Appeal from judgment of Court of Common Pleas of Lancaster County, April T., 1972, No. 83, in case of Thelma E. Stimely v. Dutchmen Mobile Homes.
Eugene F. Zenobi, with him Alan Linder, for appellant.
David Wagenseller, III, with him Ronald Buckwalter, and Shirk, Reist and Buckwalter, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 240 Pa. Super. Page 628]
Appellant, Thelma E. Stimely, commenced the present action in assumpsit against Dutchmen Mobile Homes for the return of a down payment she had made on the purchase of a mobile home. Although appellant received a jury verdict in the amount of $3,000.00, the court below granted a new trial because it failed to charge the jury on a requested instruction by Dutchmen Mobile Homes. The requested instruction was: "If you find that the mobile home did not conform to the contract, but that the plaintiff did not give notice of the rejection of the mobile home within a reasonable time, then you must find for the defendant." Opinion of lower court at 3. We reverse the order granting a new trial because the trial judge properly denied the instruction, notice of rejection not being an issue that was developed before or at trial.
Appellant's action in assumpsit was based on two theories. In count one of her complaint appellant alleged that she did not accept delivery of the mobile home she had earlier ordered but rejected it because of various defects. In an earlier paragraph appellant stated that the mobile home was delivered on October 17, 1970 and in paragraphs six and seven of count one of the complaint referring to notice of her rejection she averred:
[ 240 Pa. Super. Page 629]
"6. The plaintiff did, through her attorney and by letter dated 6 November, 1970 and supplemented by letter dated 9 November, 1970, copies of which are attached hereto as Exhibit 4 and are incorporated herein by reference, notifying the defendant that she, the plaintiff, was rejecting the said mobile home, pursuant to the provisions of the Uniform Commercial Code, for the reasons of substantial and material non-conformities stated in part in her letters, which indicated that the plaintiff believed that the said mobile home did not conform to the said purchase agreement.
"7. The plaintiff, at the aforesaid date of delivery of the mobile home, could not discover the said substantial and material non-conforming defects in the said home due to the method and timing of delivery controlled by defendant and the fact that such defects only became apparent to the plaintiff by use of the said home, and, when plaintiff did discover them she did act immediatly [sic] to notify the defendant of their existence through the aforementioned letters."
Defendant's answer to these alleged facts was as follows:
"6. It is admitted that Plaintiff, through her attorney, did send letters dated November 6, 1970 and November 9, 1970 to Defendant and that such letters are attached to Plaintiff's Complaint as Exhibit 4. It is denied that the rejection was made pursuant to the Uniform Commercial Code; it is denied that there were any substantial and material non-conformities in the mobile home delivered by Defendant to Plaintiff and it is denied that mobile home did not conform to the said purchase agreement.
"7. It is denied that there were any substantial and material nonconforming defects in the mobile home and it is the ...