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MILTON WEISS v. KEYSTONE MACK SALES (02/11/83)

filed: February 11, 1983.

MILTON WEISS, JR., APPELLANT,
v.
KEYSTONE MACK SALES, INC.



No. 1323 PHILADELPHIA, 1981, Appeal from the Order of April 20, 1981 in the Court of Common Pleas of Montgomery County, Civil Action, Law No. 79 - 14086

COUNSEL

John Kerry Weston, Norristown, for appellant.

Timothy O. Nolen, Norristown, for appellee.

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Spaeth

[ 310 Pa. Super. Page 427]

This is an appeal from an order entering summary judgment. The action is for damages arising from the purchase and repair of a truck. The lower court held that damages were precluded because the purchase order stated that the truck was being sold "as is -- where is." However, the lower court did not consider conduct by the seller subsequent to the purchase order, thereby leaving unresolved the issues of whether all warranties had been effectively disclaimed, and whether any obligation subsequent to the purchase order had arisen. We therefore reverse.

[ 310 Pa. Super. Page 428]

The pleadings and answers to interrogatories may be summarized as follows.

On November 10, 1978, appellant purchased a 1974 used Mack truck from appellee. The purchase order, which is attached as Exhibit A of the complaint, purported (1) to disclaim all warranties, express or implied; (2) to exclude consequential damages as a remedy; and (3) to contain the entire agreement of the parties. The face of the purchase order contained the following: "THIS TRUCK SOLD 'AS IS.' 'WHERE IS.' NO WARRANTY OR GUARANTEE IS OFFERED OR IMPLIED." Immediately beneath this statement appears the following: "Company specifically disclaims any implied warranty of merchantability or fitness for a particular purpose." Appellant claims, however, that appellee's salesman made "certain oral and written affirmations of fact, promises and descriptions," which "became the basis of the bargain." Complaint para. 3. Specifically, appellant claims that the salesman said that the truck was the "best-running truck that Keystone Mack had purchased from [its supplier], and stated unqualifiedly that the truck was in excellent condition." Plaintiff's Answers to Interrogatories para. 1(e). Appellant also claims that appellee knew that he needed the truck in his business, and that he relied on appellee's skill and judgment in selecting a suitable truck for his business. Complaint para. 4. Appellee denies that any affirmations were made and asserts that the truck was sold "as is -- where is." Answer para. 3.

The parties also disagree over when appellant accepted the truck. Appellee claims that appellant accepted the truck on November 10, 1978. Answer para. 5. Appellant claims that when he went to get the truck on November 10, its engine emitted blue smoke, and that he refused to accept it until November 22, when appellee's salesman told him that the engine had been repaired, and signed and gave him a handwritten note that stated: "30 day warranty 50/50 on the 250 Cummins engine. If a problem develops have the truck brought back to us. We certify that the engine is in excellent running condition." Complaint para. 6; Plaintiff's Answer

[ 310 Pa. Super. Page 429]

    to Interrogatories para. 2; the handwritten note is attached as Exhibit B of the complaint. Appellant characterizes the handwritten note as "a written confirmation of the warranty on the truck's engine." Complaint para. 6. Appellee does not deny that the note was signed and given to appellant, but characterizes it as "an opinion that this engine was in excellent running condition," and denies that this "expression of opinion is a warranty." Answer para. 6.

Appellant states that after he left appellee's place of business with the truck on November 22, the truck was still emitting blue smoke, and, when he had a mechanic inspect it, a cracked engine block was found. Appellant also states that when he told appellee's salesman about the cracked block, the salesman instructed him to return the truck, and when he did return the truck on November 24, the salesman told him "that Keystone Mack would 'make good for' the engine; that Keystone Mack would obtain another block and rebuild it to replace the one in the truck; and that there would be no cost to [appellant] even if [appellee] had to sue the company they bought the truck from." Plaintiff's Answers to Interrogatories para. 2. Finally, appellant states that he made repeated inquiries about the status of the truck's repairs but the truck was not ready until January 31, 1979. Complaint para. 8; Plaintiff's Answers to Interrogatories para. 2. On the basis of these allegations, appellant claims $6,137.80 in damages as the "direct and proximate result of appellee's breach of warranty," Complaint para. 9, this amount being income lost while the truck was being repaired. He substantiates the amount of the claim by attaching to his answers to interrogatories various business receipts purporting to show his income for a comparable period in the ...


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