NO. 1086 PITTSBURGH, 1981, Appeal from the Judgment entered of October 15, 1981, in the Court of Common Pleas of Allegheny County, Civil at No. GD 78-10097.
S. Asher Winikoff, Pittsburgh, for appellant.
Samuel H. Elkin, Pittsburgh, for appellee.
Brosky, McEwen and Beck, JJ.
[ 323 Pa. Super. Page 19]
Dormont Manufacturing Company (Dormont) sued ITT Grinnell Corporation (Grinnell) in assumpsit, claiming breach of warranties in Grinnell's sale of parts for flexible gas connectors manufactured by Dormont. Grinnell counterclaimed for the sales price of the connectors. The court of common pleas, Allegheny County, entered a non-jury verdict for Grinnell on both the claim and the counterclaim and denied Dormont's exceptions. Judgment was entered against Dormont on October 16, 1981 and this appeal followed.
The controversy in this suit arose out of the composition of the fittings, or unions, that are placed at the end of flexible metallic gas hose. These unions are composed of three pieces of metal joined at a seat. Dormont, a manufacturer of hose connectors for commercial and residential use, bought the fittings from their supplier, Grinnell, beginning in 1973. For a few years the seats of the fittings were made of brass. Brass is an acceptable medium for use in fittings where natural gas is transmitted in the hose. At some time prior to October 1977, Grinnell changed its manufacture of the seat and began to use copper in place of brass. Copper seats are satisfactory for the pumping of water or oil, but do not meet the standards of the American Gas Association for the transportation of natural gas. As a result of the substitution, Dormont claims, they suffered business losses in the form of rejection of Dormont connectors by several purchasers. In particular, Dormont claims damages resulting from rejection of a shipment of 420 hose connectors to the Southern California Gas Company in October 1977.
Dormont first claims that the sale of the fittings with a copper rather than a brass seat breached an express warranty under § 2-313*fn1 of the Uniform Commercial Code
[ 323 Pa. Super. Page 20]
(12A. P.S. § 2-313, Rep., recodified as 13 Pa.C.S. § 2313). Dormont claims reliance on an express warranty in Grinnell's catalogue description of the item. However, Grinnell's catalogue was withdrawn from evidence during the trial by Dormont's counsel, R. 81-82a, and Dormont's exceptions make no reference to the catalogue. Therefore, Dormont is precluded from making this argument on appeal.
Dormont also argues that reliance on past sales of fittings with brass seats created a "part of the bargain" between the parties under an express warranty. § 2-313 posits the "basis of the bargain" in an express warranty as either (a) an affirmation of fact or promise made by the seller to the buyer; or (b) any description of the goods; or (c) any sample or model.
The question therefore turns on whether Grinnell made an affirmation, promise or description upon which Dormont relied, or whether a sample or model formed part of the bargain. Dormont avers no affirmation, promise or description, but avers that it relied on the satisfactory brass seats that were provided by Grinnell in prior sales.
We must then inquire whether the product furnished in past sales acted as a sample or model within the meaning of § 2-313, and we conclude that satisfactory prior sales alone do not constitute ...