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filed: August 11, 1988.




Maria Zulick, Philadelphia, for appellant.

Richard F. Furia, Philadelphia, for appellees.

Cirillo, President Judge, and Tamilia and Hester, JJ.

Author: Cirillo

[ 377 Pa. Super. Page 13]

This is an appeal from a judgment entered in the Court of Common Pleas of Delaware County in favor of the appellees, Anthony and Grace Cucchi.

On July 19, 1973, Anthony Cucchi signed a written contract with the appellant Rollins Protective Services Company (Rollins) for the installation and maintenance of an alarm system in his family residence. The contract provided that Rollins would deliver and install a "protective system" in the Cucchis' home and would "service the system from time to time as needed and when called upon by Customer and [would] . . . make all repairs to the system . . . needed as the result of normal and proper use." The contract also stated that the protective system would continue to be the personal property of Rollins and that upon termination of the agreement, the customer would immediately return the system to Rollins. Additionally, the contract required that the customer accept Rollins' service for an initial term of three years; thereafter, the agreement would automatically renew itself from year to year unless either party notifed the other thirty days before its expiration.

Although one of Rollins' branch office representatives signed the contract, it was never signed by a representative of Rollins' home office. The contract expressly stipulated that it would "not be binding upon Rollins until accepted at Rollins' Home Office." Nevertheless, Rollins installed an alarm system in the Cucchi residence and continued to maintain it. The Cucchis made an initial payment of five hundred dollars toward the cost of the system followed by twelve to eighteen monthly payments. Thereafter, the Cucchis paid a monthly maintenance charge.

[ 377 Pa. Super. Page 14]

On February 2, 1984, the Cucchis' home was burglarized resulting in the loss of property valued at $36,018.00. On October 30, 1985, Anthony and Grace Cucchi filed an action against Rollins to recover the damages they sustained as a result of the burglary. In their complaint, they alleged counts of negligence, strict liability, and breach of express and implied warranties. They attached the contract that Mr. Cucchi signed with Rollins as well as the cancelled checks showing their payments to Rollins to their complaint, incorporating them by reference therein.

In its answer, Rollins denied the Cucchis' allegations of liability, but acknowledged the parties' written agreement. In new matter, Rollins alleged that the Cucchis' suit was time-barred and that they had failed to state a cognizable cause of action. Rollins also asserted that if the Cucchis could prove any of their liability claims, their damages were limited to ten percent of the annual service charge under the contract or $250.00, whichever sum was greater. In support of this assertion, Rollins quoted the exculpatory or limiting clause of the contract, which stated "that if loss or damage should result from the failure of performance or operation or from defective performance or operation or from improper installation or servicing of the system, that Rollins' liability . . . shall be limited to a sum equal to ten percent of one year's service charge or $250.00, whichever sum is the greater . . . ." The Cucchis replied by denying Rollins' statute of limitations and exculpatory clause defenses as mere conclusions of law. Thereafter, Rollins moved for summary judgment asserting the written contract's exculpatory clause and the statute of limitations, and attacking the Cucchis' strict liability count. In response to Rollins' motion, the Cucchis argued that the written contract was not binding because it had not been signed by a representative of Rollins' home office. The trial court granted summary judgment to Rollins on the strict liability count, but denied it on the others.

When trial began, Rollins moved to admit the parties' written contract in its entirety as a judicial admission.

[ 377 Pa. Super. Page 15]

Although recognizing that the Cucchis had averred the existence of a written agreement in their complaint, the court denied the motion because neither Grace Cucchi nor a Rollins' home office representative had signed the document. The court maintained that "the written agreement . . . is not the agreement upon which this litigation is going forward."

During the trial, Anthony Cucchi testified that Rollins' salesman had represented to him that the alarm system would do what he wanted it to, which was to provide safety, and told him that "the system was state of the art" and "almost unbeatable." In addition, he testified that Rollins did all the maintenance work on the alarm system, and that the last maintenance check was done on January 13, 1984, which was less than one month before the burglary. Grace Cucchi testified that she recalled activating the alarm system before she left the house for work on the day of the burglary. Corroborating this fact, the Cucchis' daughter testified that when she discovered that her parents' home had been burglarized, the alarm system was not operating despite the fact that she noticed that it had been activated. The Cucchis' daughter further stated that she had tested the alarm system by opening and closing the back door, which she found open when she arrived home, but that the alarm was not triggered. The Cucchis testified that they also had tested the alarm system on the night following the burglary and again on the following day, and found that the system worked only intermittently.

At the close of the evidence, Rollins moved for a directed verdict on the express warranty and negligence counts. The trial court granted the motion insofar as the negligence count, but found an express oral warranty in "the testimony to the effect that the system would provide safety." Prior to the court's charge to the jury, Rollins again sought a directed verdict on the Cucchis' breach of warranty claim, this time arguing that the claim was time-barred by the four year statute of limitations contained in the Uniform Commercial Code. The court denied this motion. Rollins

[ 377 Pa. Super. Page 16]

    also requested leave to amend its answer to the Cucchis' complaint to include the statute of frauds defense; the court refused this request stating that it was untimely.

The jury returned a verdict of $20,000.00 for Grace Cucchi and $10,000.00 for Anthony Cucchi. Rollins filed posttrial motions, which the court denied. Judgment was entered on June 25, 1987, and this timely appeal followed.

Rollins raises the following four issues for our review: (1) whether the trial court erred in ruling that the parties' written contract was not binding when the parties relied in their pleadings on the terms of the written agreement and acted under it; (2) whether the trial court erred in denying Rollins' motion for a directed verdict on the Cucchis' warranty claims since the evidence did not establish a breach of express warranty; (3) whether the trial court erred in ruling that Rollins opened the door to evidence regarding subsequent repairs in its opening statement when the court had precluded the introduction of such evidence at the beginning of trial; and (4) whether the trial court erred in precluding Rollins from asserting its Uniform Commercial Code defenses of the statute of limitations and statute of frauds when the evidence supported these defenses.

Rollins challenges the court's refusal to accept the written contract as a judicial admission because of its determination that the written contract was not binding on the parties. It raises two arguments in support of this challenge. Rollins raises these arguments because the trial court's refusal prevented Rollins from limiting its liability to the amount provided for in the written contract's exculpatory clause.

First, Rollins asserts that since both parties acknowledged the existence of the written contract in their pleadings, the court was required to accept the contract in its entirety as a judicial admission. Second, Rollins contends that Grace Cucchi's signature was not required to bind her to the written contract because the law of our Commonwealth presumes the power of either spouse to act for property held in the entireties without the other's express

[ 377 Pa. Super. Page 17]

    covenant so long as the benefit of the action involved inures to both. We find Rollins' arguments to be unsupported.

The well-established rule regarding judicial admissions is that "admissions of fact in pleadings are admissible, but that the pleader's conclusions of law are not admissions of facts in issue." Srednick v. Sylak, 343 Pa. 486, 492, 23 A.2d 333, 337 (1942). The function of contract interpretation and construction has repeatedly been held to be a question of law for the court to decide. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 314 Pa. Super. 131, 460 A.2d 800 (1982) (citing National Products Co., Inc. v. Atlas Financial Corp., 238 Pa. Super. 152, 158, 364 A.2d 730, 733 (1975)); see also Whitmer v. Bell Telephone Co., 361 Pa. Super. 282, 286 n. 3, 522 A.2d 584, 586 n. 3 (1987) (noting that while in ruling upon a demurrer the trial court was bound to accept as true the allegation that the appellant lifted the receiver with intent to purchase a telephone call, it was not bound to accept appellant's conclusion of law that contractual relations were thereby established). Furthermore, in determining whether a particular averment in a pleading is a conclusion of law or an allegation of fact, the trial court has wide discretion. City of Philadelphia v. Kane, 63 Pa. Commw. 643, 438 A.2d 1051 (1982).

In the case at bar, the fact that both parties may have initially believed the written contract to be binding upon themselves did not make it so. Rather, the question of whether the written agreement was binding upon them was an issue of law for the court to decide. The trial court correctly ruled that the parties' acknowledgment of and reference to the written agreement in their pleadings did not mandate its acceptance as a judicial admission.

Moreover, the trial court properly determined that the contract was not binding upon the parties because it lacked the signature of one of Rollins' home office representatives. In Franklin Interiors v. Wall of Fame Management Co., 510 Pa. 597, 511 A.2d 761 (1986), the supreme court ruled on this exact issue. In that case,

[ 377 Pa. Super. Page 18]

    appellee Franklin Interiors filed a complaint in confession of judgment against appellants pursuant to a warrant of attorney contained in a written contract. Although the contract contained a provision stating that "[t]he document does not become a contract until approved by an officer of Franklin Interiors," the appellee's signature had not been affixed to the contract. The supreme court first determined that the formation of a valid contract was expressly conditioned upon the written approval of the appellee. The court stated:

At best, the document of record, without more, is nothing other than an offer by Appellants to deal with Appellee under the terms and conditions of the written offer. Until accepted by the Appellee in the mode and manner expressly provided by the terms of the offer, this document remains an unaccepted offer and cannot, in itself, be considered a binding contract.

Id. 510 Pa. at 600, 511 A.2d at 762. The supreme court then went onto address the issue of whether the warrant of attorney included in an unaccepted written offer could be used against the appellants on the basis that there had been oral acceptance or acceptance by performance. The court answered this question in the negative. In doing so, the court first noted that because the appellee supplied the document and terms therein, it had to be presumed that the appellee knew the effect of the unambiguous terms and conditions of its own document. Second, the court quoted the rule of construction that a written instrument must be strictly construed against its maker. Applying these two principles, the supreme court concluded that since the appellee had failed to follow its own conditions of acceptance, the appellee could not rely on the confession of judgment clause. Finally, the supreme court stated that although it had always been the law that only the party against whom a warrant is intended to bind must sign it because the law assumes assent of the person in whose favor it is drawn, the law was of no avail to the appellee. No assumption could be made that the appellee assented to the warrant

[ 377 Pa. Super. Page 19]

    because it expressly conditioned acceptance of all the contract terms upon its execution of the document.

Applying the supreme court's rationale and ruling to the instant case, we hold that the written contract is not binding upon the Cucchis because Rollins never accepted the contract at its home office. Furthermore, because Rollins never assented to the contract in the manner it expressly provided for, we cannot assume that Rollins assented to the exculpatory provision contained therein. Consequently, the exculpatory provision is not binding against the Cucchis.

Next, Rollins questions the propriety of the trial court's refusal to grant Rollins' motion for a directed verdict on the Cucchis' breach of warranty claims. As part of this question, Rollins raises a number of subissues, several of which were either not included in Rollins' post-trial motion or, although included in the post-trial motion, were not briefed. Only issues specifically raised in post-trial motions are preserved for our review. Commonwealth v. Beckham, 349 Pa. Super. 430, 503 A.2d 443 (1986). Moreover, even though an issue is contained in a post-trial motion, unless it is briefed or argued during the post-trial proceedings, the issue is waived for ...

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