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EUGENE J. PALLADINO v. ANDREW DUNN (02/24/87)

filed: February 24, 1987.

EUGENE J. PALLADINO, III, ADMINISTRATOR OF THE ESTATE OF CYNTHIA S. PALLADINO, A/K/A CINDY PALLADINO, DECEASED
v.
ANDREW DUNN, INTERVENOR, V. HARLEYSVILLE INSURANCE COMPANY V. BELLEFONTE UNDERWRITERS INSURANCE COMPANY V. GOLD BRAND DATSUN, INC., ADDITIONAL DEFENDANT. APPEAL OF BELLEFONTE UNDERWRITERS INSURANCE COMPANY AND GOLD BRAND DATSUN, INC.



Appeal from the Order entered February 28, 1986, Court of Common Pleas, Bucks County, Civil Division at No. 84-02403-13-1.

COUNSEL

Thomas J. Barnes, Philadelphia, for appellants.

Allen W. Toadvine, Langhorne, for Dunn, appellee.

Jay H. Karsch, Doylestown, for Harleysville, appellee.

Cirillo, President Judge, and Montemuro and Johnson, JJ.

Author: Johnson

[ 361 Pa. Super. Page 101]

This appeal is from a declaratory judgment in which the lower court determined that Bellefonte Underwriters Insurance Company (Bellefonte) was the provider of primary liability coverage for damages arising from a motor vehicle accident where plaintiff's decedent was killed and a passenger injured. This accident occurred while decedent was in the process of purchasing an automobile from Gold Brand Datsun, Bellefonte's insured. In this case of first impression we are called upon to determine whether the decedent had a reasonable opportunity to inspect the vehicle she was purchasing and whether acceptance had occurred under the provisions of the Uniform Commercial Code ยง 2606, 13 Pa.C.S. 2606.

On February 9, 1983, Cynthia Palladino visited the showroom of Gold Brand Datsun and expressed interest in purchasing a Model 200 SX Roadster with a dealer-installed top. She did not test drive the car. She did, however, agree to a price. She also left a $5.00 deposit and signed a

[ 361 Pa. Super. Page 102]

    purchase order which listed the total price of the vehicle as $9,875. Ms. Palladino returned to Gold Brand the following evening to leave an additional deposit in the form of an insurance check for $5,462.35. On February 11, Ms. Palladino had her automobile insurance carrier, Harleysville Insurance Company (Harleysville), add the 1983 Datsun 200 SX coupe to her auto insurance policy. Ms. Palladino returned to Gold Brand on February 17, 1983, the date the car was ready for delivery. She brought the balance of money due, $4,406.65, and her automobile license plate with her. Andrew Dunn, the Gold Brand salesman, affixed her license plate to the Datsun SX 200. Ms. Palladino refused to sign the final papers or transfer the remaining balance of the purchase price without a test drive. Dunn attempted to convince the decedent that any problems would be corrected during the warranty period, but she continued to insist on a test drive. Dunn then attempted to drive her in the car, but Ms. Palladino stated. "No, I have bought this car and it is mine, I want to drive it." After that exchange, Dunn took the passenger seat, with Ms. Palladino driving. As they pulled out onto the highway from the dealer's lot, the fatal collision occurred.

Plaintiff, on behalf of Ms. Palladino's estate, filed a declaratory judgment action to determine the issue of whether insurance coverage would be provided by decedent's carrier, Harleysville, or Gold Brand's carrier, Bellefonte. On February 28, 1986, the lower court found the vehicle to be owned by Gold Brand Datsun and directed that Bellefonte was to provide primary coverage. The lower court also directed Harleysville to provide excess coverage since the Datsun 200 SX was a "covered auto" under the terms of decedent's policy. Bellefonte filed a motion for post-trial relief on March 17, 1986, under Pa.R.C.P. 227.1(a)(2), which was denied. This appeal ensued.

A procedural irregularity must be addressed initially. The provisions of Pa.R.C.P. ...


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