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DURA SEAL PRODUCTS COMPANY v. CARVER ET AL. (07/17/56)

July 17, 1956

DURA SEAL PRODUCTS COMPANY, INC.
v.
CARVER ET AL., APPELLANTS.



Appeal, No. 1, Oct. T., 1956, from order of Municipal Court of Philadelphia County, Jan. T., 1953, No. 647, in case of Dura Seal Products Co., Inc. v. Jack Carver, trading as General Sales and Service Company, and Jack Carver et ux. Order affirmed.

COUNSEL

Bernard R. Cohn, for appellants.

Bertram U. Weinberg, for appellee.

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

Author: Woodside

[ 181 Pa. Super. Page 379]

OPINION BY WOODSIDE, J.

This is an appeal from the order of the Municipal Court of Philadelphia granting a new trial after a verdict in favor of the claimants.

The plaintiff obtained a judgment against Jack Carver, individually and trading as General Sales and Service Company and caused execution to be issued against household furniture contained in the Carver home at 5950 Windsor Avenue, Philadelphia, Pennsylvania.

Carver's wife, Edith, at first claimed that all the personal property belonged to her but thereafter both husband and wife claimed the property as tenants by the entireties. An issue was framed and the case was tried before a jury which found for the claimants. Upon motion of the plaintiff the lower court granted a new trial. Claimants appealed.

The appellants assume a heavy burden. The Appellate Courts of this Commonwealth interfere with the exercise of the judicial discretion of the lower courts in granting new trials only where such discretion has been exercised capriciously, arbitrarily, improvidently or has been palpably abused, or where an erroneous rule of law which, in the circumstances, necessarily controls the outcome of the case is certified by the court below as the sole reason for its action. No alleged erroneous rule of law is here involved. Beal v. Reading Co., 370 Pa. 45, 48, 87 A.2d 214 (1952); Mozino v. Canuso, 384 Pa. 220, 120 A.2d 300 (1956).

The lower court pointed out in its opinion the following inconsistencies in the claimants' testimony:

"Edith Carver, wife of defendant, in a prior claim in this same case, under oath, filed a property claim declaring the property levied upon was her own property and that ...


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