Appeal, No. 254, Oct. T., 1958, from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1955, No. 3646, in case of L. & N. Sales Company v. Stanley A. Stuski. Order reversed.
Charles S. Schermer, for appellant.
Samuel M. Brodsky, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 188 Pa. Super. Page 119]
This appeal is from the refusal of the court below to open a judgment, entered by confession, under power given in a note executed by the defendant in favor of the plaintiff. The note was executed in conjunction with a conditional sales contract which was a purchase money security agreement for the purchase of 123 Bev-Flo pourers from the sales outlet of the manufacturer of the pourers.
The defendant offers by way of defense three major premises: Breach of warranty of fitness for a particular purpose; claim that the stipulated collection fee was excessive, oppressive and unconscionable; and that the court below was without jurisdiction to hear and determine the petition to open judgment.
The defendant after solicitation by an agent of Beverage Control Sales Co. of Philadelphia, Inc., manufacturer of Bev-Flo pourers, agreed to purchase 123 pourers. The pourers were held out by the manufacturer as being an attachment for bottles used in dispensing alcoholic drinks which would measure and
[ 188 Pa. Super. Page 120]
count each drink dispensed, thereby enabling the owner to dispense uniform size drinks, and secure an accurate inventory of drinks dispensed and gain complete control over this phase of his business. Defendant purchased the pourers for these exact reasons. The pourers were installed on September 21, 1955. On September 28, 1955 a purchase contract was signed, which contract did not release or limit any warranties by the seller.
The same day an express written warranty of marketability was given in lieu of all other warranties express or implied and all other liabilities or obligations on its part. On October 5, 1955, a purchase money security agreement in the nature of a conditional sales contract was executed by the plaintiff and defendant. This agreement stated that purchaser hereby acknowledges delivery and acceptance of the following described article, in its present condition, after thorough examination, without warranty, guarantee or representation of any kind or nature.
The defendant, according to the uncontradicted testimony, experienced difficulty with the pourers shortly after their installation in that, the meters did not register accurately, the drinks poured were not consistent in that, one would be large, another small, and that it was impossible to have any control over the business or inventory under these circumstances. The seller's service man attempted to correct the defects and prevent the mechanism from sticking by use of lubricating oil and other means, but was apparently ...