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JUDY ELLYN v. HYDE PARK FASHIONS (11/11/65)

decided: November 11, 1965.

JUDY ELLYN, INC., APPELLANT,
v.
HYDE PARK FASHIONS, INC.



Appeal from order of Court of Common Pleas of Lackawanna County, Nov. T., 1963, No. 2, in case of Judy Ellyn, Inc. v. Hyde Park Fashions, Inc.

COUNSEL

James Scanlon, Jr., for appellant.

Joseph A. Graziano, with him Nogi, O'Malley & Harris, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J. Montgomery, J., would grant a new trial.

Author: Hoffman

[ 206 Pa. Super. Page 570]

Appellant, Judy Ellyn, Inc., is a New York corporation engaged in the business of selling dresses to wholesalers. Its principal place of business is New York City. Appellee, Hyde Park Fashions, Inc., is a Pennsylvania corporation engaged in the business of dressmaking. Its principal place of business is Scranton, Pennsylvania.

From May 19, 1962, to November 20, 1962, appellant delivered to appellee a quantity of dress material for processing into finished garments. The parties agreed that after the garments were completed, they would be stored at appellee's premises until request for shipment was made by appellant. On January 10,

[ 206 Pa. Super. Page 5711963]

, appellee notified appellant that the dresses had been damaged by water in appellee's basement.

Appellant instituted suit for damages. At trial, it attempted to prove the extent of these damages through the expert testimony of Gilbert Goldstein, who had been appellant's sales manager throughout the period in question. Appellee moved to strike Mr. Goldstein's testimony because he was not familiar with the damaged dresses. This motion was granted by the lower court. Consequently, since no other evidence was introduced at trial to prove damages, the court entered a compulsory non-suit. Appellant's motion to remove the compulsory non-suit was ultimately refused after a hearing before the court en banc.

After a careful reading of the record in this case, we agree with the lower court that "the testimony of the witness, Gilbert Goldstein, called by plaintiff to prove its damages, discloses his unfamiliarity with the damages sought to be proven and his incompetency, therefore, to testify thereto . . ."

Mr. Goldstein stated that the market value of the dresses in January, 1963, was $3.75 a garment. Further examination of the record reveals, however, that Mr. Goldstein knew only that these were maternity dresses. He did not know how old they were, of what material they were made, or whether they were in season. Yet, he admitted that all of these factors would affect the value of the dresses.

In answer to questions by appellee's counsel, Mr. Goldstein stated: "Q. . . . Did the price, the market value, of dresses vary from year to year? A. Well, there are some dresses, yes. Q. Some dresses sell and some do not? A. That's right. Some you would have to sell cheaper. Q. So that the figure of $3.75, I believe it was, that would be a variable figure? A. It could be. ...


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