Appeal from order of County Court of Allegheny County, No. A1315 of 1965, in case of William Rozmus v. Thompson's Lincoln-Mercury Co.
Emil W. Herman, with him Frank Reich, and Rothman, Gordon, Foreman and Reich, for appellant.
Homer W. King, with him Francis V. Sabino, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J. Ervin, P. J., and Wright, J., would affirm on the opinion of the court below en banc.
[ 209 Pa. Super. Page 122]
The basic issue in this case is whether appellee-plaintiff had the right to revoke his acceptance of a new Mercury automobile which he had purchased from appellant-defendant. If he did not have such right this action for the value of his old car used as a credit on the purchase price of the new one must fail.
On Saturday, June 22, 1963, plaintiff signed an agreement to purchase the automobile for cash. He paid $50 as a down payment, delivered to defendant his old Chevrolet automobile with the title thereto properly endorsed for which he was to receive a credit of $461.50 on the new automobile, and promised to pay the balance in cash in five days. However, he selected the automobile he desired from defendant's showroom and took delivery of it the same evening.*fn1 While driving the automobile home that evening he noticed smoke coming from the exhaust and that the car made a loud, banging and thumping sound. Plaintiff immediately called the defendant's salesman and, as it was Saturday, was told to bring the car in on Monday. In accordance with this request plaintiff returned the car to the defendant on Monday. Tuesday evening he called for it but upon driving it ascertained that the loud banging and thumping noise persisted. Plaintiff immediately returned the car and sought out Mr. L. W. Stewart, the defendant's vice president and general manager, who confirmed the trouble in a test drive.
Mr. Stewart and the plaintiff then returned to the garage whereupon Mr. Stewart instructed a mechanic to place the car upon a rack and to see what was
[ 209 Pa. Super. Page 123]
causing the noise. Before the mechanic could correct the source of the trouble, which turned out to be two loose engine mounting bolts allowing a misalignment of the drive shaft to occur, the plaintiff told Mr. Stewart he wanted another car or the return of the one he had traded in. His demands not being met he left without taking the new automobile with him. The Mercury automobile was fully adjusted within a few minutes by defendant, but plaintiff never returned for it. Forty-five days later, after due notice to the plaintiff, it was repossessed by a finance company to which the conditional sales contract had been sold.
Soon after leaving the new automobile with the defendant plaintiff brought an action before a Justice of the Peace for the sale price of the traded Chevrolet car, $461.50. Judgment having been entered by the Justice of the Peace for the plaintiff, an appeal was taken by the defendant to the County Court of Allegheny County and the case thereafter came to trial before Judge Charles D. McCarthy without a jury. Judge McCarthy rendered a decision in defendant's favor. Subsequently, in ruling on exceptions filed by plaintiff, a court en banc consisting of three judges, which included Judge McCarthy, reversed this decision and granted a new trial. This appeal followed.
The law on the issue before us is found in Section 2-608 of the Uniform Commercial Code, Act of 1953, P.L. 3, 12A P.S. § 2-608, which provides that a buyer may revoke his acceptance of goods received if its "non-conformity substantially impairs its value to him." There is no doubt that the plaintiff accepted this new automobile. He executed the conditional sales contract which provided that he acknowledged the acceptance of the Mercury in good order, and he drove it from the ...