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ANTONIO VISO AND POTAMKIN CHEVROLET COMPANY v. MICHAEL N. WERNER (02/28/77)

decided: February 28, 1977.

ANTONIO VISO AND POTAMKIN CHEVROLET COMPANY, INC.
v.
MICHAEL N. WERNER, IND. AND T/A WERNER CONTRACTING COMPANY, APPELLANT, AND WERNER CONTRACTING COMPANY, INC.



COUNSEL

Community Legal Services, Inc., Elliot B. Platt, Philadelphia, for appellant.

Pershing N. Calabro, Philadelphia, for appellee, Antonio Viso.

Stephen T. Shaffer, Philadelphia, for appellee, Potamkin Chevrolet Co.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 471 Pa. Page 44]

OPINION OF THE COURT

This appeal developed out of a complaint in assumpsit filed in the Court of Common Pleas for Philadelphia County by appellee, Antonio Viso, alleging that appellant, Michael N. Werner, individually, and Werner Contracting Co., Inc., were in breach of contract to pave a certain lot in Philadelphia. Appended to the complaint was a copy of a proposal for the paving job, dated October 13, 1958, which formed the basis for the alleged written contract. The proposal was typed on Werner Contracting Co. letterhead and was addressed to appellee, Potamkin Chevrolet Co., a tenant of appellee Viso;*fn1 it was signed "Respectfully submitted, Werner Contracting Co. By: s/Michael N. Werner." Also appended to the complaint was an invoice addressed to appellee Potamkin, dated November 13, 1958, on which was noted: "Make check payable to Michael N. Werner."

Appellant filed an answer, new matter and counterclaim, both individually and as an authorized officer of the defendant corporation. The answer denied that the

[ 471 Pa. Page 45]

    exhibit to the complaint was a correct copy of the contract; it also denied breach of the contract and that Michael N. Werner, individually, entered into any contract with either plaintiff.

During the pendency of the litigation, appellant's counsel died and appellant was sentenced to the State Correctional Institution at Graterford for an incident wholly unrelated to the instant controversy. The instant case came up for trial on September 13, 1972. Petitioner was unrepresented and, of course, was not present, although letters sent to petitioner at prison notifying him that his case was to be scheduled for trial were made part of the record.*fn2 The trial was conducted by the judge, sitting without a jury, and consisted primarily of a statement by counsel for appellees, in which he restated the allegations of the complaint. Appellees' counsel presented to the court the deposition of Julius Adler,*fn3 a paving expert, which was taken on October 28, 1965. In his deposition, Adler testified that he inspected the lot on April 30, 1963, and found holes, cracks and disintegration of the pavement. He also testified that he cut samples of the paving and found their thickness to be less than that specified by the contract. Appellees' counsel also offered into evidence the three samples of the pavement which the expert witness, Adler, obtained from the lot. No witnesses were called.

The court on September 14, 1972, returned a judgment of $6,000 in favor of the ...


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