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RICHARD C. STEVWING AND MARY ANN STEVWING v. WESTERN PENNSYLVANIA NATIONAL BANK (07/06/76)

decided: July 6, 1976.

RICHARD C. STEVWING AND MARY ANN STEVWING, APPELLANTS,
v.
WESTERN PENNSYLVANIA NATIONAL BANK



COUNSEL

Peter D. Jacobson, R. Stanton Wettick, Jr., Neighborhood Legal Services, Pittsburgh, for appellants.

Robert G. Sable, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed an opinion in support of Affirmance in which Eagen and O'Brien, JJ., joined. Jones, C. J., dissented. Roberts, J., filed an opinion in support of Reversal. Manderino, J., filed an opinion in support of Reversal. Nix, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 468 Pa. Page 26]

ORDER

The Court being equally divided, the Decree of the trial court is affirmed.

[ 468 Pa. Page 27]

OPINION IN SUPPORT OF ORDER OF AFFIRMANCE

POMEROY, Justice.

This is an appeal from a decree of the court of common pleas which dismissed appellants' complaint in equity against the appellee bank, Western Pennsylvania National Bank ("WPNB").*fn1 By their suit, appellants sought to rescind a home improvement installment contract which they had entered into on March 19, 1971 with Plastico Industries, Inc. ("Plastico") and which Plastico had assigned to WPNB. The complaint alleged that pursuant to the contract Plastico had sprayed the roof of the Stevwings' residence with a plastic coating material guaranteed by Plastico to prevent water leakage for a period of fifteen years; that following the application of the coating, the roof leaked at the first rainfall and continued to leak despite repeated efforts by Plastico to cure the defects in the roof's coating. Rescission was sought on theories of fraud, misrepresentation, breach of contract and failure of consideration.

The evidence at trial established that following the first spraying of the roof the Stevwings signed a certificate

[ 468 Pa. Page 28]

    of completion, acknowledging that the work had been completed to their satisfaction. The certificate was then transmitted by Plastico to WPNB, which thereupon purchased from Plastico its contract with the Stevwings.*fn2 Pursuant to Section 208 of the Pennsylvania Home Improvement Finance Act, Act of August 14, 1963, P.L. 1082, art. II, § 208, 73 P.S. § 500-208, a notice of the assignment was sent by WPNB to the appellants. The efficacy of this notice of assignment is the focal point of our inquiry on this appeal.

Section 208 of Home Improvement Finance Act provides as follows:

" No right of action or defense arising out of the transaction which gave rise to the home improvement installment contract which the buyer has against the contractor, and which would be cut off by assignment, shall be cut off by assignment of the contract to any third person whether or not he acquired the contract in good faith and for value unless the assignee gives notice of the assignment to the buyer as provided in this section and within fifteen days of the mailing of such notice receives no written notice of the facts giving rise to the claim or defense of the buyer. A notice of assignment shall be in writing addressed to the Buyer at his address shown on the contract and shall indicate or contain: The name and address of the assignee, the names of the contractor and the buyer and a description of the goods and services which are the subject matter of the contract, the time balance of the contract, the number and amount of installments in which the time balance is payable and the due date or period thereof, together with the following legend

[ 468 Pa. Page 29]

    printed or written in a size equal to at least ...


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