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SAMUEL FEINGOLD AND SYLVIA FEINGOLD v. WIN-VENT (06/28/89)

filed: June 28, 1989.

SAMUEL FEINGOLD AND SYLVIA FEINGOLD, APPELLANTS,
v.
WIN-VENT, INC., AND CHARLES G. NOSKA COMPANY, INC., APPELLEES, V. YELLOW FREIGHT SYSTEMS, INC., APPELLEE



Appeal from the Order of July 7, 1988, in the Court of Common Pleas of Philadelphia County at No. 3970, September Term 1986.

COUNSEL

Allen L. Feingold, Philadelphia, for appellants.

Richard L. Strouse, Philadelphia, for Win-Vent, appellee.

Janet W. Mason, Philadelphia, for Yellow Freight, appellee.

Wieand, Melinson and Hoffman, JJ.

Author: Melinson

[ 386 Pa. Super. Page 128]

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County granting the motion for judgment on the pleadings filed by Win-Vent, Inc., the appellee at bar. We affirm.

Samuel and Sylvia Feingold, the appellants at bar, entered into an agreement for the purchase from and installation of windows and frames by Charles Noska, who was acting as an agent for Win-Vent. The Feingolds claim that Yellow Freight delivered the windows in June or July of 1981 in a damaged condition. The Feingolds did not accept delivery of the windows. A repaired shipment of windows was delivered by Yellow Freight in September or October of 1981. Again, the Feingolds did not accept delivery of this shipment. The Feingolds filed a civil complaint for breach of contract against Noska and Win-Vent on September 22, 1986.*fn1

Subsequently, Win-Vent brought a motion for judgment on the pleadings, contending that there were no issues of material fact because the Statute of Limitations and the Statute of Frauds barred the Feingolds' claim. Judge Nicholas

[ 386 Pa. Super. Page 129]

D'Alessandro agreed with Win-Vent that the Statute of Limitations had expired prior to the filing of the Feingolds' complaint; accordingly, on July 7, 1988, Judge D'Alessandro granted Win-Vent's motion for judgment on the pleadings. This appeal followed.

On appeal, the Feingolds set forth one issue for our review: whether the trial court erred when it dismissed the Feingolds' cause of action based upon the expiration of a four-year statute of limitations period. The Feingolds contend that a twelve-year statute of limitations period is applicable to this case because the windows at issue are not goods, as found by the trial court, but fixtures. Specifically, they contend that "the windows [sic] does not become a fixture only after it has been installed. A window becomes a fixture where there is an intent to install the window . . . . A window has no existence independent of its installation in a building or other structure." Brief for Appellant at 5.*fn2

In the alternative, the Feingolds claim that a six-year statute of limitations period should be applied here because this case involved a written contract. Finally, the Feingolds claim that even if the four-year limitations period is applicable, their claim was timely filed. Here, the Feingolds allege that false and misleading ...


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