Moscatiello v. Pittsburgh Contractors Equipment Co.

595 A.2d 1190 (1991)

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Nature of the Case

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Facts

P (buyer) and D (seller) entered into a contract for the purchase of a concrete paving machine ('paver') manufactured by Curbmaster. A month before the contract was executed in May 1987, Franco Moscatiello and his superintendent, Jay Palino, met with the vice president of D to discuss the purchase of the paver. D was aware that P had been awarded a contract by the Pennsylvania Department of Transportation ('PennDot') to reconstruct a road, and that PennDot required that the concrete surface of the road be laid by a certain type of paving machine. The manufacturer of the paver, Curbmaster, also participated in these preliminary discussions. The vice president of Curbmaster had a telephone conversation with a representative of D and P in which he suggested that either of two machines manufactured by Curbmaster would be suitable for the job and acceptable to PennDot. The purchased spreader-finisher machine went for a total price of $ 85,125.42. D's purchase agreement stated on the reverse side that no warranties were offered on equipment sold and that any implied warranties were excluded in favor of the manufacturer's offer of warranties. The contract also contained a provision which limited a buyer's remedy solely to return of the purchase price, less wear and use of the machine. In addition, all consequential and incidental damages were expressly excluded. Neither D's vice president nor the salesman in attendance directed P's attention to the reverse side of the contract where the warranty exclusions were printed. When the paver arrived, it contained no warranty information from the manufacturer. The trial court found that the manual which ultimately was delivered to P did not contain Curbmaster's warranty exclusions and disclaimers. The Curbmaster representative never informed P employees that the machine's warranties were limited or excluded. The paver failed to lay concrete evenly and the finished product was unacceptable to PennDot. D and Curbmaster unsuccessfully attempted numerous times to remedy the defects in the machine. The machine finally was returned to Curbmaster in December, 1987. P incurred increased labor costs in order to produce a product acceptable to PennDot. P sued Ds asserting breach of contract, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. The trial court awarded $146,811.43 in damages, plus interest, to P against Ds jointly. Ds appealed.