## Facts

- On June 7, 1978, Robert J. Emery, Jr. signed an agreement to purchase from Weed Chevrolet Co. a 1978 Chevrolet “Pacer Corvette” for $25,000, identified in the contract by serial number (1Z87L85901303).
- Emery, Jr. paid $10,000 at signing and made additional payments on June 27, July 12, August 10, and September 28, 1978 totaling $2,229.90, for total payments of $12,229.90.
- After the agreement was signed, the dealership removed the Corvette from the showroom because it was sold, placed it in a rear preparation area, and covered and locked it.
- On or about November 5, 1978, the Corvette was stolen from the dealership’s premises, with no negligence or fault attributed to either party for purposes of the UCC casualty analysis.
- Emery, Jr. died on November 15, 1978.
- Robert J. Emery, Sr., as administrator of his son’s estate, sought to cancel the purchase agreement and demanded return of the $12,229.90 paid.
- The dealership refused to refund the payments and offered instead to provide an “identical” Pacer Corvette in the same color; it also asserted a counterclaim seeking to keep the payments and obtain additional damages.
- The trial court (sitting en banc, with one judge dissenting) ruled for the estate and dismissed the dealership’s counterclaim.
- The dealership appealed to the Superior Court of Pennsylvania, disputing whether the goods were “identified” within UCC § 2-613 and arguing that it could satisfy the contract by tendering a replacement vehicle.

## Issues

1. Whether the Corvette described by serial number in the sales agreement (and later set aside, covered, and locked by the dealer) was “identified when the contract was made” for purposes of 13 Pa.C.S. § 2613 (UCC § 2-613).
2. Whether, under 13 Pa.C.S. § 2509(c) (UCC § 2-509(3)), the risk of loss had passed to the buyer before the theft, given that the seller was a merchant and the buyer never received the vehicle.
3. Whether the dealer could avoid application of 13 Pa.C.S. § 2613(a) by offering a replacement Corvette that it claimed was identical to the stolen one.

## Decision

- The Superior Court of Pennsylvania affirmed the judgment for the estate.
- The court held that the contract was for identified goods: the Corvette was identified in the agreement by serial number, and the dealer’s act of removing it from the showroom and locking and covering it further confirmed identification.
- Because the seller was a merchant and the buyer had not received the vehicle, risk of loss remained on the seller under 13 Pa.C.S. § 2509(c) at the time of the theft.
- The theft constituted a total casualty occurring without fault of either party before risk of loss passed to the buyer; therefore, under 13 Pa.C.S. § 2613(a), the contract was avoided.
- The estate was entitled to restitution of the full $12,229.90 paid toward the purchase price, and the dealership’s counterclaim was properly dismissed.
- The dealer’s “identical substitute” position did not defeat avoidance where the agreement was for a specific, identified vehicle; the appellate court also noted the record did not support the broad claim that all such cars were identical in all material respects.

## Legal Principles

- Goods are “identified” to a sales contract when the contract specifies particular goods (including by serial number), and identification may also be shown by the seller’s conduct in setting the goods aside for the buyer. 13 Pa.C.S. § 2501 (UCC § 2-501).
- In a sale by a merchant not governed by shipment terms, risk of loss passes to the buyer upon the buyer’s receipt of the goods; if the buyer has not received them, the merchant-seller bears the risk. 13 Pa.C.S. § 2509(c) (UCC § 2-509(3)).
- If goods identified when the contract is made suffer total casualty without fault of either party before risk of loss passes to the buyer, the contract is avoided and the parties’ remaining performance obligations are discharged. 13 Pa.C.S. § 2613(a) (UCC § 2-613).
- When § 2613(a) applies to a contract for identified goods, the seller generally may not insist on performance by tendering a replacement item as though the contract were for fungible goods; the buyer may treat the contract as avoided and seek restitution of payments made.

## Conclusion

Emery v. Weed held that a dealer’s sale of a specific Corvette identified by serial number was avoided under 13 Pa.C.S. § 2613(a) when the car was stolen without fault before the buyer received it, leaving risk of loss on the merchant-seller under § 2509(c) and entitling the buyer’s estate to a full refund of the payments made.


Emery v. Weed, 494 A.2d 438 (1985)