Nos 1152 & 1067 October Term, 1979, Civil Action - Law - Appeal from Order of the Court of Common Pleas, Northampton County, Dated May 1, 1979 at No. 322 May Term, 1975, Assumpsit.
Joseph F. Leeson, Bethlehem, for U.S.F. & G. Ins. Co.
Robert C. Brown, Jr., Easton, for W. T. Grant Co., Inc.
Price, Watkins and Hoffman, JJ. Hoffman, J., concurs in the result.
[ 279 Pa. Super. Page 593]
This is an appeal from a final judgment entered upon the verdict by the Honorable Alfred T. William, Jr., President Judge, Court of Common Pleas, Northampton County, on motions for summary judgment filed by both the plaintiff below, W.T. Grant, Co., Inc., (Appellee at No. 1067 and
[ 279 Pa. Super. Page 594]
hereinafter referred to as "Grant") and defendant below, U.S.F. & G. Insurance Company (Appellant at No. 1067 and hereinafter referred to as "U.S.F. & G."). Final judgment was entered in favor of Grant in the amount of $26,661.02 but an award of interest was denied. U.S.F. & G. appeals from the judgment against it in the amount of $26,661.02 and Grant appeals from the denial of interest.
The present suit is In Assumpsit for Indemnification. Grant is seeking to recover the amount it paid as a settlement contribution, costs and attorneys' fees incurred in defending a lawsuit which it asserts should properly have been defended by U.S.F. & G. under the provisions of a U.S.F. & G. General Comprehensive Liability Insurance Policy.
The pertinent facts are contained in the stipulated record filed by counsel in support of the Motions for Summary Judgment. In brief, Grant was at all relevant times a retail seller of above-ground swimming pools and accessories manufactured by H.P.E. Inc., trading as Muskin Manufacturing Company, Inc. On or about July 11, 1968, Grant sold a Muskin swimming pool, ladder and filter to Mr. and Mrs. Harold McArdle. The pool and ladder had been assembled as a display model outside Grant's store and they were sold at a reduced price and delivered to the McArdle's home. It should be noted that U.S.F. & G.'s counsel's statement that the pool and ladder had been sold in an "as is" condition is not supported by the record. The Stipulation of Counsel was that the pool, ladder and filter were sold at a "reduced price"; there is no stipulation that they were sold in an "as is" condition. The phrase "as is" finds its way into the record merely as a statement made by counsel for U.S.F. & G. at a pretrial conference on September 19, 1972, where counsel stated: "There was a clearance sale which W.T. Grant was running to dispose of these left-over pools, and the plaintiffs-the wife of McArdle, Mrs. McArdle, as I understand, went to W.T. Grant and bought this pool on a special as-is sale or some basis like that. She got a reduction in price, in any event." Thus, it is submitted that there
[ 279 Pa. Super. Page 595]
can be no finding of fact that the pool and ladder were sold with a limited warranty, i. e. in an "as is" condition.
The pool was delivered in an unassembled condition and the ladder was delivered in an assembled condition except for attachment of the ladder base support. The McArdles were supplied with the original manufacturer's assembling instructions and they assembled the pool and attached the base support to the ladder. On or about July 27, 1968, Mr. Leslie Herman, a guest of the McArdles on that afternoon, was injured in a dive or fall from the platform of the swimming pool ladder, resulting ...