Appeal from the Order of the Superior Court entered April 21, 1988, at No. 1097 Phila. 1987, affirming the Order of the Court of Common Pleas of Philadelphia County entered March 17, 1987, at Civil No. 6517, March Term, 1986. Pa. Super 544 A.2d 1048 (1988).
Lawrence G. Metzger, Lee Albert, Philadelphia, for appellant.
L. Carter Anderson, Patrick J. Stapleton, Philadelphia, for Vilsmeier Auction Co., Inc.
Edward A. Gray, for Intern. Harvester Co.
James D. Wilder, Philadelphia, for Wenger's Farm Machinery, Inc.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion, in which Papadakos, J., joins. Papadakos, J., files a dissenting opinion.
This is an appeal from an order of the Superior Court affirming an order of the Court of Common Pleas of Philadelphia which granted appellee's motion for summary judgment in appellant's action in trespass. Musser v. Vilsmeier Auction Co., Inc., 378 Pa. Super. 657, 544 A.2d 1048 (1988) (memorandum opinion).
The facts and events which led to the appeal are not in dispute. In January, 1984, the officers of Wenger's Farm Machinery, Inc., which was liquidating its assets, met with Appellee's president. Appellee is in the business of conducting auction sales of used equipment and machinery. The parties agreed that Appellee would conduct an auction of Wenger's equipment. Appellee however, never owned, operated or controlled the equipment which was to be auctioned.
Approximately two weeks prior to the sale, Appellee sent a brochure to potential buyers which listed the equipment to
be sold on Wenger's property on April 2 and 3, 1984. The brochure 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.
Appellant's father, Ronald Musser, Sr., attended the auction on both dates. He signed a registration card, as did other potential buyers. The card stated: "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." The catalogue distributed at registration contained a similar disclaimer. The disclaimer was verbally presented to the bidders by the auctioneers who conducted the sales as well.
On April 3, 1984, Appellant's father purchased two of the more than ninety used tractors exposed at the sale. One of them was a twenty-one year old model 3414 International Harvester Payloader. Appellant was injured by the tractor when it ran over him while he was starting it, three days after his father purchased it.
Appellant brought this action against the auction company. In his complaint he alleged that the tractor was defectively, negligently and improperly designed, tested, manufactured and distributed and was not equipped with adequate safety features or warnings. He alleged further that Appellee was or should have been aware of the defects and nevertheless implicitly warranted that the tractor was reasonably safe for use. The complaint stated three legal predicates: strict liability under the provisions of section 402A of the Restatement (Second) of Torts, negligence and breach of warranty.
Appellee answered, joined International Harvester and Wenger's Farm Machinery as additional defendants, and ultimately moved for summary judgment on the pleadings
as supplemented in affidavits, depositions and exhibits. The trial court on the basis of the submissions determined that there was no genuine issue as to any material fact and that Appellee was entitled to judgment as a matter of law. Pa.R.Civ.Pro.R. 1035(b).
Appellant appealed to the Superior Court alleging that the trial court erred in five of its determinations among which was the legal conclusion that Appellee was not a "seller" within the meaning of section 402A of the Restatement (Second) of Torts. That court in an unpublished opinion found the issues meritless. It adopted the trial court's opinion regarding the section 402A issue in its affirmation of the latter's order granting summary judgment. Musser, supra.
Appellant petitioned this Court and we granted leave to appeal on a single legal issue of first impression. It is: whether an auctioneer is a "seller" within the meaning of section 402A of the Restatement (Second) of Torts.
An entry of summary judgment may be granted only in cases where the right is clear and free of doubt. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). Summary judgment should be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). There are no issues of fact before us. Our task is to decide whether, as a matter of law, auctioneers are subject to the strict liability provision of the section for the sale of defective products.
We adopted the section as the law of the Commonwealth in Webb v. Zern, 422 Pa. 424, 220 ...