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DISCOUNT DRUG CORPORATION v. HONEYWELL PROTECTION SERVICES (08/27/82)

filed: August 27, 1982.

DISCOUNT DRUG CORPORATION, APPELLANT,
v.
HONEYWELL PROTECTION SERVICES, DIVISION OF HONEYWELL, INC.



No. 1305 Philadelphia, 1981, Appeal from the Order of Court of April 21, 1981, Montgomery County, Court of Common Pleas, Civil Division, No. 79-7623.

COUNSEL

Mark D. Turetsky, Norristown, for appellant.

Brian Sullivan, Norristown, for appellee.

McEwen, Johnson and Watkins, JJ.

Author: Johnson

[ 303 Pa. Super. Page 523]

This is an appeal from a summary judgment that dismissed Appellant's complaint against Appellee for breach of warranties and negligence. For the following reasons, we reverse and remand for trial.

Appellant leased premises in New York City from a New York corporation (lessor). In a separate agreement, Appellant paid lessor for the use of a burglary alarm system that had been previously installed by Appellee. Appellee was not a party to the aforesaid contract.

Later, Appellant requested the lessor to obtain additional security devices, for which Appellant agreed to pay additional money to the lessor. Pursuant to a contract with the lessor, Appellee installed new devices and integrated them into the general alarm system. Appellant alleges, first, that the new devices did not operate properly since their installation, and, second, that Appellee did not make any effort to correct the problem, despite Appellant's numerous calls.

Appellant's premises were burglarized a month after the installation of the new equipment, but the alarm remained silent, allegedly because the system was defective.

Appellant filed the complaint as a third-party beneficiary of the contract between Appellee and the lessor. After pretrial discovery, Appellee's motion for summary judgment

[ 303 Pa. Super. Page 524]

    was granted. This is an appeal from the order of April 21, 1981, which granted Appellee's motion and dismissed Appellant's complaint.

Appellant raises two issues for our consideration. First, should a summary judgment have been based upon a limitation of liability clause in the contract for installation and service of a burglary alarm system? Second, can a limitation of liability clause bar a claim based on express and implied warranties when the clause neither mentions the warranty nor contains any language which purports to modify ...


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