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F. BRIAN DODSON AND LISA A. DODSON v. N. JOHN CUNZOLO & ASSOCIATES ARCHITECTURAL CLAY PRODUCTS (03/30/84)

filed: March 30, 1984.

F. BRIAN DODSON AND LISA A. DODSON, HIS WIFE, APPELLANTS,
v.
N. JOHN CUNZOLO & ASSOCIATES ARCHITECTURAL CLAY PRODUCTS, INC., A CORPORATION CAPITOL TILE IMPORT CO., A FOREIGN CORPORATION



No. 204 Pittsburgh, 1982, Appeal from the Judgment entered by the Court of Common Pleas of Allegheny County, Civil Division at No. GD-81-13986.

COUNSEL

Frederick W. Bode, III, Pittsburgh, for appellants.

Errol S. Miller, Pittsburgh, for appellees.

Wieand, Tamilia and Popovich, JJ. Wieand, J., files a concurring statement.

Author: Popovich

[ 326 Pa. Super. Page 284]

This is an appeal from the Order of the Court of Common Pleas of Allegheny County (per Judge McGowan) granting a petition to open judgment. We reverse.

On May 26, 1981 plaintiffs-appellants (F. Brian Dodson and Lisa D. Dodson) filed a complaint in assumpsit and trespass against the defendants-appellees (N. John Cunzolo & Associates, Architectural Clay Products, Inc. and Capitol Tile Import Co.). Therein, appellants alleged, in relevant part, that:

2. . . . the defendant, N. John Cunzolo . . . was employed by the plaintiff[s] as a general contractor to oversee and construct a residence for the plaintiff[s] . . . .

7. . . . the defendant, N. John Cunzolo & Associates, subcontracted with Architectural Clay Products, Inc., . . . and Capitol Tile Import for the purpose of

[ 326 Pa. Super. Page 285]

    laying ceramic Italian tile in the foyer, kitchen and bathroom areas.

8. . . . the defendant breached its contract with the plaintiff[s] by failing to properly supervise, inspect and employ responsible subcontractors for the completion of the residence . . . .

9. . . . the defendant breached its contract with the plaintiff by purchasing defective Italian tile, which failed to meet the specific flooring standards established by the plaintiff[s] and the defendant.

11. . . . as a direct and proximate result of the breach of contract by the defendant, . . . the plaintiffs and their residence have sustained damage in that the aforesaid tile cracked and chipped necessitating its removal and replacement.

In the remaining portion of the complaint, the appellants sought recoupment of damages against the general contractor, the subcontractor (Architectural Clay Products, Inc.) and the distributor or seller (Capitol Tile Import Co.) of the purportedly defective tile under theories of strict liability (Section 402(a) of the Restatement (Second) of Torts) and express and implied warranties provided for by the Uniform Commercial Code.

At this point, it requires mentioning that, inasmuch as the petition to open was granted so as to afford "the Defendant, Capitol Tile Import Company, . . . permi[ssion] to enter a defense[,]" we need only concern ...


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