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filed: December 29, 1980.


Nos. 695 and 743 April Term, 1979 Appeals from the Order of the Court of Common Pleas of Allegheny County, Civil Division at No. 3575 April Term, 1974


John A. Tumolo, Pittsburgh, for appellant at No. 695 and for appellee at No. 743.

Henry W. Fulton, Jr., Pittsburgh, for appellee at No. 695 and for appellant at No. 743.

Price, Brosky and Montgomery, JJ.

Author: Montgomery

[ 283 Pa. Super. Page 354]

The Plaintiff instituted this action in the lower court alternatively in trespass and/or assumpsit for fraud and breach of express and implied warranties. The dispute between the parties arose out of a sales transaction wherein the Plaintiff, Robert Sullivan, purchased a used truck from the Defendant, Allegheny Ford Truck Sales, Inc. Trial was held before a judge, without a jury. Following the trial, and at the suggestion of the trial judge, the Plaintiff petitioned for permission to amend his Complaint to include a count alleging a right to a recovery based upon a mutual mistake of fact, so as to conform to the proof presented at trial. The trial judge permitted the amendment, and while rejecting the Plaintiff's claims based upon his originally pleaded cause of action, awarded him damages in the amount of $2,500.00 based upon the mutual mistake theory. Both parties filed exceptions, which were denied by the court en banc. Subsequently, each filed a separate appeal to this Court, and these appeals have been consolidated for our review.

[ 283 Pa. Super. Page 355]

At the trial, the lower court was presented with differing testimony by various witnesses as to the material facts concerning the issues in dispute. The lower court's findings of fact were based upon the testimony of those witnesses whom the trial judge found to be credible. Based upon the trial judge's determinations of credibility, we find that the following facts were established: The Plaintiff visited the Defendant's truck sales facility in late September, 1973, in order to purchase a truck for use in the business of hauling steel. Although it was at first determined that the Plaintiff had insufficient credit to obtain the vehicle he desired, he was subsequently contacted by Defendant's employees who advised him that another truck had recently become available, suitable for steel hauling, and for which the Plaintiff could obtain financing for a purchase. The Plaintiff was advised by the employees of Defendant that the used truck in question had recently had an engine overhaul.

After the contact by Defendant's employees, the Plaintiff visited the Defendant's facility and saw the truck. The representation as to the engine overhaul was repeated and the Plaintiff was shown a repair receipt which had been provided to the Defendant by the previous owner of the vehicle, and which indicated that the engine overhaul work had been performed a few months earlier. The Plaintiff's visit to the Defendant's facility was on September 27, 1973. Later that day, an agent of the Defendant picked up a $50.00 deposit check at the Plaintiff's home. In visits to the Defendant's sales facility over the next couple of days, the Plaintiff signed a financing agreement for the vehicle and a purchase order form provided by the Defendant, provided the Defendant with a check for $1,450.00, representing a down-payment, and removed the truck from Defendant's premises.

A few days later the Appellant hauled a load of steel. He thereafter stopped payment on his check and alleged to the Defendant's employees that the truck lacked sufficient power. He attempted to return the vehicle on October 2, 1973. The Defendant's employees refused to accept it. The Plaintiff

[ 283 Pa. Super. Page 356]

    retained the truck and thereafter issued a replacement for the check on which he had stopped payment. The lower court concluded that personal problems and economic factors, rather than the condition of the truck, caused the Plaintiff at that time to reconsider his decision to enter the trucking business. In support of that conclusion, the court noted that at that time, the Plaintiff had complained to Defendant's employees of the disruption in his family life as a result of his purchase of the truck and entry into the steel hauling business. The Plaintiff apparently attempted to resolve his personal problems by hiring a driver to operate the truck. Over the next few months, the Plaintiff made three subsequent visits to the Defendant's facility for repairs. On such occasions, the Plaintiff never made a complaint about the truck allegedly having insufficient power to perform its steel hauling functions.

The Plaintiff failed to make any payments pursuant to the financing agreement after December, 1973. In February, 1974, during a strike in the steel hauling industry, the Plaintiff took the truck to a garage for engine work. The mechanic at that garage advised the Plaintiff that the engine in his truck had never been overhauled. The mechanic did the overhaul, but the Plaintiff never reclaimed the truck, which was eventually repossessed by the entity which had financed the Plaintiff's purchase. The lower court found that Plaintiff's abandonment ...

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