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HUNT v. HERMAN PNEUMATIC MACHINE CO. (06/15/72)

decided: June 15, 1972.

HUNT, APPELLANT,
v.
HERMAN PNEUMATIC MACHINE CO.



Appeal from order of Court of Common Pleas of Butler County, March T., 1970, No. 134, in case of Richard E. Hunt v. Herman Pneumatic Machine Company.

COUNSEL

A. R. Cingolani, Jr., with him Cingolani & Cingolani, for appellant.

Chester R. Gilchrist, with him Coulter, Gilchrist, Dillon & McCandless, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 221 Pa. Super. Page 329]

This is an appeal from an order granting a new trial entered on August 17, 1971, by a court en banc of the Court of Common Pleas of Butler County.*fn1 The order followed a jury verdict in the sum of $7,364.41 plus interest in favor of appellant Richard E. Hunt and against appellee Herman Pneumatic Machine Company.

Appellant brought this action in assumpsit based on an oral contract for the demolition of a building owned by appellee. Appellant performed the work due under the contract on schedule and to the satisfaction of appellee. A dispute between the parties arose over the amount appellee had agreed to pay appellant. Appellant contends that under the contract, negotiated during January 1969, he was to be paid the fixed sum of $11,940.00. Appellee denies that the contract was for a fixed sum and alleges that under their agreement appellant was to be compensated at the rate of cost plus

[ 221 Pa. Super. Page 33050]

% ($4,579.59), which amount has been paid to him. A jury found in favor of appellant and their award is approximately the balance of what he contended was owed under the contract after subtracting the amount appellee had already paid.*fn2

Immediately prior to trial, appellant requested a ruling by the trial judge regarding the admissibility of testimony he sought to introduce pertaining to a third party's bid on the demolition work which was received by appellee. The trial judge ruled that the proffered testimony was irrelevant and therefore inadmissible. Despite this ruling, counsel for appellant, as determined by the court en banc, "repeatedly attempted to get this 'other bid' before the jury". In both his questioning of the witnesses and his closing argument to the jury, counsel continually alluded to this inadmissible evidence, despite repeatedly sustained objections and admonishments by the court. On this basis, the court en banc, notwithstanding the jury's verdict for appellant, concluded "that in the interests of justice a new trial should be granted".

Appellant makes two arguments on this appeal. He asserts that even assuming the trial court's ruling against admitting the proffered evidence was correct, counsel's reference to the inadmissible evidence was neither sufficiently prejudicial to appellee nor properly objected to on the record and the grant of a new trial is therefore not justified. In the alternative, appellant urges that the trial court's refusal to admit the evidence relating to another bid for the same work was incorrect and that such evidence should be permitted on retrial.

I

[ 221 Pa. Super. Page ...


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