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DAVID TROST v. PORRECO MOTORS (04/02/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 2, 1982.

DAVID TROST, APPELLANT,
v.
PORRECO MOTORS, INC.

No. 872 Pittsburgh, 1980, Appeal from the Order of Court of July 14, 1980, Erie County, Civil Division, No. 1893-A-1978.

COUNSEL

Cygne L. Nemir, Erie, for appellant.

Joseph T. Messina, Erie, for appellee.

Cavanaugh, Cirillo and Johnson, JJ.

Author: Johnson

[ 297 Pa. Super. Page 394]

Appellant (Purchaser) filed an action in assumpsit against Appellee (Vendor) for damages of $8,876.00, plus attorney's fees under the Consumer Product Warranties Act.*fn1 Appellant alleged a breach of a warranty of merchantability on a

[ 297 Pa. Super. Page 395]

    jeep that he purchased from Appellee.*fn2 Appellant also alleged that he had revoked his acceptance of the jeep.*fn3

The court, sitting without a jury, found that a breach of warranty had occurred. As damages for the breach of warranty, the court relieved Appellant of his obligation to pay the remaining portion ($4,777.82) of the purchase price due under the installment sales contract.

Because Appellant had driven the jeep more than 26,000 miles in fifteen (15) months before he returned it to Appellee,

[ 297 Pa. Super. Page 396]

    the trial court rejected the theory that Appellant had revoked acceptance. Also, the court denied Appellant attorney's fees under 15 U.S.C.A. § 2310.

Appellant's exceptions were denied by the court en banc, and judgment was entered against Appellee.

In this appeal, Appellant raises three issues. First, did Appellant revoke his acceptance of the jeep under 12A P.S. § 2-608? Second, did the court err in denying Appellant's claim for out-of-pocket expenses incurred while he operated the jeep? Third, did the court err in denying Appellant attorney's fees under 15 U.S.C.A. § 2310?

Although Appellant cites Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976), as support for his first issue, we note that the following principle was stated in that case:

Whether goods are substantially impaired by nonconformity and whether revocation of acceptance is given within a reasonable time are questions of fact subject to the jury's determination. [Citations omitted.]

Id. at 121, 374 A.2d at 148.

In the instant case, the trial judge sat as fact-finder. After a comprehensive review of the entire record, we find no reason to reverse the trial court's holding that Appellant was not entitled to assert revocation of acceptance.

Since Appellant's entitlement to out-of-pocket expenses is dependent upon a finding that he revoked acceptance of the jeep,*fn4 this issue lacks merit.

[ 297 Pa. Super. Page 397]

Regarding Appellant's third issue, section 2310(d)(2) of 15 U.S.C.A. specifies that the allowance of damages is within the discretion of the court. Since we do not find that the trial judge abused his discretion in the instant case, this issue also lacks merit.

For the foregoing reasons, the order of July 14, 1980, is affirmed.


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