Appeals, Nos. 6 and 7, March T., 1957, from orders of the Court of Common Pleas of Allegheny County, Jan. T., 1950, No. 799, and Oct. T., 1955, No. 1885, in cases of C. S. Helmig v. Rockwell Manufacturing Company and Bethlehem Steel Company. Orders affirmed.
Paul Ginsburg, for appellant.
J. Wray Connolly, with him W. D. Moorhead, Jr., J. M. Feeney, Jr. and Moorhead & Knox, for appellee.
David McNeil Olds, with him Carl E. Glock and Reed, Smith, Shaw & McClay, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold and Jones, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The instant controversy involves two separate appeals from orders of the Court of Common Pleas of Allegheny County - one in an assumpsit, the other in a trespass action. The same appellant and factual situation were before this court in the prior appeal, reported at 380 Pa. 305, 111 A.2d 118. Mr. Justice CHIDSEY, in the prior appeal, painstakingly stated the facts. Because of this we will restate only those facts which comprise the essence of the present controversy.
In 1948 appellant, a steel broker, undertook to furnish appellee Rockwell Manufacturing Company*fn1 with steel sheets to be used in Rockwell's business. Appellant agreed to obtain steel ingots for Rockwell and then secure the services of a rolling mill to convert these ingots into steel sheets. In return Rockwell agreed to pay appellant a commission of $35.00 a ton for the finished product. Appellant obtained the requisite ingots and then attempted to secure rolling time from appellee Bethlehem Steel Company*fn2 for the necessary conversion into steel sheets. Bethlehem refused to roll the ingots, giving as its reason its policy against entering into any conversion agreement in which middlemen were involved. Rockwell then cancelled its agreement with appellant which cancellation is essentially the basis for all three subsequent appeals - the initial and the two present appeals - to this court.
After the cancellation of the agreement appellant sued Rockwell in assumpsit and this court affirmed
the lower court's entry of judgment n.o.v. against appellant: Helmig v. Rockwell Manufacturing Company, supra.
On September 23, 1955, 17 months after the judgment of the lower court was entered, appellant filed a petition for new trial for after-discovered evidence which requested, as amended, that either a new trial be granted or, in the alternative, that the judgment n.o.v. be vacated and the verdict of the jury in favor of appellant be reinstated. By order of May 23, 1956 the lower court dismissed appellant's petition and the first of these appeals (No. 6 March Term, 1957) followed.
On August 25, 1955, prior to his petition for a new trial, appellant brought an action in trespass, naming both Rockwell and Bethlehem as defendants, and alleging a conspiracy between them to defraud him of his commission by means of the cancellation of the agreement of 1948. The lower court, by order of May 23, 1956, granted the motions of both appellees for judgment on the pleadings and the second of these appeals (No. 7 March Term, 1957) followed.
The grounds upon which the lower court denied appellant's petition for a new trial or opening of the judgment n.o.v. in the assumpsit action are: (1) that the petition was filed too late and (2) that the after-discovered evidence which was the basis for the petition was available at time of trial, and was neither legally nor factually sufficient to justify appellant's prayer for relief.
The court below was correct in its exposition of the law pertaining to new trials. A petition for a new trial must be filed at the same term in which final judgment is entered, with exceptions allowable only where the court has retained control over the ...