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filed: December 1, 1980.


No. 2114 October Term, 1978 Appeal from the Judgment in the Court of Common Pleas of Lebanon County, Civil Action--Law, No. 565, 1975.


Harry W. Reed, Jr., Lebanon, for appellant.

Bruce A. Grove, Jr., Harrisburg, for appellees.

Price, Spaeth and Lipez, JJ. Spaeth, J., files a dissenting opinion.

Author: Price

[ 282 Pa. Super. Page 501]

The instant appeal is from a judgment in the trial court awarding appellees $6,404.98 in their suit in assumpsit to rescind a contract for the purchase of a mobile home and awarding appellant $179.19 in its counterclaim. Finding the evidence insufficient to support appellees' cause of action, we reverse.

On September 9, 1971, appellees executed an agreement to purchase a two-bedroom mobile home from appellant. Although not incorporated into the agreement, testimony established that appellees had been shown and agreed to purchase a 1971 PMC mobile home, manufacturer's serial number ending in the last three digits 230. On September 22, 1971, an installment sales contract was executed by the parties. This agreement, however, listed the home as a 1971 PMC mobile home, serial number 277. Appellant then assigned the financing contract to a local bank and warranted its enforceability.

In late September 1971, appellees moved from their former residence in Maryland to appellant's mobile home park in Lebanon County with the expectation that the two-bedroom number 230 home would be situated in the park. Instead of finding the two-bedroom home, appellees found a three-bedroom mobile home, serial number 277. They immediately notified appellant and the financing bank that a mistake had been made. Because they were without accommodations, however, appellees moved into the three-bedroom

[ 282 Pa. Super. Page 502]

    mobile home, whereupon they discovered numerous major defects in its construction. After repeated complaints were made to appellant regarding the defects in the number 277 home and their desire to obtain the number 230 two-bedroom home, appellees were instructed by appellant to select another home which would be installed in a newly constructed portion of appellant's mobile home park. Appellees selected a two-bedroom mobile home serial number 228, and it was installed in August of 1972. Upon moving into this home, appellees discovered that it did not include various furnishings that had been promised and that it had various defects.

In November 1972, appellant requested appellees to execute the certificate of title to the number 277 three-bedroom home that had been previously occupied by appellees. Appellant had found a purchaser for the home, but was unable to complete the transfer until appellees signed the certificate of title. Appellees refused to sign the certificate claiming that they would not execute any papers until the defects in the number 228 home in which they were then residing were rectified. Relations between the parties continued to deteriorate, and appellant's records indicate that the final service call on the number 228 home took place in May of 1973. Thereafter, throughout 1973, appellees ignored appellant's repeated correspondence requesting that they sign the certificate of title to the model 277 home, apparently on the basis of appellant's failure to correct the defects in the model 228 home.

In or about January of 1974, appellant initiated a criminal proceeding under section 207 of the then-applicable Vehicle Code on the basis of appellees' refusal to effectuate a transfer of the certificate of title to the number 277 mobile home. See Act of April 29, 1959, P.L. 58, § 207, as amended 75 P.S. § 207(a) (1971), repealed and replaced, 75 Pa.C.S. § 1111(a). In response to that complaint, appellees retained counsel, who advised them to sign the certificate of title to the three-bedroom mobile home.

[ 282 Pa. Super. Page 503]

Appellees' counsel then entered into negotiations with appellant to resolve the dispute over the number 228 two-bedroom mobile home. Appellees' attorney posted a letter to appellant's counsel on May 29, 1974, in which he asserted that the number 228 two-bedroom mobile home was in used condition, listed various defects and stated that his clients "want what they bargained for, namely, a new P.M.C. mobile home." (Record at 361a) (emphasis in original). By another letter on June 14, 1974, appellees' attorney inquired as to the position of appellant and stated that "[s]hould I not have a written reply from you within 10 days of this letter, I shall presume that you wish me to follow the formal litigation route and I will immediately do so." (Record at 363a). Three days later, on June 17, 1974, appellant's counsel responded, in part, as follows:

"I had forwarded your letter of May 29 to International Housing, Inc., and further, spoken to Lee Heisey, Secretary of International Housing, Inc., in regard to getting in touch with Mr. John Kuhn [then president of appellant] in an effort to piece together the facts of this case. As of this date, Mr. Heisey is still attempting to assemble relevant information pertaining to your claim but, apparently has had little co-operation from Mr. John Kuhn in this matter. I hope that you can persuade Mr. Cardwell to be patient until we have had an opportunity to carefully review the merits of his complaints." (Record at 364a).

Testimony established that the parties did not engage in additional negotiations thereafter.

On March 14, 1975, appellees filed suit alleging breach of the original sales agreement by appellant. Preliminary objections were filed and dismissed, and after an unexplained delay, appellant filed its answer and counter-claim on January 17, 1977. On the advice of counsel, appellees continued to reside in the mobile home until June 1975,*fn1 when they

[ 282 Pa. Super. Page 504]

    were forced to vacate the home and leave it in appellant's park after appellant evicted them for violation of certain regulations governing the mobile home park. Thereafter, they continued to make payments on the home until February 1976.*fn2 The home was finally repossessed by appellant in October 1976.

When the case came to trial, the court instructed the jury that appellees could recover on either of two theories: (1) that they never accepted the two-bedroom number 228 home in August 1972 as a substitute for the number 230 originally promised; or (2) that they accepted the home but subsequently revoked their acceptance as a result of the defects. At the close of trial, the jury returned a verdict awarding appellees $6,404.98, representing the amount they had paid to appellant for the home, and for appellant on its counterclaim for $171.19, representing rent at its mobile home park for three months at the rate of $53.00 per month plus $12.19 for parts installed by one of its repairmen in fixing a defect in the furnace of the number 228 home. Appellant now appeals alleging that the evidence was insufficient to sustain the award under either theory upon which the case was submitted to the jury, and thus, the trial court erred in refusing its motion for judgment non obstante veredicto. We agree, but as indicated in our discussion below, reverse and remand for a new trial.

Before addressing appellant's contentions, we initially note that our standard of review in an appeal from a trial court's refusal to enter judgment n. o. v. is to view the evidence, and all inferences reasonably deducible therefrom,

[ 282 Pa. Super. Page 505]

    in the light most favorable to appellees as the verdict winners. See, e. g., Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Atkins v. Urban Redevelopment Auth., 263 Pa. Super. 37, 396 A.2d 1364 (1979). Moreover, we note that a mobile home has been held to fit within the definition of "goods" in section 2-105 of the Pennsylvania Uniform Commercial Code, Act of April 6, 1953, P.L. 3, § 2-105, amended, Act of October 2, 1959, P.L. 1023, § 2, 12A P.S. § 2-105 [hereinafter U.C.C.] see Duffee v. Judson, 251 Pa. Super. 406, 380 A.2d 843 (1977), and in the absence of a contrary agreement, the provisions of the U.C.C. will govern in interpreting the transaction between the parties. See U.C.C. section 1-102(3).

Acceptance of Number 228 Mobile Home as a Substitute

Although the trial judge instructed the jury to determine whether appellees agreed to accept the number 228 home as a substitute for the number 230, we note that neither party on appeal has addressed the issue whether the award may be supported based upon this theory. Indeed, appellees by their own admissions appear to have conceded that the verdict may not be supported on that basis. At trial, appellee William Cardwell testified that after appellees rejected the three-bedroom number 277 mobile home, he was instructed by appellant in August 1972 to select a new two-bedroom home for installation in appellant's park. He selected and agreed to accept the two-bedroom number 228 home as a substitute for the number 230 provided that it was "okay."*fn3 Thereafter, no one associated with appellant made any promises that appellees would receive the number 230 home that was the subject of the original agreement. Moreover, William Cardwell also testified that he would have been content simply to have the defects in the model

[ 282 Pa. Super. Page 506228]

mobile home repaired. Thus, by their own evidence, appellees conceded that they abandoned their rights under § 2-601 of the U.C.C. to reject the mobile home as nonconforming to the original contract calling for delivery of the number 230 home. See U.C.C. § 2-607(2).

Revocation of Acceptance

With respect to the second contention, appellant alleges that the evidence was insufficient to support recovery on the theory that appellees revoked their acceptance of the number 228 home as a result of the defects in the home because: (1) appellees did not notify appellant that they were revoking their prior acceptance; (2) there was no offer or tender after the revocation, if any; (3) the revocation, if any, occurred after an unreasonable passage of time; and (4) the use of the mobile home for a number of years constitutes an acceptance precluding revocation.*fn4 Before undertaking an analysis of these contentions, we must review the trial court's determination that appellant waived these defenses

[ 282 Pa. Super. Page 507]

    by failing to specifically allege them in the new matter section of its answer to appellees' complaint.

Appellees' complaint, filed in March of 1974, merely alleged that appellant breached the contract of sale by its failure to deliver the number 230 mobile home that had originally been agreed upon and its delivery of first a used three-bedroom home and then a used two-bedroom home, and specified various defects in the two-bedroom home. Appellees also alleged that at the time appellant delivered the two-bedroom home in August of 1972, and on numerous occasions thereafter, appellees continued to object that they had not received the number 230 home that had been the subject of the original agreement of sale. Thus, by their own pleadings, appellees appeared to be proceeding upon only one theory-that they never accepted the number 228 mobile home as an accommodation for the number 230 home.*fn5 In ...

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