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METZ CONTRACTING v. BOXER HEIGHTS (12/20/78)

decided: December 20, 1978.

METZ CONTRACTING, INC., APPELLANT,
v.
BOXER HEIGHTS, INC., APPELLEE



No. 556 April Term, 1978, Appeal from Judgment entered in Court of Common Pleas, Civil Division of Allegheny County at No. 3327 April Term, 1973.

COUNSEL

Gary P. Hunt, Pittsburgh, for appellant.

John H. Neely, Pittsburgh, for appellee.

Cercone, Hoffman and Wieand, JJ.

Author: Wieand

[ 261 Pa. Super. Page 179]

Metz Contracting, Inc. instituted an action in assumpsit to recover a balance allegedly due for labor performed and materials supplied in making improvements to three separate tracts of land owned by Boxer Heights, Inc. The owner filed an answer containing a series of counterclaims. The action was tried without jury and resulted in a decision in favor of the owner for $1,975.*fn1 Exceptions filed by the

[ 261 Pa. Super. Page 180]

    contractor were dismissed by the court en banc, and judgment was entered on the decision of the trial court. The contractor appealed.

It is firmly established that the findings of a trial judge, sustained by the court en banc, have the force and effect of a jury's verdict and, if based on sufficient evidence, will not be disturbed on appeal. Snow v. Corsica Construction Company, Inc., 459 Pa. 528, 329 A.2d 887 (1974); Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967); J. R. Christ Construction Co., Inc. v. Olevsky, 426 Pa. 343, 232 A.2d 196 (1967). Appellate review, therefore, is limited to a determination of whether the findings of the trial court are supported by competent evidence and whether the trial court committed error of law. Rubinstein v. J. E. Kunkel Co., 244 Pa. Super. 474, 479, 368 A.2d 819, 822 (1976); E. I. du Pont de Nemours & Company, Inc. v. Berm Studios, Inc., 211 Pa. Super. 352, 354, 236 A.2d 555, 556 (1967).

The trial court, in finding that there was a balance unpaid for work done by appellant-contractor, reduced the amount claimed by $4,657.50. This was the amount of an invoice which, according to evidence and the face of the document itself, was for work done on land separate and apart from the tracts referred to in the three written contracts pleaded by appellant. The record does not disclose that appellant ever asked to amend its complaint to include the contract under which the work covered by this invoice was done. Therefore, we find no error in the exclusion of this amount from the balance found by the court to be due on contracts pleaded by appellant.

Appellant's remaining arguments pertain to the sufficiency of the evidence to support credits and set-offs awarded to appellee by the trial court. We have examined carefully the entire record and, with the exceptions hereinafter discussed, find that there is sufficient competent evidence to support the court's findings.

One of the credits awarded to appellee was for $2,003.30. This credit, as appellee conceded ...


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