Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4133 Dec Term 1974
Myles G. Glasgow, Philadelphia, for appellant.
Anne T. Hopkins, Philadelphia, for appellee.
Cirillo, President Judge, and Cavanaugh and Tamilia, JJ.
[ 357 Pa. Super. Page 469]
This is an appeal from an Order of the lower court granting summary judgment in favor of appellee/defendant Holmes Protection, Inc. and against appellant/plaintiffs Nicholas Ferro and Essex Ring Corporation.
In August of 1969, plaintiffs William Gerace and Gerace Jewelers, Inc., entered into a contract with appellee Holmes Protection, Inc., which provided for the installation and maintenance of a burglar alarm system at the Gerace Jewelry Store. The alarm system had been manufactured by defendant Walter Kidde Company. The contract contains, inter alia, a limitation of liability clause in Paragraph 10 which provides that appellee Holmes Protection, Inc.'s liability be fixed at a sum equal to a one-year service charge under the contract. Paragraph 10 of the contract provides in relevant part:
If there shall, not withstanding the above provisions, at any time be, or arise any liability on the part of the company by virtue of this agreement, or because of the relation hereby established, whether due to the negligence of the company or otherwise, such liability is and shall be limited (unless the company, in consideration of the additional charge, agrees otherwise in an amendment hereto) to a sum equal in amount to the electric protective service charge hereunder for the period of service -- not to exceed one year -- which sum shall be paid and received as liquidated damages.
A supplemental agreement was executed between the parties on December 1, 1971 and provides for a service charge of $60 per month.
On December 27, 1972, a burglary took place at the Gerace Jewelry Store and the stolen jewelry included a
[ 357 Pa. Super. Page 470]
sample case, valued at $25,502.19, belonging to appellants Nicholas Ferro and Essex Ring Corporation. At his deposition, Mr. Ferro testified that in December of 1972, William Snyderman, a sales representative of the Essex Ring Corp., had in his possession a sample line of rings owned by the Essex Ring Corp., and that this sample was left by Snyderman in the Gerace Jewelry Store on the evening before the store was robbed. However, neither the Essex Ring Corp. nor Ferro had any contract or agreement with Holmes Protection of Philadelphia with respect to the security alarm system in the Gerace Jewelry Store (Deposition Testimony, 12/12/80, pp. 10, 11).
In March of 1975 plaintiffs filed a complaint in trespass and assumpsit alleging in substance that as a result of the negligence and breach of contract of the defendants, the property of the plaintiffs had been burglarized in the amount of $76,350.21. Defendant/appellant Holmes filed an answer denying all allegations of negligence and breach of contract contained in the complaint, and by way of new matter, averred that the contract at issue contained a limitation of liability clause, thereby limiting its potential liability to the amount indicated on the contract; $720, an amount equal to the one-year service charge.
On October 21, 1981, appellee Holmes filed a motion for summary judgment as to appellants Nicholas Ferro and Essex Ring Corporation.*fn1 Appellee Holmes alleged there was no relationship between Holmes and Nicholas Ferro or Essex Ring Corporation under which Holmes owed a duty of care to either appellant. The trial court granted the motion based upon this Court's decision in LoBianco v. Property ...