automobile and sent the car to an auto body shop in order to have the crease removed. The auto body shop repaired the crease and repainted the door of the automobile. ² The dealership subsequently sold the automobile to Pirozzi without informing him that the car had been damaged, repaired, and repainted. ³

Pirozzi purchased the 1986 Cadillac Eldorado with a $7,100.00 down payment after executing an installment sales contract on October 8, 1986. The list price of the car was $29,665.00, but Pirozzi purchased it for $23,673.87. Jack Nercesian, owner of J & B Cadillac, testified that the $7,000.00 reduction from the list price was not due to the crease: "Seven thousand dollars was not off for the dink. You could have walked in and bought that car for maybe twenty-four, twenty-five [thousand] with no problem. Nobody sells a car for list, you know. I never had that experience." On October 11, 1986 Pirozzi took possession of the car at Penske. On October 13, 1986, while the Cadillac was parked in front of Pirozzi's residence, Nercesian first observed the car from his showroom which is next door to Pirozzi's residence. Nercesian told Pirozzi that it appeared as if the left door of the car had been repainted. ⁴ To Nercesian and the other salesman in his showroom the paint on the left door was noticeably different from the rest of the car. Stunned by this discovery, Pirozzi took the car to a local auto body shop for a second, professional opinion. The owner of the body shop confirmed that the door had, indeed, been repainted.

Pirozzi immediately drove the Cadillac back to Penske, told them about the repainted door, and demanded a full refund. Penske refused to refund Pirozzi's money, and Pirozzi left the car and the keys on the dealership lot. No one at Penske explained to Pirozzi at that time that the Cadillac had received a dent during transit from the manufacturer to the dealership and that the car had been repaired and repainted. Penske returned the car to the auto body shop where the door had originally been repaired and repainted. Here, the door ⁵ was repainted a second time without consulting Pirozzi and the car was, subsequently, returned to him. However, Pirozzi refused to accept the car. The Cadillac remained on the dealer's lot for nearly one year, until it was finally repossessed by the lienholder, General Motors Acceptance Corporation (GMAC). ⁶ GMAC subsequently sold the car at auction for less than the balance due on the loan. GMAC obtained a deficiency judgment against Pirozzi in the amount of $4,051.32. This amount remains outstanding. ⁷

Pirozzi filed a complaint against Penske, alleging the dealership violated the Unfair Trade Practices and Consumer Protection Law, ⁸ and committed breach of warranty, fraud, and intentional misrepresentation. At a bench trial the trial court found in favor of Penske. After his post-trial motions were denied, Pirozzi filed this timely appeal.

Pirozzi presents several issues for our consideration:

(1) Did the trial court err in finding that the vehicle in question, when delivered to buyer, was "new" and was not "deteriorated, altered, reconditioned, reclaimed, used or second-hand," within the meaning of the Unfair Trade Practices and Consumer Protection Law?

(2) Did the trial court err in failing to address the other alleged unfair methods of competition set forth in paragraphs 28(b) through (f) of buyer's amended complaint?

(3) Did the trial court err in failing to address the claims of breach of an express warranty set forth in counts IV, V, and VI of buyer's amended complaint?

(4) Was the trial court's verdict manifestly against the weight of the evidence such that a new trial should be granted?

(5) Based on the evidence of record, did the trial court err in failing to direct entry of judgment in favor of buyer and against seller on any or all of the claims brought?

Our standard of review of an order denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schlowmann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). To make that determination we must consider all the evidence received, whether the trial court ruled correctly on its admissibility or not. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989). We must also afford the verdict winner the benefit of every inference which may reasonably be drawn from the evidence, while rejecting all unfavorable testimony and inferences. Ingrassia Construction Company, Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984). Judgment notwithstanding the verdict may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989).

The standard of review for an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 425, 521 A.2d 413, 420-421 (1987). If support for the trial court's decision is found in the record, the order must be affirmed. Commonwealth ex rel. Meyers v. Stern, 509 Pa. 260, 264, 501 A.2d 1380, 1382 (1985).

Pirozzi initially contends that Penske violated the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") when it sold him the Cadillac under the guise of being "new." The purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices and the statute is the principal means for doing so in the Commonwealth. Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 460, 329 A.2d 812, 817 (1974). To this end, Section 2 of the UTPCPL lists sixteen specific, prohibited activities which are defined as unfair methods of competition or deceptive acts or practices. See 73 Pa.S.A. § 201-2.

In Monumental Properties, Inc. our supreme court held that the UTPCPL is to be liberally construed in order to effect its purpose. Id. at 459-460, 329 A.2d at 816-817. The supreme court went on to hold that Pennsylvania courts may turn to decisions under the Federal Trade Commission Act (FTCA) ⁹ for aid in interpreting the UTPCPL, as our UTPCPL has been modeled after the FTCA. Id. at 462, 329 A.2d at 817. It is important to note that section 3 of the UTPCPL and section 5 of the FTCA are virtually identical. ¹⁰

The United States Supreme Court has held that under the provisions of the FTCA regarding unfair and deceptive trade practices, 15 U.S.C.A. § 45, any conduct determined to be contrary to the purposes of the FTCA is prohibited. Atlantic Refining Co. v. FTC, 381 U.S. 357, 369, 85 S.Ct. 1498, 1506, 14 L.Ed.2d 443 (1965) reh. denied 382 U.S. 873, 86 S.Ct. 18, 15 L.Ed.2d 114 (1965) (emphasis added). Under section 5 of the FTCA a violation occurs if conduct runs counter to the "public policy declared in Act." Id. The purpose of the FTCA, like the UTPCPL, is to prevent unfair or deceptive business practices and fraud.

Pirozzi alleges that the Cadillac he purchased was not "new," but was, in reality, "deteriorated, altered, reconditioned, reclaimed, used or second-hand" pursuant to section 2(4)(vi) of the UTPCPL. The conduct complained of by Pirozzi is that, unbeknownst to him, the "new" car had been damaged, repaired, and repainted prior to its sale and the dealership willfully failed to disclose this information to him, thereby significantly reducing its resale value. Section 201-2(4)(vi) of the UTPCPL provides: "representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or second-hand, is an unfair or deceptive act or practice." (emphasis added). The terms "altered" and "reconditioned" are not defined by the UTPCPL. As the words are employed in common usage and they are not defined by the statute, we must look to their common usage meaning. 1 Pa.C.S. § 1903(a); Township of Derry, Dauphin County v. Swartz, 21 Pa.Commw. 587, 589-90, 346 A.2d 853, 855 (1975). In Title 37 of the Pennsylvania Code, entitled ...