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MICHAEL J. SUNSERI v. RKO-STANLEY WARNER THEATRES (06/29/77)

decided: June 29, 1977.

MICHAEL J. SUNSERI
v.
RKO-STANLEY WARNER THEATRES, INC., APPELLANT



Appeal from the Judgment of April 6, 1976 of the Court of Common Pleas of Cambria County, Civil Action - Law at No. 968 December Term, 1973.

COUNSEL

Gary C. Horner, Johnstown, for appellant.

Francis J. Leahey, Jr., Ebensburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result.

Author: Price

[ 248 Pa. Super. Page 113]

This appeal involves a contractual dispute. The case was tried before a judge and jury, resulting in a verdict in the amount of $13,500 for plaintiff-appellee Sunseri. Appellant raises the following assignments of error: (1) The trial court erred in ruling that as a matter of law the disclaimer language of the bill of sale was not a valid disclaimer of warranty; (2) the trial court erred in allowing certain testimony in violation of the parol evidence rule; (3) the trial court erred in refusing to charge the jury that as a matter of law the circumstances surrounding the sale gave the buyer reason to know that the seller was not claiming title in itself and that it was purporting to sell only such right or title as it had; and (4) the trial court erred in refusing defendant's motion for a judgment n. o. v. or, in the alternative, defendant's motion for a new trial, which should have been granted because the verdict was against the evidence. We affirm.

Appellant [RKO] is the owner of the State Theatre building in Johnstown, Pennsylvania. Prior to July, 1968, Francis Zatalava operated a bowling alley and billiard parlor in the basement of this building. Zatalava rented space from RKO and owned the recreational equipment himself, subject to a security interest in Trenton Trust Company. In July of

[ 248 Pa. Super. Page 1141968]

, the City of Johnstown closed Zatalava's business for failure to pay city taxes. Zatalava also owed back rent to RKO, which subsequently obtained an assignment of Trenton Trust's interest in Zatalava's equipment so that it could reach these assets.

In July of 1969, RKO sold the equipment to Samuel Pagano and appellee Michael Sunseri, who also leased the basement and ran the recreation center as partners. Appellee Sunseri eventually bought out Pagano's interest in the business and became its sole owner. In April of 1971, Zatalava brought a replevin action against appellee and RKO to regain title to the equipment. In a non-jury proceeding, the court found that Zatalava had the paramount claim of ownership. Appellee then instituted the action involved herein, claiming that RKO breached its warranty of title or, in the alternative, that it fraudulently misrepresented the nature of its interest in the equipment and thus induced appellee to make the purchase.

The document which evidences the transaction between Pagano and Sunseri, as partners, and RKO is entitled "Bill of Sale" and provides, in pertinent part, as follows:

"[Seller] . . . does hereby sell, assign, convey, transfer and deliver to Buyer any right, title and interest Seller may have in the following goods and chattels. . . .

It is expressly understood and agreed that the Seller shall in nowise be deemed or held to be obligated, liable, or accountable upon or under guaranties [sic] or warranties, in any manner or form including, but not limited to, the implied ...


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