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decided: October 29, 1976.


Original jurisdiction in the Commonwealth Court of Pennsylvania in case of The General State Authority, Commonwealth of Pennsylvania, Plaintiff v. Coleman Cable & Wire Company, Cokain Electrical Service, Inc., Fidelity and Deposit Co. of Maryland, and McCormick, Taylor & Associates, Inc., Defendants, and Warehouse Electrical Supply, Inc., Additional Defendant.


Jack M. Stover, with him R. J. Woodside, and Shearer, Mette & Woodside, for Cokain Electrical Service, Inc.

John M. Phelan, with him Morgan, Lewis & Bockius, for Fidelity & Deposit Company of Maryland.

C. Grainger Bowman, with him McNees, Wallace & Nurick; Nevin Stetler ; and Stetler & Gribbin, for additional defendants.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 27 Pa. Commw. Page 386]

The instant action in assumpsit was commenced by the General State Authority, Commonwealth of Pennsylvania (GSA), against four named defendants: Coleman Cable & Wire Company (Coleman); Cokain Electrical Service, Inc. (Cokain); Fidelity and Deposit Co. of Maryland (Fidelity); and McCormick, Taylor & Associates, Inc. (Taylor), and stems from the installation into Polk State Hospital of allegedly defective cable. The cable had been manufactured by Coleman, wholesaled by Warehouse Electrical Supply,

[ 27 Pa. Commw. Page 387]

Inc. (Warehouse) to Cokain, who installed same in the hospital pursuant to GSA's contract.

After the filing of preliminary objections to the original complaint, GSA filed an amended complaint against the same named defendants. The amended complaint is the document upon which Plaintiff's cause of action is presently based.

Defendants Cokain and Fidelity, its surety, joined Warehouse as an additional defendant by third party complaints.*fn1 Warehouse, in turn, filed preliminary objections in the nature of a demurrer, and in the nature of a motion for a more specific complaint to the third party complaints filed by Cokain and Fidelity, and the disposition of these preliminary objections is currently before this Court.

Plaintiff's amended complaint alleges, inter alia, that certain electrical cable (5 KV cable) used and installed in the electrical distribution system as required by contract specifications, failed because it was defective. Cokain, without acknowledging the truth of the allegations contained in Plaintiff's amended complaint, in turn filed a third party complaint against Warehouse, alleging that if the 5 KV cable was defective, liability rests with the party who furnished the cable to Cokain, i.e., Warehouse. Fidelity, as Cokain's surety, filed a third party complaint against Warehouse making substantially identical allegations.

The third party complaints filed by Cokain and Fidelity, against Warehouse, are substantially identical both in allegation and in substance. Therefore,

[ 27 Pa. Commw. Page 388]

Warehouse's legal position against Cokain's complaint is identical to its legal position against Fidelity's complaint.*fn2

Warehouse Electrical Supply, Inc. Preliminary Objections

1. Demurrer

Initially, Warehouse argues that Cokain has failed to state a cognizable cause of action in assumpsit against it because Warehouse, as wholesaler of the cable, sold and delivered 5 KV cable meeting the specifications established in the contract between GSA and Cokain, and having discharged that duty, could not possibly be in breach of contract. It is argued that the contract specifications between GSA and Cokain, and the duties expressed and implied therein, govern the responsibilities of Warehouse as supplier of the cable. It is not disputed that Warehouse was aware of these specifications before providing the cable.

Warehouse also argues that the existence of detailed specifications which govern the duties as between wholesaler and purchaser, coupled with Warehouse's status as wholesaler, prevent Cokain from asserting liability against Warehouse based on warranties of fitness, merchantability or sample.

For the following reasons, we must dismiss the instant demurrer.

A cause of action ex contractu must be established by pleading the existence of a contract (including its essential terms), a breach of duty imposed by the contract

[ 27 Pa. Commw. Page 389]

    and resultant damages. Here, the duty imposed upon Warehouse in its agreement with Cokain was to provide 5 KV cable which would meet the specifications of Cokain's contract with GSA. Such cable was sold and delivered to Cokain. For purposes of this demurrer, we must assume the truth of the allegation as to specifications,*fn3 but even assuming such validity, we cannot hold that a cognizable cause of action in assumpsit has not been asserted, for the complaint rests not only upon allegations to specification but also is bottomed upon the existence of warranties between the parties.

[ 27 Pa. Commw. Page 3902]

. Warranties

Cokain has alleged the existence of certain affirmations and promises made by Warehouse with respect to testing and certification of the cable, as well as adherence to the GSA-Cokain contractual specifications. Further, Cokain's pleading avers facts supportive of warranties of fitness and merchantability as well as that of sample. See Sections 2-313, 2-314, 2-315 of the Uniform Commercial Code, Act of April 6, 1953, P.L. 3, as amended, 12A P.S. ยงยง 2-313, 2-314, 2-315.

One of the theories upon which GSA's complaint rests and upon which Cokain's third party complaint rests is the existence of express and implied warranties. But the question as posed by preliminary objections is at present premature, for the existence or non-existence of such warranties is a matter for proof at trial and not the proper subject of preliminary objection.

The demurrer states in essence that even if all facts pleaded by Cokain are true, such facts would not support a cause of action in assumpsit. Warehouse apparently challenges the existence of warranties of fitness, merchantability and sample as not being present in the contract with Cokain, and as evidence of this, points us to facts both of record, and dehors the present record, supportive of its position that warranties were neither express nor implied.

In deciding the preliminary objections before us, for purposes of the demurrer, we must accept as true all well pleaded facts by Cokain, and in doing so, we can hold no other but that the facts as pleaded are supportive of an action in assumpsit based on express and implied warranty principles.

If Warehouse is able to prove at trial that the facts as pleaded by Cokain relating to the existence of warranties

[ 27 Pa. Commw. Page 391]

    are in error, Cokain's cause of action will, of necessity, fall. However, trial, not preliminary objection, will accomplish this purpose.

By instituting objections, Warehouse has resigned itself to the posture of accepting as true the well pleaded averments in the third party complaint against it and, as such, must await trial to disprove them for, as pleaded, actions in warranty do exist.

And finally, we must deny Warehouse's motion for a more specific pleading. No attempt is made to brief, explain or support a prayer for a more specific pleading. No reference is made to a rule of civil procedure supportive of such a request and our review of the third party complaint shows specificity sufficient to allow a full and meaningful answer to be filed by Warehouse.

Consistent with the foregoing, we


And Now, this 29th day of October, 1976, the preliminary objections in the nature of demurrers and motions to strike the third party complaints of Cokain Electrical Service, Inc. and Fidelity & Deposit Co. of Maryland against Warehouse Electrical Supply, Inc., are hereby denied.


Preliminary objections denied.

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