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HomeMy WebLinkAbout96-5292 civil termSCOTT M. CULBERSON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND TRUCK EQUIPMENT, INC., AND VOLVO GM HEAVY TRUCK: CORP., INC., DEFENDANTS 96-5292 CIVIL TERM IN RE: CROSS-MOTIONS FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW, this /~2~" day of February, 2000, IT IS ORDERED: (1) The motion for post-trial relief of Cumberland Truck Equipment, Inc., IS DENIED, (2) The motion for post-trial relief of Volvo GM Heavy Truck Corp., Inc., IS DENIED, (3) The motion for post-trial relief of plaintiff, Scott M. Culberson, IS DENIED. By !he coUrt,.~ ~ Edgar B. Bayley, J.! Andrew J. Ostrowski, Esquire For Plaintiff P. Ronald Cooper, Esquire For Cumberland Truck Equipment, Inc. William C. Foster, Esquire For Volvo GM Heavy Truck Corp. :saa SCOTT M. CULBERSON, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CUMBERLAND TRUCK EQUIPMENT, INC., AND VOLVO GM HEAVY TRUCK: CORP., INC., DEFENDANTS 96-5292 CIVIL TERM IN RE: CROSS-MOTIONS FOR POST-TRIAL RELIEF OPINION AND ORDER OF COURT Bayley, J., February '16, 2000:-- Plaintiff, Scott M. Culberson, purchased a used 1992 GMAC truck/tractor from defendant, Cumberland Truck Equipment, Inc., which was delivered on September 15, 1995. The truck was assigned for sale to Cumberland Truck by defendant Volvo-GM Heavy Truck Corp., Inc. After driving the truck 86,000 miles, plaintiff left it at Cumberland Truck on June 28, 1996. He then filed this complaint and his case went to a jury on claims of (1) breach of an express warranty, (2) fraud, and (3) fraudulent misrepresentation or nondisclosure. Cumberland Truck filed a counterclaim against plaintiff seeking $2,661.91 which it maintained he owed for services it performed on the truck. On September 16, 1999, a jury found that defendant Cumberland Truck Equipment, Inc., committed a breach of express warranty, fraud and fraudulent misrepresentation or nondisclosure. It found that defendant Volvo GM Heavy Truck Corp., Inc., committed fraudulent misrepresentation or nondisclosure. The jury awarded plaintiff damages for breach of express warranty of $8,000, and for fraud and 96-5292 CIVIL TERM fraudulent misrepresentation or nondisclosure of $32,000. The jury found in favor of plaintiff/counterclaim defendant on Cumberland Truck's counterclaim. Both defendants filed a post-trial motion in which they seek a judgment notwithstanding the verdict on the verdict of $32,000.' Plaintiff filed a post-trial motion in which he seeks a new trial limited to compensatory damages for an alleged breach of implied warranties, and punitive damages. Additionally, he seeks an award of prejudgment interest, an equitable rescission of his contract with Cumberland Truck Equipment, Inc., with a return of all money paid by him for the truck, and an award of attorney fees pursuant to 42 Pa.C.S. § 2503. The cross-motions for post-trial relief were briefed and argued on February 10, 2000. The evidence in the light most favorable to plaintiff, the verdict winner, was as follows? Plaintiff had worked as a truck driver for a little over two years when he decided to purchase a truck/tractor and use it as an owner/operator. He arranged for a lease to haul food for a company in Maine and then went looking for a used truck. He saw an advertisement for used trucks by Cumberland Truck Equipment, Inc. He looked at several units and expressed interest in one that was represented to him as having been a fleet truck, and another that was represented as having been a one ' Cumberland Truck does not seek post-trial relief with respect to the $8,000 award against it for breach of an express warranty. 2 Golibart v. Reamer, 415 Pa. Super. 623 (1992). -2- 96-5292 CIVIL TERM owner, owner/operator truck. The latter truck had 107,000 miles on the odometer. Plaintiff told the salesman that he needed an eighteen-month warranty. The salesman for Cumberland Truck told plaintiff that the unit was three and one-half years old so the actual mileage was approximately 350,000. He said that the ownedoperator truck had a balance of a Detroit Diesel five-year/five hundred thousand-mile warranty on the engine, and a balance of an Eastern Transmission seven yeadseven hundred fifty thousand-mile warranty on the transmission. Plaintiff felt that an owner/operator unit with 350,000 miles would have been maintained better than a fleet truck, was the type of truck that he needed, and he purchased it for $44,900. He paid down a little under $4,000 and financed the remainder. Plaintiff testified to a litany of problems with the truck starting on September 15, 1995, the day it was delivered, and not letting up until he finally left it at Cumberland Truck on June 28, 1996. A fair characterization of these problems from plaintiff's point of view was that this truck was the lemon from hell. It constantly broke down. Some nonwarranty repairs were paid for by Cumberland Truck and some plaintiff paid for and was reimbursed by Cumberland Truck. Cumberland Truck promised to pay for some nonwarranty repairs but did not pay. Plaintiff did not receive one check payable to him as reimbursement for repairs. Some warranty repairs were not submitted for payment by Cumberland Truck. The most serious problem throughout the ten months that plaintiff operated the truck back and forth across the United States was overheating which was never fully corrected. Despite the many problems with the truck plaintiff still -3- 96-5292 CIVIL TERM earned $54,000 before taxes during the ten months before he returned it to Cumberland Truck. The evidence revealed that the truck was put in service on July 17, 1991, and was owned by a fleet operator, Werner Enterprises, Inc., of Omaha, Nebraska. Werner Enterprises sold the truck on June 16, 1993, to Arthur B. Dupre of Eunice, Louisiana. Dupre sold it to Sapp Bros. Trucks, Inc., of Omaha, Nebraska on April 20, 1995. Sapp Bros. transferred title to Western White GMC on June 2, 1995. Sapp Bros., Western White GMC and defendant Volvo GM Heavy Truck Corp., are all part of the same enterprise. Western White transferred title to Cumberland Truck Equipment, Inc. on August 31, 1996. After plaintiff purchased the truck and saw that the title showed that it had been owned from July 17, 1991 to June 16, 1993 by Werner Enterprises, a fleet operator, he questioned the salesman from Cumberland Truck and was again told that the truck had been owned by an ownedoperator. When the truck was originally assigned for sale by Volvo to Cumberland Truck, Volvo and Cumberland knew that the mileage on the odometer was not correct. Cumberland sought to verify the real mileage by obtaining a letter from Volvo dated September 8, 1995. That letter from Terry Williams, Volvo's remarketing coordinator, stated: Discussions with Werner Enterprises indicate SIN 510289, 1992 WIA64TES, has approximately 350,000 miles. If possible, please update the odmeter [sic] of this unit. Please call if I can be of further assistance. Williams testified that it was his gut feeling that the truck had been driven about -4- 96-5292 CIVIL TERM 400,000 miles. He made a phone call to a Werner representative and based his 350,000 mile estimate in his letter to Cumberland Truck on what was represented to him by Werner to be Werner's fleet average mileage. Despite having the title to the truck at the time he sent that letter to Cumberland Truck, Williams never sought out or asked Arthur Dupre as to what the status of the truck was during the period of time that he owned it from June 16, 1993 until April 20, 1995. The salesman from Cumberland Truck denied that it had ever represented to plaintiff that the truck had been an owner/operator unit, maintaining that plaintiff was told that it was a fleet truck of Werner Enterprises. DISCUSSION Citing Bortz v. Noon, 698 A.2d 1311 (Pa. Super. 1977), and Banks v. Jerome Taylor & Associates, 700 A.2d 1329 (Pa. Super. 1977), Cumberland Truck, as to the verdict against it for fraud and fraudulent misrepresentation or nondisclosure, and Volvo as to the verdict against it for fraudulent misrepresentation or nondisclosure, maintain that they are entitled to a judgment notwithstanding the verdict. On a motion for judgment n.o.v., the evidence must be viewed in a light most favorable to the verdict winner, who must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moure v. Raeuchle, 529 Pa. 394 (1992). A judgment n.o.v, should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Id. -5- 96-5292 CIVIL TERM In Gibbs v. Ernst, 538 Pa. 193 (1994), the Supreme Court of Pennsylvania set forth that the elements of fraud are: (1) a representation, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, (4) with intent of misleading another into relying on it, (5) justifiable reliance on the misrepresentation, and (6) resulting injury proximately caused by the reliance. The elements of fraudulent misrepresentation or nondisclosure are: (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as a proximate result. Catagnus v. County of Montgomery, 113 Pa. Commw. 129 (1988). A fraudulent misrepresentation involves either a knowing or a reckless communication of a misrepresentation. Woodward v. Dietrich, 378 Pa. Super. 111 (1988). Plaintiff purchased the truck after having been advised by Cumberland Truck that the vehicle had been driven approximately 350,000 miles by one owner/operator. The evidence and the reasonable inferences that could be drawn therefrom were that the truck, which was put in service on July 17, 1991, had been a fleet truck operated by Werner Enterprises, Inc., of Omaha, Nebraska, and since it was owned by Arthur Dupre of Eunice, Louisiana, between June 16, 1993 and April 20, 1995, that it had been driven far more miles than the approximately 350,000 miles as represented by defendants to plaintiff. Volvo had possession of the title to Sapp Bros. Truck, Inc. that showed the real history of the ownership of the truck. Notwithstanding, it relied on -6- 96-5292 CIVIL TERM information provided to it in a phone call to a Werner employee in representing that the estimated mileage on the truck was only 350,000 miles. Volvo made no effort to contact Arthur Dupre to determine how many miles the truck had been driven during his period of ownership. There was sufficient evidence for the jury to conclude that Volvo's conduct was reckless in making a fraudulent misrepresentation as to both the mileage on the truck and the status of its prior ownership. Cumberland Truck, after receiving the title which showed that the truck had been a Werner fleet truck intentionally continued to misrepresent the prior ownership status to plaintiff. These misrepresentations were material in inducing plaintiff to buy a truck he thought was in good condition necessary to meet his needs? Following delivery the truck broke down on a continual basis for the entire ten months that plaintiff operated it before he returned it to Cumberland Truck. His effort to gain satisfaction for the expenses and losses he incurred was a nightmare. All of this evidence was sufficient to support the jury's verdict. Citing Peters v. Stroudsburg Trust Co., 348 Pa. 451 (1944), Cumberland Truck and Volvo maintain that the $32,000 verdict cannot stand because plaintiff did not prove the before and after value of the truck that was the subject of fraud and fraudulent misrepresentation or nondisclosure. Cumberland Truck takes this position notwithstanding that the charge on the damages recoverable for fraud and fraudulent misrepresentation or nondisclosure was given to the jury exactly as set forth in its points 3 The claim for a breach of an express warranty involved the duration of the manufacturer's engine and transmission warranties. -7- 96-5292 CIVIL TERM for charge 22 and 23, and exactly as set forth in the Pennsylvania Suggested Standard Civil Jury instructions at Sections 13.15 and 13.17. The charge on damages for fraud was as follows: The plaintiff is entitled to be fairly and adequately compensated (1) in any amount measured by the difference between the value he gave and the value he received in this transaction, and (2) for all monetary losses otherwise suffered as a result of the fraud. (Emphasis added.) The charge on damages for fraudulent misrepresentation or nondisclosure was as follows: The plaintiff is entitled to be fairly and adequately compensated for the actual pecuniary loss he has suffered. Actual pecuniary loss includes: (1) the difference between the value he gave or amount he paid and the actual, real, or intrinsic value of what he received at the time of the transaction; and (2) all other pecuniary loss suffered as a consequence of the misrepresentation or nondisclosure, including the additional expenses and losses incurred as a result of the misrepresentation or nondisclosure, [and including if the plaintiff is in the business of engaging in the type of transaction involved,] the profit the plaintiff [has shown to a reasonable certainty that he] would have made. (Emphasis added.) Additionally, the jury was charged on mitigation of damages as follows: Plaintiff has a duty to mitigate any damages. A plaintiff may only recover for consequential damages if those damages were foreseeable by the person liable and plaintiff could not have prevented through reasonable means the harm he suffered. Damages for which a plaintiff has a duty to mitigate cannot be awarded to plaintiff. Finally, the jury was charged on not duplicating damages: ·.. if you award damages to plaintiff under either the two types of fraud or a breach of an express warranty, these damages may not be duplicated which means that the same type of damages cannot be -8- 96-5292 CIVIL TERM awarded twice. Plaintiff presented substantial evidence of the costs, expenses and lost time and income associated with the constant breakdown of the truck during the ten months that it was utilized by him. The jury properly weighed this evidence and rendered a verdict as to damages that we will not disturb. As to plaintiff's post-trial motion seeking a new trial, at oral argument he withdrew his claim that the court erred in failing to charge the jury on an alleged breach of an implied warranty. He acknowledges that he could not recover separate damages both for a breach of an express warranty and a breach of implied warranty. Plaintiff also withdrew his request for an award of statutory attorney fees acknowledging that such relief cannot be provided for in a post-trial motion. At trial, acknowledging that rescission of his contract with Cumberland Truck for a return of all of the money he paid for the truck was an equitable matter, he withdrew his points for charge for such relief. Plaintiff elected his remedies. Plaintiff's claim to prejudgment interest would not apply to the verdicts for fraud and fraudulent misrepresentation or nondisclosure. As to the verdict for a breach of an express warranty against Cumberland Truck, prejudgment interest would be due if there had been a breach of contract to pay a deficient sum of money, or to render a performance the value of which in money is stated in the contract or is ascertainable by a mathematical calculation from a standard fixed in the contract or from established market prices of the subject matter. Penneys v. Pennsylvania Railroad Co., 408 Pa. 96-5292 CIVIL TERM 276 (1962). In other cases, prejudgment interest may be allowed as justice requires. Summerset Community Hospital v. Allen B. Mitchell & Associates, Inc., 454 Pa. Super. 188 (1996). Plaintiff's recovery of $8,000 against Cumberland Truck Equipment, Inc., for breach of an express warranty was an unliquidated claim for which we do not consider an award of prejudgment interest as being warranted. As to plaintiff's claim for a new trial limited to punitive damages, the Superior Court of Pennsylvania in Pittsburgh Live, Inc. v. Servov, 419 Pa. Super. 423 (1992), reversed an award of punitive damages stating that: [w]hen fraud is the basis of compensatory damages, the same fraudulent conduct is not sufficient to base an award of punitive damages without more. Smith v. Renaut, 387 Pa. Super. 299, 309, 564 A.2d 188, 193 (1989). To justify an award of punitive damages, there must be acts of malice, vindictiveness and a wholly wanton disregard of the rights of others. Id. We are satisfied that plaintiff did not show acts of malice, vindictiveness and a wholly wanton disregard to the rights of plaintiff sufficient to submit an issue of punitive damages to the jury? For the foregoing reasons, the following order is entered. 4 We acknowledge that we indicated to plaintiff's counsel during the trial, although it was off the record, that we did not believe an award for punitive damages could be submitted to the jury where the plaintiff, as here, did not introduce some evidence of the defendant's wealth. The Superior Court has stated, however, that there is no requirement that such evidence is indispensable to an award of punitive damages. Scheiner v. Moriarity, 706 A.2d 1228 (Pa. Super. 1998). -10- 96-5292 CIVIL TERM ORDER OF COURT AND NOW, this J~ ~ day of February, 2000, IT IS ORDERED: (1) The motion for post-trial relief of Cumberland Truck Equipment, Inc., IS DENIED. (2) The motion for post-trial relief of Volvo GM Heavy Truck Corp., Inc., IS DENIED. (3) The motion for post-trial relief of plaintiff, Scott M. Culberson, IS DENIED. Edgar B. Bayley, J. ( Andrew J. Ostrowski, Esquire '~ For Plaintiff P. Ronald Cooper, Esquire For Cumberland Truck Equipment, Inc. William C. Foster, Esquire For Volvo GM Heavy Truck Corp. :saa -11-