Opinion
No. X01 CV01 0168579S
August 9, 2005
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#177 AND #178)
Factual Background
This action arises out of the purchase of six (6) custom-made Peterbilt Model 357 dump trucks ("Trucks"). After the trucks were in use, the plaintiff-owner (Cocchiola) sued Peterbilt of Southern Connecticut dba Truck Center, Inc. ("Truck Center"), an authorized dealer in Peterbilt trucks and equipment, alleging the trucks were not in conformity with the plaintiff's stated requirements for uses it alleges were made clear to Truck Center (specifically, the hauling of asphalt to paving jobs on high crowned and unevenly surfaced secondary roads). The Trucks' chassis were manufactured by PACCAR, Inc. dba Peterbilt Motors Company ("Peterbilt"), not a party to the original action. Cocchiola's Amended Complaint is in five (5) counts and asserts claims for breach of express warranty pursuant to C.G.S. § 42a-2-714 (Count One), breach of implied warranties of merchantability and fitness for plaintiff's particular purpose pursuant to C.G.S. § 42a-2-719(2) (Count Two), innocent misrepresentation (Count Three), negligent misrepresentation (Count Four), and for engaging in unfair or deceptive business acts or practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), C.G.S. § 42-110b et seq. (Count Five). Thereafter, Truck Center brought third-party actions against Peterbilt and Universal Welding and Equipment Company, Inc. ("Universal"), the installer of the dump bodies and the electrical and hydraulic systems associated with the operation of the dump bodies.
This court, on March 11, 2005, granted summary judgment for Universal which is no longer a party.
Presently pending are Truck Center's two (2) motions for summary judgment — one as against Cocchiola in the original action (# 178 filed May 11, 2005) and one as against Peterbilt in the third-party action (#177 filed on the same date). The parties have extensively briefed the issues and have waived their right to oral argument, thus consenting to this court's adjudication of both motions on the papers.
Applicable Law
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. Barrett v. Danbury Hosp., 232 Conn. 242, 250 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). The non-moving party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Directors, 254 Conn. 205, 209 (2000). It must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560 (2001). "The test is whether a party would be entitled to a directed verdict on the same facts." Cummings Lockwood v. Gray, 26 Conn.App. 293, 297 (1991). The mere presence "of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." Farrell v. Farrell, 182 Conn. 34, 39 (1980). Rather, "the adverse party must recite specific facts . . . which contradict those stated in the plaintiff's affidavits and documents." Id., at 39-40. Mere conclusory statements in the affidavit and elsewhere do not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain Gen. Hosp., 239 Conn. 574, 583 (1996).
Motion for Summary Judgment on First Count of Third-Party Complaint (#177)
Truck Center has moved for summary judgment on the First Count of its "Revised and Amended Third Party Complaint" of July 17, 2003, as against the third-party defendant Peterbilt, claiming that, as a matter of law, Peterbilt has a duty to defend Truck Center on the breach of warranty claims in the suit brought by Cocchiola. It argues that duty is imposed by Section X of the Dealer and Sales Service Agreement ("Dealer Agreement") between Peterbilt and Truck Center. Captioned "Defense and Indemnification by Peterbilt," it reads:
Truck Center does not in this motion address the non-warranty claims for the misrepresentations and CUTPA violation Cocchiola has alleged in Counts Three-Five of its complaint.
PETERBILT will assume the defense of DEALER and agrees to indemnify and hold DEALER harmless in any legal proceeding naming DEALER as a defendant and involving any PRODUCT when the proceeding involves allegations of: breach of warranty, or a defect in manufacture or design; provided that PETERBILT has available sufficient evidence to support the conclusion that DEALER has not done or failed to do any act which would provide an independent basis for any allegations of liability against DEALER. DEALER agrees to cooperate fully in developing the facts necessary for defense of the lawsuits whether or not DEALER remains a party. The obligations of the parties set forth in this Article X shall survive the termination of this AGREEMENT.
Truck Center's position this clause clearly and unambiguously obligates Peterbilt to defend it as to warranty claims requires the court to make the assumption that Truck Center "has not done or failed to do any act which would provide an independent basis for any allegations of liability" against Truck Center. Id. Peterbilt's position is that Truck Center acted independently in advising Cocchiola the Trucks to be built would accommodate the plaintiff's business needs. Cocchiola has alleged Truck Center's agent and Sales Manager, Robert Smith, was told the nature of the plaintiff's paving business and the planned use for the Trucks. Specifically, it states Smith was told the Trucks: a) had to be capable of operating on mostly secondary roads that were generally narrow, crowned, patched, sometimes winding and/or steep, and unevenly surfaced; b) had to be capable of being driven in reverse with a full load (on the kind of road here just described) for up to one-half mile at a time; and c) had to be certified by this state's Department of Transportation as capable of hauling and dumping up to 80,000 pounds of asphalt, sand, etc. Peterbilt, in opposition to this motion, has provided excerpts of Anthony Cocchiola's deposition testimony which corroborate those allegations; if that testimony is credited at trial, it may establish that Truck Center improperly specified the truck order and "over-promised the capabilities of the Trucks and generally acted outside the bounds of Peterbilt's limited warranty." Opp. Memo., at 2. Thus, whether in fact Truck Center over-specified the Trucks and whether, if it did so, that conduct was to impermissibly alter the terms of a limited warranty are facts which are "material" because dispositive of claims and/or defenses. Those issues are CT Page 11904 factual issues to be resolved at trial when the court can hear and evaluate all of the testimony and measure the credibility of the witnesses. However, given Cocchiola's testimony, Truck Center is incorrect when it inexplicably argues Peterbilt has not offered any evidence of conduct that tends to establish an independent basis for its own liability.
The "exclusion" language within Section X not only provides Peterbilt grounds upon which it may refuse to defend but establishes a subjective standard for concluding whether it has "available sufficient evidence" to determine its duty to defend. Connecticut law provides: "[i]t is competent for parties to a contract for sale to agree that the thing which is the subject of the contract shall be satisfactory . . ." Hawken v. Daley, 85 Conn. 16, 22 (1911). In fact, the Court in Hawken noted that, in the absence of the named party's satisfaction, the adverse party cannot recover "whether the defendant's failure to be satisfied is reasonable or unreasonable." Id., at 21. Under the express terms of Section X, Peterbilt is the judge of what is sufficient evidence to permit its conclusion Truck Center "has not done or failed to do" what would constitute an independent basis for Truck Center's liability. That is a broad discretion the parties to the Dealer Agreement negotiated and to which Truck Center agreed. Where, as here, the parties are sophisticated commercial parties, the obligation to defend is narrow in scope (See fn. 3 preceding.) and the proviso clearly contains a "carve-out" subject to one party's conclusions re the "sufficiency" of evidence, the law does not permit the court's altering of the contract language but must give effect to the parties' intent as ascertained from the language employed. See e.g., Herbert S. Newman and Partners, P.C. v. CFC Constr., L.P., 236 Conn. 750 (1996). Truck Center, while it disputes any independent wrongdoing, does not directly address the proviso which this court cannot ignore.
Section X is clear that the obligation to defend is triggered only when the dealer is sued and the litigation involves a Peterbilt product and the allegations are of a breach of warranty "or a defect in manufacture or design." While Cocchiola's complaint alleges defects, there are disputed issues as to whether: a) the Trucks were "defective" or were used in a way not intended; and b) if defective, whether such defects were manufacturing or design defects.
The court cannot determine that, as a matter of law, Peterbilt has a duty to defend because the textual expression of Section X does not automatically trigger that obligation under these circumstances and because a determination whether there is a duty to defend necessarily requires the court to resolve disputed issues of material fact reserved for trial.
The third-party plaintiff's motion for summary judgment as against Peterbilt is denied.
While not dispositive of this motion, as guidance to the parties in recognition of the trial date, the court notes the fact that our law has consistently held the duty to defend is a broader duty than the duty to indemnify is not applicable to Section X of the Dealer Agreement given its narrow scope and the standard established by the proviso language. Further, whether the trucks were "defective" is not only a question fraught with disputed issues but not determinative of this motion given the language of Section X. Nor is Peterbilt's argument that Truck Center hired Universal and Universal was negligent dispositive and it is an issue previously decided.
Motion for Summary Judgment As To All Counts of Amended Complaint (#178)
Truck Center first argues Counts Three-Five of Cocchiola's Amended Complaint (for innocent misrepresentation, negligent misrepresentation, and violation of CUTPA) are improperly brought under Flagg Energy Dev. Corp. v. General Motors Corp., 244 Conn. 126 (1998). The plaintiff attempts to breathe new life into an argument made to and rejected by this court in her Memorandum of Decision of March 11, 2005, and adds only that Counts Three-Five should not be precluded by Flagg because "additional facts" are alleged which "go beyond" those necessary to establish a breach of contract or breach of warranty claim. Pp. 8-10 of Opp. Memo. The court is not persuaded.
Though this court there stated Counts One-Three were brought under the UCC (p. 4), direct claims under the UCC are specifically claimed in the first two counts. See Para 15 of Counts One and Two of the plaintiff's complaint.
Plaintiff provides no analysis as to why, for example, if negligent misrepresentation is precluded by Flagg, innocent misrepresentation ought not also be precluded.
"[C]ommercial losses arising out of the defective performance of contracts for the sale of goods cannot be combined with negligent misrepresentation." 244 Conn., at 153. Our Supreme Court made clear it specifically disagreed with the Tennessee Supreme Court which stated, "[T]he theory of recovery is that the defendant negligently supplied information intended for the guidance of others; the plaintiff relied upon the misrepresentation in the performance of his contracted service and experienced business losses as a result." Id., at fn. 45. It cited to a provision of our product liability statute that provided, "An action for commercial loss caused by a product may be brought only under, and shall be governed by, Title 42a, the Uniform Commercial Code." 244 Conn., at 154, fn. 46, citing to § 52-572n(c). As here, the Flagg plaintiffs claimed the defendant had delivered defective products and, as here, they sought compensatory and punitive damages. As here, the "major focus" of the complaint was on the alleged breach of what it claimed were express and implied warranties in the purchase agreement and, as here, there were the misrepresentation and CUTPA claims. As this court stated in her earlier referenced memorandum of decision, the Flagg Court appeared to find even more persuasive that the misrepresentation and CUTPA claims depended upon allegations of fact identical to those asserted in their UCC claims. 244 Conn., at 154. Plaintiff apparently argues that the "additional" information included in Paragraphs 15 and 16 of Count Three are significantly "different" to depart from Flagg's holding. Paragraph 15 reads in its entirety:
When, prior to their sale, Mr. Smith assured plaintiff that the trucks could be designed and built in accordance with plaintiff's stated requirements and specifications, on information and belief, Mr. Smith did not take the necessary and proper steps to ascertain, in conjunction with the manufacturer, that these statements were true.
The only difference between what counsel included in Paragraphs 7 and 12 of Counts One (and Thee) and Paragraph 15 of Count Three is the inclusion of the allegation Mr. Smith did not do what was necessary to verify with Peterbilt that the Trucks could be designed and built as per Cocchiola's stated requirements and specifications. That is no different from the allegation in Paragraph 7 that Smith repeatedly assured Cocchiola the trucks would be properly designed and, when delivered, would suit plaintiff's specialized paving needs. Paragraph 16 of Count Three reads, "Based on the foregoing, to the extent that defendant's misrepresentations were made innocently, they were made while defendant had the means of knowing, ought to have known or had the duty of knowing the truth, and the defendant is liable to plaintiff for innocent misrepresentation." This paragraph presumably was intended only to state the elements of this cause of action for misrepresentation. With regard to the CUTPA claim of Count Five, the only substantively different allegation is the assertion, in Paragraph 8, it was "unconscionable and oppressive for defendant to make the sale of the trucks to plaintiff subject to the defendant's limited warranty covering defective workmanship and materials only." "Unconscionable and oppressive" is language assertive of the elements of a CUTPA claim; it is not an allegation of an additional "fact" but is a statement going to the character of a CUTPA cause of action. The remaining language in that allegation is warranty language. Counts Three-Five are dependent for their factual underpinnings on facts alleged in the breach of warranty counts. They are in fact warranty claims dressed in tort robes. Putting ice cream atop apple pie does not alter the fact one is having apple pie.
Of interest is inclusion of negligence language ("knew, ought to have known, had the `duty' to know") in this count for innocent misrepresentation which, to this court, suggests the merging of identity of Counts Three and Four.
The court again rejects the suggestion the law of the case doctrine ought apply to let stand Counts Three-Five (as an earlier court let stand all counts when considering a motion to strike) for the reasons stated in this court's 3/11/05 memorandum of decision granting Universal summary judgment. As our Court of Appeals has noted — in a case relied upon by the plaintiff, "the law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . ." Waterbury Equity Hotel, LLC v. City of Waterbury, 85 Conn.App. 480, 489 (2004). The doctrine is not a limitation on a court's power. "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat the decision as the law of the case if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstances." Id., at 489-90.
As a matter of law and pursuant to Flagg, the plaintiff may not maintain the counts for misrepresentation or a violation of CUTPA where, as here, those claims are factually identical to the breach of warranty claims under the UCC. Summary judgment in favor of Truck Center enters on Counts Three-Five.
Truck Center next claims the warranty claims of Counts One and Two are barred by C.G.S. § 42a-2-725; that statute provides an action for breach of any contract for sale must be commenced within four years of accrual but also provides the parties, in their original agreement, may reduce the limitation period to "not less than one year." § 42a-2-725(1). It also provides a cause of action accrues "when the breach occurs" and that "a breach of warranty occurs when tender of delivery is made, except where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been dismissed." § 42a-2-725(2). The affidavit of William Berluti, Jr., a Truck Center employee, states the delivery to Cocchiola was made in June of 2000. Exh. D., Para 8. Plaintiff's suit was commenced December 18, 2001. The Warranty Agreement provided for a limitations period of one year from the accrual of the action "or be barred forever." Exh. B, Para 5. Truck Center argues there is, as between these parties, no express warranty for future performance that would toll the limitations period and the complaint contains no such allegation. The plaintiff, citing to a 5th Circuit and to a Pennsylvania case, urges the court to find a claim for breach of express warranty does not accrue for the purpose of § 42a-2-725(2) until the promise to repair or replace fails its essential purpose or until after the repairs have failed. Cocchiola claims "the repeated failure and refusal of Truck Center to repair or replace the faulty equipment constitutes a failure of the essential purpose of the limited warranty." Opp. Memo, at 14. In Mississippi Chemical Corp. v. Dresser-Rand Co., 287 F.3d. 359 (5th Cir. 2002), the Mississippi version of the UCC read precisely as does this state's UCC statute of limitations for contract claims. Miss. Code Ann. § 75-2-725(2) provided the exclusive remedy for the breach of the express warranty was repair and replacement, and, under Section 719 of their statute, the buyer had to first seek repair or replacement; only if the seller failed to meet that promise (in which case the repair or replacement remedy failed of its essential purpose) could the buyer bring a contract action. § 75-2-725(1) provided for a six-year statute of limitations after accrual of the breach and, as here, the Mississippi version of the UCC provided as the starting date for the limitations period the date of delivery in all but one situation-where there has been a guarantee of future performance. 287 F.3d, at 366.
The Warranty Agreement provides Cocchiola's "sole and exclusive remedy" against Peterbuilt and the Selling Peterbilt Dealer (Truck Center) is limited to the "repair or replacement of defective materials or workmanship . . . to the extent of Peterbilt Motor Company's obligations under the warranty schedule on the back of this Agreement." Para 2. Six (6) such Agreements — one for each vehicle purchased — is provided though the copies provided the court do not in any instance contain an observable signature by the plaintiff. Four (4) are dated 8/30/99; two (2) are dated 8/24/99.
The Code provides it is to be liberally construed (§ 42a-1-102) and, as our Supreme Court noted, the Code recognizes "that it is the very essence of a sales contract that at least minimum adequate remedies be available." Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 123 (1976), citing to § 42a-2-719. In Conte, the Court concluded the limited remedy (of repair and replacement) had failed of its essential purpose because "even after numerous attempts to repair, the automobile still did not operate as a new automobile should, free from defects." Id. It noted the Code provides where "circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." Id., citing to § 42a-2-719(2).
Cocchiola claims the warranty failed of its essential purpose because, despite the fact that numerous repairs were attempted, the Trucks could still not be used for the planned purpose known to Truck Center. The court questions the extent to which the repair and replacement warranty is meaningful in view of the sheer number of items excluded from the Warranty Agreement and/or the Warranty Schedule (Exhs. B and C to Truck Center's memorandum). Truck Center concedes the hydraulic cylinder, the left cylinder, the dump body, the liner buckle, the hydraulic filter, the rear wheel seals, the front hubs, the engine jake brake, engine oil leaked from cylinder heads, and excessive tire wear — all of which Cocchiola claims as defects — are expressly excluded from the Warranty Agreement. (Memo, at 8.) Loose axle bolts (also claimed defective) are excluded — as Truck Center argues — under the Warranty Schedule. Id. Also excluded under the Warranty Schedule are some additional twenty-four parts or accessories from the engine and automatic transmission to tires, tubes, wheels, reflectors, bulbs, filters, fusers, wiper nozzles or blades, etc. Id. There is an exclusion for paint chipping, fading, or peeling. Id. It even excludes from the warranty "the failure of replacement parts used to repair any of these conditions." Id. It is therefore not surprising that Truck Center should argue the plaintiff has failed to identify a specific defect or condition falling within the express warranty and which was not repaired or replaced as requested. Reply, at p. 4. Cocchiola's repair log notes that such items as "both front shock mounts" were replaced in the first year of service multiple times on the same truck. If they were excluded under either the Warranty Agreement or Warranty Schedule and their replacements were not warranted, how is the customer served under the seller's warranty program and, if they are covered under the Warranty Agreement and/or Schedule as it would appear, how has the warranty program not failed of its essential purpose when multiple repairs of the same item are required in the same calendar year? Despite the lengthy list of exclusions, the affidavit of Raphael Cocchiola states that, from the autumn of 2000 and "even into 2002, Truck Center consistently assured my father and me that the trucks would be repaired, that any defective parts would be replaced, and that the trucks could be made to conform to Cocchiola's original specifications." Exh. 2, Para 9. He stated this suit was deferred until November of 2001 in reliance upon these assurances. Id., at Para 10. Yet, he stated, there was no repair of "Major" problems which made the trucks both dangerous and not suited for the intended purposes — to include drivers' inability to properly steer the Trucks, their instability when being loaded or operated in reverse gear, the twisting and bending of the Trucks' chassis, the raising of the lift axles when loaded and/or operated in reverse gear, the cracking of the welds on the dump bodies, and an excessively tough ride at highway speed. Though Truck Center's response is either a) that these problems were attributable to Universal, or b) that these items were excluded under the warranty, Cocchiola's affidavit of 6/16/05 raises a genuine issue of material fact whether the warranty failed of its essential purpose in view of the failure of the repair and replacement remedy, in which case other remedies — to include a suit on the contract — would be available under the Code. It also raises a genuine issue of material fact whether, if Smith and/or Truck Center's shop foreman promised to repair all defects and replace any defective part as Raphael Cocchiola has asserted — despite the many warranty exclusions, there was not a modification of the warranty terms which, if there was a failure of the repair and replacement remedy, permits this suit. The resolution of at least some of these questions will likely involve the evaluation of witness credibility and thus are inappropriately resolved by this motion.
The court also finds a conflict between what Truck Center asserts is a one-year statute of limitations under the Warranty Agreement and the time periods reflected in the New Vehicle Warranty Schedule (Truck Center's Memo, Exh. B). The one-year statute claim cannot be made compatible, for example, with the 60-month or 500,000 mile warranty applicable to the "Extended Frame, Structure and Cab Corrosion" (which includes frame rails, crossmembers, A-Braces, certain perforations to the cab, hood and sleeper, etc.). If there is, under this Schedule, a perforation to the cab or sleeper caused by corrosion within and if that "defect" is not manifested within one year from delivery, how does the 60-month or 500,000 mile "warranty" — as it is called — not conflict with the limitation period of the Warranty Agreement? How can it be read as compatible with "the terms on the Reverse" (the Warranty Agreement) as it states and, if it cannot be so read, there is a remedial conflict in the warranty terms as Cocchiola argues and both the remedy and the limitations provisions fail. Note the extended times of the New Vehicle Warranty Schedule cannot be said to be merely a "notice" provision because: a) if it were so read, it would castrate the limitations period of the Warranty Agreement on its reverse; b) the Schedule expressly provides there must be notice to the dealer "within 30 days of discovery" of the listed items; and c) the Schedule is captioned a "Warranty" Schedule and that term is employed throughout the document.
For all of these reasons, it is unnecessary to address Cocchiola's arguments the continuing course of conduct and equitable estoppel doctrines toll the one-year statute of limitations under the Warranty Agreement. The motion for summary judgment as to Count One for breach of the express warranty of freedom from defects in material and workmanship is denied.
The remaining question is whether Truck Center is entitled to summary judgment on Count Two's claim for breach of a warranty of merchantability and fitness for plaintiff's particular purpose when the Warranty Agreement contains a disclaimer in Paragraph 3 therein. With reference to the repair or replacement remedy of Paragraph 2, the disclaimer provides Peterbilt and Truck Center "make no other warranties, express or implied, and make no warranty of merchantability or fitness for a particular purpose." Id., Para 3. That this court has found genuine issues of material fact whether the Warranty Agreement fails of its essential purpose is dispositive as to Count Two as well; that is so since, if the warranty fails or if the New Vehicle Warranty Schedule is applicable to some of the defects claimed (in which case it cannot be said the one-year statue of limitations applies), there may well be a warranty of future performance created by the New Vehicle Warranty Schedule and, under those circumstances, the warranty fails of its essential purpose, is stricken, and the plaintiff may resort to other remedies under the Code. Conte, supra, focuses on revocation of acceptance, which is a remedy not here sought. The Court, however, clearly stated — without reference to the remedy of revocation of acceptance, "Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." Id., at 123, citing to § 42a-2-719(2). Under the circumstances of this case in which the warranty of fitness for a particular purpose was the only reason for the purchase, there is a genuine issue of material fact whether that was in fact an "express" warranty of freedom from defects in manufacture or design which, if it failed of its essential purpose, would permit the bringing of this litigation.
Though Cocchiola refers in Paragraph 15 of Count Two to this warranty of merchantability and fitness for a particular purpose as an "express" warranty, it points to no part of the contract as authority for its claim.
The court is mindful of the longstanding tradition of deferential respect afforded the terms in an agreement between commercial parties and is aware as well of the public policy interest served by the allocation of risk analysis. She does not depart from that here. If, however, the genuine issues of material fact are so resolved at trial as to necessitate a finding these warranties fail of their essential purpose, public policy is best served by requiring the drafters of commercial agreements governing the sale of goods to be cognizant that warranties need be meaningful and internally consistent so as to clearly inform purchasers of sellers' obligations while providing buyers the full panoply of their remedies under the Code in the event of warranty failure. Where the intent of the parties cannot in fact be determined by virtue of the drafter's use of internally inconsistent provisions, the law requires a different result.
In such circumstances, sellers ought not be afforded the protective shelter of the warranty language by such arguments as the buyer's alleged failure to delineate all of the defects claimed or not already repaired when the Amended Complaint details twenty-three (23) defects (See Para 10 of Count One.) remaining when suit was brought in December of 2001 and, if the seller believed there was a need for the buyer to be more specific, the seller had available the opportunity to request greater specificity by the filing of a Request to Revise.
B.J. SHEEDY, J.