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HomeMy WebLinkAbout99-4265 CIVILCAMP HILL BANNER COMMITTEE, by Barbara A. Poole, Trustee Ad Litem, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GRAPHIC TECH, INC., and VINCENT R. WILLIAMS, t/d/b/a Graphic Tech Signs and Screen Printing, DEFENDANTS 99-4265 CIVIL TERM OPINION AND VERDICT Bayley, J., November 14, 2001 :-- On October 1, 1998, plaintiff, Camp Hill Banner Committee, entered into a written contract with defendant, Vincent R. Williams t/d/b/a Graphic Tech Signs and Screen Printing, and with defendant, Graphic Tech, Inc., to supply seasonal banners with brackets, and install them on telephone poles on Market Street in the Borough of Camp Hill. Pursuant to the contract, defendants produced the banners, fabricated the brackets, and installed them on forty telephone poles. The contract totaled $7,760; $4,800 for two sets of banners, $1,960 for the brackets, and $1,000 for installation. Plaintiff made a down payment when the contract was signed. On December 1 and 2, 1998, defendants did the installation on the telephone poles selected by plaintiff, with the approval of Pennsylvania Power and Light Company. Plaintiff paid the remaining balance owed on December 10, 1998. Two weeks after the installation, some of the brackets started to bend downward. That caused the banners to sag. Plaintiff contacted defendants, who tried to remedy the problem 99-4265 CIVIL TERM by fastening the brackets more securely to the telephone poles. The effort was unsuccessful. The number of loose brackets increased causing more banners to sag. In March, 1999, plaintiff's lawyer wrote to defendants seeking a solution to the continuing problem. Defendants did not respond or do anything thereafter. On April 7, 1999, plaintiff purchased new brackets from another supplier for $3,212.75. The brackets provided by defendants were removed by the Borough of Camp Hill, and replaced with the new ones at no cost to plaintiff. The new brackets are heavier and mounted on the front of each telephone pole, rather than on the sides as were the brackets installed by defendants. The new brackets do not bend downward. The banners produced by defendants, which plaintiff has continued to use since May, 1999, do not sag on the new brackets. Plaintiff instituted this suit seeking damages against defendants in the amount of $3,212.75. A bench trial was conducted on November 8, 2001. When plaintiff's representative initially contacted defendants, she showed Vincent Williams a brochure that depicted the type of banner that the Banner Committee wanted for Camp Hill. The banner depicted is attached to two brackets and hangs taunt and straight out from the structure to which the brackets are attached. The brochure does not depict how the brackets are attached to the structure. Vincent Williams told the representative that defendants could make the banners similar to the ones shown in the brochure. The representative told defendants that the Banner Committee wanted the banners installed on existing telephone poles. Defendants agreed to provide the installation, but there was no discussion as to how that would be accomplished. Defendants chose to fabricate brackets -2- 99-4265 CIVIL TERM rather then buy them from a supplier. Vincent Williams and his brother, Alan Williams, an employee of defendants, installed the brackets onto the forty telephone poles. They discovered that the side mountings were difficult to get tight because the wooden telephone poles were uneven, and in some places covered with creosote. Vincent Williams testified that if the telephone poles were perfect there would have been no problem. At the time the parties entered into their contract, defendants, whose shop is on Market Street in Camp Hill, had a banner on the front porch hanging on the same type of side mounted brackets provided to plaintiff. The brackets were attached to a column that is completely different from a telephone pole. Alan Williams testified that the brackets installed for plaintiff bent downward, and caused the banners to sag, because they were not designed for wooden poles. DISCUSSION The parties' contract contains the following express warranty: Graphic Tech hereby proposes to furnish labor and materials - complete in accordance with the above specifications for the sum above. All material is guaranteed to be as specified. We assume no responsibility for minor manufacturer dye variations. All work to be completed in a workmanlike manner according to standard practices. (Emphasis added.) Defendants contracted to provide brackets to be attached to wooden telephone poles that would hold the banners taunt. Defendants fabricated the brackets that Vincent and Alan Williams acknowledge did not work because they were not designed for the wooden telephone poles that are on Market Street. Performing a contract in a workmanlike manner means that the contractor "[w]ill answer the purpose for which it is intended." Wade v. Haycock, 25 Pa. 382 (1855). We find that defendants breached the express warranty in the -3- 99-4265 CIVIL TERM written contract with plaintiff by not installing the type of brackets necessary to hang the banners taunt. Notwithstanding, defendants maintain that three provisions of the written contract with plaintiff preclude liability. First, the contract contains the following clause: Seller warrants that the goods are as described in this Agreement. However, seller disclaims all express and implied warranties of merchantability and warranty of fitness for a particular purpose unless specifically agreed upon in writing and made a part of this Agreement. This clause provides no defense to defendants because there was a breach of the written express warranty that all work would be conducted in a workmanlike manner. Second, the contract contains the following cause: Graphic Tech accepts no responsibility to determine the structure stability of any support structure and disclaims any guaranty of structural stability in the event this sign is mounted by Graphic Tech, or others, to any existing support structure. This clause provides no defense to defendants. The telephone poles were the support structure upon which the brackets, that held the banners, were mounted. Defendants' breach of contract was the failure to provide adequate brackets for attachment to the telephone poles that were structurally stable. The telephone poles did not cause the banners to sag. Third, the contract contains the following clause: In the event of a breach by seller, claims for defects, shortages, or damages not related to transportation, must be made in writing by the buyer within ten (10) days after delivery / installation. Failure to make such a timely claim shall constitute complete and irrevocable acceptance of the product. Claims must specify in detail the objections of the buyer. No claims shall be made except for defects therein or for non-conformity with some material provision of the order. The sole option of the buyer as to any order property rejected will be to ship -4- 99-4265 CIVIL TERM such goods to seller o [sic] fix defect in signage within thirty (30) days following seller's written authorization. Defendants maintain that because there was no written claim from plaintiff within ten days of December 2, 1998, there can be no liability for breach of contract. Interestingly, the express warranty in the written contract provides that, "Any claims must be made in writing within seven days of receipt of goods." The essence of defendants' position is that even if the contract was breached, and even if the breach did not become apparent within ten days of the installation of the brackets and banners on December 2, 1998, there can be no liability. The Uniform Commercial Code at 13 Pa.C.S. Section 2607(c), provides: Notice of breach.--Where a tender has been accepted: (1) the buyer must within a reasonable time after he discovered or should have discovered any breach notify the seller of breach or be barred from any remedy; (Emphasis added.) Upon the problem of the sagging banner becoming apparent, plaintiff immediately notified defendants. Defendants then made an effort to correct the problem, but could not because the side mounted brackets were not designed for the telephone poles. Defendants cannot preclude liability for the breach in failing to complete the contract in a workmanlike manner when the breach did not become apparent until two weeks after installation, and plaintiff immediately thereafter provided notice of the breach. Plaintiff maintains that it is entitled to recover the $3,212.75 cost of the new brackets, not just the $1,960 it paid for the faulty brackets. Plaintiff relies on the Uniform Commercial Code at 13 Pa.C.S. Section 2712, which provides: "Cover"; procurement by buyer of substitute goods (a) Right and manner of cover.--After a breach within section 2711 -5- 99-4265 CIVIL TERM (relating to remedies of buyer in general; security interest of buyer in rejected goods) the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller. (b) Damages recoverable.--The buyer may recover from the seller as damages the difference between the cost of cover and the contract price, together with any incidental or consequential damages as defined in section 2715 (relating to incidental and consequential damages of buyer) but less expenses saved in consequence of the breach by the seller. (c) Other remedies unaffected by failure to cover.--Failure of the buyer to effect cover within this section does not bar him from any other remedy. The contract between plaintiff and defendants provides: In all cases, seller's liability shall be limited to the stated selling price of the product, or at seller's option replacement of the merchandise. Buyer shall have no right to recover by procuring substitute goods. In no event shall seller be liable for special or consequential damages, including profits lost, whether or not caused by or resulting from seller's negligence. Defendants chose not to replace the faulty brackets. The contract, however, precludes defendants from being liable to plaintiff for more than the selling price of the product. This limitation on damages is reasonable and enforceable. See Magar v. Lifetime, Inc., 187 Pa. Super. 143 (1958). Defendants are liable to plaintiff for $1,960, which is the amount plaintiff paid defendants for the faulty brackets.1 VERDICT AND NOW, this day of November, 2001, I find in favor of plaintiff against defendants, and award plaintiff $1,960 with legal interest from April 7, 1999, and costs of suit. 1 Defendants are still fortunate because plaintiff, despite paying defendants $1,000 to install the faulty brackets, did not suffer additional costs for the installation of the new brackets it purchased on April 7, 1999. -6- 99-4265 CIVIL TERM By the Court, Elizabeth S. Beckley, Esquire For Plaintiff Patrick F. Lauer, Jr., Esquire For Defendants :saa Edgar B. Bayley, J. -7-