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FORD MOTOR CREDIT COMPANY v. JOSEPHINE J. CAIAZZO A/K/A JOSEPHINE S. CAIAZZO AND ANTHONY J. CAIAZZO A/K/A ANRHONY J. CAIAZZO (09/13/89)

filed: September 13, 1989.

FORD MOTOR CREDIT COMPANY, APPELLEE,
v.
JOSEPHINE J. CAIAZZO A/K/A JOSEPHINE S. CAIAZZO AND ANTHONY J. CAIAZZO A/K/A ANRHONY J. CAIAZZO, APPELLANTS



Appeal from the Order entered May 26, 1988 in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 88-882.

COUNSEL

Barbara Cymerman, Pittsburgh, for appellants.

Gregory M. Devine, Pittsburgh, for appellee.

Rowley, Kelly and Hester, JJ.

Author: Kelly

[ 387 Pa. Super. Page 564]

Appellants, Anthony and Josephine Caiazzo, appeal from an order sustaining the preliminary objections of appellee, Ford Motor Credit Corporation, and dismissing the Caiazzo's answer, new matter, and counterclaim. The trial court, applying this Court's decision in Ford Motor Credit Corp. v. Dunsmore, 374 Pa. Super. 303, 542 A.2d 1033 (1988), reasoned that Caiazzos' claims were not properly cognizable in this replevin action. We find Ford Motor Credit Corp. v. Dunsmore, supra, materially distinguishable based upon appellant's assertion of a purchase money security interest under 13 Pa.C.S.A. § 2711(c), arising from Caiazzos' revocation of acceptance of the allegedly defective new car. No such assertion of a possessory interest had been made in Ford Motor Credit Corp. v. Dunsmore, supra. We affirm in part, and reverse in part, and remand for further proceedings.

The relevant facts may be accurately summarized as follows. On June 1, 1987, the Caiazzos purchased a 1987 Mercury Grand Marquis from Biondi Motor Corporation in Monroeville, Pennsylvania. Under the retail installment financing contract entered into by the Caiazzos, they granted Biondi Motor Corporation an assignable possessory security interest in the vehicle upon a default in payments. The contract, including the security interest, was lawfully assigned to Ford Motor Credit Corporation.

On January 20, 1988, Ford Motor Credit Corporation commenced an action in replevin seeking possession of the Mercury Grand Marquis. Ford Motor Credit Corporation specifically alleged that the Caiazzos had defaulted on their

[ 387 Pa. Super. Page 565]

    obligations under the financing agreement by withholding required payments, and based its replevin claim upon its possessory interest arising as the result of that alleged default. On February 10, 1988, Ford Motor Credit Corporation applied for, and was granted, a writ of seizure to take possession of the Mercury Grand Marquis.

On that same day, the Caiazzos filed their answer together with new matter and counterclaims. In addition to Lemon Law and related warranty claims and defenses, the Caiazzos alleged that they were not in default, but that they had properly revoked acceptance of the Mercury Grand Marquis because of uncorrected defects which substantially impaired the value of the vehicle, and that they had retained possession of the vehicle, notwithstanding revocation, pursuant to their possessory, purchase money security interest arising under 13 Pa.C.S.A. § 2711(c).

Ford Motor Credit Corporation filed preliminary objections asserting that the matters asserted in the Caiazzos' Answer, New Matter, and Counterclaims were not properly cognizable in a replevin action. The trial court, relying expressly on this Court's decision in Ford Motor Credit Corp. v. Dunsmore, supra, sustained the preliminary objections and dismissed the Caiazzos' Answer, New Matter and Counterclaim in its entirety. This timely appeal follows.

Our standard of review of an order granting preliminary objections in the nature of a demurrer was set forth in Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983), as follows:

All material facts set forth in the [pleading] as well as all inferences reasonably deducible therefrom are admitted as true [for the limited purpose of this review]. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

465 A.2d at 1232-33 (citations omitted); see also Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983). In

[ 387 Pa. Super. Page 566]

    reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. See Woodward v. Dietrich, 378 Pa. Super. 111, 116, 548 A.2d 301, 303 (1988); Drug House, Inc. v. Keystone Bank, 272 Pa. Super. 130, 132, 414 A.2d 704, 705 (1979). Furthermore, we will affirm the grant of such a motion only when the moving party's right to succeed is certain and the case is so free from doubt that further ...


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