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filed: April 21, 1988.


Appeal from the Order entered March 17, 1987 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 6517 March 1986.

Before: Wieand, Kelly and Hester, JJ.


This is an appeal from the order of March 17, 1987 granting appellee's, Vilsmeier Auction Company, Inc. (hereinafter Vilsmeier), motion for summary judgment against appellant herein, John H. Musser (hereinafter Musser). We affirm.

The action in question arises from injuries allegedly sustained by Musser while operating an International Harvester payloader tractor on April 6, 1984, as a result of a mechanical defect of the tractor. Vilsmeier had conducted the auction from which the tractor had been purchased by Musser's father on April 3, 1984. The auction was a sale of the inventory of Wenger's Farm Machinery, Inc. At no time did title, ownership or possession of the property being auctioned belong to Vilsmeier. The following was stated by the trial court in its opinion of March 17, 1987:

Approximately two weeks prior to this auction potential customers were sent a brochure which stated in plain print 'it is the object of the seller and auction company to conscientiously and accurately present the description and conditions contained in this advertising; however, neither the seller nor the auction company shall in any way be responsible for any errors or omissions in the description or conditions contained in this advertising.'

In addition, all potential customers were required prior to the opening of the auction to register by filling out a registration card upon which, above the execution line, the following language was printed: 'I UNDERSTAND ALL ITEMS ARE SOLD "AS IS" AND WHERE IS' without any guarantees expressed or implied. Any written or implied conditions are only guidelines and not guarantees.' A disclaimer similar to that on the registration card was printed on the inside cover of catalogs listing the auction items for sale which were distributed to potential customers following registration. Prior to the opening of the sale a disclaimer was again made to potential customers through the explanation made by either Richard W. Hutchinson or Walter F. Vilsmeier that everything was to be sold 'as is' and that the catalog was just a guideline.

Follwing [sic] Plaintiff's accident on the tractor purchased at the auction in question, this action was commenced upon the Plaintiff's filing a complaint against Vilsmeier. The complaint set forth against defendant a cause of action for negligence, for breach of warranty, and for strict liability on the basis of Section 402A of the Restatement of Torts (Second). In response to this Complaint Vilsmeier filed a Motion for Summary Judgment.

(Trial Ct. Op. at 2, 3).

Vilsmeier's motion for summary judgment was subsequently granted and Musser appeals to this Court. Musser alleges on appeal that the trial court erred in: 1) granting Vilsmeier's motion for summary judgment when genuine issues of fact existed which should have been decided by the jury; 2) accepting contested factual issues rather than resolving those factual issues in favor of Musser, the party against whom the motion for summary judgment was directed; and 3) finding that Vilsmeier had no duty as an auctioneer; that Vilsmeier was not a "seller" within the meaning of Section 402A of the Restatement (Second) of Torts, and did not make material misrepresentations to Musser.*fn*

First, we must ascertain this Court's standard of review of orders granting or denying summary judgment.

When reviewing an order granting summary judgment, our function is to determine whether there exist genuine issues of triable fact. Bowman v. Sears, Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976). As we stated in Harris by Harris v. Easton Publishing Co., 335 Pa. Super. 141, 152, 483 A.2d 1377, 1382-83 (1984):

Appellant's issues on appeal stated above are those issues found in the Statement of Questions Involved section of appellant's brief. These issues, as stated, do not correspond with the questions presented at the head of each argument section of appellant's brief. Nothwithstanding this technical deviation from the rules of appellate procedure, we believe our review of appellant's argument adequately reaches, in the broadest sense, all issues brought to light in appellant's brief.

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. Id. In so doing, we accept as true all well-pleaded facts in appellant's pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

Bobb v. Kraybill, 354 Pa. Super. 361, 363-64, 511 A.2d 1379, 1380 (1986), allocatur denied 520 A.2d 1384 (1987). (Emphasis added).

Musser avers that the court below made determinations as to genuine issues of fact, i.e. whether representations were made to the plaintiff's father before he purchased the tractor, and whether any verbal disclaimers were made at the auction in question. Even assuming, arguendo, that Musser's allegations are true, we find that appellant Musser has failed to show that these issues are of material fact. Therefore, the trial court did not err in resolving the issues presented and granting Vilsmeier's motion for summary judgment. Our reasoning follows.

Our function in ruling on the propriety of granting a motion for summary judgment is to determine whether there exist genuine issues of material fact. We must therefore have the ability to ascertain in particular circumstances which facts at issue are material in nature and which are not. We have determined the following. An auctioneer, merely as such and in the discharge of his ordinary duties, has no implied or apparent authority to warrant what he sells. See Annotation: Implied or Apparent Authority of Agent Selling Personal Property to Make Warranties, 40 A.L.R.2d 285, 313 (1955), citing The Monte Alleqre, , U.S. , 9 Wheat 616 (1824). It may be said generally that the business of an auctioneer is essentially a private one, and that his authority to conduct a particular sale is derived from the person whose property he undertakes to sell. It follows, therefore, that an auctioneer is primarily an agent of that person.

In most cases, a buyer has no right of action for breach of warranty against the auctioneer. The rule of caveat emptor applies. See Annotation: Liability of Auctioneer or Clerk to Buyer as to Title, Condition, or Quality of Property Sold, 80 A.L.R.2d 1249 (1960).

While there are fewer cases in which a purchaser seeks to hold an auctioneer liable for damages where the condition or quality of the goods sold at auction does not meet his expectations, the general rules asserted or recognized by the courts seem to parallel those followed with respect to defects in title. Thus, it has been stated that if an auctioneer discloses the identity of his principal to the buyer, no liability rests upon him for a breach of warranty of quality.

Hayes v. D. P. S. Nichols Co. (1916) 64 Pa. Super. 273.

Id. at 1249. (Emphasis added). See also La Course v. Kiesel, 366 Pa. 385, 77 A.2d 877 (1951) (where material misrepresentation existed in handbill prepared by auction company selling the property, buyer, knowing the identity of the property owner, properly brought suit against the owner and not the auction company). Musser has not provided this Court with any authority which would indicate that Vilsmeier had any duty to Musser as an auctioneer under the circumstances of this case. We find that any issues of fact existing were not issues of material fact so as to require their presentation to a jury.

Secondly, as to appellant's assertion that he relied on the auctioneer's statement that the tractor was in excellent condition, it has been stated:

80 A.L.R.2d at 1250. (Emphasis added).

In the instant case, while the auctioneer may have expressed his opinion as to the condition of the tractor, it was clearly not a statement of warranty, for three reasons. The first reason is set forth, supra, i.e. that an auctioneer, in the discharge of his ordinary duties, has no implied or apparent authority to warrant what he sells. Further, the prospective purchasers were provided the opportunity to inspect the inventory to be auctioned prior to the sale. In such cases, the buyer would then "be expected also to have an opinion and to exercise his judgment." Id. Lastly, the auction inventory was sold "as is" as was clearly marked on all literature pertaining to the sale. It is undisputed that printed on the auction registration card was the phrase, "I understand all items are sold 'as is' and 'where is.'" Further, a similar disclaimer was printed on the inside cover of all auction inventory catalogs. (Trial Ct. Op. at 2).

As to appellant's argument that Vilsmeier is a "seller" within the meaning of Section 402A of the Restatement (Second) of Torts, we agree with the trial court that "the role of Vilsmeier Auction Co., Inc. was merely to provide its service as an auctioneer and not that of seller within the meaning of ยง 402A of the Restatement of Torts (Second)." (Trial Ct. Op. at 7). We find appellant's argument to be meritless. We incorporate herein that portion of the well-reasoned opinion of the trial court at pages five through eight.

The trial court correctly determined that no genuine issue of material fact existed and that Vilsmeier was entitled to judgment as a matter of law. Accordingly, we hold that Vilsmeier's motion for summary judgment was properly granted.


Order affirmed.

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