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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 ...

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