No. 755 April Term, 1976, Appeal from the Judgment entered April 14, 1976, of the Court of Common Pleas, Civil Division, of Allegheny County, at No. 1272 July Term, 1974.
Robert E. Wayman, Pittsburgh, for appellants.
John J. McLean, Jr., Pittsburgh, for appellees.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files an opinion in support of affirmance in which Hoffman and Cercone, JJ., join. Price, J., files an opinion in support of reversal in which Jacobs, P. J., and Van der Voort, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The six Judges who decided this case being equally divided, the judgment is affirmed.
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SPAETH, Judge, in support of affirmance:
Appellees Frank and Radakovich, attorneys, sued appellants Gerald and Mercedes Peckich to recover a contingent fee allegedly owed them for their representation of appellants in a complex land acquisition transaction. A jury found for appellees in the amount of $200,000. The lower court denied motions for new trial and judgment notwithstanding the verdict and entered judgment on the verdict. This appeal followed.
In late February and early March 1974, Gerald Peckich and a business acquaintance, Arthur Silverman, became interested in buying a vacant industrial plant in Beaver County owned by the A. M. Byers Company. The plant consisted of approximately 120 acres of land, about forty buildings, and large quantities of copper and steel scrap. On March 25, after consultations with financial and legal advisors, including Frank and Radakovich, Peckich and Silverman borrowed $150,000 on a thirty-day note. Using this as "hand money," Peckich and Silverman signed an agreement of sale with Byers. Under the agreement, the purchase price for the property was $1,775,000, the balance of $1,625,000 after payment of the hand money to be paid within thirty days. According to appellants, during the last several days of the negotiations that resulted in the agreement of sale, and for the next month, Peckich was represented by Frank and Radakovich; Silverman was represented by other attorneys.
After signing the agreement of sale, Peckich and Silverman considered how the balance of the purchase price might be financed. The exact details of the convoluted negotiations that ensued are not relevant to this appeal. It is sufficient to note that appellees offered testimony -- some of it corroborated by Peckich -- that they were active in representing Peckich during these negotiations. After several avenues that had looked promising proved to be dead ends, Frank gained the interest of a New York scrap dealer, Leonard Weisman, with whom he was acquainted. At first Weisman was interested only in contracting for rights to the scrap on the Byers property. However, on April 6, at
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Frank's suggestion, Frank and Peckich called Weisman and proposed that Weisman take over the financing of the acquisition. Weisman agreed, and on April 8 flew to Pittsburgh to negotiate unsettled details. On April 12, Peckich, Silverman, and Weisman executed agreements providing as follows: Peckich and Silverman assigned to Weisman their agreement of sale with Byers; Weisman agreed to provide $2,000,000, in part to provide the entire purchase price of $1,775,000,*fn1 in part to pay $225,000 in addition for unspecified extras; Weisman, after taking title to the Byers property, would deed over approximately ninety acres to Peckich and Silverman;*fn2 and Weisman would continue to have rights to some or all of the scrap on the property.
On April 25, at the closing scheduled in accordance with the March 26 agreement of sale, Byers conveyed the property in question to the J. J. Gumberg Co., local nominee of Weisman; Weisman provided the full purchase price of $1,775,000; and Peckich and Silverman received back their hand money. Whether Peckich and Silverman also received their ninety acres from Weisman (through Gumberg) on April 25, and in what form (i. e., in a recordable deed or not), is a matter of some dispute, which cannot be resolved from the record. We find, however, that for the purposes of this appeal the dispute does not need to be resolved. It is not disputed that Peckich and Silverman did not receive the extra $225,000 provided for in their assignment to Weisman.*fn2a
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On April 11, during the above negotiations, Frank and Radakovich had discussed the question of their fee with Peckich and Silverman. Frank stated that in view of the apparent success of his efforts to assure financing for the venture, he thought a fee of $200,000 was warranted, "payable at the closing." (R. 118a.) According to Frank, Peckich agreed immediately to this contingent fee, and Silverman agreed after some initial reluctance. Therefore, after the closing on April 25, Frank and Radakovich met with Peckich and Silverman to ask when they could expect payment. When Peckich and Silverman stated that they would not pay the fee, Frank and Radakovich terminated their representation and on April 29 filed suit against Peckich and his wife and Silverman and his wife. Since a voluntary discontinuance was entered as to the Silvermans, and a count in quantum meruit was abandoned during trial, the suit came down to one on a contingent fee agreement between appellees, Frank and Radakovich, as attorneys, and appellants, the Peckichs, as clients.
Appellants argue that the lower court should have granted their motion for judgment n. o. v., because appellees failed to prove the occurrence of the contingency on which the fee agreement turned.
[i]n considering a motion for judgment n. o. v., the evidence, together with all reasonable inferences capable of being drawn therefrom, must be viewed in the light most favorable to the verdict winner. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). The court must find and consider only that evidence which supports the verdict, and all conflicts must be resolved in favor of the
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prevailing party. Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43, allocatur refused, 205 Pa. Super. xxxvii (1965). Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 643-4, 359 A.2d 440, 441 (1976).
It has also been said that "[j]udgment n. o. v. should be entered only when the facts are such that no two reasonable persons could fail to agree that the verdict was improper." Cummings v. Nazareth Borough, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967).
Here, appellants insist that appellees' own case affirmatively demonstrated that the fee had not yet been earned at the time of the closing on April 25. To buttress this argument, appellants cite testimony by both appellees to the effect that at the closing appellants "received legal title to only 80 per cent of the land to which they were entitled, and that Weisman paid only $1,800,000, or approximately $200,000 less than was due." Appellants' Brief at 7. The difficulty with this argument is that it assumes that appellees agree with appellants that the contingency agreed upon was the perfection of all steps of the transaction: passage of title from Byers to Weisman, payment of $225,000 by Weisman to appellants, and passage of title to ninety acres from Weisman to appellants. This is not appellees' version of the agreement.
Radakovich testified that at the April 11 meeting between the parties to discuss the fee, "a contract was entered into, that they would pay $2,000 [ sic -- later corrected to "$200,000"] -- Mr. Peckich would pay $2,000 on the successful passage of title of a deed from A. M. Byers to Weisman or his nominee, Gumberg, because he really wanted title out of Byers because he was worried about the project getting away." R. 424a. This testimony is admittedly Radakovich's conclusion of what the agreement was, but it is corroborated by other testimony that suggests that Peckich hired appellees to use their abilities to ensure that the April 25 closing take place. For example, Radakovich testified that immediately after the closing Peckich said: "Well it's over; we
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signed. The deed's out of Byers. That's all I care about." R. 385a.
Frank testified on cross-examination that on April 4, after the parties learned that they would be unable to get one of the suggested means*fn3 of financing the balance of the purchase price, he assured Peckich: "If the project isn't completed, you don't owe us anything . . . . He said we want to pay you anyway. I said no. It will be a larger fee if it goes through to closing. No fee if we don't have it closed." R. 328a. Then the following appears:
Q. When you say the project completed, do you mean completed to the satisfaction of Mr. Peckich? Or what did you mean by completed? If the project is not completed, you do not owe me a fee. Now, what did you mean when you said to Mr. Peckich if the project is not completed you do not owe me a fee?
A. You have to understand the problem at the time was April 25, the deadline.
Q. Mr. Frank, the question is --
A. I'm answering your question, Mr. Wayman [counsel for appellants].
Q. I don't believe you are, Mr. Frank.
A. And we all understood there was no mistake about the problem as of April 4. We had three weeks to go, and it looked like no money. And if we didn't come up with 1,625,000 by April 25, that agreement*fn4 could have become null and void.
What was meant by that expression at the closing, conclusion, was does that agreement get effectuated and carried out, or do we lose it? And the assignment*fn5 was
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to keep us from losing it. That's what we all understood it to be. R. 329a-330a.
The only testimony by appellees that supports appellants' argument is the following, by Frank on cross-examination:
A. [On April 11, t]hat's when I told Mr. Peckich our fee, $200,000 payable at the closing.
Q. Yeah, well, now, what was contingent about that?
Q. No closing, no fee. Was it no closing, no fee; or no fee if this matter is not satisfactorily concluded? Which words did you use?
A. Payable at the closing. I believe in later discussions I may have used the words satisfactory conclusion. There was no disagreement. We all understood what it was to get the deed out of Byers into Weisman, back to us and Levinson. We knew on April 11th what that meant. R. 258a.
This seems to contradict Radakovich's testimony quoted above, that the contingency was only the signing of the deed between Byers and Gumberg. Frank's testimony here seems to contemplate two events: the conveyance by Byers to Gumberg and the conveyance by Gumberg to appellants. We do not think, however, that this inconsistency is fatal to appellees' case. First, Frank's language is somewhat freeform, and we think the jury could justifiably choose to rely instead on Radakovich's clearer statement of the contingency. Second, Radakovich may have done enough to explain the inconsistency, when he testified:
A deed was going to pass from Byers to Weisman's nominee of the entire acreage. And then, Peckich and Silverman at some other time, either then [at closing on April 25] or later, were to receive a deed of everything other than the thirty acres*fn6 to them. R. 379a.
Thus the agreement between the parties may have been: that appellees were to work to ensure that the April 25
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closing between Byers and Gumberg took place successfully; that it was understood that this event would make possible -- perhaps with some further steps required*fn7 -- the eventual passage of title to Peckich and Silverman; and that the first service -- effectuating the Byers/Gumberg closing -- merited the contingent fee because it made possible the next steps. Under this interpretation, Frank's words may have been consistent with Radakovich's. He may have meant: "We all understood what a difficult task it was to get the deed out of Byers into Weisman, back to us and Levinson. We all knew on April 11th what that meant -- that our service to guarantee the first step was the key to the success of the entire transaction, and therefore was worth our fee." True it is that Frank could have meant instead: "We all understood what the 'satisfactory conclusion' was: to get the deed out of Byers into Weisman, back to us and Levinson." However, for the purposes of deciding whether a motion for judgment n. o. v. should have been granted, we must read the record in the light most favorable to appellees. Following that rule, we find that appellees sufficiently proved the occurrence of the contingency they alleged.
Given the rather shaky case presented by appellees, one might suppose that appellants should have had little trouble in overcoming it. The interesting point is, however, that appellants in fact offered no evidence to prove the version of the contingency that they now argue. Instead, Peckich insisted that he had never agreed to pay the fee. The jury did not believe him, and he has not pressed this argument on appeal. Thus it appears that appellants made a decision of trial strategy, to counter only the evidence that a contract had been made; that they elected to rely on appellees to hang themselves by proving a contingency that did not occur; and that appellants now hope that we will assess appellees' testimony differently than did the jury. As we
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have demonstrated, we are not persuaded. The motion for judgment n. o. v. was properly denied.*fn7a
Appellant Mercedes Peckich offers a separate argument why judgment n. o. v. should have been granted her: appellees did not sufficiently prove that her husband was empowered to contract with appellees on her behalf. This claim has been waived.
By statute,*fn8 and by the case law interpreting the statute,*fn9 judgment n. o. v. may be sought only by one who has first submitted a point requesting binding instructions. Here, appellants submitted the following point: "Under the law and the evidence, the verdict must be for the defendants, Gerald L. Peckich and Mercedes Peckich." R. 54a. We do not think this sufficiently raises the point that Mrs. Peckich now argues.
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In general, our lower and appellate courts have not been overly strict on the form that a request for binding instructions must take. See Bloom v. Pike Township School District, 162 Pa. Super. 148, 56 A.2d 348 (1948); Eckenrode v. Produce Trucking Co., 49 Dauph. 271 (1941). The one condition that must be met is that the request be written, Smith v. Graham, 101 Pa. Super. 604 (1931); an oral request may not be cured by an order correcting the record nunc pro tunc. Thomas F. Leonard Co. v. Scranton Coca-Cola Bottling Co., 90 Pa. Super. 360 (1927). However, we believe that where, as here, the defendants argue two theories in support of their motion for judgment n. o. v. -- one applicable to both defendants, the second only to one defendant -- the request must clearly set forth both theories, so that the lower court will know what it is being asked to decide. Here, appellants' request in effect asked the court to decide only whether appellees had proved all elements of their case against "Gerald L. Peckich and Mercedes Peckich." Since husband and wife were thus described as an entity, the request did not raise the question whether appellees had proved a particular aspect of their case against Mercedes Peckich alone.
An analogous case is King v. Philadelphia Suburban Transportation Co., 160 Pa. Super. 26, 50 A.2d 34 (1946). There we held that a defendant's point for binding instructions in its favor were insufficient to preserve the claim that judgment n. o. v. should have been granted against an additional defendant. Though the factual setting is different, the principle of King applies here: that the request for binding instructions must notify the court of the point (or points) it is being asked to decide.
Our reasoning might be thought harsh in light of appellants' motion for a directed verdict at the close of appellees' evidence; in that motion appellants specifically argued both theories -- failure to prove a contract and the contingency, and failure to prove authority in Gerald Peckich to bind Mercedes Peckich. However, it must be noted that after the motion ...