No. 2862 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division-Equity, of Montgomery County, at No. 79-12262
Lawrence Pauker, Norristown, for appellant.
Amy B. Ginensky, Philadelphia, for appellees.
Wieand, McEwen and Montgomery, JJ.
[ 321 Pa. Super. Page 431]
The instant action was instituted in the lower court by the Plaintiff-Appellant, Howard Beckman, against the Defendant-Appellees Vassall-Dillworth Lincoln Mercury, Inc. (hereinafter referred to as "Vassall-Dillworth"), an automobile dealership, and Lincoln-Mercury, Division of Ford Motor Company (hereinafter referred to as "Ford"). The Plaintiff,
[ 321 Pa. Super. Page 432]
alleging a breach of an agreement for the sale of a new automobile, sought equitable relief in the nature of an order for specific performance, as well as damages. He files the instant appeal to our court from an order of the lower court which granted a motion for summary judgment filed by Ford.
Our scope of review in cases involving the review of summary judgments is very clear. As our Court stated in Husak v. Berkel, Inc., 234 Pa. Super. 452, 458, 341 A.2d 174, 177 (1975):
"Summary judgment is made available by Pa.R.C.P. No. 1035, 12 P.S. Appendix, when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment." (Citations omitted.)
The pertinent facts of record, read in the light most favorable to the Appellant, shows that on December 14, 1978, the Appellant and the Defendant Vassall-Dillworth entered into a written agreement for the Appellant's purchase of a 1979 Lincoln Continental automobile. The agreement provided for a purchase price of $12,286.00. The agreement contained the following relevant "no agency" provision:
"It is understood that there is no relationship of principal and agent between the dealer and the manufacturer and that the dealer is not authorized to act, or attempt to act, or represent himself, directly or by implication as agent of the manufacturer, or in any manner assume or create, or attempt to assume or create any obligation on behalf of or in the name of the manufacturer."
[ 321 Pa. Super. Page 433]
The Plaintiff maintained that approximately four weeks after the agreement was executed for the purchase of the automobile, when the Plaintiff inquired about the car, he was advised by Vassall-Dillworth that the order agreement could not be found so that no car had then been ordered for him. However, he alleges that the dealer asserted a willingness to order another car, but at a price different from the price originally agreed to between Plaintiff and the dealer.
After various preliminary procedural problems not relevant to this appeal were resolved in the lower court, Ford filed an Answer and New Matter.*fn1 The Appellant filed a Reply to New Matter, and discovery proceedings followed. On May 21, 1981, Appellee Ford filed a Motion for Summary Judgment. The Appellant filed responses to that Motion, ...