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SAVITZ v. GALLACCIO ET AL. (11/16/55)

November 16, 1955

SAVITZ
v.
GALLACCIO ET AL., APPELLANTS



Appeal, No. 261, Oct. T., 1955, from judgment of Municipal Court of Philadelphia County, Jan. T., 1953, No. 480, in case of Phil Savitz v. Fred Gallaccio and Frank Reale, trading as Western Construction Company. Judgment affirmed; reargument refused December 2, 1955.

COUNSEL

Morton B. Weinstein, for appellants.

Harry Norman Ball, with him Morris L. Weisberg, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 179 Pa. Super. Page 591]

OPINION BY WRIGHT, J.

Phil Savitz instituted an action in assumpsit against Fred Gallaccio and Frank Reale, individually and trading as Western Construction Company, to recover ten weeks salary under a written contract of employment.The jury returned a verdict in favor of plaintiff. Defendants' motions for judgment n.o.v. and for a new trial were refused, and judgment was entered on the verdict. This appeal followed.

The contract in question was prepared by appellants' attorney, and was executed by the parties in November 1951. It set forth that appellants had entered into an agreement with the City of Philadelphia to construct a sewer on Castor Avenue; that they were desirous of obtaining additional working capital, and that appellee had a sum sufficient to meet their needs; that appellants were seeking the services of an experienced and competent general superintendent to supervise

[ 179 Pa. Super. Page 592]

    the construction of the sewer, and that appellee enjoyed "a valuable reputation for being a competent supervisor of that type of construction work which has been gained as a result of 40 years' experience". By the terms of the contract appellee loaned appellants $14,000.00, which sum was to be repaid no later than the date of final settlement by the City, and appellants agreed to employ appellee as general superintendent of the sewer job at a salary of $150.00 per week. The employment was to commence at such time as construction of the sewer was started and to continue until the sewer had been completed and was accepted by the City. The contract also contained a bonus provision not here involved.

The sewer job commenced in February 1952. At that time, appellee was hospitalized as the result of an accident. According to appellee's testimony, he talked with appellants daily and advised them about the work. However, appellants testified that it was necessary for them to employ another superintendent during this period. Appellee testified that appellants requested him to come to work as soon as possible and insisted that he start in May, even though he was still on crutches. This was denied by appellants, who testified that, when appellee appeared at the job, he was seeking work and they orally agreed to employ him at $150.00 a week for an indefinite period. It is undisputed that appellee actually did start to work on May 28, 1952, and that he was paid a salary at $150.00 per week. He testified that the job was then twenty percent completed. On November 5, 1952, appellee was informed that appellants could not use him any more. At that time the job was ninety percent completed. During the period from May to November, appellee was the only superintendent on the job. Neither the appellants, the City Engineer, the City Inspector, nor

[ 179 Pa. Super. Page 593]

    any other person complained to appellee that the work was being done improperly. However, appellants introduced considerable testimony tending to show that appellee was unfit to act as a superintendent. Appellee testified that he made no effort to secure other work after his discharge because, ...


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