author: BROSKY, Judge. BECK, Judge,

text:
    564 A.2d 512
    COMMONWEALTH of Pennsylvania v. Quinterio SMART, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1989.
    Filed Oct. 4, 1989.

      Thomas L. Kearney, York, for appellant.
    H. Stanley Rebert, Dist. Atty., York, for Com., appellee.
    Before BROSKY, BECK and HOFFMAN, JJ.
   BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after he was convicted of burglary but acquitted on charges of robbery, two counts of rape and involuntary deviate sexual intercourse. Appellant raises one issue for our consideration: whether the sentencing court abused its discretion by imposing a sentence which was too severe and excessive under the circumstances. Upon considerable reflection and consideration of all arguments and considerations, we vacate the judgment of sentence and remand for resentencing.

Appellant participated in the burglary of a home used as a shelter for abused women. Two women testified that they were raped during the commission of the crime and that appellant participated in the rapes. The appellant, however, testified that he had been drinking when approached by two individuals to commit a burglary and/or robbery. According to his testimony appellant led the individuals to the home but then indicated an unwillingness to participate further and left. At the conclusion of a jury trial, appellant was convicted of burglary but acquitted of the remaining charges.

At sentencing it was indicated that at the age of 14 or 15, appellant had knocked a five year old off a bicycle and ridden off on it. Appellant was discharged from a home for boys for this behavior. However, according to the record, other later juvenile placements resulted in satisfactory adjustments. Despite the fact that the guideline sentences for burglary were 12-29 months in the standard range and 29-36 months in the aggravated range, appellant was sentenced to eight to twenty years imprisonment; thus representing a minimum sentence of two and a half times the outside of the guideline sentence in the aggravated range. This sentence was imposed despite a recommendation in the pre-sentence investigation report of a sentence of imprisonment in a two and one half to five years range. The report also mentioned that it was the practice of the local court to impose a long county or short state prison sentence for such convictions of burglary. It is further noteworthy that appellant had charges pending against him for other serious offenses.

Upon considerable review of appellant’s contention, that the trial court abused its discretion in imposing sentence, we are inclined to agree with that contention and therefore vacate the sentence imposed. We believe this conclusion should be reached simply in consideration of the sentence imposed, the conviction returned and the so-called aggravating circumstances offered by the trial court to justify the sentence imposed. However, we believe this conclusion is further compelled in light of the fact that appellant was acquitted of several other charges. The circumstances of the present case, in our opinion, invite a tremendous amount of suspicion that the trial court was simply disregarding the jury’s verdict of not guilty of the various charges other than burglary and imposing sentence as if appellant had been convicted of those charges. This is a situation which can erode the confidence in the jury trial system and violates the convicted individual’s fundamental right to be judged by a jury of his peers.

We start our discussion with a recitation of the general standard to be applied to our review. It is axiomatic that sentencing is within the discretion of the sentencing court and that the sentence imposed will not be disturbed absent an abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). However, this deference paid to the trial court does not necessitate a rubber stamped approval of the sentences imposed by the sentencing court. Appellate review of sentencing matters would become a mockery and a sham if all sentences were routinely affirmed under the guise of discretion of the trial court. Further, it must be considered our function to review sentences in a more detached manner so that we can ensure not only a fair and impartial sentence under the circumstances, but also to protect against grossly disparate treatment of like offenders throughout the Commonwealth. It should also be understood that a finding of an abuse of discretion does not necessarily equate with a finding of bias or wrongdoing on the part of the sentencing court, but rather is consistent with a finding that a reviewing body believes the sentence inappropriate under the circumstances to a degree beyond the bounds of reasonable discretion and deference to the sentencing court. Thus, among other things, an abuse of sentencing discretion can be found if the sentencing court issues a sentence which is manifestly excessive. See, Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986), and cases cited therein.

Looking first to the conviction of burglary, we do not believe the so-called aggravating circumstances justified the sentence imposed here. The minimum side of eight years, as it happens, was more than two and a half times greater than the outside of the aggravated range of 29-36 months. The trial court indicates that it was an aggravating factor that the target of the burglary was a home for abused women. Yet burglary is, at least considering its common law roots, a crime against a dwelling, not a crime against an individual, and it would seem rather immaterial who occupies the dwelling.

The court also indicates as an aggravating factor appellant’s action, at 15 years of age or less, in knocking a five year old off a bicycle and stealing it. Although such behavior is not to be condoned and is most definitely anti-social, (as noted by the trial court), imprisonment for such behavior could lead to the incarceration of many a neighborhood bully. Meanwhile, the trial court apparently gave little credit to appellant for withdrawing from the criminal venture and the evidence that he was intoxicated at the time of the incident. Although these factors cannot be considered excuses for committing a crime they could be considered factors depreciating the voluntariness of the enterprise or depicting a reconsideration of the criminal endeav- or. In either case they would seem to be factors tending to mitigate the gravity of the offense.

Furthermore, the fact that appellant was acquitted of all of the offenses which could be classified as those against the person would seem to be a mitigating factor as well. Certainly, we do not see the justification in imposing an 8 to 20 year sentence when the standard sentencing range was 12 to 29 months and the sentence recommended to the court by the pre-sentencing investigator was two and a half to five years imprisonment.

We are further concerned because the facts of the present case create a strong suggestion that appellant is being punished for crimes of which he was acquitted. We note the trial court’s insistence that he was sentenced only for the burglary charge. Yet it is entirely possible that the charges appellant was acquitted of, along with those charges pending disposition, were working subconsciously to make the trial court take a particularly hardened stance on sentencing. When these factors are put completely out of mind, the sentence imposed makes little sense and seems very harsh when considered relative to the guidelines. However, were one to consider, in a hypothetical sense, that appellant had been convicted for all of the crimes charged, the sentence might be considered appropriate. Thus, regardless of the actual influence the acquittal had upon the trial court, the situation has, at the minimum, an appearance of a make-up type of sentence. Similar to the area of law regarding judicial bias, which compels against even the appearance of partiality, bias or interest, we believe sentences imposed under the present circumstances must be closely scrutinized to prevent not only the appearance that an individual is being sentenced, in reality, for crimes the jury rendered an acquittal verdict, but also to protect against a possible subconsciously influenced sentence. To allow even an appearance of such a practice would erode the integrity of our criminal justice system.

Because we believe the circumstances presented here do not warrant such excessiveness of sentencing beyond the standard range, we must conclude that the sentence imposed here constitutes an abuse of discretion. Thus, we vacate the sentence imposed here and remand for resentencing in conformity with this opinion.

Judgment of sentence vacated, remanded for resentencing.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting.

Appellant, Quinterio Smart, appeals his sentence of eight to twenty years for burglary claiming that the sentencing court abused its discretion “by imposing a sentence which was too severe and excessive for the circumstances of the offense and the circumstances of the appellant.” Before reaching the merits of appellant’s claim this court must first determine whether Smart’s challenge to the sentence is reviewable.

The right to appeal from a discretionary aspect of sentencing is not absolute. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Section 9781(b) of the Sentencing Code, 42 Pa.Cons.Stat.Ann. (Purdon 1982), provides that an “[allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” Evaluations of what constitutes a “substantial question” are determined on a case by case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 200 n. 7, 535 A.2d 115, 119 n. 7 (1987). We are inclined to find the presence of a “substantial question” where the “appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.” Id. (citations omitted).

In arguing the existence of a substantial question, appellant asserts that his sentence is far in excess of the sentencing guidelines of 1982, 204 Pa.Code § 303.1 et seq. (replaced 1988) and the recommendations of the presentence report and that such excess must necessarily have been the result of impermissible considerations. I find that appellant has stated a substantial question for review. See Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989) (substantial question where sentence is significantly in excess of prior or pending sentencing guidelines); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (impermissible considerations). I further find, however, that close examination of the record in the instant case makes clear that the sentence imposed does not represent an abuse of discretion on the part of the sentencing judge. My reasons are as follows.

“The sentencing judge] has broad discretion to choose a penalty from sentencing alternatives and the range of permissible confinements, provided the choices are consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.” Commonwealth v. Devers, 519 Pa. 88, 92, 546 A.2d 12, 13 (1988) (footnotes omitted); see also 42 Pa.Cons.Stat.Ann. § 9721(b) (Purdon 1982). The imposition of sentence by the trial judge will not be disturbed on review absent a manifest abuse of that broad discretion. Commonwealth v. Plank, 498 Pa. 144, 445 A.2d 491 (1982). Further, in determining whether there has been a manifest abuse of discretion, “we must give great weight to the sentencing judge’s discretion as he is in the best position to measure various factors, such as the nature of the crime, the defendant’s character, and the defendant’s displays of remorse, defiance, or indifference.” Commonwealth v. Anderson, 381 Pa.Super. 1, 17, 552 A.2d 1064, 1072 (1988). Thus, the reviewing court will not find an abuse of discretion where the trial judge has merely made an error of judgment. A manifest abuse of discretion will only exist where “in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or illwill [sic] as shown by the evidence or the record — ” Commonwealth v. Jackson, 336 Pa.Super. 609, 627, 486 A.2d 431, 441 (1984) (citation omitted).

Appellant testified to the following at trial. He was employed by McDonald’s where he worked with both victims. On the night in question appellant happened by chance to meet one of the victims, Kathy, at a bar. The two of them talked at length at different times throughout the evening. At one point, Kathy entrusted appellant to help her recover the contents of her purse, and to guard that purse. During the course of the evening, Kathy also gave appellant her address for the purpose of meeting with him later in the week.

In addition to Kathy, appellant met two men, Cliff and Lou, at the bar that evening. He had not known them prior to that time. Appellant left the bar late that evening and was arriving at his home when he saw Cliff and Lou pulling up behind him in their car. Unbeknownst to appellant Cliff and Lou had followed him. They asked appellant if he wanted “to rob Kathy, or um, go with them.” The two men told appellant they needed him because although they knew the address of the building Kathy lived in, they did not know her apartment number. Cliff and Lou had overheard Kathy telling appellant that she would give him her address.

Appellant told them she lived on the third floor and agreed to go with them. The three arrived at the building and climbed the fire escape to the victims’ third floor apartment. Cliff jimmied the door and he and Lou entered the apartment. They heard a noise and Cliff pulled out a gun. Appellant asked Cliff what he was doing and Cliff answered that he was going to “pop” somebody.

Upon seeing the gun and hearing Cliffs answer, appellant ran down the fire escape. Lou followed appellant and was on a fire escape landing about midway to the ground as appellant reached the pavement below. Just as he reached the ground, appellant observed Kathy pull up in a car and get out. Appellant, still involved in the criminal enterprise, signalled to Lou that Kathy had arrived. Appellant then ran home.

At trial, the two victims testified that they had been sexually attacked by one man and that that man was appellant. The jury, however, acquitted appellant of two counts of rape, one count of involuntary deviate sexual intercourse and one count of robbery. The jury found appellant guilty of one count of burglary. At the time of sentencing, the court imposed an eight to twenty year sentence in state prison on the burglary charge.

Under the 1982 sentencing guidelines, which both appellant and the Commonwealth recognized as non-binding, a sentence in the aggravated range for burglary ranged from twenty-nine to thirty-six months. The presentence report recommended that appellant receive a sentence of two and one-half to five years imprisonment. The presentence report included a comment that in cases of burglary with a prior record such as appellant’s the judges in York County usually gave either a long sentence in a county facility or a short sentence in a state prison. The report also included the statement of one of the arresting officers in the case that appellant “got away with one.”

Responding to appellant’s express concerns, the sentencing judge initiated the sentencing hearing by explicitly stating that he would not include in his considerations any of the allegations for which appellant was acquitted by the jury. The judge also stated on the record that he would not consider the statement by the arresting officer that appellant “got away with one.” The judge then discussed appellant’s history observing that appellant had been put out of a juvenile home for assaultive behavior and that one year later, at the age of fifteen, appellant had been arrested for stealing a bicycle after pushing its five year old owner to the ground. The judge then made observations about the nature and circumstances of this crime in light of appellant’s history and determined that (1) the crime showed disregard for the victims; (2) appellant’s character reflected a willingness to endanger the well-being of others; (3) appellant posed a threat to the public because of the dangerous propensities in his nature; and (4) the entire range of violent and dangerous acts perpetrated by appellant demonstrated that appellant was not amenable to rehabilitation. Appellant was then sentenced to eight to twenty years in state prison.

Though appellant’s sentence is harsh, I would not find that it amounts to an abuse of discretion under the circumstances of this case. There is ample support for the court’s conclusions regarding appellant’s character and the nature of this crime. Without hesitation, appellant agreed to join two near strangers in the robbery of a woman he worked with and had befriended. More importantly, appellant did not merely agree to go along for the ride: he provided these two men with the information, i.e. Kathy’s address, without which no robbery could have occurred. Again, he did so without hesitation.

Appellant led Cliff and Lou to Kathy’s apartment. He decided to leave once he became aware that Cliff intended to shoot somebody. However, prior to his flight he spotted Kathy’s arrival. Instead of calling out to warn her, or discretely walking up to her to prevent her from going to her apartment, appellant acted as a scout for Lou and Cliff. He called up to Lou to alert them that Kathy was on her way up. In essence, he left an unsuspecting woman to two men with a gun in the dead of night; two men who had explicitly sought her out and found her with appellant’s aid. Thus, for a second time appellant willingly and without hesitation facilitated the opportunity for two strangers to work harm on a friend and workmate.

Appellant’s admitted actions support the trial judge’s conclusion that appellant demonstrated a dangerous propensity towards violent involvement. With minimal instigation appellant has proved himself willing to place members of the public, including those he knows and works with, in grave danger. Seen in this light, the assaultive behavior in the juvenile home and the attack on a five year old child by the fifteen year old Smart do not merely reflect the actions of a typical bully. Rather, appellant’s earlier misdeeds presage the mind of an adult who has little or no regard for the right of people to be free from fear and violence. Moreover, appellant’s acts have been aimed at just those members of the public who are least able to protect themselves from physical violence, small children and vulnerable women.

I would thus find that there is support in the record for an unusually harsh sentence for burglary under the unusual circumstances of the burglary in this case. I am not persuaded by the majority’s assertions that the trial judge’s sentence should be questioned because the judge did not consider appellant’s testimony that he was drunk, that the crime appellant was actually convicted of was a crime against property and not persons and that appellant withdrew from the robbery scheme. First, the extreme disregard for the victim’s safety in this case cannot be excused by alleged drunkenness. Second, this court has previously noted that burglary is a felony of the first degree that is recognized as a crime of violence. Commonwealth v. Prengle, 293 Pa.Super. 64, 68 n. 4, 437 A.2d 992, 994 n. 4 (1981). Nor need the judge have limited his sentencing considerations to the elements of burglary when appellant himself admitted acts that facilitated the violence that later occurred. Likewise, any credit appellant merits for his withdrawal from the robbery is severely diminished by his decision to warn Lou and Cliff of Kathy’s presence rather than vice versa.

Appellant also claims that the court based its sentence on impermissible considerations. He argues we should infer that the trial judge disregarded the jury’s verdict of acquittal and in effect sentenced appellant for all the charges in this case. Appellant recognizes that the trial judge stated explicitly on the record that he would not take the charges the jury had acquitted on into consideration at sentencing. Appellant claims, however, that we must assume that the judge did in fact do just that because (1) we must guard against the danger that trial judges will ignore the jury’s verdict; (2) there is no other reasonable explanation for the sentence; and (3) there was compelling evidence of guilt in the record that the jury chose not to believe.

As a general principle, I agree that our courts should be concerned where a trial judge surreptitously attempts to circumvent the jury’s verdict to impose his or her own will in a case. However, I disagree with appellant’s conclusion that such were the circumstances in this case. First, as stated supra, there is testimony of record that supports the judge’s determination regarding the nature of the crime and the character of appellant in the instant case. Thus, there is an explanation for the harshness of the sentence other than the judge’s attempt to override the jury verdicts. In addition, we must be mindful of the broad discretion that is traditionally given the sentencing judge. In light of these two factors, I find that we must accept as true the trial judge’s explicit statement that he would not consider the charges on which appellant was acquitted.

For all of the above stated reasons, I respectfully dissent and would affirm the judgment of sentence.

      . We make reference to the sentencing guidelines despite their invalidation on procedural misgivings in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1988). In addition, we believe the guidelines, despite their invalidation, remain a useful reference guide to sentencing practices on a statewide basis. Thus, although the guidelines do not require compliance currently, they still remain a helpful guide to not only fashioning an appropriate sentence but in reviewing the reasonableness of an imposed sentence.

      . Appellant committed the burglary approximately five years after the bicycle incident.

      . The record indicates that the victims lived in a building that sheltered battered women. The sentencing judge weighed this factor against appellant in the court’s sentencing considerations. I agree with the implied observations of the trial judge that it shows an appalling lack of conscience to participate in the burglary or robbery of a woman who has come to live in a setting that is meant to act as a last refuge and sanctuary for those who have been the victims of past brutal acts. It is not clear from the record whether the court could infer that appellant knew Kathy lived in a shelter for battered woman. Because this fact is not decisive in upholding the sentence imposed, we need not address whether appellant was aware or not that Kathy lived in a shelter for battered women.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    564 A.2d 518
    BENDER’S FLOOR COVERING CO., Appellee, v. Jeffrey GARDNER and Theresa Gardner, Appellants.
    Superior Court of Pennsylvania.
    Submitted April 17, 1989.
    Filed Oct. 6, 1989.

      James J. Auchinleck, Jr., Newtown, for appellants.
    Thomas Coval, Willow Grove, for appellee.
    Before CIRILLO, President Judge, and KELLY and HESTER, JJ.
   KELLY, Judge:

This appeal involves a contention that appellants were denied due process when their petition to amend new matter was denied on the day it was filed without the opportunity to present depositions, briefs, or argument in accordance with Pa.R.C.P. § 211. We quash the appeal as the order in question is interlocutory and unappealable at this stage in the proceedings.

The relevant factual and procedural history may be accurately summarized as follows. Appellants, Jeffrey and Theresa Gardner, purchased a newly constructed home in which appellee, Bender’s Floor Covering Co., had installed carpets. Included in the price of the house was the basic carpet and the flooring to be installed by appellee at a $5,000.00 value. Appellants however ordered an upgrade of the carpet and flooring of an approximate value of $2,024.00. Subsequently, appellants raised various complaints about the visual appearance and installation of the carpet and flooring. Despite numerous requests, appellee refused to resolve appellants’ complaints.

Appellants had charged the cost of their upgrades on credit cards. Appellants notified their credit companies that appellee’s installation was not satisfactory, and, after investigation, appellants’ credit companies reversed the charges and credited the amounts to appellants’ account.

Thereafter, on November 20, 1987, appellee filed suit to recover $2,024, the amount of the upgrade. Appellants filed an answer with new matter and discovery was taken. An arbitration hearing was scheduled for September 29, 1988. On September 21, 1988, appellants filed a petition for leave to amend and add counterclaim for $20,000, alleging that the carpet was installed in a “poor, unworkmanlike manner.” That same day, an in-chambers conference was held with both parties to discuss appellants’ petition and request to stay arbitration. At the conference, the only matter before the trial court was appellants’ motion to strike the case from the arbitration list. The trial court did not rule on the motion to strike the case from the arbitration list, but it did dismiss appellants’ petition to amend new matter. This timely appeal followed.

On appeal, appellants contend that the trial court improperly denied their petition to amend and add counterclaim without first allowing oral argument in open court. Appellee responds that this appeal is interlocutory, and therefore not properly before this Court. We find merit in appellee's response; accordingly, we quash this appeal.

Our jurisdiction is limited by the Judicial Code which provides that:

The Superior Court shall have jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

42 Pa.C.S.A. § 742 (emphasis added).

Generally, an order is not a “final order” unless it serves to put the litigant out of court either by ending the litigation or disposing of the case entirely. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Commonwealth v. Romolini, 384 Pa.Super. 117, 557 A.2d 1073 (1989); Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987). The rationale for prohibiting appeals from interlocutory orders is to prevent piecemeal determinations and the consequent protraction of litigation. Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, supra, 319 A.2d at 678; French v. United Parcel Service, 377 Pa.Super. 366, 547 A.2d 411 (1988).

Our Supreme Court has determined that an otherwise interlocutory order from which appeal may not be brought as of right, Pa.R.A.P. 311, may nevertheless be considered “final” if:

(1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Pugar v. Greco, supra 394 A.2d at 545. This exception to the general rule is intended to permit review of interlocutory orders only in certain limited circumstances. See Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987); Elderkin, Martin, Kelly, Messina v. Sedney, 354 Pa.Super. 253, 511 A.2d 858 (1986). First Pennsylvania Bank, N.A. v. DiDomenico, 337 Pa.Super. 191, 486 A.2d 971 (1984).

Under Pennsylvania law, counterclaims are permissive and may be set forth in a party’s answer, or may be reserved and set forth as an independent action, at the time, and in the forum, of the defendant’s choosing. See Pa.R.C.P. 1031. In this way, Pennsylvania law prevents parties from manipulating the timing and forum selection of potential suits, by pleading minor claims in a chosen forum to force a greater “counterclaim” at a time and in a forum not of the defendant’s choosing. See Jackson v. Richards 5 & 10, 289 Pa.Super. 445, 433 A.2d 888 (1981); Sobol v. Will Allen Builders Inc., 244 Pa.Super. 486, 368 A.2d 825 (1976).

In this case, the trial court’s denial of appellants’ petition to amend and to present a new counterclaim did not serve to put appellants “out of court” as to that claim, nor is the claim in danger of being irreparably lost as a result of the order. Succinctly, appellants may, without impediment, file that same claim in front of the same or a different court (providing such a court has proper venue and subject matter jurisdiction) within the limitations period, without jeopardizing their rights. Thus, appellants are not out of court on the merits of their counterclaim by reason of the trial court’s interlocutory order.

In comparison, had appellants appealed a pre-trial order denying leave to amend an answer so as to assert an affirmative defense, it would be deemed a final order for purposes of appeal. Unlike counterclaims, affirmative defenses are compulsory, and therefore must be timely pleaded, or they are forever lost. Zarnecki v. Shepegi, supra, 532 A.2d at 875, citing Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966); see also Pa.R.C.P. 1030, 1032. The permissive nature of counterclaims in Pennsylvania is the controlling distinction in this case.

Accordingly, we find appellants’ appeal to be interlocutory and unappealable at this juncture.

Appeal quashed.

      . If appellants choose to pursue the claim in the same court as the present suit is pending, they may seek to consolidate their claim with those raised in the instant case. Whether to grant consolidation would then be, of course, a matter addressed to the sound discretion of the trial court.

      . If the limitation period expired before a counterclaim was presented as a separate complaint, appellant would then in fact be "out of court” on the claim. Arguably, it would be the effect of the limitations period and appellant’s delay, rather than the trial court’s order, which put the party "out of court” in such a case. No argument, however, has been raised with regard to such a scenario in this case, and so we decline to enter into further consideration of such an event at this time.


author:
BECK, Judge:
      JOHNSON, Judge,

text:
    564 A.2d 919
    NEW YORK STATE ELECTRIC & GAS CORPORATION, Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION and Shields Rubber Corporation, a Pennsylvania Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1989.
    Filed Sept. 14, 1989.

      Carl A. Eck, Pittsburgh, for appellant.
    Paul A. Manion, Pittsburgh, for Westinghouse, appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, McEWEN, OLSZEWSKI, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   BECK, Judge:

This case arises out of a dispute between plaintiff-appellant New York State Electric & Gas Corporation (“NY-SEG”) and defendant-appellee Westinghouse Electric Corporation (“Westinghouse”) concerning alleged defects in a turbine generator designed, manufactured and supplied by Westinghouse to NYSEG for installation in NYSEG’s Homer City Electric Generating Station. The trial court granted summary judgment in favor of Westinghouse on alternative grounds; first, that the parties’ contracts barred recovery by NYSEG on any of the theories pleaded, and second, that NYSEG’s tort causes of action sought recovery of purely economic losses, which are not recoverable in a tort product liability action. We affirm.

The Contracts

In 1969, Westinghouse supplied NYSEG with two turbine generators for installation in the Homer City Station. Only one of these generators, Unit No. 1, is involved in this case. Unit No. 1 functioned without incident until 1983, when the events giving rise to this lawsuit began.

During the years following installation of Unit No. 1, the parties entered into a series of agreements governing Westinghouse’s further involvement in servicing the generator and providing materials to the Homer City Station. These agreements consist of a maze of general provisions, blanket purchase orders and more specific purchase orders relating to particular jobs performed by Westinghouse at the Station. They were executed over the five year period from 1979 to 1984. Since the parties’ agreements are the horizon against which we must analyze the instant dispute, and are, in our view, determinative of their respective rights and liabilities, we set forth the following detailed description of the agreements’ pertinent provisions.

In 1979, ten years after Unit No. 1 became operational, NYSEG and Westinghouse entered into an agreement called the Fixed Price Supply Contract (the “Contract”). As described by NYSEG in the Amended Complaint, this document governed services to be provided by Westinghouse and materials to be supplied by Westinghouse to the Homer City Station from the date of its execution forward. In its initial general provisions, the Contract provides that it is the entire agreement between the parties, presumably as to the subject matter thereof.

The Contract contains very limited warranties regarding Westinghouse’s work at the Station. Westinghouse warranted only that its personnel would exercise their best professional knowledge and judgment in performing services and that work or materials supplied under the Contract would conform to contract specifications, be free of defects in workmanship and material and reflect Westinghouse’s best technical knowledge and judgment. In the event that either services provided or materials sold were defective, Westinghouse agreed only to reperform, repair, replace or modify the defective services or materials.

The agreements also contain the following pertinent language regarding the extent of Westinghouse’s liability to the owners of the Homer City station, including NYSEG, for either defective materials or services:

Warranties are Exclusive
THE ABOVE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE OR OTHER WARRANTIES OR GUARANTEES OF ANY KIND OR DESCRIPTION, EXPRESS OR IMPLIED
The above warranties do not cover, and Westinghouse will have no responsibility for any failure to meet, any warranty caused by any failure of Purchaser or its agents to store, install, operate, inspect or maintain the equipment covered by this contract in accordance with the recommendations of Westinghouse or in the absence of such recommendations, in accordance with the generally accepted practices of the United States electric power industry, including but not limited to applicable quality assurance procedures relating to the installation of equipment covered by this contract.
Remedies are Exclusive
THE REMEDIES OF PURCHASER SET FORTH FOR THE ABOVE WARRANTIES ARE EXCLUSIVE.
Repair, adjustment, reperformance, modification or replacement of any equipment or services performed hereunder in the manner and during the period provided herein shall constitute fulfillment of all liabilities of Westinghouse to Purchaser under the warranties set forth in this Article, whether based on contract; on negligence of any kind, strict liability or tort, on the part of Westinghouse or of its suppliers or subcontractors of any tier; or otherwise.
Limitation of Liability
PURCHASER EXPRESSLY AGREES THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, UNDER NO CIRCUMSTANCES SHALL WESTINGHOUSE’S TOTAL AGGREGATE LIABILITY RESULTING:
a. FROM THE PERFORMANCE, FAILURE TO PERFORM OR BREACH OF WESTINGHOUSE’S OBLIGATION HEREIN; AND
b. FROM ANY ACTIVITY UNDERTAKEN BY WESTINGHOUSE WITH RESPECT TO THE EQUIPMENT AND SERVICES COVERED BY THIS CONTRACT; AND
c. FROM ALL ACTIONS BASED ON NEGLIGENCE OR ANY KIND, STRICT LIABILITY OR TORT, ON THE PART OF WESTINGHOUSE OR ITS SUPPLIERS OR SUBCONTRACTORS OR ANY TIER; AND
d. OTHERWISE
EXCEED THE PRICE OF THE PRODUCT OR PART ON WHICH SUCH LIABILITY IS BASED.
PURCHASER EXPRESSLY AGREES THAT THE REMEDIES PROVIDED HEREIN RELATING TO WARRANTIES AND PATENT INFRINGEMENT ARE EXCLUSIVE AND THAT NEITHER WESTINGHOUSE NOR ITS SUPPLIERS OR OR SUBCONTRACTORS OF ANY TIER WILL UNDER ANY CIRCUMSTANCES BE LIABLE UNDER ANY THEORY OR [sic] RECOVERY, WHETHER BASED ON CONTRACT, ON NEGLIGENCE OF ANY KIND, STRICT LIABILITY OR TORT, ON THE PART OF WESTINGHOUSE OR ITS SUPPLIERS OR SUBCONTRACTORS OF ANY TIER; OR OTHERWISE, FOR DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT OTHER THAN THE EQUIPMENT SUPPLIED HEREUNDER; FOR LOSS OF PROFITS OR REVENUE; FOR LOSS OF USE OF POWER SYSTEM; FOR INCREASED COST OF ANY KIND, INCLUDING BUT NOT LIMITED TO CAPITAL COST, FUEL COST AND COST OF PURCHASED OR REPLACEMENT POWER; CLAIMS OF CUSTOMERS OR PURCHASER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR SERVICE INTERRUPTIONS; OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

The parties later executed another general agreement called the Blanket Purchase Order, effective May 1, 1983 through April 30, 1984, pursuant to which Westinghouse agreed to provide engineering services to NYSEG during repairs to the Homer City Station turbine and generators. All services performed by Westinghouse at the Homer City Station in the period covered by the Blanket Purchase Order were provided pursuant to its terms, unless the parties executed another specific purchase order governing the particular job involved. The Blanket Purchase Order incorporated the Contract, with some revisions to the warranty, exclusive remedy and limitation of liability language. However, these revisions did not change the basic parameters of Westinghouse’s potential liability. Westinghouse continued to warrant only that the engineering services to be provided would reflect Westinghouse’s engineers’ best professional knowledge and judgment and, if defective, would be reperformed or the price therefor would be refunded. The exclusive warranty and remedies provisions again expressly limited Westinghouse’s warranties and remedies to those stated above. The limitation of liability provision expressly excluded liability in contract or tort for any special, indirect, incidental or consequential damages, including lost profits and cost of replacement energy, and established the price of the defective work or materials as the upper limit of Westinghouse’s potential liability. The Blanket Purchase Order also states that is it the entire agreement between the parties, supercedes all prior or contemporaneous representations, and “has been induced by no representations, statements or agreements other than those herein expressed.”

Against the backdrop of these agreements, freely negotiated between commercial enterprises, we now turn to the facts of this dispute.

Factual Background.

In December 1983, Westinghouse notified NYSEG that a portion of the turbine generator called the “blower spacer” should be inspected during the next scheduled shut down of the generator and that during the shutdown, the seal on the blower spacer should be replaced. The generator had last been inspected in November 1983, at which time no problems with the blower spacer had been detected. The December 1983 notification apparently arose from Westinghouse’s concern that certain difficulties that had arisen in blower spacers in other generators of the same design as the Homer City generator might have been caused by problems with the seal.

In January 1984, the generator was shut down and a new seal was installed on the blower spacer as Westinghouse had earlier recommended. The materials necessary for this work were provided pursuant to a specific purchase order issued on behalf of NYSEG to Westinghouse. This purchase order incorporated by reference the Contract, including its limitation of liability and exclusive warranties and remedies language. Westinghouse also supervised the replacement process. Since there was no specific purchase order regarding the services Westinghouse supplied, these services were apparently provided pursuant to the Blanket Purchase Order, including its limitation of liability and exclusive warranties and remedies language.

In April 1984, Westinghouse notified NYSEG that the generator should be shut down immediately for reinspection of the blower spacer. NYSEG complied and after reinspection by Westinghouse, Westinghouse concluded that there was. an “indication” on the blower spacer of a possible inception of an early stage crack in the blower spacer flange. NYSEG then agreed that the generator should be taken out of service in order to permit Westinghouse to repair the blower spacer, which was accomplished by July 6, 1984. Again, Westinghouse’s work on the generator was done pursuant to a specific purchase order that incorporated all of the standing terms and conditions regarding warranties and limitations of liability set forth above.

Procedural History

NYSEG instituted suit against Westinghouse in June 1986. NYSEG sought recovery of the cost of the repairs performed between January and July 1984, as well as recovery of lost profits and the cost of purchasing replacement energy to serve NYSEG’s customers during the period from April to July 1984 when the generator was out of service because of the repairs. The alleged damages total well in excess of eight million dollars. Because the original complaint did not have copies of the parties’ contracts affixed, Westinghouse filed preliminary objections. NY-SEG withdrew the complaint and substituted an amended complaint with copies of the relevant contracts and certain other revisions. The amended complaint contained ten counts, as follows:

Count I General Negligence
Count II Willful, Wanton Negligence
Count III Negligent and/or Intentional Misrepresentation
Count IY Negligence — Repair or Inspection
Count V Negligent Performing or Undertaking to Perform Services
Count VI Negligent Sale, Design and Manufacture of Replacement Seal
Count VII Interference with Contractual Relationship Count VIII Breach of Contract Count IX Breach of Warranty
Count X Strict Liability

The gravamen of NYSEG’s amended complaint was that Westinghouse was negligent in dealing with the Unit No. 1 generator problem. These contentions aimed primarily at two of Westinghouse’s actions. First, NYSEG contended that the replacement seal provided in January 1984 was made of different materials from the former seal and that the different seal was defective and may have caused the damage to the blower spacer that was repaired in April to July 1984. Alternatively, NYSEG contended that there never really was any damage to the blower spacer that needed repairing in April 1984 and that Westinghouse made NYSEG take Unit No. 1 out of service unnecessarily, causing NYSEG millions of dollars in unnecessary expense. NYSEG also contended that throughout the period from December 1983 to July 1984, Westinghouse did not sufficiently understand what or whether problems existed with the generator and that this lack of professional competence resulted in damage to NYSEG. Finally, NYSEG alleged that Westinghouse made certain “negligent and/or intentional misrepresentations” concerning the necessity for the repairs to Unit No. 1 in the spring of 1984 and the nature of the replacement seal provided in January 1984. It alleged that Westinghouse’s motive for the alleged misrepresentations as to the need to repair Unit No. 1 in the spring of 1984 was that it needed to obtain a generator to enable it to conduct thorough inspections and tests on it to find out why generators of the same type at other electric generating stations were malfunctioning.

NYSEG did not contend that the generator was defective after the repairs in April-July 1984 had been performed. However, NYSEG did allege that Westinghouse orally represented that these repairs would be complete by June 10, 1984. In fact, Unit No. 1 was not returned to NYSEG until July 6, 1984. NYSEG alleged that this was an inordinate delay resulting from Westinghouse’s negligence in performing the repairs, was a misrepresentation and constitutes a breach of contract.

Westinghouse again preliminarily objected and succeeded in having Count YII (interference with contractual relations) dismissed. NYSEG did not appeal the dismissal of this count. The other counts were retained, subject to Westinghouse’s right to file a motion for summary judgment. Westinghouse then filed its motion for summary judgment. As previously stated, this motion was granted on two of the many grounds Westinghouse had asserted: first, that the parties’ contracts barred recovery for any of the alleged damages on any of the pleaded theories, and second, that since all of the damages sought in Counts I through VI and X, i.e. the tort counts, were purely economic losses, no recovery for such damages could be obtained under Pennsylvania tort law.

DISCUSSION

On review of a grant of a motion for summary judgment, we must review all of the evidence in the light most favorable to the non-moving party and draw all inferences in that party’s favor. If we find, however, that the record, thus analyzed, reveals no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, we must affirm. Washington Federal Savings & Loan Assn. v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986).

A. Contracts

This is a case involving a commercial dispute between sophisticated enterprises that have established their rights and liabilities by contract. The dispute arises from alleged defects in a product that resulted in no physical injury or damage to anything but the product itself. Westinghouse filed a properly supported Motion for Summary Judgment based on the argument that the parties’ contracts dictate as a matter of law that recovery be denied. The Motion was accompanied by copies of the relevant agreements, and an affidavit of a Westinghouse employee familiar with these agreements which verifies that the attached documents are the agreements of the parties. NYSEG did not file any responsive affidavit or other material raising a factual dispute as to the authenticity or proper interpretation of the agreements.

Nor does NYSEG dispute the general enforceability of the exclusive warranties and remedies and limitation of liability clauses in the agreements, on grounds of unconscionability or otherwise. NYSEG concedes that under Pennsylvania law, contractual provisions limiting warranties, establishing repair or replacement as the exclusive remedy for breach of warranty and excluding liability for special, indirect and consequential damages in a commercial setting are generally valid and enforceable. See 13 Pa. Cons.Stat.Ann. §§ 2316, 2718 & 2719 (1982); National Cash Register Co. v. Modem Transfer Co., 224 Pa.Super. 138, 302 A.2d 486 (1973); Eimco Corp. v. Lombardi, 193 Pa.Super. 1, 162 A.2d 263 (1960); Magar v. Lifetime, Inc., 187 Pa.Super. 143, 144 A.2d 747 (1958). Thus, NYSEG must be held to have conceded that the parties’ agreements are preclusive of Westinghouse’s liability for the alleged damages unless there is some other legal bar to the application of the agreements to the instant facts.

The trial court concluded that there was no legal bar to the application of the agreements and we agree.

We need not opine at any great length to demonstrate that the previously quoted portions of the parties’ agreements on their face preclude recovery as a matter of law under all of NYSEG’s properly preserved theories of relief. These agreements establish unequivocally that as a result of the restrictions on remedies to which NYSEG agreed, Westinghouse’s sole obligation in response to a claim of improper performance of services or defective materials is repair or replacement efforts. Moreover, the parties specifically allocated the risks of uncertain events and consequences, including the risk that the generator would be out of service for some time, by agreeing to a limitation on Westinghouse’s liability. Thus, the agreements provide that Westinghouse will not be liable for loss of profits, loss of use, cost of replacement power or any other consequential damages, in tort, contract or otherwise. Yet these are precisely the damages sought by the amended complaint.

The amended complaint seeks to recover, under both tort and contract (warranty) theories, for lost profits, costs of replacement power and other incidental expenses associated with the repairs to the Unit No. 1 generator. But whether pleaded in contract or tort, these damages are not recoverable. Westinghouse has fully performed any obligations it might have had for nonconforming services or products under the agreements. It has repaired the Unit No. 1 generator, which functioned properly after the replacement of the seal in January 1984 and which has functioned properly since the new blower spacer was installed in May — July 1984. Thus, Westinghouse has fulfilled its contractual obligation to repair or replace and it has no further liability.

B. Negligence and Strict Liability

Moreover, even in the absence of the parties’ agreements, we would nevertheless hold that NYSEG’s recovery for the damages pleaded in the negligence and strict liability counts is barred as a matter of law because the losses alleged are purely economic in nature and cannot be recovered in negligence or strict liability. REM Coal Company, Inc. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128 (1989) (en banc). As stated above, all of the losses NYSEG alleged are economic in nature, i.e. loss of profits, cost of replacement energy and other costs associated with the repairs. There is no allegation that the alleged defects in the generator caused any personal injury. Although NYSEG does allege that the defective portions of the generator caused damage to other parts of the generator, in an attempt to demonstrate that the alleged defects in the generator caused non-economic damage to “other property” of NYSEG, this contention is clearly without merit. As this court held in Industrial Uniform Rental Co. v. International Harvester Co., 317 Pa.Super. 65, 463 A.2d 1085 (1983), where various components of a product are provided by the same supplier as part of a complete and integrated package, even if a defect in one component damages another, there is no damage to “other property” of the plaintiff. Id., 317 Pa.Superior Ct. at 77-78, 463 A.2d at 1092 (quoting Northern Power & Engineering Co. v. Caterpillar Tractor Co., 623 P.2d 324, 330 (Alaska 1981). This is, therefore, a case where the alleged defect in the product only resulted in an impairment of the quality of the product itself and consequential damages.

In our opinion in the companion to this case, REM Coal Company, Inc. v. Clark Equipment Co., this court has held that economic losses are not recoverable in negligence or strict liability in a product liability action. Application of that holding to the negligence and strict liability counts of NYSEG’s complaint compels the conclusion that the pleaded damages are not recoverable.

The rationale underlying our decision in REM Coal is peculiarly applicable to this case. In REM, we adopted the rationale of the United States Supreme Court in East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). There, the Supreme Court expressed its concern for maintaining the separate spheres of the law of contract and tort. It emphasized that where an allegedly defective product causes damage only to itself, and other consequential damages resulting from the loss of the use of the product, the law of contract is the proper arena for redressing the harm because in such a case, the damages alleged relate specifically to product quality and value as to which the parties have had the opportunity to negotiate and contract in advance. They have allocated the risks of possible types of losses, and agreed on the level of quality that will be given for the price demanded. When the product fails to conform and only economic losses result, the parties’ recovery one against the other for economic losses should be limited to an action on that contract and no additional recovery in negligence or strict liability is permitted.

In the instant case, the parties did enter into fully integrated contracts governing the product involved. They agreed to limited warranties regarding the quality of the product and services to be provided by Westinghouse and to limited remedies for a failure to conform to those warranties. They further allocated the risk of business interruption losses to NYSEG alone. They must now be held to those agreements and cannot avoid them under theories of negligence or strict liability.

C. Fraud

Having so concluded, we must now consider NYSEG’s two remaining arguments in support of its right to recover the pleaded damages. Each of these is aimed at eliminating the parties’ agreements as a bar to recovery of the pleaded damages. We need not consider any of these arguments in the context of NYSEG’s negligence and strict liability causes of action since we have already determined that recovery under those theories is barred as a matter of law by the doctrine that precludes recovery of economic losses in a product liability action based on either negligence or strict liability. We must consider them, however, in connection with NYSEG’s breach of contract and breach of warranty claims and in connection with NYSEG’s alleged fraud theory.

The first argument is that the parties’ agreements may not be enforced against NYSEG in the context of this dispute because Westinghouse defrauded NYSEG and two legal consequences flow from this alleged fraud: first, that Westinghouse should be precluded from relying on the exclusive remedies and limitation of liability provisions of the agreements because the agreements were fraudulently induced; and, second, that NYSEG has a tort action for fraud against Westinghouse.

NYSEG alleges that Westinghouse fraudulently induced NYSEG to enter into the two specific purchase orders relating to the January 1984 and April 1984 repairs. Significantly, there is no allegation that Westinghouse fraudulently induced NYSEG to enter into either the 1979 Fixed Price Supply Contract or the 1983-84 Blanket Purchase Order. NYSEG also alleges that it has a tort action for fraud against Westinghouse based on Westinghouse’s intentional misrepresentations concerning the need to take Unit No. 1 out of service in the spring of 1984, the presence of an “indication” of a possible crack in Unit No. 1 in the spring of 1984, the nature of the replacement seal put on the generator in January 1984 and the fact that the spring repairs would be completed by June 10, 1984.

NYSEG secondarily asserts that the limited remedies provided in the agreements failed of their essential purpose, thus allegedly opening the door under Section 2719(b) of the Uniform Commercial Code to complete recovery by NYSEG of all of the alleged damages, whether compensatory or consequential. 13 Pa.Cons.Stat.Ann. § 2719(b) (1984).

We begin with the fraud theory. The trial court made no mention of NYSEG’s fraud theory, either as an impairment of the enforceability of the parties’ agreements or as support for a tort fraud claim. In other words, the trial court dealt with the issues as if this case presented no fraud claim. NYSEG argues that this was error, contending that the court ignored a crucial part of NYSEG’s case. Westinghouse responds that the trial court did not deal with NYSEG’s fraud claim because the case actually involves no cognizable fraud claim. We agree. The trial court correctly did not take into consideration NYSEG’s inadequately pleaded and argued and totally unsupported allegations of fraud, nor will we.

Fraud is a claim easily made but difficult to support. Once an allegation of fraud is injected into a case, even though it may ultimately be shown to be without any arguable merit, the whole tone and tenor of the matter changes. An allegation of fraud opens the door not only to recovery on an independent tort theory of deceit, as to which certain defenses applicable to pure negligence do not apply, but may also provide a defense to enforcement of an otherwise binding contract or a ground for rescission thereof. Delakanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983); Myers v. Rubin, 399 Pa. 363, 160 A.2d 559 (1960).

In order to protect those against whom generalized and unsupported allegations of fraud may be levied, the Pennsylvania Rules of Civil Procedure require that fraud be “averred with particularity.” Pa.R.C.P. 1019(b). Thus, a party raising a claim of fraud must set forth in its pleading specific facts to support the alleged fraud. As the Supreme Court has explained this requirement and its purpose:

Averments of fraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation or offered simply to harass the opposing party and to delay the pleader’s own obligation____ The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge.

Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 379-80, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967). These requirements apply whether fraud is pleaded affirmatively or defensively. Id.

In applying this standard to this case, we have carefully examined the pleadings and other documents of record. Having done so, we conclude that NYSEG presented no more than general and constantly shifting averments of “negligent and/or intentional misrepresentation”, “fraud” and “fraud in the inducement” to the trial court. Nor did NYSEG present any evidentiary or legal support for these averments in response to Westinghouse’s motion for summary judgment.

We begin with NYSEG’s cause of action in tort for fraud. It is in Count III of the original complaint that NYSEG claims it first and timely raised its fraud theory. Examination of this count reveals, however, that it not only makes no mention of fraud, but also does not allege any specific facts supporting fraud. It alleges only that throughout the relevant period, i.e. January to July, 1984, Westinghouse had insufficient knowledge of the nature of the problems with the Unit No. 1 generator or others of its type to know precisely what might be wrong with them. It further states that notwithstanding this lack of knowledge, Westinghouse nevertheless “advised and informed” NYSEG that Unit No. 1 should be taken out of service in April, that it had an “indication” of a problem, that a new blower spacer should be installed and that this would be done by June 10, 1984. These are then alleged to be “either negligent misrepresentations or intentional misrepresentations”, “as a result” of which NYSEG took Unit No. 1 out of service and had the repairs done.

This is not adequate pleading of fraud, either as a ground for recovery or as a defense to the agreements on the ground that they were induced by fraud. The elements of fraud are:

1. a misrepresentation,
2. a fraudulent utterance thereof,
3. an intention by the maker that the recipient will thereby be induced to act,
4. justifiable reliance by the recipient upon the misrepresentation, and
5. damage to the recipient as the proximate result.

Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. at 107-08, 464 A.2d at 1252.

The central problem with the allegations in the original complaint is that they do not set forth specific facts to support a claim that Westinghouse, with fraudulent intent and knowledge of the falsity of its statements, gave advice to NYSEG to induce it to act to its own detriment. Rather, the whole basis of the original complaint’s count III is Westinghouse’s lack of knowledge. There is no allegation that Westinghouse knew that Unit No. 1 should not be taken out of service, or knew that it had no indication of a problem, or knew that it needed no repairs. There is also no allegation that NYSEG’s reliance on Westinghouse’s advice was justifiable. There is only an allegation that NYSEG took the Unit out of service and had it repaired “as a result” of Westinghouse’s advice.

Although NYSEG later supplemented these allegations by alleging new facts specifically in support of the fraud cause of action, it did so in an amended complaint which was concededly filed after the statute of limitations applicable to fraud had already expired. 42 Pa.Cons.Stat Ann. 5524(7). It is axiomatic that a party may not plead a new cause of action in an amended complaint when the new cause of action is barred by the applicable statute of limitations at the time the amended complaint is filed. Del Turco v. Peoples Home Savings Assn., 329 Pa.Super. 258, 478 A.2d 456 (1984).

Thus, we find that since NYSEG failed to timely and properly plead a cause of action for fraud in the trial court, it was proper for the trial court to refuse to consider such a cause of action in deciding on Westinghouse’s motion for summary judgment and we will similarly refuse to consider it in reviewing the grant of summary judgment.

Of greater importance to NYSEG is its argument that Westinghouse fraudulently induced NYSEG to enter into some or all of the contractual arrangements referred to above. Unfortunately, NYSEG’s pleadings and other documents filed in the trial court were equally inadequate in raising fraud in the inducement as a reply to Westinghouse’s defense based on the parties’ agreements. Westinghouse raised the defense of the agreements as new matter in its answer to the amended complaint. NYSEG’s reply to new matter states only that the contracts are not preclusive of NYSEG’s recovery because Westinghouse “abrogated and vitiated” the contracts by its “conduct” as described in the amended complaint and because of Westinghouse’s “misrepresentations”. There are no allegations as to which specific representations induced NYSEG to enter into which specific contract, when they were made, or how they constituted such a fraudulent inducement.

Nor did NYSEG’s brief in response to the motion for summary judgment contain any specific argument concerning the allegations contained in count III of the amended complaint. The response summarily states that the parties’ agreements cannot be enforced against NYSEG because “Westinghouse made other promises, warranties and representations to which the plaintiff has referred in its amended complaint” and “misrepresented the very purpose for which it requested permission to remove and test the part” and that “the agreements are of no effect on the present disputes because of the subsequent misrepresentations and dealings between the parties.” There is no legal argument concerning either fraud or fraud in the inducement. Moreover, no evidence of any of the allegations of fraud was submitted in opposition to the motion for summary judgment.

We will not permit NYSEG to defend against a motion for summary judgment in the trial court merely by repeating its generalized allegations of fraud, with no evidentiary support therefor and without pertinent legal argument, and then argue before this court that its central factual and legal contention is based on fraudulent inducement. Thus, we will analyze this case as did the trial court, i.e. as a case in which NYSEG has failed properly to assert any fraud claim, whether as an affirmative theory of relief or as a ground for avoidance of the parties’ agreements. We regard NYSEG’s assertions of fraud as nothing more that a subterfuge to avoid the clear impact of its freely negotiated agreements.

D. Section 2719(b) of the Uniform Commercial Code

We now turn to consideration of NYSEG’s only properly preserved argument against the enforceability of the exclusive remedy and limitation of liability provisions of the parties’ agreements. This argument rests on Section 2719(b) of the Uniform Commercial Code, which provides:

(b) Exclusive remedy failing in purpose.- — Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.

The comment to Section 2719(b) explains that “where an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of its bargain, it must give way to the general remedy provisions of this Article.” 13 Pa.Cons.Stat.Ann. § 2719(b) comment 1. Noted commentators on the Uniform Commercial Code have explained that situations where an exclusive remedy will fail of its essential purpose are rare:

There are probably relatively few situations where a remedy can fail of its essential purpose. Section 2-719(2) [Section 2719(b) ] has been called into action most often in cases ... when the exclusive remedy involves replacement or repair of defective parts, and the seller because of his negligence in repair or because the goods are beyond repair, is unable to put the goods in warranted condition. Section 2-719(2) might also apply when the exclusive remedy requires performance of an act by the buyer that is precluded by the seller’s breach.

White, J.J. & Summers, R.S., Uniform Commercial Code, at 469 (2d ed. 1980).

NYSEG contends that the exclusive repair or replace remedy provided for in the parties’ agreements failed of its essential purpose because Westinghouse willfully misrepresented facts concerning the need to remove the blower spacer in April 1984 and engaged in dilatory conduct in replacing the blower spacer in the period from May through July 1984.

It is true that Section 2719(b) has most frequently been applied to defeat an exclusive remedy provision where the provision limited the buyer’s remedy to repair or replacement and the seller either refuses or is unable to provide this remedy within a reasonable time. See Foss, When to Apply the Doctrine of Failure of Essential Purpose to an Exclusion of Consequential Damages: An Objective Approach, 25 Duquesne L.Rev. 551, 554 n. 11 (1988), and cases cited therein. Some courts have also considered a seller’s alleged bad faith in determining whether an exclusive remedy has failed of its essential purpose. Id. at 565-569 and cases cited therein. However, we are not persuaded that this case presents circumstances that warrant excision of the exclusive remedy provisions of the parties’ agreements under Section 2719(b).

First, as we have opined above, NYSEG has simply not preserved any argument based on a wilful misrepresentation by Westinghouse that would undercut the enforceability of the parties’ agreements. As to the length of time it took Westinghouse to perform the replacement of the blower spacer, we once again find that the parties’ agreements govern. The parties entered into a specific purchase order for the performance of the replacement of the blower spacer which incorporated all of the limitation of liability and exclusive remedy language set forth above. This purchase order was executed in May 1984 and provides on its face that the repairs would be completed by July 2, 1984. In fact, the fully repaired generator was returned to NY-SEG only four days later, on July 6, 1984.

It is not this de minimus four day period that constitutes the alleged inordinate delay in the repairs. NYSEG appears to argue that Westinghouse orally represented that the blower spacer would be returned by June 10, 1984 and that the inordinate delay arises from the gap between this date and the actual return date of July 6, 1984. NYSEG’s argument regarding this alleged representation of a June 10, 1984 return date is somewhat confusing. As originally pleaded, the argument appeared to be that Westinghouse made this representation prior to execution of the purchase order. However, NYSEG was then met with Westinghouse’s well-supported response that such an unsupported allegation of a prior oral agreement could not be admitted to vary the terms of the fully integrated agreement of the parties, i.e. the May 1984 purchase order, which on its face contradicts this representation. Gianni v. R. Russell and Co., Inc., 281 Pa. 320, 126 A. 791 (1924); Bardwell v. Willis Co., Inc., 375 Pa. 503, 100 A.2d 102 (1953); McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), aff'd, 519 Pa. 439, 548 A.2d 1223 (1989). NYSEG then responded that the alleged misrepresentation occurred after execution of the purchase order. NYSEG appeared to be arguing that this representation constituted a separate agreement of the parties or, presumably, an oral modification of the purchase order.

We find that the terms of the fully integrated agreement govern. NYSEG has not presented a validly preserved claim of fraud in the inducement as to this agreement and any evidence of a prior oral term of the agreement is, therefore, inadmissible to vary its terms. See cases cited, supra. If, on the other hand, NYSEG is alleging that the representation as to when the repairs would be complete was made after the execution of the agreement and constitutes a separately enforceable contractual obligation, then we find that the allegation must nevertheless fail as a matter of law. There is no allegation of separate consideration to support the modification and no argument as to how NYSEG would propose to overcome the terms of the parties’ Fixed Price Supply Contract which forbids oral modifications and which was fully incorporated into the subject purchase order. Nor did NYSEG submit a shred of evidence to support the existence of this alleged modification to the purchase order in opposition to Westinghouse’s motion for summary judgment.

Thus, we construe Westinghouse’s obligation as to the time it would take to repair the generator in the spring of 1984 to be as expressed in the purchase order, i.e. the promised return date was July 2, 1984. Given this conclusion, it is beyond cavil that the exclusive remedy these parties agreed to operated just as the parties contemplated. Westinghouse did not attempt to refuse to perform the remedy, and except for a de minimus delay of four days in returning the generator, Westinghouse performed within the time it had agreed to perform. This is not a case where the exclusive remedy of repair or replacement has failed, but rather a case where the remedy was completely and fully performed. The fact that consequential damages nevertheless resulted was clearly a possibility that the parties foresaw and bargained for at the inception of their relationship. See Posttape Associates v. Eastman Kodak Co., 450 F.Supp. 407 (E.D.Pa.1978). NYSEG’s argument based on § 2719(b) is simply another attempt to avoid its own agreement that it would bear the risk that profits would be lost and replacement energy costs incurred during any shutdown of the generator.

Judgment affirmed.

JOHNSON, J., files concurring statement.

McEWEN, J., joins in concurring statement by JOHNSON, J.

JOHNSON, Judge,

concurring.

I agree that the judgment in favor of Westinghouse Electric Corporation must be affirmed. I have difficulty accepting the majority’s treatment of Count III of plaintiff’s complaint. The majority would treat an inadequate averment of fraud in the original complaint as being incapable of correction following the passing of the limitations period.

The appellant has not raised as error the trial court’s treatment of the fraud allegation. I do not read Del Turco v. Peoples Home Savings Assn., 329 Pa.Super. 258, 478 A.2d 456 (1984), as prohibiting attempts to cure an inadequate pleading merely because the statute of limitations may have run during the interim between the original and the amended pleading.

On my review of the pleadings, I would find that the generalized allegations of fraud contained in plaintiff’s amended complaint do not satisfy the specificity requirements of Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). I would, therefore, avoid ruling on a point which was not considered by the distinguished trial judge and was not advanced in appellant’s brief.

McEWEN, J., joins in this concurring statement.

      . The Homer City Electric Generating Station is actually jointly owned by NYSEG and Pennsylvania Electric Company (“PENELEC”) as tenants in common. PENELEC is not a party to this action.

      . We note that the amended complaint does contain two summary allegations relating not to the conduct of Westinghouse in the period from late 1983 to July 1984, but rather to Westinghouse’s original sale of the generator to NYSEG in 1965. In Counts IX and X, NYSEG alleges that the blower spacer as originally sold was defective, thus resulting in a breach of warranty and strict liability in tort. Despite the fact that none of the parties’ agreements discussed in text above relate to the original sale of the equipment, the trial court made no reference to this aspect of NYSEG’s amended complaint and did not distinguish between those contentions that related to the original sale of the generator and those that related to services and materials provided by Westinghouse in 1983-1984. However, NYSEG makes no mention of the allegations relating to the original sale of the equipment in its Statement of Questions on Appeal nor in any other section of its brief to this court. Thus, we find that any issues relating to the propriety of summary judgment against NYSEG on its claims arising from the original sale of the equipment have been waived. Pa.R.A.P. 2116; Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983). See also Cosner v. United Penn Bank, 358 Pa.Super. 484, 517 A.2d 1337 (1986) (points not argued in argument section of appellate brief are waived).

      . Westinghouse also sought summary judgment on the ground that all counts of the amended complaint were barred by the Pennsylvania Statute of Repose, that the Amended Complaint was late-filed, and that certain counts of the complaint provided no ground for recovery either because of prior releases between the parties or the parol evidence rule. The trial court did not opine at any length on these contentions, presumably because it ruled in Westinghouse’s favor on the grounds expressed in text above. The court did state, however, that these contentions did not support summary judgment because they either involved factual disputes or were meritless.

      . We need not and do not decide whether the bar to recovery of economic losses would apply in a tort product liability action based on fraud since in this case, we decide that NYSEG has not pleaded and preserved any fraud cause of action.

      . Westinghouse filed preliminary objections on this ground. It also raised the statute of limitations as to fraud in its Answer and New Matter filed in response to the amended complaint. Although the trial court denied Westinghouse’s preliminary objections, it did so specifically without prejudice to Westinghouse raising the same arguments in a motion for summary judgment, which Westinghouse later did.

      . NYSEG repeatedly states throughout its brief that Westinghouse admitted all of the facts pleaded in the Amended Complaint, including those relating to fraud, for purposes of the Motion for Summary Judgment. In fact, the Motion for Summary Judgment only presented a synopsis of the relevant allegations of the Amended Complaint and admitted the facts in the synopsis, and only those facts, for purposes of the Motion. Since the synopsis did not include the fraud allegations, Westinghouse did not admit to fraud.

      . Since we decide that the exclusive remedy provisions have not failed of their essential purpose, we need not decide the related and more difficult issue of the effect of such a failure on the limitation of liability provision. NYSEG assumes that once it is demonstrated that an exclusive remedy provision has failed, all limitations on liability, including an exclusion of consequential damages, automatically fail also. In fact, there is a split of opinion on this issue, with many courts holding that even where an exclusive remedy like repair and replacement has failed, an exclusion of consequential damages remains effective. See Foss, cited in text supra, at 555-556 n. 14.


text:
    564 A.2d 931
    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.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1989.
    Filed Sept. 13, 1989.

      Barbara Cymerman, Pittsburgh, for appellants.
    Gregory M. Devine, Pittsburgh, for appellee.
    Before ROWLEY, KELLY and HESTER, JJ.
   KELLY, Judge:

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 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 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 proceedings would clearly be fruitless. Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986).

To be successful in a replevin action, the plaintiff must show not only title, but also the exclusive right of immediate possession of the property in question. International Electronics Co. v. N.S.T. Metal Products Co., Inc., 370 Pa. 213, 88 A.2d 40 (1952); Wilson v. Highway Service Marineland, 274 Pa.Super. 391, 394, 418 A.2d 462, 464 (1980) . “Exclusive” right of possession means only a right which excludes the defendant. Thus, a plaintiff in a replevin action must show good title and right to possession as against the defendant, but is not required to set up such a title or right as against the whole world. Gensbigler v. Shawley, Inc., 162 Pa.Super. 642, 644, 60 A.2d 360, 362 (1948).

The focus in a replevin actions is strictly limited to title and right of possession; all matters foreign to those limited issues are expressly excluded from consideration and are not available as defenses or counterclaims. Blossom Products Corporation v. National Underwear Company, 325 Pa. 383, 191 A. 40 (1937); Ford Motor Credit Co. v. Dunsmore, supra; Gensbigler v. Shawley, supra. In Ford Motor Credit Co. v. Dunsmore, supra, this Court specifically held that,

[a] warranty claim cannot be asserted as a defense in a replevin action. Lee-Strauss Co. v. Kelly, 292 Pa. 403, 141 A. 236 (1928); Hall’s Safe Company v. Walenk, 42 Pa.Super. 576 (1910). Any such claims which the purchaser may have against the seller must instead be asserted in an independent proceeding. Hahn v. Andrews, 370 Pa. 65, 87 A.2d 284 (1952).

542 A.2d at 1034. Consequently, we affirm that portion of the trial court’s order which dismissed appellant’s Lemon Law and related warranty defenses and counterclaims in this case, as well as the Caiazzos’ specific counterclaims for the return of the purchase amounts paid, and for alleged defamation damages.

There is, however, a material difference between the pleadings in this case and the pleadings at issue in Ford Motor Credit Corp. v. Dunsmore, supra. Here, the Caiazzos have specifically asserted a possessory interest in the Mercury Grand Marquis in the form of a purchase money security interest under 13 Pa.C.S.A. § 2711(c) arising from the Caiazzos’ alleged justifiable revocation of acceptance of the vehicle based upon uncorrected defects which substantially impaired the value of the vehicle. No such claim was presented in Ford Motor Credit Corp. v. Dunsmore, supra.

Pursuant to Pa.R.C.P. 1082(a), a claim to possession based upon a lien on the property in question in a replevin action may properly be set forth as a counterclaim in the replevin action. See e.g. Wilson v. Highway Service Marineland, supra. Here, the Caiazzos alleged justifiable revocation of acceptance, and asserted a possessory, purchase money security interest under 13 Pa.C.S.A. § 2711(c). We find that the trial court erred in summarily dismissing this counterclaim.

Initially, we note that the fact that Ford Motor Credit Corporation was the assignee of Biondi Motor Corporation’s security interest did not insulate Ford Motor Credit Corporation from the effects of the Caiazzos’ alleged lawful revocation of acceptance of the Mercury Grand Marquis. Under Pennsylvania law, and the express terms of the financing contract in this case, the assignee of a security interest in a retail installment financing contract for a motor vehicle takes subject to all claims against the seller or manufacturer of the vehicle, and is not considered to be a holder in due course who takes free from such claims. See Casey v. Philadelphia Auto Sales Co., 428 Pa. 155, 236 A.2d 800 (1968); First National Bank of Millville v. Horwatt, 192 Pa.Super. 581, 162 A.2d 60 (1960); Ford Motor Credit Corp. v. Moser, 34 D. & C.3d 115 (1984).

The Caiazzos alleged a possessory, purchase money security interest under 13 Pa.C.S.A. § 2711(c) which provides as follows:

§ 2711 Remedies of buyer in general; security interest of buyer in rejected goods.
sjs * * * * *
(c) Security interest of buyer in rejected goods. — On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (section 2706).

(Emphasis added). In Yates v. Clifford Motors, Inc., 283 Pa.Super. 293, 310-12, 423 A.2d 1262, 1271-72 (1980), this Court recognized the validity of a Section 2711(c) possessory, purchase money security interest following revocation of acceptance of a truck purchased via an installment financing agreement, even though following revocation of acceptance the buyer made no installment payments to the bank which held the mortgage under the motor vehicle financing agreement. Similarly, in Cardwell v. International Housing, Inc., 282 Pa.Super. 498, 513, 423 A.2d 355, 363 (1980), this Court recognized the validity of a Section 2711(c) possessory, purchase money security interest following revocation of acceptance of a mobile home purchased via an installment financing agreement.

In the Uniform Commercial Code Commentary and Law Digest, Professor Quinn has cogently observed:

§ 2-711(a) Editorial Commentary.
Buyer’s “Security Interest” to Assure Repayment. Section 2-711(3) faces up to the question of what a buyer is to do who, on the one hand, is intent on returning the goods but, on the other, has already paid all or part of the price or has incurred expenses in their regard. To simply return the goods runs the risk of kissing the down payment and the out-of-pocket expenses goodbye — or, at least, rendering their return that much more difficult. Hanging on to the goods bars that risk, but it also opens the buyer up the charge that by failing to return the merchandise, he “accepted” it (2-606) and became liable for the full price (2-607(1), 2-709(1X1)).
Section 2-711(3) neatly solves this dilemma by allowing for a formal rejection (or revocation), with the buyer empowered to retain the goods in fact as a way of assuring prompt repayment of the money due by the seller. In technical terms, the buyer has a “security interest” in the goods which he enforces by retaining possession of the unwanted goods.

Quinn, UCC Commentary and Law Digest, § 2-711(a)(2) at 2-442 (1978). In his 1988 supplement to the above treatise Professor Quinn added to the former commentary as follows:

Where this right is to be exercised, however, it is important to distinguish carefully between giving prompt and formal notice of rejection and promptly returning the defective merchandise! The two are not the same. It is not only possible but advisable in some cases to retain physical possession of the goods while rejecting. The obvious case is where the buyer has paid for all or part of the goods. A return of the goods in this context leaves the buyer with neither the goods nor the money paid. The buyer has gone from bad to worse.
Far from requiring a physical return of the goods in this context, the Code gives the rejecting buyer “a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care, or custody,” and makes it clear that the buyer “may hold such goods and resell them in like manner as an aggrieved seller (2-711(3)). A proper exercise of the buyer’s right of rejection [or revocation], therefore, is quite compatible with physical retention and even resale, should the need arise.

Quinn, supra at 52-485 (1988 Cum.Supp. No. 2). Accord Anderson, An Overview of Buyer’s Damage Remedies, 28 UCCLJ 28, 39 (1988); 3 Hawkland UCC Series, § 2-711:03 (1982).

Ford Motor Credit Corporation argues in its brief to this Court that the trial court’s order sustaining its demurrer to the Caiazzos’ Section 2711(c) possessory security interest claim must be affirmed because:

review of the record shows without doubt that there exists several reasons why the common pleas court could have concluded that the Caiazzos’ revocation was not justifiable or effective, thereby rendering their claim as one for breach of warranty and which under the Duns-more ruling may not [be] asserted in this replevin action.

(Appellee’s Brief at 5). Ford Motor Credit Corporation suggests that the trial court “must have concluded that there was no effective revocation.” (Appellee’s Brief at 10). We cannot agree.

Under Pennsylvania law, what is a reasonable time after tender or delivery for rejection or revocation of defective goods is generally deemed a question of fact to be resolved by the fact finder, and no express outside time limit is set. See Yates v. Clifford Motors, Inc., supra, 423 A.2d at 1268-69 (collecting cases); Cardwell v. International Housing Inc., supra, 423 A.2d at 362 see generally Reitz, What You Should Know About State “Lemon Laws,” 34 Practical Lawyer 83, 85 (1988); Comment, Sweetening the Fate of the “Lemon Owner, 14 Toledo L.Rev. 341, 355-568 & nn. 108-113 (1983); Oxenham, Automobile and the Lemon Law, 7 Va.B.Assn.J. 18, 21 (1981); Highsmith & Havens, Revocation of Acceptance and the Defective Automobile, 18 Am.Bus.L.J. 303, _ (1980); Cohen & Bailey, Defective Motor Vehicles—Warranty Rights and Practical Remedies for Consumer Purchasers,__Mass.L.Rev. 33, 39 (Jan-Feb 1980); Stanley, Defective Automobiles and the U.C.C., 18 Clev.St.L.Rev. 527, 533-35 (1969).

Revocation of acceptance of a new automobile is permitted under 13 Pa.C.S.A. § 2608 only if the defects or nonconformities substantially impair the value to the purchaser. See Yates v. Clifford Motors, Inc., supra, 423 A.2d at 1272 (dicta); Rozmus v. Thompson’s Lincoln-Mercury Co., 209 Pa.Super. 120, 224 A.2d 782 (1966). Whether the nonconformity or defects exist and substantially impair the value of the vehicle to the purchaser are questions of fact to be resolved by the factfinder in all but the clearest cases. See Rozmus v. Thompson’s Lincoln Mercury Co., supra; cf. Vista Chevrolet Inc. v. Lewis, supra, 704 S.W.2d at 368 (collecting cases); Pavesi v. Ford Motor Company; supra, 382 A.2d at 956; Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 354-55 (Minn.1978); Hays Merchandise, Inc. v. Dewey, 78 Wash.2d 343, 474 P.2d 270, 272 (1970) (citing Rozmus v. Thompson’s Lincoln-Mercury). The factual nature of this determination is underscored by the fact that the test is ostensibly subjective rather than objective, i.e. impairment is gauged as to the particular purchaser, rather than as to a hypothetical “reasonable” purchaser. See 13 Pa.C.S.A. § 2608, comment 2: see also Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 120, 374 A.2d 144, 148 (1976); Comment, supra, 14 Toledo L.Rev. at 352-54 & nn. 81-102; Adams, Revocation of Acceptance: The Test for Substantial Impairment, 32 U.Pitt.L.Rev. 439, 439-49 (1971) (noting the need for objective evidence of subjective impairment).

Ford Motor Credit Corporation’s suggestion that the trial court “must have concluded” that there was no effective revocation of acceptance by the Caiazzos is doubly flawed. First, there is absolutely no indication in the trial court’s opinion that any such determination was made. Second, any such determination would have been premature at this nascent stage in the proceedings. As noted above, the questions of whether notice of revocation was timely, and whether particular defects existed and substantially impaired the value of the vehicle of the purchasers, are questions of fact and as such are not properly determinable in ruling on a preliminary objection in the nature of a demurrer. At this juncture the trial court was required to accept the facts as pled and to grant the Caiazzos the benefit of all inferences reasonably derivable therefrom. As pled, we do not find that a finding, that such no effective revocation occurred, was made or even could have been made by the trial court.

The Caiazzos have alleged that they justifiably revoked acceptance of the Mercury Grand Marquis as the result of the failure of both the manufacturer and the dealer to correct “numerous defects which substantially impaired the use, value, and safety of the subject automobile” despite the fact that they “promptly notified Biondi Motor Company Inc. and Ford Motor Company, of said defects” and gave them “ample opportunity to cure said defects.” They have, in fact, submitted in support of their claim an automotive expert’s report which details 76 specific defects. (R.R. at 42a-51a).

If proven, these allegations might support a finding that acceptance was lawfully revoked. See Rozmus v. Thompson’s Lincoln Mercury, supra. If acceptance was lawfully revoked, then a valid possessory, purchase money security interest would have existed. See Yates v. Clifford Motors, Inc., supra. The assertion of such a possessory security interest is a properly cognizable counterclaim in a replevin action. See Wilson v. Highway Service Marineland, supra. Hence, we conclude that the trial court erred in summarily dismissing the Caiazzos’ answer, and new matter to the extent that it raised a Section 2711(c) possessory, purchase money security interest as a counterclaim in this replevin action. The case is not free from doubt on this issue, at this juncture; hence, the preliminary objection in the form of a demurrer should have been denied as to this issue.

Conclusion

The order of the trial court is Affirmed in Part and Reversed in Part. This matter is Remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Cases from other jurisdictions are in accord. See e.g. Vista Chevrolet Inc. v. Lewis, 704 S.W.2d 363 (Texas App.1985) (Section 2711 security interest validly assserted following “lemon” related revocation of acceptance); McCullough v. Bill Swad Chrysler-Plymouth, 5 Ohio St.3d 181, 449 NE.2d 1289 (1983) (same); McGinnis v. Wentworth Chevrolet Co., 645 P.2d 543 (Ore.App.1982) (same); Pavesi v.

        Ford. Motor Co., 155 N.J.Super. 373, 382 A.2d 954 (1978) (same); Irrigation Motor and Pump Co. v. Belcher, 29 Colo.App. 343, 483 P.2d 980 (1971) (same, regarding irrigation equipment); Mobile Homes Sales Management Inc. v. Brown, 115 Ariz. 11, 562 P.2d 1378 (1977) (same, regarding a mobile home).

      . We note that although the issue has not been decided as yet in a Pennsylvania appellate court, a purchaser who retains an automobile to protect a security interest following rejection or revocation may have a duty to sell the automobile in the absence of reasonable instructions from the seller, in light of the fact that automobiles decline in value rapidly. See Grucella v. General Motors Corp., 10 D & C 2d 65, 71 (1956) (citing 13 Pa.C.S.A. § 2603(1)); see also 4 Anderson, Uniform Commercial Code, § 2711:6 at 424 (1988 Cum.Supp.) (citing Grucella with apparent approval); cf. Schuchman, Condition and Value of Repossessed Automobiles, 21 Wm. & M.L.Rev. 15, 15-43 (1979) (discussing the rapid decline in value of automobiles). Here, upon posting a replevin bond sufficient to secure the Caiazzos' alleged Section 2711(c) security interest, Ford Motor Credit Corporation obtained possession of the vehicle in question. Cf. Wilson v. Highway Service Marineland, supra, 418 A.2d at 464.