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GEESEY v. ALBEE PENNSYLVANIA HOMES (11/16/67)

decided: November 16, 1967.

GEESEY
v.
ALBEE PENNSYLVANIA HOMES, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 65-0632, in case of Carl W. Geesey, Jr. v. Albee Pennsylvania Homes, Inc.

COUNSEL

Alvin S. Ackerman, for appellant.

Jack A. Rounick, with him Israelit and Rounick, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 211 Pa. Super. Page 216]

On or about February 12, 1964, plaintiff, a masonry contractor, was solicited by defendant's building supervisor to complete a half-built house belonging to one Frank LoPresti. Plaintiff testified that he and defendant's building supervisor inspected the site and reached an agreed price of $8200.00 to perform the required work.

Plaintiff completed the home and, subsequently, both orally and in writing, demanded payment from defendant. Defendant, however, informed plaintiff that

[ 211 Pa. Super. Page 217]

    it would not pay, and that plaintiff's contract was with LoPresti, the owner of the house.

Plaintiff instituted suit on January 19, 1965, and after trial before a judge and jury, received a verdict of $8200.00. Defendant now appeals.

Defendant first contends that the trial judge erred "in allowing the plaintiff to introduce evidence of an express contract for a specific price where, in his complaint, plaintiff alleged a claim based upon quantum meruit." In conjunction with this argument, defendant contends that the judge erroneously charged the jury with respect to an express contract, when the plaintiff alleged a cause of action solely in quantum meruit.

In support of this point, appellant relies on Zawada v. Pennsylvania System Board of Adjustment, 392 Pa. 207, 140 A.2d 335 (1958). We recently analyzed the Zawada case in Lampl v. Latkanich, 210 Pa. Superior Ct. 83, 231 A.2d 890 (1967). In Lampl, a defendant claimed that the plaintiff could not recover in quantum meruit, because he chose to base his claim on a written contract. The defendant further noted that the words "quantum meruit" did not appear in the pleadings, and that written contracts were attached to them.

We pointed out that in Zawada, the trial court had refused to permit plaintiff to amend her pleadings to set up a count in quantum meruit after a verdict for defendant. The Supreme Court affirmed the case, because "'the only possible implication' of the plaintiff's complaint was that she was suing on an express contract, the theory on which the case was tried. To permit such an amendment after the verdict, the Court held, would be highly prejudicial to the defendant." (p. 88)

We then went on to state: "In the instant case, however, the pleadings, fairly read, were sufficient to put the defendants on notice that quantum meruit was

[ 211 Pa. Super. Page 218]

    the basis, or one of the bases, of the plaintiff's claim. Plaintiff's amended complaint, for example, seeks the ' reasonable value of the services rendered' to the defendants, and includes an itemized statement of the work performed on their behalf.

"While it is true that copies of the written agreement are attached to the plaintiff's pleadings, this alone cannot constitute an 'election' as to his theory of recovery. At most, it signified that the plaintiff was proceeding in the alternative, both on the contract and in quantum meruit, as permitted by Rule 1020(c), Pa. R. C. P." (pp. 88-9)

We find that the instant case, while presenting the same contention in reverse (i.e., that plaintiff was proceeding in quantum meruit rather than contract), is very similar. Plaintiff's complaint alleged:

"3. At the special instance and oral request of the defendants, plaintiff did perform the work requested by defendants and supplied the materials for the performance of said work, in accordance with itemized statement of the account, a true and correct copy of ...


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