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KUZMA v. KUZMA (12/17/59)

December 17, 1959

KUZMA
v.
KUZMA, APPELLANT.



Appeal, No. 93, April T., 1959, from order of Court of Common Pleas of Allegheny County, April T., 1954, No. 3459, in case of Anna Kuzma, administratrix of estate of Andrew Koches, deceased v. John R. Kuzma. Order affirmed.

COUNSEL

Edward A. Witt, with him Charles J. Spinelli, and Spinelli & McLean, for appellant.

Daniel M. Berger, with him Morris M. Berger, and Berger & Berger, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Wright

[ 191 Pa. Super. Page 296]

OPINION BY WRIGHT, J.

On March 31, 1954, Andrew Koches instituted an action in assumpsit against John R. Kuzma to recover a loan of $2,000.00 allegedly made on February 8, 1949. Koches died on September 30, 1954, and his daughter, Anna Kuzma, administratrix, was substituted as plaintiff.

[ 191 Pa. Super. Page 297]

The trial resulted in a verdict for the defendant. The court en banc thereafter granted plaintiff's motion for a new trial. The defendant has appealed.

The record discloses that appellant and Koches, as tenants in common, owned a hotel building in Homestead, in which Anna Kuzma operated a tavern. Appellant was a brother of Mrs. Kuzma's deceased husband, and served as bartender. Appellant arranged to purchase the undivided one-half interest of Koches in the hotel building for $12,000.00, and negotiated a mortgage loan in that amount from the Peoples First National Bank and Trust Company. The check of the mortgagee was made payable to appellant and endorsed to the order of Koches. Appellant, Anna Kuzma, and Koches, took the check to the First Federal Savings and Loan Association in Homestead, where Mr. Schram, the President of that institution, credited Koches with a deposit of $10,000.00, and gave Koches $2,000.00 in cash. At this point the dispute arises. Anna Kuzma testified that the $2,000.00 was then and there loaned by her father to appellant, whereas appellant testified that the $2,000.00 was given by Koches to Anna. Unfortunately, Mr. Schram died before the trial. There were no other witnesses.

The reasons assigned in the motion for a new trial were, inter alia, that the verdict was against the weight of the credible evidence, and that plaintiff had discovered additional evidence which she did not have at the time the case was submitted to the jury. In connection with the latter reason it appears that, after the jury retired, appellant had a conversation in the courtroom with Norman Edward Kuzma, a son of Anna Kuzma. According to Norman's affidavit, appellant admitted liability and acknowledged that he had committed perjury on the witness stand. At the argument before the court en banc, it was ordered that depositions be taken.

[ 191 Pa. Super. Page 298]

Norman testified that the conversation was as set forth in the footnote.*fn1 Appellant admitted that he had a conversation with Norman but denied that he said that he gave false testimony. He asserted to the contrary that he had told the truth on the witness stand. The opinion of the court en banc, written by the trial judge under our Rule 43, contains the following statement: "The new trial was granted because the jury's verdict was against the weight of the credible evidence and because there is reliable evidence, in ...


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