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HOUSTON-STARR COMPANY v. DAVENPORT ET AL. (04/03/74)

decided: April 3, 1974.

HOUSTON-STARR COMPANY
v.
DAVENPORT ET AL., APPELLANTS



Appeal from judgment and order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1969, No. 503, in case of Houston-Starr Company, a Pennsylvania Corporation, v. Levy H. Davenport and State Capital Savings and Loan Association, Garnishee, and Hidden Valley Tennis Club, Inc., Garnishee.

COUNSEL

Ronald J. McKay, with him Jubelirer, McKay, Pass & Intrieri, for appellant.

Robert A. Nedwick, with him Hollinshead and Mendelson, for appellee.

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

Author: Hoffman

[ 227 Pa. Super. Page 187]

This is an appeal from the Order of the Court of Common Pleas of Allegheny County, denying appellants' motion for a new trial and judgment n.o.v.

The appellee, a judgment creditor of the appellant, Levy Davenport, attempted to execute on funds held by the appellant, Hidden Valley Tennis Club, and owed to Davenport.

[ 227 Pa. Super. Page 188]

Appellants resisted the attempt, alleging that any funds owed by Hidden Valley to Davenport were exempt from attachment by virtue of the Act of April 15, 1845, P. L. 459, § 5, 42 P.S. § 886.*fn1 The issue at trial was whether the relationship between the appellants was that of owner and general contractor, or owner-general contractor and construction supervisor in a project for the construction of indoor tennis courts. If Davenport was a general contractor, funds owed to him by Hidden Valley were subject to attachment. If he was a construction supervisor, his services were in the nature of an employee's, and his wages or salary were exempt from attachment. See Hollander v. Kressman, 143 Pa. Superior Ct. 32, 17 A.2d 669 (1941); Bell v. Roberts, 150 Pa. Superior Ct. 469, 28 A.2d 715 (1942).

During the pre-construction phase of the project, the Club's mortgagee, in order to protect the priority of its lien, required the execution and filing of a nolien contract between the Club and construction contractors. This agreement was filed of record, naming Davenport as general contractor and the club as owner. At trial, the appellee offered this contract as evidence of an owner-general contractor relationship. The appellants' version of the relationship was that they initially intended Davenport to be general contractor, but that time pressures required Hidden Valley to act as general contractor, and hired Davenport as construction supervisor for a fee of $12,000.00.

[ 227 Pa. Super. Page 189]

By special interrogatory, the jury found that Davenport acted as general contractor. On appellee's motion the trial judge molded a verdict for $9,000.00 in its favor. Appellants filed motions for judgment n.o.v. and for a new trial. The former motion was denied and the latter was granted unless appellee filed a remittitur of $3,000.00. Appellee filed the remittitur and judgment in the amount of $6,000.00 was entered in its favor.

Although appellants raise a number of contentions only two require discussion.*fn2 The first relates to the trial court's limitation of appellant's examination of a witness ...


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