Moscatiello v. Pittsburgh Contractors Equip. Co. - 407 Pa. Super. 363, 595 A.2d 1190 (1991)

Rule:

The Uniform Commercial Code (U.C.C.) defines the implied warranty of merchantability as a warranty that the goods will pass without objection in the trade and are fit for the ordinary purposes for which such goods are used. 13 Pa. Cons. Stat. Ann. § 2314. The warranty is so commonly taken for granted that its exclusion from a contract is recognized as a matter threatening surprise and therefore requiring special precaution. Thus, to exclude the implied warranty of merchantability, the exclusionary language must mention the term "merchantability" and be conspicuous. 13 Pa. Cons. Stat. Ann. § 2316(b). The section is designed to protect a buyer from unexpected and unbargained for language of disclaimer.

Facts:

Pittsburgh Contractors Equipment Company ("PCEC") and Franco Moscatiello, i/a, t/d/b/a Moscatiello Construction Company ("Moscatiello") contracted for the purchase of a paving machine. PCEC was aware of the exact job for which appellee needed the machine. PCEC suggested two suitable machines. The purchase agreement stated on the reverse side that no warranties were offered, excluded implied warranties, and all damages were expressly excluded. Appellee was not notified of such provisions. The machine was not suitable and was returned. The trial court awarded Moscatiello damages against PCEC. 

Issue:

Did PCEC breach its implied warranty of merchantability?

Answer:

Yes

Conclusion:

The court affirmed, holding that the disclaimer was inconspicuous and therefore ineffective to adequately put Moscatiello on notice that substantial rights were being relinquished. The disclaimer was set forth in fine print. Even the language on the front of the contract was inconspicuous and misleading. PCEC had breached its implied warranty of merchantability, because the machine could not pass without objection in the trade under the contract description. The provisions which prohibited recovery of incidental and consequential damages were unconscionable, so the trial court correctly refused to enforce them.