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K & C v. WESTINGHOUSE ELECTRIC CORPORATION (03/20/70)

decided: March 20, 1970.

K & C, INC., APPELLANT,
v.
WESTINGHOUSE ELECTRIC CORPORATION



Appeal from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1963, No. 958, in case of K & C, Inc. v. Westinghouse Electric Corporation.

COUNSEL

Wilbur F. Galbraith, with him Joseph N. Mack, for appellant.

Cloyd R. Mellott, with him Barton Z. Cowan, Robert W. Doty, and Eckert, Seamans & Cherin, for appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts and Mr. Justice Pomeroy concur in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: O'brien

[ 437 Pa. Page 305]

The facts of the case are set forth in the opinion of the court en banc: "Plaintiff [appellant] is a Pennsylvania corporation, incorporated on November 17, 1961, and owned by a Mr. Knaufe and attorney Edgar J. Cooke. The two defendants were originally ALD, Inc. and Westinghouse Electric Corporation, but Westinghouse is the only defendant still in the case. From July 1, 1961 and for several years thereafter, ALD sold coin-operated dry cleaning machines manufactured by Westinghouse. Plaintiff as buyer entered into a written sales agreement with ALD as seller, dated November 27, 1961, for the purchase of a store remodeled by ALD for the operation of a coin-operated dry cleaning business in which were installed four model DC-20B Twin Westinghouse Coin-operated Dry Cleaners, which had been modified from Model DC-20A, plus miscellaneous equipment and services listed in the sales agreement, the store being located on Route 51 in Brentwood, Allegheny County. The agreement was executed and delivered on November 27, 1961. By agreement dated January 11, 1962, Westinghouse licensed plaintiff to use the Westinghouse registered service mark 'Laundromat' at the said store.

"The purpose of the Westinghouse dry cleaners was to dry clean clothing and certain other materials. The plaintiff's Route 51 store opened for business on January 7, 1962. Subsequently, difficulties developed with the machines and there was damage done to the clothing of certain customers of plaintiff who brought clothing to the store for cleaning. On October 1, 1962, having ceased use of the Westinghouse machines, plaintiff installed and used a key-operated Frigidaire dry cleaning machine, plus an additional one on February 15, 1963.

"Plaintiff had agreed to purchase the store and equipment from ALD for a price of $30,500, plus finance charges; $18,100 of the purchase price constituted

[ 437 Pa. Page 306]

    the purchase price of the four Westinghouse machines. A down payment of $6,350 was paid by plaintiff at the outset, plus additional monthly installments for the twelve succeeding months from February 15, 1962, aggregating an additional $6,824.52. No further monthly payments were made, and in September of 1963 the sheriff replevied the four Westinghouse machines on the suit of the holder of the credit instrument by which the unpaid balance had been financed.

"The stipulation of the parties added additional facts relative to the details of the financing and repossession, culminating in the stipulation that the value of the Westinghouse machines and other equipment and goods replevied 'equals and does not exceed the unpaid balance of the purchase price, the cost of repossession and finance charges accrued to date of repossession with the resultant that the deficiency judgment claims of ALD are satisfied and K & C, Inc. has no claim against ALD, Inc. arising from repossession and resale.'"

Appellant brought suit to recover damages for breach of express and implied warranties arising from the sales agreement. Appellees took the position that Paragraph 5 of the sales agreement prevented the recovery of any special or consequential damages. That paragraph provides: "Seller makes no representations or guarantees, express or implied, in respect to any of the equipment covered by this order, except that it will deliver good title to said equipment sold, free from all liens and encumbrances. Warranties by manufacturers of equipment are limited to such of their standard written warranties as may accompany individual items of equipment ordered hereby, which warranties are limited to repair or replacement of ...


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