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HomeMy WebLinkAbout93-1066 Civil LawJAMES C. BARTOLI, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : WILLIAM C. DAVIS and : SALLY Y. DAVIS, husband and : wife, d/b/a OLDE YORK : VALLEY INN, : Defendants : NO. 1066 CIVIL 1993 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., February 9, 1995 This case arises out of Defendants' alleged failure to pay for certain merchandise supplied by Plaintiff from July 1992 to September 1992. A verdict was returned in favor of the Plaintiff following a bench trial. From judgment entered in accordance with the verdict, Defendants have appealed to the Superior Court. In a Statement of Matters Complained of on Appeal, the following reasons for the appeal have been given: 1. There was a variance between the allegata and probata. Specifically, the Complaint alleged the sale of products by Plaintiff to Defendants commencing on or about July 1992 and ending in September 1992. The proof alleged deliveries by Plaintiff to Defendants and payments by Defendants from January 1992 to and including December 1992. The Court entered an Order in favor of the Plaintiff and against the Defendants of $9,362.11 due on principal and $3,089.46 due in interest for deliveries of goods to Defendants from January 1992 through September 1992. There is an obvious inconsistency between the allegata and probata and the award of the Court .... 2. The verdict was contrary to the evidence and the weight of the evidence... The Plaintiff's Complaint seeks $11,248.73 plus interest from July 1992 and ending September 1992. The record reflects that the Defendant paid more than that amount of money to the Plaintiff between July 1992 and December 1992, and that the Defendants should be entitled to NO. 1066 CIVIL 1993 a credit for monies paid. Further, the testimony of Plaintiff's bookkeeper was so inconsistent, contradictory and vague that it did not rise to the level of acceptable testimony .... This Opinion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925. STATEMENT OF FACTS In the present case, Plaintiff, a wholesale distributor of produce and seafood, delivered merchandise over an extended period of time to Defendants, who operated a restaurant and who failed to fully pay for the merchandise. On March 31, 1993, Plaintiff filed a complaint seeking $11,248.73 from Defendants for unpaid deliveries between the months of July, 1992, and September, 1992; the amount claimed as damages represented principal and interest due as of the filing of the complaint. A non-jury trial was held on October 24, 1994, and the following verdict was entered by the Court: [T]he Court finds in favor of the Plaintiff and against the Defendants in the amount of $12,451.57 plus costs of suit. The figure awarded to the Plaintiff represents a sum of $9,362.11 due on principal and $3,089.46 due in interest for deliveries of goods to Defendants from January 1992 through September 1992.~ A post-trial motion for relief was filed by Defendants on October 31, 1994, and was disposed of by the Court on December 22, ~ Order of Court, October 24, 1994. 2 NO. 1066 CIVIL 1993 1994, adversely to Defendants. Evidence at the trial showed the following: In January and February of 1992, Plaintiff delivered to Defendants goods worth $4,443.45. Those goods were paid for by Defendants' check received on April 16, 1992.2 In March of 1992, Plaintiff delivered to Defendants goods worth $5,781.42. Those goods were paid for by Defendants' check received on June 19, 1992.3 In April of 1992, Plaintiff delivered to Defendants goods worth $4,740.90. Those goods were paid for by Defendants' check received on July 22, 1992.4 In May of 1992, Plaintiff delivered to Defendants goods worth $4,661.66. Those goods were paid for partially by Defendants' check received on July 22, 1992, and the remainder by Defendants' check received on September 14, 1992.5 In June of 1992, Plaintiff delivered to Defendants goods worth $2,981.04. Those goods were paid for partially by Defendants' check received on September 14, 1992, and the remainder by Defendants' check received on November 16, 1992.6 From July 1 through July 27 of 1992, Plaintiff delivered to Defendants goods worth $4,925.64. Those goods were paid for partially by Defendants' check received Plaintiff's Exhibits 5, 13. Plaintiff's Exhibits 6, 13. Plaintiff's Exhibits 7, 13. Plaintiff's Exhibits 8, 13. Plaintiff's Exhibits 9, 13. 3 NO. 1066 CIVIL 1993 on November 16, 1992, and the remainder by Defendants' check posted on December 2, 1992.7 From July 31 through August 28, 1992, Plaintiff delivered to Defendants goods worth $6,801.96. Of that amount, $690.76 was paid for by Defendants' check posted on December 2, 1992, leaving a balance due of $6,111.20.8 From August 31 through September 14, 1992, Plaintiff delivered to Defendants goods totalling $3,250.91. No payment was ever made on this amount, leaving a total balance due of $9,362.11 for unpaid deliveries between July 31 and September 14, 1992.9 Defendants were advised as early as April, 1992, and no later than May, 1992, that interest at the rate of 1.5% per month would be charged on any outstanding balance over thirty days old.~° Interest on the outstanding principal of $9,362.11 from December 2, 1992, through October 1, 1994 is $3,089.46, computed on the basis of $140.43 per month for twenty-two months. STATEMENT OF LAW Weight of evidence. "A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict .... " Plaintiff's Exhibits 10, 13. Plaintiff's Exhibits 11, 13. Plaintiff's Exhibits 12, 13. Plaintiff's Exhibit 2. 4 NO. 1066 CIVIL 1993 Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471A.2d 1228, 1230 (1984). "Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion." Commonwealth v. Parker, Pa. Super. , __, 644 A.2d 1245, 1247 (1994). "A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the ... verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Burrell v. Philadelphia Electric Co., 438 Pa. 286, 288, 265 A.2d 516, 518 (1970). This rule applies to a bench trial. Commonwealth v. Dehoniesto, 425 Pa. Super. 83, 624 A.2d 156 (1993). "[A] new trial should not be granted because of a mere conflict in testimony .... " Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). "Only if the evidence is so unreliable or contradictory as to make any verdict based thereon pure conjecture is appellant entitled to a new trial on this basis." Commonwealth v. Moore, Pa. Super. __, , 648 A.2d 331, 334 (1994), citing Commonwealth v. Maute, 336 Pa. Super. 394, 485 A.2d 1138 (1984). "In order to prevail the defendant must establish that the verdict was absolutely and irreconcilably contradictory to incontrovertible facts, human experience or the NO. 1066 CIVIL 1993 laws of nature or based on mere conjecture." Commonwealth v. Thompson, Pa. __, , 648 A.2d 315, 324-25 (1994). In this context, it has been noted that "the factfinder is entitled to believe all, part or none of the evidence adduced at trial .... A determination of credibility lies solely within the province of the factfinder .... [A]ny conflict in the testimony goes to the credibility of the witnesses and is solely to be resolved by the factfinder." Commonwealth v. Price, 420 Pa. Super. 256, 264, 616 A.2d 681, 685 (1992). It has also been said that "[w]hen a motion for a new trial is made on the ground that the verdict is contrary to the weight of the evidence, ... [t]he ... court need not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses." Commonwealth v. Vogel, 501 Pa. 314, 324, 461A.2d 604, 609 (1983) (citation omitted), cert. denied, 465 U.S. 1104, 104 S. Ct. 1603, 80 L. Ed. 2d 133 (1984). Variance between alleqata and probata. "The general rule requiring conformity between the allegata and probata is intended to avoid the injustice that would result by confronting a defendant at trial with proof of a cause of action of which he was not put on notice and which he is not prepared to defend." In the Interest of M.B., 356 Pa. Super. 257, 260, 514 A.2d 599, 600-01 (1986), aff'd, 517 Pa. 460, 538 A.2d 495 (1988). "Only the material variance NO. 1066 CIVIL 1993 between the pleadings and the proof is objectional, and no variance is to be regarded as material when the allegations and proof substantially conform." 6 Standard Pa. Practice §33.9 at 283 (1994). "A material variance consists of a departure in the evidence from the issues on which the cause of action must depend." Id. at §33.1, 274. "A variance is generally immaterial if the alleged discrepancy causes no prejudice to the adverse party." Id. at §33.10, 285. "[T]he rule against variances does not limit the introduction of proof when it is obvious that the opposing party has not and will not be misled." Id. APPLICATION OF LAW TO FACTS With respect to Defendants' claim that the verdict was contrary to the weight of the evidence, the Court is unable to agree. The Plaintiff's case was painstakingly presented, and its bookkeeper's testimony was found to be credible and complete by the factfinder. With respect to Defendants' claim that the proof at trial lacked conformity with the pleadings, the Court is again unable to concur. As indicated in the recitation of facts above, the Plaintiff demonstrated very clearly that merchandise delivered between July of 1992 and September of 1992 had not been paid for by Defendants and that the damage figure resulting from this breach was as awarded by the Court. In the course of presenting its case, Plaintiff was required to explain all deliveries and payments from 7 NO. 1066 CIVIL 1993 January of 1992. The Court's reference in its verdict to deliveries from January of 1992, while poorly worded, was made in that context. The suggestion that either of the parties was under any misapprehension after this detailed trial as to what Plaintiff had proven is, to put it kindly, not persuasive. Edward E. Guido, Esq. 26 West High Street Carlisle, PA 17013 Attorney for Plaintiff Allen H. Smith, Esq. 47 N. Duke Street York, PA 17401 Attorney for Defendants 8