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LEVINE v. GIANT (03/21/62)

March 21, 1962

LEVINE
v.
GIANT, INC., APPELLANT.



Appeal, No. 1, Feb. T., 1962, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1957, No. 1875, in case of Henry Levine v. Giant, Inc. Judgment affirmed.

COUNSEL

Alex Marcus, for appellant.

William Zacharellis, with him Sidney Grabowski, for appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Ervin

[ 197 Pa. Super. Page 340]

OPINION BY ERVIN, J.

Plaintiff, Henry Levine, sued defendant, Giant, Inc., in an action in assumpsit to recover damages alleged to have been suffered by reason of the defendant's wrongful discharge of the plaintiff. The defendant justified the discharge and endeavored to prove that the plaintiff violated the contract of employment. The jury rendered a verdict in favor of the plaintiff in the sum of $2,700.00 to cover loss of wages and expenses incurred. The defendant filed motions for new trial and judgment n.o.v. but has abandoned the latter motion. The court below refused defendant's motions and the plaintiff thereafter entered judgment upon the verdict. The defendant appealed.

Appellant first raises the point that the verdict was against the weight of the evidence. With this we cannot agree. The written agreement which was drawn by the defendant, the execution of which was admitted by both parties, was offered in evidence. There was no dispute as to its terms. In his charge to the jury the learned trial judge said: "The contract provided that 'The corporation will employ the manager', being described in the agreement as Henry Levine, 'as general manager of its appetizing department at its supermarket situate on Moosic Street in the City of Scranton,

[ 197 Pa. Super. Page 341]

    for the term of one year from the 17th day of June, 1957, and thereafter until this agreement shall be terminated by either party hereto giving the other one month's notice in writing of such intended termination. During the continuance of this agreement the manager shall devote the whole of his time during the business hours of the corporation, and shall use his best endeavors to promote the interests and welfare of the aforesaid department and of the corporation. The manager shall exercise and carry out all such powers and duties, and shall observe all such directions and restrictions as the corporation may from time to time confer and impose upon him'." The agreement also provided for the payment of a salary of $150.00 per week.

The plaintiff claimed that he had properly performed all the duties required of him under the contract and that he was wrongfully discharged. The defendant claimed that he had not properly performed his duties and that he was properly discharged.

In its charge the court below very carefully reviewed the testimony given by two officers of the defendant, three customer witnesses and the store manager. The plaintiff denied all of the testimony against him as to improper performance of his duties with the exception that he admitted that he had made a mistake in preparing a barrel of pickles which were ruined. The testimony was in direct conflict and was for the jury to determine. The plaintiff described the work he had to do and stated that he worked six days a week from 7:30 a.m. to 9:00 p.m. or later, his working hours being uncontradicted.

Defendant presented three customers, each of whom made a different complaint against plaintiff. The plaintiff denied each complaint. Customers served ranged from 1,000 per day to 10,000 per week. The general manager voluntarily admitted that there are always a certain number of complaints, no matter what

[ 197 Pa. Super. Page 342]

    an employe does. The jury found the facts in favor of the plaintiff and we cannot say that a new jury would do differently. The determination of whether a verdict is against the weight of the evidence rests primarily within the discretion of the trial court and its action will not be disturbed unless there is a palpable abuse of discretion: Kiser v. Schlosser, 389 Pa. 131, 132, 132 A.2d 344. Only a most unusual situation warrants the granting of a new trial on the ground that a verdict is against the weight of the evidence: Battistone v. Benedetti, 385 Pa. 163, 171, 122 A.2d 536.

Appellant also complains about the inadequacy of the court's charge in that it failed to explain the meaning, construction and operation of a contract. It would have been useless as well as confusing to instruct the jury on the law of contracts when the existence of the contract was admitted. There was no dispute as to its terms. The only issue in the case was whether or not the plaintiff had properly performed his duties. The court below very carefully reviewed the testimony presented by both sides and then said to the jury: "Members of the Jury, from all this testimony, the contract of employment being admitted, it is for you to decide whether or not the discharge of the plaintiff by the Giant Markets was wrongful or whether it was proper because of the plaintiff's failure to perform the contract, if you find there was such a failure. You must determine whether or not the plaintiff was performing the duties required of him under this contract and under the testimony produced. Was he discharged because of his failure to properly perform his duties, or was it for some other reason?" We have no doubt that the jury every clearly understood what the real issue in the case was and what it should take into consideration in determining that issue.

Appellant also complains of the trial judge's failure to affirm defendant's points ...


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