
    Fauntleroy v. Philadelphia Gas Heating Company
    
      
      Benjamin Pomerantz, for plaintiff.
    
      Paul Leo McSorley, for defendant.
    November 28, 1979
   WILSON, J.,

In November, 1972, plaintiff purchased from defendant a gas fired boiler for heating purposes in a building used as a residence. The boiler broke down and was repaired January 29, 1974, at a cost of $300. The boiler broke down again. Defendant determined that repair or replacement was called for. At that time the boiler had been in use 41 months. This court takes judicial notice of the fact that heating systems are sold as capital items for use over many years during the fife of a building. In April, 1976, plaintiff was forced to have the boiler replaced by Philadelphia Gas Service and Royal-B, Inc. at a cost of $1,295. Willie Horton, who testified on behalf of plaintiff and who had spent 15 years in the scrap iron business, testified that he examined the boiler and saw weak spots in it.

This court is of the view that the boiler sold plaintiff was defective and not fit for the particular purpose intended (namely heating a residence). It is true the boiler broke down after the written warranty expired. It should be borne in mind that we are not here dealing with a malfunction that was not easily corrected as defendant would have us believe, but a defect such as to cause defendant to suggest replacement within 41 months. These repeated breakdowns should have put defendant on notice that in fact plaintiff had not received that for which he bargained, namely a working boiler. This coupled with the testimony that the boiler had weak spots is convincing proof.

For defendant’s breach of the implied warranties, plaintiff is entitled to recover a sum that will make him whole. Plaintiff paid out $1,595 for repairs and a new boiler. He is entitled to recover that sum. Accordingly, the following finding is made.

FINDING

And now, after trial, consideration and based upon the foregoing reason, this November 28, 1979, the court enters its finding in favor of plaintiff and against defendant in the amount of $1,595.  