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SHIRLEY J. WHITMER v. BELL TELEPHONE COMPANY PENNSYLVANIA (03/06/87)

filed: March 6, 1987.

SHIRLEY J. WHITMER, APPELLANT,
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, APPELLEE



Appeal from the Order entered June 6, 1985 in the Court of Common Pleas of Lehigh County, Civil No. 85-C-41.

COUNSEL

Joyce Ullman, Philadelphia, for appellant.

Cirillo, President Judge, and Wickersham and Kelly, JJ.

Author: Kelly

[ 361 Pa. Super. Page 284]

In this case, we are called upon to determine whether the use, or attempted use, of a public pay telephone involves a "transaction in goods" so as to trigger application of implied warranties*fn1 imposed by Article II of the Uniform

[ 361 Pa. Super. Page 285]

Commercial Code as it has been adopted in Pennsylvania. 13 Pa.C.S.A. ยง 1101 et seq. (hereinafter Code). We find that neither the use, nor the attempted use, of a public pay telephone involves a "transaction in goods," and consequently, the implied warrant provisions of Article II of the Code do not apply.

Appellant, Shirley Whitmer, alleges that she was injured on July 26, 1981, when, as she lifted the receiver of a pay telephone, the metal cord which connects the receiver to the wall unit snapped and struck her in the mouth. The pay telephone in question was owned by appellee, Bell of Pennsylvania, and was mounted to the wall of the entrance way of a K-Mart store in Allentown, Pennsylvania.*fn2

On January 1, 1985, appellant filed the instant suit, alleging that appellee had breached implied warranties imposed by the Code. On February 21, 1985, appellee filed preliminary objections in the nature of a demurrer. The preliminary objections were sustained by order and opinion of the trial court filed June 6, 1985. Reconsideration was denied, and this timely appeal followed.

On appeal, appellant contends that: 1) the trial court erred in failing to accept as true all of the well-pleaded facts of the complaint; and 2) the trial court erred in finding that the appellant's attempt to purchase a telephone call on a public pay telephone was not a "transaction in goods" so as

[ 361 Pa. Super. Page 286]

    to trigger the implied warranty provisions of the Code. We find no merit in either contention; accordingly, we affirm the order of the trial court.

I.

Appellant first contends that the trial court erred in failing to accept as true all of the well-pleaded facts of the complaint. Appellant argues that the trial court "made its own gratuitious [sic] findings of fact, created an irrelevant factual scenario, and based its decision on a hypothetical factual alternative." (Appellant's Brief at 10). Appellant argues that had the trial court accepted the facts as pleaded, the trial court would not have sustained appellee's demurrer. We cannot agree.

It is axiomatic that in determining whether a complaint sets forth a cause of action, which if proven would entitle the plaintiff to the relief sought, the court must accept as true all of the well-pleaded material facts contained in the complaint, as well as all of the reasonable inferences deducible therefrom, but need not accept as true any conclusions of law. See Allegheny Co. v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); Higgens v. Clearing Machine Corp., 344 Pa. Super. 325, 327, 496 A.2d 818, 819 (1985); Bartanus v. Lis, 332 Pa. Super. 48, 52-53, 480 A.2d 1178, 1180 (1984). Upon review of the pleadings and the order and opinion of the trial court, we find that the trial ...


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