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filed: December 29, 1980.


No. 856 October Term, 1979 Appeal from the Order of the Court of Common Pleas of Susquehanna County, Civil Action--Law, No. 19 August Term, 1977.


Robert J. Fields, Waymart, for appellant.

Stephen G. Bresset, Honesdale, for Yates, appellee.

Paul A. Barrett, Scranton, for Chrysler, appellee.

Price, Watkins and Hoffman, JJ.

Author: Price

[ 283 Pa. Super. Page 298]

The instant appeal is from the order and judgment in the court of common pleas awarding appellee, Walter Yates, $2,780.12 with interest from January 17, 1977, in his suit against appellant, Clifford Motors, Incorporated, for damages resulting from rescission of a contract for the purchase of a Dodge pick-up truck. For the reasons that follow, we affirm the trial court's verdict as to the liability of appellant but reverse and remand on the issue of damages.

[ 283 Pa. Super. Page 299]

When a trial judge, sitting without a jury, makes findings of fact which are subsequently affirmed by the court en banc, such factual determinations are binding upon us provided that they are supported by the evidence. Simon v. Hospital Service Association of Pittsburgh, 192 Pa. Super. 68, 159 A.2d 52 (1960); Merit Motors, Inc. v. Bartholomew, 179 Pa. Super. 576, 118 A.2d 277 (1955). Moreover, "[t]he party favored by the finding[s] is entitled to have the evidence viewed in the light most favorable to him, and to receive the benefit of all favorable inferences, and to have all conflicts in the testimony resolved in his favor" Simon v. Hospital Service Association of Pittsburgh, 192 Pa. Super. at 71-72, 159 A.2d at 54 (citation omitted). Evaluating the evidence by that standard, the following background of this dispute is established.

On January 13, 1977, appellee Yates test drove a Dodge club-cab pick-up truck and entered into a discussion with one Joe Farino, appellant's salesman, regarding the possible purchase of said vehicle. During the test drive, Yates detected a vibration in the front end of the truck and brought it to Farino's attention. Farino suggested that the problem possibly was caused by the icy road conditions and that if it was mechanically induced it could be alleviated by a minor adjustment. Following the test drive, Farino and Yates discussed the purchase price, the "extras" to be included within said price and the gas mileage which Yates could expect the truck to get. Yates ultimately agreed to purchase the truck for $2,000 plus the trade-in value of his 1976 Dodge Aspen.

On January 14, 1977, appellee returned to Clifford Motors to examine the truck with a friend. On this occasion, Yates detected a defect in the driver's side door which prevented the door from closing completely. Farino assured Yates that the door would be repaired and that there would be no other difficulties since the vehicle was new and under warranty. The truck thus remained with appellant. Yates returned, either on Monday, January 16 or Tuesday, January 17, 1977, to take delivery of the truck. When the truck was

[ 283 Pa. Super. Page 300]

    brought from the service area, however, it was apparent that the defective door had not been repaired. In addition, appellee observed scrapes and gouges in the finish on the passenger side door and rear quarter panel. Yates was again assured that the defects would be rectified but since the shop was closed for the day, Yates was instructed to take delivery of the truck, to schedule an appointment to have the truck repaired at a later date, and to make a list of any other defects which became apparent during the interim.

Appellee's subsequent use of the truck revealed numerous problems. Even unloaded, the truck would not travel a hill unless it was first driven several miles to warm the engine. Rather than the fifteen to seventeen miles per gallon of gasoline Yates was told to expect, the truck obtained only about five miles to the gallon. Although the vehicle was to have been equipped with Goodyear tires, tinted glass on all windows and a factory radio, as delivered, the tires were manufactured by General, only the windshield was tinted, and the radio installed by the dealer failed to fit properly in the dashboard. Besides these shortcomings, the heater failed to generate heat and thus had to be replaced. On at least four occasions, the truck was returned to appellant's repair shop to have the problems corrected. Although repair work was performed, the defect which prevented the door from being completely closed, the front end noise and vibration complained of during the initial test drive, and the marred finish on the door and quarter panel were never corrected.

Thereafter, appellee attempted unsuccessfully to contact appellant's owner on numerous occasions concerning the difficulties he was experiencing. Approximately one week before his first monthly payment was due, Yates contacted the Jermyn Bank, which bank financed appellee's purchase of the truck. Yates explained the difficulties with the truck as well as his inability to contact appellant's owner and informed the bank that he would make no payments on the truck until the appropriate repairs were made. The person

[ 283 Pa. Super. Page 301]

    to whom Yates spoke reportedly informed him that the bank would contact appellant and attempt to resolve the difficulties. Yates thus continued in his refusal to make payments and, although the Jermyn Bank apparently failed to fashion a solution, Yates received neither notification of the bank's failure nor a statement that his account was past due.

Nearly four months after Yates took delivery of the truck and some three months following his communication with the Jermyn Bank, the matter remained unresolved. On or about May 5, 1977, therefore, appellee filed a complaint in assumpsit against appellant, Clifford Motors. Two months later, during the first week in July, appellant repossessed the truck based upon appellee's failure to make the required payments. Thereafter, on or about February 3, 1978, Clifford Motors served a Complaint Against Additional Defendant on Chrysler Corporation, the manufacturer of the truck involved herein.

Finding no evidence that Chrysler Corporation committed a breach of warranty, the trial court granted appellee Chrysler's motion to dismiss the action as against Chrysler on January 11, 1979. On February 6, 1979, following a non-jury trial, a verdict was rendered in appellee Yates' favor and against Clifford Motors. The trial court reasoned, pursuant to section 2-606 of the Pennsylvania Uniform Commercial Code [hereinafter referred to as "U.C.C."],*fn1 that ...

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