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NEMITZ v. BELL TELEPHONE COMPANY PENNSYLVANIA (09/19/73)

decided: September 19, 1973.

NEMITZ, APPELLANT,
v.
BELL TELEPHONE COMPANY OF PENNSYLVANIA



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1963, No. 263, in case of Herbert Nemitz, Ind. and t/a Del Val Tile Distributors v. The Reuben H. Donnelley Corp. and The Bell Telephone Company of Pennsylvania.

COUNSEL

Marvin H. Levin, for appellant.

Dolores B. Spina, with her Pepper, Hamilton and Scheetz, for appellee.

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

Author: Hoffman

[ 225 Pa. Super. Page 203]

In this appeal, we must decide if the lower court erred in directing a verdict in favor of the defendant, who admitted a breach of contract.

[ 225 Pa. Super. Page ]

The instant suit was brought by the appellant, Herbert Nemitz, individually and t/a Del Val Tile Distributors, to recover for loss of business and profits allegedly resulting from the defendant's contractual breach in failing to publish appellant's advertisements in the Yellow Pages Directory.

The case was tried before the Honorable Judge Francis X. McClanaghan of the Court of Common Pleas of Philadelphia and a jury, on November 27 and 28, 1972. At the close of plaintiff's case, defendant, Bell Telephone Company, moved for a compulsory non-suit. Defendant's motion was refused.*fn1 At the close of defendant's case, Bell Telephone moved for a directed verdict. That motion was granted and appellant's post-trial motions were denied. From this order, an appeal to this Court was taken.

[ 225 Pa. Super. Page 204]

As we said in Continental Super Market Food Service, Inc. v. Soboski, 210 Pa. Superior Ct. 304, 309, 232 A.2d 216 (1967), "On a motion for a directed verdict, the facts must be considered in the light most favorable to the party against whom the motion is made. . . . '[T]he court must accept as true all the evidence of that party which supports his contention . . . and must reject all the adverse testimony of the party seeking a directed verdict.' Lott v. Guiden, 205 Pa. Superior Ct. 519, 523, 211 A.2d 72 (1965)." In so viewing the facts of the instant case, the record discloses:

In November 1961, Jack Nemitz, who owned two stores known as Del Val Tile Distributors, sold the businesses to his two brothers. Bernard Nemitz purchased the store located at 6441 Market Street in Upper Darby; appellant purchased the one at 4537 N. 5th Street in Philadelphia. Though the two brothers held separate interests in the businesses, they continued to run each establishment under the former name of Del Val Tile Distributors. They agreed, however, to split the sales territory geographically -- Bernard's Market Street store would pull in those customers in and around the ...


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