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DEMATTEO ET AL. v. WHITE (03/31/75)

decided: March 31, 1975.

DEMATTEO ET AL., APPELLANTS,
v.
WHITE, ET AL.



Appeal from judgments of Court of Common Pleas of Westmoreland County, Jan. T., 1972, No. 920, in case of Jerry DeMatteo and Marie C. DeMatteo, Steven J. Solinski and Dolores M. Solinski, Jack R. Howells and Gayle L. Howells v. Domer White, John Doe, t/d/b/a J. N. Rega Supply Company, an Unregistered Fictitious Name, Haines Brick, Inc., a Corporation.

COUNSEL

John W. Pollins, III, with him James R. Gaut, and Hammer & Pollins, for appellants.

George A. Kotjarapoglus and P. Rega, with them George W. Lamproplos, and Cassidy & Lamproplos, and Melvin B. Bassi, and Bassi and Rega, and John D. Lyons, Jr., for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 233 Pa. Super. Page 341]

This appeal follows the entry on February 28, 1974, of judgments on the pleadings in favor of appellees, Domer White (White) and John Doe, t/d/b/a J. N. Rega Supply Company (Rega); and the August 7, 1974, entry in favor of appellee, Haines Brick, Inc. (Haines) of judgment on the pleadings. The sole issue to be decided is whether the provisions of the Sales Article of the Uniform Commercial Code*fn1 (U.C.C.) apply to the transactions which gave rise to the instant appeal.

To determine whether a judgment on the pleadings was appropriately entered, we must treat the motion as we would a preliminary objection in the nature of a demurrer. Evans v. Marks, 421 Pa. 146, 218 A.2d 802 (1966). "On such a motion the Court must accept as true -- even though denied -- averments of fact by the opposing party which are material and relevant; but inferences and conclusions which are drawn from and erroneously interpret a written instrument which is part of the record are not admitted, nor are conclusions of law." London v. Kingsley, 368 Pa. 109, 111, 81 A.2d 870, 871 (1951).

[ 233 Pa. Super. Page 342]

Judgment on the pleadings should be entered only where the right is clear and free from doubt, and where no substantial issues of fact are raised. Miami National Bank v. Willens, 410 Pa. 505, 190 A.2d 438 (1963).

Accepting the facts as stated in appellants' separate counts to the complaint,*fn2 Evans v. Marks, supra, we find that the three appellants executed separate contracts with appellee, White, for the construction of their separate residences. Surface brick manufactured by Haines, and sold to each appellant by Rega, formed the exterior wall of each of the three houses. The brick was subsequently found to be defective. The following table will summarize the relevant dates:

Date of

     delivery of

     brick man-

     ufactured

Date of by appellee,

     contract ...


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