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HomeMy WebLinkAbout00-245 civilDEMETRIOS S. TOULOUMES, : IN THE COURT OF COMMON PLEAS OF CONNIE A. TOULOUMES AND : CUMBERLAND COUNTY, PENNSYLVANIA 31 S. BALTIMORE, INC. D/B/A HOLLY INN, Plaintiffs : NO. 98-245 v. : CIVIL ACTION-LAW : JURY TRIAL DEMANDED E.S.C., INCORPORATED Defendants ORDER AND NOW, ~ ~ ! 2001, after careful consideration of all Post-Trial issues raised, it is hereby ordered that Defendants are entitled to a credit of $44,230.50 to be applied only against any award for repair of damages to property. This credit is not to be applied to any other element of damages, including, but not limited to replacement cost of roof. Plaintiffs' request for an additur is denied. Plaintiffs' motion for delay damages is denied. Plaintiffs' breach of warranty claim is denied. Thomas E. Brenner, Esquire ~'~(,~I~°~1~'~' Fl°ffer'] P'J' 320 Market Street ,.,- ,/ P.O. Box 1268 Harrisburg, PA 17108 Attorney for Defendants Douglas B. Marcello, Esquire 305 North Front Street, 6th FI. P.O. Box 999 Harrisburg, PA 17108 Attorney for Plaintiffs DEMETRIOS S. TOULOUMES, :IN THE COURT OF COMMON PLEAS OF CONNIE A. TOULOUMES AND :CUMBERLAND COUNTY, PENNSYLVANIA 31 S. BALTIMORE, INC. D/B/A HOLLY INN, Plaintiffs : NO. 98-245 v. : CIVIL ACTION-LAW :JURY TRIAL DEMANDED E.S.C., INCORPORATED Defendants IN RE: POST-TRIAL MOTIONS OPINION HOFFER, J.: Demetrios S. Touloumes, Connie A. Touloumes, and 31 S. Baltimore, Inc. D/B/A Holly Inn (hereinafter Plaintiffs) brought suit against E.S.C Incorporated (hereinafter Defendants) to recover monetary relief for property damages. This Court rendered its decision and opinion on June 28, 2000. This Court found that the Defendants breached their contract with the Plaintiffs for the installation of the roof, and awarded the Plaintiffs the sum of $14,397.00 to re-roof the lower area with rubber roof. We found that the Defendants did not breach either express or implied warranties with Plaintiffs. We also found that the Defendants were negligent in installing the roof, and awarded the Plaintiffs the sum of $18,976.78 as compensation for repairs already performed, and the sum of $2,200.00 to repair the duct work damage by water filtration. Plaintiffs subsequently filed a motion for Post-Trial relief. Plaintiffs requested that this Court modify the June 28, 2000 decision, entry of judgment for Plaintiffs in the full amount of damages $84,592.00, or entry of an additur. Additionally, Plaintiffs made a motion for delay damages. The Plaintiffs' final post-trial motion claimed that they were entitled to recovery for the Defendants breach of warranty. The Defendants filed a motion to mold the verdict to reflect that the Plaintiffs have been fully compensated Additur Request Plaintiffs claim that they were not awarded the full amount of damages that were caused by the Defendants. Plaintiffs correctly point out that in a non-jury trial, the court may grant an additur to correct the inadequacy of the verdict. Firorenza v. Kohn, 396 Pa. Super 1, 3, 577 A.2d 1384, 1386 (1990). However, this Court's verdict is not inadequate as the amount awarded does compensate Plaintiffs for the full extent of damages found by the Court. The purpose of damages for the injury or destruction of property by the tortious conduct of another is to compensate the injured owner for actual loss suffered. Babich v. Pittsburqh and New Enqland Truckinq Co., 386 Pa. Super 482, 485, 563 A.2d 168, 170 (1989). The measure of damages for injury to property is the cost of repair where the injury is repairable. Id. This Court's award reflected the damages for the repairs actually performed in the amount of $18,876.78. Plaintiffs presented an estimate by W.S. Miller and Sons, through testimony of Michael Philips, for the projected cost of repairs. However, neither Mr. Philips nor his company actually performed any repairs. The suggestion that the damages enumerated on the estimate for work that was never performed in excess of $84,000.00 should be awarded is not supported by the factual testimony in this case. The estimate was provided before any repairs were accomplished. An individual who did not perform any repair work gave the damage estimate upon which Plaintiffs base their request for additur. Repairs were actually performed by the Holly Inn Staff and other outside contractors. This Court has awarded these repaired damaged amounts. This Court carefully evaluated all the testimony provided as to the repairs completed, and the current conditions in reaching a decision on damages. Instantly, Plaintiffs seek to have the Court award damages based upon an estimate provided by an entity that performed none of the repair work. As such, Plaintiffs seek to have the Court award more than repair costs. Therefore, Plaintiffs' request for additur is denied. Delay Damages Plaintiffs made a motion for delay damages pursuant to Pa.R.C.P. No. 238(c). Plaintiffs requested that this Court enter an order adding delay damages in the amount of $4,638.06 to the original decision in this case. The Plaintiffs presented damage estimates and claims of losses to their insurance carrier, Commercial Union, which made payment to them pursuant to their building coverage. Commercial Union made payments totaling $50,347.54 and requested reimbursement from the Erie Insurance Company, Defendants' liability carrier. On February 25, 1997, Erie paid Commercial Union $50,347.54. However, this action was not initiated until after Erie exchanged payment on behalf of Defendants to reimburse Commercial Union. Therefore, because the payments were made prior to the commencement of this litigation on the claims presented by the Plaintiffs in this trial exceeded the amount of the verdict, delay damages are not recoverable pursuant to Rule 238. Plaintiffs' motion for delay damages is denied. Breach of Warranty Plaintiffs claim they are entitled to recovery for the Defendants' breach of v~'~,'~,-,'~;,'. '~"~'~ previously rejected Plaintiffs' claim for a Breach of Merchantability and Workmanship under the UCC. The Plaintiffs have not adequately presented any further reasoning to contradict this Court's analysis on this point. Therefore, we adhere to our June 28, 2000 decision. Molding the Verdict In a post trial motion, Defendant claimed that the verdict should be made to reflect the prior payments made to the Plaintiff. Defendant initially requested that this Court mold the decision to reflect that the Plaintiffs have been fully compensated by the insurance payments; therefore, no further damages are owed to the Plaintiffs. However, the parties have stipulated that the amount awarded and paid for damages arising form this accident which were subject to this litigation total $44,230.50, and do not include the cost of the roof. Therefore, Defendants are entitled to a credit of $44,230.50 to be applied only against any award for repair of damages to property. This credit is not to be applied to any other element of damages, including, but not limited to replacement cost of roof.