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ROBERT J. EMERY v. E. VAUGHN WEED (06/07/85)

filed: June 7, 1985.

ROBERT J. EMERY, SR., ADMINISTRATOR OF THE ESTATE OF ROBERT J. EMERY, JR., DECEASED
v.
E. VAUGHN WEED, FRANK WEED AND HENRY WEED, INDIVIDUALLY AND T/A WEED CHEVROLET CO., APPELLANTS



Appeal from the Judgment entered in the Court of Common Pleas of Bucks County, Civil No. 79-3410-05-2.

COUNSEL

Thomas J. Profy, III, Bristol, for appellants.

William L. Goldman, Doylestown, for appellee.

Spaeth, President Judge, and Brosky and Beck, JJ.

Author: Spaeth

[ 343 Pa. Super. Page 226]

This action arises out of an agreement by appellee's son to purchase a Pacer Corvette automobile from appellant, a Chevrolet dealer. Appellee's son made several downpayments, but before payment was made in full, the Pacer was stolen from appellant's premises. Shortly afterwards, appellee's son died. Appellee, as his son's administrator, then sought to cancel the agreement and to recover his son's downpayments. The trial court sitting en banc, one judge dissenting, held that appellee is entitled to this relief; in doing so, the court dismissed appellant's counterclaim that it is entitled to keep the downpayments, and also, to recover damages in the amount of the difference between the purchase price of the Pacer and its market value on the date appellee sought to cancel the agreement. We affirm.

On June 7, 1978, appellee's son, Robert Emery, Jr., signed an agreement to purchase from appellant, for $25,000, a 1978 Chevrolet "Pacer Corvette," serial number

[ 343 Pa. Super. Page 2271]

Z87L85901303. (By "appellant" we mean the partnership Weed Chevrolet Company as well as its three partners.) When appellee's son signed the agreement, he paid appellant $10,000 toward the purchase price. R.R. 114a. On June 27, July 12, August 10, and September 28, 1978, he made additional payments, totaling $2,229.90. R.R. 115a-18a. On or about November 5, 1978, the Pacer was stolen from appellant's premises. N.T. 39. On November 15, 1978, appellee's son died. N.T. 8. Appellee then sought to cancel his son's agreement for the purchase of the Pacer and demanded a refund of the $12,229.90 paid toward its purchase. N.T. 10-12. When appellant refused, appellee instituted this action. The testimony that was given at the ensuing trial may be summarized as follows.

Edward A. Marcella, who sold the Pacer to appellee's son, testified that some 6,500 Pacers were manufactured in 1978, each Chevrolet dealer being entitled to one. N.T. 35-37. Mr. Marcella further testified as follows:

Q. What took place physically with the car after the sales contract was entered into with Mr. Emery [appellee's son]?

A. Well, we continued to have it on the showroom floor; and after Mr. Emery made some payments to us we decided to take it off the floor because we were getting inquiries, and the fact it was sold we felt we would take it and put in our new prep area in the back where we locked it up and covered it.

Q. Did Weed Chevrolet entertain any offers or proposals or in any way attempt to sell the motor vehicle after that contract was entered into with Mr. Emery?

A. Anybody asked me, I told them it was sold. We didn't make any attempt.

Q. Was that company ...


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